EXHIBIT 99.3
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SLM STUDENT LOAN TRUST 2003-12
ADMINISTRATION AGREEMENT
SUPPLEMENT
Dated as of December 25, 2003
To
MASTER ADMINISTRATION AGREEMENT
Dated as of May 1, 1997
Among
SLM FUNDING LLC
SLM STUDENT LOAN TRUST 2003-12
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CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
as Eligible Lender Trustee
▇▇▇▇▇▇ ▇▇▇ SERVICING, L.P.
THE BANK OF NEW YORK,
as Indenture Trustee
and
STUDENT LOAN MARKETING ASSOCIATION
TABLE OF CONTENTS
Page
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ARTICLE I
Section 1.1 Definitions and Usage........................................................................ 2
Section 1.2 Supplement to Master Administration Agreement................................................ 2
ARTICLE II
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.............................................................. 7
Section 2.4 Collections; Collection Account.............................................................. 11
Section 2.5 Application of Collections................................................................... 12
Section 2.6 Additional Deposits.......................................................................... 12
Section 2.7 Distributions................................................................................ 12
Section 2.8 Priority of Distributions.................................................................... 14
Section 2.9 Reserve Account.............................................................................. 18
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.......................................................... 25
ARTICLE III
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
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............... 31
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
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ARTICLE V
Section 5.1 Administrator Default........................................................................ 33
Section 5.2 Appointment of Successor..................................................................... 34
Section 5.3 Notification to Noteholders and Certificateholders........................................... 35
Section 5.4 Waiver of Past Defaults...................................................................... 35
ARTICLE VI
Section 6.1 Termination.................................................................................. 36
ARTICLE VII
Section 7.1 Protection of Interests in Trust............................................................. 36
ARTICLE VIII
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........................................................................ 41
Section 8.10 Limitation of Liability of Eligible Lender Trustee and Indenture Trustee..................... 42
Section 8.11 Governing Law................................................................................ 42
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.............................................................. 43
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ADMINISTRATION AGREEMENT SUPPLEMENT
SLM Student Loan Trust 2003-12 Administration Agreement
Supplement, dated as of December 25, 2003 (this "Supplement"), among SLM Funding
LLC (the "Depositor"), SLM Student Loan Trust 2003-12 (the "Issuer"), Chase
Manhattan 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") and ▇▇▇▇▇▇ ▇▇▇
Servicing, L.P. (the "Servicer"), and accepted and agreed to by Student Loan
Marketing Association, not in its individual capacity but solely in its capacity
as administrator (the "Administrator"). This Supplement is being delivered as a
supplement to the Master Administration Agreement, dated as of May 1, 1997 (the
"Master Agreement"), between the Depositor, as successor in interest to SLM
Funding Corporation, and the Administrator.
RECITALS
WHEREAS, under the terms of the Master Agreement, the
Administrator has agreed to serve as administrator with respect to trusts formed
under trust agreements entered into from time to time between the Depositor and
an Eligible Lender Trustee, and under Section 1.2(a) of the Master Agreement, in
order for the Administrator to serve as administrator with respect to any such
trust, the Depositor is required to present to the Administrator a supplement
designating the related Trust, the related Eligible Lender Trustee, the related
Interim Eligible Lender Trustee and the related Indenture Trustee, and duly
executed by the Depositor, such Trust, such Eligible Lender Trustee, such
Indenture Trustee and such Servicer;
WHEREAS, pursuant to an Indenture, dated as of December 1,
2003 (the "Indenture"), among the Issuer, the Indenture Trustee and the Eligible
Lender Trustee, the Issuer (a) is issuing (i) seven 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 December 4, 2003 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
December 25, 2003 (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 the terms of the Master
Agreement and the other Basic Documents as the Issuer and the Eligible Lender
Trustee may from time to time request;
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;
and
WHEREAS, this Supplement is delivered to the Administrator
pursuant to and in satisfaction of the conditions set forth in Section 1.2(a) of
the Master Agreement with respect to SLM Student Loan Trust 2003-12, and is
intended to supplement the terms of, and to modify any terms that are
inconsistent with, the Master Agreement, provided that the provisions of this
Supplement shall be applicable only to SLM Student Loan Trust 2003-12.
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.
Section 1.2 Supplement to Master Administration Agreement.
