Exhibit 4.1
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TRUST AGREEMENT
between
SLM FUNDING CORPORATION,
as Depositor
and
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Eligible Lender Trustee
Dated as of August 1, 2002
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TABLE OF CONTENTS
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Page
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ARTICLE I
DEFINITIONS AND USAGE
SECTION 1.1 Definitions and Usage ................................................. 1
ARTICLE II
ORGANIZATION
SECTION 2.1 Creation of Trust; Name ............................................... 1
SECTION 2.2 Office ................................................................ 1
SECTION 2.3 Purposes and Powers ................................................... 1
SECTION 2.4 Appointment of Eligible Lender Trustee ................................ 2
SECTION 2.5 Initial Capital Contribution of Trust Estate .......................... 2
SECTION 2.6 Declaration of Trust .................................................. 2
SECTION 2.7 Liability of the Holders of the Excess Distribution Certificate ....... 3
SECTION 2.8 Title to Trust Property ............................................... 3
SECTION 2.9 Representations, Warranties and Covenants
of the Depositor ...................................................... 3
SECTION 2.10 Intentionally Omitted ................................................. 4
ARTICLE III
BENEFICIAL OWNERSHIP AND EXCESS DISTRIBUTION CERTIFICATE
SECTION 3.1 Initial Beneficial Ownership .......................................... 4
SECTION 3.2 Intentionally Omitted ................................................. 4
SECTION 3.3 Intentionally Omitted ................................................. 4
SECTION 3.4 Intentionally Omitted ................................................. 4
SECTION 3.5 Intentionally Omitted ................................................. 4
SECTION 3.6 Intentionally Omitted ................................................. 4
SECTION 3.7 Intentionally Omitted ................................................. 5
SECTION 3.8 Corporate Trust Office ................................................ 5
SECTION 3.9 Intentionally Omitted ................................................. 5
SECTION 3.10 Intentionally Omitted ................................................. 5
SECTION 3.11 Intentionally Omitted ................................................. 5
SECTION 3.12 Intentionally Omitted ................................................. 5
SECTION 3.13 The Excess Distribution Certificate ................................... 5
ARTICLE IV
ACTIONS BE ELIGIBLE LENDER TRUSTEE
SECTION 4.1 Prior Notice to the Holder of the Excess Distribution Certificate
With Respect to Certain Matters ....................................... 8
SECTION 4.2 Action with Respect to Sale of the Trust Student Loans ................ 9
SECTION 4.3 Action with Respect to Bankruptcy ..................................... 9
SECTION 4.4 Restrictions .......................................................... 9
SECTION 4.5 Intentionally Omitted ................................................. 9
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.1 Application of Trust Funds ............................................ 9
SECTION 5.2 Method of Payment ..................................................... 10
SECTION 5.3 No Segregation of Moneys; No Interest ................................. 10
SECTION 5.4 Reports to the Holder of the Excess Distribution
Certificate, the Internal Revenue Service and Others .................. 10
SECTION 5.5 Intentionally Omitted ................................................. 10
SECTION 5.6 Intentionally Omitted ................................................. 10
ARTICLE VI
AUTHORITY AND DUTIES OF ELIGIBLE LENDER TRUSTEE
SECTION 6.1 General Authority ..................................................... 11
SECTION 6.2 General Duties ........................................................ 11
SECTION 6.3 Action upon Instruction ............................................... 12
SECTION 6.4 No Duties Except as Specified in
This Agreement or in Instructions ..................................... 13
SECTION 6.5 No Action Except Under Specified Documents or Instructions ............ 13
SECTION 6.6 Restrictions .......................................................... 13
ARTICLE VII
CONCERNING THE ELIGIBLE LENDER TRUSTEE
SECTION 7.1 Acceptance of Trusts and Duties ....................................... 13
SECTION 7.2 Intentionally Omitted ................................................. 15
SECTION 7.3 Representations and Warranties ........................................ 15
SECTION 7.4 Reliance; Advice of Counsel ........................................... 16
SECTION 7.5 Not Acting in Individual Capacity ..................................... 16
SECTION 7.6 Eligible Lender Trustee Not Liable for Excess
Distribution Certificate or Trust Student Loans ....................... 16
SECTION 7.7 Eligible Lender Trustee May Own
Notes ................................................................. 17
ARTICLE VIII
COMPENSATION AND INDEMNITY OF ELIGIBLE LENDER TRUSTEE
SECTION 8.1 Eligible Lender Trustee's Fees and Expenses ........................... 17
SECTION 8.2 Payments to the Eligible Lender Trustee ............................... 17
SECTION 8.3 Indemnity ............................................................. 17
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.1 Termination of Trust Agreement ........................................ 18
SECTION 9.2 Dissolution upon Insolvency of the Depositor .......................... 18
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ARTICLE X
SUCCESSOR ELIGIBLE LENDER TRUSTEES AND ADDITIONAL ELIGIBLE LENDER TRUSTEES
SECTION 10.1 Eligibility Requirements for Eligible Lender Trustee .................. 19
SECTION 10.2 Resignation or Removal of Eligible Lender Trustee ..................... 19
SECTION 10.3 Successor Eligible Lender Trustee ..................................... 20
SECTION 10.4 Merger or Consolidation of Eligible Lender Trustee .................... 21
SECTION 10.5 Appointment of Co-Eligible Lender Trustee or Separate
Eligible Lender ....................................................... 21
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Supplements and Amendments ............................................ 22
SECTION 11.2 No Legal Title to Trust Estate in
Holders of the Excess Distribution Certificate ........................ 23
SECTION 11.3 Limitations on Rights of Others ....................................... 23
SECTION 11.4 Notices ............................................................... 24
SECTION 11.5 Severability .......................................................... 24
SECTION 11.6 Separate Counterparts ................................................. 24
SECTION 11.7 Successors and Assigns ................................................ 24
SECTION 11.8 No Petition ........................................................... 24
SECTION 11.9 No Recourse ........................................................... 25
SECTION 11.10 Headings .............................................................. 25
SECTION 11.11 Governing Law ......................................................... 25
Exhibit A Reserved
Exhibit B Reserved
Exhibit C Form of Excess Distribution Certificate
Annex 1 to Trust Agreement
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TRUST AGREEMENT dated as of August 1, 2002, between SLM FUNDING
CORPORATION, a Delaware corporation, as the Depositor, and CHASE MANHATTAN BANK
USA, NATIONAL ASSOCIATION, a national banking association, not in its individual
capacity but solely as the Eligible Lender Trustee.
WITNESSETH:
The Depositor and the Eligible Lender Trustee hereby agree as follows:
ARTICLE I
SECTION 1.1 Definitions and Usage. Except as otherwise specified herein
or as the context may otherwise require, capitalized terms used but not
otherwise defined herein are defined in Appendix A hereto, which also contains
rules as to usage that shall be applicable herein.
ARTICLE II
Organization
SECTION 2.1 Creation of Trust; Name. There is hereby created a Trust
which shall be known as "SLM Student Loan Trust 2002-5", in which name the
Eligible Lender Trustee may conduct the business of the Trust, make and execute
contracts and other instruments on behalf of the Trust and xxx and be sued. The
Trust shall constitute a business trust within the meaning of Section 3801(a) of
the Delaware Business Trust Act for which the Trustee has filed a certificate of
trust with the Secretary of State of the State of Delaware pursuant to Section
3810(a) of the Delaware Business Trust Act.
SECTION 2.2 Office. The office of the Trust shall be in care of the
Eligible Lender Trustee at its Corporate Trust Office or at such other address
as the Eligible Lender Trustee may designate by written notice to the Depositor.
SECTION 2.3 Purposes and Powers. The purpose of the Trust is to engage
in the following activities:
(i) to issue the Notes pursuant to the Indenture and the
Excess Distribution Certificate pursuant to this Agreement and to sell
the Notes in one or more transactions;
(ii) with the proceeds of the sale of the Notes, to fund the
Reserve Account pursuant to Section 2.8.1 of the Administration
Agreement, to fund the Capitalized Interest Account pursuant to Section
2.8.2 of the Administration Agreement, to fund the Collection Account
pursuant to Section 2.6.C of the Administration Agreement, and to
purchase the Trust Student Loans pursuant to the Sale Agreement, as
applicable;
(iii) to Grant the Trust Estate to the Indenture Trustee
pursuant to the Indenture, and to hold, manage and distribute to the
holder of the Excess Distribution Certificate
pursuant to the terms of this Agreement any portion of the Trust Estate
released from the Lien of, and remitted to the Trust pursuant to, the
Indenture;
(iv) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(vi) subject to compliance with the Basic Documents, to engage
in such other activities as may be required in connection with
conservation of the Trust Estate and the making of distributions to the
Noteholders and the others specified in Sections 2.7, 2.8.1 and 2.8.2
of the Administration Agreement.
The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Agreement
or the other Basic Documents.
SECTION 2.4 Appointment of Eligible Lender Trustee. The Depositor
hereby appoints the Eligible Lender Trustee as trustee of the Trust, effective
as of the date hereof, to have all the rights, powers and duties set forth
herein.
