EXHIBIT 4.3
================================================================================
INDENTURE
among
SLM STUDENT LOAN TRUST 2003-1
as the Issuer,
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as the Eligible Lender Trustee
and
THE BANK OF NEW YORK,
not in its individual capacity but
solely as the Indenture Trustee
Dated as of January 1, 2003
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I DEFINITIONS AND USAGE
SECTION 1.1 Definitions and Usage....................................................................3
SECTION 1.2 Incorporation by Reference of Trust Indenture Act........................................3
ARTICLE II THE NOTES
SECTION 2.1 Form.....................................................................................4
SECTION 2.2 Execution, Authentication and Delivery...................................................4
SECTION 2.3 Temporary Notes..........................................................................5
SECTION 2.4 Registration; Registration of Transfer and Exchange......................................5
SECTION 2.5 Mutilated, Destroyed, Lost or Stolen Notes...............................................6
SECTION 2.6 Persons Deemed Owner.....................................................................7
SECTION 2.7 Payment of Principal and Interest; Note Interest Shortfall...............................7
SECTION 2.8 Cancellation.............................................................................8
SECTION 2.9 Release of Collateral....................................................................8
SECTION 2.10 Book-Entry Notes.........................................................................8
SECTION 2.11 Notices to Clearing Agency...............................................................9
SECTION 2.12 Definitive Notes.........................................................................9
SECTION 2.13 Transfer Restrictions...................................................................10
ARTICLE III COVENANTS
SECTION 3.1 Payment to Noteholders..................................................................10
SECTION 3.2 Maintenance of Office or Agency.........................................................10
SECTION 3.3 Money for Payments To Be Held in Trust..................................................10
SECTION 3.4 Existence...............................................................................12
SECTION 3.5 Protection of Indenture Trust Estate....................................................12
SECTION 3.6 Opinions as to Indenture Trust Estate...................................................12
SECTION 3.7 Performance of Obligations; Servicing of Trust Student Loans............................13
SECTION 3.8 Negative Covenants......................................................................15
SECTION 3.9 Annual Statement as to Compliance.......................................................16
SECTION 3.10 Issuer May Consolidate, etc., Only on Certain Terms.....................................16
SECTION 3.11 Successor or Transferee.................................................................18
SECTION 3.12 No Other Business.......................................................................18
SECTION 3.13 No Borrowing............................................................................18
SECTION 3.14 Obligations of Servicer and Administrator...............................................18
SECTION 3.15 Guarantees, Loans, Advances and Other Liabilities.......................................18
SECTION 3.16 Capital Expenditures....................................................................19
SECTION 3.17 Restricted Payments.....................................................................19
SECTION 3.18 Notice of Events of Default.............................................................19
SECTION 3.19 Further Instruments and Acts............................................................19
ARTICLE IV SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture.................................................19
SECTION 4.2 Application of Trust Money..............................................................20
SECTION 4.3 Repayment of Moneys Held by Paying Agent................................................21
SECTION 4.4 Auction of Trust Student Loans..........................................................21
ARTICLE V REMEDIES
SECTION 5.1 Events of Default.......................................................................22
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment......................................23
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Indenture Trustee...............23
SECTION 5.4 Remedies; Priorities....................................................................25
SECTION 5.5 Optional Preservation of the Trust Student Loans........................................28
SECTION 5.6 Limitation of Suits.....................................................................28
SECTION 5.7 Unconditional Rights of Noteholders To Receive Principal and Interest...................29
SECTION 5.8 Restoration of Rights and Remedies......................................................29
SECTION 5.9 Rights and Remedies Cumulative..........................................................29
SECTION 5.10 Delay or Omission Not a Waiver..........................................................29
SECTION 5.11 Control by Noteholders..................................................................29
SECTION 5.12 Waiver of Past Defaults.................................................................30
SECTION 5.13 Undertaking for Costs...................................................................30
SECTION 5.14 Waiver of Stay or Extension Laws........................................................31
SECTION 5.15 Action on Notes.........................................................................31
SECTION 5.16 Performance and Enforcement of Certain Obligations......................................31
ARTICLE VI THE INDENTURE TRUSTEE
SECTION 6.1 Duties of Indenture Trustee.............................................................32
SECTION 6.2 Rights of Indenture Trustee.............................................................33
SECTION 6.3 Individual Rights of Indenture Trustee..................................................33
SECTION 6.4 Indenture Trustee's Disclaimer..........................................................34
SECTION 6.5 Notice of Defaults......................................................................34
SECTION 6.6 Reports by Indenture Trustee to Noteholders.............................................34
SECTION 6.7 Compensation and Indemnity..............................................................34
SECTION 6.8 Replacement of Indenture Trustee........................................................35
SECTION 6.9 Successor Indenture Trustee by Merger...................................................36
SECTION 6.10 Appointment of Co-Trustee or Separate Trustee...........................................36
SECTION 6.11 Eligibility; Disqualification...........................................................37
SECTION 6.12 Preferential Collection of Claims Against Issuer........................................38
ARTICLE VII NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1 Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders..................38
SECTION 7.2 Preservation of Information; Communications to Noteholders..............................38
SECTION 7.3 Reports by Issuer.......................................................................39
ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 Collection of Money.....................................................................39
SECTION 8.2 Trust Accounts..........................................................................39
SECTION 8.3 General Provisions Regarding Accounts...................................................40
SECTION 8.4 Release of Indenture Trust Estate.......................................................40
SECTION 8.5 Opinion of Counsel......................................................................41
ARTICLE IX SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Noteholders..................................41
SECTION 9.2 Supplemental Indentures with Consent of Noteholders.....................................42
SECTION 9.3 Execution of Supplemental Indentures....................................................44
SECTION 9.4 Effect of Supplemental Indenture........................................................44
SECTION 9.5 Conformity with Trust Indenture Act.....................................................44
SECTION 9.6 Reference in Notes to Supplemental Indentures...........................................44
ARTICLE X REDEMPTION OF NOTES
SECTION 10.1 Redemption..............................................................................45
SECTION 10.2 Form of Redemption Notice...............................................................45
SECTION 10.3 Notes Payable on Redemption Date........................................................45
ARTICLE XI MISCELLANEOUS
SECTION 11.1 Compliance Certificates and Opinions, etc...............................................45
SECTION 11.2 Form of Documents Delivered to Indenture Trustee........................................47
SECTION 11.3 Acts of Noteholders....................................................................48
SECTION 11.4 Notices, etc., to Indenture Trustee, Issuer and Rating Agencies.........................49
SECTION 11.5 Notices to Noteholders; Waiver..........................................................49
SECTION 11.6 Alternate Payment and Notice Provisions.................................................50
SECTION 11.7 Conflict with Trust Indenture Act.......................................................50
SECTION 11.8 Effect of Headings and Table of Contents................................................50
SECTION 11.9 Successors and Assigns..................................................................50
SECTION 11.10 Separability............................................................................50
SECTION 11.11 Benefits of Indenture...................................................................50
SECTION 11.12 Legal Holidays..........................................................................51
SECTION 11.13 GOVERNING LAW...........................................................................51
SECTION 11.14 Counterparts............................................................................51
SECTION 11.15 Recording of Indenture..................................................................51
SECTION 11.16 Trust Obligations.......................................................................51
SECTION 11.17 No Petition.............................................................................52
SECTION 11.18 Inspection..............................................................................52
APPENDICES, SCHEDULES AND EXHIBITS
APPENDIX A-1 Definitions and Usage
APPENDIX A-2 Reset Rate Note Procedures
APPENDIX A-3 Transfer Restrictions for the Reset Rate Notes
SCHEDULE A Schedule of Trust Student Loans
SCHEDULE B Location of Trust Student Loan Files
EXHIBIT A Forms of Notes
EXHIBIT B Form of Note Depository Agreement
INDENTURE dated as of January 1, 2003, among SLM STUDENT LOAN TRUST
2003-1, a Delaware statutory trust (the "Issuer"), 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 Issuer (the
"Eligible Lender Trustee"), and THE BANK OF
NEW YORK, a
New York banking
corporation, as indenture trustee and not in its individual capacity (the
"Indenture Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the holders of the Issuer's Student
Loan-Backed Notes (the "Notes"):
GRANTING CLAUSE
The Issuer and, with respect to the Trust Student Loans, the Eligible
Lender Trustee hereby Grant to the Indenture Trustee, as trustee for the benefit
of the Noteholders, effective as of the Closing Date all of their right, title
and interest in and to the following:
(a) the Trust Student Loans, and all obligations of the Obligors
thereunder including all moneys accrued and paid thereunder on or after the
Cutoff Date and all guaranties and other rights relating to the Trust Student
Loans;
(b) the Servicing Agreement, including the right of the Issuer to cause
the Servicer to purchase Trust Student Loans from the Issuer under circumstances
described therein;
(c) the Sale Agreement, including the right of the Issuer to cause the
Depositor to repurchase Trust Student Loans from the Issuer under circumstances
described therein and including the rights of the Depositor under the Purchase
Agreement;
(d) the Purchase Agreement, to the extent that the rights of the Depositor
thereunder have been assigned to the Issuer pursuant to the Sale Agreement,
including the right of the Depositor to cause Xxxxxx Xxx to repurchase Trust
Student Loans from the Depositor under circumstances described therein;
(e) the Administration Agreement, the Interest Rate Cap Agreement, the
Initial Swap Agreement and any other Swap Agreements to be entered into from
time to time;
(f) each Guarantee Agreement, including the right of the Issuer to cause
the related Guarantor to make Guarantee Payments in respect of the Trust Student
Loans;
(g) the Trust Accounts and all funds on deposit from time to time in the
Trust Accounts, including the Reserve Account Initial Deposit, the Remarketing
Fee Account Initial Deposit, and the Capitalized Interest Account Initial
Deposit, if any, and all investments and proceeds thereof (including all income
thereon); and
(h) all present and future claims, demands, causes and choses in action in
respect of any or all of the foregoing and all payments on or under and all
proceeds of every kind and nature whatsoever in respect of any or all of the
foregoing, including all proceeds of the conversion, voluntary or involuntary,
into cash or other liquid property, all cash proceeds,
accounts, accounts receivable, notes, drafts, acceptances, chattel paper,
checks, general intangibles, deposit accounts, insurance proceeds, condemnation
awards, rights to payment of any and every kind and other forms of obligations
and receivables, instruments and other property which at any time constitute all
or part of or are included in the proceeds of any of the foregoing
(collectively, the "Collateral").
The foregoing Grant is made in trust to secure the payment of
principal of and interest on, and any other amounts owing in respect of, the
Notes, equally and ratably without prejudice, priority or distinction, and to
secure compliance with the provisions of this Indenture, all as provided in this
Indenture.
The Indenture Trustee, as Indenture Trustee on behalf of the
Noteholders, acknowledges such Grant, accepts the trusts under this Indenture in
accordance with the provisions of this Indenture and agrees to perform its
duties required in this Indenture to the best of its ability to the end that the
interests of the Noteholders may be adequately and effectively protected.
2
ARTICLE I
DEFINITIONS AND USAGE
SECTION 1.1 DEFINITIONS AND USAGE. Except as otherwise specified
herein or as the context may otherwise require, capitalized terms used but not
otherwise defined herein are defined in Appendix A-1 or Appendix A-2 hereto,
which also contain rules as to usage that shall be applicable herein.
SECTION 1.2 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Indenture
Trustee.
"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
have the meaning assigned to them by such definitions.
3
ARTICLE II
THE NOTES
SECTION 2.1 FORM. The Notes, together with the Indenture Trustee's
certificate of authentication, shall be in substantially the forms set forth in
Exhibit A, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing the Notes, as evidenced by their execution of the Notes. Any
portion of the text of any Note may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Note.
The Definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders), all as determined by the officers executing such Notes, as
evidenced by their execution of such Notes.
Each Note shall be dated the date of its authentication. The terms of
the Notes set forth in Exhibit A are part of the terms of this Indenture.
SECTION 2.2 EXECUTION, AUTHENTICATION AND DELIVERY. The Notes shall
be executed on behalf of the Issuer by any of its Authorized Officers. The
signature of any such Authorized Officer on the Notes may be manual or
facsimile.
Notes bearing the manual or facsimile signature of individuals who
were at any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
The Indenture Trustee shall upon Issuer Order authenticate and deliver
Notes for original issue in an aggregate principal amount of $2,075,930,000. The
aggregate principal amount of Notes outstanding at any time may not exceed such
amount except as provided in Section 2.5.
Each Note shall be dated the date of its authentication. The Floating
Rate Class A Notes shall be issuable as registered Class A Notes in multiples of
$1,000. The Reset Rate Notes shall be issuable as registered in minimum
denominations of $250,000 and additional increments of $1,000. The Class B Notes
shall be issuable as registered Class B Notes in minimum denominations of
$100,000 and additional increments of $1,000.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Indenture Trustee by the manual signature of one of its
authorized signatories, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered hereunder.
4
SECTION 2.3 TEMPORARY NOTES. Pending the preparation of Definitive
Notes, the Issuer may execute, and upon receipt of an Issuer Order the Indenture
Trustee shall authenticate and deliver, temporary Notes which are printed,
lithographed, typewritten, mimeographed or otherwise produced, of the tenor of
the Definitive Notes in lieu of which they are issued and with such variations
not inconsistent with the terms of this Indenture determined to be appropriate
by the Responsible Officer of the Issuer executing the temporary Notes, as
evidenced by his or her execution of such temporary Notes.
If temporary Notes are issued, the Issuer will cause Definitive Notes
to be prepared without unreasonable delay. After the preparation of Definitive
Notes, the temporary Notes shall be exchangeable for Definitive Notes upon
surrender of the temporary Notes at the office or agency of the Issuer to be
maintained as provided in Section 3.2, without charge to the Noteholder. Upon
surrender for cancellation of any one or more temporary Notes, the Issuer shall
execute and the Indenture Trustee shall authenticate and deliver in exchange
therefor a like principal amount of Definitive Notes of authorized
denominations. Until so exchanged, the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as Definitive Notes.
SECTION 2.4 REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE. The
Issuer shall cause to be kept a register (the "Note Register") in which, subject
to such reasonable regulations as it may prescribe, the Issuer shall provide for
the registration of Notes and the registration of transfers of Notes. The
Indenture Trustee shall be "Note Registrar" for the purpose of registering Notes
and transfers of Notes as herein provided. Upon any resignation of any Note
Registrar, the Issuer shall promptly appoint a successor or, if it elects not to
make such an appointment, assume the duties of Note Registrar.
If a Person other than the Indenture Trustee is appointed by the
Issuer as Note Registrar, the Issuer shall give the Indenture Trustee prompt
written notice of the appointment of such Note Registrar and of the location,
and any change in the location, of the Note Register, and the Indenture Trustee
shall have the right to inspect the Note Register at all reasonable times and to
obtain copies thereof, and the Indenture Trustee shall have the right to rely
upon a certificate executed on behalf of the Note Registrar by an Executive
Officer thereof as to the names and addresses of the Noteholders and the
principal amounts and number of such Notes.
Upon surrender for registration of transfer of any Note at the office
or agency of the Issuer to be maintained as provided in Section 3.2, if the
requirements of Section 8-401(1) of the UCC are met, the Issuer shall execute,
and the Indenture Trustee shall authenticate and the Noteholder shall obtain
from the Indenture Trustee, in the name of the designated transferee or
transferees, one or more new Notes in any authorized denominations and a like
aggregate principal amount.
At the option of the Noteholder, Notes may be exchanged for other
Notes in any authorized denominations and a like aggregate principal amount,
upon surrender of the Notes to be exchanged at such office or agency. Whenever
any Notes are so surrendered for exchange, the Issuer shall execute, and the
Indenture Trustee shall authenticate and the Noteholder shall obtain from the
Indenture Trustee, the Notes which the Noteholder making the exchange is
entitled to receive.
5
All Notes issued upon any registration of transfer or exchange of
Notes shall be the valid obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed by, or be accompanied by a written instrument of
transfer in form satisfactory to the Indenture Trustee duly executed by the
Noteholder thereof or such Noteholder's attorney duly authorized in writing,
with such signature guaranteed by an "eligible guarantor institution" meeting
the requirements of the Note Registrar, which requirements include membership or
participation in Securities Transfer Agent's Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Note Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Exchange Act.
No service charge shall be made to a Noteholder for any registration
of transfer or exchange of Notes, but the Indenture Trustee may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of Notes,
other than exchanges pursuant to Section 2.3 or 9.6 not involving any transfer.
The preceding provisions of this Section notwithstanding, the Issuer
shall not be required to make and the Note Registrar need not register transfers
or exchanges of Notes selected for redemption or of any Note for a period of 15
days preceding the due date for any payment with respect to the Note.
SECTION 2.5 MUTILATED, DESTROYED, LOST OR STOLEN NOTES. If (i) any
mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to the Issuer and the Indenture Trustee such
security or indemnity as may be required by each of them to hold the Issuer and
the Indenture Trustee harmless, then, in the absence of notice to the Issuer,
the Note Registrar or the Indenture Trustee that such Note has been acquired by
a bona fide purchaser, and provided that the requirements of Section 8-405 of
the UCC are met, the Issuer shall execute and upon its request the Indenture
Trustee shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Note, a replacement Note; PROVIDED,
HOWEVER, that if any such destroyed, lost or stolen Note, but not a mutilated
Note, shall have become or within 15 days shall be due and payable, or shall
have been called for redemption, instead of issuing a replacement Note, the
Issuer may pay such destroyed, lost or stolen Note when so due or payable or
upon the Redemption Date without surrender thereof. If, after the delivery of
such replacement Note or payment of a destroyed, lost or stolen Note pursuant to
the proviso to the preceding sentence, a bona fide purchaser of the original
Note in lieu of which such replacement Note was issued presents for payment such
original Note, the Issuer and the Indenture Trustee shall be entitled to recover
such replacement Note (or such payment) from the Person to whom it was delivered
or any Person taking such replacement Note from such Person to whom such
replacement Note was delivered or any assignee of such Person, except a bona
fide purchaser, and shall be entitled to recover upon the security or indemnity
provided therefor to the extent of any loss, damage, cost or expense incurred by
the Issuer or the Indenture Trustee in connection therewith.
6
Upon the issuance of any replacement Note under this Section, the
Issuer may require the payment by the Noteholder thereof of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the fees and expenses of
the Indenture Trustee) connected therewith.
Every replacement Note issued pursuant to this Section in replacement
of any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.6 PERSONS DEEMED OWNER. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and any
agent of the Issuer or the Indenture Trustee may treat the Person in whose name
any Note is registered (as of the day of determination) as the owner of such
Note for the purpose of receiving payments of principal of, interest, if any, on
such Note and for all other purposes whatsoever, whether or not such Note be
overdue, and neither the Issuer, the Indenture Trustee nor any agent of the
Issuer or the Indenture Trustee shall be affected by notice to the contrary.
SECTION 2.7 PAYMENT OF PRINCIPAL AND INTEREST; NOTE INTEREST
SHORTFALL. (a) The Floating Rate Notes shall accrue interest as provided in the
forms of Notes set forth in Exhibit A and the Reset Rate Notes shall accrue
interest as provided in Xxxxxxxx X-0, and such interest shall be payable on each
applicable Distribution Date as specified therein, subject to Section 3.1. Any
installment of interest or principal, if any, payable on any Note which is
punctually paid or duly provided for by the Issuer on the applicable
Distribution Date shall be paid to the Person in whose name such Note (or one or
more Predecessor Notes) is registered on the applicable Record Date by check
mailed first-class, postage prepaid to such Person's address as it appears on
the Note Register on such Record Date, except that, unless Definitive Notes have
been issued pursuant to Section 2.12, with respect to Notes registered on the
Record Date in the name of the nominee of the applicable Clearing Agency
(initially, such nominee to be Cede & Co.), payment shall be made by wire
transfer in immediately available funds to the account designated by such
nominee and except for the final installment of principal payable with respect
to such Note on a Distribution Date or on the Note Final Maturity Date for such
Note which shall be payable as provided below. The funds represented by any such
checks returned undelivered shall be held in accordance with Section 3.3.
