Exhibit 4.3
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AMENDED AND RESTATED
TRUST AGREEMENT
between
SLM FUNDING CORPORATION,
as Depositor
and
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Eligible Lender Trustee
Dated as of June 1, 2001
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TABLE OF CONTENTS
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Page
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ARTICLE I
DEFINITIONS AND USAGE
SECTION 1.1 Definitions and Usage.............................................. 1
ARTICLE II
ORGANIZATION
SECTION 2.1 Creation of Trust; Name............................................ 1
SECTION 2.2 Office............................................................. 1
SECTION 2.3 Purposes and Powers................................................ 1
SECTION 2.4 Appointment of Eligible Lender Trustee............................. 2
SECTION 2.5 Initial Capital Contribution of Trust Estate....................... 2
SECTION 2.6 Declaration of Trust............................................... 2
SECTION 2.7 Liability of the Holder of Excess Distribution Certificateholder... 2
SECTION 2.8 Title to Trust Property............................................ 3
SECTION 2.9 Representations, Warranties and Covenants of the Depositor......... 3
SECTION 2.10 Intentionally Omitted.............................................. 4
ARTICLE III
BENEFICIAL OWNERSHIP AND EXCESS DISTRIBUTION CERTIFICATE
SECTION 3.1 Initial Beneficial Ownership....................................... 4
SECTION 3.2 Intentionally Omitted.............................................. 4
SECTION 3.3 Intentionally Omitted.............................................. 4
SECTION 3.4 Intentionally Omitted.............................................. 4
SECTION 3.5 Intentionally Omitted.............................................. 4
SECTION 3.6 Intentionally Omitted.............................................. 4
SECTION 3.7 Intentionally Omitted.............................................. 4
SECTION 3.8 Corporate Trust Office............................................. 4
SECTION 3.9 Intentionally Omitted.............................................. 4
SECTION 3.10 Intentionally Omitted.............................................. 4
SECTION 3.11 Intentionally Omitted.............................................. 4
SECTION 3.12 Intentionally Omitted.............................................. 5
SECTION 3.13 The Excess Distribution Certificate................................ 5
ARTICLE IV
ACTIONS BE ELIGIBLE LENDER TRUSTEE
SECTION 4.1 Prior Notice to the Holder of the Excess Distribution Certificate
With Respect to Certain Matters.................................... 8
SECTION 4.2 Action with Respect to Sale of the Trust Student Loans............ 9
SECTION 4.3 Action with Respect to Bankruptcy.................................. 9
SECTION 4.4 Restrictions....................................................... 9
SECTION 4.5 Intentionally Omitted............................................... 9
ARTICLE V
APPLICATION OF TRUST FUNDS
SECTION 5.1 Application of Trust Funds.......................................... 9
SECTION 5.2 Method of Payment................................................... 10
SECTION 5.3 No Segregation of Moneys; No Interest............................... 10
SECTION 5.4 Reports to the Holder of the Excess Distribution Certificate, the
Internal Revenue Service and Others................................. 10
SECTION 5.5 Intentionally Omitted............................................... 10
SECTION 5.6 Intentionally Omitted............................................... 10
ARTICLE VI
AUTHORITY AND DUTIES OF ELIGIBLE LENDER TRUSTEE
SECTION 6.1 General Authority................................................... 11
SECTION 6.2 General Duties...................................................... 11
SECTION 6.3 Action upon Instruction............................................. 12
SECTION 6.4 No Duties Except as Specified in this Agreement or in Instructions.. 13
SECTION 6.5 No Action Except Under Specified Documents or Instructions.......... 13
SECTION 6.6 Restrictions........................................................ 13
ARTICLE VII
CONCERNING THE ELIGIBLE LENDER TRUSTEE
SECTION 7.1 Acceptance of Trusts and Duties..................................... 13
SECTION 7.2 Furnishing of Documents............................................. 15
SECTION 7.3 Representations and Warranties...................................... 15
SECTION 7.4 Reliance; Advice of Counsel......................................... 15
SECTION 7.5 Not Acting in Individual Capacity................................... 16
SECTION 7.6 Eligible Lender Trustee Not Liable for Excess Distribution
Certificate or Trust Student Loans.................................. 16
SECTION 7.7 Eligible Lender Trustee May Own Note................................ 17
ARTICLE VIII
COMPENSATION AND INDEMNITY OF ELIGIBLE LENDER TRUSTEE
SECTION 8.1 Eligible Lender Trustee's Fees and Expenses......................... 17
SECTION 8.2 Payments to the Eligible Lender Trustee............................. 17
SECTION 8.3 Indemnity........................................................... 17
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.1 Termination of Trust Agreement...................................... 17
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SECTION 9.2 Dissolution upon Insolvency of the Depositor.................................... 18
ARTICLE X
SUCCESSOR ELIGIBLE LENDER TRUSTEES AND ADDITIONAL ELIGIBLE LENDER TRUSTEES
SECTION 10.1 Eligibility Requirements for Eligible Lender Trustee............................ 19
SECTION 10.2 Resignation or Removal of Eligible Lender Trustee............................... 19
SECTION 10.3 Successor Eligible Lender Trustee............................................... 20
SECTION 10.4 Merger or Consolidation of Eligible Lender Trustee.............................. 21
SECTION 10.5 Appointment of Co-Eligible Lender Trustee or Separate Eligible Lender........... 21
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 Supplements and Amendments...................................................... 22
SECTION 11.2 No Legal Title to Trust Estate in Holders of Excess Distribution Certificate.... 23
SECTION 11.3 Limitations on Rights of Others................................................. 23
SECTION 11.4 Notices......................................................................... 24
SECTION 11.5 Severability.................................................................... 24
SECTION 11.6 Separate Counterparts........................................................... 24
SECTION 11.7 Successors and Assigns.......................................................... 24
SECTION 11.8 No Petition..................................................................... 24
SECTION 11.9 No Recourse..................................................................... 25
SECTION 11.10 Headings........................................................................ 25
SECTION 11.11 Governing Law................................................................... 25
Exhibit A Reserved
Exhibit B Reserved
Exhibit C Form of Excess Distribution Certificate
Annex 1 to Trust Agreement
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AMENDED AND RESTATED TRUST AGREEMENT dated as of June 1, 2001, between SLM
FUNDING CORPORATION, a Delaware corporation, as Depositor, and CHASE MANHATTAN
BANK USA, NATIONAL ASSOCIATION, a national banking association, not in its
individual capacity but solely as Eligible Lender Trustee.
WITNESSETH:
WHEREAS, the Depositor and the Eligible Lender Trustee are parties to
that certain Trust Agreement dated as of May 18, 2001 (the "Short-Form Trust
Agreement") pursuant to which the SLM Student Loan Trust 2001-2 was created; and
WHEREAS, the Depositor and the Eligible Lender Trustee desire to amend
and restate the Short-Form Trust Agreement as set forth below.
THEREFORE, the Depositor and the Eligible Lender Trustee hereby agree as
follows:
ARTICLE I
SECTION 1.1 Definitions and Usage. Except as otherwise specified herein
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or as the context may otherwise require, capitalized terms used but not
otherwise defined herein are defined in Appendix A hereto, which also contains
rules as to usage that shall be applicable herein.
ARTICLE II
Organization
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SECTION 2.1 Creation of Trust; Name. There is hereby created a Trust
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which shall be known as "SLM Student Loan Trust 2001-2", in which name the
Eligible Lender Trustee may conduct the business of the Trust, make and execute
contracts and other instruments on behalf of the Trust and ▇▇▇ and be sued. The
Trust shall constitute a business trust within the meaning of Section 3801(a) of
the Delaware Business Trust Act for which the Trustee has filed a certificate of
trust with the Secretary of State of the State of Delaware pursuant to Section
3810(a) of the Delaware Business Trust Act.
SECTION 2.2 Office. The office of the Trust shall be in care of the
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Eligible Lender Trustee at its Corporate Trust Office or at such other address
as the Eligible Lender Trustee may designate by written notice to the
Depositor.
SECTION 2.3 Purposes and Powers. The purpose of the Trust is to engage in
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the following activities:
(i) to issue the Notes pursuant to the Indenture and the Excess
Distribution Certificate pursuant to this Agreement and to sell the Notes in
one or more transactions;
(ii) with the proceeds of the sale of the Notes, to fund the Reserve
Account pursuant to Section 2.8 of the Administration Agreement and to
purchase the Trust Student Loans pursuant to the Sale Agreement;
(iii) to Grant the Trust Estate to the Indenture Trustee pursuant to the
Indenture, and to hold, manage and distribute to the holder of the Excess
Distribution Certificate pursuant to the terms of this Agreement any portion
of the Trust Estate released from the Lien of, and remitted to the Trust
pursuant to, the Indenture;
(iv) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(v) to engage in those activities, including entering into agreements,
that are necessary, suitable or convenient to accomplish the foregoing or
are incidental thereto or connected therewith including but not limited to
entering into and performing its obligations under any Swap Agreements to
which it is to be a party; and
(vi) subject to compliance with the Basic Documents, to engage in such
other activities as may be required in connection with conservation of the
Trust Estate and the making of distributions to the Noteholders and the
others specified in Sections 2.7 and 2.8 of the Administration Agreement.
The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Agreement
or the other Basic Documents.
SECTION 2.4 Appointment of Eligible Lender Trustee. The Depositor hereby
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appoints the Eligible Lender Trustee as trustee of the Trust, effective
as of the date hereof, to have all the rights, powers and duties set forth
herein.
