EXHIBIT 99.3
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SLM STUDENT LOAN TRUST 2004-3
ADMINISTRATION AGREEMENT
DATED AS ▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇ FUNDING LLC
SLM STUDENT LOAN TRUST 2004-3
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
AS ELIGIBLE LENDER TRUSTEE
▇▇▇▇▇▇ ▇▇▇, INC.
AND
THE BANK OF NEW YORK,
AS INDENTURE TRUSTEE
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TABLE OF CONTENTS
ARTICLE I........................................................................................................ 2
Section 1.1 Definitions and Usage................................................................... 2
ARTICLE II....................................................................................................... 2
Section 2.1 Duties with Respect to the Indenture.................................................... 2
Section 2.2 Duties with Respect to the Issuer....................................................... 5
Section 2.3 Establishment of Trust Accounts......................................................... 6
Section 2.4 Collections; Collection Account......................................................... 10
Section 2.5 Application of Collections.............................................................. 11
Section 2.6 Additional Deposits..................................................................... 11
Section 2.7 Distributions........................................................................... 12
Section 2.8 Priority of Distributions............................................................... 14
Section 2.9 Reserve Account......................................................................... 17
Section 2.10 Investment Earnings; Other Trust Accounts............................................... 19
Section 2.11 Statements to Excess Distribution Certificateholders and Noteholders.................... 23
Section 2.12 Non-Ministerial Matters................................................................. 25
Section 2.13 Exceptions.............................................................................. 25
Section 2.14 Compensation............................................................................ 25
Section 2.15 Servicer and Administrator Expenses..................................................... 26
ARTICLE III...................................................................................................... 26
Section 3.1 Administrator's Certificate; Servicer's Report.......................................... 26
Section 3.2 Annual Statement as to Compliance; Notice of Default; Financial Statements.............. 27
Section 3.3 Annual Independent Certified Public Accountants' Report................................. 28
ARTICLE IV....................................................................................................... 28
Section 4.1 Representations of Administrator........................................................ 28
Section 4.2 Liability of Administrator; Indemnities................................................. 30
Section 4.3 Merger or Consolidation of, or Assumption of the Obligations of, Administrator.......... 32
Section 4.4 Limitation on Liability of Seller, Administrator and Others............................. 32
Section 4.5 Administrator May Own Certificates or Notes............................................. 33
Section 4.6 ▇▇▇▇▇▇ Mae, Inc. Not to Resign as Administrator......................................... 33
ARTICLE V........................................................................................................ 33
Section 5.1 Administrator Default................................................................... 33
Section 5.2 Appointment of Successor................................................................ 35
Section 5.3 Notification to Noteholders and Certificateholders...................................... 35
Section 5.4 Waiver of Past Defaults................................................................. 35
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ARTICLE VI....................................................................................................... 36
Section 6.1 Termination............................................................................. 36
ARTICLE VII...................................................................................................... 37
Section 7.1 Protection of Interests in Trust........................................................ 37
ARTICLE VIII..................................................................................................... 39
Section 8.1 Independence of the Administrator....................................................... 39
Section 8.2 No Joint Venture........................................................................ 39
Section 8.3 Other Activities of Administrator....................................................... 39
Section 8.4 Powers of Attorney...................................................................... 39
Section 8.5 Amendment............................................................................... 39
Section 8.6 Assignment.............................................................................. 41
Section 8.7 Limitations on Rights of Others......................................................... 41
Section 8.8 Assignment to Indenture Trustee......................................................... 41
Section 8.9 Nonpetition Covenants................................................................... 42
Section 8.10 Limitation of Liability of Eligible Lender Trustee and Indenture Trustee................ 42
Section 8.11 Governing Law........................................................................... 43
Section 8.12 Headings................................................................................ 43
Section 8.13 Counterparts............................................................................ 43
Section 8.14 Severability............................................................................ 43
Section 8.15 Additional Reset Rate Note Agreements................................................... 43
Section 8.16 Excess Distribution Certificate......................................................... 44
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ADMINISTRATION AGREEMENT
SLM Student Loan Trust 2004-3 Administration Agreement, dated as of
March 18, 2004 (this "Agreement"), among SLM Funding LLC (the "Depositor"), SLM
Student Loan Trust ▇▇▇▇-▇ (▇▇▇ "▇▇▇▇▇▇"), ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Bank USA, National
Association, not in its individual capacity but solely in its capacity as
eligible lender trustee (the "Eligible Lender Trustee"), The Bank of New York,
not in its individual capacity but solely in its capacity as indenture trustee
(the "Indenture Trustee"), ▇▇▇▇▇▇ ▇▇▇, Inc., not in its individual capacity but
solely in its capacity as servicer (in such capacity, the "Servicer") and ▇▇▇▇▇▇
Mae, Inc., not in its individual capacity but solely in its capacity as
administrator (in such capacity, the "Administrator").
RECITALS
WHEREAS, pursuant to an Indenture, dated as of March 1, 2004 (the
"Indenture"), among the Issuer, the Indenture Trustee and the Eligible Lender
Trustee, the Issuer (a) is issuing (i) eight classes of its Student Loan-Backed
Notes (collectively, the "Notes"), and (ii) an Excess Distribution Certificate
(the "Excess Distribution Certificate") pursuant to the Short-Form Trust
Agreement, dated as of March 5, 2004 between the Depositor and the Eligible
Lender Trustee, pursuant to which the Issuer was established, as amended and
restated by the Amended and Restated Trust Agreement, dated as of March 18, 2004
(the "Trust Agreement"), among the Depositor, the Eligible Lender Trustee and
the Indenture Trustee, and (b) will not issue any other classes of certificates
(the "Certificates");
WHEREAS, the Issuer has entered into certain agreements in connection
with the issuance of the Notes and the Excess Distribution Certificate,
including the Trust Agreement, the Servicing Agreement, the Sale Agreement, and
the Indenture;
WHEREAS, pursuant to certain Basic Documents, the Issuer and the
Eligible Lender Trustee are required to perform certain duties in connection
with (a) the Notes and the Collateral therefore pledged pursuant to the
Indenture and (b) the Excess Distribution Certificate pursuant to the Trust
Agreement;
WHEREAS, the Issuer and the Eligible Lender Trustee desire to have the
Administrator and the Servicer perform certain of the duties of the Issuer and
the Eligible Lender Trustee referred to in the preceding clause, and to provide
such additional services consistent with this Agreement and the other Basic
Documents as the Issuer and the Eligible Lender Trustee may from time to time
request; and
WHEREAS, the Administrator and the Servicer have the capacity to
provide the services required hereby and are willing to perform such services
for the Issuer and the Eligible Lender Trustee on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the Depositor, the Issuer, the Eligible Lender
Trustee, the Indenture Trustee, the Servicer and the Administrator, hereby agree
as follows:
ARTICLE I
Section 1.1 Definitions and Usage. Except as otherwise specified herein
or as the context may otherwise require, capitalized terms used but not
otherwise defined herein are defined in Appendix A-1 to the Indenture, which
also contains rules as to usage that shall be applicable herein.
ARTICLE II
Section 2.1 Duties with Respect to the Indenture. The Administrator
agrees to consult with the Eligible Lender Trustee regarding the duties of the
Issuer under the Indenture and the Depository Agreements. The Administrator
shall monitor the performance of the Issuer and shall advise the Eligible Lender
Trustee when action is necessary to comply with the Issuer's duties under the
Indenture and any Depository Agreement. The Administrator shall prepare for
execution by the Issuer or shall cause the preparation by other appropriate
Persons of all such documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of the Issuer to prepare, file or deliver
pursuant to the Indenture and each Depository Agreement. In furtherance of the
foregoing, the Administrator shall take the actions with respect to the
following matters that it is the duty of the Issuer or the Indenture Trustee to
take pursuant to the Indenture:
(a) preparing or obtaining the documents and instruments required
for authentication of the Notes and delivering the same to the Indenture Trustee
(Section 2.2 of the Indenture);
(b) preparing, obtaining or filing the instruments, opinions and
certificates and other documents required for the release of Collateral (Section
2.9 of the Indenture);
(c) obtaining and preserving the Issuer's qualification to do
business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of the Indenture, the
Notes, the Collateral and each other instrument and agreement included in the
Indenture Trust Estate (Section 3.4 of the Indenture);
(d) preparing all supplements, amendments, financing statements,
continuation statements, instruments of further assurance and other instruments,
in accordance with Section 3.5 of the Indenture, necessary to protect the
Indenture Trust Estate (Section 3.5 of the Indenture);
(e) delivering the Opinion of Counsel on the Closing Date and the
annual delivery of Opinions of Counsel, in accordance with Section 3.6 of the
Indenture, as to the Indenture Trust Estate, and the annual delivery of the
Officers' Certificate of the Issuer and certain other statements, in accordance
with Section 3.9 of the Indenture, as to compliance, with the Indenture
(Sections 3.6 and 3.9 of the Indenture);
(f) in the event of a Servicer Default, the taking of all
reasonable steps available to enforce the Issuer's rights under the Basic
Documents in respect of such Servicer Default (Section 3.7(d) of the Indenture);
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(g) preparing and obtaining the documents and instruments required
for the release of the Issuer from its obligations under the Indenture (Section
3.10 of the Indenture);
(h) monitoring the Issuer's obligations as to the satisfaction and
discharge of the Indenture and preparing an Officers' Certificate of the Issuer
and obtaining the Opinion of Counsel and the Independent Certificate relating
thereto (Section 4.1 of the Indenture);
(i) selling of the Indenture Trust Estate in a commercially
reasonable manner if an Event of Default resulting in a non-rescindable,
non-waivable acceleration of the Notes (Section 5.4 of the Indenture) or an
Insolvency Event with respect to the Depositor has occurred and is continuing
(Section 6.5(b) of the Indenture);
(j) preparing and, after execution by the Issuer, filing with the
Commission, any applicable State agencies and the Indenture Trustee documents
required to be filed on a periodic basis with, and summaries thereof as may be
required by rules and regulations prescribed by, the Commission and any
applicable State agencies (Section 7.3 of the Indenture);
(k) opening of one or more accounts in the Issuer's name,
preparing Issuer Orders and Officers' Certificates of the Issuer, obtaining the
Opinions of Counsel and all other actions necessary with respect to investment
and reinvestment of funds in the Trust Accounts (Sections 8.2 and 8.3 of the
Indenture);
(l) preparing an Issuer Request and Officers' Certificate of the
Issuer and obtaining an Opinion of Counsel and Independent Certificates, if
necessary, for the release of the Indenture Trust Estate (Sections 8.4 and 8.5
of the Indenture);
(m) preparing Issuer Orders and obtaining Opinions of Counsel with
respect to the execution of supplemental indentures (Sections 9.1, 9.2 and 9.3
of the Indenture);
(n) preparing the documents and instruments required for the
execution and authentication of new Notes conforming to any supplemental
indenture and the delivery of the same to the Eligible Lender Trustee and the
Indenture Trustee, respectively (Section 9.6 of the Indenture);
(o) preparing all Officers' Certificates of the Issuer and
Independent Certificates and obtaining Opinions of Counsel with respect to any
requests by the Issuer to the Indenture Trustee to take any action under the
Indenture (Section 11.1(a) of the Indenture);
(p) preparing and delivering of Officers' Certificates of the
Issuer and obtaining Independent Certificates, if necessary, for the release of
property from the lien of the Indenture (Section 11.1(b) of the Indenture);
(q) preparing and delivering to Noteholders and the Indenture
Trustee any agreements with respect to alternate payment and notice provisions
(Section 11.6 of the Indenture);
(r) recording the Indenture, if applicable (Section 11.15 of the
Indenture);
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(s) undertaking all obligations required to be performed by the
Administrator, and acting on behalf of the Trust in fulfilling all duties of the
Trust, as set forth in the Reset Rate Note Procedures (Appendix A-2 to the
Indenture) on and prior to each Reset Date;
(t) engaging or terminating any Remarketing Agents, entering into
the Remarketing Agreement on the Closing Date and all subsequent Remarketing
Agreements or Remarketing Agency Agreements each on behalf of the Trust, as set
forth in the Reset Rate Note Procedures;
(u) (i) on the Closing Date, with respect to each class of Reset
Rate Notes during its initial Reset Period, directing the Eligible Lender
Trustee to enter into the Initial Currency Swap Agreements (not in its
individual capacity, but solely on behalf of the Trust) with the Initial
Currency Swap Counterparty and (ii) on any subsequent date, any supplement,
amendment or replacement thereof;
(v) from time to time on or after the Initial Reset Date with
respect to each class of Reset Rate Notes, directing the Eligible Lender Trustee
to enter into one or more Swap Agreements (not in its individual capacity, but
solely on behalf of the Trust) with an Eligible Swap Counterparty or
Counterparties on the terms and conditions set forth in the Reset Rate Note
Procedures, on any Reset Date, when (i) any class of Reset Rate Notes is to be
in Foreign Exchange Mode during the immediately following Reset Period, (ii) any
class of Reset Rate Notes is to bear interest at a fixed rate during the
immediately following Reset Period or (iii) any class of Reset Rate Notes is to
bear interest at a floating rate during the immediately following Reset Period
and the Remarketing Agents (in consultation with the Administrator) determine
that it is in the best interest of the Trust based on then-current market
conditions, or if otherwise required to satisfy the Rating Agency Condition, to
enter into one or more Swap Agreements, and any supplement, amendment or
replacement thereof;
(w) undertaking all obligations required to be performed by the
Administrator, including, without limitation, preparing and delivering all
notices, communications, information and calculations, under any Swap Agreement;
(x) on the Closing Date, directing the Eligible Lender Trustee to
enter into the Interest Rate Cap Agreement (not in its individual capacity, but
solely on behalf of the Trust) with the Interest Rate Cap Swap Counterparty;
(y) calculating, on each Interest Rate Determination Date for each
class of Reset Rate Notes then bearing a floating rate of interest, the
applicable rate of interest using the applicable Index that will be in effect
until the next related Interest Rate Change Date;
(z) calculating on each Distribution Date, as applicable: the
Principal Distribution Amount, the Quarterly Required Amount, the Quarterly
Funding Amount, the Reset Period Target Amount, any amounts to be deposited on
such Distribution Date into an Accumulation Account (if applicable), any
applicable Supplemental Interest Account Deposit Amount, any applicable
Investment Reserve Account Required Amount, any applicable Specified Reserve
Account Balance, any applicable Investment Premium Purchase Account Deposit
Amount and any applicable Investment Premium Purchase Required Amount;
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(aa) calculating on or before each Distribution Date, as
applicable, any amounts to be deposited in, or withdrawn from, each Trust
Account; and
(bb) from time to time, directing the Eligible Lender Trustee, not
in its individual capacity, but solely on behalf of the Trust, to enter into one
or more agreements representing Eligible Repurchase Obligations, with an
Eligible Repo Counterparty.
Section 2.2 Duties with Respect to the Issuer.