(b) The principal of each class of Floating Rate Notes shall be payable in
installments on each applicable Distribution Date as provided in the forms of
Note set forth in Exhibit A and, the principal of each class of Reset Rate Notes
shall be payable on each applicable Distribution Date as set forth in Appendix
A-2. Notwithstanding the foregoing, the entire unpaid principal amount of each
class of the Notes shall be due and payable, if not previously paid, on the Note
Final Maturity Date for such class of Notes and on the date on which an Event of
Default shall have occurred and be continuing if the Indenture Trustee or the
Noteholders of the Notes
7
representing not less than a majority of the Outstanding Amount of the Notes
have declared the Notes to be immediately due and payable in the manner provided
in Section 5.2. All principal payments on the Notes shall be made pro rata to
the specific class of Noteholders entitled thereto. The Indenture Trustee shall
notify the Person in whose name a Note is registered at the close of business on
the Record Date preceding the Distribution Date on which the Issuer expects that
the final installment of principal of and interest on such Note will be paid.
Such notice shall be mailed or transmitted by facsimile prior to such final
Distribution Date and shall specify that such final installment will be payable
only upon presentation and surrender of such Note and shall specify the place
where such Note may be presented and surrendered for payment of such
installment. Notices in connection with redemptions of Notes shall be mailed to
Noteholders as provided in Section 10.2.
(c) If the Issuer defaults in a payment of interest at the applicable Note
Rate on the Notes, the Issuer shall pay the resulting Note Interest Shortfall on
the following Distribution Date as provided in the Administration Agreement.
SECTION 2.8 CANCELLATION. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly cancelled by the Indenture Trustee. The Issuer may at any
time deliver to the Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Issuer may have acquired in any
manner whatsoever and all Notes so delivered shall be promptly cancelled by the
Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange for
any Notes cancelled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Notes may be held or disposed of by the
Indenture Trustee in accordance with its standard retention or disposal policy
as in effect at the time, unless the Issuer shall direct by an Issuer Order that
they be returned to it and so long as such Issuer Order is timely and the Notes
have not been previously disposed of by the Indenture Trustee.
SECTION 2.9 RELEASE OF COLLATERAL. Subject to Section 11.1 and the
terms of the Basic Documents, the Indenture Trustee shall release property from
the lien of this Indenture only upon receipt of an Issuer Request accompanied by
an Officers' Certificate of the Issuer, an Opinion of Counsel and Independent
Certificates in accordance with TIA Sections 314(c) and 314(d)(1) or an Opinion
of Counsel in lieu of such Independent Certificates to the effect that the TIA
does not require any such Independent Certificates.
SECTION 2.10 BOOK-ENTRY NOTES. The Notes, upon original issuance,
will be issued in the form of typewritten Notes representing the Book-Entry
Notes, to be delivered to the applicable initial Clearing Agency, by, or on
behalf of, the Issuer. Such Notes shall initially be registered on the Note
Register in the name of the nominee of each initial Clearing Agency, and no Note
Owner shall receive a Definitive Note (as defined below) representing such Note
Owner's interest in such Note, except as provided in Section 2.12. Unless and
until definitive, fully registered Notes (the "Definitive Notes") have been
issued to Note Owners pursuant to Section 2.12:
(i) the provisions of this Section shall be in full force and
effect;
8
(ii) the Note Registrar and the Indenture Trustee, and their
respective directors, officers, employees and agents, may deal with the
applicable Clearing Agency for all purposes (including the payment of principal
of and interest and other amounts on the Notes) as the authorized representative
of the Note Owners;
(iii) to the extent that the provisions of this Section conflict
with any other provisions of this Indenture, the provisions of this Section
shall control;
(iv) the rights of Note Owners shall be exercised only through the
applicable Clearing Agency and shall be limited to those established by law and
agreements between such Note Owners and the applicable Clearing Agency and/or
the applicable Clearing Agency Participants pursuant to the Note Depository
Agreements; and unless and until Definitive Notes are issued pursuant to Section
2.12, the applicable initial Clearing Agency will make book-entry transfers
among the applicable Clearing Agency Participants and receive and transmit
payments of principal of and interest and other amounts on the Notes to such
applicable Clearing Agency Participants; and
(v) whenever this Indenture requires or permits actions to be
taken based upon instructions or directions of Noteholders of Notes evidencing a
specified percentage of the Outstanding Amount of the Notes, the applicable
Clearing Agency shall be deemed to represent such percentage only to the extent
that it has received instructions to such effect from Note Owners and/or
applicable Clearing Agency Participants owning or representing, respectively,
such required percentage of the beneficial interest in the Notes and has
delivered such instructions to the Indenture Trustee.
SECTION 2.11 NOTICES TO CLEARING AGENCY. Whenever a notice or other
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to Note Owners pursuant to Section
2.12, the Indenture Trustee shall give all such notices and communication
specified herein to be given to Noteholders to the applicable Clearing Agency.
SECTION 2.12 DEFINITIVE NOTES. If (i) the Administrator advises the
Indenture Trustee in writing that a Clearing Agency is no longer willing or able
to discharge its responsibilities with respect to the applicable Notes, and the
Administrator is unable to locate a successor, (ii) the Administrator at its
option advises the Indenture Trustee in writing that it elects to terminate the
book-entry system through that Clearing Agency or (iii) after the occurrence of
an Event of Default, a Servicer Default or an Administrator Default, Note Owners
representing beneficial interests aggregating at least a majority of the
Outstanding Amount of the applicable Notes advise the applicable Clearing Agency
(which shall then notify the Indenture Trustee) in writing that the continuation
of a book-entry system through such Clearing Agency is no longer in the best
interests of such Note Owners, then the Indenture Trustee shall cause such
Clearing Agency to notify all Note Owners cleared, through such Clearing Agency,
of the occurrence of any such event and of the availability of Definitive Notes
to Note Owners requesting the same. Upon surrender to the Indenture Trustee of
the typewritten Notes representing the Book-Entry Notes by a Clearing Agency,
accompanied by registration instructions, the Issuer shall execute and the
Indenture Trustee shall authenticate the Definitive Notes in accordance with the
instructions of such Clearing Agency, which shall include, without
9
limitation, the identity and payment instructions for all Noteholders of the
applicable Notes. None of the Issuer, the Note Registrar or the Indenture
Trustee shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of Definitive Notes, the Indenture Trustee shall recognize the
holders of the Definitive Notes as Noteholders.
SECTION 2.13 TRANSFER RESTRICTIONS. Each Noteholder and Note Owner of
a class of Reset Rate Notes shall be subject to the restrictions on transfer
thereof set forth in Appendix A-3 to this Indenture.
ARTICLE III
COVENANTS
SECTION 3.1 PAYMENT TO NOTEHOLDERS. The Issuer shall duly and
punctually pay the principal and interest, if any, with respect to the Notes in
accordance with the terms of the Notes and this Indenture. Without limiting the
foregoing, the Issuer shall cause to be distributed to Noteholders in accordance
with the Administration Agreement that portion of the amounts on deposit in the
Trust Accounts on a Distribution Date (other than any Eligible Investments
deposited therein that will mature on the Business Day preceding a subsequent
Distribution Date) which the Noteholders are entitled to receive pursuant to the
Administration Agreement. Amounts properly withheld under the Code by any Person
from a payment to any Noteholder of interest and/or principal shall be
considered as having been paid by the Issuer to such Noteholder for all purposes
of this Indenture.
SECTION 3.2 MAINTENANCE OF OFFICE OR AGENCY. The Issuer shall
maintain in the Borough of Manhattan, The City of
New York, an office or agency
where Notes may be surrendered for registration of transfer or exchange, and
where notices and demands to or upon the Issuer in respect of the Notes and this
Indenture may be served. The Issuer hereby initially appoints the Indenture
Trustee to serve as its agent for the foregoing purposes. The Issuer shall give
prompt written notice to the Indenture Trustee of the location, and of any
change in the location, of any such office or agency. If at any time the Issuer
shall fail to maintain any such office or agency or shall fail to furnish the
Indenture Trustee with the address thereof, such surrenders, notices and demands
may be made or served at the Corporate Trust Office, and the Issuer hereby
appoints the Indenture Trustee as its agent to receive all such surrenders,
notices and demands.
SECTION 3.3 MONEY FOR PAYMENTS TO BE HELD IN TRUST. As provided in
Section 8.2(a) and (b), all payments of amounts due and payable with respect to
any Notes that are to be made from amounts distributed from the Collection
Account or any other Trust Account pursuant to Section 2.7 and 2.8 of the
Administration Agreement shall be made on behalf of the Issuer by the Indenture
Trustee or by another Paying Agent, and no amounts so distributed from the
Collection Account for payments of Notes shall be paid over to the Issuer except
as provided in this Section.
10
On or before the Business Day next preceding each Distribution Date
and Redemption Date, the Issuer shall distribute or cause to be distributed to
the Indenture Trustee (or any other Paying Agent) an aggregate sum sufficient to
pay the amounts then becoming due under the Notes, such sum to be held in trust
for the benefit of the Persons entitled thereto and (unless the Paying Agent is
the Indenture Trustee) shall promptly notify the Indenture Trustee of its action
or failure so to act.
The Issuer shall cause each Paying Agent other than the Indenture
Trustee to execute and deliver to the Indenture Trustee an instrument in which
such Paying Agent shall agree with the Indenture Trustee (and if the Indenture
Trustee acts as Paying Agent, it hereby so agrees), subject to the provisions of
this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts due with
respect to the Notes in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and pay such sums to such Persons as herein provided;
(ii) give the Indenture Trustee notice of any default by the Issuer
of which it has actual knowledge (or any other obligor upon the Notes) in the
making of any payment required to be made with respect to the Notes;
(iii) at any time during the continuance of any such default, upon
the written request of the Indenture Trustee, forthwith pay to the Indenture
Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to the
Indenture Trustee all sums held by it in trust for the payment of Notes if at
any time it ceases to meet the standards required to be met by a Paying Agent at
the time of its appointment; and
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Notes of any applicable
withholding taxes imposed thereon and with respect to any applicable reporting
requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by Issuer
Order direct any Paying Agent to pay to the Indenture Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Indenture Trustee upon
the same trusts as those upon which the sums were held by such Paying Agent; and
upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds, any money
held by the Indenture Trustee or any Paying Agent in trust for the payment of
any amount due with respect to any Note and remaining unclaimed for two years
after such amount has become due and payable shall be discharged from such trust
and be paid to the Issuer on Issuer Request or if the Issuer has been terminated
to the Depositor upon its written request; and the Noteholder thereof shall
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof (but
11
only to the extent of the amounts so paid to the Issuer), and all liability of
the Indenture Trustee or such Paying Agent with respect to such trust money
shall thereupon cease; PROVIDED, HOWEVER, that the Indenture Trustee or such
Paying Agent, before being required to make any such repayment, shall at the
expense and direction of the Issuer cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in The City of
New York, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Issuer. The Indenture Trustee
shall also adopt and employ, at the expense of the Issuer, any other reasonable
means of notification of such repayment (including mailing notice of such
repayment to Noteholders whose Notes have been called but have not been
surrendered for redemption or whose right to or interest in moneys due and
payable but not claimed is determinable from the records of the Indenture
Trustee or of any Paying Agent, at the last address of record for each such
Noteholder).
SECTION 3.4 EXISTENCE. The Issuer shall keep in full effect its
existence, rights and franchises as a statutory trust under the laws of the
State of Delaware (unless it becomes, or any successor Issuer hereunder is or
becomes, organized under the laws of any other State or of the United States of
America, in which case the Issuer shall keep in full effect its existence,
rights and franchises under the laws of such other jurisdiction) and shall
obtain and preserve its qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Indenture Trust Estate.
SECTION 3.5 PROTECTION OF INDENTURE TRUST ESTATE. The Issuer will
from time to time execute and deliver all such supplements and amendments hereto
and all such financing statements, continuation statements, will take such other
action necessary or advisable to:
(i) maintain or preserve the lien and security interest (and the
priority thereof) of this Indenture or carry out more effectively the purposes
hereof;
(ii) perfect, publish notice of or protect the validity of any
grant made or to be made by this Indenture;
(iii) enforce any of the Collateral; or
(iv) preserve and defend title to the Indenture Trust Estate and
the rights of the Indenture Trustee and the Noteholders in such Indenture Trust
Estate against the claims of all persons and parties.
The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement or
other instrument required to be executed pursuant to this Section.
SECTION 3.6 OPINIONS AS TO INDENTURE TRUST ESTATE. (a) On the
Closing Date, the Issuer shall furnish to the Indenture Trustee an Opinion of
Counsel either stating that, in the opinion of such counsel, such action has
been taken with respect to the recording and filing of
12
this Indenture as is necessary to perfect and make effective the lien and
security interest of this Indenture and reciting the details of such action, or
stating that, in the opinion of such counsel, no such action is necessary to
make such lien and security interest effective.
(b) On or before December 31 in each calendar year, beginning in 2003, the
Issuer shall furnish to the Indenture Trustee an Opinion of Counsel either
stating that, in the opinion of such counsel, such action has been taken with
respect to the recording, filing, re-recording and refiling of this Indenture
and any indentures supplemental hereto as is necessary to maintain the lien and
security interest created by this Indenture and relating the details of such
action or stating that in the opinion of such counsel no such action is
necessary to maintain such lien and security interest. Such Opinion of Counsel
shall also describe the recording, filing, recording and refiling of this
Indenture and any indentures supplemental hereto that will, in the opinion of
such counsel, be required to maintain the lien and security interest of this
Indenture until December 31 in the following calendar year.
SECTION 3.7 PERFORMANCE OF OBLIGATIONS; SERVICING OF TRUST STUDENT
LOANS. (a) The Issuer will not take any action and will use its best efforts not
to permit any action to be taken by others that would release any Person from
any of such Person's material covenants or obligations under any instrument or
agreement included in the Indenture Trust Estate or that would result in the
amendment, hypothecation, subordination, termination or discharge of, or impair
the validity or effectiveness of, any such instrument or agreement, except as
expressly provided in this Indenture, any other Basic Document or such other
instrument or agreement.
(b) The Issuer may contract with other Persons to assist it in performing
its duties under this Indenture, and any performance of such duties by a Person
identified to the Indenture Trustee in an Officers' Certificate of the Issuer
shall be deemed to be action taken by the Issuer; PROVIDED, HOWEVER, the Issuer
shall not be liable for any acts of Persons with whom the Issuer has contracted
with reasonable care. Initially, the Issuer has contracted with the Servicer and
the Administrator to assist the Issuer in performing its duties under this
Indenture. The Issuer shall give written notice to the Indenture Trustee and
each Rating Agency of any such contract with any other Person.
(c) The Issuer shall punctually perform and observe all of its obligations
and agreements contained in this Indenture, the other Basic Documents and the
instruments and agreements included in the Indenture Trust Estate, including
filing or causing to be filed all UCC financing statements and continuation
statements prepared by the Issuer and required to be filed by the terms of this
Indenture and the Administration Agreement in accordance with and within the
time periods provided for herein and therein. Except as otherwise expressly
provided therein, the Issuer shall not waive, amend, modify, supplement or
terminate any Basic Document or any provision thereof without the consent of the
Indenture Trustee or the Noteholders of at least a majority of the Outstanding
Amount of the Notes. The Issuer shall give written notice to each Rating Agency
of any such waiver, amendment, modification, supplement or termination.
(d) If a Responsible Officer of the Issuer shall have knowledge of the
occurrence of a Servicer Default or an Administrator Default under the Servicing
Agreement or the Administration Agreement, respectively, the Issuer shall
promptly notify the Indenture Trustee and the Rating Agencies thereof, and shall
specify in such notice the action, if any, the Issuer is
13
taking with respect to such default. If a Servicer Default shall arise from the
failure of the Servicer to perform any of its duties or obligations under the
Servicing Agreement, or an Administrator Default shall arise from the failure of
the Administrator to perform any of its duties or obligations under the
Administration Agreement, as the case may be, with respect to the Trust Student
Loans, the Issuer shall take all reasonable steps available to it to enforce its
rights under the Basic Documents in respect of such failure.
(e) As promptly as possible after the giving of notice of termination to
the Servicer of the Servicer's rights and powers, pursuant to Section 5.1 of the
Servicing Agreement, or to the Administrator of the Administrator's rights and
powers, pursuant to Section 5.1 of the Administration Agreement, the Issuer
shall appoint a successor servicer (the "Successor Servicer") or a successor
administrator (the "Successor Administrator"), respectively, and such Successor
Servicer or Successor Administrator, as the case may be, shall accept its
appointment by a written assumption in a form acceptable to the Indenture
Trustee. In the event that a Successor Servicer or Successor Administrator has
not been appointed and accepted its appointment at the time when the Servicer or
Administrator, as the case may be, ceases to act as Servicer or Administrator,
respectively, the Indenture Trustee without further action shall automatically
be appointed the Successor Servicer or Successor Administrator, as the case may
be. The Indenture Trustee may resign as the Servicer or the Administrator by
giving written notice of resignation to the Issuer and in such event will be
released from such duties and obligations, such release not to be effective
until the date a new servicer or a new administrator enters into an agreement
with the Issuer as provided below; PROVIDED, HOWEVER, that nothing herein shall
require or permit the Indenture Trustee to act as Servicer, or otherwise service
the Trust Student Loans, in violation of the Higher Education Act. Upon delivery
of any such notice to the Issuer, the Issuer shall obtain a new servicer as the
Successor Servicer under the Servicing Agreement or a new administrator as the
Successor Administrator under the Administration Agreement, as the case may be.
Any Successor Servicer or Successor Administrator, other than the Indenture
Trustee, shall (i) be an established institution (A) that satisfies any
requirements of the Higher Education Act applicable to servicers and (B) whose
regular business includes the servicing or administration of student loans and
(ii) enter into a servicing agreement or an administration agreement,
respectively, with the Issuer having substantially the same provisions as the
provisions of the Servicing Agreement and the Administration Agreement, as
applicable. If within 30 days after the delivery of the notice referred to
above, the Issuer shall not have obtained such a new servicer or new
administrator, as the case may be, the Indenture Trustee may appoint, or may
petition a court of competent jurisdiction to appoint, a Successor Servicer or
Successor Administrator; PROVIDED, HOWEVER, that such right to appoint or to
petition for the appointment of any such successor shall in no event relieve the
Indenture Trustee from any obligations otherwise imposed on it under the Basic
Documents until such successor has in fact assumed such appointment. In
connection with any such appointment, the Indenture Trustee may make such
arrangements for the compensation of such successor as it and such successor
shall agree, subject to the limitations set forth below and in the Servicing
Agreement or Administration Agreement, as applicable, and in accordance with
Section 5.2 of the Servicing Agreement and Section 5.2 of the Administration
Agreement, the Issuer shall enter into an agreement with such successor for the
servicing or administration of the Trust Student Loans (such agreement to be in
form and substance satisfactory to the Indenture Trustee). If the Indenture
Trustee shall succeed as provided herein to the Servicer's duties as Servicer
with
14
respect to the Trust Student Loans, or the Administrator's duties with respect
to the Issuer and the Trust Student Loans, as the case may be, it shall do so in
its individual capacity and not in its capacity as Indenture Trustee and,
accordingly, the provisions of Article VI hereof shall be inapplicable to the
Indenture Trustee in its duties as the successor to the Servicer or the
Administrator, as the case may be, and the servicing or administration of the
Trust Student Loans. In case the Indenture Trustee shall become successor to the
Servicer or the Administrator, the Indenture Trustee shall be entitled to
appoint as Servicer or as Administrator, as the case may be, any one of its
Affiliates, provided that such appointment shall not affect or alter in any way
the liability of the Indenture Trustee as Successor Servicer or Successor
Administrator, respectively, in accordance with the terms hereof.
(f) Upon any termination of the Servicer's rights and powers pursuant to
the Servicing Agreement, or any termination of the Administrator's rights and
powers pursuant to the Administration Agreement, as the case may be, the Issuer
shall promptly notify the Indenture Trustee and each Rating Agency. As soon as a
Successor Servicer or a Successor Administrator is appointed, the Issuer shall
notify the Indenture Trustee and each Rating Agency of such appointment,
specifying in such notice the name and address of such Successor Servicer or
such Successor Administrator.