SECTION 2.5 Initial Capital Contribution of Trust Estate. The Depositor
hereby sells, assigns, transfers, conveys and sets over to the Eligible Lender
Trustee, as of the date hereof, the sum of $100.00. The Eligible Lender Trustee
hereby acknowledges receipt in trust from the Depositor, as of the date hereof,
of the foregoing contribution, which shall constitute the Initial Trust Estate
and shall be deposited in the Collection Account. The Depositor shall pay the
organizational expenses of the Trust as they may arise or shall, upon the
request of the Eligible Lender Trustee, promptly reimburse the Eligible Lender
Trustee for any such expenses paid by the Eligible Lender Trustee.
SECTION 2.6 Declaration of Trust. The Eligible Lender Trustee hereby
declares that it will hold the Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the holder of the Excess
Distribution Certificate, subject to the obligations of the Trust under the
other Basic Documents. It is the intention of the parties hereto that the Trust
constitute a business trust under Delaware law and that this Agreement
constitute the governing instrument of such trust. Effective as of the date
hereof, the Eligible Lender Trustee shall have all rights, powers and duties set
forth herein with respect to accomplishing the purposes of the Trust.
SECTION 2.7 Liability of the Holders of the Excess Distribution
Certificate.
(a) Notwithstanding the provisions of Section 3803 of the Delaware
Business Trust Act, the Depositor shall be liable directly to
and shall indemnify the injured party for all losses, claims,
damages, liabilities and expenses of the Trust (including
Expenses, to the extent that the assets of the Trust that would
remain if all of the
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Notes were paid in full would not be sufficient to pay any such
liabilities, or if such liabilities in fact are not paid out of
the Trust Estate) to the extent that the Depositor would be
liable if the Trust were a partnership under the Delaware Revised
Uniform Limited Partnership Act in which the Depositor were a
general partner; provided, however, that the Depositor shall not
be liable for any losses incurred by a beneficial owner of a Note
in its capacity as a holder of limited recourse debt or to any
holder of the Excess Distribution Certificate. In addition, any
third party creditors of the Trust (other than in connection with
the obligations to Noteholders excepted above) shall be third
party beneficiaries of this paragraph.
(b) No holder of the Excess Distribution Certificate (in such
capacity) shall have any personal liability for any liability or
obligation of the Trust.
SECTION 2.8 Title to Trust Property. Legal title to all of the Trust
Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part of
the Trust Estate to be vested in a trustee or trustees, in which case title
shall be deemed to be vested in the Eligible Lender Trustee, a co-trustee and/or
a separate trustee, as the case may be; provided that legal title to the Trust
Student Loans shall be vested at all times in the Eligible Lender Trustee on
behalf of the Trust.
SECTION 2.9 Representations, Warranties, and Covenants of the
Depositor. The Depositor hereby represents, warrants and covenants to the
Eligible Lender Trustee as follows:
(a) The Depositor is duly organized and validly existing as a
Delaware corporation in good standing under the laws of the State
of Delaware, with power and authority to own its properties and
to conduct its business as such properties are currently owned
and such business is presently conducted.
(b) The Depositor has the corporate power and authority to execute
and deliver this Agreement and to carry out its terms; the
Depositor has full corporate power and authority to sell and
assign the property to be sold and assigned to and deposited with
the Trust (or with the Eligible Lender Trustee on behalf of the
Trust) and the Depositor has duly authorized such sale and
assignment and deposit to the Trust (or to the Eligible Lender
Trustee on behalf of the Trust) by all necessary corporate
action; and the execution, delivery and performance of this
Agreement has been duly authorized by the Depositor by all
necessary corporate action.
(c) This Agreement constitutes a legal, valid and binding obligation
of the Depositor enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization and
similar laws relating to creditors' rights generally and subject
to general principles of equity.
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict
with, result in any breach of any of
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the terms and provisions of, or constitute (with or without
notice or lapse of time or both) a default under, the Certificate
of Incorporation or by-laws of the Depositor, or any indenture,
agreement or other instrument to which the Depositor is a party
or by which it is bound; nor result in the creation or imposition
of any Lien upon any of its properties pursuant to the terms of
any such indenture, agreement or other instrument (other than
pursuant to the Basic Documents); nor violate any law or, to the
Depositor's knowledge, any order, rule or regulation applicable
to the Depositor of any court or of any Federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its
properties.
(e) The Depositor agrees for the benefit of the Noteholders and the
holder of the Excess Distribution Certificate that it will comply
with each of the requirements set forth in Article IX, X, and XII
of its Certificate of Incorporation and with each of the
undertakings set forth in Annex I hereto.
SECTION 2.10 Intentionally Omitted.
ARTICLE III
Beneficial Ownership and
Excess Distribution Certificate
SECTION 3.1 Initial Beneficial Ownership. Upon the formation of the
Trust by the contribution by the Depositor pursuant to Section 2.5 and until the
issuance of the Excess Distribution Certificate, the Depositor shall be the sole
beneficial owner of the Trust.
SECTION 3.2 Intentionally Omitted.
SECTION 3.3 Intentionally Omitted.
SECTION 3.4 Intentionally Omitted.
SECTION 3.5 Intentionally Omitted.
SECTION 3.6 Intentionally Omitted.
SECTION 3.7 Intentionally Omitted.
SECTION 3.8 Corporate Trust Office. The Eligible Lender Trustee
initially designates Christiana Center/OPS4, 000 Xxxxxxx Xxxxxxxxxx Xxxx,
Xxxxxx, Xxxxxxxx 00000, as its principal Corporate Trust Office, at which it
shall act as Trustee of the Trust. The Eligible Lender Trustee's New York office
and its authenticating agent's office are located at 000 Xxxx 00xx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Structured Finance Services.
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SECTION 3.9 Intentionally Omitted.
SECTION 3.10 Intentionally Omitted.
SECTION 3.11 Intentionally Omitted.
SECTION 3.12 Intentionally Omitted.
SECTION 3.13 The Excess Distribution Certificate.
(a) General. The Excess Distribution Certificate shall be issued
without denomination. The Excess Distribution Certificate shall receive payments
as provided in Sections 2.8.1C.1(F)(ii) and 2.8.2B.2 of the Administration
Agreement. The Excess Distribution Certificate shall be executed on behalf of
the Trust by manual or facsimile signature of an authorized officer of the
Eligible Lender Trustee. An Excess Distribution Certificate bearing the manual
or facsimile signatures of individuals who were, at the time when such
signatures were affixed, authorized to sign on behalf of the Trust, shall be
valid and binding obligations of the Trust, notwithstanding that such
individuals or any of them shall have ceased to be so authorized prior to the
authentication and delivery of such Excess Distribution Certificate or did not
hold such offices at the date of authentication and delivery of such Excess
Distribution Certificate.
(b) Authentication. Concurrently with the sale of the Trust Student
Loans to the Trust pursuant to the Purchase Agreement, the Eligible Lender
Trustee shall cause the Excess Distribution Certificate to be executed on behalf
of the Trust, authenticated and delivered to or upon the written order of the
Depositor, signed by its chairman of the board, its president or any vice
president, without further action by the Depositor. No Excess Distribution
Certificate shall entitle its holder to any benefit under this Agreement, or
shall be valid for any purpose, unless there shall appear on such Excess
Distribution Certificate a certificate of authentication substantially in the
form set forth in Exhibit C, executed by the Eligible Lender Trustee or JPMorgan
Chase Bank, as the Eligible Lender Trustee's authenticating agent, by manual
signature; such authentication shall constitute conclusive evidence that such
Excess Distribution Certificate shall have been duly authenticated and delivered
hereunder. The Excess Distribution Certificate shall be dated the date of its
authentication. No further Excess Distribution Certificates shall be issued
except pursuant to paragraph (c) or (d) below.
(c) Registration of Transfer and Exchange. The Excess Distribution
Certificate Registrar shall keep or cause to be kept, at the office or agency
maintained pursuant to paragraph (f) below, an Excess Distribution Certificate
Register in which, subject to such reasonable regulations as it may prescribe,
the Eligible Lender Trustee shall provide for the registration of the Excess
Distribution Certificate and of transfers and exchanges of the Excess
Distribution Certificate as herein provided. Chase Manhattan Bank USA, National
Association shall be the initial Excess Distribution Certificate Registrar.
Upon surrender for registration of transfer of the Excess Distribution
Certificate at the
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office or agency maintained pursuant to paragraph (f) below, the Eligible Lender
Trustee shall execute, authenticate and deliver (or shall cause JPMorgan Chase
Bank as its authenticating agent to authenticate and deliver), in the name of
the designated transferee, a new Excess Distribution Certificate dated the date
of authentication by the Eligible Lender Trustee or any authenticating agent. At
the option of the holder of the Excess Distribution Certificate, the Excess
Distribution Certificate may be exchanged for another Excess Distribution
Certificate upon surrender of the Excess Distribution Certificate to be
exchanged at the office or agency maintained pursuant to paragraph (f) below.
An Excess Distribution Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Eligible Lender Trustee and
the Excess Distribution Certificate Registrar duly executed by the holder
thereof or his attorney duly authorized in writing, with such signature
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company. An Excess Distribution Certificate surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Eligible Lender Trustee in accordance with its customary
practice.
No service charge shall be made for any registration of transfer or
exchange of the Excess Distribution Certificate, but the Eligible Lender Trustee
or the Excess Distribution Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of the Excess Distribution Certificate.