(a) In addition to the duties of the Administrator set forth above
and in the other Basic Documents, the Administrator shall perform such
calculations, including calculating on each Interest Rate Determination Date for
each class of Reset Rate Notes then bearing a floating rate of interest, the
applicable rate of interest using the applicable Index that will be in effect
until the next related Interest Rate Change Date, and shall prepare for
execution by the Issuer or the Eligible Lender Trustee or shall cause the
preparation by other appropriate Persons of all such documents, reports,
filings, instruments, certificates and opinions as it shall be the duty of the
Issuer or the Eligible Lender Trustee to prepare, file or deliver pursuant to
the Basic Documents, and at the request of the Eligible Lender Trustee shall
take all appropriate action that it is the duty of the Issuer to take pursuant
to the Basic Documents. Subject to Section 8.1 below, and in accordance with the
directions of the Eligible Lender Trustee, the Administrator shall administer,
perform or supervise the performance of such other activities in connection with
the Collateral (including the Basic Documents) as are not covered by any of the
foregoing provisions and as are expressly requested by the Eligible Lender
Trustee and are reasonably within the capability of the Administrator.
(b) The Administrator shall be responsible for performance of the
duties of the Eligible Lender Trustee set forth in Section 5.4 of the Trust
Agreement and the Administrator shall be entitled to hire an Independent
accounting firm to perform the duties described therein, the reasonable fees and
expenses of which shall be paid by the Depositor or the holder of the Excess
Distribution Certificate, if not then held by the Depositor.
(c) The Administrator shall perform the duties of the
Administrator specified in Section 10.2 of the Trust Agreement required to be
performed in connection with the resignation or removal of the Eligible Lender
Trustee, and any other duties expressly required to be performed by the
Administrator under the Trust Agreement and the other Basic Documents.
(d) The Administrator shall be responsible for preparing and
delivering, on behalf of the Issuer, (i) all notices required by any Clearing
Agency or stock exchange upon which the Notes are then listed and (ii) any
information required to effectuate the listing of the Notes on a stock exchange
of international standing and, if applicable, the transfer of the listing of the
Notes to an alternative stock exchange of international standing.
(e) The Administrator shall be responsible for serving as
Calculation Agent or as successor calculation agent, if required, and shall be
responsible for preparing and delivering any notices required to be delivered by
the Issuer under any Swap Agreement, as applicable, including without
limitation, any notice obligations specified in each Swap Agreement in the
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event of a default, termination event or failure to pay in full any amount due
(as defined in the related Swap Agreement) by the related Swap Counterparty or
the Issuer.
(f) The Administrator shall be responsible for promptly preparing
and delivering a notice to each Rating Agency detailing all actions taken with
respect to any Collateral Arrangement (as defined in each Swap Agreement, as
applicable) required to be provided under the provisions of any Swap Agreement,
and enclosing therewith a copy of each related Collateral Arrangement.
(g) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into transactions
with or otherwise deal with any of its Affiliates; provided, however, that the
terms of any such transactions or dealings shall be, in the Administrator's
opinion, no less favorable to the Issuer than would be available from
unaffiliated parties.
Section 2.3 Establishment of Trust Accounts.
(a) On the Closing Date and at such other times as specified
herein, the Administrator shall establish the following Eligible Deposit
Accounts as more fully described below:
(i) a "Collection Account";
(ii) a "Reserve Account";
(iii) a "Capitalized Interest Account";
(iv) a "Remarketing Fee Account";
(v) one or more "Accumulation Accounts";
(vi) one or more "Supplemental Interest Accounts";
(vii) an "Other Currency Account";
(viii) one or more "Investment Premium Purchase Accounts";
(ix) one or more "Investment Reserve Accounts"; and
(x) a "Pounds Sterling Account."
(b) Funds on deposit in each account specified in Section 2.3(a)
above (collectively, the "Trust Accounts") (other than any Pounds Sterling
Account or Other Currency Account) shall be invested by the Indenture Trustee
(or any custodian or designated agent with respect to any amounts on deposit in
such accounts) in Eligible Investments (including Eligible Investments of the
Indenture Trustee) pursuant to written instructions by the Administrator;
provided, however, it is understood and agreed that the Indenture Trustee shall
not be liable for the selection of, or any loss arising from such investment in,
Eligible Investments. All such Eligible Investments shall be held by (or by any
custodian on behalf of) the Indenture Trustee for
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the benefit of the Issuer; provided that on the Business Day preceding (x) each
Distribution Date, all interest and other Investment Earnings (net of losses and
investment expenses) on funds on deposit in each Trust Account (other than in
any Accumulation Account) shall be deposited into the Collection Account and
deemed to constitute a portion of the Available Funds for such Distribution Date
and (y) each related Distribution Date, all interest and other investment income
(net of losses and investment expenses) on deposit in any Accumulation Account
shall be deposited into the Collection Account and deemed to constitute a
portion of the Available Funds on such Reset Date. Other than as described in
the following proviso or as otherwise permitted by the Rating Agencies, funds on
deposit in the Trust Accounts (other than any Pounds Sterling Account or Other
Currency Account) shall only be invested in Eligible Investments that will
mature so that such funds will be available at the close of business on the
Business Day preceding the following Monthly Servicing Payment Date (to the
extent necessary to pay the Primary Servicing Fee payable on such date) or the
next Distribution Date; provided that funds on deposit in any Accumulation
Account may be invested in Eligible Investments that are scheduled to mature (or
with respect to Eligible Investments under clause (g) of the definition of
"Eligible Investments" are expected to mature) on or before the Business Day
prior to the next Reset Date for the related class of Reset Rate Notes. Funds on
deposit in any Pounds Sterling Account or Other Currency Account shall not be
invested in Eligible Investments. Funds deposited in a Trust Account on a
Business Day which immediately precedes a Monthly Servicing Payment Date,
Distribution Date or, with respect to funds on deposit in any Accumulation
Account, the related Reset Date, upon the maturity of any Eligible Investments,
are not required to be invested overnight; provided, further, that only funds on
deposit in any Accumulation Account may be invested in the Eligible Investments
specified in clause (h) of the definition of "Eligible Investments".
(c) The Depositor and the Issuer pledged to the Indenture Trustee
all of their respective right, title and interest in all funds on deposit from
time to time in the Trust Accounts and in all proceeds thereof (including all
income thereon) and all such funds, investments, proceeds and income shall be
part of the Trust Estate. Subject to the Administrator's power to instruct the
Indenture Trustee pursuant to Section 2.3(b) above and Section 2.3(e) below, the
Trust Accounts shall be under the sole dominion and control of the Indenture
Trustee for the benefit of the related Noteholders, the Issuer and with respect
to the Remarketing Fee Account, the Remarketing Agents. If, at any time, any
Trust Account ceases to be an Eligible Deposit Account, the Indenture Trustee
(or the Administrator on its behalf) agrees, by its acceptance hereto, that it
shall within 10 Business Days (or such longer period, not to exceed 30 calendar
days, as to which each Rating Agency may consent) establish a new Trust Account
as an Eligible Deposit Account and shall transfer any cash and/or any
investments to such new Trust Account. In connection with the foregoing, the
Administrator agrees that, in the event that any of the Trust Accounts are not
accounts with the Indenture Trustee, the Administrator shall notify the
Indenture Trustee in writing promptly upon any of such Trust Accounts ceasing to
be an Eligible Deposit Account.
(d) With respect to the Trust Account Property, the Indenture
Trustee agrees, by its acceptance hereof, that:
(i) any Trust Account Property that is held in deposit
accounts shall be held solely in Eligible Deposit Accounts, subject to
the last sentence of Section 2.3(c) and,
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subject to Section 2.3(b), each such Eligible Deposit Account shall be
subject to the exclusive custody and control of the Indenture Trustee,
and the Indenture Trustee shall have sole signature authority with
respect thereto;
(ii) any Trust Account Property that constitutes Physical
Property shall be Delivered to the Indenture Trustee in accordance with
paragraph (a) of the definition of "Delivery" and shall be held,
pending maturity or disposition, solely by the Indenture Trustee or a
financial intermediary (as such term is defined in Section 8-313(4) of
the UCC) acting solely for the Indenture Trustee;
(iii) any Trust Account Property that is a book-entry
security held through the Federal Reserve System pursuant to Federal
book-entry regulations shall be Delivered in accordance with paragraph
(b) of the definition of "Delivery" and shall be maintained by the
Indenture Trustee, pending maturity or disposition, through continuous
book-entry registration of such Trust Account Property as described in
such paragraph; and
(iv) any Trust Account Property that is an "uncertificated
security" under Article 8 of the UCC and that is not governed by clause
(iii) above shall be Delivered to the Indenture Trustee in accordance
with paragraph (c) of the definition of "Delivery" and shall be
maintained by the Indenture Trustee, pending maturity or disposition,
through continued registration of the Indenture Trustee's (or its
nominee's) ownership of such security.
Notwithstanding anything to the contrary set forth in this Section 2.3(d), the
Indenture Trustee shall have no liability or obligation in respect of any failed
Delivery, as contemplated herein, other than with respect to a Delivery which
fails as a result of any action or inaction on behalf of the Indenture Trustee.
(e) The Administrator shall have the power, revocable, for cause
or upon the occurrence and during the continuance of an Administrator Default,
by the Indenture Trustee or by the Eligible Lender Trustee with the consent of
the Indenture Trustee, to instruct the Indenture Trustee to make withdrawals and
payments from the Trust Accounts for the purpose of permitting the Servicer, the
Administrator or the Eligible Lender Trustee to carry out its respective duties
hereunder or permitting the Indenture Trustee to carry out its duties under the
Indenture.
(f) On the Closing Date, the Administrator, for the benefit of the
Noteholders and the Trust, shall establish and maintain in the name of the
Indenture Trustee an Eligible Deposit Account (the "Collection Account"),
bearing a designation clearly indicating that the funds deposited therein are
held for the benefit of the Trust. The Collection Account will initially be
established as a segregated trust account in the name of the Indenture Trustee
with the corporate trust department of The Bank of New York. On the Closing
Date, the Administrator shall cause the Trust to deposit the Collection Account
Initial Deposit, if any, into the Collection Account.
(g) On the Closing Date, the Administrator, for the benefit of the
Noteholders and the Trust, shall establish and maintain in the name of the
Indenture Trustee an Eligible Deposit Account (the "Reserve Account"), bearing a
designation clearly indicating that the funds
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deposited therein are held for the benefit of the Trust. The Reserve Account
will initially be established as a segregated trust account in the name of the
Indenture Trustee with the corporate trust department of The Bank of New York.
On the Closing Date, the Administrator shall cause the Trust to deposit the
Reserve Account Initial Deposit into the Reserve Account.
(h) On the Closing Date, the Administrator, for the benefit of the
Noteholders and the Trust, shall establish and maintain in the name of the
Indenture Trustee an Eligible Deposit Account (the "Capitalized Interest
Account"), bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Trust. The Capitalized Interest Account
will initially be established as a segregated trust account in the name of the
Indenture Trustee with the corporate trust department of The Bank of New York.
On the Closing Date, the Administrator shall cause the Trust to deposit the
Capitalized Interest Account Initial Deposit into the Capitalized Interest
Account.
(i) On the Closing Date, the Administrator, for the benefit of the
Trust, the Remarketing Agents and the Reset Rate Noteholders, shall establish
and maintain in the name of the Indenture Trustee an Eligible Deposit Account
(the "Remarketing Fee Account"), bearing a designation clearly indicating that
the funds deposited therein are held for the benefit of the Trust, the
Remarketing Agents and the Reset Rate Noteholders. The Remarketing Fee Account
will initially be established as a segregated trust account in the name of the
Indenture Trustee with the corporate trust department of The Bank of New York.
(j) With respect to the Reset Rate Notes, if required on any Reset
Date on which any class of Reset Rate Notes is reset to bear interest at a fixed
rate and principal on such class is not scheduled to be paid until the end of
the related Reset Period, the Administrator, for the benefit of the related
Reset Rate Noteholders and the Trust, shall establish and maintain in the name
of the Indenture Trustee, an Eligible Deposit Account (an "Accumulation
Account") for the benefit of such class of Reset Rate Notes, bearing a
designation clearly indicating that the funds deposited therein are held for the
benefit of the Trust and the related Reset Rate Noteholders. Each Accumulation
Account will initially be established as a segregated trust account in the name
of the Indenture Trustee with the corporate trust department of The Bank of New
York.
(k) With respect to the Reset Rate Notes whenever an Accumulation
Account is established pursuant to Section 2.3(j) above, the Administrator, for
the benefit of the related Reset Rate Noteholders and the Trust, shall establish
and maintain in the name of the Indenture Trustee a corresponding Eligible
Deposit Account (a "Supplemental Interest Account") relating to such
Accumulation Account, bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Trust. Each Supplemental
Interest Account will initially be established as a segregated trust account in
the name of the Indenture Trustee with the corporate trust department of The
Bank of New York.
(l) If required on a Reset Date, the Administrator, for the
benefit of the related Reset Rate Noteholders and the Trust, shall establish and
maintain in the name of the Indenture Trustee an Eligible Deposit Account (an
"Investment Premium Purchase Account"), bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the Trust. Each
Investment Premium Purchase Account will initially be established as a
segregated
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trust account in the name of the Indenture Trustee with the corporate trust
department of The Bank of New York.
(m) If required on a Reset Date, the Administrator, for the
benefit of the related Reset Rate Noteholders and the Trust, shall establish and
maintain in the name of the Indenture Trustee an Eligible Deposit Account (an
"Investment Reserve Account"), bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the Trust. Each Investment
Reserve Account will initially be established as a segregated trust account in
the name of the Indenture Trustee with the corporate trust department of The
Bank of New York.
(n) On any Reset Date on which any class of Reset Rate Notes is
reset into a currency other than U.S. Dollars or Pounds Sterling, the
Administrator, for the benefit of the related Reset Rate Noteholders and the
Trust, shall establish and maintain in the name of the Indenture Trustee, an
Eligible Deposit Account (the "Other Currency Account") for the related Reset
Rate Notes, bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Trust and the related Reset Rate
Noteholders. Each Other Currency Account will initially be established as a
segregated trust account in the name of the Indenture Trustee with the corporate
trust department of the applicable paying agent.
(o) On the Closing Date and during any Reset Period when a class
of Reset Rate Notes is denominated in Pounds Sterling (including each initial
Reset Period), the Administrator, for the benefit of the Trust and the related
Reset Rate Noteholders, shall establish and/or maintain in the name of the
Indenture Trustee, an Eligible Deposit Account (the "Pounds Sterling Account")
for the related Reset Rate Noteholders, bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the Trust and the
related Reset Rate Noteholders. The Pounds Sterling Account will initially be
established as a segregated trust account in the name of the Indenture Trustee
with the corporate trust department of the London Paying Agent.
Section 2.4 Collections; Collection Account.