(g) Without derogating from the absolute nature of the assignment granted
to the Indenture Trustee under this Indenture or the rights of the Indenture
Trustee hereunder, the Issuer agrees that it will not, without the prior written
consent of the Indenture Trustee or the Noteholders of at least a majority in
Outstanding Amount of the Notes, amend, modify, waive, supplement, terminate or
surrender, or agree to any amendment, modification, supplement, termination,
waiver or surrender of, the terms of any Collateral or the Basic Documents,
except to the extent otherwise provided in the Basic Documents, or waive timely
performance or observance by the Servicer, the Administrator, the Depositor,
Xxxxxx Xxx, the Issuer or the Eligible Lender Trustee under the Basic Documents;
PROVIDED, HOWEVER, that no such amendment shall (i) increase or reduce in any
manner the amount of, or accelerate or delay the timing of, distributions that
are required to be made for the benefit of the Noteholders, or (ii) reduce the
aforesaid percentage of the Notes which are required to consent to any such
amendment, without the consent of the Noteholders of all the Outstanding Notes.
If any such amendment, modification, supplement or waiver shall be so consented
to by the Indenture Trustee or such Noteholders, the Issuer shall give written
notice thereof to each Rating Agency and agrees, promptly following a request by
the Indenture Trustee to do so, to execute and deliver, in its own name and at
its own expense, such agreements, instruments, consents and other documents as
the Indenture Trustee may deem necessary or appropriate in the circumstances.
SECTION 3.8 NEGATIVE COVENANTS. So long as any Notes are Outstanding,
the Issuer shall not:
(i) except as expressly permitted by this Indenture or any other
Basic Document, sell, transfer, exchange or otherwise dispose of any of the
properties or assets of the Issuer, including those included in the Indenture
Trust Estate, unless directed to do so by the Indenture Trustee;
15
(ii) claim any credit on, or make any deduction from the principal
or interest payable in respect of, the Notes (other than amounts properly
withheld from such payments under the Code or applicable state law) or assert
any claim against any present or former Noteholder by reason of the payment of
the taxes levied or assessed upon any part of the Indenture Trust Estate; or
(iii) (A) permit the validity or effectiveness of this Indenture to
be impaired, or permit the lien of this Indenture to be amended, hypothecated,
subordinated, terminated or discharged, or permit any Person to be released from
any covenants or obligations with respect to the Notes under this Indenture
except as may be expressly permitted hereby, (B) permit any lien, charge,
excise, claim, security interest, mortgage or other encumbrance (other than the
lien of this Indenture) to be created on or extend to or otherwise arise upon or
burden the Indenture Trust Estate or any part thereof or any interest therein or
the proceeds thereof (other than tax liens and other liens that arise by
operation of law, and other than as expressly permitted by the Basic Documents)
or (C) permit the lien of this Indenture not to constitute a valid first
priority (other than with respect to any such tax or other lien) security
interest in the Indenture Trust Estate.
(iv) enter into any amendment to the Interest Rate Cap Agreement or
the Initial Swap Agreement to cure any ambiguity in, or to correct or supplement
any provision of the Interest Rate Cap Agreement or the Initial Swap Agreement,
unless the Issuer has determined, and the Indenture Trustee has agreed in
writing at the written direction of the Issuer, that the amendment will not
materially adversely affect the interests of the Noteholders and provided that
the Indenture Trustee has provided reasonable notice to the Rating Agencies of
such amendment and each Rating Agency has provided written confirmation that the
then current rating of the Notes will not be lowered or withdrawn. No Swap
Agreement entered into by the Issuer subsequent to the Closing Date may be
amended or modified unless the Rating Agency Condition is satisfied.
SECTION 3.9 ANNUAL STATEMENT AS TO COMPLIANCE. The Issuer will
deliver to the Indenture Trustee and each Rating Agency, within 120 days after
the end of each fiscal year of the Issuer (commencing with the fiscal year
ending December 31, 2003), an Officers' Certificate of the Issuer stating that:
(i) a review of the activities of the Issuer during such year and
of performance under this Indenture has been made under such Authorized
Officers' supervision; and
(ii) to the best of such Authorized Officers' knowledge, based on
such review, the Issuer has complied with all conditions and covenants under
this Indenture throughout such year, or, if there has been a default in the
compliance of any such condition or covenant, specifying each such default known
to such Authorized Officers and the nature and status thereof.
SECTION 3.10 ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS
(a) The Issuer shall not consolidate or merge with or into any other
Person, unless:
16
(i) the Person (if other than the Issuer) formed by or surviving
such consolidation or merger shall be a Person organized and existing under the
laws of the United States of America or any State and shall expressly assume, by
an indenture supplemental hereto, executed and delivered to the Indenture
Trustee, in form satisfactory to the Indenture Trustee, the due and punctual
payment of the principal of, and interest, if any, on all Notes and the
performance or observance of every agreement and covenant of this Indenture on
the part of the Issuer to be performed or observed, all as provided herein;
(ii) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and
shall have delivered copies thereof to the Indenture Trustee) to the effect that
such transaction will not have any material adverse Federal or Delaware state
tax consequence to the Issuer or any Noteholder;
(v) any action as is necessary to maintain the lien and security
interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee an
Officers' Certificate of the Issuer and an Opinion of Counsel each stating that
such consolidation or merger and such supplemental indenture comply with this
Article III and that all conditions precedent herein provided for relating to
such transaction have been complied with (including any filing required by the
Exchange Act).
(b) The Issuer shall not convey or transfer all or substantially all its
properties or assets, including those included in the Indenture Trust Estate, to
any Person, unless:
(i) the Person that acquires by conveyance or transfer the
properties and assets of the Issuer the conveyance or transfer of which is
hereby restricted shall (A) be a United States citizen or a Person organized and
existing under the laws of the United States of America or any State, (B)
expressly assume, by an indenture supplemental hereto, executed and delivered to
the Indenture Trustee, in form satisfactory to the Indenture Trustee, the due
and punctual payment of the principal of, and interest, if any, on all Notes and
the performance or observance of every agreement and covenant of this Indenture
on the part of the Issuer to be performed or observed, all as provided herein,
(C) expressly agree by means of such supplemental indenture that all right,
title and interest so conveyed or transferred shall be subject and subordinate
to the rights of Noteholders, (D) unless otherwise provided in such supplemental
indenture, expressly agree to indemnify, defend and hold harmless the Issuer
against and from any loss, liability or expense arising under or related to this
Indenture and the Notes and (E) expressly agree by means of such supplemental
indenture that such Person (or if a group of Persons, then one specified Person)
shall make all filings with the Commission (and any other appropriate Person)
required by the Exchange Act in connection with the Notes;
17
(ii) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction; (iv) the Issuer shall have received an Opinion of
Counsel (and shall have delivered copies thereof to the Indenture Trustee) to
the effect that such transaction will not have any material adverse Federal or
Delaware state tax consequence to the Issuer or any Noteholder;
(v) any action as is necessary to maintain the lien and security
interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee an
Officers' Certificate of the Issuer and an Opinion of Counsel each stating that
such conveyance or transfer and such supplemental indenture comply with this
Article III and that all conditions precedent herein provided for relating to
such transaction have been complied with (including any filing required by the
Exchange Act).
SECTION 3.11 SUCCESSOR OR TRANSFEREE. (a) Upon any consolidation or
merger of the Issuer in accordance with Section 3.10(a), the Person formed by or
surviving such consolidation or merger (if other than the Issuer) shall succeed
to, and be substituted for, and may exercise every right and power of, the
Issuer under this Indenture with the same effect as if such Person had been
named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of the
Issuer pursuant to Section 3.10(b), SLM Student Loan Trust 2003-1 will be
released from every covenant and agreement of this Indenture to be observed or
performed on the part of the Issuer with respect to the Notes immediately upon
the delivery by the Issuer of written notice to the Indenture Trustee stating
that SLM Student Loan Trust 2003-1 is to be so released.
SECTION 3.12 NO OTHER BUSINESS. The Issuer shall not engage in any
business other than financing, purchasing, owning, selling and managing the
Trust Student Loans in the manner contemplated by this Indenture and the other
Basic Documents and activities incidental thereto.
SECTION 3.13 NO BORROWING. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Notes.
SECTION 3.14 OBLIGATIONS OF SERVICER AND ADMINISTRATOR. The Issuer
shall cause the Servicer to comply with Sections 3.1, 3.2 and 3.3 of the
Administration Agreement and Section 3.7 of the Servicing Agreement and the
Administrator to comply with Sections 2.9, 3.1, 3.2 and 3.3 of the
Administration Agreement.
SECTION 3.15 GUARANTEES, LOANS, ADVANCES AND OTHER LIABILITIES. Except
as contemplated by this Indenture and the other Basic Documents, the Issuer
shall not make any loan or advance or credit to, or guarantee (directly or
indirectly or by an instrument having the
18
effect of assuring another's payment or performance on any obligation or
capability of so doing or otherwise), endorse or otherwise become contingently
liable, directly or indirectly, in connection with the obligations, stocks or
dividends of, or own, purchase, repurchase or acquire (or agree contingently to
do so) any stock, obligations, assets or securities of, or any other interest
in, or make any capital contribution to, any other Person.
SECTION 3.16 CAPITAL EXPENDITURES. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
SECTION 3.17 RESTRICTED PAYMENTS. The Issuer shall not, directly or
indirectly, (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Eligible Lender Trustee or any owner of a beneficial interest in
the Issuer or otherwise with respect to any ownership or equity interest or
security in or of the Issuer or to the Servicer or the Administrator, (ii)
redeem, purchase, retire or otherwise acquire for value any such ownership or
equity interest or security or (iii) set aside or otherwise segregate any
amounts for any such purpose; PROVIDED, HOWEVER, that the Issuer may make, or
cause to be made, distributions to the Servicer, the Eligible Lender Trustee,
the Indenture Trustee, the Noteholders, the Administrator and the Depositor as
contemplated by, and to the extent funds are available for such purpose under,
this Indenture and the other Basic Documents. The Issuer will not, directly or
indirectly, make payments to or distributions from the Collection Account except
in accordance with this Indenture and the other Basic Documents.
SECTION 3.18 NOTICE OF EVENTS OF DEFAULT. The Issuer shall give the
Indenture Trustee and the Rating Agencies prompt written notice of each Event of
Default hereunder and each default on the part of the Depositor of its
obligations under the Sale Agreement, Xxxxxx Xxx of its obligations under the
Purchase Agreement, the Servicer of its obligations under the Servicing
Agreement, or the Administrator of its obligations under the Administration
Agreement. In addition, the Issuer shall deliver to the Indenture Trustee and
each Rating Agency, within five days after the occurrence thereof, written
notice in the form of an Officers' Certificate of the Issuer of any event which
with the giving of notice and the lapse of time would become an Event of Default
under Section 5.1(iii), its status and what action the Issuer is taking or
proposes to take with respect thereto.
SECTION 3.19 FURTHER INSTRUMENTS AND ACTS. Upon request of the
Indenture Trustee, the Issuer will execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purpose of this Indenture.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture
shall cease to be of further effect with respect to the Notes except as to (i)
rights of registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Notes, (iii) rights of Noteholders to receive payments
of principal thereof and interest thereon, (iv) Sections 3.3, 3.4,
19
3.5, 3.8, 3.10, 3.12 and 3.13, (v) the rights, obligations and immunities of the
Indenture Trustee hereunder (including, without limitation, the rights of the
Indenture Trustee under Section 6.7 and the obligations of the Indenture Trustee
under Section 4.2) and (vi) the rights of Noteholders as beneficiaries hereof
with respect to the property so deposited with the Indenture Trustee payable to
all or any of them, and the Indenture Trustee, on demand of and at the expense
of the Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to the Notes, when:
(a) either
(1) all Notes theretofore authenticated and delivered (other than
(i) Notes that have been destroyed, lost or stolen and that have been replaced
or paid as provided in Section 2.5 and (ii) Notes for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Issuer and thereafter repaid to the Issuer or discharged from such trust, as
provided in Section 3.3) have been delivered to the Indenture Trustee for
cancellation; or
(2) all Notes not theretofore delivered to the Indenture Trustee
for cancellation
(i) have become due and payable,
(ii) will become due and payable at their respective Note
Final Maturity Date, within one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Indenture Trustee for the giving of notice of
redemption by the Indenture Trustee in the name, and at the expense, of the
Issuer, and the Issuer, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be irrevocably deposited with the Indenture Trustee cash
or direct obligations of or obligations guaranteed by the United States of
America (which will mature prior to the date such amounts are payable), in trust
for such purpose, in an amount sufficient to pay and discharge the entire
indebtedness on such Notes not theretofore delivered to the Indenture Trustee
for cancellation when due to the Note Final Maturity Date;
(b) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer; and
(c) the Issuer has delivered to the Indenture Trustee an Officers'
Certificate of the Issuer, an Opinion of Counsel and (if required by the TIA or
the Indenture Trustee) an Independent Certificate from a firm of certified
public accountants, each meeting the applicable requirements of Section 11.1(a)
and, subject to Section 11.2, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
SECTION 4.2 APPLICATION OF TRUST MONEY. All moneys deposited with
the Indenture Trustee pursuant to Section 4.1 hereof shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent, as the
Indenture Trustee may determine, to the Noteholders of the
20
particular Notes for the payment or redemption of which such moneys have been
deposited with the Indenture Trustee, of all sums due and to become due thereon
for principal and interest; but such moneys need not be segregated from other
funds except to the extent required herein or in the Administration Agreement or
required by law.
SECTION 4.3 REPAYMENT OF MONEYS HELD BY PAYING AGENT. In connection
with the satisfaction and discharge of this Indenture with respect to the Notes,
all moneys then held by any Paying Agent other than the Indenture Trustee under
the provisions of this Indenture with respect to such Notes shall, upon demand
of the Issuer, be paid to the Indenture Trustee to be held and applied according
to Section 3.3 and thereupon such Paying Agent shall be released from all
further liability with respect to such moneys.
SECTION 4.4 AUCTION OF TRUST STUDENT LOANS. Any Trust Student Loans
remaining in the Trust as of the end of the Collection Period immediately
preceding the earliest Distribution Date on which the Pool Balance is equal to
10% or less of the initial Pool Balance three Business Days prior to such
Distribution Date (the "Trust Auction Date") shall be offered for sale by the
Indenture Trustee unless the Servicer has exercised its option to purchase the
Trust Estate as described in Section 6.1A of the Administration Agreement with
respect to such Servicer Distribution Date. The Servicer will be deemed to have
waived such option if it fails to notify the Eligible Lender Trustee and the
Indenture Trustee of its exercise thereof in writing prior to the Indenture
Trustee's acceptance of a bid to purchase such Trust Student Loans; PROVIDED,
HOWEVER, that there shall be no such offer for sale if the Indenture Trustee
fails to provide notice to the Servicer in accordance with this Section 4.4. The
Indenture Trustee shall provide written notice to the Servicer of any such offer
for sale at least 5 Business Days in advance of the Trust Auction Date. The
Indenture Trustee shall permit the Servicer or any of its Affiliates including
Xxxxxx Xxx and the Servicer to offer bids only if the Pool Balance as of the
applicable Trust Auction Date is equal to 10% or less of the Initial Pool
Balance and such bid does not exceed the fair market value of the Trust Student
Loans as of the Trust Auction Date. If at least two bids are received, the
Indenture Trustee shall solicit and resolicit new bids from all participating
bidders until only one bid remains or the remaining bidders decline to resubmit
bids. The Indenture Trustee shall accept the highest of such remaining bids if
it is equal to or in excess of both the Minimum Purchase Amount and the fair
market value of such Trust Student Loans as of the end of the Collection Period
immediately preceding the Trust Auction Date. If at least two bids are not
received or the highest bid after the resolicitation process is completed is not
equal to or in excess of the higher of the Minimum Purchase Amount and the fair
market value of the Trust Student Loans, the Indenture Trustee shall not
consummate such sale. The Indenture Trustee may consult, and, at the direction
of the Depositor, shall consult, with a financial advisor, including an
underwriter of the Notes or the Administrator, to determine if the fair market
value of the Trust Student Loans has been offered. The proceeds of any such sale
will be applied in the order of priority set forth in Section 5.4 (b). If the
sale is not consummated in accordance with the foregoing, the Indenture Trustee
may, but shall not be under any obligation to, solicit bids for sale of the
Trust Student Loans with respect to future Distribution Dates upon terms similar
to those described above, including the Servicer's waiver of its option to
purchase the Trust Estate in accordance with Section 6.1A of the Administration
Agreement with respect to each such future Distribution Date.
21
ARTICLE V
REMEDIES
SECTION 5.1 EVENTS OF DEFAULT. "Event of Default," wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(i) default in the payment of any interest on any Note when the
same becomes due and payable, and such default shall continue for a period of
five days; or
(ii) default in the payment of the principal of any Note when the
same becomes due and payable on the related Note Final Maturity Date; or
(iii) default in the observance or performance of any covenant or
agreement of the Issuer made in this Indenture (other than a covenant or
agreement, a default in the observance or performance of which is elsewhere in
this Section specifically dealt with), or any representation or warranty of the
Issuer made in this Indenture or in any certificate or other writing having been
incorrect in any material respect as of the time when made, such default or
breach having a material adverse effect on the holders of the Notes, and such
default or breach shall continue or not be cured, or the circumstance or
condition in respect of which such misrepresentation or warranty was incorrect
shall not have been eliminated or otherwise cured, for a period of 30 days after
there shall have been given, by registered or certified mail, to the Issuer by
the Indenture Trustee or to the Issuer and the Indenture Trustee by the
Noteholders of at least 25% of the Outstanding Amount of the Notes, a written
notice specifying such default or incorrect representation or warranty and
requiring it to be remedied and stating that such notice is a notice of Default
hereunder; or
(iv) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Issuer or any substantial part of
the Indenture Trust Estate in an involuntary case under any applicable Federal
or state bankruptcy, insolvency or other similar law now or hereafter in effect,
or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator
or similar official of the Issuer or for any substantial part of the Indenture
Trust Estate, or ordering the winding-up or liquidation of the Issuer's affairs,
and such decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(v) the commencement by the Issuer of a voluntary case under any
applicable Federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or the consent by the Issuer to the entry of an order for
relief in an involuntary case under any such law, or the consent by the Issuer
to the appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Issuer or for any
substantial part of the Indenture Trust Estate, or the making by the Issuer of
any general assignment for the benefit of creditors, or the failure by the
Issuer generally to pay its debts as such debts become due, or the taking of
action by the Issuer in furtherance of any of the foregoing.
22
SECTION 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If
an Event of Default should occur and be continuing, then and in every such case
the Indenture Trustee or the Noteholders of Notes representing not less than a
majority of the Outstanding Amount of the Notes may declare all the Notes to be
immediately due and payable, by a notice in writing to the Issuer (and to the
Indenture Trustee if given by Noteholders), and upon any such declaration the
unpaid principal amount of such Notes, together with accrued and unpaid interest
thereon through the date of acceleration, shall become immediately due and
payable, subject, however, to Section 5.4 of this Indenture.
At any time after such declaration of acceleration of maturity has
been made and before a judgment or decree for payment of the money due has been
obtained by the Indenture Trustee as hereinafter in this Article V provided, the
Noteholders of Notes representing a majority of the Outstanding Amount of the
Notes, by written notice to the Issuer and the Indenture Trustee, may rescind
and annul such declaration and its consequences if:
(i) the Issuer has paid or deposited with the Indenture Trustee a
sum sufficient to pay:
(a) all payments of principal of and interest on all Notes and
all other amounts that would then be due hereunder or upon such Notes
if the Event of Default giving rise to such acceleration had not
occurred; and
(b) all sums paid or advanced by the Indenture Trustee hereunder
and the reasonable compensation, expenses, disbursements and advances
of the Indenture Trustee and its agents and counsel; and
(ii) all Events of Default, other than the nonpayment of the
principal of the Notes that has become due solely by such acceleration, have
been cured or waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any
right consequent thereto.
SECTION 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
INDENTURE TRUSTEE. The Issuer covenants that if (i) default is made in the
payment of any interest on any Note when the same becomes due and payable, and
such default continues for a period of five days, or (ii) default is made in the
payment of the principal of any Note when the same becomes due and payable at
the related Note Final Maturity Date, the Issuer shall, upon demand of the
Indenture Trustee, pay to it, for the benefit of the Noteholders, the whole
amount then due and payable on such Notes for principal and interest, with
interest upon the overdue principal, and, to the extent payment at such rate of
interest shall be legally enforceable, upon overdue installments of interest, at
the rate specified in Section 2.7 and in addition thereto such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Indenture
Trustee and its agents and counsel.
23
(a) In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Indenture Trustee, in its own name and as trustee of an express
trust, may institute a Proceeding for the collection of the sums so due and
unpaid, and may prosecute such Proceeding to judgment or final decree, and may
enforce the same against the Issuer or other obligor upon such Notes and collect
in the manner provided by law out of the property of the Issuer or other obligor
upon such Notes, wherever situated, the moneys adjudged or decreed to be
payable.
