EXHIBIT 4.2
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INDENTURE
between
SLM PRIVATE CREDIT STUDENT LOAN TRUST 2003-A,
as Issuer
and
JPMORGAN CHASE BANK,
not in its individual capacity but
solely as Indenture Trustee
Dated as of March 1, 2003
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND USAGE
Section 1.01. Definitions and Usage....................................................... 2
Section 1.02. Incorporation by Reference of Trust Indenture Act........................... 2
ARTICLE II THE NOTES
Section 2.01. Form........................................................................ 3
Section 2.02. Execution, Authentication and Delivery...................................... 3
Section 2.03. Temporary Notes............................................................. 4
Section 2.04. Registration; Registration of Transfer and Exchange......................... 4
Section 2.05. Mutilated, Destroyed, Lost or Stolen Notes.................................. 5
Section 2.06. Persons Deemed Owner........................................................ 6
Section 2.07. Payment of Principal and Interest; Note Interest Shortfall.................. 6
Section 2.08. Cancellation................................................................ 7
Section 2.09. Release of Collateral....................................................... 7
Section 2.10. Book-Entry Notes............................................................ 7
Section 2.11. Notices to Clearing Agency.................................................. 8
Section 2.12. Definitive Notes............................................................ 8
ARTICLE III COVENANTS
Section 3.01. Payment to Noteholders...................................................... 9
Section 3.02. Maintenance of Office or Agency............................................. 9
Section 3.03. Money for Payments To Be Held in Trust...................................... 9
Section 3.04. Existence................................................................... 11
Section 3.05. Protection of Indenture Trust Estate........................................ 11
Section 3.06. Opinions as to Indenture Trust Estate....................................... 11
Section 3.07. Performance of Obligations; Servicing of Trust Student Loans................ 12
Section 3.08. Negative Covenants.......................................................... 14
Section 3.09. Annual Statement as to Compliance........................................... 15
Section 3.10. Issuer May Consolidate, etc., Only on Certain Terms......................... 15
Section 3.11. Successor or Transferee..................................................... 17
Section 3.12. No Other Business........................................................... 17
Section 3.13. No Borrowing................................................................ 17
Section 3.14. Obligations of Servicer and Administrator................................... 17
Section 3.15. Guarantees, Loans, Advances and Other Liabilities........................... 17
Section 3.16. Capital Expenditures........................................................ 17
Section 3.17. Restricted Payments......................................................... 17
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Section 3.18. Notice of Events of Default................................................. 18
Section 3.19. Further Instruments and Acts................................................ 18
ARTICLE IV SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture..................................... 18
Section 4.02. Application of Trust Money.................................................. 19
Section 4.03. Repayment of Moneys Held by Paying Agent.................................... 19
Section 4.04. Auction of Trust Student Loans.............................................. 20
ARTICLE V REMEDIES
Section 5.01. Events of Default........................................................... 20
Section 5.02. Acceleration of Maturity; Rescission and Annulment.......................... 21
Section 5.03. Collection of Indebtedness and Suits for Enforcement by Indenture Trustee... 22
Section 5.04. Remedies; Priorities........................................................ 24
Section 5.05. Optional Preservation of the Trust Student Loans............................ 27
Section 5.06. Limitation of Suits......................................................... 27
Section 5.07. Unconditional Rights of Noteholders To Receive Principal and Interest....... 28
Section 5.08. Restoration of Rights and Remedies.......................................... 28
Section 5.09. Rights and Remedies Cumulative.............................................. 28
Section 5.10. Delay or Omission Not a Waiver.............................................. 28
Section 5.11. Control by Noteholders...................................................... 28
Section 5.12. Waiver of Past Defaults..................................................... 29
Section 5.13. Undertaking for Costs....................................................... 29
Section 5.14. Waiver of Stay or Extension Laws............................................ 29
Section 5.15. Action on Notes............................................................. 30
Section 5.16. Performance and Enforcement of Certain Obligations.......................... 30
ARTICLE VI THE INDENTURE TRUSTEE
Section 6.01. Duties of Indenture Trustee................................................. 30
Section 6.02. Rights of Indenture Trustee................................................. 32
Section 6.03. Individual Rights of Indenture Trustee...................................... 32
Section 6.04. Indenture Trustee's Disclaimer.............................................. 32
Section 6.05. Notice of Defaults; Depositor Insolvency.................................... 33
Section 6.06. Reports by Indenture Trustee to Noteholders................................. 33
Section 6.07. Compensation and Indemnity.................................................. 33
Section 6.08. Replacement of Indenture Trustee............................................ 34
Section 6.09. Successor Indenture Trustee by Merger....................................... 35
Section 6.10. Appointment of Co-Trustee or Separate Trustee............................... 35
Section 6.11. Eligibility; Disqualification............................................... 36
Section 6.12. Preferential Collection of Claims Against Issuer............................ 37
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ARTICLE VII NOTEHOLDERS' LISTS AND REPORTS
Section 7.01. Issuer To Furnish Indenture Trustee Names and Addresses of Noteholders...... 37
Section 7.02. Preservation of Information; Communications to Noteholders.................. 37
Section 7.03. Reports by Issuer........................................................... 38
ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01. Collection of Money......................................................... 39
Section 8.02. Trust Accounts.............................................................. 39
Section 8.03. General Provisions Regarding Accounts....................................... 40
Section 8.04. Release of Indenture Trust Estate........................................... 40
Section 8.05. Opinion of Counsel.......................................................... 41
ARTICLE IX SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Noteholders...................... 41
Section 9.02. Supplemental Indentures With Consent of Noteholders......................... 42
Section 9.03. Execution of Supplemental Indentures........................................ 44
Section 9.04. Effect of Supplemental Indenture............................................ 44
Section 9.05. Conformity with Trust Indenture Act......................................... 44
Section 9.06. Reference in Notes to Supplemental Indentures............................... 44
ARTICLE X REDEMPTION OF NOTES
Section 10.01. Redemption................................................................. 44
Section 10.02. Form of Redemption Notice.................................................. 45
Section 10.03. Notes Payable on Redemption Date........................................... 45
ARTICLE XI MISCELLANEOUS
Section 11.01 Compliance Certificates and Opinions, etc................................... 45
Section 11.02. Form of Documents Delivered to Indenture Trustee........................... 47
Section 11.03. Acts of Noteholders........................................................ 48
Section 11.04. Notices, etc., to Indenture Trustee, Issuer and Rating Agencies............ 48
Section 11.05. Notices to Noteholders; Waiver............................................. 49
Section 11.06. Alternate Payment and Notice Provisions.................................... 50
Section 11.07. Conflict with Trust Indenture Act.......................................... 50
Section 11.08. Effect of Headings and Table of Contents................................... 50
Section 11.09. Successors and Assigns..................................................... 50
Section 11.10. Separability............................................................... 50
Section 11.11. Benefits of Indenture...................................................... 50
Section 11.12. Legal Holidays............................................................. 50
Section 11.13. Governing Law.............................................................. 50
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Section 11.14. Counterparts............................................................... 51
Section 11.15. Recording of Indenture..................................................... 51
Section 11.16. Trust Obligations.......................................................... 51
Section 11.17. No Petition................................................................ 51
Section 11.18. Inspection................................................................. 51
APPENDICES, SCHEDULES AND EXHIBITS
APPENDIX A-1 Definitions and Usage
APPENDIX A-2 Certain Terms and Provisions of the Auction Rate Notes
SCHEDULE A Schedule of Trust Student Loans
SCHEDULE B Location of Trust Student Loan Files
EXHIBIT A Forms of Notes
EXHIBIT B Form of Note Depository Agreement
EXHIBIT C Notice of Payment Default
EXHIBIT D Notice of Cure of Payment Default
EXHIBIT E Notice of Proposed Change in Length of One or More Auction Periods
EXHIBIT F Notice Establishing Change in Length of One or More Auction Periods
EXHIBIT G Notice of Change in Auction Date
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INDENTURE
This INDENTURE, dated as of March 1, 2003, is between SLM PRIVATE CREDIT
STUDENT LOAN TRUST 2003-A, a Delaware statutory trust (the "Issuer"), and
JPMORGAN CHASE BANK, a New York banking corporation, as trustee and not in its
individual capacity (the "Indenture Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the holders of the Issuer's Student Loan-Backed
Notes (the "Notes"):
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee, as trustee for the
benefit of the Noteholders, effective as of the Closing Date all of their right,
title and interest in and to the following:
(a) the Trust Student Loans, and all obligations of the Obligors
thereunder including all moneys accrued and paid thereunder on or after the
Cutoff Date;
(b) the Servicing Agreement, including the right of the Issuer to
cause the Servicer to purchase Trust Student Loans from the Issuer under
circumstances described therein;
(c) the Depositor Sale Agreement, including the right of the Issuer
to cause the Depositor to repurchase Trust Student Loans from the Issuer under
circumstances described therein and including the rights of the Depositor under
the Seller Sale Agreement;
(d) the Seller Sale Agreement, to the extent that the rights of the
Depositor thereunder have been assigned to the Issuer pursuant to the Depositor
Sale Agreement, including the right of the Depositor to cause the Seller to
repurchase Trust Student Loans from the Depositor under circumstances described
therein;
(e) the Administration Agreement;
(f) the Swap Agreements and the Interest Rate Cap Agreement;
(g) the Trust Accounts and all funds on deposit from time to time in
the Trust Accounts, including the Future Distribution Account, the Reserve
Account Initial Deposit and the Cash Capitalization Account Initial Deposit, and
all investments and proceeds thereof (including all income thereon); and
(h) all present and future claims, demands, causes and choices in
action in respect of any or all of the foregoing and all payments on or under
and all proceeds of every kind and nature whatsoever in respect of any or all of
the foregoing, including all proceeds of the conversion, voluntary or
involuntary, into cash or other liquid property, all cash proceeds, accounts,
accounts receivable, notes, drafts, acceptances, chattel paper, checks, general
intangibles, deposit accounts, insurance proceeds, condemnation awards, rights
to payment of any and every kind and other forms of obligations and receivables,
instruments and other
property which at any time constitute all or part of or are included in the
proceeds of any of the foregoing (collectively, the "Collateral").
The foregoing Grant is made in trust to secure the payment of principal
of and interest on, and any other amounts owing in respect of, the Notes,
equally and ratably without prejudice, priority or distinction, and to secure
compliance with the provisions of this Indenture, all as provided in this
Indenture.
The Indenture Trustee, as Indenture Trustee on behalf of the
Noteholders, acknowledges such Grant, accepts the trusts under this Indenture in
accordance with the provisions of this Indenture and agrees to perform its
duties required in this Indenture to the best of its ability to the end that the
interests of the Noteholders may be adequately and effectively protected.
ARTICLE I
DEFINITIONS AND USAGE
Section 1.01 Definitions and Usage. Except as otherwise specified herein
or as the context may otherwise require, capitalized terms used but not
otherwise defined herein are defined in Appendix A-1 or Appendix A-2 hereto,
which also contains rules as to usage that shall be applicable herein.
Section 1.02 Incorporation by Reference of Trust Indenture Act. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Indenture
Trustee.
"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule have
the meaning assigned to them by such definitions.
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ARTICLE II
THE NOTES
Section 2.01 Form. The Notes, together with the Indenture Trustee's
certificate of authentication, shall be in substantially the forms set forth in
Exhibit A, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing the Notes, as evidenced by their execution of the Notes. Any
portion of the text of any Note may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Note.
The Definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders), all as determined by the officers executing such Notes, as
evidenced by their execution of such Notes.
Each Note shall be dated the date of its authentication. The terms of
the Notes set forth in Exhibit A are part of the terms of this Indenture.
Section 2.02 Execution, Authentication and Delivery. The Notes shall be
executed on behalf of the Issuer by any of its Authorized Officers. The
signature of any such Authorized Officer on the Notes may be manual or
facsimile.
Notes bearing the manual or facsimile signature of individuals who were
at any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
The Indenture Trustee shall upon Issuer Order authenticate and deliver
Notes for original issue in an aggregate principal amount of $1,055,707,000, of
which $500,071,000 shall be denominated Class A-1 Notes, $320,000,000 shall be
denominated Class A-2 Notes, $76,600,000 shall be denominated Class A-3 Notes,
$76,600,000 shall be denominated Class A-4 Notes, $34,570,000 shall be
denominated Class B Notes and $47,866,000 shall be denominated Class C Notes.
Each Note shall be dated the date of its authentication. The Floating
Rate Notes shall be issuable as registered Floating Rate Notes in multiple
denominations of $1,000. The Auction Rate Notes shall be issuable as registered
Auction Rate Notes in multiple denominations of $50,000.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose, unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
executed by the Indenture Trustee by the manual signature of one of its
authorized signatories, and such certificate upon any Note shall be conclusive
evidence, and the only evidence, that such Note has been duly authenticated and
delivered hereunder.
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Section 2.03 Temporary Notes. Pending the preparation of Definitive
Notes, the Issuer may execute, and upon receipt of an Issuer Order the Indenture
Trustee shall authenticate and deliver, temporary Notes which are printed,
lithographed, typewritten, mimeographed or otherwise produced, of the tenor of
the Definitive Notes in lieu of which they are issued and with such variations
not inconsistent with the terms of this Indenture determined to be appropriate
by the Responsible Officer of the Issuer executing the temporary Notes, as
evidenced by his or her execution of such temporary Notes.
If temporary Notes are issued, the Issuer will cause Definitive Notes to
be prepared without unreasonable delay. After the preparation of Definitive
Notes, the temporary Notes shall be exchangeable for Definitive Notes upon
surrender of the temporary Notes at the office or agency of the Issuer to be
maintained as provided in Section 3.02, without charge to the Noteholder. Upon
surrender for cancellation of any one or more temporary Notes, the Issuer shall
execute and the Indenture Trustee shall authenticate and deliver in exchange
therefor a like principal amount of Definitive Notes of authorized
denominations. Until so exchanged, the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as Definitive Notes.