Each of the parties entering into this Supplement acknowledges and agrees that
the provisions of this Supplement shall set forth the terms of, and be
applicable only to, SLM Student Loan Trust 2003-12, and that, to the extent any
of the terms of this Supplement modify the Master Agreement, the terms of this
Supplement shall govern.
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
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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);
(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);
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(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);
(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) on the Closing Date, and with respect to the Reset
Rate Notes during their initial Reset Period, directing the Eligible Lender
Trustee to enter into the Initial Cross-Currency Swap Agreement (not in its
individual capacity, but solely on behalf of the Trust) with the Initial
Cross-Currency Swap Counterparty and (ii) causing the Remarketing Agents to
direct the Swap Agent, on behalf of the Remarketing Agents and the Reset Rate
Noteholders, to enter into the Initial Reset Date Currency Swap Agreement with
the Initial Cross-Currency Swap Counterparty;
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(v) from time to time on or after the Initial Reset Date
with respect to the Reset Rate Notes, directing the Eligible Lender Trustee to
(i) enter into one or more Swap Agreements (not in its individual capacity, but
solely on behalf of the Trust) with an Eligible Swap Counterparty on the terms
and conditions set forth in the Reset Rate Note Procedures, on any Reset Date,
when (1) the Reset Rate Notes are to be in Foreign Exchange Mode during the
immediately following Reset Period, (2) the Reset Rate Notes are to bear
interest at a fixed rate during the immediately following Reset Period or (3)
the Reset Rate Notes are 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 (ii)
cause the Remarketing Agents to direct one or more Swap Agents to enter into one
or more Reset Date Currency Swap Agreements with one or more Eligible Swap
Counterparties on behalf of the Remarketing Agents and the Reset Rate Notes, on
the terms and conditions set forth in the Reset Rate Note Procedures, on any
Reset Date, when the Reset Rate Notes will be in Foreign Exchange Mode during
the immediately following Reset Period;
(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 the 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 the Accumulation Account (if applicable), the
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;
(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 the
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Reset Rate Notes, 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, all notices required by any Clearing
Agency or stock exchange upon which the Notes are then listed.
(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 the Interest Rate Cap Agreement or any Swap Agreement, as
applicable, including without limitation, any notice obligations specified in
the Interest Rate Cap Agreement or any Swap Agreement in the event of a default
by the related Swap Counterparty.
(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 Interest
Rate Swap Agreement) 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 Supplement, 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.
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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) an "Accumulation Account";
(vi) a "Supplemental Interest Account";
(vii) a "Pounds Sterling Account";
(viii) an "Other Currency Account";
(ix) an "Investment Premium Purchase Account"; and
(x) an "Investment Reserve 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 any 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 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 the 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 the 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 any 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 the 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
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Day prior to the next Reset Date for the Reset Rate Notes. Funds on deposit in
any Pounds Sterling Account or any 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 the 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 the
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, 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
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(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 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.
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(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) On the Closing Date with respect to the Reset Rate
Notes and on any Reset Date thereafter on which the Reset Rate Notes are reset
to bear interest at a fixed rate, 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 (an "Accumulation Account") for
the Reset Rate Notes, bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Trust and the Reset Rate
Noteholders. The 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) On the Closing Date with respect to the Reset Rate
Notes during their initial Reset Period and whenever the Accumulation Account is
established pursuant to Section 2.3(j) above, the Administrator, for the benefit
of the 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. The 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) 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 "Investment
Premium Purchase Account"), bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the Trust. The Investment
Premium Purchase 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.
(m) 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 "Investment
Reserve Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Trust. The 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 the Reset Rate Notes are
reset into a currency other than U.S. Dollars or Pounds Sterling, the
Administrator, for the benefit of the 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 Reset Rate Notes, bearing
a designation clearly indicating that the funds deposited therein are held for
the benefit of the Trust and the Reset Rate Noteholders. Each Other Currency
Account will initially be established as a
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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 with respect to the Reset Rate
and on any Reset Date thereafter on which the Reset Rate Notes are reset (or
continue) to be denominated in Pounds Sterling, the Administrator, for the
benefit of the Reset Rate Noteholders and the Trust, shall establish and
maintain in the name of the Indenture Trustee, an Eligible Deposit Account (the
"Pounds Sterling Account") for the Reset Rate Notes, bearing a designation
clearly indicating that the funds deposited therein are held for the benefit of
the Trust and the 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
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
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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 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 Initial Swap Agreements and the
Interest Rate Cap Agreement, 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
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Collection Account, and the amount to be distributed from the Collection Account
as 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, Supplemental
Interest Account, Investment Premium Purchase Account and 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, the
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 Accumulation Account from
the Collection Account on the related Distribution Date on or before
the Business Day immediately preceding such Distribution Date;
(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
the Reset Rate Notes bore interest at a fixed rate during the previous
Reset Period (including on the Initial Reset Date), on or before the
Business Day immediately preceding such Distribution Date, the
Administrator shall calculate all amounts to be withdrawn from the
Accumulation Account (1) to be paid to the Reset Rate Noteholders on
such Distribution Date if the Reset Rate Notes are then denominated in
U.S. Dollars, or (2) if the Reset Rate Notes are then in Foreign
Exchange Mode, to be delivered to the related Cross-Currency Swap
Counterparty or Counterparties in exchange for the equivalent amount of
the applicable non-U.S. Dollar currency for payment to the 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
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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 Accumulation Account for the Reset Rate Notes then bearing interest at a
fixed rate 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 March 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, the Supplemental Interest Account, the 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.