SECTION 2.5 Initial Capital Contribution of Trust Estate. The Depositor
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hereby sells, assigns, transfers, conveys and sets over to the Eligible Lender
Trustee, as of the date hereof, the sum of $100.00. The Eligible Lender Trustee
hereby acknowledges receipt in trust from the Depositor, as of the date hereof,
of the foregoing contribution, which shall constitute the Initial Trust Estate
and shall be deposited in the Collection Account. The Depositor shall pay the
organizational expenses of the Trust as they may arise or shall, upon the
request of the Eligible Lender Trustee, promptly reimburse the Eligible Lender
Trustee for any such expenses paid by the Eligible Lender Trustee.
SECTION 2.6 Declaration of Trust. The Eligible Lender Trustee hereby
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declares that it will hold the Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the holder of the Excess
Distribution Certificate, subject to the obligations of the Trust under the
other Basic Documents. It is the intention of the parties hereto that the Trust
constitute a business trust under Delaware law and that this Agreement
constitute the governing instrument of such trust. Effective as of the date
hereof, the Eligible Lender Trustee shall have all rights, powers and duties set
forth herein with respect to accomplishing the purposes of the Trust.
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SECTION 2.7 Liability of the Holders of Excess Distribution Certificate.
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(a) Notwithstanding the provisions of Section 3803 of the Delaware Business
Trust Act, the Depositor shall be liable directly to and shall
indemnify the injured party for all losses, claims, damages,
liabilities and expenses of the Trust (including Expenses, to the
extent that the assets of the Trust that would remain if all of the
Notes were paid in full would not be sufficient to pay any such
liabilities, or if such liabilities in fact are not paid out of the
Trust Estate) to the extent that the Depositor would be liable if the
Trust were a partnership under the Delaware Revised Uniform Limited
Partnership Act in which the Depositor were a general partner;
provided, however, that the Depositor shall not be liable for any
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losses incurred by a beneficial owner of a Note in its capacity as a
holder of limited recourse debt or to any holder of the Excess
Distribution Certificate. In addition, any third party creditors of the
Trust (other than in connection with the obligations to Noteholders
excepted above) shall be third party beneficiaries of this paragraph.
(b) No holder of the Excess Distribution Certificate (in such capacity)
shall have any personal liability for any liability or obligation of
the Trust.
SECTION 2.8 Title to Trust Property. Legal title to all of the Trust
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Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part of
the Trust Estate to be vested in a trustee or trustees, in which case title
shall be deemed to be vested in the Eligible Lender Trustee, a co-trustee and/or
a separate trustee, as the case may be; provided that legal title to the Trust
Student Loans shall be vested at all times in the Eligible Lender Trustee on
behalf of the Trust.
SECTION 2.9 Representations, Warranties, and Covenants of the Depositor.
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The Depositor hereby represents, warrants and covenants to the Eligible Lender
Trustee as follows:
(a) The Depositor is duly organized and validly existing as a Delaware
corporation in good standing under the laws of the State of Delaware,
with power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is
presently conducted.
(b) The Depositor has the corporate power and authority to execute and
deliver this Agreement and to carry out its terms; the Depositor has
full corporate power and authority to sell and assign the property to
be sold and assigned to and deposited with the Trust (or with the
Eligible Lender Trustee on behalf of the Trust) and the Depositor has
duly authorized such sale and assignment and deposit to the Trust (or
to the Eligible Lender Trustee on behalf of the Trust) by all necessary
corporate action; and the execution, delivery and performance of this
Agreement has been duly authorized by the Depositor by all necessary
corporate action.
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(c) This Agreement constitutes a legal, valid and binding obligation of the
Depositor enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization and similar laws
relating to creditors' rights generally and subject to general
principles of equity.
(d) The of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof do not conflict with, result in any
breach of any of the terms and provisions of, or constitute (with or
without notice or lapse of time or both) a default under, the
Certificate of Incorporation or by-laws of the Depositor, or any
indenture, agreement or other instrument to which the Depositor is a
party or by which it is bound; nor result in the creation or imposition
of any Lien upon any of its properties pursuant to the terms of any
such indenture, agreement or other instrument (other than pursuant to
the Basic Documents); nor violate any law or, to the Depositor's
knowledge, any order, rule or regulation applicable to the Depositor of
any court or of any Federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over
the Depositor or its properties.
(e) The Depositor agrees for the benefit of the Noteholders and the holder
of the Excess Distribution Certificate that it will comply with each of
the requirements set forth in Article IX, X, and XII of its Certificate
of Incorporation and with each of the undertakings set forth in Annex I
hereto.
SECTION 2.10 Intentionally Omitted.
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ARTICLE III
Beneficial Ownership and
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Excess Distribution Certificate
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SECTION 3.1 Initial Beneficial Ownership. Upon the formation of the Trust
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by the contribution by the Depositor pursuant to Section 2.5 and until the
issuance of the Excess Distribution Certificate, the Depositor shall be the
sole beneficial owner of the Trust.
SECTION 3.2 Intentionally Omitted.
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SECTION 3.3 Intentionally Omitted.
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SECTION 3.4 Intentionally Omitted.
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SECTION 3.5 Intentionally Omitted.
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SECTION 3.6 Intentionally Omitted.
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SECTION 3.7 Intentionally Omitted.
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SECTION 3.8 Corporate Trust Office. The Eligible Lender Trustee initially
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designates ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, as its principal Corporate
Trust Office. The Eligible Lender Trustee's New York office and its
authenticating agent's office are located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance Services.
SECTION 3.9 Intentionally Omitted.
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SECTION 3.10 Intentionally Omitted.
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SECTION 3.11 Intentionally Omitted.
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SECTION 3.12 Intentionally Omitted.
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SECTION 3.13 The Excess Distribution Certificate.
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(a) General. The Excess Distribution Certificate shall be issued without
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denomination. The Excess Distribution Certificate shall receive payments as
provided in Section 2.8C.1(F)(ii) of the Administration Agreement. The Excess
Distribution Certificate shall be executed on behalf of the Trust by manual or
facsimile signature of an authorized officer of the Eligible Lender Trustee. An
Excess Distribution Certificate bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures were affixed, authorized
to sign on behalf of the Trust, shall be valid and binding obligations of the
Trust, notwithstanding that such individuals or any of them shall have ceased to
be so authorized prior to the authentication and delivery of such Excess
Distribution Certificate or did not hold such offices at the date of
authentication and delivery of such Excess Distribution Certificate.
(b) Authentication. Concurrently with the sale of the Trust Student Loans
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to the Trust pursuant to the Purchase Agreement, the Eligible Lender Trustee
shall cause the Excess Distribution Certificate to be executed on behalf of the
Trust, authenticated and delivered to or upon the written order of the
Depositor, signed by its chairman of the board, its president or any vice
president, without further action by the Depositor. No Excess Distribution
Certificate shall entitle its holder to any benefit under this Agreement, or
shall be valid for any purpose, unless there shall appear on such Excess
Distribution Certificate a certificate of authentication substantially in the
form set forth in Exhibit C, executed by the Eligible Lender Trustee or The
Chase Manhattan Bank, as the Eligible Lender Trustee's authenticating agent, by
manual signature; such authentication shall constitute conclusive evidence that
such Excess Distribution Certificate shall have been duly authenticated and
delivered hereunder. The Excess Distribution Certificate shall be dated the
date of its authentication. No further Excess Distribution Certificates shall
be issued except pursuant to paragraph (c) or (d) below.
(c) Registration of Transfer and Exchange. The Excess Distribution
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Certificate Registrar shall keep or cause to be kept, at the office or agency
maintained pursuant to paragraph (f) below, an Excess Distribution Certificate
Register in which, subject to such reasonable regulations as it
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may prescribe, the Eligible Lender Trustee shall provide for the registration of
the Excess Distribution Certificate and of transfers and exchanges of the Excess
Distribution Certificate as herein provided. Chase Manhattan Bank USA, National
Association shall be the initial Excess Distribution Certificate Registrar.
Upon surrender for registration of transfer of the Excess Distribution
Certificate at the office or agency maintained pursuant to paragraph (f) below,
the Eligible Lender Trustee shall execute, authenticate and deliver (or shall
cause The Chase Manhattan Bank as its authenticating agent to authenticate and
deliver), in the name of the designated transferee, a new Excess Distribution
Certificate dated the date of authentication by the Eligible Lender Trustee or
any authenticating agent. At the option of the holder of the Excess
Distribution Certificate, the Excess Distribution Certificate may be exchanged
for another Excess Distribution Certificate upon surrender of the Excess
Distribution Certificate to be exchanged at the office or agency maintained
pursuant to paragraph (f) below.
An Excess Distribution Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Eligible Lender Trustee and
the Excess Distribution Certificate Registrar duly executed by the holder
thereof or his attorney duly authorized in writing, with such signature
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company. An Excess Distribution Certificate surrendered for
registration of transfer or exchange shall be cancelled and subsequently
disposed of by the Eligible Lender Trustee in accordance with its customary
practice.
No service charge shall be made for any registration of transfer or
exchange of the Excess Distribution Certificate, but the Eligible Lender Trustee
or the Excess Distribution Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of the Excess Distribution Certificate.
The preceding provisions of this Section notwithstanding, the Eligible
Lender Trustee shall not be required to make and the Excess Distribution
Certificate Registrar need not register transfers or exchanges of the Excess
Distribution Certificate for a period of 15 days preceding any Distribution Date
with respect to the Excess Distribution Certificate.