Section 2.04 Registration; Registration of Transfer and Exchange. The
Issuer shall cause to be kept a register (the "Note Register") in which, subject
to such reasonable regulations as it may prescribe, the Issuer shall provide for
the registration of Notes and the registration of transfers of Notes. The
Indenture Trustee shall be "Note Registrar" for the purpose of registering Notes
and transfers of Notes as herein provided. Upon any resignation of any Note
Registrar, the Issuer shall promptly appoint a successor or, if it elects not to
make such an appointment, assume the duties of Note Registrar.
If a Person other than the Indenture Trustee is appointed by the Issuer
as Note Registrar, the Issuer shall give the Indenture Trustee prompt written
notice of the appointment of such Note Registrar and of the location, and any
change in the location, of the Note Register, and the Indenture Trustee shall
have the right to inspect the Note Register at all reasonable times and to
obtain copies thereof, and the Indenture Trustee shall have the right to rely
upon a certificate executed on behalf of the Note Registrar by an Executive
Officer thereof as to the names and addresses of the Noteholders and the
principal amounts and number of such Notes.
Upon surrender for registration of transfer of any Note at the office or
agency of the Issuer to be maintained as provided in Section 3.02, if the
requirements of Section 8-401(1) of the UCC are met, the Issuer shall execute,
and the Indenture Trustee shall authenticate and the Noteholder shall obtain
from the Indenture Trustee, in the name of the designated transferee or
transferees, one or more new Notes in any authorized denominations and a like
aggregate principal amount.
At the option of the Noteholder, Notes may be exchanged for other Notes
in any authorized denominations and a like aggregate principal amount, upon
surrender of the Notes to be exchanged at such office or agency. Whenever any
Notes are so surrendered for exchange, the Issuer shall execute, and the
Indenture Trustee shall authenticate and the Noteholder shall obtain from the
Indenture Trustee, the Notes which the Noteholder making the exchange is
entitled to receive.
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All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Issuer, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed by, or be accompanied by a written instrument of
transfer in form satisfactory to the Indenture Trustee duly executed by the
Noteholder thereof or such Noteholder's attorney duly authorized in writing,
with such signature guaranteed by an "eligible guarantor institution" meeting
the requirements of the Note Registrar, which requirements include membership or
participation in Securities Transfer Agent's Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Note Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Exchange Act.
No service charge shall be made to a Noteholder for any registration of
transfer or exchange of Notes, but the Indenture Trustee may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of Notes,
other than exchanges pursuant to Section 2.03 or 9.06 not involving any
transfer.
The preceding provisions of this Section notwithstanding, the Issuer
shall not be required to make and the Note Registrar need not register transfers
or exchanges of Notes selected for redemption or of any Note for a period of 15
days preceding the due date for any payment with respect to the Note.
Section 2.05 Mutilated, Destroyed, Lost or Stolen Notes. If (i) any
mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to the Issuer and the Indenture Trustee such
security or indemnity as may be required by each of them to hold the Issuer and
the Indenture Trustee harmless, then, in the absence of notice to the Issuer,
the Note Registrar or the Indenture Trustee that such Note has been acquired by
a bona fide purchaser, and provided that the requirements of Section 8-405 of
the UCC are met, the Issuer shall execute and upon its request the Indenture
Trustee shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Note, a replacement Note; provided,
however, that if any such destroyed, lost or stolen Note, but not a mutilated
Note, shall have become or within 15 days shall be due and payable, or shall
have been called for redemption, instead of issuing a replacement Note, the
Issuer may pay such destroyed, lost or stolen Note when so due or payable or
upon the Redemption Date without surrender thereof. If, after the delivery of
such replacement Note or payment of a destroyed, lost or stolen Note pursuant to
the proviso to the preceding sentence, a bona fide purchaser of the original
Note in lieu of which such replacement Note was issued presents for payment such
original Note, the Issuer and the Indenture Trustee shall be entitled to recover
such replacement Note (or such payment) from the Person to whom it was delivered
or any Person taking such replacement Note from such Person to whom such
replacement Note was delivered or any assignee of such Person, except a bona
fide purchaser, and shall be entitled to recover upon the security or indemnity
provided therefor to the extent of any loss, damage, cost or expense incurred by
the Issuer or the Indenture Trustee in connection therewith.
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Upon the issuance of any replacement Note under this Section, the Issuer
may require the payment by the Noteholder thereof of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other reasonable expenses (including the fees and expenses of the Indenture
Trustee) connected therewith.
Every replacement Note issued pursuant to this Section in replacement of
any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
Section 2.06 Persons Deemed Owner. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and any
agent of the Issuer or the Indenture Trustee may treat the Person in whose name
any Note is registered (as of the day of determination) as the owner of such
Note for the purpose of receiving payments of principal of, interest, if any, on
such Note and for all other purposes whatsoever, whether or not such Note be
overdue, and neither the Issuer, the Indenture Trustee nor any agent of the
Issuer or the Indenture Trustee shall be affected by notice to the contrary.
Section 2.07 Payment of Principal and Interest; Note Interest Shortfall.
(a) The Notes shall accrue interest as provided in the forms of Notes set forth
in Exhibit A and, in the case of the Auction Rate Notes, ▇▇▇▇▇▇▇▇ ▇-▇, and such
interest shall be payable on each applicable Distribution Date as specified
therein, subject to Section 3.01. Any installment of interest or principal, if
any, payable on any Note which is punctually paid or duly provided for by the
Issuer on the applicable Distribution Date shall be paid to the Person in whose
name such Note (or one or more Predecessor Notes) is registered on the
applicable Record Date by check mailed first-class, postage prepaid to such
Person's address as it appears on the Note Register on such Record Date, except
that, unless Definitive Notes have been issued pursuant to Section 2.12, with
respect to Notes registered on the Record Date in the name of the nominee of the
Clearing Agency (initially, such nominee to be Cede & Co.), payment shall be
made by wire transfer in immediately available funds to the account designated
by such nominee and except for the final installment of principal payable with
respect to such Note on a Distribution Date or on the Note Final Maturity Date
for such Note which shall be payable as provided below. The funds represented by
any such checks returned undelivered shall be held in accordance with Section
3.03.
(b) The principal of each Note shall be payable in installments on
each Distribution Date as provided in Section 2.07(d) of the Administration
Agreement. Notwithstanding the foregoing, the entire unpaid principal amount of
each class of the Notes shall be due and payable, if not previously paid, on the
Note Final Maturity Date for such class of Notes and on the date on which an
Event of Default shall have occurred and be continuing if the Indenture Trustee
or the Noteholders of the Notes representing not less than a majority of the
Outstanding Amount of the Controlling Notes have declared the Notes to be
immediately due and payable in the manner
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provided in Section 5.02. All principal payments on the Notes shall be made pro
rata to the Class of Noteholders entitled thereto; provided that principal
payments on the Auction Rate Notes shall be made by lots of $50,000, selected at
random. The Indenture Trustee shall notify the Person in whose name a Note is
registered at the close of business on the Record Date preceding the
Distribution Date on which the Issuer expects that the final installment of
principal of and interest on such Note will be paid. Such notice shall be mailed
or transmitted by facsimile prior to such final Distribution Date and shall
specify that such final installment will be payable only upon presentation and
surrender of such Note and shall specify the place where such Note may be
presented and surrendered for payment of such Installment. Notices in connection
with redemptions of Notes shall be mailed to Noteholders as provided in Section
10.02.
(c) If the Issuer defaults in a payment of interest at the
applicable Note Rate on the Notes, the Issuer shall pay the resulting Note
Interest Shortfall on the following Distribution Date as provided in the
Administration Agreement.
Section 2.08 Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly cancelled by the Indenture Trustee. The Issuer may at any
time deliver to the Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Issuer may have acquired in any
manner whatsoever and all Notes so delivered shall be promptly cancelled by the
Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange for
any Notes cancelled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Notes may be held or disposed of by the
Indenture Trustee in accordance with its standard retention or disposal policy
as in effect at the time, unless the Issuer shall direct by an Issuer Order that
they be returned to it and so long as such Issuer Order is timely and the Notes
have not been previously disposed of by the Indenture Trustee.
Section 2.09 Release of Collateral. Subject to Section 11.01 and the
terms of the Basic Documents, the Indenture Trustee shall release property from
the lien of this Indenture only upon receipt of an Issuer Request accompanied by
an Officers' Certificate of the Issuer, an Opinion of Counsel and Independent
Certificates in accordance with TIA Sections 314(c) and 314(d)(1) or an Opinion
of Counsel in lieu of such Independent Certificates to the effect that the TIA
does not require any such Independent Certificates.
Section 2.10 Book-Entry Notes. The Notes, upon original issuance, will
be issued in the form of typewritten Notes representing the Book-Entry Notes, to
be delivered to The Depository Trust Company, the initial Clearing Agency, by,
or on behalf of, the Issuer. Such Notes shall initially be registered on the
Note Register in the name of Cede & Co., the nominee of the initial Clearing
Agency, and no Note Owner shall receive a Definitive Note (as defined below)
representing such Note Owner's interest in such Note, except as provided in
Section 2.12. Unless and until definitive, fully registered Notes (the
"Definitive Notes") have been issued to Note Owners pursuant to Section 2.12:
(i) the provisions of this Section shall be in full force
and effect;
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(ii) the Note Registrar and the Indenture Trustee, and their
respective directors, officers, employees and agents, may deal with the
Clearing Agency for all purposes (including the payment of principal of
and interest and other amounts on the Notes) as the authorized
representative of the Note Owners;
(iii) to the extent that the provisions of this Section
conflict with any other provisions of this Indenture, the provisions of
this Section shall control;
(iv) the rights of Note Owners shall be exercised only
through the Clearing Agency and shall be limited to those established by
law and agreements between such Note Owners and the Clearing Agency
and/or the Clearing Agency Participants pursuant to the Note Depository
Agreement; and unless and until Definitive Notes are issued pursuant to
Section 2.12, the initial Clearing Agency will make book-entry transfers
among the Clearing Agency Participants and receive and transmit payments
of principal of and interest and other amounts on the Notes to such
Clearing Agency Participants; and
(v) whenever this Indenture requires or permits actions to
be taken based upon instructions or directions of Noteholders of Notes
evidencing a specified percentage of the Outstanding Amount of the
Notes, the Clearing Agency shall be deemed to represent such percentage
only to the extent that it has received instructions to such effect from
Note Owners and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in the
Notes and has delivered such instructions to the Indenture Trustee.
Section 2.11. Notices to Clearing Agency. Whenever a notice or other
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to Note Owners pursuant to Section
2.12, the Indenture Trustee shall give all such notices and communication
specified herein to be given to Noteholders to the Clearing Agency.
Section 2.12. Definitive Notes. If (i) the Administrator advises the
Indenture Trustee in writing that the Clearing Agency is no longer willing or
able to discharge its responsibilities with respect to the Notes, and the
Administrator is unable to locate a successor, (ii) the Administrator at its
option advises the Indenture Trustee in writing that it elects to terminate the
book-entry system through the Clearing Agency or (iii) after the occurrence of
an Event of Default, a Servicer Default or an Administrator Default, Note Owners
representing beneficial interests aggregating at least a majority of the
Outstanding Amount of the Notes advise the Clearing Agency (which shall then
notify the Indenture Trustee) in writing that the continuation of a book-entry
system through the Clearing Agency is no longer in the best interests of the
Note Owners, then the Indenture Trustee shall cause the Clearing Agency to
notify all Note Owners, through the Clearing Agency, of the occurrence of any
such event and of the availability of Definitive Notes to Note Owners requesting
the same. Upon surrender to the Indenture Trustee of the typewritten Notes
representing the Book-Entry Notes by the Clearing Agency, accompanied by
registration instructions, the Issuer shall execute and the Indenture Trustee
shall authenticate the Definitive Notes in accordance with the instructions of
the Clearing Agency. None of the Issuer, the Note Registrar or the Indenture
Trustee shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on,
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such instructions. Upon the issuance of Definitive Notes, the Indenture Trustee
shall recognize the holders of the Definitive Notes as Noteholders.
ARTICLE III
COVENANTS
Section 3.01. Payment to Noteholders. The Issuer shall duly and
punctually pay the principal and interest, if any, with respect to the Notes in
accordance with the terms of the Notes and this Indenture. Without limiting the
foregoing, the Issuer shall cause to be distributed to Noteholders, in
accordance with the Administration Agreement, that portion of the amounts on
deposit in the Trust Accounts on a Distribution Date (other than any Eligible
Investments deposited therein that will mature on the Business Day preceding a
subsequent Distribution Date) which the Noteholders are entitled to receive
pursuant to the Administration Agreement. Amounts properly withheld under the
Code by any Person from a payment to any Noteholder of interest and/or principal
shall be considered as having been paid by the Issuer to such Noteholder for all
purposes of this Indenture.
Section 3.02. Maintenance of Office or Agency. The Issuer shall maintain
in the Borough of Manhattan, The City of New York, an office or agency where
Notes may be surrendered for registration of transfer or exchange, and where
notices and demands to or upon the Issuer in respect of the Notes and this
Indenture may be served. The Issuer hereby initially appoints the Indenture
Trustee to serve as its agent for the foregoing purposes. The Issuer shall give
prompt written notice to the Indenture Trustee of the location, and of any
change in the location, of any such office or agency. If at any time the Issuer
shall fail to maintain any such office or agency or shall fail to furnish the
Indenture Trustee with the address thereof, such surrenders, notices and demands
may be made or served at the Corporate Trust Office, and the Issuer hereby
appoints the Indenture Trustee as its agent to receive all such surrenders,
notices and demands.
Section 3.03. Money for Payments To Be Held in Trust. As provided in
Sections 8.02(a) and (b), all payments of amounts due and payable with respect
to any Notes that are to be made from amounts distributed from the Collection
Account or any other Trust Account pursuant to Sections 2.07 and 2.08 of the
Administration Agreement shall be made on behalf of the Issuer by the Indenture
Trustee or by another Paying Agent, and no amounts so distributed from the
Collection Account for payments of Notes shall be paid over to the Issuer except
as provided in this Section.