(b) If an Event of Default occurs and is continuing, the Indenture Trustee
may, as more particularly provided in Section 5.4, in its discretion, proceed to
protect and enforce its rights and the rights of the Noteholders, by such
appropriate Proceedings as the Indenture Trustee shall deem most effective to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy or legal or equitable
right vested in the Indenture Trustee by this Indenture or by law.
(c) In case there shall be pending, relative to the Issuer or any other
obligor upon the Notes or any Person having or claiming an ownership interest in
the Indenture Trust Estate, Proceedings under Title 11 of the United States Code
or any other applicable Federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor or Person,
or in case of any other, comparable judicial Proceedings relative to the Issuer
or other obligor upon the Notes, or to the creditors or property of the Issuer
or such other obligor, the Indenture Trustee, irrespective of whether the
principal of any Notes shall then be due and payable, as therein expressed or by
declaration or otherwise and irrespective of whether the Indenture Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Notes and to file such
other papers or documents as may be necessary or advisable in order to have the
claims of the Indenture Trustee (including any claim for reasonable compensation
to the Indenture Trustee and each predecessor Indenture Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all expenses
and liabilities incurred, and all advances made, by the Indenture Trustee and
each predecessor Indenture Trustee, except as a result of negligence or bad
faith) and of the Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to vote
on behalf of the Noteholders in any election of a trustee, a standby trustee or
Person performing similar functions in any such Proceedings;
(iii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute all amounts received with
respect to the claims of the Noteholders and of the Indenture Trustee on their
behalf; and
24
(iv) to file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Indenture
Trustee or the Noteholders allowed in any judicial proceedings relative to the
Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar
official in any such Proceeding is hereby authorized by each of such Noteholders
to make payments to the Indenture Trustee, and, in the event that the Indenture
Trustee shall consent to the making of payments directly to such Noteholders, to
pay to the Indenture Trustee such amounts as shall be sufficient to cover
reasonable compensation to the Indenture Trustee, each predecessor Indenture
Trustee and their respective agents, attorneys and counsel, and all other
expenses and liabilities incurred, and all advances made, by the Indenture
Trustee and each predecessor Indenture Trustee except as a result of negligence
or bad faith.
(d) Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Noteholder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(e) All rights of action and of asserting claims under this Indenture, or
under any of the Notes, may be enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof in any trial or other
Proceedings relative thereto, and any such action or Proceedings instituted by
the Indenture Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Indenture Trustee, each predecessor
Indenture Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Noteholders.
(f) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Noteholders, and it shall not be necessary to make any
Noteholder a party to any such Proceedings.
SECTION 5.4 REMEDIES; PRIORITIES. If an Event of Default shall have
occurred and be continuing, the Indenture Trustee may do one or more of the
following (subject to Section 5.5):
(a) (i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the Notes or
under this Indenture with respect thereto, whether by declaration or otherwise,
enforce any judgment obtained, and collect from the Issuer and any other obligor
upon such Notes moneys adjudged due;
(ii) institute Proceedings from time to time for the complete or
partial foreclosure of this Indenture, with respect to the Indenture Trust
Estate;
25
(iii) exercise any remedies of a secured party under the UCC with
respect to the Trust Estate and take any other appropriate action to protect and
enforce the rights and remedies of the Indenture Trustee and the Noteholders;
(iv) sell the Indenture Trust Estate or any portion thereof or
rights or interest therein, at one or more public or private sales called and
conducted in any manner permitted by law; and/or
(v) elect to have the Eligible Lender Trustee maintain ownership
of the Trust Student Loans and continue to apply collections with respect to the
Trust Student Loans as if there had been no declaration of acceleration;
PROVIDED, HOWEVER, that the Indenture Trustee may not sell or otherwise
liquidate the Indenture Trust Estate following an Event of Default, other than
an Event of Default described in Section 5.1(i) or (ii) with respect to the
Class A Notes, unless (A) the Noteholders of 100% of the Outstanding Amount of
the Class A Notes consent thereto, (B) the proceeds of such sale or liquidation
distributable to the Class A Noteholders are sufficient to discharge in full all
amounts then due and unpaid upon such Class A Notes for principal and interest
or (C) the Indenture Trustee determines that the Indenture Trust Estate will not
continue to provide sufficient funds for the payment of principal of and
interest on the Class A Notes as would have become due if the Class A Notes had
not been declared due and payable, and the Indenture Trustee obtains the consent
of Noteholders of 66-2/3% of the Outstanding Amount of the Class A Notes;
PROVIDED, FURTHER, that the Indenture Trustee may not sell or otherwise
liquidate the Indenture Trust Estate following an Event of Default, other than
an Event of Default described in Section 5.1(i) or (ii) with respect to the
Class A Notes, unless (D) the proceeds of such sale or liquidation distributable
to the Class B Noteholders plus the proceeds of the sale or liquidation of the
Trust Estate distributable to the Class B Noteholders are sufficient to pay to
the Class B Noteholders the outstanding principal plus accrued and unpaid
interest thereon or (E) after receipt of notice from the Eligible Lender Trustee
that the proceeds of such sale or liquidation distributable to the Class B
Noteholders plus the proceeds of the sale or liquidation of the Trust Estate
distributable to the Class B Noteholders would not be sufficient to pay to the
Class B Noteholders the outstanding principal plus accrued and unpaid interest
thereon, the Class B Noteholders of at least a majority of the principal amount
of the Class B Notes consent thereto. In determining such sufficiency or
insufficiency with respect to clauses (B), (C), (D) and (E), the Indenture
Trustee may, but need not, obtain and rely upon an opinion of an Independent
investment banking or accounting firm of national reputation as to the
feasibility of such proposed action and as to the sufficiency of the Indenture
Trust Estate and/or Trust Estate, as applicable, for such purpose.
(b) Notwithstanding the provisions of Section 8.2, following the
occurrence and during the continuation of an Event of Default specified in
Section 5.1(a), 5.01(b), 5.01(d) or 5.01(e) which has resulted in an
acceleration of the Notes, if the Indenture Trustee collects any money or
property, it shall pay out the money or property (and other amounts including
amounts, if any, held on deposit in each of the Trust Accounts) held as
Collateral for the benefit of the Noteholders, net of liquidation costs
associated with the sale of the assets of the Trust, in the following order:
FIRST: to the applicable Noteholders of each class of Reset Rate
Notes then bearing interest at a fixed rate, the amount, if any, on deposit in
the Accumulation Account
26
related to such class of Reset Rate Notes (excluding any Investment Earnings
thereon) in reduction of the Outstanding Amount of each such class of Reset Rate
Notes to zero;
SECOND: to the Indenture Trustee for amounts due under Section 6.7;
THIRD: to the Servicer for due and unpaid Primary Servicing Fees;
FOURTH: to the Administrator, any due and unpaid Administration Fees;
FIFTH: pro rata, based on the Outstanding Amount of the Class A Notes
and, if applicable, the amount of the any Swap Payments and Swap Termination
Payments due and payable by the Issuer to each Swap Counterparty under this
clause FIFTH:
A: to the Class A Noteholders, for amounts due and unpaid on the
Class A Notes for interest at the applicable Note Rate, ratably,
without preference or priority of any kind, according to the amounts
due and payable on the Class A Notes for such interest; and
B: if one or more Swap Agreements are then in effect, to each
Swap Counterparty, the amount of any Swap Payments due and payable
by the Issuer; and
C: if one or more Swap Agreements are then in effect, to the Swap
Counterparties, the amount of any Swap Termination Payments due to
the Swap Counterparty due to a Swap Termination Event that is
specified in the related Swap Agreement as being payable pari passu
with Swap Payments;
SIXTH: to the Class A Noteholders, ratably without preference or
priority of any kind, an amount sufficient to reduce the respective Outstanding
Amounts of the Class A Notes to zero;
SEVENTH: to the Class B Noteholders for amounts due and unpaid on the
Class B Notes for interest at the Class B Note Rate, ratably, without preference
or priority of any kind, according to the amounts due and payable on the Class B
Notes for such interest;
EIGHTH: to the Class B Noteholders, ratably without preference or
priority of any kind, an amount sufficient to reduce the Outstanding Amount of
the Class B Notes to zero;
NINTH: to the Servicer, for any unpaid Carryover Servicing Fees;
TENTH: to any Swap Counterparties, pro rata, the amount of any Swap
Termination Payments due to such Swap Counterparties by the Issuer and not
payable in clause FIFTH above;
ELEVENTH: to the Remarketing Agents, any due and unpaid Remarketing
Fees payable by the Issuer to the extent not previously paid from amounts on
deposit in the Remarketing Fee Account;
27
TWELFTH: sequentially, first to the to the Remarketing Agents, and
second to the Administrator for any advances made on behalf of the Issuer, in
each case, for payment of certain costs and expenses as set forth in Section 3
of the Remarketing Agreement in connection with the remarketing of a class of
Reset Rate Notes not previously reimbursed by the Issuer;
THIRTEENTH: to the Excess Distribution Certificateholder, any
remaining funds.
The Indenture Trustee may fix a record date and payment date for any
payment to Noteholders pursuant to this Section. At least 15 days before such
record date, the Indenture Trustee shall mail to each Noteholder and the Issuer
a notice that states the record date, the payment date and the amount to be
paid.
SECTION 5.5 OPTIONAL PRESERVATION OF THE TRUST STUDENT LOANS. If the
Notes have been declared to be due and payable under Section 5.2 following an
Event of Default and such declaration and its consequences have not been
rescinded and annulled, the Indenture Trustee may, but need not, elect to
maintain possession of the Indenture Trust Estate. It is the desire of the
parties hereto and the Noteholders that there be at all times sufficient funds
for the payment of principal of and interest on the Notes, and the Indenture
Trustee shall take such desire into account when determining whether or not to
maintain possession of the Indenture Trust Estate. In determining whether to
maintain possession of the Indenture Trust Estate, the Indenture Trustee may,
but need not, obtain and rely upon an opinion of an Independent investment
banking or accounting firm of national reputation as to the feasibility of such
proposed action and as to the sufficiency of the Indenture Trust Estate for such
purpose.
SECTION 5.6 LIMITATION OF SUITS. No Noteholder shall have any right
to institute any Proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
(i) such Noteholder has previously given written notice to the
Indenture Trustee of a continuing Event of Default;
(ii) the Noteholders of not less than 25% of the Outstanding Amount
of the Notes have made written request to the Indenture Trustee to institute
such Proceeding in respect of such Event of Default in its own name as Indenture
Trustee hereunder;
(iii) such Noteholder or Noteholders have offered to the Indenture
Trustee reasonable indemnity against the costs, expenses and liabilities to be
incurred in complying with such request;
(iv) the Indenture Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute such Proceeding;
and
(v) no direction inconsistent with such written request has been
given to the Indenture Trustee during such 60-day period by the Noteholders of a
majority of the Outstanding Amount of the Notes;
28
it being understood and intended that no one or more Noteholders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this indenture to affect, disturb or prejudice the rights of any
other Noteholders or to obtain or to seek to obtain priority or preference over
any other Noteholders or to enforce any right under this Indenture, except in
the manner herein provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Noteholders, each
representing less than a majority of the Outstanding Amount of the Notes, the
Indenture Trustee in its sole discretion may determine what action, if any,
shall be taken, notwithstanding any other provisions of this Indenture.
SECTION 5.7 UNCONDITIONAL RIGHTS OF NOTEHOLDERS TO RECEIVE PRINCIPAL
AND INTEREST. Notwithstanding any other provisions in this Indenture, any
Noteholder shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest on such Note on or after the respective
due dates thereof expressed in such Note or in this Indenture (or, in the case
of redemption, on or after the Redemption Date) and to institute suit for the
enforcement of any such payment, and such right shall not be impaired without
the consent of such Noteholder.
SECTION 5.8 RESTORATION OF RIGHTS AND REMEDIES. If the Indenture
Trustee or any Noteholder has instituted any Proceeding to enforce any right or
remedy under this Indenture and such Proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Issuer, the
Indenture Trustee and the Noteholders shall, subject to any determination in
such Proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Indenture
Trustee and the Noteholders shall continue as though no such Proceeding had been
instituted.
SECTION 5.9 RIGHTS AND REMEDIES CUMULATIVE. No right or remedy
herein conferred upon or reserved to the Indenture Trustee or to the Noteholders
is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.10 DELAY OR OMISSION NOT A WAIVER. No delay or omission of
the Indenture Trustee or any Noteholder to exercise any right or remedy accruing
upon any Default shall impair any such right or remedy or constitute a waiver of
any such Default or an acquiescence therein. Every right and remedy given by
this Article V or by law to the Indenture Trustee or to the Noteholders may be
exercised from time to time, and as often as may be deemed expedient, by the
Indenture Trustee or by the Noteholders, as the case may be.
SECTION 5.11 CONTROL BY NOTEHOLDERS. The Noteholders of a majority of
the Outstanding Amount of the Notes shall have the right to direct the time,
method and place of
29
conducting any Proceeding for any remedy available to the Indenture Trustee with
respect to the Notes or exercising any trust or power conferred on the Indenture
Trustee; provided that
(i) such direction shall not be in conflict with any rule of law
or with this Indenture;
(ii) subject to the express terms of Section 5.4, any direction to
the Indenture Trustee to sell or liquidate the Indenture Trust Estate shall be
by the Noteholders of not less than 100% of the Outstanding Amount of the Notes;
(iii) if the conditions set forth in Section 5.5 have been satisfied
and the Indenture Trustee elects to retain the Indenture Trust Estate pursuant
to such Section, then any direction to the Indenture Trustee by Noteholders of
less than 100% of the Outstanding Amount of the Notes to sell or liquidate the
Indenture Trust Estate shall be of no force and effect; and
(iv) the Indenture Trustee may take any other action deemed proper
by the Indenture Trustee that is not inconsistent with such direction;
PROVIDED, HOWEVER, that, subject to Section 6.1, the Indenture Trustee need not
take any action that it determines might involve it in liability or might
materially adversely affect the rights of any Noteholders not consenting to such
action.
SECTION 5.12 WAIVER OF PAST DEFAULTS. Prior to the time a judgment or
decree for payment of money due has been obtained as described in Section 5.2,
the Noteholders of not less than a majority of the Outstanding Amount of the
Notes may waive any past Default and its consequences except a Default (a) in
payment when due of principal of or interest on any of the Notes or (b) in
respect of a covenant or provision hereof which cannot be modified or amended
without the consent of each Noteholder. In the case of any such waiver, the
Issuer, the Indenture Trustee and the Noteholders shall be restored to their
former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereto.
Upon any such waiver, such Default shall cease to exist and be deemed
to have been cured and not to have occurred for every purpose of this Indenture;
but no such waiver shall extend to any subsequent or other Default or impair any
right consequent thereto.
SECTION 5.13 UNDERTAKING FOR COSTS. All parties to this Indenture
agree, and each Noteholder by such Noteholder's acceptance of any Note shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the Indenture Trustee for any action taken, suffered or omitted by it as
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to (a) any suit instituted by the
Indenture Trustee, (b) any suit instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 10% of the
Outstanding Amount of the Notes or (c) any
30
suit Instituted by any Noteholder for the enforcement of the payment of
principal of or interest on any Note on or after the respective due dates
expressed in such Note and in this Indenture (or, in the case of redemption, on
or after the Redemption Date).
SECTION 5.14 WAIVER OF STAY OR EXTENSION LAWS. The Issuer covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead or in any manner whatsoever, claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, that may affect the covenants or the performance of this
Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Indenture Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 5.15 ACTION ON NOTES. The Indenture Trustee's right to seek
and recover judgment on the Notes or under this Indenture shall not be affected
by the seeking, obtaining or application of any other relief under or with
respect to this Indenture. Neither the lien of this Indenture nor any rights or
remedies of the Indenture Trustee or the Noteholders shall be impaired by the
recovery of any judgment by the Indenture Trustee against the Issuer or by the
levy of any execution under such judgment upon any portion of the Indenture
Trust Estate or upon any of the assets of the Issuer. Any money or property
collected by the Indenture Trustee shall be applied in accordance with Section
5.4(b).
SECTION 5.16 PERFORMANCE AND ENFORCEMENT OF CERTAIN OBLIGATIONS.
(a) Promptly following a request from the Indenture Trustee to do so and
at the Administrator's expense, the Issuer shall take all such lawful action as
the Indenture Trustee may request to compel or secure the performance and
observance by the Depositor, Xxxxxx Xxx, the Administrator and the Servicer, as
applicable, of each of their obligations to the Issuer, whether directly or by
assignment, under or in connection with the Sale Agreement, the Purchase
Agreement, the Administration Agreement and the Servicing Agreement,
respectively, in accordance with the terms thereof, and to exercise any and all
rights, remedies, powers and privileges lawfully available to the Issuer under
or in connection with the Sale Agreement, the Purchase Agreement, the
Administration Agreement and the Servicing Agreement, as the case may be, to the
extent and in the manner directed by the Indenture Trustee, including the
transmission of notices of default on the part of the Depositor, Xxxxxx Xxx, the
Administrator or the Servicer thereunder and the institution of legal or
administrative actions or proceedings to compel or secure performance by the
Depositor, Xxxxxx Mae, the Administrator or the Servicer of each of their
obligations under the Sale Agreement, the Purchase Agreement, the Administration
Agreement and the Servicing Agreement, respectively.
(b) If an Event of Default has occurred and is continuing, the Indenture
Trustee may, and at the written direction of the Noteholders of 66-2/3% of the
Outstanding Amount of the Notes shall, exercise all rights, remedies, powers,
privileges and claims of the Issuer against the Depositor, Xxxxxx Xxx, the
Administrator or the Servicer under or in connection with the Sale Agreement,
the Purchase Agreement, the Administration Agreement and the Servicing
Agreement, respectively, including the right or power to take any action to
compel or secure performance or observance by the Depositor, Xxxxxx Mae, the
Administrator or the Servicer of
31
each of their obligations to the Issuer thereunder, whether directly or by
assignment, and to give any consent, request, notice, direction, approval,
extension or waiver under the Sale Agreement, the Purchase Agreement, the
Administration Agreement and the Servicing Agreement, respectively, and any
right of the Issuer to take such action shall be suspended.
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1 DUTIES OF INDENTURE TRUSTEE. (a) If an Event of Default
has occurred and is continuing, the Indenture Trustee shall exercise the rights
and powers vested in it by this Indenture and use the same degree of care and
skill in their exercise as a prudent person would exercise or use under the
circumstances in the conduct such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the Indenture
Trustee; and
(ii) in the absence of bad faith on its part, the Indenture Trustee
may conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to the
Indenture Trustee and conforming to the requirements of this Indenture;
PROVIDED, HOWEVER, that the Indenture Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of this
Indenture.
(c) The Indenture Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section;
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is proved that
the Indenture Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 5.11.
(d) The Indenture Trustee shall not be liable for interest on any money
received by it except as the Indenture Trustee may agree in writing with the
Issuer.
(e) Money held in trust by the Indenture Trustee need not be segregated
from other funds except to the extent required by law or the terms of this
Indenture or the other Basic Documents.
32
(f) No provision of this Indenture shall require the Indenture Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayments
of such funds or adequate indemnity satisfactory to it against any loss,
liability or expense is not reasonably assured to it.
(g) Except as expressly provided in the Basic Documents, the Indenture
Trustee shall have no obligation to administer, service or collect the Trust
Student Loans or to maintain, monitor or otherwise supervise the administration,
servicing or collection of the Trust Student Loans.
(h) In the event that the Indenture Trustee is the Paying Agent or the
Note Registrar, the rights and protections afforded to the Indenture Trustee
pursuant to this Indenture shall also be afforded to the Indenture Trustee in
its capacity as Paying Agent or Note Registrar.
(i) Every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Indenture Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
SECTION 6.2 RIGHTS OF INDENTURE TRUSTEE. (a) The Indenture Trustee
may rely on any document believed by it to be genuine and to have been signed or
presented by the proper Person. The Indenture Trustee need not investigate any
fact or matter stated in such document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require and shall be entitled to receive an Officers' Certificate of the Issuer
and/or an Opinion of Counsel. The Indenture Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such Officers'
Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee, and the Indenture Trustee shall
not be responsible for any misconduct or negligence on the part of, or for the
supervision of, any such agent, attorney, custodian or nominee appointed with
due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Indenture Trustee's conduct does
not constitute willful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Notes shall be full and complete authorization and protection from liability
in respect to any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such counsel.