The Excess Distribution Certificate and any beneficial interest in the
Excess Distribution Certificate may not be acquired by (a) employee benefit
plans (as defined in section 3(3) of ERISA) that are subject to the provisions
of Title I of ERISA, (b) plans described in section 4975(e)(1) of the Code,
including individual retirement accounts described in Section 408(a) of the Code
or ▇▇▇▇▇ plans, or (c) Benefit Plans. By accepting and holding the Excess
Distribution Certificate or an interest therein, the holder thereof shall be
deemed to have represented and warranted that it is not a Benefit Plan, is not
purchasing the Excess Distribution Certificate on behalf of a Benefit Plan and
is not using assets of a Plan to purchase the Excess Distribution Certificate
and to have agreed that if the Excess Distribution Certificate is deemed to be a
plan asset, the holder thereof will promptly dispose of the Excess Distribution
Certificate.
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(d) Mutilated, Destroyed, Lost or Stolen Excess Distribution Certificate.
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If (1) the mutilated Excess Distribution Certificate shall be surrendered to the
Excess Distribution Certificate Registrar, or if the Excess Distribution
Certificate Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of the Excess Distribution Certificate, and (2) there
shall be delivered to the Excess Distribution Certificate Registrar and the
Eligible Lender Trustee such security or indemnity as may be required by them to
save each of them and the Trust harmless, then in the absence of notice that
such Excess Distribution Certificate shall have been acquired by a bona fide
purchaser, the Eligible Lender Trustee on behalf of the Trust shall execute and
the Eligible Lender Trustee shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Excess Distribution
Certificate, a new Excess Distribution Certificate of like tenor. In connection
with the issuance of any new Excess Distribution Certificate under this Section,
the Eligible Lender Trustee and the Excess Distribution Certificate Registrar
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Excess Distribution Certificate issued pursuant to this paragraph shall
constitute conclusive evidence of ownership in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Excess Distribution
Certificate shall be found at any time.
(e) Persons Deemed Owners. Prior to due presentation of the Excess
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Distribution Certificate for registration of transfer, the Eligible Lender
Trustee and the Excess Distribution Certificate Registrar and any agent of
either of them may treat the Person in whose name the Excess Distribution
Certificate shall be registered in the Excess Distribution Certificate Register
as the owner of such Excess Distribution Certificate for the purpose of
receiving distributions thereon and for all other purposes whatsoever, and
neither the Eligible Lender Trustee, the Excess Distribution Certificate
Registrar nor any agent thereof shall be bound by any notice to the contrary.
(f) Maintenance of Office or Agency. The Eligible Lender Trustee shall
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maintain in the Borough of Manhattan, The City of New York, an office or offices
or agency or agencies where the Excess Distribution Certificate may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Eligible Lender Trustee in respect of the Excess
Distribution Certificate may be served.
(g) Appointment of Excess Distribution Certificate Paying Agent. The
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Excess Distribution Certificate Paying Agent shall make distributions to the
holder of the Excess Distribution Certificate from the amounts received from the
Indenture Trustee pursuant to Section 2.8C.1F(ii) of the Administration
Agreement and shall report the amounts of such distributions to the Eligible
Lender Trustee. Any Excess Distribution Certificate Paying Agent shall have the
revocable power to receive such funds from the Indenture Trustee for the purpose
of making the distributions referred to above. The Eligible Lender Trustee may
revoke such power and remove the Excess Distribution Certificate Paying Agent if
the Eligible Lender Trustee determines in its sole discretion that the Excess
Distribution Certificate Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. The Excess
Distribution Certificate Paying Agent shall initially be the Eligible Lender
Trustee, and any co-
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paying agent chosen by the Eligible Lender Trustee and consented to by the
Administrator (which consent shall not be unreasonably withheld). The co-paying
agent shall initially be the Indenture Trustee. The Eligible Lender Trustee
shall be permitted to resign as Excess Distribution Certificate Paying Agent
upon 30 days' written notice to the Eligible Lender Trustee. In the event that
the Eligible Lender Trustee shall no longer be the Excess Distribution
Certificate Paying Agent, the Eligible Lender Trustee shall appoint a successor
to act as Excess Distribution Certificate Paying Agent (which shall be a bank or
trust company). The Eligible Lender Trustee shall cause such successor Excess
Distribution Certificate Paying Agent or any additional Excess Distribution
Certificate Paying Agent appointed by the Eligible Lender Trustee to execute and
deliver to the Eligible Lender Trustee an instrument in which such successor
Excess Distribution Certificate Paying Agent or additional Excess Distribution
Certificate Paying Agent shall agree with the Eligible Lender Trustee that as
Excess Distribution Certificate Paying Agent, such successor Excess Distribution
Certificate Paying Agent or additional Excess Distribution Certificate Paying
Agent will hold all sums, if any, held by it for payment to the holder of the
Excess Distribution Certificate in trust for the benefit of such holder until
such sums shall be paid to such holder. The Excess Distribution Certificate
Paying Agent shall return all unclaimed funds to the Eligible Lender Trustee and
upon removal of an Excess Distribution Certificate Paying Agent such Excess
Distribution Certificate Paying Agent shall also return all funds in its
possession to the Eligible Lender Trustee. The provisions of Sections 7.1, 7.3,
7.4, 7.5 and 8.1 shall apply to the Eligible Lender Trustee also in its role as
Excess Distribution Certificate Paying Agent, for so long as the Eligible Lender
Trustee shall act as Certificate Paying Agent and, to the extent applicable, to
any other paying agent appointed hereunder. Any reference in this Agreement to
the Excess Distribution Certificate Paying Agent shall include any co-paying
agent unless the context requires otherwise.
ARTICLE IV
Actions by Eligible Lender Trustee
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SECTION 4.1 Prior Notice to the Holder of the Excess Distribution
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Certificate With Respect to Certain Matters. With respect to the following
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matters, the Eligible Lender Trustee shall not take action unless at least 30
days before the taking of such action, the Eligible Lender Trustee shall have
notified the holder of the Excess Distribution Certificate and each of the
Rating Agencies in writing of the proposed action and the holder shall not have
notified the Eligible Lender Trustee in writing prior to the 30th day after such
notice is given that it has withheld consent or provided alternative direction:
(a) the initiation of any material claim or lawsuit by the Trust (except
claims or lawsuits brought in connection with the collection of the
Trust Student Loans) and the compromise of any material action, claim
or lawsuit brought by or against the Trust (except with respect to the
aforementioned claims or lawsuits for collection of Trust Student
Loans);
(b) the amendment of the Indenture by a supplemental indenture in
circumstances
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where the consent of any class of Noteholders is required;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any class of Noteholder is not
required and such amendment materially adversely affects the interest
of the holder of the Excess Distribution Certificate; or
(d) the amendment of any Swap Agreement in circumstances where the consent
of any class of Noteholders is required or in circumstances where the
consent of Noteholders is not required but where such amendment
materially adversely affects the interest of the holder of the Excess
Distribution Certificate.
SECTION 4.2 Action with Respect to Sale of the Trust Student Loans. The
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Eligible Lender Trustee shall not have the power, except upon the written
direction of the Depositor and except as expressly provided in the Basic
Documents, to sell the Trust Student Loans after the payment in full of the
Notes.
SECTION 4.3 Action with Respect to Bankruptcy. The Eligible Lender
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Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the prior approval of the Depositor and
the delivery to the Eligible Lender Trustee by the Depositor of a certificate
certifying that the Depositor reasonably believes that the Trust is insolvent.
SECTION 4.4 Restrictions. Neither the Depositor nor the holder of the
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Excess Distribution Certificate shall direct the Eligible Lender Trustee to take
or refrain from taking any action if such action or inaction would be contrary
to any obligation of the Trust or the Eligible Lender Trustee under this
Agreement or any of the other Basic Documents or would be contrary to Section
2.3 nor shall the Eligible Lender Trustee be permitted to follow any such
direction, if given.
SECTION 4.5 Intentionally Omitted.
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ARTICLE V
Application of Trust Funds; Certain Duties
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SECTION 5.1 Application of Trust Funds.
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(a) On each Distribution Date, the Eligible Lender Trustee shall
distribute to the holder of the Excess Distribution Certificate any
amounts payable in respect of the Excess Distribution Certificate in
accordance with the Administrative Agreement.
(b) In the event that any withholding tax is imposed on the Trust's
payment to the holder of the Excess Distribution Certificate, such tax
shall reduce the amount
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otherwise distributable on the Excess Distribution Certificate.
SECTION 5.2 Method of Payment. Subject to Section 9.1(c), distributions
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required to be made to the holder of the Excess Distribution Certificate on any
Distribution Date shall be made to the holder of record on the preceding Record
Date either by wire transfer, in immediately available funds, to the account of
such holder at a bank or other entity having appropriate facilities therefor, if
such holder shall have provided to the Excess Distribution Certificate Registrar
appropriate written instructions signed by two authorized officers, if any, at
least five Business Days prior to such Distribution Date, or, if not, by check
mailed to such holder at the address of such holder appearing in the Excess
Distribution Certificate Register.
SECTION 5.3 No Segregation of Moneys; No Interest. Subject to Section
-------------------------------------
5.1, moneys received by the Eligible Lender Trustee hereunder need not be
segregated in any manner except to the extent required by law or the
Administration Agreement and may be deposited under such general conditions as
may be prescribed by law, and the Eligible Lender Trustee shall not be liable
for any interest thereon.