On or before the Business Day next preceding each Distribution Date and
Redemption Date, the Issuer shall distribute or cause to be distributed to the
Indenture Trustee (or any other Paying Agent) an aggregate sum sufficient to pay
the amounts then becoming due under the Notes, such sum to be held in trust for
the benefit of the Persons entitled thereto and (unless the Paying Agent is the
Indenture Trustee) shall promptly notify the Indenture Trustee of its action or
failure so to act.
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The Issuer shall cause each Paying Agent other than the Indenture
Trustee to execute and deliver to the Indenture Trustee an instrument in which
such Paying Agent shall agree with the Indenture Trustee (and if the Indenture
Trustee acts as Paying Agent, it hereby so agrees), subject to the provisions of
this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts due
with respect to the Notes in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and pay such sums to such
Persons as herein provided;
(ii) give the Indenture Trustee notice of any default by the
Issuer of which it has actual knowledge (or any other obligor upon the
Notes) in the making of any payment required to be made with respect to
the Notes;
(iii) at any time during the continuance of any such default,
upon the written request of the Indenture Trustee, forthwith pay to the
Indenture Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay
to the Indenture Trustee all sums held by it in trust for the payment of
Notes if at any time it ceases to meet the standards required to be met
by a Paying Agent at the time of its appointment; and
(v) comply with all requirements of the Code with respect to
the withholding from any payments made by it on any Notes of any
applicable withholding taxes imposed thereon and with respect to any
applicable reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, by Issuer
Order direct any Paying Agent to pay to the Indenture Trustee all sums held in
trust by such Paying Agent, such sums to be held by the Indenture Trustee upon
the same trusts as those upon which the sums were held by such Paying Agent; and
upon such payment by any Paying Agent to the Indenture Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds, any money
held by the Indenture Trustee or any Paying Agent in trust for the payment of
any amount due with respect to any Note and remaining unclaimed for two years
after such amount has become due and payable shall be discharged from such trust
and be paid to the Issuer on Issuer Request or if the Issuer has been terminated
to the Depositor upon its written request; and the Noteholder thereof shall
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof (but only to the extent of the amounts so paid to the Issuer),
and all liability of the Indenture Trustee or such Paying Agent with respect to
such trust money shall thereupon cease; provided, however, that the Indenture
Trustee or such Paying Agent, before being required to make any such repayment,
shall at the expense and direction of the Issuer cause to be published once, in
a newspaper published in the English language, customarily published on each
Business Day and of general circulation in The City of New York, notice that
such money remains unclaimed and
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that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Issuer. The Indenture Trustee shall also adopt and employ,
at the expense of the Issuer, any other reasonable means of notification of such
repayment (including mailing notice of such repayment to Noteholders whose Notes
have been called but have not been surrendered for redemption or whose right to
or interest in moneys due and payable but not claimed is determinable from the
records of the Indenture Trustee or of any Paying Agent, at the last address of
record for each such Noteholder).
Section 3.04. Existence. The Issuer shall keep in full effect its
existence, rights and franchises as a statutory trust under the laws of the
State of Delaware (unless it becomes, or any successor Issuer hereunder is or
becomes, organized under the laws of any other State or of the United States of
America, in which case the Issuer shall keep in full effect its existence,
rights and franchises under the laws of such other jurisdiction) and shall
obtain and preserve its qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Indenture Trust Estate.
Section 3.05. Protection of Indenture Trust Estate. The Issuer will from
time to time execute and deliver all such supplements and amendments hereto and
all such financing statements, continuation statements, will take such other
action necessary or advisable to:
(i) maintain or preserve the lien and security interest (and
the priority thereof) of this Indenture or carry out more effectively
the purposes hereof;
(ii) perfect, publish notice of or protect the validity of
any grant made or to be made by this Indenture;
(iii) enforce any of the Collateral; or
(iv) preserve and defend title to the Indenture Trust Estate
and the rights of the Indenture Trustee and the Noteholders in such
Indenture Trust Estate against the claims of all persons and parties.
The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement or
other instrument required to be executed pursuant to this Section.
Section 3.06. Opinions as to Indenture Trust Estate. (a) On the Closing
Date, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel
either stating that, in the opinion of such counsel, such action has been taken
with respect to the recording and filing of this Indenture as is necessary to
perfect and make effective the lien and security interest of this Indenture and
reciting the details of such action, or stating that, in the opinion of such
counsel, no such action is necessary to make such lien and security interest
effective.
(b) On or before December 31 in each calendar year, beginning in
2003, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel
either stating that, in the opinion of such counsel, such action has been taken
with respect to the recording, filing, re-recording and
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refiling of this Indenture and any indentures supplemental hereto as is
necessary to maintain the lien and security interest created by this Indenture
and relating the details of such action or stating that in the opinion of such
counsel no such action is necessary to maintain such lien and security interest.
Such Opinion of Counsel shall also describe the recording, filing, recording and
refiling of this Indenture and any indentures supplemental hereto that will, in
the opinion of such counsel, be required to maintain the lien and security
interest of this Indenture until December 31 in the following calendar year.
Section 3.07. Performance of Obligations; Servicing of Trust Student
Loans. (a) The Issuer will not take any action and will use its best efforts not
to permit any action to be taken by others that would release any Person from
any of such Person's material covenants or obligations under any instrument or
agreement included in the Indenture Trust Estate or that would result in the
amendment, hypothecation, subordination, termination or discharge of, or impair
the validity or effectiveness of, any such instrument or agreement, except as
expressly provided in this Indenture, any other Basic Document or such other
instrument or agreement.
(b) The Issuer may contract with other Persons to assist it in
performing its duties under this Indenture, and any performance of such duties
by a Person identified to the Indenture Trustee in an Officers' Certificate of
the Issuer shall be deemed to be action taken by the Issuer; provided, however,
the Issuer shall not be liable for any acts of Persons with whom the Issuer has
contracted with reasonable care. Initially, the Issuer has contracted with the
Servicer and the Administrator to assist the Issuer in performing its duties
under this Indenture. The Issuer shall give written notice to the Indenture
Trustee and each Rating Agency of any such contract with any other Person.
(c) The Issuer shall punctually perform and observe all of its
obligations and agreements contained in this Indenture, the other Basic
Documents and the instruments and agreements included in the Indenture Trust
Estate, including filing or causing to be filed all UCC financing statements and
continuation statements prepared by the Issuer and required to be filed by the
terms of this Indenture and the Administration Agreement in accordance with and
within the time periods provided for herein and therein. Except as otherwise
expressly provided therein, the Issuer shall not waive, amend, modify,
supplement or terminate any Basic Document or any provision thereof without the
consent of the Indenture Trustee or the Noteholders of at least a majority of
the Outstanding Amount of the Notes. The Issuer shall give written notice to
each Rating Agency of any such waiver, amendment, modification, supplement or
termination.
(d) If a Responsible Officer of the Issuer shall have knowledge of
the occurrence of a Servicer Default or an Administrator Default under the
Servicing Agreement or the Administration Agreement, respectively, the Issuer
shall promptly notify the Indenture Trustee and the Rating Agencies thereof, and
shall specify in such notice the action, if any, the Issuer is taking with
respect to such default. If a Servicer Default shall arise from the failure of
the Servicer to perform any of its duties or obligations under the Servicing
Agreement, or an Administrator Default shall arise from the failure of the
Administrator to perform any of its duties or obligations under the
Administration Agreement, as the case may be, with respect to the Trust Student
Loans, the Issuer shall take all reasonable steps available to it to enforce its
rights under the Basic Documents in respect of such failure.
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(e) As promptly as possible after the giving of notice of
termination to the Servicer of the Servicer's rights and powers, pursuant to
Section 5.01 of the Servicing Agreement, or to the Administrator of the
Administrator's rights and powers, pursuant to Section 5.01 of the
Administration Agreement, the Issuer shall appoint a successor servicer (the
"Successor Servicer") or a successor administrator (the "Successor
Administrator"), respectively, and such Successor Servicer or Successor
Administrator, as the case may be, shall accept its appointment by a written
assumption in a form acceptable to the Indenture Trustee. In the event that a
Successor Servicer or Successor Administrator has not been appointed and
accepted its appointment at the time when the Servicer or Administrator, as the
case may be, ceases to act as Servicer or Administrator, respectively, the
Indenture Trustee without further action shall automatically be appointed the
Successor Servicer or Successor Administrator, as the case may be. The Indenture
Trustee may resign as the Servicer or the Administrator by giving written notice
of resignation to the Issuer and in such event will be released from such duties
and obligations, such release not to be effective until the date a new servicer
or a new administrator enters into an agreement with the Issuer as provided
below. Upon delivery of any such notice to the Issuer, the Issuer shall obtain a
new servicer as the Successor Servicer under the Servicing Agreement or a new
administrator as the Successor Administrator under the Administration Agreement,
as the case may be. Any Successor Servicer or Successor Administrator, other
than the Indenture Trustee, shall (i) be an established institution whose
regular business includes the servicing or administration of student loans and
(ii) enter into a servicing agreement or an administration agreement,
respectively, with the Issuer having substantially the same provisions as the
provisions of the Servicing Agreement and the Administration Agreement, as
applicable. If within 30 days after the delivery of the notice referred to
above, the Issuer shall not have obtained such a new servicer or new
administrator, as the case may be, the Indenture Trustee may appoint, or may
petition a court of competent jurisdiction to appoint, a Successor Servicer or
Successor Administrator; provided, however, that such right to appoint or to
petition for the appointment of any such successor shall in no event relieve the
Indenture Trustee from any obligations otherwise imposed on it under the Basic
Documents until such successor has in fact assumed such appointment. In
connection with any such appointment, the Indenture Trustee may make such
arrangements for the compensation of such successor as it and such successor
shall agree, subject to the limitations set forth below and in the Servicing
Agreement or Administration Agreement, as applicable, and in accordance with
Section 5.02 of the Servicing Agreement and Section 5.02 of the Administration
Agreement, the Issuer shall enter into an agreement with such successor for the
servicing or administration of the Trust Student Loans (such agreement to be in
form and substance satisfactory to the Indenture Trustee). If the Indenture
Trustee shall succeed as provided herein to the Servicer's duties as Servicer
with respect to the Trust Student Loans, or the Administrator's duties with
respect to the Issuer and the Trust Student Loans, as the case may be, it shall
do so in its individual capacity and not in its capacity as Indenture Trustee
and, accordingly, the provisions of Article VI hereof shall be inapplicable to
the Indenture Trustee in its duties as the successor to the Servicer or the
Administrator, as the case may be, and the servicing or administration of the
Trust Student Loans. In case the Indenture Trustee shall become successor to the
Servicer or the Administrator, the Indenture Trustee shall be entitled to
appoint as Servicer or as Administrator, as the case may be, any one of its
Affiliates, provided that such appointment shall not affect or alter in any way
the liability of the Indenture Trustee as Successor Servicer or Successor
Administrator, respectively, in accordance with the terms hereof.
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(f) Upon any termination of the Servicer's rights and powers
pursuant to the Servicing Agreement, or any termination of the Administrator's
rights and powers pursuant to the Administration Agreement, as the case may be,
the Issuer shall promptly notify the Indenture Trustee and each Rating Agency.
As soon as a Successor Servicer or a Successor Administrator is appointed, the
Issuer shall notify the Indenture Trustee and each Rating Agency of such
appointment, specifying in such notice the name and address of such Successor
Servicer or such Successor Administrator.
(g) Without derogating from the absolute nature of the assignment
granted to the Indenture Trustee under this Indenture or the rights of the
Indenture Trustee hereunder, the Issuer agrees that it will not, without the
prior written consent of the Indenture Trustee or the Noteholders of at least a
majority in Outstanding Amount of the Notes, amend, modify, waive, supplement,
terminate or surrender, or agree to any amendment, modification, supplement,
termination, waiver or surrender of, the terms of any Collateral or the Basic
Documents, except to the extent otherwise provided in the Basic Documents, or
waive timely performance or observance by the Servicer, the Administrator, the
Depositor, SLM Education Credit Management Corporation or the Issuer under the
Basic Documents; provided, however, that no such amendment shall (i) increase or
reduce in any manner the amount of, or accelerate or delay the timing of,
distributions that are required to be made for the benefit of the Noteholders,
or (ii) reduce the aforesaid percentage of the Notes which are required to
consent to any such amendment, without the consent of the Noteholders of all the
Outstanding Notes. If any such amendment, modification, supplement or waiver
shall be so consented to by the Indenture Trustee or such Noteholders, the
Issuer shall give written notice thereof to each Rating Agency and agrees,
promptly following a request by the Indenture Trustee to do so, to execute and
deliver, in its own name and at its own expense, such agreements, instruments,
consents and other documents as the Indenture Trustee may deem necessary or
appropriate in the circumstances.
Section 3.08. Negative Covenants. So long as any Notes are Outstanding,
the Issuer shall not:
(i) except as expressly permitted by this Indenture or any
other Basic Document, sell, transfer, exchange or otherwise dispose of
any of the properties or assets of the Issuer, including those included
in the Indenture Trust Estate, unless directed to do so by the Indenture
Trustee;
(ii) claim any credit on, or make any deduction from the
principal or interest payable in respect of, the Notes (other than
amounts properly withheld from such payments under the Code or
applicable state law) or assert any claim against any present or former
Noteholder by reason of the payment of the taxes levied or assessed upon
any part of the Indenture Trust Estate;
(iii) (A) permit the validity or effectiveness of this
Indenture to be impaired, or permit the lien of this Indenture to be
amended, hypothecated, subordinated, terminated or discharged, or permit
any Person to be released from any covenants or obligations with respect
to the Notes under this Indenture except as may be expressly permitted
hereby, (B) permit any lien, charge, excise, claim, security interest,
mortgage or other
14
encumbrance (other than the lien of this Indenture) to be created on or extend
to or otherwise arise upon or burden the Indenture Trust Estate or any part
thereof or any interest therein or the proceeds thereof (other than tax liens
and other liens that arise by operation of law, and other than as expressly
permitted by the Basic Documents) or (C) permit the lien of this Indenture not
to constitute a valid first priority (other than with respect to any such tax or
other lien) security interest in the Indenture Trust Estate; or
(iv) enter into any amendment to any Swap Agreement or the
Interest Rate Cap Agreement to cure any ambiguity in, or to correct or
supplement any provision of the Swap Agreements or the Interest Rate Cap
Agreement, so long as the Issuer has determined, and the Indenture
Trustee has agreed in writing at the written direction of the Issuer,
that the amendment will not materially adversely affect the interests of
the Noteholders and provided that the Indenture Trustee has provided
reasonable notice to the Rating Agencies of such amendment and each
Rating Agency has provided written confirmation that the then current
rating of the Notes will not be lowered or withdrawn.