The preceding provisions of this Section notwithstanding, the Eligible
Lender Trustee shall not be required to make and the Excess Distribution
Certificate Registrar need not register transfers or exchanges of the Excess
Distribution Certificate for a period of 15 days preceding any Distribution Date
with respect to the Excess Distribution Certificate.
The Excess Distribution Certificate and any beneficial interest in the
Excess Distribution Certificate may not be acquired by (a) employee benefit
plans (as defined in section 3(3) of ERISA) that are subject to the provisions
of Title I of ERISA, (b) plans described in section 4975(e)(1) of the Code,
including individual retirement accounts described in Section 408(a) of the Code
or Xxxxx plans, or (c) Benefit Plans. By accepting and holding the Excess
Distribution Certificate or an interest therein, the holder thereof shall be
deemed to have represented and warranted that it is not a Benefit Plan, is not
purchasing the Excess Distribution Certificate on behalf of a Benefit Plan and
is not using assets of a Plan to purchase the Excess Distribution Certificate
and to have agreed that if the Excess Distribution Certificate is deemed to be a
plan asset, the holder thereof will promptly dispose of the Excess Distribution
Certificate.
(d) Mutilated, Destroyed, Lost or Stolen Excess Distribution
Certificate. If (1) the mutilated Excess Distribution Certificate shall be
surrendered to the Excess Distribution Certificate Registrar, or if the Excess
Distribution Certificate Registrar shall receive evidence to its satisfaction of
the destruction, loss or theft of the Excess Distribution Certificate, and (2)
there shall be delivered to the Excess Distribution Certificate Registrar and
the Eligible Lender Trustee
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such security or indemnity as may be required by them to save each of them and
the Trust harmless, then in the absence of notice that such Excess Distribution
Certificate shall have been acquired by a bona fide purchaser, the Eligible
Lender Trustee on behalf of the Trust shall execute and the Eligible Lender
Trustee shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Excess Distribution Certificate, a new
Excess Distribution Certificate of like tenor. In connection with the issuance
of any new Excess Distribution Certificate under this Section, the Eligible
Lender Trustee and the Excess Distribution Certificate Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any duplicate Excess Distribution
Certificate issued pursuant to this paragraph shall constitute conclusive
evidence of ownership in the Trust, as if originally issued, whether or not the
lost, stolen or destroyed Excess Distribution Certificate shall be found at any
time.
(e) Persons Deemed Owners. Prior to due presentation of the Excess
Distribution Certificate for registration of transfer, the Eligible Lender
Trustee and the Excess Distribution Certificate Registrar and any agent of
either of them may treat the Person in whose name the Excess Distribution
Certificate shall be registered in the Excess Distribution Certificate Register
as the owner of such Excess Distribution Certificate for the purpose of
receiving distributions thereon and for all other purposes whatsoever, and
neither the Eligible Lender Trustee, the Excess Distribution Certificate
Registrar nor any agent thereof shall be bound by any notice to the contrary.
(f) Maintenance of Office or Agency. The Eligible Lender Trustee shall
maintain in the Borough of Manhattan, The City of New York, an office or offices
or agency or agencies where the Excess Distribution Certificate may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Eligible Lender Trustee in respect of the Excess
Distribution Certificate may be served.
(g) Appointment of Excess Distribution Certificate Paying Agent. The
Excess Distribution Certificate Paying Agent shall make distributions to the
holder of the Excess Distribution Certificate from the amounts received from the
Indenture Trustee pursuant to Sections 2.8.1C.1F(ii) and 2.8.2B.2 of the
Administration Agreement and shall report the amounts of such distributions to
the Eligible Lender Trustee. Any Excess Distribution Certificate Paying Agent
shall have the revocable power to receive such funds from the Indenture Trustee
for the purpose of making the distributions referred to above. The Eligible
Lender Trustee may revoke such power and remove the Excess Distribution
Certificate Paying Agent if the Eligible Lender Trustee determines in its sole
discretion that the Excess Distribution Certificate Paying Agent shall have
failed to perform its obligations under this Agreement in any material respect.
The Excess Distribution Certificate Paying Agent shall initially be the Eligible
Lender Trustee, and any co-paying agent chosen by the Eligible Lender Trustee
and consented to by the Administrator (which consent shall not be unreasonably
withheld). The co-paying agent shall initially be the Indenture Trustee. The
Eligible Lender Trustee shall be permitted to resign as Excess Distribution
Certificate Paying Agent upon 30 days' written notice to the Eligible Lender
Trustee. In the event that the Eligible Lender Trustee shall no longer be the
Excess Distribution Certificate Paying Agent, the Eligible Lender Trustee shall
appoint a successor to act
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as Excess Distribution Certificate Paying Agent (which shall be a bank or trust
company). The Eligible Lender Trustee shall cause such successor Excess
Distribution Certificate Paying Agent or any additional Excess Distribution
Certificate Paying Agent appointed by the Eligible Lender Trustee to execute and
deliver to the Eligible Lender Trustee an instrument in which such successor
Excess Distribution Certificate Paying Agent or additional Excess Distribution
Certificate Paying Agent shall agree with the Eligible Lender Trustee that as
Excess Distribution Certificate Paying Agent, such successor Excess Distribution
Certificate Paying Agent or additional Excess Distribution Certificate Paying
Agent will hold all sums, if any, held by it for payment to the holder of the
Excess Distribution Certificate in trust for the benefit of such holder until
such sums shall be paid to such holder. The Excess Distribution Certificate
Paying Agent shall return all unclaimed funds to the Eligible Lender Trustee and
upon removal of an Excess Distribution Certificate Paying Agent such Excess
Distribution Certificate Paying Agent shall also return all funds in its
possession to the Eligible Lender Trustee. The provisions of Sections 7.1, 7.3,
7.4, 7.5 and 8.1 shall apply to the Eligible Lender Trustee also in its role as
Excess Distribution Certificate Paying Agent, for so long as the Eligible Lender
Trustee shall act as Certificate Paying Agent and, to the extent applicable, to
any other paying agent appointed hereunder. Any reference in this Agreement to
the Excess Distribution Certificate Paying Agent shall include any co-paying
agent unless the context requires otherwise.
ARTICLE IV
Actions by Eligible Lender Trustee
SECTION 4.1 Prior Notice to the Holder of the Excess Distribution
Certificate With Respect to Certain Matters. With respect to the following
matters, the Eligible Lender Trustee shall not take action unless at least 30
days before the taking of such action, the Eligible Lender Trustee shall have
notified the holder of the Excess Distribution Certificate and each of the
Rating Agencies in writing of the proposed action and the holder shall not have
notified the Eligible Lender Trustee in writing prior to the 30th day after such
notice is given that it has withheld consent or provided alternative direction:
(a) the initiation of any material claim or lawsuit by the Trust
(except claims or lawsuits brought in connection with the
collection of the Trust Student Loans) and the compromise of any
material action, claim or lawsuit brought by or against the Trust
(except with respect to the aforementioned claims or lawsuits for
collection of Trust Student Loans);
(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any class of Noteholders is
required; or
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any class of Noteholder is not
required and such amendment materially adversely affects the
interest of the holder of the Excess Distribution Certificate.
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SECTION 4.2 Action with Respect to Sale of the Trust Student Loans. The
Eligible Lender Trustee shall not have the power, except upon the written
direction of the Depositor and except as expressly provided in the Basic
Documents, to sell the Trust Student Loans after the payment in full of the
Notes.
SECTION 4.3 Action with Respect to Bankruptcy . The Eligible Lender
Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the prior approval of the Depositor and
the delivery to the Eligible Lender Trustee by the Depositor of a certificate
certifying that the Depositor reasonably believes that the Trust is insolvent.
SECTION 4.4 Restrictions. Neither the Depositor nor the holder of the
Excess Distribution Certificate shall direct the Eligible Lender Trustee to take
or refrain from taking any action if such action or inaction would be contrary
to any obligation of the Trust or the Eligible Lender Trustee under this
Agreement or any of the other Basic Documents or would be contrary to Section
2.3 nor shall the Eligible Lender Trustee be permitted to follow any such
direction, if given.
SECTION 4.5 Intentionally Omitted.
ARTICLE V
Application of Trust Funds; Certain Duties
SECTION 5.1 Application of Trust Funds.
(a ) On each Distribution Date, the Eligible Lender Trustee shall
distribute to the holder of the Excess Distribution Certificate
any amounts payable in respect of the Excess Distribution
Certificate in accordance with the Administrative Agreement.
(b) In the event that any withholding tax is imposed on the Trust's
payment to the holder of the Excess Distribution Certificate,
such tax shall reduce the amount otherwise distributable on the
Excess Distribution Certificate.
SECTION 5.2 Method of Payment. Subject to Section 9.1(c), distributions
required to be made to the holder of the Excess Distribution Certificate on any
Distribution Date shall be made to the holder of record on the preceding Record
Date either by wire transfer, in immediately available funds, to the account of
such holder at a bank or other entity having appropriate facilities therefor, if
such holder shall have provided to the Excess Distribution Certificate Registrar
appropriate written instructions signed by two authorized officers, if any, at
least five Business Days prior to such Distribution Date, or, if not, by check
mailed to such holder at the
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address of such holder appearing in the Excess Distribution Certificate
Register.