(d) 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.
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 the Reset Rate Noteholders if a Swap Agreement
is in effect), the Class A Noteholders'
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Interest Distribution Amount, pro rata, based on the
amounts payable as Class A Noteholders' Interest
Distribution Amount;
(2) if a Swap Agreement is then in
effect, to the 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 Swap Counterparty under the related Swap
Agreement; and
(3) to each Swap Counterparty, the
amount of any Swap Termination Payment due to that
Swap Counterparty under the related Swap Agreement
due solely to a Termination Event or Event of Default
(each 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;
(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) sequentially, to the Class A-1 Noteholders, the Class
A-2 Noteholders, the Class A-3 Noteholders, the Class A-4 Noteholders, the Class
A-5 Noteholders and the Class A-6 Noteholders, in that order, until each such
class is paid in full, the Class A Noteholders' Principal Distribution Amount;
provided, however, (i) if the Reset Rate Notes are then denominated in U.S.
Dollars and bear interest at a fixed rate, such payments will be allocated to
the Accumulation Account, until amounts (less any Investment Earnings) on
deposit therein are sufficient to reduce the principal balance of the Reset Rate
Notes to zero, and (ii) if the Reset Rate Notes are then in Foreign Exchange
Mode, such payments either will be made to the related Swap Counterparty or
Counterparties (if the Reset Rate Notes then bear interest at a floating rate)
or will be allocated to the Accumulation Account (if the Reset Rate Notes then
bear interest at a fixed rate) until the U.S. Dollar Equivalent Principal Amount
of the Reset Rate Notes has been distributed to the related Swap Counterparty or
Counterparties or allocated to the Accumulation Account; and for purposes of
this subclause (f) the Outstanding Amount of the Reset Rate Notes will be deemed
to have been reduced by any amounts (less any Investment Earnings) on deposit in
the Accumulation Account);
(g) to the Supplemental Interest Account, the
Supplemental Interest Account Deposit Amount, if any, for such Distribution
Date;
(h) to the 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;
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(k) to the 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;
(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 the
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), (f) or (m) above, (1) with respect to Reset Rate Notes bearing a
fixed rate of interest or with respect to payments of principal for 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 the 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 Reset Rate Notes 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 Cross-Currency Swap Agreement terminates, amounts that
would have otherwise been paid to the related Swap Counterparty under such
Cross-Currency Swap Agreement will be used to make payments to the Reset Rate
Notes, in an amount in Pounds Sterling or any other applicable non-U.S. Dollar
currency equal to the payment that the related
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Swap Counterparty would have made. 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 Reset Rate Notes.
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 the Reset Rate Notes are then in Foreign
Exchange Mode, then the U.S. Dollar Equivalent Principal
Amount), less amounts (other than Investment Earnings) on
deposit in all Accumulation Accounts, 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 the Supplemental Interest Account Deposit
Amount 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 before any amounts are applied to the payment of the Class B Noteholders'
Distribution Amount.
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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 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
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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 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 the
Accumulation Account, on each Distribution Date and (y) the 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 March 2005, the Administrator shall instruct
the Indenture Trustee in writing to withdraw all amounts remaining from
the Capitalized Interest Account and to distribute such
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amount to the Excess Distribution Certificateholder (excluding any
Investment Earnings to be transferred to the Collection Account on such
Distribution Date).
(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 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 the 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 Account.