SECTION 5.4 Reports to the Holder of the Excess Distribution Certificate,
-------------------------------------------------------------
the Internal Revenue Service and Others. The Eligible Lender Trustee shall
---------------------------------------
provide (or cause to be provided) any reports or other information required to
be provided to the holder of the Excess Distribution Certificate pursuant to the
Code, the regulations promulgated thereunder or other applicable law. In
addition, the Eligible Lender Trustee shall provide (or cause to be provided)
any information concerning the Excess Distribution Certificate to the Internal
Revenue Service or other taxing authority as required under the Code, the
regulations promulgated thereunder or other applicable law. The Eligible Lender
Trustee shall be entitled to hire an independent accounting firm to perform the
functions described in this Section 5.4, the reasonable fees and expenses of
which shall be paid by the Depositor.
SECTION 5.5 Intentionally Omitted.
----------------------
SECTION 5.6 Intentionally Omitted.
----------------------
10
ARTICLE VI
Authority and Duties of Eligible Lender Trustee
-----------------------------------------------
SECTION 6.1 General Authority. The Eligible Lender Trustee is authorized
-----------------
and directed to execute and deliver the Basic Documents to which the Trust is to
be a party and each certificate or other document attached as an exhibit to or
contemplated by the Basic Documents to which the Trust is to be a party, in each
case, in such form as the Depositor shall approve as evidenced conclusively by
the Eligible Lender Trustee's execution thereof, and, on behalf of the Trust, to
direct the Indenture Trustee to authenticate and deliver Notes in the aggregate
principal amount of $1,535,876,000. The Eligible Lender Trustee is also
authorized and directed on behalf of the Trust (i) to acquire and hold legal
title to the Trust Student Loans from the Depositor and (ii) to take all actions
required pursuant to Section 3.2C of the Administration Agreement and otherwise
follow the direction of and cooperate with the Servicer in submitting, pursuing
and collecting any claims to and with the Department with respect to any
Interest Subsidy Payments and Special Allowance Payments relating to the Trust
Student Loans.
In addition to the foregoing, the Eligible Lender Trustee is authorized to
take all actions required of the Trust pursuant to the Basic Documents. The
Eligible Lender Trustee is further authorized from time to time to take such
action as the Administrator directs or instructs with respect to the Basic
Documents and is directed to take such action to the extent that the
Administrator is expressly required pursuant to the Basic Documents to cause the
Eligible Lender Trustee to act.
SECTION 6.2 General Duties. It shall be the duty of the Eligible Lender
--------------
Trustee to discharge (or cause to be discharged) all its responsibilities
pursuant to the terms of this Agreement, the other Basic Documents to which the
Trust is a party and to administer the Trust in the interest of the Noteholders
and the holder of the Excess Distribution Certificate subject to and in
accordance with the provisions of this Agreement and the other Basic Documents.
Without limiting the foregoing, the Eligible Lender Trustee shall on behalf of
the Trust file and prove any claim or claims that may exist on behalf of the
Trust against the Depositor in connection with any claims paying procedure as
part of an insolvency or a receivership proceeding involving the Depositor.
Notwithstanding the foregoing, the Eligible Lender Trustee shall be deemed to
have discharged its duties and responsibilities hereunder and under the other
Basic Documents to the extent the Administrator has agreed in the Administration
Agreement to perform and act or to discharge any duty of the Eligible Lender
Trustee hereunder or under any other Basic Document, and the Eligible Lender
Trustee shall not be held liable for the default or failure of the Administrator
to carry out its obligations under the Administration Agreement. Except as
expressly provided in the Basic Documents, the Eligible Lender Trustee shall
have no obligation to administer, service or collect the Trust Student Loans or
to maintain, monitor or otherwise supervise the administration, servicing or
collection of the Trust Student Loans.
11
SECTION 6.3 Action upon Instruction.
-----------------------
(a) [Reserved]
(b) The Eligible Lender Trustee shall not be required to take any action
hereunder or under any other Basic Document if the Eligible Lender
Trustee shall have reasonably determined, or shall have been advised
by counsel, that such action is likely to result in liability on the
part of the Eligible Lender Trustee or is contrary to the terms
hereof, any other Basic Document or is otherwise contrary to law.
(c) Whenever the Eligible Lender Trustee is unable to determine the
appropriate course of action between alternative courses and actions
permitted or required by the terms of this Agreement or under any
other Basic Document, the Eligible Lender Trustee shall promptly give
notice (in such form as shall be appropriate under the circumstances)
to the Depositor requiring instruction as to the course of action to
be adopted, and to the extent the Eligible Lender Trustee acts in good
faith in accordance with any written instruction of the Depositor
received, the Eligible Lender Trustee shall not be liable on account
of such action to any Person. If the Eligible Lender Trustee shall
not have received appropriate instruction within 10 days of such
notice (or within such shorter period of time as reasonably may be
specified in such notice or may be necessary under the circumstances)
it may, but shall be under no duty to, take or refrain from taking
such action, not inconsistent with this Agreement, the other Basic
Documents, as it shall deem to be in the best interests of the
Depositor, and shall have no liability to any Person for such action
or inaction.
(d) In the event that the Eligible Lender Trustee is unsure as to the
application of any provision of this Agreement, any other Basic
Document or any such provision is ambiguous as to its application, or
is, or appears to be, in conflict with any other applicable provision,
or in the event that this Agreement permits any determination by the
Eligible Lender Trustee or is silent or is incomplete as to the course
of action that the Eligible Lender Trustee is required to take with
respect to a particular set of facts, the Eligible Lender Trustee may
give notice (in such form as shall be appropriate under the
circumstances) to the Depositor requesting instruction and, to the
extent that the Eligible Lender Trustee acts or refrains from acting
in good faith in accordance with any such instruction received, the
Eligible Lender Trustee shall not be liable, on account of such action
or inaction, to any Person. If the Eligible Lender Trustee shall not
have received appropriate instruction within 10 days of such notice
(or within such shorter period of time as reasonably may be specified
in such notice or may be necessary under the circumstances) it may,
but shall be under no duty to, take or refrain from taking such
action, not inconsistent with this Agreement or the other Basic
Documents, as it shall deem to be in the best interest of the holder
of the Excess Distribution Certificate, and shall have no liability to
any Person for such action or inaction.
12
SECTION 6.4 No Duties Except as Specified in this Agreement or in
-----------------------------------------------------
Instructions. The Eligible Lender Trustee shall not have any duty or obligation
------------
to manage, make any payment with respect to, register, record, sell, service,
dispose of or otherwise deal with the Trust Estate, or to otherwise take or
refrain from taking any action under, or in connection with, any document
contemplated hereby to which the Eligible Lender Trustee is a party, except as
expressly provided by the terms of this Agreement or in any document or written
instruction received by the Eligible Lender Trustee pursuant to Section 6.3; and
no implied duties or obligations shall be read into this Agreement or any other
Basic Document against the Eligible Lender Trustee. The Eligible Lender Trustee
shall have no responsibility for filing any financing or continuation statement
in any public office at any time or to otherwise perfect or maintain the
perfection of any security interest or lien granted to it hereunder or to
prepare or file any Commission filing for the Trust or to record this Agreement
or any other Basic Document. The Eligible Lender Trustee nevertheless agrees
that it will, at its own cost and expense, promptly take all action as may be
necessary to discharge any Liens on any part of the Trust Estate that result
from actions by, or claims against, Chase Manhattan Bank USA, National
Association in its individual capacity or as the Eligible Lender Trustee that
are not related to the ownership or the administration of the Trust Estate.
SECTION 6.5 No Action Except Under Specified Documents or Instructions.
----------------------------------------------------------
The Eligible Lender Trustee shall not otherwise deal with any part of the Trust
Estate except (i) in accordance with the powers granted to and the authority
conferred upon the Eligible Lender Trustee pursuant to this Agreement, (ii) in
accordance with the other Basic Documents to which it is a party and (iii) in
accordance with any document or instruction delivered to the Eligible Lender
Trustee pursuant to Section 6.3.
SECTION 6.6 Restrictions. The Eligible Lender Trustee shall not take any
------------
action (a) that is inconsistent with the purposes of the Trust set forth in
Section 2.3 or (b) that, to the actual knowledge of the Eligible Lender Trustee,
would result in the Trust's becoming taxable as a corporation for Federal income
tax purposes. Neither the Depositor nor the holder of the Excess Distribution
Certificate shall direct the Eligible Lender Trustee to take action that would
violate the provisions of this Section.