SECTION 5.3 No Segregation of Moneys; No Interest. Subject to Section
5.1, moneys received by the Eligible Lender Trustee hereunder need not be
segregated in any manner except to the extent required by law or the
Administration Agreement and may be deposited under such general conditions as
may be prescribed by law, and the Eligible Lender Trustee shall not be liable
for any interest thereon.
SECTION 5.4 Reports to the Holder of the Excess Distribution
Certificate, the Internal Revenue Service and Others. The Eligible Lender
Trustee shall provide (or cause to be provided) any reports or other information
required to be provided to the holder of the Excess Distribution Certificate
pursuant to the Code, the regulations promulgated thereunder or other applicable
law. In addition, the Eligible Lender Trustee shall provide (or cause to be
provided) any information concerning the Excess Distribution Certificate to the
Internal Revenue Service or other taxing authority as required under the Code,
the regulations promulgated thereunder or other applicable law. The Eligible
Lender Trustee shall be entitled to hire an independent accounting firm to
perform the functions described in this Section 5.4, the reasonable fees and
expenses of which shall be paid by the Depositor.
SECTION 5.5 Intentionally Omitted.
SECTION 5.6 Intentionally Omitted.
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ARTICLE VI
Authority and Duties of Eligible Lender Trustee
SECTION 6.1 General Authority. The Eligible Lender Trustee is
authorized and directed to execute and deliver the Basic Documents to which the
Trust is to be a party and each certificate or other document attached as an
exhibit to or contemplated by the Basic Documents to which the Trust is to be a
party, in each case, in such form as the Depositor shall approve as evidenced
conclusively by the Eligible Lender Trustee's execution thereof, and, on behalf
of the Trust, to direct the Indenture Trustee to authenticate and deliver Notes
in the aggregate principal amount of $1,339,000,000. The Eligible Lender Trustee
is also authorized and directed on behalf of the Trust (i) to acquire and hold
legal title to the Trust Student Loans from the Depositor and (ii) to take all
actions required pursuant to Section 3.2C of the Administration Agreement and
otherwise follow the direction of and cooperate with the Servicer in submitting,
pursuing and collecting any claims to and with the Department with respect to
any Interest Subsidy Payments and Special Allowance Payments relating to the
Trust Student Loans.
In addition to the foregoing, the Eligible Lender Trustee is authorized
to take all actions required of the Trust pursuant to the Basic Documents. The
Eligible Lender Trustee is further authorized from time to time to take such
action as the Administrator directs or instructs with respect to the Basic
Documents and is directed to take such action to the extent that the
Administrator is expressly required pursuant to the Basic Documents to cause the
Eligible Lender Trustee to act.
SECTION 6.2 General Duties. It shall be the duty of the Eligible Lender
Trustee to discharge (or cause to be discharged) all its responsibilities
pursuant to the terms of this Agreement, the other Basic Documents to which the
Trust is a party and to administer the Trust in the interest of the Noteholders
and the holder of the Excess Distribution Certificate subject to and in
accordance with the provisions of this Agreement and the other Basic Documents.
Without limiting the foregoing, the Eligible Lender Trustee shall on behalf of
the Trust file and prove any claim or claims that may exist on behalf of the
Trust against the Depositor in connection with any claims paying procedure as
part of an insolvency or a receivership proceeding involving the Depositor.
Notwithstanding the foregoing, the Eligible Lender Trustee shall be deemed to
have discharged its duties and responsibilities hereunder and under the other
Basic Documents to the extent the Administrator has agreed in the Administration
Agreement to perform and act or to discharge any duty of the Eligible Lender
Trustee hereunder or under any other Basic Document, and the Eligible Lender
Trustee shall not be held liable for the default or failure of the Administrator
to carry out its obligations under the Administration Agreement. Except as
expressly provided in the Basic Documents, the Eligible Lender Trustee shall
have no obligation to administer, service or collect the Trust Student Loans or
to maintain, monitor or otherwise supervise the administration, servicing or
collection of the Trust Student Loans.
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SECTION 6.3 Action upon Instruction.
(a) [Reserved]
(b) The Eligible Lender Trustee shall not be required to take any
action hereunder or under any other Basic Document if the
Eligible Lender Trustee shall have reasonably determined, or
shall have been advised by counsel, that such action is likely to
result in liability on the part of the Eligible Lender Trustee or
is contrary to the terms hereof, any other Basic Document or is
otherwise contrary to law.
(c) Whenever the Eligible Lender Trustee is unable to determine the
appropriate course of action between alternative courses and
actions permitted or required by the terms of this Agreement or
under any other Basic Document, the Eligible Lender Trustee shall
promptly give notice (in such form as shall be appropriate under
the circumstances) to the Depositor requiring instruction as to
the course of action to be adopted, and to the extent the
Eligible Lender Trustee acts in good faith in accordance with any
written instruction of the Depositor received, the Eligible
Lender Trustee shall not be liable on account of such action to
any Person. If the Eligible Lender Trustee shall not have
received appropriate instruction within 10 days of such notice
(or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or
refrain from taking such action, not inconsistent with this
Agreement, the other Basic Documents, as it shall deem to be in
the best interests of the Depositor, and shall have no liability
to any Person for such action or inaction.
(d) In the event that the Eligible Lender Trustee is unsure as to the
application of any provision of this Agreement, any other Basic
Document or any such provision is ambiguous as to its
application, or is, or appears to be, in conflict with any other
applicable provision, or in the event that this Agreement permits
any determination by the Eligible Lender Trustee or is silent or
is incomplete as to the course of action that the Eligible Lender
Trustee is required to take with respect to a particular set of
facts, the Eligible Lender Trustee may give notice (in such form
as shall be appropriate under the circumstances) to the Depositor
requesting instruction and, to the extent that the Eligible
Lender Trustee acts or refrains from acting in good faith in
accordance with any such instruction received, the Eligible
Lender Trustee shall not be liable, on account of such action or
inaction, to any Person. If the Eligible Lender Trustee shall not
have received appropriate instruction within 10 days of such
notice (or within such shorter period of time as reasonably may
be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or
refrain from taking such action, not inconsistent with this
Agreement or the other Basic Documents, as it shall deem to be in
the best interest of the holder of the Excess Distribution
Certificate, and shall have no liability to any Person for such
action or inaction.
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SECTION 6.4 No Duties Except as Specified in this Agreement or in
Instructions. The Eligible Lender Trustee shall not have any duty or obligation
to manage, make any payment with respect to, register, record, sell, service,
dispose of or otherwise deal with the Trust Estate, or to otherwise take or
refrain from taking any action under, or in connection with, any document
contemplated hereby to which the Eligible Lender Trustee is a party, except as
expressly provided by the terms of this Agreement or in any document or written
instruction received by the Eligible Lender Trustee pursuant to Section 6.3; and
no implied duties or obligations shall be read into this Agreement or any other
Basic Document against the Eligible Lender Trustee. The Eligible Lender Trustee
shall have no responsibility for filing any financing or continuation statement
in any public office at any time or to otherwise perfect or maintain the
perfection of any security interest or lien granted to it hereunder or to
prepare or file any Commission filing for the Trust or to record this Agreement
or any other Basic Document. The Eligible Lender Trustee nevertheless agrees
that it will, at its own cost and expense, promptly take all action as may be
necessary to discharge any Liens on any part of the Trust Estate that result
from actions by, or claims against, Chase Manhattan Bank USA, National
Association in its individual capacity or as the Eligible Lender Trustee that
are not related to the ownership or the administration of the Trust Estate.
SECTION 6.5 No Action Except Under Specified Documents or Instructions.
The Eligible Lender Trustee shall not otherwise deal with any part of the Trust
Estate except (i) in accordance with the powers granted to and the authority
conferred upon the Eligible Lender Trustee pursuant to this Agreement, (ii) in
accordance with the other Basic Documents to which it is a party and (iii) in
accordance with any document or instruction delivered to the Eligible Lender
Trustee pursuant to Section 6.3.
SECTION 6.6 Restrictions. The Eligible Lender Trustee shall not take
any action (a) that is inconsistent with the purposes of the Trust set forth in
Section 2.3 or (b) that, to the actual knowledge of the Eligible Lender Trustee,
would result in the Trust's becoming taxable as a corporation for Federal income
tax purposes. Neither the Depositor nor the holder of the Excess Distribution
Certificate shall direct the Eligible Lender Trustee to take action that would
violate the provisions of this Section.
ARTICLE VII
Concerning the Eligible Lender Trustee
SECTION 7.1 Acceptance of Trusts and Duties. The Eligible Lender
Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this Agreement.