(i) If, on any Distribution Date, principal would be
payable to the Reset Rate Notes then bearing interest at a fixed rate
(including, without limitation, the Reset Rate Notes that bears a fixed
rate of interest during its respective initial Reset Period until and
including the related Initial Reset Date), principal allocated to the
Reset Rate Notes pursuant to Section 2.8(f) above will be deposited
into the Accumulation Account.
(ii) If the Reset Rate Notes are denominated in U.S.
Dollars and bear interest at a fixed rate during the then-current 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 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 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 the Reset Rate Notes are in Foreign Exchange
Mode and bear interest at a fixed rate during the then-current Reset
Period, the Administrator shall instruct the Indenture
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Trustee in writing no later than one Business Day preceding each
Distribution Date that is also a Reset Date, to withdraw from the
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
Cross-Currency Swap Counterparty or Cross-Currency Swap 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 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 Accumulation Account may be used only to
pay principal on the Reset Rate Notes (or to the related 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 the Reset Rate Notes in
the Accumulation Account, including amounts deposited on that
Distribution Date, would equal the Outstanding Amount of the Reset Rate
Notes, then no additional amounts will be deposited into the
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 the Reset
Rate Notes will be reduced to zero.
(d) Supplemental Interest Account.
(i) On each Distribution Date when amounts are on deposit
in the 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 the 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 Account.
(i) From time to time, the Administrator will instruct
the Indenture Trustee in writing to withdraw amounts from the
Investment Premium Purchase Account, and utilize such amounts to pay
for the purchase price in excess of par of any Eligible Investments
related to the Accumulation Account.
(ii) On each Distribution Date, the Administrator will
instruct the Indenture Trustee in writing to (1) withdraw the
Investment Premium Purchase Account Release Amount (including any
Investment Earnings in the Investment Premium Purchase Account), (2)
deposit such funds into the Collection Account, and (3) include such
funds as Available Funds for that Distribution Date.
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(f) Investment Reserve Account.
(i) If the ratings of any Eligible Investment related to
the 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 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 the Investment Reserve Account
any amounts required to offset realized losses on Eligible Investments
related to the Accumulation Account, and deposit that amount into the
Accumulation Account.
(ii) On each Distribution Date, the Administrator will
instruct the Indenture Trustee to (1) withdraw all amounts (including
any Investment Earnings) which were not deposited into the Accumulation
Account and have remained on deposit in the 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) On the Closing Date, the Trust shall establish or
maintain a Pounds Sterling Account for the Reset Rate Notes.
(ii) Any payments in Pounds Sterling received from any
Cross-Currency Swap Counterparty will be deposited in the related
Pounds Sterling Account for the benefit of the 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 Pounds
Sterling Account to the holders of the Reset Rate Notes then
denominated in Pounds Sterling 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 the Reset Rate
Notes are then in Foreign Exchange Mode, the Administrator will
instruct the London Paying Agent to distribute the amounts in the
Pounds Sterling Account to the related Noteholders by 1:00 p.m. (New
York time) on the second Business Day following such Distribution Date.
If a related Swap Agreement is not in effect, the Administrator shall
cause U.S. Dollars to 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 the Reset Rate
Notes while in Foreign Exchange Mode that are then denominated in a
currency other than U.S. Dollars or Pounds Sterling, the Trust shall
establish an Other Currency Account for the Reset Rate Notes.
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(ii) Any payments in the related currency received from
any Cross-Currency Swap Counterparty will be deposited into the related
Other Currency Account for the benefit of the 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 holders of the Reset
Rate Notes 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 the Reset Rate Notes are 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.
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 the
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];
(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);
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(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 the Reset Rate Notes: (i) the next
Reset Date and Reset Period; (ii) if in Foreign Exchange Mode, the next
Distribution Date on which interest will be paid to the Reset Rate Noteholders,
if other than quarterly; (iii) the amount on deposit in the Accumulation
Account, the Supplemental Interest Account, the Investment Premium Purchase
Account, the Investment Reserve Account, Pounds Sterling Account and Other
Currency Account, if 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 or ▇▇▇▇▇▇ ▇▇▇ 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 and the Interest Rate Cap Counterparty for such Distribution Date
and the amount of any Termination Payment made or received by the Trust during
the applicable Collection Period.
(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 the Notes are 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
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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 Supplement, 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 Supplement and as reimbursement
for its expenses related 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 the Reset
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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.
(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 LIBOR applicable 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, Four-Month
LIBOR, GBP-LIBOR, 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 the 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 to which the Trust is a party.