SECTION 6.3 INDIVIDUAL RIGHTS OF INDENTURE TRUSTEE. The Indenture
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may
33
otherwise deal with the Issuer or its Affiliates with the same rights it would
have if it were not Indenture Trustee. Any Paying Agent, Note Registrar,
co-registrar or co-paying agent may do the same with like rights. However, the
Indenture Trustee must comply with Sections 6.11 and 6.12.
SECTION 6.4 INDENTURE TRUSTEE'S DISCLAIMER. The Indenture Trustee
shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the
Issuer's use of the proceeds from the Notes, and it shall not be responsible for
any statement of the Issuer in the Indenture or in any document issued in
connection with the sale of the Notes or in the Notes other than the Indenture
Trustee's certificate of authentication.
SECTION 6.5 NOTICE OF DEFAULTS. (a) If a Default occurs and is
continuing and if it is either actually known or written notice of the existence
thereof has been delivered to a Responsible Officer of the Indenture Trustee,
the Indenture Trustee shall mail notice of the Default to each Noteholder within
90 days and to each Rating Agency as soon as practicable within 30 days after it
occurs. Except in the case of a Default in payment of principal of or interest
on any Note (including payments pursuant to the mandatory redemption provisions
of such Note), the Indenture Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of Noteholders. Except as provided in the first
sentence of this Section 6.5(a), in no event shall the Indenture Trustee be
deemed to have knowledge of a Default or an Event of Default.
SECTION 6.6 REPORTS BY INDENTURE TRUSTEE TO NOTEHOLDERS. The
Indenture Trustee shall deliver to each Noteholder (and to each Person who was a
Noteholder at any time during the applicable calendar year) such information as
may be required to enable such holder to prepare its Federal and state income
tax returns. Within 60 days after each December 31 beginning with the December
31 following the date of this Indenture, the Indenture Trustee shall mail to
each Noteholder a brief report as of such December 31 that complies with TIA
Section 313(a) if required by said section. The Indenture Trustee shall also
comply with TIA Section 313(b). A copy of each such report required pursuant to
TIA Section 313(a) or (b) shall, at the time of such transaction to Noteholders,
be filed by the Indenture Trustee with the Commission and with each securities
exchange, if any, upon which the Notes are listed, provided that the Issuer has
previously notified the Indenture Trustee of such listing.
SECTION 6.7 COMPENSATION AND INDEMNITY. The Issuer shall cause the
Depositor to pay to the Indenture Trustee reasonable compensation for its
services in accordance with a separate agreement between the Depositor and the
Indenture Trustee and shall cause the Depositor to reimburse the Indenture
Trustee for all reasonable out-of-pocket expenses incurred or made by it as
provided in such separate agreement. The Indenture Trustee's compensation shall
not be limited by any law on compensation of a trustee of an express trust. The
Issuer shall cause the Administrator to indemnify the Indenture Trustee and its
directors, officers, employees and agents against any and all loss, liability or
expense (including attorneys' fees) incurred by it in connection with the
administration of this trust and the performance of its duties hereunder and
under the other Basic Documents. The Indenture Trustee shall notify the Issuer
and the Administrator promptly of any claim for which it may seek indemnity.
Failure by the Indenture Trustee to so notify the Issuer and the Administrator
shall not relieve the Issuer or the
34
Administrator of its obligations hereunder and under the other Basic Documents.
The Issuer shall cause the Administrator to defend the claim and the
Administrator shall not be liable for the legal fees and expenses of the
Indenture Trustee after it has assumed such defense; PROVIDED, HOWEVER, that, in
the event that there may be a conflict between the positions of the Indenture
Trustee and the Administrator in conducting the defense of such claim, the
Indenture Trustee shall be entitled to separate counsel acceptable to it in its
sole discretion the reasonable fees and expenses of which shall be paid by the
Administrator on behalf of the Issuer. Neither the Issuer nor the Administrator
need reimburse any expense or indemnify against any loss, liability or expense
incurred by the Indenture Trustee through the Indenture Trustee's own willful
misconduct, negligence or bad faith.
The Issuer's payment obligations to the Indenture Trustee pursuant to
this Section shall survive the discharge of this Indenture. When the Indenture
Trustee incurs expenses after the occurrence of a Default specified in Section
5.1(iv) or (v) with respect to the Issuer, the expenses are intended to
constitute expenses of administration under Title 11 of the United States Code
or any other applicable Federal or state bankruptcy, insolvency or similar law.
SECTION 6.8 REPLACEMENT OF INDENTURE TRUSTEE. No resignation or
removal of the Indenture Trustee and no appointment of a successor Indenture
Trustee shall become effective until the acceptance of appointment by the
successor Indenture Trustee pursuant to this Section 6.8. The Indenture Trustee
may resign at any time by so notifying the Issuer. The Noteholders of a majority
in Outstanding Amount of the Notes may remove the Indenture Trustee by so
notifying the Indenture Trustee and may appoint a successor Indenture Trustee.
The Issuer shall remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) an Insolvency Event occurs with respect to the Indenture
Trustee;
(iii) a receiver or other public officer takes charge of the
Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of acting.
If the Indenture Trustee resigns or is removed or if a vacancy exists
in the office of Indenture Trustee for any reason (the Indenture Trustee in such
event being referred to herein as the retiring Indenture Trustee), the Issuer
shall promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written acceptance of
its appointment to the retiring Indenture Trustee and to the Issuer. Thereupon
the resignation or removal of the retiring Indenture Trustee shall become
effective, and the successor Indenture Trustee shall have all the rights, powers
and duties of the Indenture Trustee under this Indenture. The successor
Indenture Trustee shall mail a notice of its succession to Noteholders. The
retiring Indenture Trustee shall promptly transfer all property held by it as
Indenture Trustee to the successor Indenture Trustee.
35
If a successor Indenture Trustee does not take office within 60 days
after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuer or the Noteholders of a majority in Outstanding
Amount of the Notes may petition any court of competent jurisdiction for the
appointment of a successor Indenture Trustee. The successor Indenture Trustee
shall give notice of its appointment as successor Indenture Trustee to the
Rating Agencies.
If the Indenture Trustee fails to comply with Section 6.11, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Indenture Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to
this Section, the Issuer's and the Administrator's obligations under Section 6.7
shall continue for the benefit of the retiring Indenture Trustee.
SECTION 6.9 SUCCESSOR INDENTURE TRUSTEE BY MERGER. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation
or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Indenture Trustee, provided that
such corporation or banking association shall be otherwise qualified and
eligible under Section 6.11. The Indenture Trustee shall provide the Rating
Agencies prior written notice of any such transaction.
In case at the time such successor or successors by merger, conversion
or consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture any of the Notes shall have been authenticated but not delivered,
any such successor to the Indenture Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Notes or in this Indenture
provided that the certificate of the Indenture Trustee shall have.
SECTION 6.10 APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
(a) Notwithstanding any other provisions of this Indenture, at any time,
for the purpose of meeting any legal requirement of any jurisdiction in which
any part of the Indenture Trust Estate may at the time be located, the Indenture
Trustee shall have the power and may execute and deliver all instruments to
appoint one or more Persons to act as a co-trustee or co-trustees, or separate
trustee or separate trustees, of all or any part of the Indenture Trust Estate,
and to vest in such Person or Persons, in such capacity and for the benefit of
the Noteholders, such title to the Indenture Trust Estate, or any part hereof,
and, subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Indenture Trustee may consider necessary
or desirable. No such appointment shall relieve the Indenture Trustee of its
obligations hereunder. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
6.11 and no notice to Noteholders of the appointment of any co-trustee or
separate trustee shall be required under Section 6.8 hereof.
36
(b) Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed upon and
exercised or performed by the Indenture Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or co-trustee
is not authorized to act separately without the Indenture Trustee joining in
such act), except to the extent that under any law of any jurisdiction in which
any particular act or acts are to be performed the Indenture Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to the
Indenture Trust Estate or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason of
any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the resignation
of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, the Indenture Trustee. Every such instrument shall be filed with
the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee, its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this Indenture on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all its
estates, properties, rights, remedies and trusts shall vest in and be exercised
by the Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
SECTION 6.11 ELIGIBILITY; DISQUALIFICATION. The Indenture Trustee
shall at all times satisfy the requirements of TIA Section 310(a) and the
requirements of an "eligible lender" under 20 USC Section 1085(d). The Indenture
Trustee shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition and it shall have
a long-term senior unsecured debt rating of not less than investment grade by
each of the Rating Agencies. The Indenture Trustee shall comply with TIA Section
310(b), including the optional provision permitted by the second sentence of TIA
Section 310(b)(9); PROVIDED, HOWEVER, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which
37
other securities of the Issuer are outstanding if the requirements for such
exclusion set forth in TIA Section 310(b)(1) are met.
SECTION 6.12 PREFERENTIAL COLLECTION OF CLAIMS AGAINST ISSUER. The
Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). An Indenture Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1 ISSUER TO FURNISH INDENTURE TRUSTEE NAMES AND ADDRESSES
OF NOTEHOLDERS. The Issuer will furnish or cause to be furnished to the
Indenture Trustee (a) not more than five days after the earlier of (i) each
Record Date and (ii) three months after the last Record Date, a list, in such
form as the Indenture Trustee may reasonably require, of the names and addresses
of the Noteholders as of such Record Date, (b) at such other times as the
Indenture Trustee may request in writing, within 30 days after receipt by the
Issuer of any such request, a list of similar form and content as of a date not
more than 10 days prior to the time such list is furnished; PROVIDED, HOWEVER,
that so long as the Indenture Trustee is the Note Registrar, no such list shall
be required to be furnished.
SECTION 7.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO
NOTEHOLDERS. The Indenture Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Noteholders contained in
the most recent list furnished to the Indenture Trustee as provided in Section
7.1 and the names and addresses of Noteholders received by the Indenture Trustee
in its capacity as Note Registrar. The Indenture Trustee may destroy any list
furnished to it as provided in such Section 7.1 upon receipt of a new list so
furnished.
(a) Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Indenture or under the
Notes. Upon receipt by the Indenture Trustee of any request by three or more
Noteholders or by one or more holders of Notes evidencing not less than 25% of
the Outstanding Amount of the Notes to receive a copy of the current list of
Noteholders (whether or not made pursuant to TIA Section 312(b)), the Indenture
Trustee shall promptly notify the Administrator thereof by providing to the
Administrator a copy of such request and a copy of the list of Noteholders
produced in response thereto.
(b) The Issuer, the Indenture Trustee and the Note Registrar shall have
the protection of TIA Section 312(c).
(c) On each Distribution Date the Indenture Trustee shall provide to each
Noteholder of record as of the related Record Date the information provided by
the Administrator to the Indenture Trustee on the related Determination Date
pursuant to Section 2.9 of the Administration Agreement.
(d) The Indenture Trustee shall furnish to the Noteholders promptly upon
receipt of a written request therefor, duplicates or copies of all reports,
notices, requests, demands,
38
certificates, financial statements and any other instruments furnished to the
Indenture Trustee under the Basic Documents. The Indenture Trustee shall furnish
to the Noteholders promptly upon receipt thereof from the Eligible Lender
Trustee notice of any amendment of the Administration Agreement pursuant to
Section 8.5 of the Administration Agreement.
SECTION 7.3 REPORTS BY ISSUER. (a) The Issuer shall:
(i) file with the Indenture Trustee, within 15 days after the
Issuer is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Issuer may be required to file with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee and the Commission in
accordance with rules and regulations prescribed from time to time by the
Commission such additional information, documents and reports with respect to
compliance by the Issuer with the conditions and covenants of this Indenture as
may be required from time to time by such rules and regulations; and
(iii) supply to the Indenture Trustee (and the Indenture Trustee
shall transmit by mail to all Noteholders described in TIA Section 313(c)) such
summaries of any information, documents and reports required to be filed by the
Issuer pursuant to clauses (i) and (ii) of this Section 7.3(a) as may be
required by rules and regulations prescribed from time to time by the
Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the Issuer
shall end on December 31 of each year.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 COLLECTION OF MONEY. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all money and other property payable to
or receivable by the Indenture Trustee pursuant to this Indenture. The Indenture
Trustee shall apply all such money received by it on behalf of Noteholders
pursuant to the Administration Agreement as provided in this Indenture. Except
as otherwise expressly provided in this Indenture, if any default occurs in the
making of any payment or performance under any agreement or instrument that is
part of the Indenture Trust Estate, the Indenture Trustee may take such action
as may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate Proceedings. Any such action shall be
without prejudice to any right to claim a Default under this Indenture and any
right to proceed thereafter as provided in Article V.
SECTION 8.2 TRUST ACCOUNTS. (a) On or prior to the Closing Date, the
Issuer shall cause the Administrator to establish and maintain, in the name of
the Indenture Trustee, for
39
the benefit of the Noteholders, the Trust Accounts as provided in Section 2.3 of
the Administration Agreement.
(b) On or before the Business Day preceding each Distribution Date, all
Available Funds with respect to the preceding Collection Period will be
deposited in the Collection Account as provided in Section 2.4 of the
Administration Agreement. On or before each Distribution Date, the Indenture
Trustee (or any other Paying Agent) shall make the deposits and distributions as
provided in Sections 2.7, 2.8.1 and 2.8.2 of the Administration Agreement.
SECTION 8.3 GENERAL PROVISIONS REGARDING ACCOUNTS. (a) So long as no
Default shall have occurred and be continuing, all or a portion of the funds in
the Trust Accounts shall be invested in Eligible Investments and reinvested by
the Indenture Trustee upon Issuer Order, subject to the provisions of Section
2.3B of the Administration Agreement. All income or other gain from investments
of moneys deposited in the Trust Accounts (except for the Capitalized Interest
Account, if any) shall be deposited by the Indenture Trustee in the Collection
Account, and any loss resulting from such investments shall be charged to such
Trust Account. All income or other gain from investments of moneys deposited in
the Capitalized Interest Account, if any, shall be deposited by the Indenture
Trustee in the Capitalized Interest Account, and any loss resulting from such
investments shall be charged to the Capitalized Interest Account. The Issuer
will not direct the Indenture Trustee to make any investment of any funds or to
sell any investment held in any of the Trust Accounts unless the security
interest granted and perfected in such account will continue to be perfected in
such investment or the proceeds of such sale, in either case without any further
action by any Person, and, in connection with any direction to the Indenture
Trustee to make any such investment or sale, if requested by the Indenture
Trustee, the Issuer shall deliver to the Indenture Trustee an Opinion of
Counsel, acceptable to the Indenture Trustee, to such effect.
(b) Subject to Section 6.1(c), the Indenture Trustee shall not in any way
be held liable for the selection of Eligible Investments or by reason of any
insufficiency in any of the Trust Accounts resulting from any loss on any
Eligible Investment included therein except for losses attributable to the
Indenture Trustee's failure to make payments on such Eligible Investments issued
by the Indenture Trustee, in its commercial capacity as principal obligor and
not as trustee, in accordance with their terms.
(c) If (i) the Issuer shall have failed to give investment directions for
any funds on deposit in the Trust Accounts to the Indenture Trustee by 10:00
a.m. Eastern Time (or such other time as may be agreed by the Issuer and
Indenture Trustee) on any Business Day; or (ii) a Default shall have occurred
and be continuing with respect to the Notes but the Notes shall not have been
declared due and payable pursuant to Section 5.2, or, if such Notes shall have
been declared due and payable following an Event of Default, amounts collected
or receivable from the Indenture Trust Estate are being applied in accordance
with Section 5.5 as if there had not been such a declaration; then the Indenture
Trustee shall invest and reinvest funds in the Trust Accounts in the Eligible
Investments described in clause (d) of the definition thereof.
SECTION 8.4 RELEASE OF INDENTURE TRUST ESTATE. (a) Subject to the
payment of its fees and expenses pursuant to Section 6.7, the Indenture Trustee
may, and when required by the provisions of this Indenture shall, execute
instruments to release property from the lien of this
40
Indenture, or convey the Indenture Trustee's interest in the same, in a manner
and under circumstances that are not inconsistent with the provisions of this
Indenture. No party relying upon an instrument executed by the Indenture Trustee
as provided in this Article VIII shall be bound to ascertain the Indenture
Trustee's authority, inquire into the satisfaction of any conditions precedent
or see to the application of any moneys.
(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding and all sums due the Indenture Trustee pursuant to Section 6.7 have
been paid, release any remaining portion of the Indenture Trust Estate that
secured the Notes from the lien of this Indenture and release to the Issuer or
any other Person entitled thereto any funds then on deposit in the Trust
Accounts. The Indenture Trustee shall release property from the lien of this
Indenture pursuant to this Section 8.4(b) only upon receipt of an Issuer Request
accompanied by an Officers' Certificate of the Issuer, an Opinion of Counsel and
(if required by the TIA) Independent Certificates in accordance with TIA
Sections 314(c) and 314(d)(1) meeting the applicable requirements of Section
11.1.
(c) Each Noteholder, by the acceptance of a Note, acknowledges that from
time to time the Indenture Trustee shall release the lien of this Indenture on
any Trust Student Loan to be sold to (i) the Depositor in accordance with
Section 6 of the Sale Agreement, (ii) to the Servicer in accordance with Section
3.5 of the Servicing Agreement and (iii) to Xxxxxx Xxx in accordance with
Section 6 of the Purchase Agreement, and each Noteholder, by the acceptance of a
Note, consents to any such release.
SECTION 8.5 OPINION OF COUNSEL. The Indenture Trustee shall receive
at least seven days' notice when requested by the Issuer to take any action
pursuant to Section 8.4(a), accompanied by copies of any instruments involved,
and the Indenture Trustee shall also require, except in connection with any
action contemplated by Section 8.4(c), as a condition to such action, an Opinion
of Counsel, in form and substance satisfactory to the Indenture Trustee, stating
the legal effect of any such action, outlining the steps required to complete
the same, and concluding that all conditions precedent to the taking of such
action have been complied with and such action will not materially and adversely
impair the security for the Notes or the rights of the Noteholders in
contravention of the provisions of this Indenture; PROVIDED, HOWEVER, that such
Opinion of Counsel shall not be required to express an opinion as to the fair
value of the Indenture Trust Estate. Counsel rendering any such opinion may
rely, without independent investigation, on the accuracy and validity of any
certificate or other instrument delivered to the Indenture Trustee in connection
with any such action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF NOTEHOLDERS.
Without the consent of any Noteholders but with prior notice to the Rating
Agencies, the Issuer and the Indenture Trustee, when authorized by an Issuer
Order, at any time and from time to time, may enter into one or more indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as in force at the date of the execution thereof), in form
satisfactory to the Indenture Trustee, for any of the following purposes:
41
(i) to correct or amplify the description of any property at any
time subject to the lien of this Indenture, or better to assure, convey and
confirm unto the Indenture Trustee any property subject or required to be
subjected to the lien of this Indenture, or to subject to the lien of this
Indenture additional property;
(ii) to evidence the succession, in compliance with the applicable
provisions hereof, of another person to the Issuer, and the assumption by any
such successor of the covenants of the Issuer herein and in the Notes contained;
(iii) to add to the covenants of the Issuer, for the benefit of the
Noteholders, or to surrender any right or power herein conferred upon the
Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property
to the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture which may be inconsistent with any other
provision herein or in any supplemental indenture or to make any other
provisions with respect to matters or questions arising under this Indenture or
in any supplemental indenture; provided that such action shall not materially
adversely affect the interests of the Noteholders;
(vi) to evidence and provide for the acceptance of the appointment
hereunder by a successor trustee with respect to the Notes and to add to or
change any of the provisions of this Indenture as shall be necessary to
facilitate the administration of the trusts hereunder by more than one trustee,
pursuant to the requirements of Article VI; or
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the qualification of
this Indenture under the TIA or under any similar Federal statute hereafter
enacted and to add to this Indenture such other provisions as may be expressly
required by the TIA.
The Indenture Trustee is hereby authorized to join in the execution of
any such supplemental indenture and to make any further appropriate agreements
and stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by an Issuer
Order, may, also without the consent of any of the Noteholders but with prior
notice to the Rating Agencies, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing in
any manner or eliminating any of the provisions of, this Indenture or of
modifying in any manner the rights of the Noteholders under this Indenture;
PROVIDED, HOWEVER, that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Noteholder.