ARTICLE VII
Concerning the Eligible Lender Trustee
--------------------------------------
SECTION 7.1 Acceptance of Trusts and Duties. The Eligible Lender Trustee
-------------------------------
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts but only upon the terms of this Agreement. The
Eligible Lender Trustee also agrees to disburse all moneys actually received by
it constituting part of the Trust Estate upon the terms of this Agreement and
the other Basic Documents. The Eligible Lender Trustee shall not be answerable
or accountable hereunder or under any other Basic Document under any
circumstances, except (i)
13
for its own willful misconduct or negligence or (ii) in the case of the
inaccuracy of any representation or warranty contained in Section 7.3 expressly
made by the Eligible Lender Trustee. In particular, but not by way of limitation
(and subject to the exceptions set forth in the preceding sentence):
(a) the Eligible Lender Trustee shall not be liable for any error of
judgment made by a responsible officer of the Eligible Lender Trustee;
(b) the Eligible Lender Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the
direction or instructions of the Administrator, the Depositor or the
holder of the Excess Distribution Certificate;
(c) no provision of this Agreement or any other Basic Document shall
require the Eligible Lender Trustee to expend or risk funds or
otherwise incur any financial liability in the performance of any of
its rights or powers hereunder or under any other Basic Document, if
the Eligible Lender Trustee shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Eligible Lender Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes;
(e) the Eligible Lender Trustee shall not be responsible for or in respect
of the validity or sufficiency of this Agreement or for the due
execution hereof by the Depositor or for the form, character,
genuineness, sufficiency, value or validity of any of the Trust Estate
or for or in respect of the validity or sufficiency of the Basic
Documents, other than the certificate of authentication on the Excess
Distribution Certificate, and the Eligible Lender Trustee shall in no
event assume or incur any liability, duty, or obligation to any
Noteholder or the holder of the Excess Distribution Certificate,
other than as expressly provided for herein and in the other Basic
Documents;
(f) the Eligible Lender Trustee shall not be liable for the action or
inaction, default or misconduct of the Administrator, the Depositor,
the Indenture Trustee, the Servicer or Swap Counterparties under any
of the other Basic Documents or otherwise and the Eligible Lender
Trustee shall have no obligation or liability to perform the
obligations of the Trust under this Agreement or the other Basic
Documents that are required to be performed by the Administrator under
the Administration Agreement, the Indenture Trustee under the
Indenture, the Servicer under the Servicing Agreement or the Swap
Counterparties under the Swap Agreements; and
(g) the Eligible Lender Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend
14
any litigation under this Agreement or otherwise or in relation to
this Agreement, any other Basic Document, at the request, order or
direction of the Depositor or holder of the Excess Distribution
Certificate, unless the Depositor or such holder has offered to the
Eligible Lender Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities that may be incurred by
the Eligible Lender Trustee therein or thereby. The right of the
Eligible Lender Trustee to perform any discretionary act enumerated in
this Agreement or in any other Basic Document shall not be construed
as a duty, and the Eligible Lender Trustee shall not be answerable for
other than its negligence or willful misconduct in the performance of
any such act.
SECTION 7.2 Intentionally Omitted.
---------------------
SECTION 7.3 Representations and Warranties. The Eligible Lender Trustee
------------------------------
hereby represents and warrants to the Depositor, for the benefit of the
Noteholders and the holder of the Excess Distribution Certificate, that:
(a) It is duly organized and validly existing in good standing under the
laws of its governing jurisdiction and has an office located within
the State of Delaware. It has all requisite corporate power and
authority to execute, deliver and perform its obligations under this
Agreement.
(b) It has taken all corporate action necessary to authorize the execution
and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized
to execute and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement, nor
the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will
contravene any Federal or Delaware state law, governmental rule or
regulation governing the banking or trust powers of the Eligible
Lender Trustee or any judgment or order binding on it, or constitute
any default under its charter documents or by-laws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or
by which any of its properties may be bound.
(d) It is and will maintain its status as an "eligible lender" (as such
term is defined in Section 435(d) of the Higher Education Act) for
purposes of holding legal title to the Trust Student Loans as
contemplated by this Agreement and the other Basic Documents, it has a
lender identification number with respect to the Trust Student Loans
from the Department and has and will maintain in effect a Guarantee
Agreement with each of the Guarantors with respect to the Trust
Student Loans.
SECTION 7.4 Reliance; Advice of Counsel.
---------------------------
15
(a) The Eligible Lender Trustee shall incur no liability to anyone in
acting upon any signature, instrument, direction, notice, resolution,
request, consent, order, certificate, report, opinion, bond or other
document or paper believed by it to be genuine and believed by it to
be signed by the proper party or parties. The Eligible Lender Trustee
may accept a certified copy of a resolution of the board of directors
or other governing body of any corporate party as conclusive evidence
that such resolution has been duly adopted by such body and that the
same is in full force and effect. As to any fact or matter the method
of the determination of which is not specifically prescribed herein,
the Eligible Lender Trustee may for all purposes hereof rely on a
certificate, signed by the president or any vice president or by the
treasurer or other authorized officers of the relevant party, as to
such fact or matter and such certificate shall constitute full
protection to the Eligible Lender Trustee for any action taken or
omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in the
performance of its duties and obligations under this Agreement or the
other Basic Documents, the Eligible Lender Trustee (i) may act
directly or through its agents or attorneys pursuant to agreements
entered into with any of them and the Eligible Lender Trustee shall
not be liable for the conduct or misconduct of such agents or
attorneys if such agents or attorneys shall have been selected by the
Eligible Lender Trustee with reasonable care, and (ii) may consult
with counsel and accountants to be selected with reasonable care and
employed by it. The Eligible Lender Trustee shall not be liable for
anything done, suffered or omitted in good faith by it in accordance
with the written opinion or advice of any such counsel or accountants
and not contrary to this Agreement or any other Basic Document.
SECTION 7.5 Not Acting in Individual Capacity. Except as provided in this
---------------------------------
Article VII, in accepting the trusts hereby created Chase Manhattan Bank USA,
National Association acts solely as Eligible Lender Trustee hereunder and not in
its individual capacity and all Persons having any claim against the Eligible
Lender Trustee by reason of the transactions contemplated by this Agreement or
any other Basic Document shall look only to the Trust Estate for payment or
satisfaction thereof.
SECTION 7.6 Eligible Lender Trustee Not Liable for Excess Distribution
----------------------------------------------------------
Certificates or Trust Student Loans. The recitals contained herein and in the
-----------------------------------
Excess Distribution Certificate (other than the signature of and authentication
by the Eligible Lender Trustee on the Excess Distribution Certificate) shall be
taken as the statements of the Depositor and the Eligible Lender Trustee assumes
no responsibility for the correctness thereof. The Eligible Lender Trustee
makes no representations as to the validity or sufficiency of this Agreement,
the Excess Distribution Certificate, or any other Basic Document (other than the
signature of and authentication by the Eligible Lender Trustee on the Excess
Distribution Certificate), or the Notes, or of any Trust Student Loan or related
documents. The Eligible Lender Trustee shall at no time have any responsibility
(or liability except for willfully or negligently terminating or allowing to be
terminated any of the Guarantee Agreements, in a case where the Eligible Lender
16
Trustee knows of any facts or circumstances which will or could reasonably be
expected to result in any such termination) for or with respect to the legality,
validity, enforceability and eligibility for Guarantee Payments, federal
reinsurance, Interest Subsidy Payments or Special Allowance Payments, as
applicable, in respect of any Trust Student Loan, or for or with respect to the
sufficiency of the Trust Estate or its ability to generate the payments to be
distributed to the holder of the Excess Distribution Certificate under this
Agreement or the Noteholders under the Indenture, including the existence and
contents of any computer or other record of any Trust Student Loan; the validity
of the assignment of any Trust Student Loan to the Eligible Lender Trustee on
behalf of the Trust; the completeness of any Trust Student Loan; the performance
or enforcement (except as expressly set forth in any Basic Document) of any
Trust Student Loan; the compliance by the Depositor or the Servicer with any
warranty or representation made under any Basic Document or in any related
document or the accuracy of any such warranty or representation or any action or
inaction of the Administrator, the Indenture Trustee or the Servicer or any
subservicer taken in the name of the Eligible Lender Trustee.
SECTION 7.7 Eligible Lender Trustee May Own Notes. The Eligible Lender
-------------------------------------
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may deal with the Depositor, the Administrator, the Indenture
Trustee, the Servicer or the Swap Counterparties in banking transactions with
the same rights as it would have if it were not Eligible Lender Trustee.
ARTICLE VIII
Compensation and Indemnity of Eligible Lender Trustee
-----------------------------------------------------
SECTION 8.1 Eligible Lender Trustee's Fees and Expenses. The Eligible
-------------------------------------------
Lender Trustee shall receive as compensation for its services hereunder such
fees as have been separately agreed upon before the date hereof between the
Depositor and the Eligible Lender Trustee, and the Eligible Lender Trustee shall
be entitled to be reimbursed by the Depositor, to the extent provided in such
separate agreement, for its other reasonable expenses (including the reasonable
fees and expenses of counsel and independent accountants) hereunder.
SECTION 8.2 Payments to the Eligible Lender Trustee. Any amounts paid to
---------------------------------------
the Eligible Lender Trustee pursuant to Section 8.1 hereof or pursuant to
Section 9 of the Sale Agreement, Section 4.2 of the Administration Agreement or
Section 4.2 of the Servicing Agreement shall be deemed not to be a part of the
Trust Estate immediately after such payment.
SECTION 8.3 Indemnity. The Depositor shall cause the Administrator to
---------
indemnify the Eligible Lender Trustee in its individual capacity and any of its
officer, directors, employees and agents as and to the extent provided for in
Section 4.2 of the Administration Agreement.
17
ARTICLE IX
Termination of Trust Agreement
------------------------------
SECTION 9.1 Termination of Trust Agreement.
------------------------------
(a) This Agreement (other than Article VIII) and the Trust shall terminate
and be of no further force or effect upon the earlier of (i) the final
distribution by the Eligible Lender Trustee of all moneys or other
property or proceeds of the Trust Estate in accordance with the terms
of the Indenture, the Administration Agreement and Article V, and (ii)
the time provided in Section 9.2. The bankruptcy, liquidation,
dissolution, death or incapacity of the holder of the Excess
Distribution Certificate, other than the Depositor as described in
Section 9.2, shall not (x) operate to terminate this Agreement or the
Trust, nor (y) entitle such holder's legal representatives or heirs to
claim an accounting or to take any action or proceeding in any court
for a partition or winding up of all or any part of the Trust or Trust
Estate nor (z) otherwise affect the rights, obligations and
liabilities of the parties hereto.
(b) Except as provided in Section 9.1(a), neither the Depositor nor any
Noteholder nor the holder of the Excess Distribution Certificate shall
be entitled to revoke or terminate the Trust.