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(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, as applicable.
(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 120 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 Supplement 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 Supplement 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.
(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
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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 Supplement 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, as
Administrator, makes the following representations on which the Issuer is deemed
to have relied in acquiring the Initial Trust Student Loans. The representations
speak as of the execution and delivery of this Supplement and as of the Closing
Date and shall survive the sale of the Initial Trust Student Loans to the
Eligible Lender Trustee on behalf of the Issuer and the pledge thereof to the
Indenture Trustee pursuant to the Indenture.
(a) Organization and Good Standing. The Administrator is
duly organized and validly existing under the laws of the United States of
America, 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 Supplement and to
carry out its terms, and the execution, delivery and performance of this
Supplement have been duly authorized by the Administrator by all necessary
corporate action.
(c) Binding Obligation. This Supplement 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
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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 Supplement and the fulfillment of the terms hereof or
thereof do not conflict with, result in any breach of any of the terms and
provisions of, nor constitute (with or without notice or lapse of time or both)
a default under, the charter or By-laws of the Administrator, or any indenture,
agreement or other instrument to which the Administrator is a party or by which
it shall be bound; 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) Other than as set forth in SLM Corporation's most
recently filed Form 10-K or Form 10-Q or comparable public disclosure
documents, there are no legal or governmental proceedings pending 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 which, if determined adversely to the Issuer or the
Administrator or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the consummation of the
transactions contemplated hereby or the ability of the Administrator to
perform all of its obligations with respect to the Trust; and, to the
best of the Administrator's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened by
others.
(ii) There are no proceedings or investigations pending
against the Administrator or, to its best knowledge, threatened against
the Administrator, before any court, regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over
the Administrator or its properties: (A) asserting the invalidity of
this Supplement or any of the other Basic Documents, the Notes or the
Excess Distribution Certificate, (B) seeking to prevent the issuance of
the Notes or the Excess Distribution Certificate or the consummation of
any of the transactions contemplated by this Supplement or any of the
other Basic Documents, or (C) 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 Supplement and the
performance by the Administrator of the transactions contemplated by this
Supplement have been duly obtained, effected or given and are in full force and
effect.
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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 Supplement.
(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 Supplement 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 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;
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(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 Supplement, 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 Supplement and shall include reasonable fees
and expenses of counsel and expenses of litigation. If the Administrator shall
have made any indemnity payments pursuant to this 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
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document or any further act by any of the parties to this Supplement; 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 ▇▇▇▇▇▇ ▇▇▇, executes an agreement which
states expressly that such Person assumes to perform every obligation of the
Administrator under this Supplement, (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, 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 Supplement 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 ▇▇▇▇▇▇ ▇▇▇ 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 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 Supplement 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 Supplement for any action taken or for
refraining from the taking of any action pursuant to this Supplement 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 Supplement. The Administrator and any of its directors,
officers, employees or agents may rely in good faith on the advice of counsel or
on any document of any kind, prima facie properly executed and submitted by any
Person respecting any matters arising hereunder.
(b) Except as provided in this Supplement, 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 Supplement 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 Supplement and the other Basic
Documents and the rights and duties of the parties to this Supplement and the
other Basic Documents and the interests of the
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Certificateholders under this Supplement and the Noteholders under the Indenture
and under this Supplement.
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 shall not resign from
the obligations and duties imposed on it as Administrator under this Supplement
except upon determination that the performance of its duties under this
Supplement shall no longer be permissible under applicable law or shall violate
any final order of a court or administrative agency with jurisdiction over
▇▇▇▇▇▇ ▇▇▇ 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 ▇▇▇▇▇▇ ▇▇▇ 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 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
(ii) 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 Supplement or any other Basic Document, which
failure shall (i) materially and adversely affect
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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 Supplement. On or after
the receipt by the Administrator of such written notice, all authority and power
of the Administrator under this Supplement, 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 Supplement. All reasonable costs and expenses
(including attorneys' fees) incurred in connection with amending this Supplement
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.
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
Supplement, the predecessor Administrator shall continue to perform its
functions as Administrator under this Supplement 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 Supplement 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
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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 Supplement.
(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 Supplement.
(c) The Administrator may not resign unless it is
prohibited from serving as such by law as evidenced by an Opinion of Counsel to
such effect delivered to the Indenture Trustee and the Eligible Lender Trustee.