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF NOTEHOLDERS. The
Issuer and the Indenture Trustee, when authorized by an Issuer Order, also may,
with prior notice to the Rating Agencies and with the consent of the Noteholders
of not less than a majority of the Outstanding Amount of the Notes, by Act of
such Noteholders delivered to the Issuer and the
42
Indenture Trustee, enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to, or changing in any manner or
eliminating any of the provisions of, this Indenture or of modifying in any
manner the rights of the Noteholders under this Indenture; PROVIDED, HOWEVER,
that no such supplemental indenture shall, without the consent of the Noteholder
of each Outstanding Note affected thereby:
(i) change the date of payment of any installment of principal of
or interest on any Note, or reduce the principal amount thereof, the interest
rate thereon or the Redemption Price with respect thereto, change the provisions
of this Indenture relating to the application of collections on, or the proceeds
of the sale of, the Indenture Trust Estate to payment of principal of or
interest on the Notes, or change any place of payment where, or the coin or
currency in which, any Note or the interest thereon is payable, or impair the
right to institute suit for the enforcement of the provisions of this Indenture
requiring the application of funds available therefor, as provided in Article V,
to the payment of any such amount due on the Notes on or after the respective
due dates thereof (or, in the case of redemption, on or after the Redemption
Date);
(ii) reduce the percentage of the Outstanding Amount of the Notes,
the consent of the Noteholders of which is required for any such supplemental
indenture, or the consent of the Noteholders of which is required for any waiver
of compliance with certain provisions of this Indenture or certain defaults
hereunder and their consequences provided for in this Indenture;
(iii) modify or alter the provisions of the proviso to the
definition of the term "Outstanding";
(iv) reduce the percentage of the Outstanding Amount of the Notes
required to direct the Indenture Trustee to direct the Issuer to sell or
liquidate the Indenture Trust Estate pursuant to Section 5.4;
(v) modify any provision of this Section except to increase any
percentage specified herein or to provide that certain additional provisions of
this Indenture or the other Basic Documents cannot be modified or waived without
the consent of the Noteholder of each Outstanding Note affected thereby;
(vi) modify any of the provisions of this Indenture in such manner
as to affect the calculation of the amount of any payment of interest or
principal due on any Note on any Distribution Date (including the calculation of
any of the individual components of such calculation) or to affect the rights of
the Noteholders to the benefit of any provisions for the mandatory redemption of
the Notes contained herein; or
(vii) permit the creation of any lien ranking prior to or on a
parity with the lien of this Indenture with respect to any part of the Indenture
Trust Estate or, except as otherwise permitted or contemplated herein, terminate
the lien of this Indenture on any property at any time subject hereto or deprive
any Noteholder of any Note of the security provided by the lien of this
Indenture.
43
It shall not be necessary for any Act of Noteholders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the Issuer and the Indenture Trustee
of any supplemental indenture pursuant to this Section, the Indenture Trustee
shall mail to the Noteholders of the Notes to which such amendment or
supplemental indenture relates a notice setting forth in general terms the
substance of such supplemental indenture. Any failure of the Indenture Trustee
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
SECTION 9.3 EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modifications thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive, and
subject to Sections 6.1 and 6.2, shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Indenture Trustee may, but shall
not be obligated to, enter into any such supplemental indenture that affects the
Indenture Trustee's own rights, duties, liabilities or immunities under this
Indenture or otherwise.
SECTION 9.4 EFFECT OF SUPPLEMENTAL INDENTURE. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith with
respect to the Notes affected thereby, and the respective rights, limitations of
rights, obligations, duties, liabilities and immunities under this Indenture of
the Indenture Trustee, the Issuer and the Noteholders shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
SECTION 9.5 CONFORMITY WITH TRUST INDENTURE ACT. Every amendment of
this Indenture and every supplemental indenture executed pursuant to this
Article IX shall conform to the requirements of the Trust Indenture Act as then
in effect so long as this Indenture shall then be qualified under the Trust
Indenture Act.
SECTION 9.6 REFERENCE IN NOTES TO SUPPLEMENTAL INDENTURES. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the Indenture
Trustee shall so determine, new Notes so modified as to conform, in the opinion
of the Indenture Trustee and the Issuer, to any such supplemental indenture may
be prepared and executed by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for Outstanding Notes.
44
ARTICLE X
REDEMPTION OF NOTES
SECTION 10.1 REDEMPTION. The Indenture Trustee shall, upon receipt of
written notice from the Servicer pursuant to Section 6.1 of the Administration
Agreement, give prompt written notice to the Noteholders of the occurrence of
such event. In the event that the assets of the Trust are sold pursuant to
Section 6.1 of the Administration Agreement, that portion of the amounts on
deposit in the Trust Accounts to be distributed to the Noteholders shall be paid
to the Noteholders as provided in Sections 2.7 and 2.8. If amounts are to be
paid to Noteholders pursuant to this Section 10.1, the notice of such event from
the Indenture Trustee to the Noteholders shall include notice of the redemption
of Notes by application of such amounts on the next Distribution Date which is
not sooner than 15 days after the date of such notice (the "Redemption Date"),
whereupon all such amounts shall be payable on the Redemption Date.
SECTION 10.2 FORM OF REDEMPTION NOTICE. Notice of redemption under
Section 10.1 shall be given by the Indenture Trustee by first-class mail,
postage prepaid, or by facsimile, mailed or transmitted on or prior to the
applicable Redemption Date to each Noteholder, as of the close of business on
the Record Date preceding the applicable Redemption Date, at such Noteholder's
address or facsimile number appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price; and
(iii) the place where such Notes are to be surrendered for payment
of the Redemption Price (which shall be the office or agency of the Issuer to be
maintained as provided in Section 3.2).
Notice of redemption of the Notes shall be given by the Indenture
Trustee in the name and at the expense of the Issuer. Failure to give notice of
redemption, or any defect therein, to any Noteholder of any Note shall not
impair or affect the validity of the redemption of any other Note.
SECTION 10.3 NOTES PAYABLE ON REDEMPTION DATE. The Notes or portions
thereof to be redeemed shall on the Redemption Date become due and payable at
the Redemption Price and (unless the Issuer shall default in the payment of the
Redemption Price) no interest shall accrue on the Redemption Price for any
period after the date to which accrued interest is calculated for purposes of
calculating the Redemption Price.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 COMPLIANCE CERTIFICATES AND OPINIONS, ETC. Upon any
application or request by the Issuer to the Indenture Trustee to take any action
under any
45
provision of this Indenture, the Issuer shall furnish to the Indenture Trustee
and the Rating Agencies (i) an Officers' Certificate of the Issuer stating that
all conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with, (ii) an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with and (iii) (if required by the TIA) an Independent Certificate from
a firm of certified public accountants meeting the applicable requirements of
this Section, except that, in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this indenture shall include:
(i) a statement that each signatory of such certificate or opinion
has read or has caused to be read such covenant or condition and the definitions
herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory, such
signatory has made such examination or investigation as is necessary to enable
such signatory to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other property or
securities with the Indenture Trustee that is to be made the basis for the
release of any property or securities subject to the lien of this Indenture, the
Issuer shall, in addition to any obligation imposed in Section 11.1(a) or
elsewhere in this Indenture, furnish to the Indenture Trustee and the Rating
Agencies an Officers' Certificate of the Issuer certifying or stating the
opinion of each person signing such certificate as to the fair value (within 90
days of such deposit) to the Issuer of the Collateral or other property or
securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the Indenture
Trustee and the Rating Agencies an Officers' Certificate of the Issuer
certifying or stating the opinion of any signer thereof as to the matters
described in clause (i) above, the Issuer shall also deliver to the Indenture
Trustee an Independent Certificate as to the same matters, if the fair value to
the Issuer of the securities to be so deposited and of all other such securities
made the basis of any such withdrawal or release since the commencement of the
then-current fiscal year of the Issuer, as set forth in the certificates
delivered pursuant to clause (i) above and this clause (ii), is 10% or more of
the Outstanding Amount of the Notes, but such a certificate need not be
furnished with respect to any securities so deposited, if the fair value thereof
to the Issuer as set forth in the related Officers' Certificate is less than
$25,000 or less than one percent of the Outstanding Amount of the Notes.
46
(iii) Other than any property released as contemplated by clause (v)
below, whenever any property or securities are to be released from the lien of
this Indenture, the Issuer shall also furnish to the Indenture Trustee an
Officers' Certificate of the Issuer certifying or stating the opinion of each
person signing such certificate as to the fair value (within 90 days of such
release) of the property or securities proposed to be released and stating that
in the opinion of such person the proposed release will not impair the security
under this Indenture in contravention of the provisions hereof.
(iv) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officers' Certificate of the Issuer certifying or stating the opinion
of any signer thereof as to the matters described in clause (iii) above, the
Issuer shall also furnish to the Indenture Trustee an Independent Certificate as
to the same matters if the fair value of the property or securities and of all
other property, other than property as contemplated by clause (v) below, or
securities released from the lien of this Indenture since the commencement of
the then-current calendar year, as set forth in the certificates required by
clause (iii) above and this clause (iv), equals 10% or more of the Outstanding
Amount of the Notes, but such certificate need not be furnished in the case of
any release of property or securities if the fair value thereof as set forth in
the related Officers' Certificate is less than $25,000 or less than one percent
of the then Outstanding Amount of the Notes.
(v) Notwithstanding Section 2.9 or any other provision of this
Section, the Issuer may, without compliance with the requirements of the other
provisions of this Section, (A) collect, liquidate, sell or otherwise dispose of
Trust Student Loans as and to the extent permitted or required by the Basic
Documents, (B) make cash payments out of the Trust Accounts as and to the extent
permitted or required by the Basic Documents and (C) convey to the Depositor,
the Servicer or another eligible lender those specified Trust Student Loans as
and to the extent permitted or required by and in accordance with Section 8.4(c)
hereof and Section 6 of the Sale Agreement, Section 3.5 of the Servicing
Agreement or Section 3.11E of the Servicing Agreement, respectively, so long as
the Issuer shall deliver to the Indenture Trustee every six months, commencing
June 25, 2003, an Officers' Certificate of the Issuer stating that all the
dispositions of Collateral described in clauses (A), (B) or (C) above that
occurred during the immediately preceding six calendar months were in the
ordinary course of the Issuer's business and that the proceeds thereof were
applied in accordance with the Basic Documents.
SECTION 11.2 FORM OF DOCUMENTS DELIVERED TO INDENTURE TRUSTEE. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters, and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate of an Authorized Officer or
Opinion of
47
Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Servicer, the Depositor, the Issuer or the Administrator, stating that the
information with respect to such factual matters is in the possession of the
Servicer, the Depositor, the Issuer or the Administrator, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application or
at the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to affect the Indenture Trustee's right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Article VI.
SECTION 11.3 ACTS OF NOTEHOLDERS. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Noteholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Noteholders in person or by agents duly appointed in writing; and except as
herein otherwise expressly provided such action shall become effective when such
instrument or instruments are delivered to the Indenture Trustee, and, where it
is hereby expressly required, to the Issuer. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Noteholders signing such instrument or instruments. Proof
of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Section
6.1) conclusive in favor of the Indenture Trustee and the Issuer, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Noteholder of any Notes shall bind the Noteholder of
every Note issued upon registration of transfer thereof or in exchange therefor
or in lieu thereof, in respect of anything done, omitted or suffered to be done
by the Indenture Trustee or the Issuer in reliance thereon, whether or not
notation of such action is made upon such Note.
48
SECTION 11.4 NOTICES, ETC., TO INDENTURE TRUSTEE, ISSUER AND RATING
AGENCIES. Any request, demand, authorization, direction, notice, consent, waiver
or Act of Noteholders or other documents provided or permitted by this Indenture
shall be in writing and if such request, demand, authorization, direction,
notice, consent, waiver or Act of Noteholders is to be made upon, given or
furnished to or filed with:
(a) The Indenture Trustee by any Noteholder, the Servicer, the
Administrator or by the Issuer shall be sufficient for every purpose hereunder
if made, given, furnished or filed in writing to or with the Indenture Trustee
at its Corporate Trust Office with a copy to: The Bank of
New York, 0 Xxxxx
XxXxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx, 00000, Attn: Corporate Trust -
Structured Finance.
(b) The Issuer by the Indenture Trustee or by any Noteholder shall be
sufficient for every purpose hereunder if in writing and mailed, first-class,
postage prepaid, to the Issuer addressed to: SLM Student Loan Trust 2003-1, in
care of Chase Manhattan Bank USA, National Association, Christiana Center/OPS4,
000 Xxxxxxx Xxxxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000, Attention: Corporate Trust
Department; with copies to JPMorgan Chase Bank, 000 Xxxx 00xx Xxxxxx 00xx Xx.,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Structured Finance Services; and The
Student Loan Marketing Association, 00000 Xxxxxx Xxx Xxxxx, Xxxxxx, XX 00000,
Attention: Director, Corporate Finance Operations, or any other address
previously furnished in writing to the Indenture Trustee by the Issuer or the
Administrator. The Issuer shall promptly transmit any notice received by it from
the Noteholders to the Indenture Trustee.
Notices required to be given to the Rating Agencies by the Issuer, the
Indenture Trustee or the Eligible Lender Trustee shall be in writing, personally
delivered or mailed by certified mail, return receipt requested, to (i) in the
case of Moody's, at the following address: ABS Monitoring Department, 00 Xxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (ii) in the case of Standard & Poor's, at the
following address: 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention:
Asset Backed Surveillance Department, 32nd Floor, and (iii) in the case of
Fitch, at the following address: Xxx Xxxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Municipal Structured Finance Group; or as to each of the
foregoing, at such other address as shall be designated by written notice to the
other parties.
SECTION 11.5 NOTICES TO NOTEHOLDERS; WAIVER. Where this Indenture
provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Noteholder affected by such
event, at his address as it appears on the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Noteholders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Noteholder shall affect the sufficiency of such notice with
respect to other Noteholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Noteholders shall
49
be filed with the Indenture Trustee but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a
result of a strike, work stoppage or similar activity, it shall be impractical
to mail notice of any event to Noteholders when such notice is required to be
given pursuant to any provision of this Indenture, then any manner of giving
such notice as shall be satisfactory to the Indenture Trustee shall be deemed to
be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies,
failure to give such notice shall not affect any other rights or obligations
created hereunder, and shall not under any circumstance constitute a Default.
SECTION 11.6 ALTERNATE PAYMENT AND NOTICE PROVISIONS. Notwithstanding
any provision of this Indenture or any of the Notes to the contrary, the Issuer
may enter into any agreement with any Noteholder providing for a method of
payment, or notice by the Indenture Trustee or any Paying Agent to such
Noteholder, that is different from the methods provided for in this Indenture
for such payments or notices. The Issuer will furnish to the Indenture Trustee a
copy of each such agreement and the Indenture Trustee will cause payments to be
made and notices to be given in accordance with such agreements.
SECTION 11.7 CONFLICT WITH TRUST INDENTURE ACT. If any provision
hereof limits, qualifies or conflicts with another provision hereof that is
required to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such required provision shall control.
The provisions of TIA Sections 310 through 317 that impose duties on
any Person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
SECTION 11.8 EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 11.9 SUCCESSORS AND ASSIGNS. All covenants and agreements in
this Indenture and the Notes by the Issuer shall bind its successor and assigns,
whether so expressed or not. All agreements of the Indenture Trustee in this
Indenture shall bind the successors, co-trustees and agents (excluding any legal
representatives or accountants) of the Indenture Trustee.
SECTION 11.10 SEPARABILITY. In case any provision in this Indenture or
in the Notes shall be invalid, illegal or unenforceable, the validity, legality,
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
SECTION 11.11 BENEFITS OF INDENTURE. (a) Nothing in this Indenture or
in the Notes, express or implied shall give to any person, other than the
parties hereto and their successors hereunder, the Noteholders, any other party
secured hereunder, and any other Person
50
with an ownership interest in any part of the Indenture Trust Estate, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
(b) The parties to this Indenture acknowledge and agree that each Eligible
Swap Counterparty is a third party beneficiary of this Indenture to the extent
of its rights under the related Swap Agreement entered into by the Issuer from
time to time and shall be entitled to enforce such rights.
(c) The parties to this Indenture acknowledge and agree that SLM
Corporation, and any permitted transferee, if applicable, is an intended third
party beneficiary of this Indenture to the extent of its rights with respect to
the Call Option as set forth in Section 7 of Appendix A-2 hereto and shall be
entitled to enforce such rights.
SECTION 11.12 LEGAL HOLIDAYS. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the date on which nominally due, and no interest shall
accrue for the period from and after any such nominal date.
SECTION 11.13 GOVERNING LAW. THIS INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE
NEW YORK GENERAL
OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.14 COUNTERPARTS. This Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
SECTION 11.15 RECORDING OF INDENTURE. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer and at its expense accompanied by an Opinion of Counsel
(which may be counsel to the Indenture Trustee or any other counsel reasonably
acceptable to the Indenture Trustee) to the effect that such recording is
necessary either for the protection of the Noteholders or any other Person
secured hereunder or for the enforcement of any right or remedy granted to the
Indenture Trustee under this Indenture.
SECTION 11.16 TRUST OBLIGATIONS. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Depositor, the
Administrator, the Servicer, the Eligible Lender Trustee or the Indenture
Trustee on the Notes or under this Indenture or any certificate or other writing
delivered in connection herewith or therewith, against (i) the Indenture Trustee
or the Eligible Lender Trustee in its individual capacity, (ii) any owner of a
beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Eligible
Lender Trustee in its individual capacity, any holder or owner of a beneficial
interest in the Issuer, the Eligible Lender Trustee or
51
the Indenture Trustee or of any successor or assign thereof in its individual
capacity, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee and the Eligible Lender Trustee have no
such obligations in their individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity. For all purposes of
this Indenture, in the performance of any duties or obligations of the Issuer
hereunder, the Eligible Lender Trustee shall be subject to, and entitled to the
benefits of, the terms and provisions of Article VI, VII and VIII of the Trust
Agreement.
SECTION 11.17 NO PETITION. The Indenture Trustee, by entering into
this Indenture, and each Noteholder, by accepting a Note, hereby covenant and
agree that they shall not at any time institute against the Depositor or the
Issuer, or join in any institution against the Depositor or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency, receivership or liquidation
proceedings, or other proceedings under any United States Federal or state
bankruptcy or similar law in connection with any obligations relating to the
Notes, this Indenture or any of the other Basic Documents. The foregoing shall
not limit the rights of the Indenture Trustee to file any claim in, or otherwise
take any action with respect to, any insolvency proceeding that was instituted
against the Issuer by any Person other than the Indenture Trustee.
SECTION 11.18 INSPECTION. The Issuer agrees that, on reasonable prior
notice, it shall permit any representative of the Indenture Trustee, during the
Issuer's normal business hours, to examine all the books of account, records,
reports, and other papers of the Issuer, to make copies and extracts therefrom,
to cause such books to be audited by Independent certified public accountants,
and to discuss the Issuer's affairs, finances and accounts with the Issuer's
officers, employees, and Independent certified public accountants, all at such
reasonable times and as often as may be reasonably requested. The Indenture
Trustee shall and shall cause its representatives to hold in confidence all such
information obtained from such examination or inspection except to the extent
disclosure may be required by law (and all reasonable applications for
confidential treatment are unavailing) and except to the extent that the
Indenture Trustee may reasonably determine that such disclosure is consistent
with its obligations hereunder.
52
IN WITNESS WHEREOF, the Issuer, the Eligible Lender Trustee and the
Indenture Trustee have caused this Indenture to be duly executed by their
respective officers, thereunto duly authorized and duly attested, all as of the
day and year first above written.
SLM STUDENT LOAN TRUST 2003-1
By: 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
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
THE BANK OF
NEW YORK,
not in its individual capacity but solely
as Indenture Trustee
By: //s// XXXX X. XXXXXXX
Name: Xxxx X. Xxxxxxx
Title: Agent
53
AGREED TO WITH RESPECT TO ITS OBLIGATIONS AND RIGHTS AS HOLDER OF THE CALL
OPTION AS CONTAINED IN APPENDIX A-2 TO THIS INDENTURE
SLM CORPORATION
By: //s// J. XXXXX XXXXXX
Name: J. Xxxxx Xxxxxx
Title: Chief Financial Officer
54
APPENDIX A-1
TO THE INDENTURE
[Definitions and Usage to be Inserted]
MCKN DRAFT OF 1/29/03
APPENDIX A-2
TO THE INDENTURE
RESET RATE NOTE PROCEDURES
Section 1. DEFINITIONS : All terms which are defined in Appendix A-1 shall
have the same meanings in this Appendix A-2.