Section 3.09. Annual Statement as to Compliance. The Issuer will deliver
to the Indenture Trustee and each Rating Agency, within 120 days after the end
of each fiscal year of the Issuer (commencing with the fiscal year ending
December 31, 2003), an Officers' Certificate of the Issuer stating that:
(i) a review of the activities of the Issuer during such
year and of performance under this Indenture has been made under such
Authorized Officers' supervision; and
(ii) to the best of such Authorized Officers' knowledge,
based on such review, the Issuer has complied with all conditions and
covenants under this Indenture throughout such year, or, if there has
been a default in the compliance of any such condition or covenant,
specifying each such default known to such Authorized Officers and the
nature and status thereof.
Section 3.10. Issuer May Consolidate, etc., Only on Certain Terms.
(a) The Issuer shall not consolidate or merge with or into any other
Person, unless:
(i) the Person (if other than the Issuer) formed by or
surviving such consolidation or merger shall be a Person organized and
existing under the laws of the United States of America or any State and
shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Indenture Trustee, in form satisfactory to the
Indenture Trustee, the due and punctual payment of the principal of, and
interest, if any, on all Notes and the performance or observance of
every agreement and covenant of this Indenture on the part of the Issuer
to be performed or observed, all as provided herein;
(ii) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing;
15
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel
(and shall have delivered copies thereof to the Indenture Trustee) to
the effect that such transaction will not have any material adverse
Federal or Delaware state tax consequence to the Issuer, any Noteholder
or any Certificateholder;
(v) any action as is necessary to maintain the lien and
security interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee
an Officers' Certificate of the Issuer and an Opinion of Counsel each
stating that such consolidation or merger and such supplemental
indenture comply with this Article III and that all conditions precedent
herein provided for relating to such transaction have been complied with
(including any filing required by the Exchange Act).
(b) The Issuer shall not convey or transfer all or substantially all
its properties or assets, including those included in the Indenture Trust
Estate, to any Person, unless:
(i) the Person that acquires by conveyance or transfer the
properties and assets of the Issuer the conveyance or transfer of which
is hereby restricted shall (A) be a United States citizen or a Person
organized and existing under the laws of the United States of America or
any State, (B) expressly assume, by an indenture supplemental hereto,
executed and delivered to the Indenture Trustee, in form satisfactory to
the Indenture Trustee, the due and punctual payment of the principal of,
and interest, if any, on all Notes and the performance or observance of
every agreement and covenant of this Indenture on the part of the Issuer
to be performed or observed, all as provided herein, (C) expressly agree
by means of such supplemental indenture that all right, title and
interest so conveyed or transferred shall be subject and subordinate to
the rights of Noteholders, (D) unless otherwise provided in such
supplemental indenture, expressly agree to indemnify, defend and hold
harmless the Issuer against and from any loss, liability or expense
arising under or related to this Indenture and the Notes and (E)
expressly agree by means of such supplemental indenture that such Person
(or if a group of Persons, then one specified Person) shall make all
filings with the Commission (and any other appropriate Person) required
by the Exchange Act in connection with the Notes;
(ii) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied
with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel
(and shall have delivered copies thereof to the Indenture Trustee) to
the effect that such transaction will not have any material adverse
Federal or Delaware state tax consequence to the Issuer, any Noteholder
or any Certificateholder;
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(v) any action as is necessary to maintain the lien and
security interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee
an Officers' Certificate of the Issuer and an Opinion of Counsel each
stating that such conveyance or transfer and such supplemental indenture
comply with this Article III and that all conditions precedent herein
provided for relating to such transaction have been complied with
(including any filing required by the Exchange Act).
Section 3.11. Successor or Transferee. (a) Upon any consolidation or
merger of the Issuer in accordance with Section 3.10(a), the Person formed by or
surviving such consolidation or merger (if other than the Issuer) shall succeed
to, and be substituted for, and may exercise every right and power of, the
Issuer under this Indenture with the same effect as if such Person had been
named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties
of the Issuer pursuant to Section 3.10(b), SLM Private Credit Student Loan Trust
2003-A will be released from every covenant and agreement of this Indenture to
be observed or performed on the part of the Issuer with respect to the Notes
immediately upon the delivery by the Issuer of written notice to the Indenture
Trustee stating that SLM Private Credit Student Loan Trust 2003-A is to be so
released.
Section 3.12. No Other Business. The Issuer shall not engage in any
business other than financing, purchasing, owning, selling and managing the
Trust Student Loans in the manner contemplated by this Indenture and the other
Basic Documents and activities incidental thereto.
Section 3.13. No Borrowing. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Notes.
Section 3.14. Obligations of Servicer and Administrator. The Issuer
shall cause the Servicer to comply with Sections 3.01, 3.02 and 3.03 of the
Administration Agreement and Section 3.07 of the Servicing Agreement and the
Administrator to comply with Sections 2.09, 3.01, 3.02 and 3.03 of the
Administration Agreement.
Section 3.15. Guarantees, Loans, Advances and Other Liabilities. Except
as contemplated by this Indenture and the other Basic Documents, the Issuer
shall not make any loan or advance or credit to, or guarantee (directly or
indirectly or by an instrument having the effect of assuring another's payment
or performance on any obligation or capability of so doing or otherwise),
endorse or otherwise become contingently liable, directly or indirectly, in
connection with the obligations, stocks or dividends of, or own, purchase,
repurchase or acquire (or agree contingently to do so) any stock, obligations,
assets or securities of, or any other interest in, or make any capital
contribution to, any other Person.
Section 3.16. Capital Expenditures. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
Section 3.17. Restricted Payments. The Issuer shall not, directly or
indirectly, (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash,
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property, securities or a combination thereof, to the Trustee or any owner of a
beneficial interest in the Issuer or otherwise with respect to any ownership or
equity interest or security in or of the Issuer or to the Servicer or the
Administrator, (ii) redeem, purchase, retire or otherwise acquire for value any
such ownership or equity interest or security or (iii) set aside or otherwise
segregate any amounts for any such purpose; provided, however, that the Issuer
may make, or cause to be made, distributions to the Servicer, the Trustee, the
Indenture Trustee, the Noteholders, the Certificateholders, the Administrator
and the Depositor as contemplated by, and to the extent funds are available for
such purpose under, this Indenture and the other Basic Documents. The Issuer
will not, directly or indirectly, make payments to or distributions from the
Collection Account except in accordance with this Indenture and the other Basic
Documents.
Section 3.18. Notice of Events of Default. The Issuer shall give the
Indenture Trustee and the Rating Agencies prompt written notice of each Event of
Default hereunder and each default on the part of the Depositor of its
obligations under the Depositor Sale Agreement, SLM Education Credit Management
Corporation of its obligations under the Seller Sale Agreement, the Servicer of
its obligations under the Servicing Agreement, or the Administrator of its
obligations under the Administration Agreement. In addition, the Issuer shall
deliver to the Indenture Trustee and each Rating Agency, within five days after
the occurrence thereof, written notice in the form of an Officers' Certificate
of the Issuer of any event which with the giving of notice and the lapse of time
would become an Event of Default under Section 5.01(iii), its status and what
action the Issuer is taking or proposes to take with respect thereto.
Section 3.19. Further Instruments and Acts. Upon request of the
Indenture Trustee, the Issuer will execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out
more effectively the purpose of this Indenture.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect with respect to the Notes except as to (i)
rights of registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Notes, (iii) rights of Noteholders to receive payments
of principal thereof and interest thereon, (iv) Sections 3.03, 3.04, 3.05, 3.08,
3.10, 3.12 and 3.13, (v) the rights, obligations and immunities of the Indenture
Trustee hereunder (including, without limitation, the rights of the Indenture
Trustee under Section 6.07 and the obligations of the Indenture Trustee under
Section 4.02) and (vi) the rights of Noteholders as beneficiaries hereof with
respect to the property so deposited with the Indenture Trustee payable to all
or any of them, and the Indenture Trustee, on demand of and at the expense of
the Issuer, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to the Notes, when:
(a) either
(1) all Notes theretofore authenticated and delivered (other
than (A) Notes that have been destroyed, lost or stolen and that have
been replaced or paid as provided in
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Section 2.05 and (B) Notes for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Issuer and
thereafter repaid to the Issuer or discharged from such trust, as
provided in Section 3.03) have been delivered to the Indenture Trustee
for cancellation; or
(2) all Notes not theretofore delivered to the Indenture
Trustee for cancellation
(A) have become due and payable,
(B) will become due and payable at their respective
Note Final Maturity Date, within one year, or
(C) are to be called for redemption within one year
under arrangements satisfactory to the Indenture Trustee for the giving
of notice of redemption by the Indenture Trustee in the name, and at the
expense, of the Issuer, and the Issuer, in the case of (i), (ii) or
(iii) above, has irrevocably deposited or caused to be irrevocably
deposited with the Indenture Trustee cash or direct obligations of or
obligations guaranteed by the United States of America (which will
mature prior to the date such amounts are payable), in trust for such
purpose, in an amount sufficient to pay and discharge the entire
indebtedness on such Notes not theretofore delivered to the Indenture
Trustee for cancellation when due to the Note Final Maturity Date;
(b) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer; and
(c) the Issuer has delivered to the Indenture Trustee an Officers'
Certificate of the Issuer, an Opinion of Counsel and (if required by the TIA or
the Indenture Trustee) an Independent Certificate from a firm of certified
public accountants, each meeting the applicable requirements of Section 11.01(a)
and, subject to Section 11.02, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Section 4.02. Application of Trust Money. All moneys deposited with the
Indenture Trustee pursuant to Section 4.01 hereof shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent, as the
Indenture Trustee may determine, to the Noteholders of the particular Notes for
the payment or redemption of which such moneys have been deposited with the
Indenture Trustee, of all sums due and to become due thereon for principal and
interest; but such moneys need not be segregated from other funds except to the
extent required herein or in the Administration Agreement or required by law.
Section 4.03. Repayment of Moneys Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to the Notes,
all moneys then held by any Paying Agent other than the Indenture Trustee under
the provisions of this Indenture with respect to such Notes shall, upon demand
of the Issuer, be paid to the Indenture Trustee to be held and applied according
to Section 3.03 and thereupon such Paying Agent shall be released from all
further liability with respect to such moneys.
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Section 4.04. Auction of Trust Student Loans. Any Trust Student Loans
remaining in the Trust as of the end of the Collection Period immediately
preceding the earliest Quarterly Distribution Date on which the Pool Balance is
equal to 10% or less of the initial Pool Balance three business days prior to
such Quarterly Distribution Date (the "Trust Auction Date") shall be offered for
sale by the Indenture Trustee unless the Servicer has exercised its option to
purchase the Trust Estate as described in Section 6.01(a) of the Administration
Agreement with respect to such Quarterly Distribution Date. The Servicer will be
deemed to have waived such option if it fails to notify the Trustee and the
Indenture Trustee of its exercise thereof in writing prior to the Indenture
Trustee's acceptance of a bid to purchase such Trust Student Loans; provided,
however, that there shall be no such offer for sale if the Indenture Trustee
fails to provide notice to the Servicer in accordance with this Section 4.04.
The Indenture Trustee shall provide written notice to the Servicer of any such
offer for sale at least 5 business days in advance of the Trust Auction Date.
The Indenture Trustee shall permit the Servicer or any of its Affiliates,
including SLM Education Credit Management Corporation and the Depositor, to
offer bids only if the Pool Balance as of the applicable Trust Auction Date is
equal to 10% or less of the Initial Pool Balance and such bid does not exceed
the fair market value of the Trust Student Loans as of the Trust Auction Date.
If at least two bids are received, the Indenture Trustee shall solicit and
resolicit new bids from all participating bidders until only one bid remains or
the remaining bidders decline to resubmit bids. The Indenture Trustee shall
accept the highest of such remaining bids if it is equal to or in excess of both
the Minimum Purchase Amount and the fair market value of such Trust Student
Loans as of the end of the Collection Period immediately preceding the Trust
Auction Date. If at least two bids are not received or the highest bid after the
resolicitation process is completed is not equal to or in excess of the higher
of the Minimum Purchase Amount and the fair market value of the Trust Student
Loans, the Indenture Trustee shall not consummate such sale. The Indenture
Trustee may consult, and, at the direction of the Depositor, shall consult, with
a financial advisor, including an underwriter of the Notes or the Administrator,
to determine if the fair market value of the Trust Student Loans has been
offered. The proceeds of any such sale will be applied in the order of priority
set forth in Section 5.04(b). If the sale is not consummated in accordance with
the foregoing, the Indenture Trustee may, but shall not be under any obligation
to, solicit bids for sale of the Trust Student Loans with respect to future
Quarterly Distribution Dates upon terms similar to those described above,
including the Servicer's waiver of its option to purchase the Trust Estate in
accordance with Section 6.01(a) of the Administration Agreement with respect to
each such future Quarterly Distribution Date.