Notwithstanding the foregoing or anything to the contrary herein or in the 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
Supplement 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 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
Supplement. 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 Supplement. No such waiver shall extend
to any subsequent or other default or impair any right consequent thereto.
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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, but in no event earlier than as of the
last day of the Collection Period immediately preceding the Distribution Date in
September 2013, 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 Trustee shall
succeed to the rights of, and assume the obligations of, the Indenture Trustee
pursuant to this Supplement 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
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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.
(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.
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(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 Initial 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
Supplement 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 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
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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 Supplement, 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
Supplement (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 Supplement (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 Supplement or for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions in
this Supplement or of modifying in any manner the rights of 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.
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(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 Supplement (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
Supplement 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
Supplement, 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 Supplement and
the Opinion of Counsel referred to in Section 7.1(i) above. The Eligible Lender
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 Supplement
or otherwise.
(g) The parties to this Agreement acknowledge and agree
that, pursuant to the Initial Cross-Currency Swap Agreement, the Trust has
agreed or will agree (i) to notify the Initial Cross-Currency Swap Counterparty
of any amendment, modification or supplement to this Agreement or any other
Basic Document that would materially adversely affect (A) the Initial
Cross-Currency Swap Counterparty's ability to enforce or protect its rights or
remedies under the
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Initial Cross-Currency Swap Agreement, (B) the ability of the Trust to timely
and fully perform its obligations under the Initial Cross-Currency Swap
Agreement, or (C) any of the terms of the Indenture or this Agreement which
relates to payments to or rights of the Initial Cross-Currency Swap Counterparty
under either such agreement, and (ii) to obtain the written consent of the
Initial Cross-Currency Swap Counterparty to any such amendment, modification or
supplement. Any such amendment, modification or supplement without the written
consent of the Initial Cross-Currency Swap Counterparty shall be void and
unenforceable.
(h) Accordingly, the parties to the Agreement acknowledge
and agree that the Initial Cross-Currency Swap Counterparty is a third-party
beneficiary of this Agreement to the extent of its rights under the Initial
Cross-Currency Swap Agreement in respect of this Agreement and shall be entitled
to enforce such rights under this Agreement. Notices to the Initial
Cross-Currency Swap Counterparty under this Section 8 shall be addressed to the
Initial Cross-Currency Swap Counterparty at the address listed in the 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 Supplement, this Supplement may not be
assigned by the Depositor, the Administrator or the Servicer. This Supplement
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 Supplement 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 Supplement,
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 Supplement 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 Supplement and the Sale Agreement and the
Depositor's rights under the Purchase Agreement 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 of the Noteholders
of any and all of the Issuer's rights and obligations under this Supplement and
under the Servicing Agreement.
Section 8.9 Nonpetition Covenants. (a) Notwithstanding any
prior termination of this Supplement, 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
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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
Supplement, 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 Supplement 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 Supplement 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 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 SUPPLEMENT 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.
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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 Supplement.
Section 8.13 Counterparts. This Supplement 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 Supplement
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
Supplement by execution of this Supplement agrees, for the benefit of the
Administrator and the other signatories hereto, to be bound by the terms of the
Master Agreement in connection with the Trust, this Supplement and the other
Basic Documents to the extent reference is made in the Master Agreement to such
party. The rights and obligations of such parties under the Master Agreement
resulting from the execution of this Supplement (other than the Depositor) shall
be applicable only with respect to the Trust, this Supplement and the other
Basic Documents.
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 Cross-Currency
Swap Agreement, 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) the Reset Rate Notes are to bear interest
at a fixed rate during the upcoming Reset Period, (2) the Reset Rate Notes are
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 the Reset
Rate Notes bear 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 and
Remarketing Agency Agreements on behalf of the Issuer as the Administrator shall
direct in writing from time to time.
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.
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplement 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
STUDENT LOAN MARKETING
ASSOCIATION
By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇
Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Agent
SLM STUDENT LOAN TRUST 2003-12
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
▇▇▇▇▇▇ ▇▇▇ SERVICING, L.P.
By: ▇▇▇▇▇▇ MAE, INC.,
Its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK,
not in its individual capacity but solely as
Indenture Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Agent
The Administrator hereby acknowledges receipt of this Supplement and hereby
confirms to the Depositor and the other signatories to this Supplement that the
representations of the Administrator contained in Article IV of the Master
Agreement are true and correct as of the date of this Supplement.
STUDENT LOAN MARKETING
ASSOCIATION
By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇
Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Agent