(a) The Servicer shall remit within two Business Days of receipt
thereof to the Collection Account all payments by or on behalf of the Obligors
with respect to the Trust Student Loans (other than Purchased Student Loans),
and all Liquidation Proceeds, both as collected during the Collection Period,
and the Eligible Lender Trustee shall remit within two Business Days of receipt
thereof to the Collection Account any Interest Subsidy Payments and Special
Allowance Payments received by it with respect to the Trust Student Loans during
the Collection Period. Notwithstanding the foregoing, for so long as (a) the
senior unsecured obligations of the Administrator (or any affiliate of the
Administrator which guarantees the obligations of the Administrator hereunder)
is then assigned a long-term rating of not less than "AA-" (or an equivalent
rating) or a short-term rating of not less than "A-1" (or an equivalent rating)
by each of the Rating Agencies or the remitting by the Servicer and the Eligible
Lender Trustee of the amounts referred to in this Section 2.4 to the
Administrator will not result in a downgrading or withdrawal of any of the
then-current ratings of any of the Notes by any of the Rating Agencies, and (b)
no Administrator Default shall have occurred and be continuing, the Servicer and
the Eligible Lender Trustee shall remit such collections within two Business
Days of receipt thereof to the Administrator, and the Administrator need not
deposit such collections
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into the Collection Account until one Business Day immediately prior to the next
following Monthly Servicing Payment Date (in an amount up to the Servicing Fee
then due) or Distribution Date together with interest on such amounts (less
Servicing Fees paid during such period) calculated on a daily basis from the
first day of the month following receipt thereof by the Administrator through
the last day of the related Collection Period at a rate equal to no less than
the Federal Funds Rate less 0.20%. In the event that the Administrator (and each
such Affiliate which guarantees the obligations of the Administrator) is rated
below "AA-" and "A-1+" by S&P, the Administrator shall deposit all such
collections into the Collection Account at least as frequently as the next
following Monthly Servicing Payment Date, unless less frequent deposits will not
result in a downgrading or withdrawal of S&P's then-current ratings on the
Notes. In the event that any of the foregoing conditions for ceasing daily
remittances shall no longer be satisfied, then the Administrator shall deposit
all collections held by it into the Collection Account within two Business Days
of receipt thereof.
(b) Notwithstanding the foregoing, if required by any related Swap
Agreement and with respect to all Swap Payments due and payable by the Trust to
each Swap Counterparty, the Administrator will deposit such amounts, but only to
the extent funds are allocated for such purpose pursuant to Section 2.8, not
later than the fourth Business Day prior to each related Distribution Date.
Section 2.5 Application of Collections.
(a) With respect to each Trust Student Loan, all collections
(including all Guarantee Payments) with respect thereto for each Collection
Period shall be applied to fees, interest and principal on such Trust Student
Loan by the Servicer in accordance with its customary practice.
(b) All Liquidation Proceeds shall be applied to the related Trust
Student Loan.
Section 2.6 Additional Deposits.
(a) The Servicer shall deposit or cause to be deposited in the
Collection Account the aggregate purchase price with respect to Purchased
Student Loans as determined pursuant to Section 3.5 of the Servicing Agreement
and all other amounts to be paid by the Servicer under Section 3.5 of the
Servicing Agreement on or before the third Business Day before the related
Distribution Date, and the Depositor shall deposit or cause to be deposited in
the Collection Account the aggregate Purchase Amount with respect to Purchased
Student Loans and all other amounts to be paid by the Depositor under Article VI
of the Sale Agreement when such amounts are due.
(b) Notwithstanding anything to the contrary set forth in Section
2.6(a) above, if daily deposits to the Collection Account are not required
pursuant to Section 2.4 above, the Depositor and the Servicer shall pay the
amounts referred to in Section 2.6(a) above that would otherwise be deposited
into the Collection Account to the Administrator. The Administrator shall not be
required to deposit such amounts into the Collection Account until the Business
Day preceding each Distribution Date, subject to the provisions of Section
2.4(b); provided, however, that on or before the Business Day preceding each
Monthly Servicing Payment Date that is not a Distribution Date, the
Administrator shall deposit into the Collection Account that portion of
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such amounts received by it that is equal to the Primary Servicing Fee payable
on such date and provided, further that the Administrator shall also deposit
into the Collection Account on such date, interest on such amounts (less
Servicing Fees paid during such period) calculated on a daily basis from the
first day of the month following receipt thereof by the Administrator through
the last day of the related Collection Period at a rate equal to no less than
the Federal Funds Rate less 0.20%.
(c) With respect to the Swap Agreements, and if the Trust
subsequently becomes a party to any additional Swap Agreements, the
Administrator shall cause all Swap Receipts and all other amounts payable to the
Trust from each Swap Counterparty to be deposited into the Collection Account
(with respect to all Swap Receipts received in U.S. Dollars), the Pounds
Sterling Account (with respect to all Swap Receipts received in Pounds Sterling)
or the applicable Other Currency Account (with respect to all Swap Receipts
received in any currency other than U.S. Dollars or Pounds Sterling).
Section 2.7 Distributions.
(a) On or before the fifth Business Day immediately preceding each
Distribution Date, the Administrator shall calculate all amounts required to be
deposited into the Collection Account from the Trust Accounts, as applicable,
including the amount of all Investment Earnings to be transferred from the Trust
Accounts to the Collection Account, and the amount to be distributed from the
Collection Account as Available Funds and pursuant to paragraph (a)(2) of the
definition of Available Funds on the related Distribution Date. On the fifth
Business Day preceding each Monthly Servicing Payment Date that is not a
Distribution Date, as applicable, the Administrator shall calculate all amounts
required to be deposited into the Collection Account from the Reserve Account
and the amounts to be distributed therefrom on the related Monthly Servicing
Payment Date. In addition, the Administrator shall:
(i) calculate all amounts required to be deposited into
the Collection Account from the Reserve Account and the Capitalized
Interest Account on or before the fifth Business Day preceding each
Distribution Date;
(ii) calculate all amounts required to be deposited into
the Collection Account from the Remarketing Fee Account, any
Supplemental Interest Account, any Investment Premium Purchase Account
and any Investment Reserve Account on or before the Business Day
immediately preceding each Distribution Date;
(iii) calculate, in each case, if and to the extent
applicable, the Class A Noteholders' Distribution Amount, the Class B
Noteholders' Distribution Amount, the Quarterly Required Amount, the
Quarterly Funding Amount, the Reset Period Target Amount, any
Supplemental Interest Account Deposit Amount, the Specified Reserve
Account Balance, any Investment Premium Purchase Account Deposit
Amount, any Investment Premium Purchase Account Release Amount, any
Investment Reserve Account Required Amount and any amounts to be
deposited on such Distribution Date into the related Accumulation
Account from the Collection Account on the related Distribution Date on
or before the Business Day immediately preceding such Distribution
Date;
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(iv) if a Distribution Date is also a Reset Date,
calculate any amounts to be withdrawn from the Remarketing Fee Account
and paid to the applicable Remarketing Agents on or before the Business
Day immediately preceding such Distribution Date; and
(v) if such Distribution Date is also a Reset Date and if
any class of Reset Rate Notes bore interest at a fixed rate during the
previous Reset Period and principal on such class was scheduled to be
paid at the end of the related Reset Period, on or before the Business
Day immediately preceding such Distribution Date, the Administrator
shall calculate all amounts to be withdrawn from the related
Accumulation Account (1) to be paid to the related class of Reset Rate
Noteholders on such Distribution Date if such class of Reset Rate Notes
is then denominated in U.S. Dollars, or (2) if such class of Reset Rate
Notes is then in Foreign Exchange Mode, to be delivered to the related
Currency Swap Counterparty or Counterparties in exchange for the
equivalent amount of the applicable non-U.S. Dollar currency for
payment to the related class of Reset Rate Noteholders on such
Distribution Date.
(b) The Administrator shall instruct the Indenture Trustee in
writing no later than the second Business Day preceding each Monthly Servicing
Payment Date that is not a Distribution Date (based on the information contained
in the Administrator's Certificate and the related Servicer's Report delivered
pursuant to Section 3.1(a) and (b) below) to distribute to the Servicer, by 1:00
p.m. (New York time) on such Monthly Servicing Payment Date, from and to the
extent of the Available Funds on deposit in the Collection Account, the Primary
Servicing Fee due with respect to the preceding calendar month, and the
Indenture Trustee shall comply with such instructions.
(c) Subject to the provisions of Section 2.4(b), the Administrator
shall instruct the Indenture Trustee in writing no later than one Business Day
preceding each Distribution Date (based on the information contained in the
Administrator's Certificate and the related Servicer's Report delivered pursuant
to Sections 3.1(a) and 3.1(c) below) to make the deposits and distributions set
forth in Section 2.8, including allocations of principal to the related
Accumulation Account for each class of Reset Rate Notes then bearing interest at
a fixed rate and not structured to receive a payment of principal until the end
of the related Reset Period together with such other amounts then payable
pursuant to Section 2.8, to the Persons or to the account specified below by
1:00 p.m. (New York time) on such Distribution Date (provided, that funds are
not required to be distributed pursuant to Section 5.4(b) of the Indenture).
These deposits and distributions will be made to the extent of the amount of
Available Funds for that Distribution Date in the Collection Account plus
amounts transferred from the Reserve Account pursuant to Section 2.9, and
through the Distribution Date in April 2005, amounts transferred from the
Capitalized Interest Account pursuant to Section 2.10(a) with respect to clauses
2.8(d)(1), (d)(2) and (e) below, and, as applicable, amounts on deposit in, or
transferred from, the Remarketing Fee Account, any Supplemental Interest
Account, any Accumulation Account, any Investment Premium Purchase Account and
any Investment Reserve Account. The amount of Available Funds in the Collection
Account for each Distribution Date will be distributed or allocated pursuant to
the priority of distributions set forth under Section 2.8. The Indenture Trustee
shall comply with such instructions received by the Administrator.
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Notwithstanding the foregoing, if required by any related Swap
Agreement, the Administrator shall calculate all amounts due and owing to any
Swap Counterparty or to the Trust under a Swap Agreement at least one (1)
Business Day prior to the date such payment is due under the terms of the
related Swap Agreement and direct the Indenture Trustee to make all Swap
Payments to each applicable Swap Counterparty, in the amount allocated for such
purpose pursuant to Section 2.8, on or before the date or dates specified for
those payments in the applicable Swap Agreement.
The Administrator shall instruct the Indenture Trustee in writing no
later than one Business Day preceding each Monthly Servicing Payment Date or
Distribution Date to make the payments pursuant to paragraph (a)(2) of the
definition of Available Funds.
Section 2.8 Priority of Distributions. On each Distribution Date, the
Indenture Trustee shall first reimburse itself for all amounts due under Section
6.7 of the Indenture and then shall make the following deposits and
distributions in the amounts and in the order of priority set forth below:
(a) to the Servicer, the Primary Servicing Fee due on that
Distribution Date;
(b) to the Administrator, the Administration Fee due on that
Distribution Date and all prior unpaid Administration Fees;
(c) to the Remarketing Fee Account, the Quarterly Funding Amount
for that Distribution Date;
(d) pro rata, based on amounts due and owing:
(1) to the Class A Noteholders (other than any class of
Reset Rate Noteholders if a Swap Agreement with respect to interest
payments to be made to such Reset Rate Noteholders is then in effect),
the Class A Noteholders' Interest Distribution Amount, pro rata, based
on the amounts payable as Class A Noteholders' Interest Distribution
Amount;
(2) if any Swap Agreement is then in effect for any class
of Reset Rate Notes with respect to interest payments to be made to
such Reset Rate Noteholders, to each applicable Swap Counterparty, the
amount of the related Swap Interest Payment (together with any unpaid
Swap Interest Payments from any prior Distribution Date, with interest
due thereon) due to each applicable Swap Counterparty under the related
Swap Agreement; and
(3) to each Swap Counterparty (other than the Interest
Rate Cap Swap Counterparty), the amount of any Swap Termination Payment
due to such Swap Counterparty under the related Swap Agreement due
solely to a Termination Event or Event of Default (as defined in the
related Swap Agreement, as applicable) resulting from a payment default
under the related Swap Agreement by the Trust or the bankruptcy of the
Trust;
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(e) to the Class B Noteholders, the Class B Noteholders' Interest
Distribution Amount, pro rata, based on the amounts payable as Class B
Noteholders' Interest Distribution Amount;
(f) first, sequentially, to the Class A-1 Noteholders, the Class
A-2 Noteholders, the Class A-3 Noteholders, the Class A-4 Noteholders and the
Class A-5 Noteholders, in that order, until the Outstanding Principal Balance of
each such class is paid in full, the Class A Noteholders' Principal Distribution
Amount; and second, any remaining Class A Noteholders' Principal Distribution
Amount, pro rata, to the Class A-6A and Class A-6B Noteholders, until the
Outstanding Principal Balance of each such Class is paid in full; provided,
however, (i) with respect to the Reset Rate Notes, if any class of Reset Rate
Notes is then denominated in U.S. Dollars, bears interest at a fixed rate and is
not structured to receive a payment of principal until the end of the related
Reset Period, such payments will be allocated to the related Accumulation
Account, until amounts (less any Investment Earnings) on deposit therein are
sufficient to reduce the Outstanding Amount of that class of Reset Rate Notes to
zero, and (ii) with respect to any class of Reset Rate Notes, if in Foreign
Exchange Mode, such payments either will be made to the related Swap
Counterparty or Counterparties (if such class of Reset Rate Notes then bears
interest at a floating rate) or will be allocated to the related Accumulation
Account (if such class of Reset Rate Notes then bears interest at a fixed rate
and is not structured to receive a payment of principal until the end of the
related Reset Period) until the U.S. Dollar Equivalent Principal Amount of such
class of Reset Rate Notes has been distributed to the related Swap Counterparty
or Counterparties or allocated to the related Accumulation Account; provided
that for purposes of this priority second, the Outstanding Amount of any class
of Reset Rate Notes will be deemed to have been reduced by any amounts (less any
Investment Earnings) on deposit in any related Accumulation Account; and
provided, further, that on any Reset Date on which both classes of Reset Rate
Notes are successfully remarketed, this priority second may be changed from a
pro rata to a sequential allocation (or vice versa), and such allocation may not
be changed again until the next Reset Date on which both classes of Reset Rate
Notes are successfully remarketed;
(g) to any Supplemental Interest Account, the applicable
Supplemental Interest Account Deposit Amount, if any, for such Distribution
Date;
(h) to any Investment Reserve Account, the amount, if any,
required to fund such account to the applicable Investment Reserve Account
Required Amount;
(i) on each Distribution Date on and after the Stepdown Date, and
provided no Trigger Event is in effect on such Distribution Date, the Class B
Noteholders, until paid in full, the Class B Noteholders' Principal Distribution
Amount;
(j) to the Reserve Account, the amount, if any, necessary to
reinstate the balance of the Reserve Account to the Specified Reserve Account
Balance;
(k) to any Investment Premium Purchase Account, the applicable
Investment Premium Purchase Account Deposit Amount, if any, together with any
carryover shortfalls not deposited on previous Distribution Dates;
15
(l) to the Servicer, the aggregate unpaid amount of the Carryover
Servicing Fee, if any;
(m) if applicable, to any Swap Counterparty or Counterparties, pro
rata, the amount of any Swap Termination Payments due to the Swap Counterparty
or Counterparties, as the case may be, not payable in clause (d)(3) above;
(n) if applicable, to the Remarketing Agents, any Remarketing Fees
due and owing by the Trust to the extent not paid from amounts on deposit in the
Remarketing Fee Account;
(o) if applicable, sequentially, first to the Remarketing Agents
for certain expenses incurred in connection with the remarketing of any class of
Reset Rate Notes on such Distribution Date, and second to the Administrator for
advances made on behalf of the Trust for the payment of remarketing expenses on
that or prior Distribution Dates; and
(p) to the Excess Distribution Certificateholder (initially the
Depositor or an Affiliate thereof), any remaining amounts after application of
the preceding clauses.