Upon final distribution of any funds remaining in the Trust, the Eligible
Lender Trustee shall file a certificate of cancellation of the Trust's
certificate of trust pursuant to Section 3810(c) of the Delaware Business Trust
Act.
SECTION 9.2 Dissolution upon Insolvency of the Depositor. Notwithstanding
--------------------------------------------
the provisions of Section 3808 of the Delaware Business Trust Act, in the event
that an Insolvency Event shall occur with respect to the Depositor, (x) the
Trust created hereunder shall dissolve and (y) this Agreement shall be
terminated in accordance with Section 9.1 90 days after the date of such
Insolvency Event. Promptly after the occurrence of any Insolvency Event with
respect to the Depositor, (i) the Depositor shall give the Indenture Trustee,
the Eligible Lender Trustee, any Swap Counterparties, and each Rating Agency
written notice of such Insolvency Event, and (ii) the Eligible Lender Trustee
shall, upon the receipt of such written notice from the Depositor, give prompt
written notice to the holder of the Excess Distribution Certificate and the
Indenture Trustee, of the occurrence of such event and of the effect of such
event under this Section 9.2; provided, however, that any failure to give a
-------- -------
notice required by this sentence shall not prevent or delay, in any manner, a
termination of the Trust pursuant to the first sentence of this Section 9.2.
Upon a termination of the Trust pursuant to this Section, the Eligible Lender
Trustee shall direct the Indenture Trustee promptly to sell the assets of the
Trust (other than the Trust Accounts) in a commercially reasonable manner and on
commercially reasonable terms. The proceeds of such a sale of the assets of the
Trust shall be treated as collections under the Administration Agreement.
18
ARTICLE X
Successor Eligible Lender Trustees and
--------------------------------------
Additional Eligible Lender Trustees
-----------------------------------
SECTION 10.1 Eligibility Requirements for Eligible Lender Trustee. The
----------------------------------------------------
Eligible Lender Trustee shall at all times be a corporation or association (i)
qualifying as an "eligible lender" as such term is defined in Section 435(d) of
the Higher Education Act for purposes of holding legal title to the Trust
Student Loans on behalf of the Trust, with a valid lender identification number
with respect to the Trust Student Loans from the Department; (ii) being
authorized to exercise corporate trust powers and hold legal title to the Trust
Student Loans; (iii) having in effect Guarantee Agreements with each of the
Guarantors; (iv) having a combined capital and surplus of at least $50,000,000
and being subject to supervision or examination by Federal or state authorities;
(v) having its principal place of business in the State of Delaware and
otherwise complying with Section 3807 of the Delaware Business Trust Act; and
(vi) having (or having a parent which has) a rating in respect of its long-term
senior unsecured debt of at least BBB- (or the equivalent) by each of the Rating
Agencies (or which, if the long-term senior unsecured debt of such corporation
or association is not rated by any Rating Agency, shall have provided to the
Indenture Trustee written confirmation from such Rating Agency that the
appointment of such corporation or association to serve as Eligible Lender
Trustee will not result in and of itself in a reduction or withdrawal of the
then current rating of any of the Notes). If the Eligible Lender Trustee shall
publish reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purpose of this Section, the combined capital and surplus of the Eligible Lender
Trustee shall be deemed to be its combined capital and surplus as set forth in
its most recent report of condition so published. In case at any time the
Eligible Lender Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Eligible Lender Trustee shall resign immediately
in the manner and with the effect specified in Section 10.2.
SECTION 10.2 Resignation or Removal of Eligible Lender Trustee. The
-------------------------------------------------
Eligible Lender Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Administrator. Upon
receiving such notice of resignation, the Administrator shall promptly appoint a
successor Eligible Lender Trustee meeting the eligibility requirements of
Section 10.1 by written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning Eligible Lender Trustee and one copy to the
successor Eligible Lender Trustee. If no successor Eligible Lender Trustee shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Eligible Lender Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Eligible Lender Trustee; provided, however, that such right to appoint or to
-------- -------
petition for the appointment of any such successor shall in no event relieve the
resigning Eligible Lender Trustee from any obligations otherwise imposed on it
under the Basic Documents until such successor has in fact assumed such
appointment.
If at any time the Eligible Lender Trustee shall cease to be or shall be
likely to cease to be eligible in accordance with the provisions of Section 10.1
and shall fail to resign after written
19
request therefor by the Administrator, or if at any time an Insolvency Event
with respect to the Eligible Lender Trustee shall have occurred and be
continuing, then the Administrator may remove the Eligible Lender Trustee. If
the Administrator shall remove the Eligible Lender Trustee under the authority
of the immediately preceding sentence, the Administrator shall promptly appoint
a successor Eligible Lender Trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the outgoing Eligible Lender
Trustee so removed and one copy to the successor Eligible Lender Trustee and
payment of all fees owed to the outgoing Eligible Lender Trustee.
Any resignation or removal of the Eligible Lender Trustee and appointment
of a successor Eligible Lender Trustee pursuant to any of the provisions of this
Section shall not become effective until acceptance of appointment by the
successor Eligible Lender Trustee pursuant to Section 10.3, payment of all fees
and expenses owed to the outgoing Eligible Lender Trustee and the filing of a
certificate of amendment to the Trust's certificate of trust pursuant to Section
3810(b) of the Delaware Business Trust Act. The Administrator shall provide
notice of such resignation or removal of the Eligible Lender Trustee and to each
of the Rating Agencies.
SECTION 10.3 Successor Eligible Lender Trustee. Any successor Eligible
---------------------------------
Lender Trustee appointed pursuant to Section 10.2 shall execute, acknowledge and
deliver to the Administrator and to its predecessor Eligible Lender Trustee an
instrument accepting such appointment under this Agreement, and thereupon the
resignation or removal of the predecessor Eligible Lender Trustee shall become
effective and such successor Eligible Lender Trustee, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor under this Agreement, with like effect
as if originally named as Eligible Lender Trustee. The predecessor Eligible
Lender Trustee shall upon payment of its fees and expenses deliver to the
successor Eligible Lender Trustee all documents, statements, moneys and
properties held by it under this Agreement and shall assign, if permissible, to
the successor Eligible Lender Trustee the lender identification number obtained
from the Department on behalf of the Trust; and the Administrator and the
predecessor Eligible Lender Trustee shall execute and deliver such instruments
and do such other things as may reasonably be required for fully and certainly
vesting and confirming in the successor Eligible Lender Trustee all such rights,
powers, duties and obligations.
No successor Eligible Lender Trustee shall accept such appointment as
provided in this Section unless at the time of such acceptance such successor
Eligible Lender Trustee shall be eligible pursuant to Section 10.1.
Upon acceptance of appointment by a successor Eligible Lender Trustee pursuant
to this Section, the Administrator shall mail notice of the successor of such
Eligible Lender Trustee to the holder of the Excess Distribution Certificate,
the Indenture Trustee, the Noteholders, the Rating Agencies and the Swap
Counterparties. If the Administrator shall fail to mail such notice within 10
days after acceptance of appointment by the successor Eligible Lender Trustee,
the successor Eligible Lender Trustee shall cause such notice to be mailed at
the expense of the Administrator.
SECTION 10.4 Merger or Consolidation of Eligible Lender Trustee. Any
--------------------------------------------------
corporation
20
into which the Eligible Lender Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Eligible Lender Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Eligible Lender Trustee, shall, without the execution or filing of any
instrument or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding, be the successor of the Eligible Lender
Trustee hereunder; provided that such corporation shall be eligible pursuant to
--------
Section 10.1; and provided further that the Eligible Lender Trustee shall mail
-------- -------
notice of such merger or consolidation to the Rating Agencies not less than 15
days prior to the effective date thereof.
SECTION 10.5 Appointment of Co-Eligible Lender Trustee or Separate
-----------------------------------------------------
Eligible Lender Trustee. Notwithstanding any other provisions of this
-----------------------
Agreement, at any time, for the purpose of meeting any legal requirements of any
jurisdiction in which any part of the Trust may at the time be located, the
Administrator and the Eligible Lender Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Eligible Lender Trustee, meeting the eligibility
requirements of clauses (i) through (iii) of Section 10.1, to act as co-trustee,
jointly with the Eligible Lender Trustee, or separate trustee or separate
trustees, of all or any part of the Trust Estate, and to vest in such Person, in
such capacity, such title to the Trust Estate, or any part thereof, and, subject
to the other provisions of this Section, such powers, duties, obligations,
rights and trusts as the Administrator and the Eligible Lender Trustee may
consider necessary or desirable. If the Administrator shall not have joined in
such appointment within 15 days after the receipt by it of a request so to do,
the Eligible Lender Trustee alone shall have the power to make such appointment.
No co-trustee or separate trustee under this Agreement shall be required to meet
the terms of eligibility as a successor trustee pursuant to clauses (iv), (v)
and (vi) of Section 10.1 and no notice of the appointment of any co-trustee or
separate trustee shall be required pursuant to Section 10.3.