Section 2. INTEREST RATES; PRINCIPAL PAYMENTS: (a) The Class A-5A, Class
A-5B and Class A-5C Notes will bear interest from the Closing Date through and
including the related Initial Reset Date, payable on each Distribution Date, at
the rate set forth in the first sentence of the definition of Class A-5A Rate
and the first two sentences of the definition of Class A-5B Rate and Class A-5C
Rate, respectively. The applicable interest rate for each subsequent Reset
Period will be determined as set forth below. Interest on any class of Reset
Rate Notes after the initial Reset Period may be reset to bear either a fixed or
floating rate of interest at the option of the Remarketing Agents, in
consultation with the Administrator. Interest on each class of Reset Rate Notes
shall be paid on each Distribution Date at the priority level set forth in
Section 2.7C of the Administration Agreement.
(b) The interest rate on the Reset Rate Notes will be reset as of each
Reset Date as determined by (i) the Remarketing Agents, in consultation with the
Administrator, with respect to (A) the length of the Reset Period, (B) whether
the rate is (1) fixed or (2) floating and, if floating, the applicable Index and
Day Count Basis, (C) the applicable Interest Rate Determination Dates within
each Accrual Period, (D) the interval between Interest Rate Change Dates during
each Accrual Period, and (E) the related All Hold Rate and (ii) the Remarketing
Agents (in their sole determination) with respect to the setting of the
applicable (A) fixed rate of interest or (B) Spread to the chosen Index, as
applicable.
(c) In addition to the Initial Swap Agreement with respect to the Class
A-5A Notes, in the event that a class of Reset Rate Notes is reset to bear (or
continues to bear) a fixed rate of interest, the Administrator will be
responsible for arranging, on behalf of the Trust, one or more Swap Agreements
to hedge the floating/fixed rate of interest risk and, together with the
Remarketing Agents, for selecting the Swap Counterparties thereto in accordance
with the procedures set forth in Section 10 below. No class of Reset Rate Notes
will be reset (or continue) to bear interest at a fixed rate unless one or more
Swap Agreements are entered into on the related Reset Date that result in the
Rating Agency Condition being satisfied.
(d) Each class of Reset Rate Notes that bears interest at (i) a floating
rate shall be entitled to receive payments of principal in reduction of its
Outstanding Amount on each
A-2-1
Distribution Date at the priority level set forth in Section 2.7C of the
Administration Agreement and (ii) a fixed rate shall be entitled to receive
allocations of principal at the priority level set forth in Section 2.7C of the
Administration Agreement but such amounts shall not be made in reduction of
Outstanding Amount of such class, instead all such sums shall deposited into an
Accumulation Account for payment to the related Noteholders on the next Reset
Date as set forth in Section 11(a) below.
Section 3. END OF RESET PERIOD NOTICE: (a) Unless notice of the exercise of
the related Call Option provided in Section 7 below has been given, the
Administrator, not less than fifteen nor more than thirty calendar days prior to
any Remarketing Terms Determination Date, will (1) give written notice (which
may include facsimile or other electronic transmission, if permitted pursuant to
DTC's standard procedures) to DTC, with a copy to the Indenture Trustee, that
the applicable class of Reset Rate Notes is subject to mandatory, automatic
tender on the related Reset Date unless the applicable Note Owner elects not to
tender, and (ii) request that DTC notify its participants of the contents of
that notice given to DTC, the Remarketing Terms Notice to be given on the
Remarketing Terms Determination Date pursuant to Section 4(c) below, the Spread
Determination Notice to be given on the Spread Determination Date pursuant to
Section 9(b) below, and the procedures concerning the timely delivery of a Hold
Notice pursuant to Section 8 below that must be followed if any beneficial owner
of a Reset Rate Note wishes to retain its Notes.
(b) The Administrator will also include the names and contact information
of any applicable Remarketing Agents confirmed or appointed by the Administrator
on or before the date the notice given pursuant to this Section 3, or if no
Remarketing Agents have then been so chosen, the Administrator will provide
adequate contact information for Noteholders to receive information regarding
the upcoming Reset Date.
(c) If DTC or its nominee is no longer the holder of record of the related
class of Reset Rate Notes, the Administrator, or the applicable Remarketing
Agents on its behalf, will send the Noteholders of those Reset Rate Notes, with
a copy to the Indenture Trustee, the required notice setting forth the
information in Sections 3(a) and 3(b) above not less than fifteen nor more than
thirty calendar days prior to any Remarketing Terms Determination Date.
Section 4. REMARKETING TERMS DETERMINATION DATE: (a) Subject to the
provisions of the Remarketing Agreement, on or prior to the Remarketing Terms
Determination Date, and unless the related Call Option set forth in Section 7
below has been exercised, the Administrator shall re-affirm the capability of
the initial Remarketing Agents to perform under the Remarketing Agreement, or
enter into new remarketing agreements with other or additional remarketing
agents, who shall function as the Remarketing Agents with respect to the related
Reset Date. On each Remarketing Terms Determination Date, the Trust, the
Administrator and the Remarketing Agents will enter into an Initial Remarketing
Agency Agreement for the remarketing of the related class of Reset Rate Notes.
A-2-2
(b) Unless notice of the exercise of the Call Option set forth in Section
7(c) below has been given, the Remarketing Agents, in consultation with the
Administrator, will establish the following terms for the applicable class of
Reset Rate Notes by the Remarketing Terms Determination Date:
(i) the expected weighted average life of that class of Reset Rate
Notes, based on prepayment and other assumptions customary for comparable
securities;
(ii) the name and contact information of the Remarketing Agents;
(iii) the next Reset Date and length of such Reset Period;
(iv) the interest rate mode (i.e., fixed rate or floating rate);
(v) if in floating rate mode, the applicable Index;
(vi) if in floating rate mode, the interval between Interest Rate Change
Dates;
(vii) if in floating rate mode, the applicable Interest Rate Determination
Dates;
(viii) if in fixed rate mode, the applicable fixed rate pricing benchmark;
(ix) if in fixed rate mode, the identities of the Eligible Swap
Counterparties from which bids will be solicited;
(x) if in floating rate mode, based on an Index other than LIBOR or a
Commercial Paper Rate, whether there will be a related Swap Agreement and, if
so, the identities of the Eligible Swap Counterparties from which bids will be
solicited;
(xi) the applicable Day Count Basis;
(xii) the related All Hold Rate; and
(xiii) any other relevant terms (other than the related Spread or fixed
rate of interest, as applicable) incidental to the foregoing for the next Reset
Period;
PROVIDED, that any interest rate mode, other than a floating rate based on LIBOR
or a Commercial Paper Rate, will require that the Rating Agency Condition be
satisfied prior to the delivery of the related Remarketing Terms Notice.
(c) The Remarketing Agents will communicate all of the information
established in Section 4(b) above in the Remarketing Terms Notice required to be
given in writing (which may include facsimile or other electronic transmission
if in accordance with DTC's standard procedures) to DTC or the Noteholders of
the applicable class of Reset Rate Notes, as applicable, the Indenture Trustee
and the Rating Agencies on the related Remarketing Terms Determination Date.
Section 5. ALL HOLD RATE: On each Remarketing Terms Determination Date, the
Remarketing Agents, in consultation with the Administrator, will establish the
related All
A-2-3
Hold Rate. If 100% of the Noteholders of a class of Reset Rate Notes deliver
timely Hold Notices wherein they elect to hold their Reset Rate Notes for the
next Reset Period, the related reset rate will be the All Hold Rate. The All
Hold Rate will be the minimum rate of interest that will be effective for the
upcoming Reset Period. If any of the related Noteholders are deemed to have
tendered their class of Reset Rate Notes and the rate of interest using the
Spread or fixed rate of interest established on the Spread Determination Date is
higher than the All Hold Rate, all Noteholders who delivered a Hold Notice
agreeing to be subject to the All Hold Rate instead will be entitled to the
higher rate of interest for the upcoming Reset Period.
Section 6. FAILED REMARKETING: (a) If at any time a Failed Remarketing is
declared on the related Spread Determination Date, (i) all applicable Reset Rate
Notes will be deemed to have been held by the applicable Noteholders on the
related Reset Date, regardless of any deemed tenders made to Remarketing Agents,
(ii) the Failed Remarketing Rate for such class of Reset Rate Notes will apply
and (iii) a Reset Period of three months will be established.
(b) If there is a Failed Remarketing of a class of Reset Rate Notes,
Noteholders of that class shall not be entitled to exercise any remedies as a
result of the failure of their class of Reset Rate Notes to be remarketed on the
related Reset Date.
Section 7. CALL OPTION: (a) With respect to each Reset Date, the Depositor
is hereby granted a Call Option for the purchase of not less than 100% of that
class of Reset Rate Notes, exercisable at a price equal to 100% of the
Outstanding Amount of that class, less all amounts distributed to the related
Reset Rate Noteholders as a payment of principal on the related Distribution
Date, plus any accrued and unpaid interest not paid by the Trust on the
applicable Reset Date.
(b) The Depositor, effective as of the Closing Date, hereby transfers all
of its right title and interest in and to the Call Option to SLM Corporation,
and in acceptance of such transfer SLM Corporation also hereby agrees to abide
to all terms and conditions hereunder with respect to the Call Option and these
Reset Note Procedures.
(c) SLM Corporation may further transfer ownership of the Call Option at
any time to any of its subsidiaries, provided that such permitted transferee has
at no time in the past owned an interest in any of the Trust Student Loans.
(d) The Call Option may be exercised at any time on or prior to the Spread
Determination Date or before the declaration of a Failed Remarketing, as
applicable, by written notice to DTC, the Indenture Trustee, the Remarketing
Agents and the Rating Agencies; provided that the Call Option may not be
exercised before the day following the last Distribution Date immediately
preceding the next applicable Reset Date. Once written notice of the exercise of
the Call Option is given, such exercise may not rescinded. All amounts due and
owed to the applicable Noteholders shall be remitted on or before the related
Reset Date by SLM Corporation or its permitted transferee in accordance with the
standard procedures established by DTC for transfer of securities.
A-2-4
(e) If the Call Option is exercised with respect to any class of Reset Rate
Notes, (i) the interest rate on that class will be the Call Rate, and (ii) a
Reset Period of three months will be established. At the end of such three month
Reset Period, the holder of the Call Option may either remarket that class
pursuant to the remarketing procedures set forth herein and in the Remarketing
Agreement or retain that class for one or more successive three-month Reset
Periods at the then existing Call Rate. In the event the holder of the Call
Option chooses to remarket any class of reset rate notes, such holder shall be
solely responsible for all costs and expenses relating to the preparation of any
new offering document and any other related costs and expenses associated with
such remarketing, other than the fees of the Remarketing Agents, as more fully
set forth in Section 3 of the Remarketing Agreement.
(f) Other than in connection with the exercise of a Call Option, neither
SLM Corporation, Xxxxxx Xxx, the Trust or any of their affiliates shall have the
ability to purchase any Reset Rate Notes tendered to the Remarketing Agents.
Section 8. HOLD NOTICE: At any time on or after the Remarketing Terms
Determination Date, but on or prior to the Notice Date, the Noteholders of the
applicable Reset Rate Notes will have the option to deliver a Hold Notice to any
Remarketing Agent setting forth their desire to hold their class of Reset Rate
Notes for the next Reset Period at a rate of interest not less than the All Hold
Rate and on the terms set forth in the Remarketing Terms Notice. Such Hold
Notice may be delivered as an oral statement to a Remarketing Agent, if
subsequently confirmed in writing within 24 hours, which confirmation may be in
the form of an e-mail if timely received by the applicable Remarketing Agent.
If a Noteholder does not timely deliver a Hold Notice to a Remarketing Agent
(and such Hold Notice will not be considered delivered until actually received
by such Remarketing Agent), that Noteholder's Reset Rate Notes will be deemed to
have been tendered for remarketing. Any duly delivered Hold Notice will be
irrevocable, but will be subject to a mandatory tender of the applicable Reset
Rate Notes pursuant to any exercise of the related Call Option. All of the Reset
Rate Notes of an applicable class, whether or not tendered, will bear interest
during any Reset Period on the same terms.
Section 9. SPREAD DETERMINATION DATE: (a) On each Spread Determination
Date, unless a Failed Remarketing has been declared or the related Call Option
has been exercised, the Administrator, the Trust and the Remarketing Agents will
enter into a Supplemental Remarketing Agency Agreement.
(b) If pursuant to the Remarketing Terms Notice, the Remarketing Agents, in
consultation with the Administrator, have determined that a class of Reset Rate
Notes is to be reset to bear a fixed rate of interest, then the applicable fixed
rate of interest for the corresponding Reset Period will be determined on the
Spread Determination Date by adding (i) the applicable spread as determined by
the Remarketing Agents on the Spread Determination Date and (ii) the yield to
maturity on the Spread Determination Date of the applicable fixed rate pricing
benchmark, selected by the Remarketing Agents, as having an expected weighted
average life based on a scheduled maturity at the next Reset Date, which would
be used in accordance with customary financial practice in pricing new
A-2-5
issues of asset-backed securities of comparable average life; provided that such
fixed rate of interest will in no event be lower than the related All Hold Rate.
The Remarketing Agents shall determine the applicable fixed rate of interest for
such class of Reset Rate Notes (by reference to the applicable fixed rate
pricing benchmark plus or minus the spread determined on the Remarketing Terms
Determination Date) on each Spread Determination Date irrespective of whether no
remarketing will occur as the result of the application of the All Hold Rate.
(c) If pursuant to the Remarketing Terms Notice, the Remarketing Agents, in
consultation with the Administrator, have determined that a class of Reset Rate
Notes is to be reset to bear a floating rate of interest, then, on the related
Spread Determination Date, the Remarketing Agents will establish the applicable
Spread to be added or subtracted from the applicable Index; provided that such
floating rate of interest will in no event be lower than the related All Hold
Rate.
(d) On or immediately following the Spread Determination Date, the
Remarketing Agents will communicate in writing the contents of the Spread
Determination Notice to DTC (which may include facsimile or other electronic
transmission if in accordance with DTC's standard procedures) or the Noteholders
of the applicable class of Reset Rate Notes, as applicable, the Indenture
Trustee and the Rating Agencies. The Spread Determination Notice will contain:
(i) the determined Spread or fixed rate of interest, as the case may be, or, if
applicable, a statement that the All Hold Rate or the Failed Remarketing Rate
will be in effect (ii) if applicable, the identity of any selected Swap
Counterparty or Counterparties, (iii) if applicable, the floating rate (or
rates) of interest to be due to each selected Swap Counterparty on each
Distribution Date during the upcoming Reset Period, and (iv) any other
information that the Administrator or the Remarketing Agents deem applicable.
Section 10. SWAP AGREEMENTS: (a) In addition to the Initial Swap Agreement
to be entered into on the Closing Date with the Initial Swap Counterparty, if
the Remarketing Agents, in consultation with the Administrator, (i) have
determined that the interest rate for a class of Reset Rate Notes for the next
Reset Period will be based on an index other than LIBOR or a Commercial Paper
Rate, and (ii) determine that such action would be in the best interest of the
Trust based on existing market conditions, then on or prior to the Remarketing
Terms Determination Date, the Administrator will arrange for, and, on the
related Reset Date, will enter into (not for its own account but solely as
Administrator on behalf of the Trust) or will instruct the Eligible Lender
Trustee to enter into (not in its individual capacity but solely as Eligible
Lender Trustee) one or more Swap Agreements with one or more Swap Counterparties
for the next Reset Period to hedge against basis risk.
(b) If the Remarketing Agents, in consultation with the Administrator, (i)
have determined that the interest rate for a class of Reset Rate Notes for the
next Reset Period will be a fixed rate, then on or prior to the Remarketing
Terms Determination Date, the Administrator will arrange for, and, on the
related Reset Date, will enter into (not for its own account but solely as
Administrator on behalf of the Trust) or will instruct the Eligible Lender
Trustee to enter into (not in its individual capacity but solely as Eligible
A-2-6
Lender Trustee) one or more Swap Agreements with one or more Swap Counterparties
for the next Reset Period to facilitate the Trust's ability to pay the
applicable class interest at its fixed rate.
(c) In exchange for providing to the Trust the related Swap Receipt, each
Swap Counterparty (including, without limitation, the Initial Swap Counterparty)
will be entitled to receive on each Distribution Date from the Trust a Swap
Payment, representing a floating rate of interest equal to Three-Month LIBOR,
plus or minus a spread to be set forth in the related Swap Agreement, in the
priority set forth in Section 2.7C of the Administration Agreement.
(d) Other than with respect to the Initial Swap Agreement, the
Administrator and the applicable Remarketing Agents, in determining the
counterparty to the required interest rate Swap Agreement, will solicit bids
from at least three Eligible Swap Counterparties and will select the lowest of
these bids to provide the interest rate swap. If the lowest bidder specifies a
notional amount that is less than the Outstanding Amount of the related class of
Reset Rate Notes, the Administrator and the applicable Remarketing Agents may
select more than one Eligible Swap Counterparty, but only to the extent that
such additional Eligible Swap Counterparties have provided the next lowest
received bid or bids, and enter into more than one Swap Agreement that result in
the Rating Agency Condition being satisfied. On or before the Spread
Determination Date, the Administrator and the Remarketing Agents will select the
Swap Counterparty or Counterparties and the cause the Trust to enter into the
required Swap Agreements on the related Reset Date for the upcoming Reset
Period.
(e) Other than with respect to the Initial Swap Agreement, it is a
condition precedent to the entering into of any Swap Agreement and the setting
of the amount to be paid to the related Swap Counterparty that the Rating Agency
Condition is satisfied. No Swap Agreement will be entered into by the Trust for
any Reset Period where either the related Call Option has been exercised or a
Failed Remarketing has been declared. Each such Swap Agreement, will terminate
at the earlier to occur of the next related Reset Date (and with respect to the
Initial Swap Agreement, on the Initial Reset Date for the Class A-5A Notes) or a
specified termination event set forth in the related Swap Agreement.
Section 11. ACCUMULATION ACCOUNT; SUPPLEMENTAL INTEREST ACCOUNT: (a) If, on
any Distribution Date, principal would be payable to a class of Reset Rate Notes
then bearing interest at a fixed rate (including without limitation, with
respect to the Class A-5A Notes during the initial Reset Period), that principal
(subject to sufficient Available Funds therefor) will be allocated to that class
and deposited into the related Accumulation Account, where it will remain until
the next Reset Date for that class of Reset Rate Notes, unless an Event of
Default under the Indenture or a sale of the Trust Estate pursuant to Section
6.1 of the Administration Agreement has occurred (in which case the Indenture
Trustee will distribute all sums on deposit therein (exclusive of Investment
Earnings) to the related Noteholders in accordance with the provisions of
Section 5.4(b) of the Indenture or Section 6.1 of the Administration Agreement,
as applicable). On each Reset Date for a class of Reset Rate Notes that bore
interest at a fixed rate during the preceding Reset Period (including without
limitation, on the Initial Reset Date for the Class A-5A
A-2-7
Notes), all sums, if any, then on deposit in the related Accumulation Account,
including any allocation of principal made on the same date, but less any
Investment Earnings, will be distributed by the Indenture Trustee, at the
direction of the Administrator, as set forth in Section 2.7C of the
Administration Agreement, to the holders of that class of Reset Rate Notes, as
of the related Record Date, in reduction of principal of such class; provided,
that, in the event on any Distribution Date the amount on deposit in the related
Accumulation Account (excluding any Investment Earnings) would equal the
Outstanding Amount of that class, no additional amounts will be deposited into
the related Accumulation Account and all amounts therein, less any Investment
Earnings, will be distributed by the Indenture Trustee, at the direction of the
Administrator, as set forth in Section 2.7C of the Administration Agreement, on
the next related Reset Date to the related Noteholders, and on such Reset Date
that class of Reset Rate Notes will no longer be Outstanding. Amounts on deposit
in an Accumulation Account (exclusive of Investment Earnings) may be used only
to pay principal on the related class of Reset Rate Notes and for no other
purpose. On each Distribution Date, all Investment Earnings on deposit in each
Accumulation Account will be withdrawn by the Indenture Trustee, at the
direction of the Administrator, as set forth in Section 2.8.4B.4 of the
Administration Agreement, and deposited into the Collection Account.