Amounts that would be paid to each Swap Counterparty pursuant to
clauses (d)(2), (f) or (m) above, (1) with respect to payments of interest on
any class of Reset Rate Notes if then bearing a fixed rate of interest or with
respect to payments of principal on any class of Reset Rate Notes then in
Foreign Exchange Mode, will be determined on or before the fourth Business Day
preceding each Distribution Date and will be paid by the Trust to the related
Swap Counterparty on or about the third Business Day preceding each Distribution
Date in accordance with the applicable Swap Agreement (or, with respect to a
Distribution Date that coincides with a Reset Date resulting in a successful
remarketing of any class of Reset Rate Notes then in Foreign Exchange Mode,
payments under the related Swap Agreement will be made one Business Day prior to
such Distribution Date); and (2) with respect to payments of interest on any
class of Reset Rate Notes if then bearing a floating rate of interest, will be
paid by the Trust to the related Swap Counterparty by 1:00 p.m. (New York time)
on the Business Day immediately preceding each Distribution Date.
In the event that a Swap Termination Payment is owed by the Trust to
any Swap Counterparty and a Replacement Transaction (as defined in the related
Swap Agreement) is procured by the Trust under which the replacement Swap
Counterparty makes a payment to the Trust, the Trust will pay that amount
directly to the original Swap Counterparty to the extent that a payment is owed
by the Trust to that Swap Counterparty. If after making that payment, the
original Swap Counterparty is still owed a payment, then the remaining amount
will be paid as set forth in clause (m) above.
If a Currency Swap Agreement terminates, amounts that would have
otherwise been paid to the related Swap Counterparty under the related Currency
Swap Agreement will be used to make payments to the related class of Reset Rate
Noteholders in an amount in Pounds Sterling or any other applicable non-U.S.
Dollar currency equal to the payment that would have been made by the related
Swap Counterparty to the Trust. If this occurs, the Trust will exchange U.S.
Dollars for Pounds Sterling or any other applicable non-U.S. Dollar currency in
order to make distributions to the related class of Reset Rate Noteholders.
16
Notwithstanding the foregoing, in the event the Trust Student Loans are
not sold pursuant to Section 6.1(A) or Section 4.4 of the Indenture, the amount
that would otherwise be paid to the Excess Distribution Certificateholder shall
be applied on such Distribution Date to pay as an accelerated payment of
principal on the Notes, first to the Class A Noteholders in the same order and
priority as is set forth in clause 2.8(f) above until the Outstanding Amount of
the Class A Notes are paid in full and reduced to zero, and then to the Class B
Noteholders as set forth in clause 2.8(i) above; provided that the amount of
such distribution shall not exceed the Outstanding Amount of the Class A Notes
or the Class B Notes, as applicable, after giving effect to all other payments
in respect of principal of Class A Notes and Class B Notes to be made on such
Distribution Date.
Notwithstanding the foregoing, if:
(i) on any Distribution Date following distributions or
allocations under clauses 2.8(a) through (f) above to be made on that
Distribution Date, without giving effect to any payments from the
Capitalized Interest Account to the Class B Noteholders, the
Outstanding Amount of the Class A Notes (or if any class of Reset Rate
Notes is then in Foreign Exchange Mode, then the U.S. Dollar Equivalent
Principal Amount), less amounts (other than Investment Earnings) on
deposit in any Accumulation Account, would be in excess of:
(1) the outstanding principal balance of the
Trust Student Loans, plus
(2) any accrued but unpaid interest on the Trust
Student Loans as of the last day of the related Collection
Period, plus
(3) the balance of Reserve Account Balance on
such Distribution Date following those distributions required
to be made under clauses 2.8 (a) through (f) above, minus
(4) the Specified Reserve Account Balance and
any Supplemental Interest Account Deposit Amount(s) for that
Distribution Date, or
(ii) an Event of Default affecting the Class A Notes has
occurred and is continuing,
then, until the conditions described in clauses (i) and (ii) above no longer
exist, the amounts on deposit in the Collection Account and the Reserve Account
will be applied on that Distribution Date to the payment of the Class A
Noteholders' Distribution Amount and the Supplemental Interest Account Deposit
Amount(s) before any amounts are applied to the payment of the Class B
Noteholders' Distribution Amount.
Section 2.9 Reserve Account. On the Closing Date, the Issuer shall
deposit the Reserve Account Initial Deposit into the Reserve Account.
(a) In the event that the Primary Servicing Fee for any Monthly
Servicing Payment Date or Distribution Date exceeds the amount distributed to
the Servicer pursuant to Section 2.7(b) above and Section 2.8(a) above on such
Monthly Servicing Payment Date or
17
Distribution Date, the Administrator shall instruct the Indenture Trustee in
writing to withdraw from the Reserve Account on such Monthly Servicing Payment
Date or Distribution Date an amount equal to such excess, to the extent of funds
available therein, and to distribute such amount to the Servicer; provided,
however, that except as provided in Section 2.9(f) below, amounts on deposit in
the Reserve Account will not be available to cover any unpaid Carryover
Servicing Fees to the Servicer.
(b) In the event that the Available Funds are insufficient to make
the payments described under Sections 2.8(a) through 2.8(c), 2.8(d)(1),
2.8(d)(2) and 2.8(e) above on any Distribution Date (after giving effect to
required distributions and/or allocations from the Capitalized Interest
Account), the Administrator shall instruct the Indenture Trustee in writing to
withdraw from the Reserve Account on each Distribution Date an amount equal to
such deficiency, to the extent of funds available therein after giving effect to
clause (a) above, and to distribute and/or allocate such amounts in the same
order and priority as is set forth in Sections 2.8(c), 2.8(d)(1), 2.8(d)(2) and
2.8(e) above.
(c) In the event that the Class A Noteholders' Principal
Distribution Amount on the Note Final Maturity Date with respect to any Class of
Class A Notes exceeds the amount distributed to such Class A Noteholders
pursuant to Section 2.8(f) above on such date, the Administrator shall instruct
the Indenture Trustee in writing to withdraw from the Reserve Account on such
Note Final Maturity Date an amount equal to such excess, to the extent of funds
available therein after giving effect to clauses (a) and (b) above, and to
distribute such amount to the Class A Noteholders entitled thereto, in the same
order and priority as is set forth in Section 2.8(f) above.
(d) In the event that the Class B Noteholders' Principal
Distribution Amount on the Class B Maturity Date exceeds the amount distributed
to the Class B Noteholders pursuant to Section 2.8(i) on such date, the
Administrator shall instruct the Indenture Trustee in writing to withdraw from
the Reserve Account on the Class B Maturity Date an amount equal to such excess,
to the extent of funds available therein after giving effect to clauses (a)
through (c) above, and to distribute such amount to the Class B Noteholders
entitled thereto.
(e) After giving effect to clauses (a) through (d) above, if the
amount on deposit in the Reserve Account on any Distribution Date (after giving
effect to all deposits or withdrawals therefrom on such Distribution Date other
than pursuant to this clause (e)) is greater than the Specified Reserve Account
Balance for such Distribution Date, the Administrator shall instruct the
Indenture Trustee in writing to withdraw the amount on deposit in excess of the
Specified Reserve Account Balance and deposit such amount into the Collection
Account.
(f) On the final Distribution Date upon termination of the Trust
and following the payment in full of the Outstanding Amount of the Notes and of
all other amounts (other than Carryover Servicing Fees, Swap Termination
Payments, if applicable, and remarketing fees and expenses) owing or to be
distributed hereunder or under the Indenture to Noteholders, the Servicer, any
Swap Counterparty, the Remarketing Agents or the Administrator, as applicable,
to the extent that Available Funds on such date are insufficient to make the
following payments, amounts remaining in the Reserve Account shall be used first
to pay any Carryover Servicing Fees, second to pay any Swap Termination Payments
not previously paid to the applicable Swap
18
Counterparty, if any, third to pay any remarketing fees not previously paid from
the Remarketing Fee Account and fourth to pay any remarketing fees and expenses
due to the Remarketing Agents or the Administrator. Any amount remaining on
deposit in the Reserve Account after such payments have been made shall be
distributed to the Excess Distribution Certificateholder. The Excess
Distribution Certificateholder shall in no event be required to refund any
amounts properly distributed pursuant to this Section 2.9(f).
(g) Anything in this Section 2.9 to the contrary notwithstanding,
if the market value of securities and cash in the Reserve Account is on any
Distribution Date sufficient to pay the remaining principal amount of and
interest accrued on the Notes, and to pay any unpaid Carryover Servicing Fee,
Swap Termination Payments and remarketing fees and expenses, such amount will be
so applied on such Distribution Date and the Administrator shall instruct the
Eligible Lender Trustee and the Indenture Trustee to make such payments.
Section 2.10 Investment Earnings; Other Trust Accounts. The
Administrator will instruct the Indenture Trustee to (1) withdraw all Investment
Earnings, if any on deposit in (x) each Trust Account, other than any
Accumulation Account, on each Distribution Date and (y) any Accumulation Account
on each Distribution Date, but only to the extent funds are received by the
Trust with respect thereto, (2) deposit such amounts into the Collection Account
and (3) include such amounts as Available Funds for that Distribution Date.
(a) Capitalized Interest Account. On the Closing Date, the Issuer
shall deposit the Capitalized Interest Account Initial Deposit into the
Capitalized Interest Account.
(i) In the event that the Available Funds, less the
Principal Distribution Amounts, are insufficient to make the payments
described under Sections 2.8(d)(1), 2.8(d)(2) and 2.8(e) on a
Distribution Date (prior to any distributions and/or allocations from
amounts on deposit in the Reserve Account), the Administrator shall
instruct the Indenture Trustee in writing to withdraw from the
Capitalized Interest Account an amount equal to such deficiencies, to
the extent of funds available therein, and to distribute and/or
allocations such amount first, pro rata based on the amounts of such
shortfalls, to the Class A Noteholders until they have received the
Class A Noteholders' Interest Distribution Amount for that Distribution
Date and the related Swap Counterparty until it has received the Swap
Interest Payments required to be made under Section 2.8(d)(2) above,
and second, so long as the events described in clauses (i) and (ii) of
the last paragraph of Section 2.8 have not occurred, to the Class B
Noteholders until they have received the Class B Noteholders' Interest
Distribution Amount for that Distribution Date.
(ii) After giving effect to Section 2.10(a)(i) above, on
the Distribution Date in April 2005, the Administrator shall instruct
the Indenture Trustee in writing to withdraw all amounts remaining from
the Capitalized Interest Account and include such funds with other
Available Funds on that Distribution Date.
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(b) Remarketing Fee Account.
(i) On each Distribution Date that is one year or less
prior to a Reset Date, the Administrator shall instruct the Indenture
Trustee in writing to withdraw from the Collection Account an amount
equal to the Quarterly Funding Amount.
(ii) If amounts remaining on deposit in the Remarketing
Fee Account on any Distribution Date, after giving effect to all
distributions required to be made on that Distribution Date, exceeds
the sum of the Reset Period Target Amount for the related class of
Reset Rate Notes, the Administrator shall instruct the Indenture
Trustee in writing to withdraw such excess amount, deposit such excess
amount into the Collection Account and include such excess amount as
Available Funds for that Distribution Date.
(iii) The Administrator shall instruct the Indenture
Trustee in writing no later than one Business Day preceding each
Distribution Date that is also a Reset Date for any class of Reset Rate
Notes, to withdraw from the Remarketing Fee Account on such
Distribution Date the amount of the fees due to the Remarketing Agents
pursuant to Section 2.8(c) above and pay such fees to the Remarketing
Agents by 1:00 p.m. (New York time) on such Distribution Date, in the
amounts and to the accounts that the Administrator shall specify;
provided that if the amount (excluding for such purpose any Investment
Earnings) on deposit in the Remarketing Fee Account is not sufficient
to make payment in full, the Remarketing Agents shall be entitled to
payment at the priority position set forth in clause 2.8(n) above on
the related and subsequent Distribution Dates until such deficiency is
paid in full.
(c) Accumulation Accounts.
(i) If, on any Distribution Date, with respect to any
class of Reset Rate Notes then bearing interest at a fixed rate for
which principal on such class is not scheduled to be paid until the end
of the related Reset Period, any principal amount payable on that
Distribution Date will be allocated to that class of Reset Rate Notes
pursuant to Section 2.8(f) above and deposited into the related
Accumulation Account.
(ii) If any class of Reset Rate Notes is denominated in
U.S. Dollars, bears interest at a fixed rate during the then-current
Reset Period and principal on such class is not scheduled to be paid
until the end of the related Reset Period, the Administrator shall
instruct the Indenture Trustee in writing no later than one Business
Day preceding each Distribution Date that is also a Reset Date, to
withdraw from the related Accumulation Account on such Distribution
Date (after any additional allocations of principal are made to that
account on such Distribution Date) the amount (less any Investment
Earnings) on deposit in such Accumulation Account and distribute (by
1:00 p.m. (New York time) on the related Distribution Date) such
amounts to the related Reset Rate Noteholders as of the immediately
current Record Date, pro rata, as a payment of principal as set forth
in clause 2.8(f) above. If any class of Reset Rate Notes is in Foreign
Exchange Mode, bears interest at a fixed rate during the then-current
Reset Period and is not structured to receive a payment of principal
until the end of the related Reset Period, the Administrator shall
instruct the Indenture Trustee in writing no later than one Business
Day preceding
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each Distribution Date that is also a Reset Date, to withdraw from the
related Accumulation Account on such Distribution Date (after any
additional allocations of principal are made to that account on such
Distribution Date) the amount (less any Investment Earnings) on deposit
in such Accumulation Account and deliver such amounts to the related
Currency Swap Counterparty or Counterparties in exchange for the amount
of the applicable non-U.S. Dollar currency, determined using the
exchange rate set forth in the related Swap Agreement, for payment to
the related Reset Rate Noteholders as of the immediately preceding
Record Date, pro rata, as a payment of principal as set forth in clause
2.8(f) above. Amounts (less any Investment Earnings) on deposit in the
related Accumulation Account may be used only to pay principal on the
related class of Reset Rate Notes (or to the related Currency Swap
Counterparty or Counterparties) and for no other purpose.
(iii) In the event that on any Distribution Date the amount
(less any Investment Earnings) on deposit for any class of Reset Rate
Notes in the related Accumulation Account, including amounts deposited
on that Distribution Date, would equal the Outstanding Amount of that
class of Reset Rate Notes, then no additional amounts will be deposited
into the related Accumulation Account and all amounts therein, less any
Investment Earnings, will be distributed on the next related Reset
Date, pursuant to Section 2.10(c)(ii) above, and the Outstanding Amount
of that class of Reset Rate Notes will be reduced to zero.
(d) Supplemental Interest Accounts.
(i) On each Distribution Date when amounts are on deposit
in an Accumulation Account, the Indenture Trustee, subject to
sufficient Available Funds therefor, will deposit into the related
Supplemental Interest Account, the related Supplemental Interest
Account Deposit Amount for such Distribution Date, pursuant to Section
2.8(g) above.
(ii) The Administrator will instruct the Indenture Trustee
to withdraw all amounts (including any Investment Earnings) on deposit
in any Supplemental Interest Account on each Distribution Date, deposit
such amounts into the Collection Account, and include such sums as
Available Funds for that Distribution Date.