The Eligible Lender Trustee also agrees to disburse all moneys actually received
by it constituting part of the Trust Estate upon the terms of this Agreement and
the other Basic Documents. The Eligible Lender Trustee shall not be answerable
or accountable hereunder or under any other Basic Document under any
circumstances, except (i)
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for its own willful misconduct or negligence or (ii) in the case of the
inaccuracy of any represent tion or warranty contained in Section 7.3 expressly
made by the Eligible Lender Trustee. In particular, but not by way of limitation
(and subject to the exceptions set forth in the preceding sentence):
(a) the Eligible Lender Trustee shall not be liable for any error of
judgment made by a responsible officer of the Eligible Lender
Trustee;
(b) the Eligible Lender Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in accordance with
the direction or instructions of the Administrator, the Depositor
or the holder of the Excess Distribution Certificate;
(c) no provision of this Agreement or any other Basic Document shall
require the Eligible Lender Trustee to expend or risk funds or
otherwise incur any financial liability in the performance of any
of its rights or powers hereunder or under any other Basic
Document, if the Eligible Lender Trustee shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably
assured or provided to it;
(d) under no circumstances shall the Eligible Lender Trustee be
liable for indebtedness evidenced by or arising under any of the
Basic Documents, including the principal of and interest on the
Notes;
(e) the Eligible Lender Trustee shall not be responsible for or in
respect of the validity or sufficiency of this Agreement or for
the due execution hereof by the Depositor or for the form,
character, genuineness, sufficiency, value or validity of any of
the Trust Estate or for or in respect of the validity or
sufficiency of the Basic Documents, other than the certificate of
authentication on the Excess Distribution Certificate, and the
Eligible Lender Trustee shall in no event assume or incur any
liability, duty, or obligation to any Noteholder or the holder of
the Excess Distribution Certificate, other than as expressly
provided for herein and in the other Basic Documents;
(f) the Eligible Lender Trustee shall not be liable for the action or
inaction, default or misconduct of the Administrator, the
Depositor, the Indenture Trustee or the Servicer under any of the
other Basic Documents or otherwise and the Eligible Lender
Trustee shall have no obligation or liability to perform the
obligations of the Trust under this Agreement or the other Basic
Documents that are required to be performed by the Administrator
under the Administration Agreement, the Indenture Trustee under
the Indenture, the Servicer under the Servicing Agreement; and
(g) the Eligible Lender Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
Agreement, or to institute, conduct or defend any litigation
under this Agreement or otherwise or in relation to this
Agreement,
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any other Basic Document, at the request, order or direction of
the Depositor or holder of the Excess Distribution Certificate,
unless the Depositor or such holder has offered to the Eligible
Lender Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities that may be incurred by the
Eligible Lender Trustee therein or thereby. The right of the
Eligible Lender Trustee to perform any discretionary act
enumerated in this Agreement or in any other Basic Document shall
not be construed as a duty, and the Eligible Lender Trustee shall
not be answerable for other than its negligence or willful
misconduct in the performance of any such act.
SECTION 7.2 Intentionally Omitted.
SECTION 7.3 Representations and Warranties. The Eligible Lender Trustee
hereby represents and warrants to the Depositor, for the benefit of the
Noteholders and the holder of the Excess Distribution Certificate, that:
(a) It is duly organized and validly existing in good standing under
the laws of its governing jurisdiction and has an office located
within the State of Delaware. It has all requisite corporate
power and authority to execute, deliver and perform its
obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this
Agreement will be executed and delivered by one of its officers
who is duly authorized to execute and deliver this Agreement on
its behalf.
(c) Neither the execution nor the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions
hereof will contravene any Federal or Delaware state law,
governmental rule or regulation governing the banking or trust
powers of the Eligible Lender Trustee or any judgment or order
binding on it, or constitute any default under its charter
documents or by-laws or any indenture, mortgage, contract,
agreement or instrument to which it is a party or by which any of
its properties may be bound.
(d) It is and will maintain its status as an "eligible lender" (as
such term is defined in Section 435(d) of the Higher Education
Act) for purposes of holding legal title to the Trust Student
Loans as contemplated by this Agreement and the other Basic
Documents, it has a lender identification number with respect to
the Trust Student Loans from the Department and has and will
maintain in effect a Guarantee Agreement with each of the
Guarantors with respect to the Trust Student Loans.
SECTION 7.4 Reliance; Advice of Counsel.
(a) The Eligible Lender Trustee shall incur no liability to anyone in
acting upon any
15
signature, instrument, direction, notice, resolution, request,
consent, order, cer tificate, report, opinion, bond or other
document or paper believed by it to be genuine and believed by it
to be signed by the proper party or parties. The Eligible Lender
Trustee may accept a certified copy of a resolution of the board
of directors or other governing body of any corporate party as
conclusive evidence that such resolution has been duly adopted by
such body and that the same is in full force and effect. As to
any fact or matter the method of the determination of which is
not specifically prescribed herein, the Eligible Lender Trustee
may for all purposes hereof rely on a certificate, signed by the
president or any vice president or by the treasurer or other
authorized officers of the relevant party, as to such fact or
matter and such certificate shall constitute full protection to
the Eligible Lender Trustee for any action taken or omitted to be
taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this
Agreement or the other Basic Documents, the Eligible Lender
Trustee (i) may act directly or through its agents or attorneys
pursuant to agreements entered into with any of them and the
Eligible Lender Trustee shall not be liable for the conduct or
misconduct of such agents or attorneys if such agents or
attorneys shall have been selected by the Eligible Lender Trustee
with reasonable care, and (ii) may consult with counsel and
accountants to be selected with reasonable care and employed by
it. The Eligible Lender Trustee shall not be liable for anything
done, suffered or omitted in good faith by it in accordance with
the written opinion or advice of any such counsel or accountants
and not contrary to this Agreement or any other Basic Document.
SECTION 7.5 Not Acting in Individual Capacity. Except as provided in
this Article VII, in accepting the trusts hereby created Chase Manhattan Bank
USA, National Association acts solely as Eligible Lender Trustee hereunder and
not in its individual capacity and all Persons having any claim against the
Eligible Lender Trustee by reason of the transactions contemplated by this
Agreement or any other Basic Document shall look only to the Trust Estate for
payment or satisfaction thereof.
SECTION 7.6 Eligible Lender Trustee Not Liable for Excess Distribution
Certificates or Trust Student Loans. The recitals contained herein and in the
Excess Distribution Certificate (other than the signature of and authentication
by the Eligible Lender Trustee on the Excess Distribution Certificate) shall be
taken as the statements of the Depositor and the Eligible Lender Trustee assumes
no responsibility for the correctness thereof. The Eligible Lender Trustee makes
no representations as to the validity or sufficiency of this Agreement, the
Excess Distribution Certificate, or any other Basic Document (other than the
signature of and authentication by the Eligible Lender Trustee on the Excess
Distribution Certificate), or the Notes, or of any Trust Student Loan or related
documents. The Eligible Lender Trustee shall at no time have any responsibility
(or liability except for willfully or negligently terminating or allowing to be
terminated any of the Guarantee Agreements, in a case where the Eligible Lender
Trustee knows of any facts or circumstances which will or could reasonably be
expected to result in any such
16
termination) for or with respect to the legality, validity, enforceability and
eligibility for Guarantee Payments, federal reinsurance, Interest Subsidy
Payments or Special Allowance Payments, as applicable, in respect of any Trust
Student Loan, or for or with respect to the sufficiency of the Trust Estate or
its ability to generate the payments to be distributed to the holder of the
Excess Distribution Certificate under this Agreement or the Noteholders under
the Indenture, including the existence and contents of any computer or other
record of any Trust Student Loan; the validity of the assignment of any Trust
Student Loan to the Eligible Lender Trustee on behalf of the Trust; the
completeness of any Trust Student Loan; the performance or enforcement (except
as expressly set forth in any Basic Document) of any Trust Student Loan; the
compliance by the Depositor or the Servicer with any warranty or representation
made under any Basic Document or in any related document or the accuracy of any
such warranty or representation or any action or inaction of the Administrator,
the Indenture Trustee or the Servicer or any subservicer taken in the name of
the Eligible Lender Trustee.
SECTION 7.7 Eligible Lender Trustee May Own Notes. The Eligible Lender
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may deal with the Depositor, the Administrator, the Indenture
Trustee or the Servicer in banking transactions with the same rights as it would
have if it were not Eligible Lender Trustee.
ARTICLE VIII
Compensation and Indemnity of Eligible Lender Trustee
SECTION 8.1 Eligible Lender Trustee's Fees and Expenses. The Eligible
Lender Trustee shall receive as compensation for its services hereunder such
fees as have been separately agreed upon before the date hereof between the
Depositor and the Eligible Lender Trustee, and the Eligible Lender Trustee shall
be entitled to be reimbursed by the Depositor, to the extent provided in such
separate agreement, for its other reasonable expenses (including the reasonable
fees and expenses of counsel and independent accountants) hereunder.
SECTION 8.2 Payments to the Eligible Lender Trustee. Any amounts paid
to the Eligible Lender Trustee pursuant to Section 8.1 hereof or pursuant to
Section 9 of the Sale Agreement, Section 4.2 of the Administration Agreement or
Section 4.2 of the Servicing Agreement shall be deemed not to be a part of the
Trust Estate immediately after such payment.
SECTION 8.3 Indemnity. The Depositor shall cause the Administrator to
indemnify the Eligible Lender Trustee in its individual capacity and any of its
officer, directors, employees and agents as and to the extent provided for in
Section 4.2 of the Administration Agreement.
17
ARTICLE IX
Termination of Trust Agreement
SECTION 9.1 Termination of Trust Agreement.