Each separate trustee and co-trustee shall, to the extent permitted by law,
be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties, and obligations conferred or imposed
upon the Eligible Lender Trustee shall be conferred upon and exercised or
performed by the Eligible Lender Trustee and such separate trustee or co-
trustee jointly (it being understood that such separate trustee or co-
trustee is not authorized to act separately without the Eligible Lender
Trustee joining in such act), except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be performed,
the Eligible Lender Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties, and
obligations (including the holding of title to the Trust or any portion
thereof in any such jurisdiction) shall be exercised and performed singly
by such separate trustee or co-trustee, solely at the direction of the
Eligible Lender Trustee;
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
21
(iii) the Administrator and the Eligible Lender Trustee acting jointly
may at any time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Eligible Lender Trustee
shall be deemed to have been given to each of the then separate trustees and co-
trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Eligible
Lender Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Eligible Lender Trustee. Each such instrument shall be filed
with the Eligible Lender Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Eligible
Lender Trustee as its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or co-
trustee shall die, become incapable of acting, resign or be removed, all its
estates, properties, rights, remedies and trusts shall vest in and be exercised
by the Eligible Lender Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
ARTICLE XI
Miscellaneous
-------------
SECTION 11.1 Supplements and Amendments. This Agreement may be amended by
--------------------------
the Depositor and the Eligible Lender Trustee, with prior written notice to the
Rating Agencies, without the consent of any of the Noteholders or the Swap
Counterparties, to cure any ambiguity, to correct or supplement any provisions
in this Agreement or for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions in this Agreement or modifying
in any manner the rights of the Noteholders or the Swap Counterparties;
provided, however, that such action shall not, as evidenced by an Opinion of
-------- -------
Counsel, adversely affect in any material respect the interests of any
Noteholder or Swap Counterparty.
This Agreement may also be amended from time to time by the Depositor and the
Eligible Lender Trustee, with prior written notice to the Rating Agencies, with
the consent of (i) the Class A Noteholders evidencing not less than a majority
of the Outstanding Amount of the Class A Notes and (ii) the Class B Noteholders
evidencing not less than a majority of the Class B Notes, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or modifying in any manner the rights of the Class
A Noteholders or Class B Noteholders, as the case may be; provided, however,
-------- -------
that no such amendment shall (a) increase or reduce in any manner the amount of,
or accelerate or delay the timing of, collections of payments on Trust Student
Loans or distributions that shall be required to be made for the
22
benefit of the Noteholders or (b) reduce the aforesaid percentage of the
Outstanding Amount of any class of Notes required to consent to any such
amendment, without the consent of all the outstanding Noteholders of such class.
This Agreement may also be amended from time to time by the Depositor and
the Eligible Lender Trustee, with prior written notice to the Rating Agencies,
with the consent of the affected Swap Counterparty for the purpose of adding any
provisions to, changing in any manner, or eliminating any of the provisions of
this Agreement or modifying in any manner the rights of a Swap Counterparty if
in the Opinion of Counsel such amendment materially adversely affects the
interests of such Swap Counterparty.
Promptly after the execution of any such amendment or consent, the Eligible
Lender Trustee shall furnish written notification of the substance of such
amendment or consent to the holder of the Excess Distribution Certificate, the
Indenture Trustee, the Swap Counterparties and each of the Rating Agencies.
It shall not be necessary for the consent of the Noteholders, the Indenture
Trustee or any Swap Counterparty pursuant to this Section to approve the
particular form of any proposed amendment or consent, but it shall be sufficient
if such consent shall approve the substance thereof. The manner of obtaining
such consents (and any other consents of provided for in this Agreement or in
any other Basic Document) and of evidencing the authorization of the execution
thereof shall be subject to such reasonable requirements as the Eligible Lender
Trustee may prescribe.
Prior to the execution of any amendment to this Agreement, the Eligible
Lender Trustee shall be entitled to receive and rely upon an Opinion of Counsel
stating that the execution of such amendment is authorized or permitted by this
Agreement. The Eligible Lender Trustee may, but shall not be obligated to, enter
into any such amendment which affects the Eligible Lender Trustee's own rights,
duties or immunities under this Agreement or otherwise.
SECTION 11.2 No Legal Title to Trust Estate in Holder of the Excess
------------------------------------------------------
Distribution Certificate. The holder of the Excess Distribution Certificate
------------------------
shall not have legal title to any part of the Trust Estate. The holder of the
Excess Distribution Certificate shall be entitled to receive distributions with
respect to its undivided beneficial ownership interest therein only in
accordance with Section 3.13 of this Agreement. No transfer, by operation of law
or otherwise, of any right, title, or interest of the holder of the Excess
Distribution Certificate to and in its beneficial ownership interest in the
Trust Estate shall operate to terminate this Agreement or the trusts hereunder
or entitle any transferee to an accounting or to the transfer to it of legal
title to any part of the Trust Estate.
SECTION 11.3 Limitations on Rights of Others. Except for Section 2.7, the
-------------------------------
provisions of this Agreement are solely for the benefit of the Eligible Lender
Trustee, the Depositor, the holder of the Excess Distribution Certificate, the
Administrator and, to the extent expressly provided herein, the Indenture
Trustee, the Noteholders and the Swap Counterparties, and nothing in this
Agreement (other than Section 2.7), whether express or implied, shall be
23
construed to give to any other Person any legal or equitable right, remedy or
claim in the Trust Estate or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
SECTION 11.4 Notices. Unless otherwise expressly specified or permitted
-------
by the terms hereof, all notices shall be in writing and shall be deemed given
upon receipt by the intended recipient or three Business Days after mailing if
mailed by certified mail, postage prepaid (except that notice to the Eligible
Lender Trustee shall be deemed given only upon actual receipt by the Eligible
Lender Trustee), if to the Eligible Lender Trustee, addressed to its Corporate
Trust Office; if to the Depositor, addressed to SLM Funding Corporation, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, or, as to each
party, at such other address as shall be designated by such party in a written
notice to each other party.
SECTION 11.5 Severability. Any provision of this Agreement that is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 11.6 Separate Counterparts. This Agreement may be executed by the
---------------------
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.7 Successors and Assigns. All covenants and agreements
----------------------
contained herein shall be binding upon to the benefit of, the Depositor and its
successors, the Eligible Lender Trustee and its successors, each holder of the
Excess Distribution Certificate and its successors and permitted assigns, all as
herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by a Noteholder or the holder of the Excess Distribution
Certificate shall bind the successors and assigns of such holder.
SECTION 11.8 No Petition.
-----------
(a) The Depositor will not at any time institute against the Trust any
bankruptcy proceedings under any United States Federal or state
bankruptcy or similar law in connection with any obligations relating
to the Excess Distribution Certificate, the Notes, this Agreement or
any of the other Basic Documents.
(b) The Eligible Lender Trustee (not in its individual capacity but solely
as Eligible Lender Trustee), by entering into this Agreement, the
holder of the Excess Distribution Certificate by accepting the Excess
Distribution Certificate, and the Indenture Trustee and each
Noteholder by accepting the benefits of this Agreement, hereby
covenant and agree that they will not at any time institute against
the Depositor or the Trust, or join in any institution against the
Depositor or the Trust of, any bankruptcy, reorganization,
arrangement, insolvency, receivership or liquidation proceedings, or
other proceedings under any United
25
States Federal or state bankruptcy or similar law in connection with
any obligations relating to the Notes, this Agreement or any of the
other Basic Documents.
SECTION 11.9 No Recourse. Each holder of the Excess Distribution
-----------
Certificate by accepting the Excess Distribution Certificate acknowledges that
such holder's certificate represents beneficial interests in the Trust only and
do not represent interests in or obligations of the Depositor, the Servicer, the
Administrator, the Eligible Lender Trustee, the Indenture Trustee, any Swap
Counterparty or any Affiliate thereof or any officer, director or employee of
any thereof and no recourse may be had against such parties or their assets,
except as may be expressly set forth or contemplated in this Agreement, the
Excess Distribution Certificate or the other Basic Documents.
SECTION 11.10 Headings. The headings of the various Articles and Sections
--------
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
SECTION 11.1 Governing Law. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of Delaware, without
reference to its conflict of law provisions, and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such
laws.
25
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION,
not in its individual capacity but solely as
Eligible Lender Trustee,
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SLM FUNDING CORPORATION,
Depositor,
By /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇
________________________________
Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer
26
EXHIBIT A
TO THE TRUST AGREEMENT
RESERVED
1
EXHIBIT B
TO THE TRUST AGREEMENT
RESERVED
EXHIBIT C
TO THE TRUST AGREEMENT
[FORM OF EXCESS DISTRIBUTION CERTIFICATE]
[SEE REVERSE FOR CERTAIN DEFINITIONS]
THIS EXCESS DISTRIBUTION CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE
ACCOUNT OF A BENEFIT PLAN (AS DEFINED BELOW). THIS CERTIFICATE IS NOT
GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY.
SLM STUDENT LOAN TRUST 2001-2
EXCESS DISTRIBUTION CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below,
the property of which includes a pool of student loans sold to the Trust by
SLM Funding Corporation.
(This Excess Distribution Certificate does not represent an interest in or
obligation of SLM Funding Corporation, the Servicer (as defined below), the
Eligible Lender Trustee (as defined below) or any of their respective
affiliates, except to the extent described below.)
i
THIS CERTIFIES THAT SLM Funding Corporation is the registered owner of a
100% percentage interest in this Excess Distribution Certificate. The SLM
Student Loan Trust 2001-2(the "Trust") was formed under the laws of the State of
Delaware by SLM Funding Corporation, a Delaware corporation (the "Depositor").
The Trust was created pursuant to a Trust Agreement dated as of May 18, 2001
between the Depositor and Chase Manhattan Bank USA, National Association, a
national banking association, not in its individual capacity but solely as
eligible lender trustee on behalf of the Trust (the "Eligible Lender Trustee"),
as amended and restated by the Amended and Restated Trust Agreement dated as of
June 1, 2001 by and between the Depositor and the Eligible Lender Trustee (the
"Trust Agreement"), a summary of certain of the pertinent provisions of which is
set forth below. To the extent not otherwise defined herein, the capitalized
terms used herein have the meanings assigned to them in Appendix A to the Trust
Agreement.