ARTICLE V
REMEDIES
Section 5.01. Events of Default. "Event of Default," wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
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(a) default in the payment of any interest on any Controlling Note
when the same becomes due and payable, and such default shall continue for a
period of five Business Days or more;
(b) default in the payment of the principal of any Note when the
same becomes due and payable on the related Note Final Maturity Date;
(c) default in the observance or performance of any covenant or
agreement of the Issuer made in this Indenture (other than a covenant or
agreement, a default in the observance or performance of which is elsewhere in
this Section specifically dealt with), or any representation or warranty of the
Issuer made in this Indenture or in any certificate or other writing having been
incorrect in any material respect as of the time when made, such default or
breach having a material adverse effect on the holders of the Notes, and such
default or breach shall continue or not be cured, or the circumstance or
condition in respect of which such misrepresentation or warranty was incorrect
shall not have been eliminated or otherwise cured, for a period of 30 days after
there shall have been given, by registered or certified mail, to the Issuer by
the Indenture Trustee or to the Issuer and the Indenture Trustee by the
Noteholders of at least 25% of the Outstanding Amount of the Controlling Notes,
a written notice specifying such default or incorrect representation or warranty
and requiring it to be remedied and stating that such notice is a notice of
Default hereunder;
(d) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Issuer or any substantial part of
the Indenture Trust Estate in an involuntary case under any applicable Federal
or state bankruptcy, insolvency or other similar law now or hereafter in effect,
or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator
or similar official of the Issuer or for any substantial part of the Indenture
Trust Estate, or ordering the winding-up or liquidation of the Issuer's affairs,
and such decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(e) the commencement by the Issuer of a voluntary case under any
applicable Federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or the consent by the Issuer to the entry of an order for
relief in an involuntary case under any such law, or the consent by the Issuer
to the appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Issuer or for any
substantial part of the Indenture Trust Estate, or the making by the Issuer of
any general assignment for the benefit of creditors, or the failure by the
Issuer generally to pay its debts as such debts become due, or the taking of
action by the Issuer in furtherance of any of the foregoing.
Section 5.02. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default should occur and be continuing, then and in every such case the
Indenture Trustee or the Noteholders of Notes representing not less than a
majority of the Outstanding Amount of the Controlling Notes may declare all the
Notes to be immediately due and payable, by a notice in writing to the Issuer
(and to the Indenture Trustee if given by Noteholders), and upon any such
declaration the unpaid principal amount of such Notes, together with accrued and
unpaid interest thereon through the date of acceleration, shall become
immediately due and payable, subject, however, to Section 5.04 of this
Indenture.
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At any time after such declaration of acceleration of maturity has been
made and before a judgment or decree for payment of the money due has been
obtained by the Indenture Trustee as hereinafter in this Article V provided, the
Noteholders of Notes representing a majority of the Outstanding Amount of the
Controlling Notes, by written notice to the Issuer and the Indenture Trustee,
may rescind and annul such declaration and its consequences if:
(a) the Issuer has paid or deposited with the Indenture Trustee a
sum sufficient to pay:
(i) all payments of principal of and interest on all Notes
and all other amounts that would then be due hereunder or upon such
Notes if the Event of Default giving rise to such acceleration had not
occurred; and
(ii) all sums paid or advanced by the Indenture Trustee
hereunder and the reasonable compensation, expenses, disbursements and
advances of the Indenture Trustee and its agents and counsel; and
(b) all Events of Default, other than the nonpayment of the
principal of the Notes that has become due solely by such acceleration, have
been cured or waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any
right consequent thereto.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee. The Issuer covenants that if (i) default is made in the
payment of any interest on any Controlling Note when the same becomes due and
payable, and such default continues for a period of five days, or (ii) default
is made in the payment of the principal of any Note when the same becomes due
and payable at the related Note Final Maturity Date, the Issuer shall, upon
demand of the Indenture Trustee, pay to it, for the benefit of the Noteholders,
the whole amount then due and payable on such Notes for principal and interest,
with interest upon the overdue principal, and, to the extent payment at such
rate of interest shall be legally enforceable, upon overdue installments of
interest, at the rate specified in Section 2.07 and in addition thereto such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Indenture Trustee and its agents and counsel.
(a) In case the Issuer shall fail forthwith to pay such amounts upon
such demand, the Indenture Trustee, in its own name and as trustee of an express
trust, may institute a Proceeding for the collection of the sums so due and
unpaid, and may prosecute such Proceeding to judgment or final decree, and may
enforce the same against the Issuer or other obligor upon such Notes and collect
in the manner provided by law out of the property of the Issuer or other obligor
upon such Notes, wherever situated, the moneys adjudged or decreed to be
payable.
(b) If an Event of Default occurs and is continuing, the Indenture
Trustee may, as more particularly provided in Section 5.04, in its discretion,
proceed to protect and enforce its rights and the rights of the Noteholders, by
such appropriate Proceedings as the Indenture Trustee shall deem most effective
to protect and enforce any such rights, whether for the specific
22
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy or
legal or equitable right vested in the Indenture Trustee by this Indenture or by
law.
(c) In case there shall be pending, relative to the Issuer or any
other obligor upon the Notes or any Person having or claiming an ownership
interest in the Indenture Trust Estate, Proceedings under Title 11 of the United
States Code or any other applicable Federal or state bankruptcy, insolvency or
other similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor or Person, or in case of any other, comparable judicial Proceedings
relative to the Issuer or other obligor upon the Notes, or to the creditors or
property of the Issuer or such other obligor, the Indenture Trustee,
irrespective of whether the principal of any Notes shall then be due and
payable, as therein expressed or by declaration or otherwise and irrespective of
whether the Indenture Trustee shall have made any demand pursuant to the
provisions of this Section, shall be entitled and empowered, by intervention in
such proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount
of principal and interest owing and unpaid in respect of the Notes and
to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Indenture Trustee (including any
claim for reasonable compensation to the Indenture Trustee and each
predecessor Indenture Trustee, and their respective agents, attorneys
and counsel, and for reimbursement of all expenses and liabilities
incurred, and all advances made, by the Indenture Trustee and each
predecessor Indenture Trustee, except as a result of negligence or bad
faith) and of the Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to
vote on behalf of the Noteholders in any election of a trustee, a
standby trustee or Person performing similar functions in any such
Proceedings;
(iii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute all amounts
received with respect to the claims of the Noteholders and of the
Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims
of the Indenture Trustee or the Noteholders allowed in any judicial
proceedings relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar
official in any such Proceeding is hereby authorized by each of such Noteholders
to make payments to the Indenture Trustee, and, in the event that the Indenture
Trustee shall consent to the making of payments directly to such Noteholders, to
pay to the Indenture Trustee such amounts as shall be sufficient to cover
reasonable compensation to the Indenture Trustee, each predecessor Indenture
Trustee and their respective agents, attorneys and counsel, and all other
expenses and liabilities incurred, and all advances made, by the Indenture
Trustee and each predecessor Indenture Trustee except as a result of negligence
or bad faith.
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(d) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Noteholder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(e) All rights of action and of asserting claims under this
Indenture, or under any of the Notes, may be enforced by the Indenture Trustee
without the possession of any of the Notes or the production thereof in any
trial or other Proceedings relative thereto, and any such action or Proceedings
instituted by the Indenture Trustee shall be brought in its own name as trustee
of an express trust, and any recovery of judgment, subject to the payment of the
expenses, disbursements and compensation of the Indenture Trustee, each
predecessor Indenture Trustee and their respective agents and attorneys, shall
be for the ratable benefit of the Noteholders.
(f) In any Proceedings brought by the Indenture Trustee (and also
any Proceedings involving the interpretation of any provision of this Indenture
to which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Noteholders, and it shall not be necessary to make any
Noteholder a party to any such Proceedings.
Section 5.04. Remedies; Priorities. If an Event of Default shall have
occurred and be continuing, the Indenture Trustee may do one or more of the
following (subject to Section 5.05):
(a) (i) institute Proceedings in its own name and as trustee of
an express trust for the collection of all amounts then payable on the
Notes or under this Indenture with respect thereto, whether by
declaration or otherwise, enforce any judgment obtained, and collect
from the Issuer and any other obligor upon such Notes moneys adjudged
due;
(ii) institute Proceedings from time to time for the complete
or partial foreclosure of this Indenture, with respect to the Indenture
Trust Estate;
(iii) exercise any remedies of a secured party under the UCC
with respect to the Trust Estate and take any other appropriate action
to protect and enforce the rights and remedies of the Indenture Trustee
and the Noteholders;
(iv) sell the Indenture Trust Estate or any portion thereof
or rights or interest therein, at one or more public or private sales
called and conducted in any manner permitted by law; and/or
(v) elect to have the Trustee maintain ownership of the
Trust Student Loans and continue to apply collections with respect to
the Trust Student Loans as if there had been no declaration of
acceleration;
provided, however, that the Indenture Trustee may not sell or otherwise
liquidate the Indenture Trust Estate following an Event of Default, other than
an Event of Default described in Section 5.01(a) or (b), unless (A) the
Noteholders of 100% of the Outstanding Amount of the Controlling Notes consent
thereto, (B) the proceeds of such sale or liquidation distributable to the
Noteholders of the Controlling Notes are sufficient to discharge in full all
amounts then due and
24
unpaid upon such Notes for principal and interest or (C) the Indenture Trustee
determines that the Indenture Trust Estate will not continue to provide
sufficient funds for the payment of principal of and interest on the Controlling
Notes as they would have become due if the Controlling Notes had not been
declared due and payable, and the Indenture Trustee obtains the consent of
Noteholders of 66-2/3% of the Outstanding Amount of the Class A Notes; provided,
further, that the Indenture Trustee may not sell or otherwise liquidate the
Indenture Trust Estate following an Event of Default, other than an Event of
Default described in Section 5.01(a) or (b) with respect to the Class A Notes,
unless (D) the proceeds of such sale or liquidation distributable to the Class B
Noteholders plus the proceeds of the sale or liquidation of the Trust Estate
distributable to the Class C Noteholders are sufficient to pay to the Class B
Noteholders and the Class C Noteholders the outstanding principal plus accrued
and unpaid interest thereon or (E) the proceeds of such sale or liquidation
distributable to the Class B Noteholders plus the proceeds of the sale or
liquidation of the Trust Estate distributable to the Class C Noteholders would
not be sufficient to pay to the Class B Noteholders and the Class C Noteholders
the outstanding principal plus accrued and unpaid interest thereon, the Class B
Noteholders and the Class C Noteholders of at least a majority of the principal
amount of the Class B Notes and the Class C Notes consent thereto. In
determining such sufficiency or insufficiency with respect to clauses (B), (C),
(D) and (E), the Indenture Trustee may, but need not, obtain and rely upon an
opinion of an Independent investment banking or accounting firm of national
reputation as to the feasibility of such proposed action and as to the
sufficiency of the Indenture Trust Estate and/or Trust Estate, as applicable,
for such purpose.
(b) Notwithstanding the provisions of Section 8.02, following the
occurrence and during the continuation of an Event of Default specified in
Section 5.01(a), 5.01(b), 5.01(d) or 5.01(e) which has resulted in an
acceleration of the Notes (or following the occurrence of any such event after
an Event of Default specified in Section 5.01(c) has occurred and the Trust has
been liquidated), if the Indenture Trustee collects any money or property, it
shall pay out the money or property (and other amounts including amounts held on
deposit in the Reserve Account and the Cash Capitalization Account) held as
Collateral for the benefit of the Noteholders, net of liquidation costs
associated with the sale of the assets of the Trust, in the following order:
(i) to the Indenture Trustee for amounts due under Section
6.07;
(ii) to the Servicer for any due and unpaid Primary Servicing
Fees;
(iii) to the Administrator, any due and unpaid Administration
Fees;
(iv) to the Auction Agent and the Broker-Dealers (or to the
Auction Agent for remittance to the Broker-Dealers), pro rata, any due
and unpaid Auction Agent Fees or Broker-Dealer Fees;
(v) to the Swap Counterparties, any Swap Payment payable to
each Swap Counterparty under its Swap Agreement for such Distribution
Date;
25
(vi) pro rata, based on the Class Note Balance and the amount
of any Swap Termination Payments due and payable by the Issuer to a Swap
Counterparty under this clause (vi);
(A) to the Class A Noteholders, for amounts
due and unpaid on the Class A Notes for interest,
ratably, without preference or priority of any kind,
according to the amounts due and payable on the Class A
Notes for such interest; and
(B) to the Swap Counterparties, the amount
of any Swap Termination Payments, if any, due to each
Swap Counterparty under its Swap Agreement due to a Swap
Termination Event resulting from a payment default by
the Issuer or the insolvency of the Issuer; provided,
that if any amounts allocable to the Class A Notes are
not needed to pay Class A Noteholders' Interest
Distribution Amount as of such Distribution Date, such
amounts will be applied to pay the portion, if any, of
any Swap Termination Payments remaining unpaid;
(vii) to the Class A Noteholders, ratably, an amount
sufficient to reduce their respective Class A Note Balance to zero;
(viii) to the Class B Noteholders for amounts due and unpaid on
the Class B Notes for interest, ratably, without preference or priority
of any kind, according to the amounts due and payable on the Class B
Notes for such interest;
(ix) to Class B Noteholders, an amount sufficient to reduce
the Class B Note Balance to zero;
(x) to the Class C Noteholders, for amounts due and unpaid
on the Class C Notes for interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on the
Class C Notes for such interest;
(xi) to the Class C Noteholders, an amount sufficient to
reduce the Class C Note Balance to zero;
(xii) to the Servicer, for any unpaid Carryover Servicing
Fees;
(xiii) to the Auction Rate Noteholders, pro rata, any Carryover
Amounts;
(xiv) to each Swap Counterparty, the amount of any Swap
Termination Payment due and payable by the Issuer to that Swap
Counterparty under its Swap Agreement and not payable in clause (vi)
above; and
(xv) to the Certificateholders, any remaining funds.
The Indenture Trustee may fix a record date and payment date for any
payment to Noteholders pursuant to this Section. At least 15 days before such
record date, the Indenture
26
Trustee shall mail to each Noteholder and the Issuer a notice that states the
record date, the payment date and the amount to be paid.