(a) This Agreement (other than Article VIII) and the Trust shall
terminate and be of no further force or effect upon the earlier
of (i) the final distribution by the Eligible Lender Trustee of
all moneys or other property or proceeds of the Trust Estate in
accordance with the terms of the Indenture, the Administration
Agreement and Article V, and (ii) the time provided in Section
9.2. The bankruptcy, liquidation, dissolution, death or
incapacity of the holder of the Excess Distribution Certificate,
other than the Depositor as described in Section 9.2, shall not
(x) operate to terminate this Agreement or the Trust, nor (y)
entitle such holder's legal representatives or heirs to claim an
accounting or to take any action or proceeding in any court for a
partition or winding up of all or any part of the Trust or Trust
Estate nor (z) otherwise affect the rights, obligations and
liabilities of the parties hereto.
(b) Except as provided in Section 9.1(a), none of the Depositor, any
Noteholder or the holder of the Excess Distribution Certificate
shall be entitled to revoke or terminate the Trust.
Upon final distribution of any funds remaining in the Trust, the
Eligible Lender Trustee shall file a certificate of cancellation of the Trust's
certificate of trust pursuant to Section 3810(c) of the Delaware Business Trust
Act.
SECTION 9.2 Dissolution upon Insolvency of the Depositor.
Notwithstanding the provisions of Section 3808 of the Delaware Business Trust
Act, in the event that an Insolvency Event shall occur with respect to the
Depositor, (x) the Trust created hereunder shall dissolve and (y) this Agreement
shall be terminated in accordance with Section 9.1 90 days after the date of
such Insolvency Event. Promptly after the occurrence of any Insolvency Event
with respect to the Depositor, (i) the Depositor shall give the Indenture
Trustee, the Eligible Lender Trustee, , and each Rating Agency written notice of
such Insolvency Event, and (ii) the Eligible Lender Trustee shall, upon the
receipt of such written notice from the Depositor, give prompt written notice to
the holder of the Excess Distribution Certificate and the Indenture Trustee, of
the occurrence of such event and of the effect of such event under this Section
9.2; provided, however, that any failure to give a notice required by this
sentence shall not prevent or delay, in any manner, a termination of the Trust
pursuant to the first sentence of this Section 9.2. Upon a termination of the
Trust pursuant to this Section, the Eligible Lender Trustee shall direct the
Indenture Trustee promptly to sell the assets of the Trust (other than the Trust
Accounts) in a commercially reasonable manner and on commercially reasonable
terms. The proceeds of such a sale of the assets of the Trust shall be treated
as collections under the Administration Agreement.
18
ARTICLE X
Successor Eligible Lender Trustees and
Additional Eligible Lender Trustees
SECTION 10.1 Eligibility Requirements for Eligible Lender Trustee. The
Eligible Lender Trustee shall at all times be a corporation or association (i)
qualifying as an "eligible lender" as such term is defined in Section 435(d) of
the Higher Education Act for purposes of holding legal title to the Trust
Student Loans on behalf of the Trust, with a valid lender identification number
with respect to the Trust Student Loans from the Department; (ii) being
authorized to exercise corporate trust powers and hold legal title to the Trust
Student Loans; (iii) having in effect Guarantee Agreements with each of the
Guarantors; (iv) having a combined capital and surplus of at least $50,000,000
and being subject to supervision or examination by Federal or state authorities;
(v) having its principal place of business in the State of Delaware and
otherwise complying with Section 3807 of the Delaware Business Trust Act; and
(vi) having (or having a parent which has) a rating in respect of its long-term
senior unsecured debt of at least BBB- (or the equivalent) by each of the Rating
Agencies (or which, if the long-term senior unsecured debt of such corporation
or association is not rated by any Rating Agency, shall have provided to the
Indenture Trustee written confirmation from such Rating Agency that the
appointment of such corporation or association to serve as Eligible Lender
Trustee will not result in and of itself in a reduction or withdrawal of the
then current rating of any of the Notes). If the Eligible Lender Trustee shall
publish reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purpose of this Section, the combined capital and surplus of the Eligible Lender
Trustee shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. In case at any time the
Eligible Lender Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Eligible Lender Trustee shall resign immediately
in the manner and with the effect specified in Section 10.2.
SECTION 10.2 Resignation or Removal of Eligible Lender Trustee. The
Eligible Lender Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Administrator. Upon
receiving such notice of resignation, the Administrator shall promptly appoint a
successor Eligible Lender Trustee meeting the eligibility requirements of
Section 10.1 by written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning Eligible Lender Trustee and one copy to the
successor Eligible Lender Trustee. If no successor Eligible Lender Trustee shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Eligible Lender Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Eligible Lender Trustee; provided, however, that such right to appoint or to
petition for the appointment of any such successor shall in no event relieve the
resigning Eligible Lender Trustee from any obligations otherwise imposed on it
under the Basic Documents until such successor has in fact assumed such
appointment.
If at any time the Eligible Lender Trustee shall cease to be or shall
be likely to cease to be eligible in accordance with the provisions of Section
10.1 and shall fail to resign after written
19
request therefor by the Administrator, or if at any time an Insolvency Event
with respect to the Eligible Lender Trustee shall have occurred and be
continuing, then the Administrator may remove the Eligible Lender Trustee. If
the Administrator shall remove the Eligible Lender Trustee under the authority
of the immediately preceding sentence, the Administrator shall promptly appoint
a successor Eligible Lender Trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the outgoing Eligible Lender
Trustee so removed and one copy to the successor Eligible Lender Trustee and
payment of all fees owed to the outgoing Eligible Lender Trustee.
Any resignation or removal of the Eligible Lender Trustee and
appointment of a successor Eligible Lender Trustee pursuant to any of the
provisions of this Section shall not become effective until acceptance of
appointment by the successor Eligible Lender Trustee pursuant to Section 10.3,
payment of all fees and expenses owed to the outgoing Eligible Lender Trustee
and the filing of a certificate of amendment to the Trust's certificate of trust
pursuant to Section 3810(b) of the Delaware Business Trust Act. The
Administrator shall provide notice of such resignation or removal of the
Eligible Lender Trustee and to each of the Rating Agencies.
SECTION 10.3 Successor Eligible Lender Trustee. Any successor Eligible
Lender Trustee appointed pursuant to Section 10.2 shall execute, acknowledge and
deliver to the Administrator and to its predecessor Eligible Lender Trustee an
instrument accepting such appointment under this Agreement, and thereupon the
resignation or removal of the predecessor Eligible Lender Trustee shall become
effective and such successor Eligible Lender Trustee, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor under this Agreement, with like effect
as if originally named as Eligible Lender Trustee. The predecessor Eligible
Lender Trustee shall upon payment of its fees and expenses deliver to the
successor Eligible Lender Trustee all documents, statements, moneys and
properties held by it under this Agreement and shall assign, if permissible, to
the successor Eligible Lender Trustee the lender identification number obtained
from the Department on behalf of the Trust; and the Administrator and the
predecessor Eligible Lender Trustee shall execute and deliver such instruments
and do such other things as may reasonably be required for fully and certainly
vesting and confirming in the successor Eligible Lender Trustee all such rights,
powers, duties and obligations.
No successor Eligible Lender Trustee shall accept such appointment as
provided in this Section unless at the time of such acceptance such successor
Eligible Lender Trustee shall be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Eligible Lender Trustee
pursuant to this Section, the Administrator shall mail notice of the successor
of such Eligible Lender Trustee to the holder of the Excess Distribution
Certificate, the Indenture Trustee, the Noteholders and the Rating Agencies. If
the Administrator shall fail to mail such notice within 10 days after acceptance
of appointment by the successor Eligible Lender Trustee, the successor Eligible
Lender Trustee shall cause such notice to be mailed at the expense of the
Administrator.
SECTION 10.4 Merger or Consolidation of Eligible Lender Trustee. Any
corporation
20
into which the Eligible Lender Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Eligible Lender Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Eligible Lender Trustee, shall, without the execution or filing of any
instrument or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding, be the successor of the Eligible Lender
Trustee hereunder; provided that such corporation shall be eligible pursuant to
Section 10.1; and provided further that the Eligible Lender Trustee shall mail
notice of such merger or consolidation to the Rating Agencies not less than 15
days prior to the effective date thereof.
SECTION 10.5 Appointment of Co-Eligible Lender Trustee or Separate
Eligible Lender Trustee. Notwithstanding any other provisions of this Agreement,
at any time, for the purpose of meeting any legal requirements of any
jurisdiction in which any part of the Trust may at the time be located, the
Administrator and the Eligible Lender Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Eligible Lender Trustee, meeting the eligibility
requirements of clauses (i) through (iii) of Section 10.1, to act as co-trustee,
jointly with the Eligible Lender Trustee, or separate trustee or separate
trustees, of all or any part of the Trust Estate, and to vest in such Person, in
such capacity, such title to the Trust Estate, or any part thereof, and, subject
to the other provisions of this Section, such powers, duties, obligations,
rights and trusts as the Administrator and the Eligible Lender Trustee may
consider necessary or desirable. If the Administrator shall not have joined in
such appointment within 15 days after the receipt by it of a request so to do,
the Eligible Lender Trustee alone shall have the power to make such appointment.