Issued under the Indenture dated as of June 1, 2001, between the Trust and
Bankers Trust Company, as Indenture Trustee, are Notes designated as "Floating
Rate Student Loan-Backed Notes" (the "Notes"). This Excess Distribution
Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, to which Trust Agreement the holder of this
Excess Distribution Certificate by virtue of the acceptance hereof assents and
by which such holder is bound. The property of the Trust includes a pool of
student loans (the "Trust Student Loans"), all moneys paid thereunder on or
after April 16, 2001, certain bank accounts and the proceeds thereof and certain
other rights under the Trust Agreement, the Sale Agreement, the Purchase
Agreement, the Administration Agreement and the Servicing Agreement and all
proceeds of the foregoing.
To the extent of funds available therefor, amounts owing hereon will be
distributed on the 25th day of each January, April, July and October (or, if
such 25th day is not a Business Day, the next succeeding Business Day) (each a
"Distribution Date"), commencing on July 25, 2001, to the person in whose name
this Excess Distribution Certificate is registered as of the close of business
on the day immediately preceding the Distribution Date (such day the "Record
Date"), in each case to the extent of such holder's fractional and undivided
interest in the amount to be distributed hereon on such Distribution Date
pursuant to Section 2.8C.1(F)(ii) of the Administration Agreement.
The holder of this Excess Distribution Certificate acknowledges and agrees
that its rights to receive distributions in respect of this Excess Distribution
Certificate
ii
are subordinated to the rights of the Noteholders as described in the Basic
Documents.
It is the intent of the Depositor, and the holder of this Excess
Distribution Certificate that, for purposes of Federal, state and local income
and franchise and any other income taxes, the Notes will be treated as newly-
issued debt of, and this Excess Distribution Certificate will be treated as
equity in, the Trust. The holder of this Excess Distribution Certificate agrees
to treat, and to take no action inconsistent with the treatment of, this Excess
Distribution Certificate for such tax purposes as equity in the Trust.
The holder of this Excess Distribution Certificate, by its acceptance of
this Excess Distribution Certificate, covenants and agrees that it will not at
any time institute against the Depositor or the Trust, or join in any
institution against the Depositor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency, receivership or liquidation
proceedings, or other proceedings under any United States Federal or state
bankruptcy or similar law in connection with any obligations relating to this
Excess Distribution Certificate, the Notes, the Trust Agreement or any of the
other Basic Documents.
Distributions on this Excess Distribution Certificate will be made as
provided in the Administration Agreement to the holder of record hereof without
the presentation or surrender of this Excess Distribution Certificate or the
making of any notation hereon. Except as otherwise provided in the Trust
Agreement and notwithstanding the above, the final distribution on this Excess
Distribution Certificate will be made after due notice by the Administrator of
the pendency of such distribution and only upon presentation and surrender of
this Excess Distribution Certificate at the office or agency maintained for the
purpose by the Eligible Lender Trustee in the Borough of Manhattan, The City of
New York.
Reference is hereby made to the further provisions of this Excess
Distribution Certificate set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set forth at this
place.
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the Eligible Lender Trustee or its authenticating
agent, by manual signature, this Excess Distribution Certificate shall not
entitle the holder hereof to any benefit under the Trust Agreement or the
Administration Agreement or be valid for any purpose.
iii
IN WITNESS WHEREOF, the Eligible Lender Trustee on behalf of the Trust
and not in its individual capacity has caused this Excess Distribution
Certificate to be duly executed as of the date set forth below.
SLM STUDENT LOAN TRUST 2001-2
by CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, not in its individual
capacity but solely as Eligible Lender Trustee.
By:__________________________________
Authorized Signatory
Date: June 7, 2001
iv
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Excess Distribution Certificate referred to in the within-mentioned
Trust Agreement.
CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual capacity
but solely as Eligible Lender Trustee,
By:____________________________
Authorized Signatory
OR
THE CHASE MANHATTAN BANK, solely in its
capacity as Authenticating Agent for the
Eligible Lender Trustee,
By:__________________________
Authenticating Agent
Date: June 7, 2001
v
[Reverse of Excess Distribution Certificate]
This Excess Distribution Certificate does not represent an obligation of,
or an interest in, the Depositor, ▇▇▇▇▇▇ ▇▇▇ Servicing L.P., as servicer (the
"Servicer"), Student Loan Marketing Association, as administrator (the
"Administrator"), the Eligible Lender Trustee or any affiliates of any of them,
and no recourse may be had against such parties or their assets, except as may
be expressly set forth or contemplated herein, in the Trust Agreement or in the
other Basic Documents. In addition, this Excess Distribution Certificate is not
guaranteed by any governmental agency or instrumentality and is limited in right
of payment to certain collections with respect to the Trust Student Loans, all
as more specifically set forth in the Administration Agreement. A copy of each
of the Trust Agreement, the Sale Agreement, the Purchase Agreement, the
Administration Agreement, the Servicing Agreement and the Indenture may be
examined during normal business hours at the principal office of the
Administrator, and at such other places, if any, designated by the
Administrator, by the holder of this Excess Distribution Certificate upon
request.
The Trust Agreement permits, with certain exceptions therein provided, the
amendment thereof and the certification of the rights and obligations of the
Depositor and the rights of the holders of this Excess Distribution Certificate
under the Trust Agreement at any time by the Depositor and the Eligible Lender
Trustee with the consent of the holders of the Class A Notes and the Class B
Notes, each voting as a class evidencing not less than a majority of the
outstanding principal balance of each class of the Notes. The Trust Agreement
also permits the amendment thereof, in certain limited circumstances, without
the consent of the Noteholders.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Excess Distribution Certificate is
registerable in the Excess Distribution Certificate Register upon surrender of
this Excess Distribution Certificate for registration of transfer at the offices
or agencies maintained by Chase Manhattan Bank USA, National Association in its
capacity as Excess Distribution Certificate Registrar, or by any successor
Excess Distribution Certificate Registrar, in the Borough of Manhattan, The City
of New York, accompanied by a written instrument of transfer in form
satisfactory to the Eligible Lender Trustee and the Excess Distribution
Certificate Registrar duly executed by the holder hereof or such holder's
attorney duly authorized in writing, and thereupon a new Excess Distribution
Certificate will be issued to the designated transferee.
vi
As provided in the Trust Agreement and subject to certain limitations
therein set forth, this Excess Distribution Certificate is exchangeable for a
new Excess Distribution Certificate as requested by the holder surrendering the
same. No service charge will be made for any such registration of transfer or
exchange, but the Eligible Lender Trustee or the Excess Distribution Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge payable in connection therewith.
The Eligible Lender Trustee, the Certificate Registrar and any agent of the
Eligible Lender Trustee or the Excess Distribution Certificate Registrar may
treat the person in whose name this Excess Distribution Certificate is
registered as the owner hereof for all purposes, and none of the Eligible Lender
Trustee or the Excess Distribution Certificate Registrar or any such agent shall
be affected by any notice to the contrary.
This Excess Distribution Certificate (including any beneficial interest
herein) may not be acquired by or for the account of (i) an employee benefit
plan (as defined in Section 3(3) of ERISA) that is subject to the provisions of
Title I of ERISA, (ii) a plan described in section 4975(e)(1) of the Internal
Revenue Code of 1986, as amended (the "Code"), including an individual
retirement account described in Section 408(a) of the Code or a ▇▇▇▇▇ plan or
(iii) any entity whose underlying assets include plan assets by reason of a
plan's investment in the entity (each, a "Benefit Plan"). By accepting and
holding this Excess Distribution Certificate, the holder hereof shall be deemed
to have represented and warranted that it is not a Benefit Plan, it is not
purchasing this Excess Distribution Certificate on behalf of a Benefit Plan, is
not using assets of a Benefit Plan to purchase this Excess Distribution
Certificate and to have agreed that if this Excess Distribution Certificate is
deemed to be a plan asset, the Holder will promptly dispose of this Excess
Distribution Certificate.
The obligations and responsibilities created by the Trust Agreement and the
Trust created thereby shall terminate upon the payment to Noteholders and the
holder of this Excess Distribution Certificate of all amounts required to be
paid to them pursuant to the Trust Agreement, the Administration Agreement and
the Indenture and the disposition of all property held as part of the Trust.
The Depositor may at its option purchase the corpus of the Trust at a price
specified in the Administration Agreement; however, such right of purchase is
exercisable only on any Distribution Date on or after the date on which the Pool
Balance is less than or equal to 10% of the
vii
Initial Pool Balance. Any Trust Student Loans remaining in the Trust as of the
end of the Collection Period immediately preceding the Trust Auction Date will
be offered for sale by the Indenture Trustee by auction in accordance with the
procedure described in the Indenture.
This Excess Distribution Certificate shall be construed in accordance with
the laws of the State of Delaware, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
viii
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
________________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
________________________________________________________________________________
the within Excess Distribution Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
_______________________________________________________________________ Attorney
to transfer said Excess Distribution Certificate on the books of the Excess
Distribution Certificate Registrar, with full power of substitution in the
premises.
Dated:
______________________________*
Signature Guaranteed:
______________________________*
* NOTICE: The signature to this assignment must correspond with the name as
it appears upon the face of the within the Excess Distribution Certificate in
every particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by a member firm of the New York Stock Exchange or
a commercial bank or trust company.
ix