(e) Investment Premium Purchase Accounts.
(i) From time to time, the Administrator will instruct
the Indenture Trustee in writing to withdraw amounts from an Investment
Premium Purchase Account, and utilize such amounts to pay for the
purchase price in excess of par of any Eligible Investments in
connection with the related Accumulation Account.
(ii) On each Distribution Date, the Administrator, with
respect to any Investment Premium Purchase Account, will instruct the
Indenture Trustee in writing to (1) withdraw the Investment Premium
Purchase Account Release Amount (including any Investment Earnings in
such Investment Premium Purchase Account), (2) deposit such
21
funds into the Collection Account, and (3) include such funds as
Available Funds for that Distribution Date.
(f) Investment Reserve Accounts.
(i) If the ratings of any Eligible Investment in
connection with the related Accumulation Account have been downgraded
by one or more Rating Agencies, on the next Distribution Date the
Administrator will instruct the Indenture Trustee to deposit the
applicable Investment Reserve Account Required Amount into the related
Investment Reserve Account to the extent of Available Funds remaining
after giving effect to distributions and/or allocations made pursuant
to Section 2.8(a) through (g). On each Distribution Date, the
Administrator will instruct the Indenture Trustee to withdraw from any
Investment Reserve Account any amounts required to offset realized
losses on Eligible Investments in connection with the related
Accumulation Account, and deposit that amount into such Accumulation
Account.
(ii) On each Distribution Date, the Administrator, with
respect to any Investment Reserve Account, will instruct the Indenture
Trustee to (1) withdraw all amounts (including any Investment Earnings)
which were not deposited into the related Accumulation Account and have
remained on deposit in such Investment Reserve Account from the
immediately preceding Distribution Date, (2) deposit such funds into
the Collection Account, and (3) include such funds as Available Funds
for that Distribution Date.
(g) Pounds Sterling Account.
(i) The Trust shall establish on the Closing Date and
shall maintain a Pounds Sterling Account for any class of Reset Rate
Notes during any Reset Period when any class of Reset Rate Notes is
denominated in Pounds Sterling (including the initial Reset Period).
(ii) Any payments in Pounds Sterling received from any
Currency Swap Counterparty will be deposited into the Pounds Sterling
Account for the benefit of the related Reset Rate Noteholders during
any Reset Period when any class of Reset Rate Notes is denominated in
Pounds Sterling.
(iii) No later than the Business Day preceding each
Distribution Date, the Administrator shall instruct the London Paying
Agent in writing to distribute all amounts on deposit in the Pounds
Sterling Account during any Reset Period when any class of Reset Rate
Notes is denominated in Pounds Sterling, to the related Reset Rate
Noteholders by 1:00 p.m. (New York time) on the related Distribution
Date; provided, however, that with respect to any Distribution Date
that coincides with a Reset Date for such class, the Administrator will
instruct the London Paying Agent to distribute the amounts in the
Pounds Sterling Account to the related Reset Rate Noteholders by 1:00
p.m. (New York time) on the second Business Day following such
Distribution Date. If the related Swap Agreement is not in effect, the
Administrator shall cause U.S. Dollars to
22
be converted into Pounds Sterling in amounts sufficient to make the
distributions specified in this Agreement and the Indenture.
(h) Other Currency Account.
(i) On each Reset Date with respect to any class of Reset
Rate Notes while in Foreign Exchange Mode that is then denominated in a
currency other than U.S. Dollars or Pounds Sterling, the Trust shall
establish an Other Currency Account for such class of Reset Rate Notes.
(ii) Any payments in the related currency received from
any Currency Swap Counterparty will be deposited into the related Other
Currency Account for the benefit of the related Reset Rate Noteholders.
(iii) The Administrator shall instruct the London Paying
Agent in writing no later than the Business Day preceding each
Distribution Date to distribute all amounts on deposit in the
applicable Other Currency Account to the related Reset Rate Noteholders
by 1:00 p.m. (New York time) on the related Distribution Date;
provided, however, that with respect to any Distribution Date that
coincides with a Reset Date when any class of Reset Rate Notes is then
in Foreign Exchange Mode, the Administrator will instruct the London
Paying Agent to distribute the amounts in the applicable Other Currency
Account to the related Noteholders by 1:00 p.m. (New York time) on the
second Business Day following such Distribution Date. If the related
Swap Agreement is not in effect, the Administrator shall cause U.S.
Dollars to be converted into such other applicable non-U.S. Dollar
currency in amounts sufficient to make the distributions specified in
this Agreement and the Indenture.
(i) Collection Account. On the Closing Date, the Issuer shall
deposit the amount of the Collection Account Initial Deposit into the Collection
Account. This amount will be included with other Available Funds on the first
Distribution Date.
Section 2.11 Statements to Excess Distribution Certificateholders and
Noteholders. On each Determination Date preceding a Distribution Date, the
Administrator shall provide to the Indenture Trustee and the Eligible Lender
Trustee (with a copy to the Rating Agencies) for the Indenture Trustee to
forward on such succeeding Distribution Date to each Noteholder of record and
for the Eligible Lender Trustee to forward on such succeeding Distribution Date
to each Excess Distribution Certificateholder of record, a statement, setting
forth at least the following information as to the Notes and the Excess
Distribution Certificate to the extent applicable:
(a) the amount of such distribution allocable to principal of each
class of the Notes (including amounts deposited into an Accumulation Account);
(b) the amount of the distribution allocable to interest on each
class of the Notes;
(c) the amount of the distribution allocable to the Excess
Distribution Certificate, if any;
(d) [Reserved];
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(e) the Pool Balance as of the close of business on the last day
of the preceding Collection Period;
(f) the aggregate outstanding principal balance of the Notes, the
Note Pool Factor, and as of such Distribution Date, after giving effect to
payments allocated to principal reported under clauses (a) and (c) above;
(g) the Note Rate for the next period for each class of Notes
(identifying separately any applicable Index);
(h) the amount of the Servicing Fee and any Carryover Servicing
Fee paid to the Servicer on such Distribution Date and on the two preceding
Monthly Servicing Payment Dates, and the amount, if any, of the Carryover
Servicing Fee remaining unpaid after giving effect to any such payments;
(i) the amount of the Administration Fee paid to the Administrator
on such Distribution Date;
(j) with respect to each class of Reset Rate Notes: (i) the next
related Reset Date and the related Reset Period; (ii) if in Foreign Exchange
Mode, the next Distribution Date on which interest will be paid to the related
Reset Rate Noteholders, if other than quarterly; (iii) the amount on deposit in
the related Accumulation Account, the related Supplemental Interest Account, the
related Investment Premium Purchase Account, the related Investment Reserve
Account and the Pounds Sterling Account or the Other Currency Account, as
applicable; (iv) the interest rate and amount due to each Swap Counterparty, if
applicable; (v) the amount of fees, if any, paid to the Remarketing Agents on
such Distribution Date; and (vi) any other relevant information as determined by
the Administrator;
(k) the amount of the aggregate Realized Losses, if any, for the
related Collection Period and the balance of Trust Student Loans that are
delinquent in each delinquency period as of the end of such Collection Period;
(l) the amount of any Note Interest Shortfall, if any, in each
case as applicable to each class of Notes, and the change in such amounts from
the preceding statement;
(m) the aggregate Purchase Amounts for Trust Student Loans, if
any, that were repurchased by the Depositor or purchased by the Servicer, SLMA
or SLM ELC from the Issuer in such Collection Period;
(n) the respective balance of the Reserve Account and the
Capitalized Interest Account, if any, on such Distribution Date, after giving
effect to changes therein on such Distribution Date;
(o) the amount received from and paid to each Swap Counterparty
for such Distribution Date and the amount of any Termination Payment made or
received by the Trust during the applicable Collection Period.
24
(p) the balance of Trust Student Loans that are delinquent in each
delinquency period as of the end of that Collection Period; and
(q) the amount on deposit, if any, in the Investment Reserve
Account and the Investment Premium Purchase Account and the aggregate amount of
any realized losses on Eligible Investments.
Each amount set forth pursuant to clauses (a), (b), (c), (f), (h), (i),
(j)(iii), (j)(iv), (k) and (l) above shall be expressed as a dollar amount per
$1,000 of original principal balance of a Note denominated in U.S. Dollars, or
if any class of Reset Rate Notes is then denominated in a currency other than
U.S. Dollars, expressed as an amount in the applicable currency per the
applicable currency equivalent (approximately) of $1,000 of the original
principal balance of that Note. A copy of the statements referred to above may
be obtained by any Excess Distribution Certificateholder or Note Owner by a
written request to the Eligible Lender Trustee or the Indenture Trustee,
respectively, addressed to the respective Corporate Trust Office.
Section 2.12 Non-Ministerial Matters. With respect to matters that in
the reasonable judgment of the Administrator are non-ministerial, the
Administrator shall not take any action unless within a reasonable time before
the taking of such action, the Administrator shall have notified the Eligible
Lender Trustee of the proposed action and the Eligible Lender Trustee shall not
have withheld consent or provided an alternative direction. For the purpose of
the preceding sentence, "non-ministerial matters" shall include:
(a) the amendment of or any supplement to the Indenture;
(b) the initiation of any claim or lawsuit by the Issuer and the
compromise of any action, claim or lawsuit brought by or against the Issuer
(other than in connection with the collection of the Trust Student Loans);
(c) the amendment, change or modification of the Basic Documents;
(d) the appointment of successor Note Registrars, successor Paying
Agents and successor Indenture Trustees pursuant to the Indenture or the
appointment of Successor Administrators or Successor Servicers, or the consent
to the assignment by the Note Registrar, Paying Agent or Indenture Trustee of
its obligations under the Indenture; and
(e) the removal of the Indenture Trustee.
Section 2.13 Exceptions. Notwithstanding anything to the contrary in
this Agreement, except as expressly provided herein or in the other Basic
Documents, the Administrator shall not be obligated to, and shall not, (a) make
any payments to the Noteholders under the Basic Documents, (b) sell the
Indenture Trust Estate pursuant to Section 5.04 of the Indenture, (c) take any
other action that the Issuer directs the Administrator not to take on its
behalf, (d) in connection with its duties hereunder assume any indemnification
obligation of any other Person or (e) service the Trust Student Loans.
Section 2.14 Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for its
expenses related
25
thereto, the Administrator shall be entitled to $25,000 for each Collection
Period payable on the related Distribution Date (the "Administration Fees")
payable in arrears which shall be solely an obligation of the Issuer.
Section 2.15 Servicer and Administrator Expenses. Each of the Servicer
and the Administrator shall be severally required to pay all expenses incurred
by it in connection with its activities hereunder, including fees and
disbursements of independent accountants, taxes imposed on the Servicer or the
Administrator, as the case may be, and expenses incurred in connection with
distributions and reports to the Administrator or to the Certificateholders and
the Noteholders, as the case may be. To the extent that there are insufficient
Available Funds therefor, the Administrator shall advance from its funds and
also pay, on behalf of the Trust, the costs and expenses (other than remarketing
fees) associated with the remarketing of any class of Reset Rate Notes, set
forth in Section 3 of the Remarketing Agreement, including, without limitation,
the fees of the Rating Agencies in connection with any required satisfaction of
the Rating Agency Condition. On each Distribution Date, the Administrator shall
be entitled to reimbursement from the Trust for such remarketing related
expenses, from Available Funds, as set forth in Section 2.8(o) above.
ARTICLE III
Section 3.1 Administrator's Certificate; Servicer's Report.
(a) On or before the tenth day of each month (or, if any such day
is not a Business Day, on the next succeeding Business Day), the Servicer shall
deliver to the Administrator a Servicer's Report with respect to the preceding
month containing all information necessary for the Administrator to receive in
connection with the preparation of the Administrator's Officers' Certificate and
the Administrator's Certificate covering such calendar month referred to in
Section 3.1(b) below. On or before the tenth day (or, if any such day is not a
Business Day, on the next succeeding Business Day), preceding each Distribution
Date the Servicer shall deliver to the Administrator a Servicer's Report with
respect to the preceding Collection Period containing all information necessary
for the Administrator to receive in connection with the preparation of the
Administrator's Officers' Certificate and the Administrator's Certificate
covering such calendar month referred to in Section 3.1(c) below.
(b) On the second Business Day prior to each Monthly Servicing
Payment Date that is not a Distribution Date, the Administrator shall deliver to
the Eligible Lender Trustee and the Indenture Trustee, an Officer's Certificate
of the Administrator containing all information necessary to pay the Servicer
the Primary Servicing Fee due on such Monthly Servicing Payment Date pursuant to
Section 2.7(b) above.
(c) On each Determination Date prior to a Distribution Date or
earlier to the extent required for the Indenture Trustee to make distributions
to any Swap Counterparty, the Administrator shall deliver to the Eligible Lender
Trustee and the Indenture Trustee, with a copy to the Rating Agencies, an
Administrator's Certificate containing all information necessary to make the
distributions pursuant to Sections 2.7 and 2.8 above, if applicable, for the
Collection Period preceding the date of such Administrator's Certificate.
26
(d) Prior to each Determination Date, the Administrator shall
determine the Note Rates and that will be applicable to the Distribution Date
following such Determination Date, in compliance with its obligation to prepare
and deliver an Administrator's Certificate on such Determination Date pursuant
to this Section 3.1. In connection therewith, the Administrator shall calculate
Five-Month LIBOR or Four-Month LIBOR, as applicable, Five-Month GBP-LIBOR or
Four-Month GBP-LIBOR, as applicable, and the interpolated interest rate for all
Notes for the first Accrual Period, and for each subsequent Accrual Period shall
calculate, as applicable, on each Interest Rate Determination Date during such
Accrual Period, Three-Month LIBOR, Three-Month GBP-LIBOR, EURIBOR, the
Commercial Paper Rate, the CMT Rate, the Federal Funds Rate, the 91-day Treasury
▇▇▇▇ Rate, the Prime Rate (in each case only if applicable to any class of Reset
Rate Notes during such Accrual Period) or any other rate or index relevant to
the payment of interest of any Note, in accordance with the definitions of each
such Index. In addition, the Administrator hereby accepts the delegation to it
of the obligations of the "Calculation Agent" under any Swap Agreement, as
applicable, to which the Issuer is a party.
(e) The Administrator hereby accepts the delegation to it of the
obligations of the "Calculation Agent" under the Interest Rate Cap Agreement to
which the Issuer is a party.
(f) The Administrator shall furnish to the Issuer from time to
time such information regarding the Collateral as the Issuer shall reasonably
request.
Section 3.2 Annual Statement as to Compliance; Notice of Default;
Financial Statements.