Section 5.05. Optional Preservation of the Trust Student Loans. If the
Notes have been declared to be due and payable under Section 5.02 following an
Event of Default and such declaration and its consequences have not been
rescinded and annulled, the Indenture Trustee may, but need not, elect to
maintain possession of the Indenture Trust Estate. It is the desire of the
parties hereto and the Noteholders that there be at all times sufficient funds
for the payment of principal of and interest on the Notes, and the Indenture
Trustee shall take such desire into account when determining whether or not to
maintain possession of the Indenture Trust Estate. In determining whether to
maintain possession of the Indenture Trust Estate, the Indenture Trustee may,
but need not, obtain and rely upon an opinion of an Independent investment
banking or accounting firm of national reputation as to the feasibility of such
proposed action and as to the sufficiency of the Indenture Trust Estate for such
purpose.
Section 5.06. Limitation of Suits. No Noteholder shall have any right to
institute any Proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(a) such Noteholder has previously given written notice to the
Indenture Trustee of a continuing Event of Default;
(b) the Noteholders of not less than 25% of the Outstanding Amount
of the Controlling Notes have made written request to the Indenture Trustee to
institute such Proceeding in respect of such Event of Default in its own name as
Indenture Trustee hereunder;
(c) such Noteholder or Noteholders have offered to the Indenture
Trustee reasonable indemnity against the costs, expenses and liabilities to be
incurred in complying with such request;
(d) the Indenture Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute such Proceeding;
and
(e) no direction inconsistent with such written request has been
given to the Indenture Trustee during such 60-day period by the Noteholders of a
majority of the Outstanding Amount of the Controlling Notes;
it being understood and intended that no one or more Noteholders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this indenture to affect, disturb or prejudice the rights of any other
Noteholders or to obtain or to seek to obtain priority or preference over any
other Noteholders or to enforce any right under this Indenture, except in the
manner herein provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Noteholders, each
representing less than a majority of the Outstanding Amount of the Notes, the
Indenture Trustee in its sole discretion may determine what action, if any,
shall be taken, notwithstanding any other provisions of this Indenture.
27
Section 5.07. Unconditional Rights of Noteholders To Receive Principal
and Interest. Notwithstanding any other provisions in this Indenture, any
Noteholder shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest on such Note on or after the respective
due dates thereof expressed in such Note or in this Indenture (or, in the case
of redemption, on or after the Redemption Date) and to institute suit for the
enforcement of any such payment, and such right shall not be impaired without
the consent of such Noteholder.
Section 5.08. Restoration of Rights and Remedies. If the Indenture
Trustee or any Noteholder has instituted any Proceeding to enforce any right or
remedy under this Indenture and such Proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Issuer, the
Indenture Trustee and the Noteholders shall, subject to any determination in
such Proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Indenture
Trustee and the Noteholders shall continue as though no such Proceeding had been
instituted.
Section 5.09. Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Indenture Trustee or to the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.10. Delay or Omission Not a Waiver. No delay or omission of
the Indenture Trustee or any Noteholder to exercise any right or remedy accruing
upon any Default shall impair any such right or remedy or constitute a waiver of
any such Default or an acquiescence therein. Every right and remedy given by
this Article V or by law to the Indenture Trustee or to the Noteholders may be
exercised from time to time, and as often as may be deemed expedient, by the
Indenture Trustee or by the Noteholders, as the case may be.
Section 5.11. Control by Noteholders. The Noteholders of a majority of
the Outstanding Amount of the Controlling Notes shall have the right to direct
the time, method and place of conducting any Proceeding for any remedy available
to the Indenture Trustee with respect to the Notes or exercising any trust or
power conferred on the Indenture Trustee; provided, that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture;
(b) subject to the express terms of Section 5.04, any direction to
the Indenture Trustee to sell or liquidate the Indenture Trust Estate shall be
by the Noteholders of not less than 100% of the Outstanding Amount of the
Controlling Notes;
(c) if the conditions set forth in Section 5.05 have been satisfied
and the Indenture Trustee elects to retain the Indenture Trust Estate pursuant
to such Section, then any direction to the Indenture Trustee by Noteholders of
less than 100% of the Outstanding Amount of the
28
Controlling Notes to sell or liquidate the Indenture Trust Estate shall be of no
force and effect; and
(d) the Indenture Trustee may take any other action deemed proper by
the Indenture Trustee that is not inconsistent with such direction;
provided, however, that subject to Section 6.01, the Indenture Trustee need not
take any action that it determines might involve it in liability or might
materially adversely affect the rights of any Noteholders not consenting to such
action.
Section 5.12. Waiver of Past Defaults. Prior to the time a judgment or
decree for payment of money due has been obtained as described in Section 5.02,
the Noteholders of not less than a majority of the Outstanding Amount of the
Controlling Notes may waive any past Default and its consequences except a
Default (a) in payment when due of principal of or interest on any of the Notes
or (b) in respect of a covenant or provision hereof which cannot be modified or
amended without the consent of each Noteholder. In the case of any such waiver,
the Issuer, the Indenture Trustee and the Noteholders shall be restored to their
former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereto.
Upon any such waiver, such Default shall cease to exist and be deemed to
have been cured and not to have occurred for every purpose of this Indenture;
but no such waiver shall extend to any subsequent or other Default or impair any
right consequent thereto.
Section 5.13. Undertaking for Costs. All parties to this Indenture
agree, and each Noteholder by such Noteholder's acceptance of any Note shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the Indenture Trustee for any action taken, suffered or omitted by it as
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to (a) any suit instituted by the
Indenture Trustee, (b) any suit instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 10% of the
Outstanding Amount of the Notes or (c) any suit instituted by any Noteholder for
the enforcement of the payment of principal of or interest on any Note on or
after the respective due dates expressed in such Note and in this Indenture (or,
in the case of redemption, on or after the Redemption Date).
Section 5.14. Waiver of Stay or Extension Laws. The Issuer covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead or in any manner whatsoever, claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this Indenture; and
the Issuer (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Indenture
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
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Section 5.15. Action on Notes. The Indenture Trustee's right to seek and
recover judgment on the Notes or under this Indenture shall not be affected by
the seeking, obtaining or application of any other relief under or with respect
to this Indenture. Neither the lien of this Indenture nor any rights or remedies
of the Indenture Trustee or the Noteholders shall be impaired by the recovery of
any judgment by the Indenture Trustee against the Issuer or by the levy of any
execution under such judgment upon any portion of the Indenture Trust Estate or
upon any of the assets of the Issuer. Any money or property collected by the
Indenture Trustee shall be applied in accordance with Section 5.04(b).
Section 5.16. Performance and Enforcement of Certain Obligations.
(a) Promptly following a request from the Indenture Trustee to do so
and at the Administrator's expense, the Issuer shall take all such lawful action
as the Indenture Trustee may request to compel or secure the performance and
observance by the Depositor, SLM Education Credit Management Corporation, the
Administrator and the Servicer, as applicable, of each of their obligations to
the Issuer, whether directly or by assignment, under or in connection with a
Basic Document, respectively, in accordance with the terms thereof, and to
exercise any and all rights, remedies, powers and privileges lawfully available
to the Issuer under or in connection with a Basic Document, as the case may be,
to the extent and in the manner directed by the Indenture Trustee, including the
transmission of notices of default on the part of the Depositor, SLM Education
Credit Management Corporation, the Administrator or the Servicer thereunder and
the institution of legal or administrative actions or proceedings to compel or
secure performance by the Depositor, SLM Education Credit Management
Corporation, the Administrator or the Servicer of each of their obligations
under a Basic Document, respectively.
(b) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and at the written direction of the Noteholders of
66-2/3% of the Controlling Outstanding Amount of the Notes shall, exercise all
rights, remedies, powers, privileges and claims of the Issuer against the
Depositor, SLM Education Credit Management Corporation, the Administrator or the
Servicer under or in connection with a Basic Document, respectively, including
the right or power to take any action to compel or secure performance or
observance by the Depositor, SLM Education Credit Management Corporation, the
Administrator or the Servicer of each of their obligations to the Issuer
thereunder, whether directly or by assignment, and to give any consent, request,
notice, direction, approval, extension or waiver under a Basic Document,
respectively, and any right of the Issuer to take such action shall be
suspended.
ARTICLE VI
THE INDENTURE TRUSTEE
Section 6.01. Duties of Indenture Trustee.
(a) If an Event of Default has occurred and is continuing, the
Indenture Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
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(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture and
no implied covenants or obligations shall be read into this Indenture
against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Indenture Trustee and conforming to the
requirements of this Indenture; provided, however, that the Indenture
Trustee shall examine the certificates and opinions to determine whether
or not they conform to the requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this clause (c) does not limit the effect of clause (b)
of this Section;
(ii) the Indenture Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer unless it is
proved that the Indenture Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Indenture Trustee shall not be liable with respect
to any action it takes or omits to take in good faith in accordance with
a direction of the Noteholders received by it pursuant to this
Indenture.
(d) The Indenture Trustee shall not be liable for interest on any
money received by it except as the Indenture Trustee may agree in writing with
the Issuer.
(e) Money held in trust by the Indenture Trustee need not be
segregated from other funds except to the extent required by law or the terms of
this Indenture or the other Basic Documents.
(f) No provision of this Indenture shall require the Indenture
Trustee to expend or risk its own funds or otherwise incur financial liability
in the performance of any of its duties hereunder or in the exercise of any of
its rights or powers, if it shall have reasonable grounds to believe that
repayments of such funds or adequate indemnity satisfactory to it against any
loss, liability or expense is not reasonably assured to it.
(g) Except as expressly provided in the Basic Documents, the
Indenture Trustee shall have no obligation to administer, service or collect the
Trust Student Loans or to maintain, monitor or otherwise supervise the
administration, servicing or collection of the Trust Student Loans.
(h) In the event that the Indenture Trustee is the Paying Agent or
the Note Registrar, the rights and protections afforded to the Indenture Trustee
pursuant to this Indenture shall also be afforded to the Indenture Trustee in
its capacity as Paying Agent or Note Registrar.
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(i) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Indenture Trustee
shall be subject to the provisions of this Section and to the provisions of the
TIA.
(j) The rights and protections of the Indenture Trustee under
Sections 6.01 and 6.02 shall apply to each of the Basic Documents as though
explicitly incorporated therein.
Section 6.02. Rights of Indenture Trustee. (a) The Indenture Trustee may
rely on any document believed by it to be genuine and to have been signed or
presented by the proper Person. The Indenture Trustee need not investigate any
fact or matter stated in such document.
(b) Before the Indenture Trustee acts or refrains from acting, it
may require and shall be entitled to receive an Officers' Certificate of the
Issuer and/or an Opinion of Counsel. The Indenture Trustee may conclusively rely
on any such Opinion of Counsel or Officers' Certificate and shall not be liable
for any action it takes or omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee, and the Indenture Trustee shall
not be responsible for any misconduct or negligence on the part of, or for the
supervision of, any such agent, attorney, custodian or nominee appointed with
due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; provided, however, that the Indenture Trustee's
conduct does not constitute willful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the advice
or opinion of counsel with respect to legal matters relating to this Indenture
and the Notes shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
Section 6.03. Individual Rights of Indenture Trustee. The Indenture
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Issuer or its Affiliates with the same
rights it would have if it were not Indenture Trustee. Any Paying Agent, Note
Registrar, co-registrar or co-paying agent may do the same with like rights.
However, the Indenture Trustee must comply with Sections 6.11 and 6.12.
Section 6.04. Indenture Trustee's Disclaimer. The Indenture Trustee
shall not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the
Issuer's use of the proceeds from the Notes, and it shall not be responsible for
any statement of the Issuer in the Indenture or in any document issued in
connection with the sale of the Notes or in the Notes other than the Indenture
Trustee's certificate of authentication.
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Section 6.05. Notice of Defaults. If a Default or a Servicer Default
occurs and is continuing and if it is either actually known to a Responsible
Officer or written notice of the existence thereof has been delivered to a
Responsible Officer of the Indenture Trustee, the Indenture Trustee shall mail
notice of the Default to each Noteholder within 90 days and to each Rating
Agency as soon as practicable within 30 days after it occurs. Except in the case
of a Default in payment of principal of or interest on any Note (including
payments pursuant to the mandatory redemption provisions of such Note), the
Indenture Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of Noteholders. Except as provided in the first sentence of this
Section 6.05, in no event shall the Indenture Trustee be deemed to have
knowledge of a Default, a Servicer Default or an Event of Default.
Section 6.06. Reports by Indenture Trustee to Noteholders. The Indenture
Trustee shall deliver to each Noteholder (and to each Person who was a
Noteholder at any time during the applicable calendar year) such information as
may be required to enable such holder to prepare its Federal and state income
tax returns. Within 60 days after each December 31 beginning with the December
31 following the date of this Indenture, the Indenture Trustee shall mail to
each Noteholder a brief report as of such December 31 that complies with TIA
Section 313(a) if required by said section. The Indenture Trustee shall also
comply with TIA Section 313(b). A copy of each such report required pursuant to
TIA Section 313(a) or (b) shall, at the time of such transaction to Noteholders,
be filed by the Indenture Trustee with the Commission and with each securities
exchange, if any, upon which the Notes are listed, provided that the Issuer has
previously notified the Indenture Trustee of such listing.
Section 6.07. Compensation and Indemnity. The Issuer shall cause the
Depositor to pay to the Indenture Trustee reasonable compensation for its
services in accordance with a separate agreement between the Depositor and the
Indenture Trustee and shall cause the Depositor to reimburse the Indenture
Trustee for all reasonable out-of-pocket expenses including the reasonable
expeses and disbursements of its counsel incurred or made by it as provided in
such separate agreement. The Indenture Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Issuer
shall cause the Administrator to indemnify the Indenture Trustee and its
directors, officers, employees and agents against any and all loss, liability or
expense (including attorneys' fees) incurred by it in connection with the
administration of this trust and the performance of its duties hereunder and
under the other Basic Documents. The Indenture Trustee shall notify the Issuer
and the Administrator promptly of any claim for which it may seek indemnity.