No co-trustee or separate trustee under this Agreement shall be required to meet
the terms of eligibility as a successor trustee pursuant to clauses (iv), (v)
and (vi) of Section 10.1 and no notice of the appointment of any co-trustee or
separate trustee shall be required pursuant to Section 10.3.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties, and obligations conferred or
imposed upon the Eligible Lender Trustee shall be conferred upon and
exercised or performed by the Eligible Lender Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the
Eligible Lender Trustee joining in such act), except to the extent that
under any law of any jurisdiction in which any particular act or acts
are to be performed, the Eligible Lender Trustee shall be incompetent
or unqualified to perform such act or acts, in which event such rights,
powers, duties, and obligations (including the holding of title to the
Trust or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee,
solely at the direction of the Eligible Lender Trustee;
(ii) no trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under this
Agreement; and
21
(iii) the Administrator and the Eligible Lender Trustee acting
jointly may at any time accept the resignation of or remove any
separate trustee or co-trustee.
Any notice, request or other writing given to the Eligible Lender
Trustee shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Eligible
Lender Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Eligible Lender Trustee. Each such instrument shall be filed
with the Eligible Lender Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Eligible
Lender Trustee as its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all its
estates, properties, rights, remedies and trusts shall vest in and be exercised
by the Eligible Lender Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
ARTICLE XI
Miscellaneous
SECTION 11.1 Supplements and Amendments. This Agreement may be amended
by the Depositor and the Eligible Lender Trustee, with prior written notice to
the Rating Agencies, without the consent of any of the Noteholders, to cure any
ambiguity, to correct or supplement any provisions in this Agreement or for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions in this Agreement or modifying in any manner the rights of the
Noteholders; provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, adversely affect in any material respect the interests of
any Noteholder.
This Agreement may also be amended from time to time by the Depositor and the
Eligible Lender Trustee, with prior written notice to the Rating Agencies, with
the consent of (i) the Class A Noteholders evidencing not less than a majority
of the Outstanding Amount of the Class A Notes and (ii) the Class B Noteholders
evidencing not less than a majority of the Class B Notes, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or modifying in any manner the rights of the Class
A Noteholders or Class B Noteholders, as the case may be; provided, however,
that no such amendment shall (a) increase or reduce in any manner the amount of,
or accelerate or delay the timing of, collections of payments on Trust Student
Loans or distributions that shall be required to be made for the benefit of the
Noteholders or (b) reduce the aforesaid percentage of the Outstanding Amount of
22
any class of Notes required to consent to any such amendment, without the
consent of all the outstanding Noteholders of such class.
Promptly after the execution of any such amendment or consent, the
Eligible Lender Trustee shall furnish written notification of the substance of
such amendment or consent to the holder of the Excess Distribution Certificate,
the Indenture Trustee and each of the Rating Agencies.
It shall not be necessary for the consent of the Noteholders or the
Indenture Trustee pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and any
other consents of provided for in this Agreement or in any other Basic Document)
and of evidencing the authorization of the execution thereof shall be subject to
such reasonable requirements as the Eligible Lender Trustee may prescribe.
Prior to the execution of any amendment to this Agreement, the Eligible
Lender Trustee shall be entitled to receive and rely upon an Opinion of Counsel
stating that the execution of such amendment is authorized or permitted by this
Agreement. The Eligible Lender Trustee may, but shall not be obligated to, enter
into any such amendment which affects the Eligible Lender Trustee's own rights,
duties or immunities under this Agreement or otherwise.
SECTION 11.2 No Legal Title to Trust Estate in Holder of the Excess
Distribution Certificate. The holder of the Excess Distribution Certificate
shall not have legal title to any part of the Trust Estate. The holder of the
Excess Distribution Certificate shall be entitled to receive distributions with
respect to its undivided beneficial ownership interest therein only in
accordance with Section 3.13 of this Agreement. No transfer, by operation of law
or otherwise, of any right, title, or interest of the holder of the Excess
Distribution Certificate to and in its beneficial ownership interest in the
Trust Estate shall operate to terminate this Agreement or the trusts hereunder
or entitle any transferee to an accounting or to the transfer to it of legal
title to any part of the Trust Estate.
SECTION 11.3 Limitations on Rights of Others. Except for Section 2.7,
the provisions of this Agreement are solely for the benefit of the Eligible
Lender Trustee, the Depositor, the holder of the Excess Distribution
Certificate, the Administrator and, to the extent expressly provided herein, the
Indenture Trustee and the Noteholders, and nothing in this Agreement (other than
Section 2.7), whether express or implied, shall be construed to give to any
other Person any legal or equitable right, remedy or claim in the Trust Estate
or under or in respect of this Agreement or any covenants, conditions or
provisions contained herein.
SECTION 11.4 Notices. Unless otherwise expressly specified or permitted
by the terms hereof, all notices shall be in writing and shall be deemed given
upon receipt by the intended recipient or three Business Days after mailing if
mailed by certified mail, postage prepaid (except that notice to the Eligible
Lender Trustee shall be deemed given only upon actual receipt by the Eligible
Lender Trustee), if to the Eligible Lender Trustee, addressed to its
23
Corporate Trust Office; if to the Depositor, addressed to SLM Funding
Corporation, 000 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxx X, Xxxxxx Xxxx, Xxxxxx 00000, or,
as to each party, at such other address as shall be designated by such party in
a written notice to each other party.
SECTION 11.5 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 11.6 Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.7 Successors and Assigns. All covenants and agreements
contained herein shall be binding upon to the benefit of, the Depositor and its
successors, the Eligible Lender Trustee and its successors, each holder of the
Excess Distribution Certificate and its successors and permitted assigns, all as
herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by a Noteholder or the holder of the Excess Distribution
Certificate shall bind the successors and assigns of such holder.
SECTION 11.8 No Petition.
(a) The Depositor will not at any time institute against the Trust
any bankruptcy proceedings under any United States Federal or
state bankruptcy or similar law in connection with any
obligations relating to the Excess Distribution Certificate, the
Notes, this Agreement or any of the other Basic Documents.
(b) The Eligible Lender Trustee (not in its individual capacity but
solely as Eligible Lender Trustee), by entering into this
Agreement, the holder of the Excess Distribution Certificate by
accepting the Excess Distribution Certificate, and the Indenture
Trustee and each Noteholder by accepting the benefits of this
Agreement, hereby covenant and agree that they will not at any
time institute against the Depositor or the Trust, or join in any
institution against the Depositor or the Trust of, any
bankruptcy, reorganization, arrangement, insolvency, receivership
or liquidation proceedings, or other proceedings under any United
States Federal or state bankruptcy or similar law in connection
with any obligations relating to the Notes, this Agreement or any
of the other Basic Documents.
SECTION 11.9 No Recourse. Each holder of the Excess Distribution
Certificate by accepting the Excess Distribution Certificate acknowledges that
such holder's certificate represents beneficial interests in the Trust only and
do not represent interests in or obligations of the Depositor, the Servicer, the
Administrator, the Eligible Lender Trustee, the Indenture Trustee or any
Affiliate thereof or any officer, director or employee of any thereof and no
recourse may be had against such parties or their assets, except as may be
expressly set forth or contemplated in
24
this Agreement, the Excess Distribution Certificate or the other Basic
Documents.
SECTION 11.10 Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 11.11 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without
reference to its conflict of law provisions, and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such
laws.
25
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION,
not in its individual capacity but solely as
Eligible Lender Trustee,
By /s/ XXXX X. XXXXXX
-------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
SLM FUNDING CORPORATION,
as the Depositor,
By /s/ XXXX X. XXXXXX
-------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
26
EXHIBIT A
TO THE TRUST AGREEMENT
RESERVED
1
EXHIBIT B
TO THE TRUST AGREEMENT
RESERVED
EXHIBIT C
TO THE TRUST AGREEMENT
[FORM OF EXCESS DISTRIBUTION CERTIFICATE]
[SEE REVERSE FOR CERTAIN DEFINITIONS]
THIS EXCESS DISTRIBUTION CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE
ACCOUNT OF A BENEFIT PLAN (AS DEFINED BELOW). THIS CERTIFICATE IS NOT GUARANTEED
OR INSURED BY ANY GOVERNMENTAL AGENCY.
SLM STUDENT LOAN TRUST 2002-5
EXCESS DISTRIBUTION CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined
below, the property of which includes a pool of student loans sold to
the Trust by SLM Funding Corporation.
(This Excess Distribution Certificate does not represent an interest in
or obligation of SLM Funding Corporation, the Servicer (as defined
below), the Eligible Lender Trustee (as defined below) or any of their
respective affiliates, except to the extent described below.)
i
THIS CERTIFIES THAT SLM Funding Corporation is the registered owner of
a 100% percentage interest in this Excess Distribution Certificate. The SLM
Student Loan Trust 2002-5(the "Trust") was formed under the laws of the State of
Delaware by SLM Funding Corporation, a Delaware corporation (the "Depositor").
The Trust was created pursuant to a Trust Agreement dated as of August 1, 2002
(the "Trust Agreement") between the Depositor and Chase Manhattan Bank USA,
National Association, a national banking association, not in its individual
capacity but solely as eligible lender trustee on behalf of the Trust (the
"Eligible Lender Trustee"), a summary of certain of the pertinent provisions of
which is set forth below. To the extent not otherwise defined herein, the
capitalized terms used herein have the meanings assigned to them in Appendix A
to the Trust Agreement.