(a) Each of the Servicer and the Administrator shall deliver to
the Eligible Lender Trustee and the Indenture Trustee on or before 90 days after
the end of the fiscal year of the Servicer and the Administrator, an Officer's
Certificate of the Servicer or the Administrator, as the case may be, dated as
of December 31 of the preceding year, stating that (i) a review of the
activities of the Servicer or the Administrator, as the case may be, during the
preceding 12-month period (or, in the case of the first such certificate, during
the period from the Closing Date to December 31, 2004) and of its performance
under this Agreement has been made under such officers' supervision and (ii) to
the best of such officers' knowledge, based on such review, the Servicer or the
Administrator, as the case may be, has fulfilled its obligations in all material
respects under this Agreement and, with respect to the Servicer, the Servicing
Agreement throughout such year or, if there has been a material default in the
fulfillment of any such obligation, specifying each such material default known
to such officers and the nature and status thereof. The Indenture Trustee shall
send a copy of each such Officers' Certificate and each report referred to in
Section 3.1 to the Rating Agencies. A copy of each such Officers' Certificate
and each report referred to in Section 3.1 may be obtained by any Excess
Distribution Certificateholder, Noteholder or Note Owner by a request in writing
to the Eligible Lender Trustee addressed to its Corporate Trust Office, together
with evidence satisfactory to the Eligible Lender Trustee that such Person is
one of the foregoing parties. Upon the telephone request of the Eligible Lender
Trustee, the Indenture Trustee will promptly furnish the Eligible Lender Trustee
a list of Noteholders as of the date specified by the Eligible Lender Trustee.
27
(b) The Servicer shall deliver to the Eligible Lender Trustee, the
Indenture Trustee and the Rating Agencies, promptly after having obtained
knowledge thereof, but in no event later than five Business Days thereafter,
written notice in an Officers' Certificate of the Servicer of any event which
with the giving of notice or lapse of time, or both, would become a Servicer
Default under Section 5.01 of the Servicing Agreement.
(c) The Administrator shall deliver to the Eligible Lender
Trustee, the Indenture Trustee and the Rating Agencies, promptly after having
obtained knowledge thereof, but in no event later than five Business Days
thereafter, written notice in an Officers' Certificate of the Administrator of
any event which with the giving of notice or lapse of time, or both, would
become an Administrator Default under Sections 5.1(a) or (b) below or would
cause the Administrator to fail to meet the requirement of clause (a) of Section
2.4 above.
(d) At any time that the Administrator is not an Affiliate of the
Depositor, the Administrator shall provide to the Eligible Lender Trustee, the
Indenture Trustee and the Rating Agencies (i) as soon as possible and in no
event more than 120 days after the end of each fiscal year of the Administrator,
audited financials as at the end of and for such year and (ii) as soon as
possible, and in no event more than 30 days after the end of each quarterly
accounting period of the Administrator unaudited financials as at the end of and
for such period.
Section 3.3 Annual Independent Certified Public Accountants' Report.
Each of the Servicer and the Administrator shall cause a firm of independent
certified public accountants, which may also render other services to the
Servicer or the Administrator, as the case may be, to deliver to the Eligible
Lender Trustee, the Indenture Trustee and the Rating Agencies on or before March
31 of each year, a report addressed to the Servicer or the Administrator, as the
case may be, the Eligible Lender Trustee and the Indenture Trustee, to the
effect that such firm has examined certain documents and records relating to the
servicing of the Trust Student Loans, or the administration of the Trust Student
Loans and of the Trust, as the case may be, during the preceding calendar year
(or, in the case of the first such report, during the period from the Closing
Date to December 31, 2004) and that, on the basis of the accounting and auditing
procedures considered appropriate under the circumstances, such firm is of the
opinion that such servicing or administration, respectively, was conducted in
compliance with those terms of this Agreement and in the case of the Servicer,
the Servicing Agreement, including any applicable statutory provisions
incorporated therein and such additional terms and statutes as may be specified
from time to time by the Administrator, except for (a) such exceptions as such
firm shall believe to be immaterial and (b) such other exceptions as shall be
set forth in such report. Such report will also indicate that the firm is
independent of the Servicer or the Administrator, as the case may be, within the
meaning of the Code of Professional Ethics of the American Institute of
Certified Public Accountants.
ARTICLE IV
Section 4.1 Representations of Administrator. ▇▇▇▇▇▇ Mae, Inc., as
Administrator, makes the following representations on which the Issuer is deemed
to have relied in acquiring the Trust Student Loans. The representations speak
as of the execution and delivery of this Agreement and as of the Closing Date
and shall survive the sale of the Trust Student Loans to the
28
Eligible Lender Trustee on behalf of the Issuer and the pledge thereof to the
Indenture Trustee pursuant to the Indenture.
(a) Organization and Good Standing. The Administrator is duly
organized and validly existing under the laws of the State of Delaware, with the
power and authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently conducted.
(b) Power and Authority. The Administrator has the corporate power
and authority to execute and deliver this Agreement and to carry out its terms,
and the execution, delivery and performance of this Agreement have been duly
authorized by the Administrator by all necessary corporate action.
(c) Binding Obligation. This Agreement has been duly authorized,
executed and delivered by the Administrator and, assuming that it is duly
executed and delivered by parties hereto, constitutes a valid and binding
agreement of the Administrator, enforceable against the Administrator in
accordance with its terms; except that the enforceability hereof may be subject
to (a) bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect relating to creditors' rights generally, and (b)
general principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity) and (c) with respect to rights
to indemnity hereunder, limitations of public policy under applicable securities
laws.
(d) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof or
thereof do not conflict with, result in any breach of any of the terms and
provisions of, nor constitute (with or without notice or lapse of time or both)
a default under, the articles of incorporation or by-laws of the Administrator,
or any indenture, agreement or other instrument to which the Administrator is a
party or by which it shall be bound; nor result in the creation or imposition of
any Lien upon any of its properties pursuant to the terms of any such indenture,
agreement or other instrument (other than pursuant to the Basic Documents); nor
violate any law or, to the knowledge of the Administrator, any order, rule or
regulation applicable to the Administrator of any court or of any Federal or
state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Administrator or its properties.
(e) No Proceedings.
(i) There are no legal or governmental proceedings or
investigations pending against the Administrator or, to its best
knowledge, threatened or contemplated against the Administrator or to
which the Administrator or any of its subsidiaries is a party or of
which any property of the Administrator or any of its subsidiaries is
the subject, before any court, regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over the
Administrator or its properties or by any other party: (i) asserting
the invalidity of this Agreement or any of the other Basic Documents,
the Notes or the Excess Distribution Certificate, (ii) seeking to
prevent the issuance of the Notes or the Excess Distribution
Certificate or the consummation of any of the transactions contemplated
by this Agreement or any of the other Basic Documents, (iii) seeking
any
29
determination or ruling that could reasonably be expected to have a
material and adverse effect on the performance by the Administrator of
its obligations under, or the validity or enforceability of, this
Agreement, any of the other Basic Documents, the Trust, the Notes or
the Excess Distribution Certificate or (iv) seeking to affect adversely
the Federal or state income tax attributes of the Issuer, the Notes or
the Excess Distribution Certificate.
(f) All Consents. All authorizations, consents, orders or
approvals of or registrations or declarations with any court, regulatory body,
administrative agency or other government instrumentality required to be
obtained, effected or given by the Administrator in connection with the
execution and delivery by the Administrator of this Agreement and the
performance by the Administrator of the transactions contemplated by this
Agreement have been duly obtained, effected or given and are in full force and
effect.
Section 4.2 Liability of Administrator; Indemnities.
(a) The Administrator shall be liable in accordance herewith only
to the extent of the obligations specifically undertaken by the Administrator
under this Agreement.
(b) The Administrator shall indemnify, defend and hold harmless
the Issuer, the Excess Distribution Certificateholder, the Noteholders and each
Swap Counterparty and any of the officers, directors, employees and agents of
the Issuer from and against any and all costs, expenses, losses, claims, damages
and liabilities to the extent that such cost, expense, loss, claim, damage or
liability arose out of, or was imposed upon any such Person through, the gross
negligence, willful misfeasance or bad faith of the Administrator in the
performance of its duties under this Agreement or by reason of reckless
disregard of its obligations and duties hereunder or thereunder.
(c) The Administrator shall indemnify the Indenture Trustee in its
individual capacity and any of its officers, directors, employees and agents
against any and all loss, liability or expense (including attorneys' fees)
incurred by it in connection with the performance of its duties under the
Indenture and 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 Administrator of its
obligations hereunder and under the other Basic Documents. The Administrator
shall 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 the fees and expenses of which shall be paid by the Administrator on
behalf of the Issuer. Neither the Issuer nor the Administrator need to 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.
(d) The Administrator shall indemnify the Eligible Lender Trustee
(including in its capacity as Interim Eligible Lender Trustee) in its individual
capacity and any of its officers, directors, employees and agents against any
and all loss, liability, claims, damages, costs, penalties, taxes (excluding
taxes payable by it on any compensation received by it for its services
30
as trustee) or expense (including attorneys' fees) incurred by it in connection
with the performance of its duties under the Interim Trust Agreement, the Trust
Agreement and the other Basic Documents.
(e) Without limiting the generality of the foregoing, the
Administrator shall indemnify the Eligible Lender Trustee in its individual
capacity and any of its officers, directors, employees and agents against any
and all liability relating to or resulting from any of the following:
(i) any claim that the Trust Student Loans (or any
guarantee with respect thereto) are delinquent, uncollectable,
uninsured, illegal, invalid or unenforceable;
(ii) any claim that the Trust Student Loans have not been
made, administered, serviced or collected in accordance with applicable
federal and state laws or the requirements of any Guarantor;
(iii) any claim that any original note or other document
evidencing or relating to the Trust Student Loans has been lost,
misplaced or destroyed; and
(iv) any claim for failure to comply with the provisions
of 34 CFR Sec. 682.203(b) (other than for the Eligible Lender Trustee's
failure to qualify as an eligible lender under the Act).
(f) The Eligible Lender Trustee shall notify the Administrator
promptly of any claim for which it may seek indemnity. Failure by the Eligible
Lender Trustee to so notify the Administrator shall not relieve the
Administrator of its obligations hereunder and under the other Basic Documents.
The Administrator shall defend the claim and the Administrator shall not be
liable for the legal fees and expenses of the Eligible Lender Trustee after it
has assumed such defense; provided, however, that in the event that there may be
a conflict between the positions of the Eligible Lender Trustee and the
Administrator in conducting the defense of such claim, the Eligible Lender
Trustee shall be entitled to separate counsel the 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 Eligible Lender Trustee through the
Eligible Lender Trustee's own willful misconduct, negligence or bad faith.
(g) The Depositor shall pay reasonable compensation to the
Indenture Trustee and the Eligible Lender Trustee and shall reimburse the
Indenture Trustee and the Eligible Lender Trustee for all reasonable expenses,
disbursements and advances.
(h) For purposes of this Section 4.2, in the event of the
termination of the rights and obligations of the Administrator (or any successor
thereto pursuant to Section 4.3 below) as Administrator pursuant to Section 5.1
below, or a resignation by such Administrator pursuant to this Agreement, such
Administrator shall be deemed to be the Administrator pending appointment of a
successor Administrator pursuant to Section 5.2 below.
(i) Indemnification under this Section 4.2 shall survive the
resignation or removal of the Eligible Lender Trustee or the Indenture Trustee
or the termination of this Agreement and
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shall include reasonable fees and expenses of counsel and expenses of
litigation. If the Administrator shall have made any indemnity payments pursuant
to this Section and the Person to or on behalf of whom such payments are made
thereafter collects any of such amounts from others, such Person shall promptly
repay such amounts to the Administrator, without interest.
Section 4.3 Merger or Consolidation of, or Assumption of the
Obligations of, Administrator. Any Person (a) into which the Administrator may
be merged or consolidated, (b) which may result from any merger or consolidation
to which the Administrator shall be a party or (c) which may succeed to the
properties and assets of the Administrator substantially as a whole, shall be
the successor to the Administrator without the execution or filing of any
document or any further act by any of the parties to this Agreement; provided,
however, that the Administrator hereby covenants that it will not consummate any
of the foregoing transactions except upon satisfaction of the following: (i) the
surviving Administrator, if other than ▇▇▇▇▇▇ ▇▇▇, Inc., executes an agreement
which states expressly that such Person assumes to perform every obligation of
the Administrator under this Agreement, (ii) immediately after giving effect to
such transaction, no representation or warranty made pursuant to Section 4.1
shall have been breached and no Administrator Default, and no event that, after
notice or lapse of time, or both, would become an Administrator Default shall
have occurred and be continuing, (iii) the surviving Administrator, if other
than ▇▇▇▇▇▇ Mae, Inc., shall have delivered to the Eligible Lender Trustee and
the Indenture Trustee an Officers' Certificate and an Opinion of Counsel each
stating that such consolidation, merger or succession and such agreement of
assumption comply with this Section 4.3 and that all conditions precedent, if
any, provided for in this Agreement relating to such transaction have been
complied with, and that the Rating Agency Condition shall have been satisfied
with respect to such transaction, (iv) unless ▇▇▇▇▇▇ ▇▇▇, Inc. is the surviving
entity, such transaction will not result in a material adverse Federal or state
tax consequence to the Issuer, the Noteholders or the Certificateholders and (v)
unless ▇▇▇▇▇▇ Mae, Inc. is the surviving entity, the Administrator shall have
delivered to the Eligible Lender Trustee and the Indenture Trustee an Opinion of
Counsel either (A) stating that, in the opinion of such counsel, all financing
statements and continuation statements and amendments thereto have been executed
and filed that are necessary fully to preserve and protect the interest of the
Eligible Lender Trustee and Indenture Trustee, respectively, in the Trust
Student Loans and reciting the details of such filings, or (B) stating that, in
the opinion of such counsel, no such action shall be necessary to preserve and
protect such interests. Anything in this Section 4.3 to the contrary
notwithstanding, the Administrator may at any time assign its rights,
obligations and duties under this Agreement to an Affiliate provided that the
Rating Agencies confirm that such assignment will not result in a downgrading or
a withdrawal of the ratings then applicable to the Notes.
Section 4.4 Limitation on Liability of Seller, Administrator and
Others.
(a) Neither the Administrator nor any of its directors, officers,
employees or agents shall be under any liability to the Issuer, the Noteholders
or the Certificateholders, or to the Indenture Trustee or the Eligible Lender
Trustee except as provided under this Agreement for any action taken or for
refraining from the taking of any action pursuant to this Agreement or for
errors in judgment; provided, however, that these provisions shall not protect
the Administrator or any such person against any liability that would otherwise
be imposed by reason of willful misfeasance, bad faith or negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties under this Agreement. The Administrator and any of its
32
directors, officers, employees or agents may rely in good faith on the advice of
counsel or on any document of any kind, prima facie properly executed and
submitted by any Person respecting any matters arising hereunder.
(b) Except as provided in this Agreement, the Administrator shall
not be under any obligation to appear in, prosecute or defend any legal action
that shall not be incidental to its duties to administer the Trust Student Loans
and the Trust in accordance with this Agreement and that in its opinion may
involve it in any expense or liability; provided, however, that the
Administrator may undertake any reasonable action that it may deem necessary or
desirable in respect of this Agreement and the other Basic Documents and the
rights and duties of the parties to this Agreement and the other Basic Documents
and the interests of the Certificateholders under this Agreement and the
Noteholders under the Indenture and under this Agreement.
Section 4.5 Administrator May Own Certificates or Notes. The
Administrator and any Affiliate thereof may in its individual or any other
capacity become the owner or pledgee of the Excess Distribution Certificate or
Notes with the same rights as it would have if it were not the Administrator or
an Affiliate thereof, except as expressly provided herein in any other Basic
Document.