Failure by the Indenture Trustee to so notify the Issuer and the Administrator
shall not relieve the Issuer or the Administrator of its obligations hereunder
and under the other Basic Documents. The Issuer shall cause the Administrator to
defend the claim and the Administrator shall not be liable for the legal fees
and expenses of the Indenture Trustee after it has assumed such defense;
provided, however, that, in the event that there may be a conflict between the
positions of the Indenture Trustee and the Administrator in conducting the
defense of such claim, the Indenture Trustee shall be entitled to separate
counsel acceptable to it in its sole discretion the reasonable fees and expenses
of which shall be paid by the Administrator on behalf of the Issuer. Neither the
Issuer nor the Administrator need reimburse any expense or indemnify against any
loss, liability or expense incurred by the Indenture Trustee through the
Indenture Trustee's own willful misconduct, negligence or bad faith.
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The Issuer's payment obligations to the Indenture Trustee pursuant to
this Section shall survive the discharge of this Indenture or the earlier
resignation and removal of the Indenture Trustee. When the Indenture Trustee
incurs expenses after the occurrence of a Default specified in Section 5.01(d)
or (e) with respect to the Issuer, the expenses are intended to constitute
expenses of administration under Title 11 of the United States Code or any other
applicable Federal or state bankruptcy, insolvency or similar law.
Section 6.08. Replacement of Indenture Trustee. No resignation or
removal of the Indenture Trustee and no appointment of a successor Indenture
Trustee shall become effective until the acceptance of appointment by the
successor Indenture Trustee pursuant to this Section 6.08. The Indenture Trustee
may resign at any time by so notifying the Issuer. The Noteholders of a majority
in Outstanding Amount of the Controlling Notes may remove the Indenture Trustee
by so notifying the Indenture Trustee and may appoint a successor Indenture
Trustee. The Issuer shall remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) an Insolvency Event occurs with respect to the Indenture
Trustee;
(iii) a receiver or other public officer takes charge of the
Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of
acting.
If the Indenture Trustee resigns or is removed or if a vacancy exists in
the office of Indenture Trustee for any reason (the Indenture Trustee in such
event being referred to herein as the retiring Indenture Trustee), the Issuer
shall promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee and to the Issuer. Thereupon the
resignation or removal of the retiring Indenture Trustee shall become effective,
and the successor Indenture Trustee shall have all the rights, powers and duties
of the Indenture Trustee under this Indenture. The successor Indenture Trustee
shall mail a notice of its succession to Noteholders. The retiring Indenture
Trustee shall promptly transfer all property held by it as Indenture Trustee to
the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within 60 days
after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuer or the Noteholders of a majority in Outstanding
Amount of the Controlling Notes may petition any court of competent jurisdiction
for the appointment of a successor Indenture Trustee. The successor Indenture
Trustee shall give notice of its appointment as successor Indenture Trustee to
the Rating Agencies.
If the Indenture Trustee fails to comply with Section 6.11, any
Noteholder may petition any court of competent jurisdiction for the removal of
the Indenture Trustee and the appointment of a successor Indenture Trustee.
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Notwithstanding the replacement of the Indenture Trustee pursuant to
this Section, the Issuer's and the Administrator's obligations under Section
6.07 shall continue for the benefit of the retiring Indenture Trustee.
Section 6.09. Successor Indenture Trustee by Merger. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation
or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Indenture Trustee, provided that
such corporation or banking association shall be otherwise qualified and
eligible under Section 6.11.
In case at the time such successor or successors by merger, conversion
or consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture any of the Notes shall have been authenticated but not delivered,
any such successor to the Indenture Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Notes or in this Indenture
provided that the certificate of the Indenture Trustee shall have.
Section 6.10. Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provisions of this Indenture, at any time, for the
purpose of meeting any legal requirement of any jurisdiction in which any part
of the Indenture Trust Estate may at the time be located, the Indenture Trustee
shall have the power and may execute and deliver all instruments to appoint one
or more Persons to act as a co-trustee or co-trustees, or separate trustee or
separate trustees, of all or any part of the Indenture Trust Estate, and to vest
in such Person or Persons, in such capacity and for the benefit of the
Noteholders, such title to the Indenture Trust Estate, or any part hereof, and,
subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Indenture Trustee may consider necessary
or desirable. No such appointment shall relieve the Indenture Trustee of its
obligations hereunder. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
6.11 and no notice to Noteholders of the appointment of any co-trustee or
separate trustee shall be required under Section 6.08 hereof.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Indenture Trustee shall be conferred or imposed upon
and exercised or performed by the Indenture Trustee and such separate
trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the
Indenture Trustee joining in such act), except to the extent that under
any law of any jurisdiction in which any particular act or acts are to
be performed the Indenture Trustee shall be incompetent or unqualified
to perform such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to the Indenture Trust
Estate or any portion thereof in any such jurisdiction) shall be
exercised and performed
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singly by such separate trustee or co-trustee, but solely at the
direction of the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture
Trustee shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, the Indenture Trustee. Every such instrument shall be filed with
the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute
the Indenture Trustee, its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Indenture on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 6.11. Eligibility; Disqualification. (a) The Indenture Trustee
shall at all times satisfy the requirements of TIA Section 310(a). The Indenture
Trustee shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition and it shall have
a long-term senior unsecured debt rating of not less than investment grade by
each of the Rating Agencies. The Indenture Trustee shall comply with TIA Section
310(b), including the optional provision permitted by the second sentence of TIA
Section 310(b)(9); provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or indentures under which other
securities of the Issuer are outstanding if the requirements for such exclusion
set forth in TIA Section 310(b)(1) are met.
(b) Within ninety (90) days after ascertaining the occurrence of an
Event of Default which shall not have been cured or waived, unless authorized by
the TIA or the Commission, the Indenture Trustee shall resign with respect to
the Class A Notes, the Class B Notes and/or the Class C Notes in accordance with
Section 6.08 of this Indenture, and the Issuer shall appoint a successor
Indenture Trustee for two or all of such Classes, as applicable, so that there
will be separate Indenture Trustees for the Class A Notes, the Class B Notes and
the Class C Notes. In the event the Indenture Trustee fails to comply with the
terms of the preceding sentence, the Indenture Trustee shall comply with clauses
(ii) and (iii) of TIA Section 310(b).
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(c) In the case of the appointment hereunder of a successor
Indenture Trustee with respect to any Class of Notes pursuant to this Section
6.11, the Issuer, the retiring Indenture Trustee and the successor Indenture
Trustee with respect to such Class of Notes shall execute and deliver an
indenture supplemental hereto wherein each successor Indenture Trustee shall
accept such appointment and which (i) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, the successor
Indenture Trustee all the rights, powers, trusts and duties of the retiring
Indenture Trustee with respect to the Notes of the Class to which the
appointment of such successor Indenture Trustee relates, (ii) if the retiring
Indenture Trustee is not retiring with respect to all Classes of Notes, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Indenture Trustee
with respect to the Notes of each Class as to which the retiring Indenture
Trustee is not retiring shall continue to be vested in the Indenture Trustee and
(iii) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Indenture Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such Indenture
Trustees co-trustees of the same trust and that each such Indenture Trustee
shall be a trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Indenture Trustee; and
upon the removal of the retiring Indenture Trustee shall become effective to the
extent provided herein.
Section 6.12. Preferential Collection of Claims Against Issuer. The
Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). An Indenture Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
Section 7.01. Issuer to Furnish Indenture Trustee Names and Addresses of
Noteholders. The Issuer will furnish or cause to be furnished to the Indenture
Trustee (a) not more than five days after the earlier of (i) each Record Date
and (ii) three months after the last Record Date, a list, in such form as the
Indenture Trustee may reasonably require, of the names and addresses of the
Noteholders as of such Record Date, (b) at such other times as the Indenture
Trustee may request in writing, within 30 days after receipt by the Issuer of
any such request, a list of similar form and content as of a date not more than
10 days prior to the time such list is furnished; provided, however, that so
long as the Indenture Trustee is the Note Registrar, no such list shall be
required to be furnished.
Section 7.02. Preservation of Information; Communications to
Noteholders. The Indenture Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of the Noteholders contained in
the most recent list furnished to the Indenture Trustee as provided in Section
7.01 and the names and addresses of Noteholders received by the Indenture
Trustee in its capacity as Note Registrar. The Indenture Trustee may destroy any
list furnished to it as provided in such Section 7.01 upon receipt of a new list
so furnished.
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(a) Noteholders may communicate pursuant to TIA Section 312(b) with
other Noteholders with respect to their rights under this Indenture or under the
Notes. Upon receipt by the Indenture Trustee of any request by three or more
Noteholders or by one or more holders of Notes evidencing not less than 25% of
the Outstanding Amount of the Notes to receive a copy of the current list of
Noteholders (whether or not made pursuant to TIA Section 312(b)), the Indenture
Trustee shall promptly notify the Administrator thereof by providing to the
Administrator a copy of such request and a copy of the list of Noteholders
produced in response thereto.
(b) The Issuer, the Indenture Trustee and the Note Registrar shall
have the protection of TIA Section 312(c).
(c) On each Distribution Date, the Indenture Trustee shall provide
to each Noteholder of record as of the related Record Date the information
provided by the Administrator to the Indenture Trustee on the related
Determination Date pursuant to Section 2.09 of the Administration Agreement. The
Indenture Trustee shall make such information available on its website at
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇. In connection with any electronic transmissions
of information, including without limitation, the use of electronic mail or
internet or intranet web sites, the systems used in such transmissions are not
fully tested by the Indenture Trustee and may not be completely reliable as to
stability, robustness and accuracy. Accordingly, the parties hereto acknowledge
and agree that information electronically transmitted as described herein may
not be relied upon as timely, accurate or complete and that the Indenture
Trustee shall have no liability hereunder in connection with such information
transmitted electronically. The parties hereto further acknowledge that any
systems, software or hardware utilized in posting or retrieving any such
information is utilized on an "as is" basis without representation or warranty
as to the intended uses of such systems, software or hardware. The Indenture
Trustee makes no representation or warranty that the systems and the related
software used in connection with the electronic transmission of information are
free and clear of threats known as software and hardware viruses, time bombs,
logic bombs, Trojan horses, worms, or other malicious computer instructions,
intentional devices or techniques which may cause a component or system to
become erased, damaged, inoperable, or otherwise incapable of being used in the
manner to which it is intended, or which would permit unauthorized access
thereto. In the event such web site is not available, the Indenture Trustee
shall use reasonable efforts to distribute such information in a timely manner
to the intended recipients.
(d) The Indenture Trustee shall furnish to the Noteholders promptly
upon receipt of a written request therefor, duplicates or copies of all reports,
notices, requests, demands, certificates, financial statements and any other
instruments furnished to the Indenture Trustee under the Basic Documents. The
Indenture Trustee shall furnish to the Noteholders promptly upon receipt thereof
from the Trustee notice of any amendment of the Administration Agreement
pursuant to Section 8.05 of the Administration Agreement.
Section 7.03. Reports by Issuer. (a) The Issuer shall:
(i) supply to the Indenture Trustee, within 15 days after
the Issuer is required to file the same with the Commission, copies of
the annual reports and of the information, documents and other reports
(or copies of such portions of any of the foregoing as the Commission
may from time to time by rules and regulations prescribe) which the
Issuer
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may be required to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act;
(ii) supply to the Indenture Trustee and file with the
Commission in accordance with rules and regulations prescribed from time
to time by the Commission such additional information, documents and
reports with respect to compliance by the Issuer with the conditions and
covenants of this Indenture as may be required from time to time by such
rules and regulations; and
(iii) supply to the Indenture Trustee (and the Indenture
Trustee shall transmit by mail to all Noteholders described in TIA
Section 313(c)) such summaries of any information, documents and reports
required to be filed by the Issuer pursuant to clauses (i) and (ii) of
this Section 7.03(a) as may be required by rules and regulations
prescribed from time to time by the Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the
Issuer shall end on December 31 of each year.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01. Collection of Money. Except as otherwise expressly
provided herein, the Indenture Trustee may demand payment or delivery of, and
shall receive and collect, directly and without intervention or assistance of
any fiscal agent or other intermediary, all money and other property payable to
or receivable by the Indenture Trustee pursuant to this Indenture. The Indenture
Trustee shall apply all such money received by it on behalf of Noteholders
pursuant to the Administration Agreement as provided in this Indenture. Except
as otherwise expressly provided in this Indenture, if any default occurs in the
making of any payment or performance under any agreement or instrument that is
part of the Indenture Trust Estate, the Indenture Trustee may take such action
as may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate Proceedings. Any such action shall be
without prejudice to any right to claim a Default under this Indenture and any
right to proceed thereafter as provided in Article V.
Section 8.02. Trust Accounts. (a) On or prior to the Closing Date, the
Issuer shall cause the Administrator to establish and maintain, in the name of
the Indenture Trustee, for the benefit of the Noteholders and the
Certificateholders, the Trust Accounts as provided in Section 2.03 of the
Administration Agreement.
(b) On or before the Business Day preceding each Distribution Date,
all Available Funds with respect to the preceding Collection Period will be
deposited in the Collection Account as provided in Section 2.04 of the
Administration Agreement. On or before each Distribution Date, the Indenture
Trustee (or any other Paying Agent) shall make the deposits and distributions as
provided in Sections 2.07, 2.08(a), (b) and (c) of the Administration Agreement
(except as otherwise provided in Section 5.02 or Section 5.04(b)).
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Section 8.03. General Provisions Regarding Accounts. (a) So long as no
Default shall have occurred and be continuing, all or a portion of the funds in
the Trust Accounts shall be invested in Eligible Investments and reinvested by
the Indenture Trustee upon Issuer Order, subject to the provisions of Section
2.03(b) of the Administration Agreement. All income or other gain from
investments of moneys deposited in the Trust Accounts shall be deposited by the
Indenture Trustee in the Collection Account, and any loss resulting from such
investments shall be charged to such Trust Account. The Issuer will not direct
the Indenture Trustee to make any investment of any funds or to sell any
investment held in any of the Trust Accounts unless the security interest
granted and perfected in such account will continue to be perfected in such
investment or the proceeds of such sale, in either case without any further
action by any Person, and, in connection with any direction to the Indenture
Trustee to make any such investment or sale, if requested by the Indenture
Trustee, the Issuer shall deliver to the Indenture Trustee an Opinion of
Counsel, acceptable to the Indenture Trustee, to such effect.