Issued under the Indenture dated as of August 1, 2002, between the
Trust and The Bank of New York, as the Indenture Trustee, are Notes designated
as "Floating Rate Student Loan-Backed Notes" (the "Notes"). This Excess
Distribution Certificate is issued under and is subject to the terms, provisions
and conditions of the Trust Agreement, to which Trust Agreement the holder of
this Excess Distribution Certificate by virtue of the acceptance hereof assents
and by which such holder is bound. The property of the Trust includes a pool of
student loans (the "Trust Student Loans"), all moneys paid thereunder on or
after July 22, 2002, certain bank accounts and the proceeds thereof and certain
other rights under the Trust Agreement, the Sale Agreement, the Purchase
Agreement, the Administration Agreement and the Servicing Agreement and all
proceeds of the foregoing.
To the extent of funds available therefor, amounts owing hereon will be
distributed on the 15th day of each March, June, September and December (or, if
such 15th day is not a Business Day, the next succeeding Business Day) (each a
"Distribution Date"), commencing on December 16, 2002, to the person in whose
name this Excess Distribution Certificate is registered as of the close of
business on the day immediately preceding the Distribution Date (such day the
"Record Date"), in each case to the extent of such holder's fractional and
undivided interest in the amount to be distributed hereon on such Distribution
Date pursuant to Sections 2.8.1C.1(F)(ii) and 2.8.2B.2 of the Administration
Agreement.
The holder of this Excess Distribution Certificate acknowledges and
agrees that its rights to receive distributions in respect of this Excess
Distribution Certificate are subordinated to the rights of the Noteholders as
described in the Basic Documents.
ii
It is the intent of the Depositor, and the holder of this Excess
Distribution Certificate that, for purposes of Federal, state and local income
and franchise and any other income taxes, the Notes will be treated as
newly-issued debt of, and this Excess Distribution Certificate will be treated
as equity in, the Trust. The holder of this Excess Distribution Certificate
agrees to treat, and to take no action inconsistent with the treatment of, this
Excess Distribution Certificate for such tax purposes as equity in the Trust.
The holder of this Excess Distribution Certificate, by its acceptance
of this Excess Distribution Certificate, covenants and agrees that it will not
at any time institute against the Depositor or the Trust, or join in any
institution against the Depositor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency, receivership or liquidation
proceedings, or other proceedings under any United States Federal or state
bankruptcy or similar law in connection with any obligations relating to this
Excess Distribution Certificate, the Notes, the Trust Agreement or any of the
other Basic Documents.
Distributions on this Excess Distribution Certificate will be made as
provided in the Administration Agreement to the holder of record hereof without
the presentation or surrender of this Excess Distribution Certificate or the
making of any notation hereon. Except as otherwise provided in the Trust
Agreement and notwithstanding the above, the final distribution on this Excess
Distribution Certificate will be made after due notice by the Administrator of
the pendency of such distribution and only upon presentation and surrender of
this Excess Distribution Certificate at the office or agency maintained for the
purpose by the Eligible Lender Trustee in the Borough of Manhattan, The City of
New York.
Reference is hereby made to the further provisions of this Excess
Distribution Certificate set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set forth at this
place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Eligible Lender Trustee or its
authenticating agent, by manual signature, this Excess Distribution Certificate
shall not entitle the holder hereof to any benefit under the Trust Agreement or
the Administration Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Eligible Lender Trustee on behalf of
iii
the Trust and not in its individual capacity has caused this Excess Distribution
Certificate to be duly executed as of the date set forth below.
SLM STUDENT LOAN TRUST 2002-5
by CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, not in its individual
capacity but solely as Eligible Lender Trustee
By:______________________________
Authorized Signatory
Date: ______________ ___, 20___
iv
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Excess Distribution Certificate referred to in the within-mentioned
Trust Agreement.
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual capacity but
solely as Eligible Lender Trustee,
By:____________________________
Authorized Signatory
OR
JPMORGAN CHASE BANK, solely in its capacity as
Authenticating Agent for the Eligible Lender
Trustee,
By:__________________________
Authenticating Agent
Date: __________ ___,200__
v
[Reverse of Excess Distribution Certificate]
This Excess Distribution Certificate does not represent an obligation
of, or an interest in, the Depositor, Xxxxxx Xxx Servicing L.P., as servicer
(the "Servicer"), Student Loan Marketing Association, as administrator (the
"Administrator"), the Eligible Lender Trustee or any affiliates of any of them,
and no recourse may be had against such parties or their assets, except as may
be expressly set forth or contemplated herein, in the Trust Agreement or in the
other Basic Documents. In addition, this Excess Distribution Certificate is not
guaranteed by any governmental agency or instrumentality and is limited in right
of payment to certain collections with respect to the Trust Student Loans, all
as more specifically set forth in the Administration Agreement. A copy of each
of the Trust Agreement, the Sale Agreement, the Purchase Agreement, the
Administration Agreement, the Servicing Agreement and the Indenture may be
examined during normal business hours at the principal office of the
Administrator, and at such other places, if any, designated by the
Administrator, by the holder of this Excess Distribution Certificate upon
request.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the certification of the rights and obligations of the
Depositor and the rights of the holders of this Excess Distribution Certificate
under the Trust Agreement at any time by the Depositor and the Eligible Lender
Trustee with the consent of the holders of the Class A Notes and the Class B
Notes, each voting as a class evidencing not less than a majority of the
outstanding principal balance of each class of the Notes. The Trust Agreement
also permits the amendment thereof, in certain limited circumstances, without
the consent of the Noteholders.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Excess Distribution Certificate is
registerable in the Excess Distribution Certificate Register upon surrender of
this Excess Distribution Certificate for registration of transfer at the offices
or agencies maintained by Chase Manhattan Bank USA, National Association in its
capacity as Excess Distribution Certificate Registrar, or by any successor
Excess Distribution Certificate Registrar, in the Borough of Manhattan, The City
of New York, accompanied by a written instrument of transfer in form
satisfactory to the Eligible Lender Trustee and the Excess Distribution
Certificate Registrar duly executed by the holder hereof or such holder's
attorney duly authorized in writing, and thereupon a new Excess Distribution
Certificate will be issued to the designated transferee.
vi
As provided in the Trust Agreement and subject to certain limitations
therein set forth, this Excess Distribution Certificate is exchangeable for a
new Excess Distribution Certificate as requested by the holder surrendering the
same. No service charge will be made for any such registration of transfer or
exchange, but the Eligible Lender Trustee or the Excess Distribution Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge payable in connection therewith.
The Eligible Lender Trustee, the Certificate Registrar and any agent of
the Eligible Lender Trustee or the Excess Distribution Certificate Registrar may
treat the person in whose name this Excess Distribution Certificate is
registered as the owner hereof for all purposes, and none of the Eligible Lender
Trustee or the Excess Distribution Certificate Registrar or any such agent shall
be affected by any notice to the contrary.
This Excess Distribution Certificate (including any beneficial interest
herein) may not be acquired by or for the account of (i) an employee benefit
plan (as defined in Section 3(3) of ERISA) that is subject to the provisions of
Title I of ERISA, (ii) a plan described in section 4975(e)(1) of the Internal
Revenue Code of 1986, as amended (the "Code"), including an individual
retirement account described in Section 408(a) of the Code or a Xxxxx plan or
(iii) any entity whose underlying assets include plan assets by reason of a
plan's investment in the entity (each, a "Benefit Plan"). By accepting and
holding this Excess Distribution Certificate, the holder hereof shall be deemed
to have represented and warranted that it is not a Benefit Plan, it is not
purchasing this Excess Distribution Certificate on behalf of a Benefit Plan, is
not using assets of a Benefit Plan to purchase this Excess Distribution
Certificate and to have agreed that if this Excess Distribution Certificate is
deemed to be a plan asset, the Holder will promptly dispose of this Excess
Distribution Certificate.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate upon the payment to Noteholders and
the holder of this Excess Distribution Certificate of all amounts required to be
paid to them pursuant to the Trust Agreement, the Administration Agreement and
the Indenture and the disposition of all property held as part of the Trust. The
Depositor may at its option purchase the corpus of the Trust at a price
specified in the Administration Agreement; however, such right of purchase is
exercisable only on any Distribution Date on or after the date on which the Pool
Balance is less than or equal to 10% of the
vii
Initial Pool Balance. Any Trust Student Loans remaining in the Trust as of the
end of the Collection Period immediately preceding the Trust Auction Date will
be offered for sale by the Indenture Trustee by auction in accordance with the
procedure described in the Indenture.
This Excess Distribution Certificate shall be construed in accordance
with the laws of the State of Delaware, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
viii
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
________________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
________________________________________________________________________________
the within Excess Distribution Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
_____________________________________________________________________ Attorney
to transfer said Excess Distribution Certificate on the books of the
Excess Distribution Certificate Registrar, with full power of substitution in
the premises.
Dated:
______________________________*
Signature Guaranteed:
______________________________*
* NOTICE: The signature to this assignment must correspond with the name as
it appears upon the face of the within the Excess Distribution Certificate in
every particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by a member firm of the New York Stock Exchange or
a commercial bank or trust company.
ix