Section 4.6 ▇▇▇▇▇▇ ▇▇▇, Inc. Not to Resign as Administrator. Subject to
the provisions of Section 4.3 above, ▇▇▇▇▇▇ Mae, Inc. shall not resign from the
obligations and duties imposed on it as Administrator under this Agreement
except upon determination that the performance of its duties under this
Agreement shall no longer be permissible under applicable law or shall violate
any final order of a court or administrative agency with jurisdiction over
▇▇▇▇▇▇ ▇▇▇, Inc. or its properties. Notice of any such determination permitting
or requiring the resignation of ▇▇▇▇▇▇ Mae, Inc. shall be communicated to the
Eligible Lender Trustee and the Indenture Trustee at the earliest practicable
time (and, if such communication is not in writing, shall be confirmed in
writing at the earliest practicable time) and any such determination shall be
evidenced by an Opinion of Counsel to such effect delivered to the Eligible
Lender Trustee and the Indenture Trustee concurrently with or promptly after
such notice. No such resignation shall become effective until the Indenture
Trustee or a successor Administrator shall have assumed the responsibilities and
obligations of ▇▇▇▇▇▇ ▇▇▇, Inc. in accordance with Section 5.2 below. Anything
in this Section 4.6 to the contrary notwithstanding, the Administrator may
resign at any time subsequent to the assignment of its rights, duties and
obligations hereunder pursuant to Section 4.3 above.
ARTICLE V
Section 5.1 Administrator Default. If any one of the following events
(an "Administrator Default") shall occur and be continuing:
(a) (i) in the event that daily deposits into the Collection
Account are not required, any failure by the Administrator to deliver
to the Indenture Trustee for deposit in the Trust Accounts any
Available Funds required to be paid on or before the Business Day
immediately preceding any Monthly Servicing Payment Date or
Distribution Date, as applicable, or
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(i) any failure by the Administrator to direct the
Indenture Trustee to make any required distributions from any of the
Trust Accounts on any Monthly Servicing Payment Date or Distribution
Date, which failure in case of either clause (i) or (ii) continues
unremedied for five Business Days after written notice of such failure
is received by the Administrator from the Indenture Trustee or the
Eligible Lender Trustee or after discovery of such failure by an
officer of the Administrator; or
(b) any failure by the Administrator duly to observe or to perform
in any material respect any other term, covenant or agreement of the
Administrator set forth in this Agreement or any other Basic Document, which
failure shall (i) materially and adversely affect the rights of Noteholders or
Certificateholders and (ii) continue unremedied for a period of 60 days after
the date on which written notice of such failure, requiring the same to be
remedied, shall have been given (A) to the Administrator by the Indenture
Trustee or the Eligible Lender Trustee or (B) to the Administrator, the
Indenture Trustee and the Eligible Lender Trustee by the Noteholders or
Certificateholders, as applicable, representing not less than 50% of the
Outstanding Amount of the Notes or 50% of the outstanding Certificates
(including any Certificates owned by the Depositor); or
(c) an Insolvency Event occurs with respect to the Administrator;
then, and in each and every case, so long as the Administrator Default shall not
have been remedied, either the Indenture Trustee or the Noteholders evidencing
not less than 50% of the Outstanding Amount of the Notes, by notice then given
in writing to the Administrator (and to the Indenture Trustee and the Eligible
Lender Trustee if given by the Noteholders) may terminate all the rights and
obligations (other than the obligations set forth in Section 4.2 above) of the
Administrator under this Agreement. On or after the receipt by the Administrator
of such written notice, all authority and power of the Administrator under this
Agreement, whether with respect to the Notes, the Excess Distribution
Certificate, the Trust Student Loans or otherwise, shall, without further
action, pass to and be vested in the Indenture Trustee or such successor
Administrator as may be appointed under Section 5.2 below; and, without
limitation, the Indenture Trustee and the Eligible Lender Trustee are hereby
authorized and empowered to execute and deliver, for the benefit of the
predecessor Administrator, as attorney-in-fact or otherwise, any and all
documents and other instruments, and to do or accomplish all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination. The predecessor Administrator shall cooperate with the successor
Administrator, the Indenture Trustee and the Eligible Lender Trustee in
effecting the termination of the responsibilities and rights of the predecessor
Administrator under this Agreement. All reasonable costs and expenses (including
attorneys' fees) incurred in connection with amending this Agreement to reflect
such succession as Administrator pursuant to this Section shall be paid by the
predecessor Administrator (other than the Indenture Trustee acting as the
Administrator under this Section 5.1) upon presentation of reasonable
documentation of such costs and expenses. Upon receipt of notice of the
occurrence of an Administrator Default, the Eligible Lender Trustee shall give
notice thereof to the Rating Agencies.
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Section 5.2 Appointment of Successor.
(a) Upon receipt by the Administrator of notice of termination
pursuant to Section 5.1 above, or the resignation by the Administrator in
accordance with the terms of this Agreement, the predecessor Administrator shall
continue to perform its functions as Administrator under this Agreement in the
case of termination, only until the date specified in such termination notice
or, if no such date is specified in a notice of termination, until receipt of
such notice and, in the case of resignation, until the later of (i) the date 120
days from the delivery to the Eligible Lender Trustee and the Indenture Trustee
of written notice of such resignation (or written confirmation of such notice)
in accordance with the terms of this Agreement and (ii) the date upon which the
predecessor Administrator shall become unable to act as Administrator as
specified in the notice of resignation and accompanying Opinion of Counsel (the
"Transfer Date"). In the event of the termination hereunder of the Administrator
the Issuer shall appoint a successor Administrator acceptable to the Indenture
Trustee, and the successor Administrator shall accept its appointment by a
written assumption in form acceptable to the Indenture Trustee. In the event
that a successor Administrator has not been appointed at the time when the
predecessor Administrator has ceased to act as Administrator in accordance with
this Section, the Indenture Trustee without further action shall automatically
be appointed the successor Administrator and the Indenture Trustee shall be
entitled to the Administration Fee. Notwithstanding the above, the Indenture
Trustee shall, if it shall be unwilling or legally unable so to act, appoint or
petition a court of competent jurisdiction to appoint any established
institution whose regular business shall include the servicing of student loans,
as the successor to the Administrator under this Agreement.
(b) Upon appointment, the successor Administrator (including the
Indenture Trustee acting as successor Administrator), shall be the successor in
all respects to the predecessor Administrator and shall be subject to all the
responsibilities, duties and liabilities placed on the predecessor Administrator
that arise thereafter or are related thereto and shall be entitled to an amount
agreed to by such successor Administrator (which shall not exceed the
Administration Fee unless such compensation arrangements will not result in a
downgrading or withdrawal of any rating on the Notes or the Certificates by any
Rating Agency) and all the rights granted to the predecessor Administrator by
the terms and provisions of this Agreement.
(c) Notwithstanding the foregoing or anything to the contrary
herein or in the other Basic Documents, the Indenture Trustee, to the extent it
is acting as successor Administrator pursuant hereto and thereto, shall be
entitled to resign to the extent a qualified successor Administrator has been
appointed and has assumed all the obligations of the Administrator in accordance
with the terms of this Agreement and the other Basic Documents.
Section 5.3 Notification to Noteholders and Certificateholders. Upon
any termination of, or appointment of a successor to, the Administrator pursuant
to this Article V, the Eligible Lender Trustee shall give prompt written notice
thereof to Certificateholders and the Indenture Trustee shall give prompt
written notice thereof to Noteholders and the Rating Agencies (which, in the
case of any such appointment of a successor, shall consist of prior written
notice thereof to the Rating Agencies).
Section 5.4 Waiver of Past Defaults. The Noteholders of Notes
evidencing a majority of the Outstanding Amount of the Notes (or the
Certificateholders of Certificates evidencing a
35
majority of the outstanding Certificates, in the case of any default which does
not adversely affect the Indenture Trustee or the Noteholders) may, on behalf of
all Noteholders and Certificateholders, waive in writing any default by the
Administrator in the performance of its obligations hereunder and any
consequences thereof, except a default in making any required deposits to or
payments from any of the Trust Accounts (or giving instructions regarding the
same) in accordance with this Agreement. Upon any such waiver of a past default,
such default shall cease to exist, and any Administrator Default arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereto.
ARTICLE VI
Section 6.1 Termination.
(a) Optional Purchase of All Trust Student Loans. The
Administrator shall notify the Servicer, the Depositor and the Indenture Trustee
in writing, within 15 days after the last day of any Collection Period as of
which the then outstanding Pool Balance is 12% or less of the Initial Pool
Balance, of the percentage that the then outstanding Pool Balance bears to the
Initial Pool Balance. As of the last day of any Collection Period immediately
preceding a Distribution Date as of which the then outstanding Pool Balance is
10% or less of the Initial Pool Balance, the Eligible Lender Trustee on behalf
and at the direction of the Servicer, or any other "eligible lender" (within the
meaning of the Higher Education Act) designated by the Servicer in writing to
the Eligible Lender Trustee and the Indenture Trustee, shall have the option to
purchase the Trust Estate, other than the Trust Accounts. To exercise such
option, the Servicer shall deposit pursuant to Section 2.6 in the Collection
Account an amount equal to the aggregate Purchase Amount for the Trust Student
Loans and the related rights with respect thereto, plus the appraised value of
any such other property held by the Trust other than the Trust Accounts, such
value to be determined by an appraiser mutually agreed upon by the Servicer, the
Eligible Lender Trustee and the Indenture Trustee, and shall succeed to all
interests in and to the Trust; provided, however, that the Servicer may not
effect such purchase if such aggregate Purchase Amounts do not equal or exceed
the Minimum Purchase Amount plus any amounts owed to any Swap Counterparty for
Swap Payments and Swap Termination Payments and amounts to any Remarketing Agent
for any unpaid remarketing fees and expenses, and any Carryover Servicing Fees.
In the event the Servicer fails to notify the Eligible Lender Trustee and the
Indenture Trustee in writing prior to the acceptance by the Indenture Trustee of
a bid to purchase the Trust Estate pursuant to Section 4.4 of the Indenture that
the Servicer intends to exercise its option to purchase the Trust Estate, the
Servicer shall be deemed to have waived its option to purchase the Trust Estate
as long as the Servicer has received 5 business days' notice from the Indenture
Trustee as provided in Section 4.4 of the Indenture.
(b) Notice. Notice of any termination of the Trust shall be given
by the Administrator to the Eligible Lender Trustee and the Indenture Trustee as
soon as practicable after the Administrator has received notice thereof.
(c) Succession. Following the satisfaction and discharge of the
Indenture and the payment in full of the principal of and interest on the Notes,
the holder of the Excess Distribution Certificate shall succeed to the rights of
the Noteholders hereunder and the Eligible Lender
36
Trustee shall succeed to the rights of, and assume the obligations of, the
Indenture Trustee pursuant to this Agreement and any other Basic Documents.
ARTICLE VII
Section 7.1 Protection of Interests in Trust.
(a) The Administrator, on behalf of the Depositor, shall execute
and file such financing statements and cause to be executed and filed such
continuation statements, all in such manner and in such places as may be
required by law fully to preserve, maintain, and protect the interest of the
Issuer, the Eligible Lender Trustee and the Indenture Trustee in the Trust
Student Loans and in the proceeds thereof. The Administrator shall deliver (or
cause to be delivered) to the Eligible Lender Trustee and the Indenture Trustee
file-stamped copies of, or filing receipts for, any document filed as provided
above, as soon as available following such filing.
(b) Neither the Depositor nor the Servicer shall change its name,
identity or corporate structure in any manner that would, could or might make
any financing statement or continuation statement filed in accordance with
paragraph (a) above seriously misleading within the meaning of Section 9-402(7)
of the UCC, unless it shall have given the Eligible Lender Trustee and the
Indenture Trustee at least five days' prior written notice thereof and shall
have promptly filed appropriate amendments to all previously filed financing
statements or continuation statements.
(c) Each of the Depositor and the Servicer shall have an
obligation to give the Eligible Lender Trustee and the Indenture Trustee at
least 60 days' prior written notice of any relocation of its principal executive
office if, as a result of such relocation, the applicable provisions of the UCC
would require the filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement and shall promptly file
any such amendment. The Servicer shall at all times maintain each office from
which it shall service Trust Student Loans, and its principal executive office,
within the United States of America.
(d) The Servicer shall maintain accounts and records as to each
Trust Student Loan accurately and in sufficient detail to permit (i) the reader
thereof to know at any time the status of such Trust Student Loan, including
payments and recoveries made and payments owing (and the nature of each) and
(ii) reconciliation between payments or recoveries on (or with respect to) each
Trust Student Loan and the amounts from time to time deposited by the Servicer
in the Collection Account in respect of such Trust Student Loan.
(e) The Servicer shall maintain its computer systems so that, from
and after the time of sale of the Trust Student Loans to the Eligible Lender
Trustee on behalf of the Issuer, the Servicer's master computer records
(including any backup archives) that refer to a Trust Student Loan shall
indicate clearly the interest of the Issuer, the Eligible Lender Trustee and the
Indenture Trustee in such Trust Student Loan and that such Trust Student Loan is
owned by the Eligible Lender Trustee on behalf of the Issuer and has been
pledged to the Indenture Trustee. Indication of the Issuer's, the Eligible
Lender Trustee's and the Indenture Trustee's interest in a Trust Student Loan
shall be deleted from or modified on the Servicer's computer systems when, and
only when, the related Trust Student Loan shall have been paid in full or
repurchased.
37
(f) If at any time the Depositor or the Administrator shall
propose to sell, grant a security interest in, or otherwise transfer any
interest in student loans to any prospective purchaser, lender or other
transferee, the Servicer shall give to such prospective purchaser, lender or
other transferee computer tapes, records or printouts (including any restored
from backup archives) that, if they refer in any manner whatsoever to any Trust
Student Loan, indicate clearly that such Trust Student Loan has been sold and is
owned by the Eligible Lender Trustee on behalf of the Issuer and has been
pledged to the Indenture Trustee.
(g) Upon reasonable notice, the Servicer shall permit the
Indenture Trustee and its agents at any time during normal business hours to
inspect, audit and make copies of and abstracts from the Servicer's records
regarding any Trust Student Loan.
(h) Upon request, at any time the Eligible Lender Trustee or the
Indenture Trustee have reasonable grounds to believe that such request would be
necessary in connection with its performance of its duties under the Basic
Documents, the Servicer shall furnish to the Eligible Lender Trustee or to the
Indenture Trustee (in each case, with a copy to the Administrator), within five
Business Days, a list of all Trust Student Loans (by borrower social security
number, type of loan and date of issuance) then held as part of the Trust, and
the Administrator shall furnish to the Eligible Lender Trustee or to the
Indenture Trustee, within 20 Business Days thereafter, a comparison of such list
to the list of Trust Student Loans set forth in Schedule A to the Indenture as
of the Closing Date, and, for each Trust Student Loan that has been removed from
the pool of loans held by the Eligible Lender Trustee on behalf of the Issuer,
information as to the date as of which and circumstances under which each such
Trust Student Loan was so removed.