(c) For so long as amounts are on deposit in an Accumulation Account, the
Indenture Trustee, subject to sufficient available funds therefor, at the
direction of the Administrator and pursuant to Section 2.8.5B of the
Administration Agreement, will deposit into the related supplemental interest
account, the related Supplemental Interest Account Deposit Amount. On each
Distribution Date, all sums (which shall include Investment Earnings) on deposit
in each Supplemental Account will be withdrawn by the Indenture Trustee, at the
direction of the Administrator, as set forth in Section 2.8.5C of the
Administration Agreement, and deposited into the Collection Account.
Section 12. REMARKETING AGENTS; REMARKETING FEE ACCOUNT: (a) The initial
Remarketing Agents, appointed pursuant to the terms of the Remarketing Agreement
are Deutsche Bank Securities Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, and Xxxxxx Xxxxxxx & Co. Incorporated. The terms and conditions of
the Remarketing Agreement will govern the duties and obligations of the
Remarketing Agents. The Administrator, the Trust and the Remarketing Agents will
enter into on each related (A) Remarketing Terms Determination Date, an Initial
Remarketing Agency Agreement, in form and substance substantially the same as
Appendix B to the Remarketing Agreement, unless (i) a Failed Remarketing is
declared, or (ii) the related Call Option has been exercised on or prior to such
date; and (B) Spread Determination Date, a Subsequent Remarketing Agency
Agreement, in form and substance substantially the same as Appendix C to the
Remarketing Agreement, unless (i) a Failed Remarketing is declared, (ii) the
related Call Option has been exercised, or (iii) 100% of the related Noteholders
have timely delivered a Hold Notice and the All Hold Rate will apply for the
next related Reset Period.
(b) Excluding all Reset Rate Notes of a class for which a Remarketing Agent
has received a timely delivered Hold Notice (or if the related Call Option has
been exercised or a Failed Remarketing has been declared), on the Reset Date
that commences each
A-2-8
Reset Period, each related Reset Rate Note will be automatically tendered, or
deemed tendered, to the relevant Remarketing Agent for remarketing by such
Remarketing Agent on the Reset Date at 100% of its principal amount. If the
related class of Reset Rate Notes is held in book-entry form, subject to Section
12(c) below, 100% of the Outstanding Amount of such Reset Rate Notes will be
paid by the Remarketing Agents on the related Reset Date in accordance with the
standard procedures of DTC.
(c) The Remarketing Agents will attempt, on a reasonable efforts basis and
in accordance with the terms and conditions of the Remarketing Agreement and the
related Remarketing Agency Agreement, to remarket the tendered Reset Rate Notes
of the applicable class at a price equal to 100% of the aggregate principal
amount so tendered. If (i) the related Call Option is not timely exercised, and
(ii) the Remarketing Agents are unable to remarket some or all of the tendered
Reset Rate Notes, then a Failed Remarketing will be declared by the Remarketing
Agents and the provisions of Section 6 above will apply; provided, however, that
in order to prevent the declaration of a Failed Remarketing, the Remarketing
Agents will have the option, but not the obligation, to purchase any Reset Rate
Notes tendered that they are not otherwise able to remarket.
(d) Each of the Remarketing Agents, in its individual or any other
capacity, may buy, sell, hold and deal in any class of the Notes, including, but
not limited to, purchasing any tendered Reset Rate Notes as part of the
remarketing process. Any Remarketing Agent that owns a Reset Rate Note may
exercise any vote or join in any action which any beneficial owner of any class
of Notes may be entitled to exercise or take with like effect as if it did not
act in any capacity under the Remarketing Agency Agreement. Any Remarketing
Agent, in its individual capacity, either as principal or agent, may also engage
in or have an interest in any financial or other transaction with the Trust, the
Depositor, the Servicer, the Indenture Trustee (in its individual capacity), the
Eligible Lender Trustee (in its individual capacity) or the Administrator as
freely as if it did not act in any capacity under the Remarketing Agreement or
any Remarketing Agency Agreement. No Noteholder or beneficial owner of any Reset
Rate Note will have any rights or claims against any Remarketing Agent as a
result of such Remarketing Agent's not purchasing any tendered Reset Rate Note,
which results in the declaration of a Failed Remarketing.
(e) Each of the Remarketing Agents will be entitled to receive a fee in
connection with their services rendered for each successful remarketing of a
class of Reset Rate Notes in the amount set forth in the Remarketing Agreement
and the related Remarketing Agency Agreement. Subject to the terms and
conditions set forth in the Remarketing Agreement, the Administrator, in its
sole discretion, may change the Remarketing Agents for any class of Reset Rate
Notes for any Reset Period at any time on or before the related Remarketing
Terms Determination Date.
(f) In accordance with Section 2.8.3 of the Administration Agreement, on
the Closing Date, the Trust, from proceeds received from the sale of the Notes,
will deposit the Remarketing Fee Account Initial Deposit into the Remarketing
Fee Account, which will be held by the Indenture Trustee for the benefit of the
Trust and the Remarketing Agents. The fees associated with each successful
remarketing will be payable directly to
A-2-9
the Remarketing Agents from amounts on deposit from time to time in the
Remarketing Fee Account. On each applicable Distribution Date, Available Funds
will be deposited into the Remarketing Fee Account, in the priority set forth in
Section 2.7C of the Administration Agreement, in an amount up to the Aggregate
Quarterly Funding Amount; provided, that if the amount on deposit in the
Remarketing Fee Account, after the payment of any remarketing fees therefrom,
exceeds the sum of the Reset Period Target Amounts for all classes of Reset Rate
Notes, such excess will be withdrawn on the related Distribution Date, deposited
into the Collection Account and included in Available Funds for that
Distribution Date. All investments on deposit in the Remarketing Fee Account
will be withdrawn on the next Distribution Date, deposited into the Collection
Account and included in Available Funds for that Distribution Date. In the event
that the fees owed to any Remarketing Agent on a Reset Date exceeds the amount
then on deposit in the Remarketing Fee Account, such shortfall shall be paid
from Available Funds on future Distribution Dates in the priority set forth in
Section 2.7C of the Administration Agreement. The Trust shall also be
responsible for certain remarketing costs and expenses to the extent set forth
in Section 3 of the Remarketing Agreement, which shall be paid on each
Distribution Date, to the extent of Available Funds, at the priority set forth
in Section 2.7C of the Administration Agreement.
Section 13. ELIGIBLE LENDER TRUSTEE: The Eligible Lender Trustee is hereby
authorized and directed to execute and deliver, not in its individual capacity,
but solely as Eligible Lender Trustee on behalf of the Trust, the Remarketing
Agreement, any Swap Agreements, and all Remarketing Agency Agreements as the
Administrator, in writing and from time to time, shall instruct the Eligible
Lender Trustee. The Eligible Lender Trustee shall not be liable to any party,
any third party or any Noteholder for any such actions taken at the written
instruction of the Administrator. Notwithstanding the foregoing, in the event
that the Eligible Lender Trustee declines or fails to execute or deliver any
such document, instrument, certificate or agreement as instructed by the
Administrator, the Administrator is hereby authorized, in its sole discretion,
to execute and deliver, not in its individual capacity but solely as
Administrator on behalf of the Trust, all such required documents, instruments,
certificates and agreements. The foregoing authorization shall represent a
limited power of attorney granted by the Trust to the Administrator to act on
its behalf and the Administrator shall not be liable to any party, any third
party or any Noteholder for any such actions taken in good faith and in
accordance with these Reset Rate Note Procedures.
X-0-00
XXXXXXXX X-0
TO INDENTURE
TRANSFER RESTRICTIONS FOR
THE RESET RATE NOTES
a. Except as otherwise specified herein or as the context may otherwise
require, capitalized terms used but not otherwise defined in this Appendix A-3
(this "Appendix") are defined in Xxxxxxxx X-0, which also contain rules as to
usage that shall be applicable herein.
b. The Indenture Trustee, as Note Registrar, shall provide for the
registration of Reset Rate Notes and of transfers and exchanges of Reset Rate
Notes pursuant to Section 2.4 of the Indenture.
c. Each class of Reset Rate Notes will be initially represented by
registered notes of such class in global form. The global notes may be reissued
and represented by Reset Rate Notes of such class in definitive form pursuant to
Section 2.12 of the Indenture.
d. By acceptance of a Reset Rate Note, whether upon original issuance or
subsequent transfer, each Reset Rate Noteholder or Note Owner, as applicable, of
such a Reset Rate Note or a beneficial interest therein, respectively,
acknowledges or is deemed to acknowledge, as the case may be, the restrictions
on the transfer of such Reset Rate Note set forth in the following securities
legend (the "Securities Legend"):
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT"), OR UNDER ANY STATE SECURITIES
LAWS. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES THAT THIS
NOTE MAY BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN COMPLIANCE WITH THE ACT AND OTHER APPLICABLE LAWS AND ONLY PURSUANT
TO RULE 144A UNDER THE ACT ("RULE 144A") TO A PERSON THAT THE HOLDER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A (A "QIB"), PURCHASING FOR ITS OWN ACCOUNT OR A
QIB PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED,
IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A. SUBJECT TO (A) THE RECEIPT BY THE
TRUSTEE OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED IN THE
INDENTURE AND (B) THE RECEIPT BY THE TRUSTEE OF SUCH OTHER EVIDENCE
ACCEPTABLE TO THE TRUSTEE THAT SUCH REOFFER, RESALE, PLEDGE OR
TRANSFER IS IN COMPLIANCE WITH THE ACT AND OTHER APPLICABLE LAWS OR IN
EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE
UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION; PROVIDED THAT
SUCH REPRESENTATIONS WILL BE DEEMED TO HAVE BEEN
A-3-1
REPRESENTED BY A BENEFICIAL OWNER OF A BOOK-ENTRY NOTE OR A GLOBAL NOTE.
Each Reset Rate Noteholder or Note Owner, as applicable, of such a Reset Rate
Note by its acceptance of a Reset Rate Note or a beneficial interest therein,
respectively, also agrees that it will transfer such a Reset Rate Note or
beneficial interest therein, as the case may be, only as provided herein and in
accordance with the Indenture. In addition, by acceptance of any Reset Rate Note
or beneficial interest therein, each proposed transferee thereof is hereby
deemed to have agreed with the conditions set forth in the Securities Legend and
agreed, by virtue of its acceptance of such Reset Rate Note or beneficial
interest therein, as the case may be, to indemnify the Administrator, the
Depositor, the Servicer, the Indenture Trustee the Eligible Lender Trustee and
the Issuer against any and all liability that may result if such transfer is not
made in a manner consistent with the restrictions set forth in the Securities
Legend. In addition to any applicable restrictions in the Indenture, with
respect to the transfer and registration of transfer of any Reset Rate Note
registered in the name of a Reset Rate Noteholder other than DTC or its nominee
(an "Individual Note") to a transferee that takes delivery in the form of a
Individual Note, the Indenture Trustee shall register the transfer of such
Individual Note if (i) the requested transfer is being made to a transferee who
has provided the Indenture Trustee and the Administrator with a Rule 144A and
Related Matters Certificate, substantially in the form attached as Annex 1
hereto, or comparable evidence as to its QIB status, and (ii) the applicable
transferor has provided the Indenture Trustee and the Administrator with a
Transferor Letter, substantially in the form of Annex 2 hereto.
e. Each class of the Reset Rate Notes will be issued initially only in
minimum denominations of $250,000 and integral multiples of $1,000 in excess
thereof. The Reset Rate Notes are exchangeable at any time into an equal
aggregate principal amount of Reset Rate Notes of the same class of different
authorized denominations pursuant to Section 2.4 of the Indenture.
f. Reset Rate Notes may be presented or surrendered pursuant to Section
2.4 of the Indenture.
g. No service charge shall be made to a Noteholder for any registration
of transfer or exchange of Reset Rate Notes, but the Indenture Trustee may
require payment of a sum sufficient to cover any tax or other governmental
charge pursuant to Section 2.4 of the Indenture.
h. The Indenture Trustee shall cancel all Reset Rate Notes surrendered
for transfer or exchange pursuant to Section 2.8 of the Indenture.
i. For so long as any class of Reset Rate Notes are "restricted
securities" within the meaning of Rule 144(a)(3) of the Securities Act, (1) the
Administrator will provide or cause to be provided to any holder of such Reset
Rate Notes and any prospective purchaser thereof designated by such a holder,
upon the request of such holder or prospective purchaser, the information
required to be provided to such holder or prospective purchaser by Rule
144A(d)(4) under the Securities Act; and (2) the Administrator shall update such
information from time to time in order to prevent such information from becoming
false and misleading and will take such other actions as are necessary to ensure
that the safe harbor exemption from the registration
A-3-2
requirements of the Securities Act under Rule 144A is and will be available for
resales of such Reset Rate Notes conducted in accordance with Rule 144A.
A-3-3
ANNEX 1 TO
APPENDIX A-3
FORM OF RULE 144A AND RELATED MATTERS CERTIFICATE
[Date]
[SELLER]
The Bank of
New York, as Indenture Trustee
0 Xxxxx XxXxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx, 00000
The Student Loan Marketing Association, as Administrator
00000 Xxxxxx Xxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Re: SLM Student Loan Trust 2003-1, Student Loan-Backed Class A5-A, Class
A5-B and Class A-5C Reset Rate Notes (the "Reset Rate Notes")
-------------------------------------------------------------
Dear Sirs:
In connection with our purchase of the Class [A5-A / A5-B / A5-C] Reset
Rate Notes of the above-referenced series, the undersigned certifies to each of
the parties to whom this letter is addressed that it is a qualified
institutional buyer (as defined in Rule 144A under the Securities Act of 1933,
as amended (the "Act")) as follows:
A) It owned and/or invested on a discretionary basis eligible securities
(excluding affiliate's securities, bank deposit notes and CD's, loan
participations, repurchase agreements, securities owned but subject to a
repurchase agreement and swaps), as described below:
Date: ______________, 20__ (must be on or after the close of its most
recent fiscal year)
Amount: $_________________; and
B) The dollar amount set forth above is:
1. greater than $100 million and the undersigned is one of the following
entities:
a. an insurance company as defined in Section 2(13) of the Act; or
b. an investment company registered under the Investment Company
Act or any business development company as defined in Section
2(a)(48) of the Investment Company Act of 1940; or
A-3-4
c. a Small Business Investment Company licensed by the U.S. Small
Business Administration under Section 301 (c) or (d) of the
Small Business Investment Act of 1958; or
d. a plan (i) established and maintained by a state, its political
subdivisions, or any agency or instrumentality of a state or
its political subdivisions, the laws of which permit the
purchase of securities of this type, for the benefit of its
employees and (ii) the governing investment guidelines of which
permit the purchase of securities of this type; or
e. a business development company as defined in Section 202(a)(22)
of the Investment Advisers Act of 1940; or
f. a corporation (other than a U.S. bank, savings and loan
association or equivalent foreign institution), partnership,
Massachusetts or similar business trust, or an organization
described in Section 501(c)(3) of the Internal Revenue Code; or
g. a U.S. bank, savings and loan association or equivalent foreign
institution, which has an audited net worth of at least $25
million as demonstrated in its latest annual financial
statements; or
h. an investment adviser registered under the Investment Advisers
Act; or
2. greater than $10 million, and the undersigned is a broker-dealer
registered with the SEC; or
3. less than $10 million, and the undersigned is a broker-dealer
registered with the SEC and will only purchase Rule 144A
securities in transactions in which it acts as a riskless
principal (as defined in Rule 144A); or
4. less than $100 million, and the undersigned is an investment
company registered under the Investment Company Act of 1940,
which, together with one or more registered investment companies
having the same or an affiliated investment adviser, owns at least
$100 million of eligible securities; or
5. less than $100 million, and the undersigned is an entity, all the
equity owners of which are qualified institutional buyers.
The undersigned further certifies that it is purchasing the Reset Rate
Notes for its own account or for the account of others that independently
qualify as "Qualified Institutional Buyers" as defined in Rule 144A. It is aware
that the sale of the Reset Rate Notes is being made in reliance on its continued
compliance with Rule 144A. It is aware that the transferor may rely on the
exemption from the provisions of Section 5 of the Act provided by Rule 144A. The
undersigned understands that the Reset Rate Notes may be resold, pledged or
transferred only to
A-3-5
a person reasonably believed to be a Qualified Institutional Buyer that
purchases for its own account or for the account of a Qualified Institutional
Buyer to whom notice is given that the resale, pledge or transfer is being made
in reliance on Rule 144A, or any entity in which all the equity owners come
within paragraph (i), in a transaction that otherwise does not constitute a
public offering.
The undersigned agrees that if at some future time it wishes to dispose of
or exchange any of the Reset Rate Notes, it will not transfer or exchange any of
the Reset Rate Notes unless: (A) (1) the sale is to an Eligible Purchaser (as
defined below); (2) if such sale is to another Qualified Institutional Buyer as
defined under Rule 144A of the Act (a "QIB"), and either the Indenture Trustee
or the Administrator so requests, such QIB shall deliver a Rule 144A Certificate
to substantially the same effect as this letter to the addressees hereof or such
other evidence as may be acceptable as to its status as a QIB, and (3) all
offers or solicitations in connection with the sale, whether directly or through
any agent acting on our behalf, are limited only to Eligible Purchasers and are
not made by means of any form of general solicitation or general advertising
whatsoever; and (B) if the Reset Rate Notes are not registered under the Act (as
to which we acknowledge you have no obligation), the Reset Rate Notes are sold
in a transaction that does not require registration under the Act and any
applicable state securities or "blue sky" laws and, if the Indenture Trustee so
requests, a satisfactory Opinion of Counsel is furnished to such effect, which
Opinion of Counsel shall be an expense of the transferor or the transferee.
"ELIGIBLE PURCHASER" means a corporation, partnership or other entity which
we have reasonable grounds to believe and do believe (i) can make
representations with respect to itself to substantially the same effect as the
representations set forth herein, and (ii) is a QIB as defined under Rule 144A
of the Act or any entity in which all of the equity owners come within such
paragraphs.
If the Purchaser proposes that its Reset Rate Notes be registered in the
name of a nominee on its behalf, the Purchaser has identified such nominee
below, and has caused such nominee to complete the Nominee Acknowledgment at the
end of this letter.
Name of Nominee (if any): _____________________
A-3-6
IN WITNESS WHEREOF, this document has been executed by the undersigned who
is duly authorized to do so on behalf of the undersigned Qualified Institutional
Buyer on the ____ day of ___________, 20__.
Name of Institution
----------------------------------------
Signature
----------------------------------------
Name
----------------------------------------
Title
NOMINEE ACKNOWLEDGMENT
The undersigned hereby acknowledges and agrees that as to the Reset Rate
Notes being registered in its name, the sole beneficial owner thereof is and
shall be the Purchaser identified above, for whom the undersigned is acting as
nominee.
By:
------------------------------------
Duly Authorized
X-0-0
XXXXX 0 XX
XXXXXXXX X-0
FORM OF TRANSFEROR LETTER
[Date]
The Bank of New York, as Indenture Trustee
0 Xxxxx XxXxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx, 00000
The Student Loan Marketing Association, as Administrator
00000 Xxxxxx Xxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Re: SLM Student Loan Trust 2003-1, Student Loan-Backed Class A5-A, Class
A5-B and Class A-5C Reset Rate Notes (the "Reset Rate Notes")
--------------------------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of Reset Rate Notes owned by us, we certify
that (a) we understand that the Reset Rate Notes have not been registered under
the Securities Act of 1933, as amended (the "Securities Act"), and are being
disposed by us in a transaction that is exempt from the registration
requirements of the Securities Act, and (b) we have not offered or sold any
Reset Rate Notes to, or solicited offers to buy any Reset Rate Notes from, any
person, or otherwise approached or negotiated with any person with respect
thereto, in a manner that would be deemed, or taken any other action would
result in, a violation of Section 5 of the Securities Act.
Very truly yours,
----------------------------------------
Print Name of Transferor
By:
------------------------------------
Authorized Officer
A-3-8
SCHEDULE A
TO THE INDENTURE
SCHEDULE OF TRUST STUDENT LOANS
[See Schedule A to the Xxxx of Sale
Attachment B to the Sale Agreement)]
4
SCHEDULE B
TO THE INDENTURE
LOCATION OF TRUST STUDENT LOAN FILES
[See Attachment B to the Servicing Agreement]
5