(i) The Depositor shall deliver to the Eligible Lender Trustee and
the Indenture Trustee:
(i) promptly after the execution and delivery of this
Agreement and of each amendment thereto and on each Transfer Date, an
Opinion of Counsel either (1) stating that, in the opinion of such
counsel, all financing statements and continuation statements have been
executed and filed that are necessary fully to preserve and protect the
interest of the Eligible Lender Trustee and the Indenture Trustee in
the Trust Student Loans, and reciting the details of such filings or
referring to prior Opinions of Counsel in which such details are given,
or (2) stating that, in the opinion of such counsel, no such action
shall be necessary to preserve and protect such interest; and
(ii) within 120 days after the beginning of each calendar
year beginning with the first calendar year beginning more than three
months after the Cutoff Date, an Opinion of Counsel, dated as of a date
during such 120-day period, either (1) stating that, in the opinion of
such counsel, all financing statements and continuation statements have
been executed and filed that are necessary fully to preserve and
protect the interest of the Eligible Lender Trustee and the Indenture
Trustee in the Trust Student Loans, and reciting the details of such
filings or referring to prior Opinions of Counsel in which such details
are given, or (2) stating that, in the opinion of such counsel, no such
action shall be necessary to preserve and protect such interest;
provided that a single Opinion of
38
Counsel may be delivered in satisfaction of the foregoing requirement
and that of Section 3.6(b) of the Indenture.
(j) Each Opinion of Counsel referred to in Section 7.1 above shall
specify (as of the date of such opinion and given all applicable laws as in
effect on such date) any action necessary to be taken in the following year to
preserve and protect such interest.
(k) The Depositor shall, to the extent required by applicable law,
cause the Excess Distribution Certificate and the Notes to be registered with
the Commission pursuant to Section 12(b) or Section 12(g) of the Exchange Act
within the time periods specified in such sections.
ARTICLE VIII
Section 8.1 Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Issuer or the Eligible Lender Trustee with
respect to the manner in which it accomplishes the performance of its
obligations hereunder. Unless expressly authorized by the Issuer, the
Administrator shall have no authority to act for or represent the Issuer or the
Eligible Lender Trustee in any way and shall not otherwise be deemed an agent of
the Issuer or the Eligible Lender Trustee.
Section 8.2 No Joint Venture. Nothing contained in this Agreement (a)
shall constitute the Administrator and either of the Issuer or the Eligible
Lender Trustee as members of any partnership, joint venture, association,
syndicate, unincorporated business or other separate entity, (b) shall be
construed to impose any liability as such on any of them or (c) shall be deemed
to confer on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
Section 8.3 Other Activities of Administrator. Nothing herein shall
prevent the Administrator or its Affiliates from engaging in other businesses
or, in its sole discretion, from acting in a similar capacity as an
administrator for any other person or entity even though such person or entity
may engage in business activities similar to those of the Issuer, the Eligible
Lender Trustee or the Indenture Trustee.
Section 8.4 Powers of Attorney. The Eligible Lender Trustee and the
Indenture Trustee shall upon the written request of the Administrator furnish
the Administrator with any powers of attorney and other documents reasonably
necessary or appropriate to enable the Administrator to carry out its
administrative duties hereunder.
Section 8.5 Amendment.
(a) This Agreement (other than Sections 2.1 and 2.2 above) may be
amended by the Issuer, the holder of the Excess Distribution Certificate, the
Servicer, the Administrator, the Eligible Lender Trustee and the Indenture
Trustee, without the consent of any of the Noteholders or any Swap Counterparty,
to cure any ambiguity, to correct or supplement any provisions in this Agreement
or for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions in this Agreement or of modifying in any
manner the rights of
39
the Noteholders; provided, however, that such action shall not, as evidenced by
an Opinion of Counsel delivered to the Eligible Lender Trustee and the Indenture
Trustee, adversely affect in any material respect the interests of any
Noteholder or Certificateholder, and that such action will not materially
adversely affect (1) the Trust's ability to enforce or protect its rights or
remedies under any Swap Agreement, (2) the ability of the Trust to timely and
fully perform its obligations under any Swap Agreement or (3) any of the Trust's
obligations under any Swap Agreement or any swap transaction under such
agreement. Any such amendment, modification or supplement without the consent of
the related Swap Counterparty shall not be binding on the related Swap
Counterparty.
(b) Sections 2.1 and 2.2 may be amended from time to time by a
written amendment duly executed and delivered by the Issuer, the holder of the
Excess Distribution Certificate, the Eligible Lender Trustee, the Indenture
Trustee and the Administrator, without the consent of the Noteholders or any
Swap Counterparty (unless such consent is otherwise required by this Section),
for the purpose of adding any provision to or changing in any manner or
eliminating any of the provisions of such Article; provided that such amendment
will not, in an Opinion of Counsel obtained on behalf of the Issuer and
satisfactory to the Indenture Trustee and the Eligible Lender Trustee,
materially and adversely affect the interest of any Noteholder or any Swap
Counterparty.
(c) This Agreement (other than Sections 2.1 and 2.2 above) may
also be amended from time to time by the Issuer, the holder of the Excess
Distribution Certificate, the Servicer, the Administrator, the Indenture Trustee
and the Eligible Lender Trustee, and Sections 2.1 and 2.2 above may also be
amended by the Eligible Lender Trustee, the Administrator and the Indenture
Trustee, with the consent of the Noteholders of Notes evidencing a majority of
the Outstanding Amount of the Notes, for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Noteholders; provided, however,
that no such amendment shall (i) increase or reduce in any manner the amount of,
or accelerate or delay the timing of, collections of payments with respect to
Trust Student Loans or distributions that shall be required to be made for the
benefit of the Noteholders or any Swap Counterparty, or (ii) reduce the
aforesaid percentage of the Outstanding Amount of the Notes, the Noteholders of
which are required to consent to any such amendment, without the consent of all
outstanding Noteholders.
(d) Promptly after the execution of any such amendment (or, in the
case of the Rating Agencies, fifteen days prior thereto), the Eligible Lender
Trustee shall furnish written notification of the substance of such amendment to
the holder of the Excess Distribution Certificate, the Indenture Trustee, each
Swap Counterparty and each of the Rating Agencies.
(e) It shall not be necessary for the consent of Noteholders
pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall approve
the substance thereof.
(f) Prior to the execution of any amendment to this Agreement, the
Eligible Lender Trustee and the Indenture Trustee shall be entitled to receive
and rely upon an Opinion of Counsel stating that the execution of such amendment
is authorized or permitted by this Agreement and the Opinion of Counsel referred
to in Section 7.1(i) above. The Eligible Lender
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Trustee and the Indenture Trustee may, but shall not be obligated to, enter into
any such amendment which affects the Eligible Lender Trustee's or the Indenture
Trustee's, as applicable, own rights, duties or immunities under this Agreement
or otherwise.
(g) The parties to this Agreement acknowledge and agree that, if
any class of Reset Rate Notes is denominated in a currency other than U.S.
Dollars during any related Reset Period (including the initial Reset Period),
and the Trust enters in a Currency Swap Agreement (including the Initial
Currency Swap Agreements), pursuant to such Currency Swap Agreement, the Trust
has agreed or will agree (i) to notify the related Swap Counterparty of any
amendment, modification or supplement to this Agreement or any other Basic
Document that would materially adversely affect (A) the related Swap
Counterparty's ability to enforce or protect its rights or remedies under the
related Currency Swap Agreement, (B) the ability of the Trust to timely and
fully perform its obligations under the related Currency Swap Agreement, or (C)
any of the terms of the Indenture or this Agreement which relates to payments to
or rights of the related Swap Counterparty under either such agreement, and (ii)
to obtain the written consent of the related Swap Counterparty to any such
amendment, modification or supplement. Any such amendment, modification or
supplement without the written consent of the related Swap Counterparty shall be
void and unenforceable.
(h) Accordingly, the parties to the Agreement acknowledge and
agree that each Currency Swap Counterparty will be a third-party beneficiary of
this Agreement to the extent of its rights under the related Currency Swap
Agreement in respect of this Agreement and shall be entitled to enforce such
rights under this Agreement. Notices to a Currency Swap Counterparty under this
Section 8 shall be addressed to the applicable Currency Swap Counterparty at the
address listed in the related Swap Confirmation.
Section 8.6 Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Section 4.3 of the Servicing Agreement
and Section 4.3 of this Agreement, this Agreement may not be assigned by the
Depositor, the Administrator or the Servicer. This Agreement may be assigned by
the Eligible Lender Trustee only to its permitted successor pursuant to the
Trust Agreement.
Section 8.7 Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Depositor, the Servicer, the Issuer,
the Indenture Trustee and the Eligible Lender Trustee and for the benefit of the
Excess Distribution Certificateholders, the Noteholders and each Swap
Counterparty, as third party beneficiaries, and nothing in this Agreement,
whether express or implied, shall be construed to give to any other Person any
legal or equitable right, remedy or claim in the Trust Estate or under or in
respect of this Agreement or any covenants, conditions or provisions contained
herein.
Section 8.8 Assignment to Indenture Trustee. The Depositor hereby
acknowledges and consents to any Grant by the Issuer to the Indenture Trustee
pursuant to the Indenture for the benefit of the Noteholders of a security
interest in all right, title and interest of the Issuer in, to and under the
Trust Student Loans and the assignment of any or all of the Issuer's rights and
obligations under this Agreement and the Sale Agreement and the Depositor's
rights under the Purchase Agreements to the Indenture Trustee. The Servicer
hereby acknowledges and consents to the assignment by the Issuer to the
Indenture Trustee pursuant to the Indenture for the benefit
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of the Noteholders of any and all of the Issuer's rights and obligations under
this Agreement and under the Servicing Agreement.
Section 8.9 Nonpetition Covenants.
(a) Notwithstanding any prior termination of this Agreement, the
Servicer, the Administrator, the Eligible Lender Trustee, the Indenture Trustee
and the Depositor shall not, prior to the date which is 367 days after the
payment in full of the Notes, acquiesce, petition or otherwise invoke or cause
the Issuer to invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against the Issuer under any Federal
or state bankruptcy, insolvency or similar law or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Issuer or any substantial part of its property, or ordering the winding
up or liquidation of the affairs of the Issuer. The foregoing shall not limit
the rights of the Servicer, the Administrator, the Eligible Lender Trustee, the
Indenture Trustee and the Depositor to file any claim in, or otherwise take any
action with respect to, any insolvency proceeding that was instituted against
the Issuer by a Person other than the Servicer, the Administrator, the Eligible
Lender Trustee or the Depositor.
(b) Notwithstanding any prior termination of this Agreement, the
Servicer, the Administrator, the Issuer and the Eligible Lender Trustee shall
not, prior to the date which is 367 days after the payment in full of the Notes,
acquiesce, petition or otherwise invoke or cause the Depositor to invoke the
process of any court or government authority for the purpose of commencing or
sustaining a case against the Depositor under any insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Depositor or any substantial part of its property,
or ordering the winding up or liquidation of the affairs of the Depositor. The
foregoing shall not limit the rights of the Servicer, the Administrator, the
Issuer and the Eligible Lender Trustee to file any claim in, or otherwise take
any action with respect to, any insolvency proceeding that was instituted
against the Issuer by a Person other than the Servicer, the Administrator, the
Issuer or the Eligible Lender Trustee.
Section 8.10 Limitation of Liability of Eligible Lender Trustee and
Indenture Trustee.
(a) Notwithstanding anything contained herein to the contrary,
this Agreement has been executed and delivered by Chase Manhattan Bank USA,
National Association, not in its individual capacity but solely in its capacity
as Eligible Lender Trustee of the Issuer, and in no event shall Chase Manhattan
Bank USA, National Association, in its individual capacity have any liability
for the representations, warranties, covenants, agreements or other obligations
of the Issuer or the Eligible Lender Trustee hereunder or in any of the
certificates, notices or agreements delivered pursuant hereto as to all of which
recourse shall be had solely to the assets of the Issuer.
(b) Notwithstanding anything contained herein to the contrary,
this Agreement has been executed and delivered by The Bank of New York, not in
its individual capacity but solely as Indenture Trustee, and in no event shall
The Bank of New York have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder or
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in any of the certificates, notices or agreements delivered pursuant hereto, as
to all of which recourse shall be had solely to the assets of the Issuer.
(c) The rights of and protections of the Indenture Trustee under
the Indenture shall be incorporated as though explicitly set forth herein.
Section 8.11 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO THE
CONFLICT OF LAW PROVISIONS THEREOF, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 8.12 Headings. The Section headings hereof have been inserted
for convenience of reference only and shall not be construed to affect the
meaning, construction or effect of this Agreement.
Section 8.13 Counterparts. This Agreement may be executed in
counterparts, each of which when so executed shall together constitute but one
and the same agreement.
Section 8.14 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. Each of the parties named on the signature pages to this
Agreement by execution of this Agreement agrees, for the benefit of the
Administrator and the other signatories hereto, to be bound by the terms of this
Agreement and the other Basic Documents to the extent reference is made in such
document to such party.
Section 8.15 Additional Reset Rate Note Agreements.
(a) The parties hereto acknowledge that the Administrator is
authorized, from time to time, either to enter into or to instruct the Eligible
Lender Trustee to enter into (in either case, not in their respective individual
capacities but solely on behalf of the Issuer) (i) Remarketing Agreements, (ii)
Remarketing Agency Agreements, and (iii) Swap Agreements, in addition to the
Initial Currency Swap Agreements, with one or more Eligible Swap Counterparties
on any Reset Date, and from time to time in the event a Swap Agreement
terminates prior to the end of the related Reset Period when (1) any class of
Reset Rate Notes is to bear interest at a fixed rate during the upcoming Reset
Period, (2) any class of Reset Rate Notes is in Foreign Exchange Mode, or (3)
the Remarketing Agents (in consultation with the Administrator) determine that
it would be in the best interest of the Issuer based on then-current market
conditions during any Reset Period when any class of Reset Rate Notes bears
interest at a floating rate of interest, or if otherwise required to satisfy the
Rating Agency Condition, to hedge some or all of the basis risk; provided,
however, that all such Swap Agreements are entered into using the procedures set
forth in the Reset Rate Note Procedures and the Rating Agency Condition is met.
(b) Subject to the provisions of Section 13 of the Reset Rate Note
Procedures, the Eligible Lender Trustee hereby agrees (not in its individual
capacity but solely as Eligible Lender Trustee on behalf of the Issuer) to enter
into such Swap Agreements, Remarketing Agreements
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and Remarketing Agency Agreements on behalf of the Issuer as the Administrator
shall direct in writing from time to time.
(c) The parties acknowledge that at any time and from time to
time, the Administrator may determine to seek an alternate listing for the Notes
on a stock exchange of international standing, and the Administrator shall
notify the parties to this Agreement of any such transfer.
Section 8.16 Excess Distribution Certificate. Any holder of the Excess
Distribution Certificate, as evidenced by its agreement to accept the rights
conferred under the Excess Distribution Certificate, is hereby deemed to accept
all obligations of the Depositor under this Agreement.
[Remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
SLM FUNDING LLC,
in its capacity as Depositor and as holder
of the Excess Distribution Certificate
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ ▇▇▇, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SLM STUDENT LOAN TRUST 2004-3
By: CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual capacity
but solely as Eligible Lender Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual capacity
but solely as Eligible Lender Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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THE BANK OF NEW YORK,
not in its individual capacity but solely as
Indenture Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Agent
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