(b) Subject to Section 6.01(c), the Indenture Trustee shall not in
any way be held liable for the selection of Eligible Investments or by reason of
any insufficiency in any of the Trust Accounts resulting from any loss on any
Eligible Investment included therein except for losses attributable to the
Indenture Trustee's failure to make payments on such Eligible Investments issued
by the Indenture Trustee, in its commercial capacity as principal obligor and
not as trustee, in accordance with their terms. The Indenture Trustee shall have
no liability in respect of losses incurred as a result of the liquidation of any
investment prior to its stated maturity or the failure of the Issuer to provide
timely written investment direction.
(c) If (i) the Issuer shall have failed to give investment
directions for any funds on deposit in the Trust Accounts to the Indenture
Trustee by 10:00 a.m. Eastern Time (or such other time as may be agreed by the
Issuer and Indenture Trustee) on any Business Day; or (ii) a Default shall have
occurred and be continuing with respect to the Notes but the Notes shall not
have been declared due and payable pursuant to Section 5.02, or, if such Notes
shall have been declared due and payable following an Event of Default, amounts
collected or receivable from the Indenture Trust Estate are being applied in
accordance with Section 5.05 as if there had not been such a declaration; then
the Indenture Trustee shall invest and reinvest funds in the Trust Accounts in
the Eligible Investments described in clause (d) of the definition thereof.
Section 8.04. Release of Indenture Trust Estate. (a) Subject to the
payment of its fees and expenses pursuant to Section 6.07, the Indenture Trustee
may, and when required by the provisions of this Indenture shall, execute
instruments to release property from the lien of this Indenture, or convey the
Indenture Trustee's interest in the same, in a manner and under circumstances
that are not inconsistent with the provisions of this Indenture. No party
relying upon an instrument executed by the Indenture Trustee as provided in this
Article VIII shall be bound to ascertain the Indenture Trustee's authority,
inquire into the satisfaction of any conditions precedent or see to the
application of any moneys.
(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding and all sums due the Indenture Trustee pursuant to Section 6.07 have
been paid, release any remaining portion of the Indenture Trust Estate that
secured the Notes from the lien of this Indenture and release to the Issuer or
any other Person entitled thereto any funds then on deposit in the Trust
Accounts. The Indenture Trustee shall release property from the lien of this
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Indenture pursuant to this Section 8.04(b) only upon receipt of an Issuer
Request accompanied by an Officers' Certificate of the Issuer, an Opinion of
Counsel and (if required by the TIA) Independent Certificates in accordance with
TIA Sections 314(c) and 314(d)(1) meeting the applicable requirements of Section
11.01.
(c) Each Noteholder, by the acceptance of a Note, acknowledges that
from time to time the Indenture Trustee shall release the lien of this Indenture
on any Trust Student Loan to be sold to (i) the Depositor in accordance with
Article VI of the Depositor Sale Agreement, (ii) the Seller in accordance with
Article VI of the Seller Sale Agreement and (iii) the Servicer in accordance
with Section 3.05 of the Servicing Agreement and each Noteholder, by the
acceptance of a Note, consents to any such release.
Section 8.05. Opinion of Counsel. The Indenture Trustee shall receive at
least seven days' notice when requested by the Issuer to take any action
pursuant to Section 8.04(a), accompanied by copies of any instruments involved,
and the Indenture Trustee shall also require, except in connection with any
action contemplated by Section 8.04(c), as a condition to such action, an
Opinion of Counsel, in form and substance satisfactory to the Indenture Trustee,
stating the legal effect of any such action, outlining the steps required to
complete the same, and concluding that all conditions precedent to the taking of
such action have been complied with and such action will not materially and
adversely impair the security for the Notes or the rights of the Noteholders in
contravention of the provisions of this Indenture; provided, however, that such
Opinion of Counsel shall not be required to express an opinion as to the fair
value of the Indenture Trust Estate. Counsel rendering any such opinion may
rely, without independent investigation, on the accuracy and validity of any
certificate or other instrument delivered to the Indenture Trustee in connection
with any such action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Noteholders.
(a) Without the consent of any Noteholders but with prior notice to the Rating
Agencies, the Issuer and the Indenture Trustee, when authorized by an Issuer
Order, at any time and from time to time, may enter into one or more indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as in force at the date of the execution thereof), in form
satisfactory to the Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at
any time subject to the lien of this Indenture, or better to assure,
convey and confirm unto the Indenture Trustee any property subject or
required to be subjected to the lien of this Indenture, or to subject to
the lien of this Indenture additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another person to the Issuer, and the
assumption by any such successor of the covenants of the Issuer herein
and in the Notes contained;
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(iii) to add to the covenants of the Issuer, for the benefit
of the Noteholders, or to surrender any right or power herein conferred
upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any
property to the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any
provision herein or in any supplemental indenture which may be
inconsistent with any other provision herein or in any supplemental
indenture or to make any other provisions with respect to matters or
questions arising under this Indenture or in any supplemental indenture;
provided, that such action shall not materially adversely affect the
interests of the Noteholders;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to the Notes
and to add to or change any of the provisions of this Indenture as shall
be necessary to facilitate the administration of the trusts hereunder by
more than one trustee, pursuant to the requirements of Article VI; or
(vii) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any similar
Federal statute hereafter enacted and to add to this Indenture such
other provisions as may be expressly required by the TIA.
The Indenture Trustee is hereby authorized to join in the execution of
any such supplemental indenture and to make any further appropriate agreements
and stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by an
Issuer Order, may, also without the consent of any of the Noteholders but with
prior notice to the Rating Agencies, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to, or changing in
any manner or eliminating any of the provisions of, this Indenture or of
modifying in any manner the rights of the Noteholders under this Indenture;
provided, however, that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Noteholder.
Section 9.02. Supplemental Indentures With Consent of Noteholders. The
Issuer and the Indenture Trustee, when authorized by an Issuer Order, also may,
with prior notice to the Rating Agencies and with the consent of the Noteholders
of not less than a majority of the Outstanding Amount of the Notes, by Act of
such Noteholders delivered to the Issuer and the Indenture Trustee, enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the provisions
of, this Indenture or of modifying in any manner the rights of the Noteholders
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Noteholder of each Outstanding Note affected
thereby:
(i) change the date of payment of any installment of
principal of or interest on any Note, or reduce the principal amount
thereof, the interest rate thereon or the Redemption Price with respect
thereto, change the provisions of this Indenture relating to the
application of collections on, or the proceeds of the sale of, the
Indenture Trust Estate
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to payment of principal of or interest on the Notes, or change any place
of payment where, or the coin or currency in which, any Note or the
interest thereon is payable, or impair the right to institute suit for
the enforcement of the provisions of this Indenture requiring the
application of funds available therefor, as provided in Article V, to
the payment of any such amount due on the Notes on or after the
respective due dates thereof (or, in the case of redemption, on or after
the Redemption Date);
(ii) reduce the percentage of the Outstanding Amount of the
Notes, the consent of the Noteholders of which is required for any such
supplemental indenture, or the consent of the Noteholders of which is
required for any waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences provided
for in this Indenture;
(iii) modify or alter the provisions of the proviso to the
definition of the term "Outstanding";
(iv) reduce the percentage of the Outstanding Amount of the
Notes required to direct the Indenture Trustee to direct the Issuer to
sell or liquidate the Indenture Trust Estate pursuant to Section 5.04;
(v) modify any provision of this Section except to increase
any percentage specified herein or to provide that certain additional
provisions of this Indenture or the other Basic Documents cannot be
modified or waived without the consent of the Noteholder of each
Outstanding Note affected thereby;
(vi) modify any of the provisions of this Indenture in such
manner as to affect the calculation of the amount of any payment of
interest or principal due on any Note on any Distribution Date
(including the calculation of any of the individual components of such
calculation) or to affect the rights of the Noteholders to the benefit
of any provisions for the mandatory redemption of the Notes contained
herein; or
(vii) permit the creation of any lien ranking prior to or on a
parity with the lien of this Indenture with respect to any part of the
Indenture Trust Estate or, except as otherwise permitted or contemplated
herein, terminate the lien of this Indenture on any property at any time
subject hereto or deprive any Noteholder of any Note of the security
provided by the lien of this Indenture.
It shall not be necessary for any Act of Noteholders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the Issuer and the Indenture Trustee of
any supplemental indenture pursuant to this Section, the Indenture Trustee shall
mail to the Noteholders of the Notes to which such amendment or supplemental
indenture relates a notice setting forth in general terms the substance of such
supplemental indenture. Any failure of the Indenture Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
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Section 9.03. Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modifications thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive, and
subject to Sections 6.01 and 6.02, shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Indenture Trustee may, but shall
not be obligated to, enter into any such supplemental indenture that affects the
Indenture Trustee's own rights, duties, liabilities or immunities under this
Indenture or otherwise.
Section 9.04. Effect of Supplemental Indenture. Upon the execution of
any supplemental indenture pursuant to the provisions hereof, this Indenture
shall be and be deemed to be modified and amended in accordance therewith with
respect to the Notes affected thereby, and the respective rights, limitations of
rights, obligations, duties, liabilities and immunities under this Indenture of
the Indenture Trustee, the Issuer and the Noteholders shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
Section 9.05. Conformity with Trust Indenture Act. Every amendment of
this Indenture and every supplemental indenture executed pursuant to this
Article IX shall conform to the requirements of the Trust Indenture Act as then
in effect so long as this Indenture shall then be qualified under the Trust
Indenture Act.
Section 9.06. Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture Trustee as to any matter
provided for in such supplemental indenture. If the Issuer or the Indenture
Trustee shall so determine, new Notes so modified as to conform, in the opinion
of the Indenture Trustee and the Issuer, to any such supplemental indenture may
be prepared and executed by the Issuer and authenticated and delivered by the
Indenture Trustee in exchange for Outstanding Notes.
ARTICLE X
REDEMPTION OF NOTES
Section 10.01. Redemption. The Indenture Trustee shall, upon receipt of
written notice from the Servicer pursuant to Section 6.01 of the Administration
Agreement, give prompt written notice to the Noteholders of the occurrence of
such event. In the event that the assets of the Trust are sold pursuant to
Section 6.01 of the Administration Agreement, that portion of the amounts on
deposit in the Trust Accounts to be distributed to the Noteholders shall be paid
to the Noteholders up to the Outstanding Amount of the Notes and all accrued and
unpaid interest thereon. If amounts are to be paid to Noteholders pursuant to
this Section 10.01, the notice of such event from the Indenture Trustee to the
Noteholders shall include notice of the redemption of Notes by application of
such amounts on the next Distribution Date which is not sooner than
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15 days after the date of such notice (the "Redemption Date"), whereupon all
such amounts shall be payable on the Redemption Date.
Section 10.02. Form of Redemption Notice. Notice of redemption under
Section 10.01 shall be given by the Indenture Trustee by first-class mail,
postage prepaid, or by facsimile, mailed or transmitted on or prior to the
applicable Redemption Date to each Noteholder, as of the close of business on
the Record Date preceding the applicable Redemption Date, at such Noteholder's
address or facsimile number appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price; and
(iii) the place where such Notes are to be surrendered for
payment of the Redemption Price (which shall be the office or agency of
the Issuer to be maintained as provided in Section 3.02).
Notice of redemption of the Notes shall be given by the Indenture
Trustee in the name and at the expense of the Issuer. Failure to give notice of
redemption, or any defect therein, to any Noteholder of any Note shall not
impair or affect the validity of the redemption of any other Note.
Section 10.03. Notes Payable on Redemption Date. The Notes or portions
thereof to be redeemed shall on the Redemption Date become due and payable at
the Redemption Price and (unless the Issuer shall default in the payment of the
Redemption Price) no interest shall accrue on the Redemption Price for any
period after the date to which accrued interest is calculated for purposes of
calculating the Redemption Price.
ARTICLE XI
MISCELLANEOUS
Section 11.01. Compliance Certificates and Opinions, etc. Upon any
application or request by the Issuer to the Indenture Trustee to take any action
under any provision of this Indenture, the Issuer shall furnish to the Indenture
Trustee and the Rating Agencies (i) an Officers' Certificate of the Issuer
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with, (ii) an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with and (iii) (if required by the TIA) an
Independent Certificate from a firm of certified public accountants meeting the
applicable requirements of this Section, except that, in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture, no additional
certificate or opinion need be furnished.
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(a) Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this indenture shall include:
(i) a statement that each signatory of such certificate or
opinion has read or has caused to be read such covenant or condition and
the definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory,
such signatory has made such examination or investigation as is
necessary to enable such signatory to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other property
or securities with the Indenture Trustee that is to be made the basis
for the release of any property or securities subject to the lien of
this Indenture, the Issuer shall, in addition to any obligation imposed
in Section 11.01(a) or elsewhere in this Indenture, furnish to the
Indenture Trustee and the Rating Agencies an Officers' Certificate of
the Issuer certifying or stating the opinion of each person signing such
certificate as to the fair value (within 90 days of such deposit) to the
Issuer of the Collateral or other property or securities to be so
deposited.
(ii) Whenever the Issuer is required to furnish to the
Indenture Trustee and the Rating Agencies an Officers' Certificate of
the Issuer certifying or stating the opinion of any signer thereof as to
the matters described in clause (i) above, the Issuer shall also deliver
to the Indenture Trustee an Independent Certificate as to the same
matters, if the fair value to the Issuer of the securities to be so
deposited and of all other such securities made the basis of any such
withdrawal or release since the commencement of the then-current fiscal
year of the Issuer, as set forth in the certificates delivered pursuant
to clause (i) above and this clause (ii), is 10% or more of the
Outstanding Amount of the Notes, but such a certificate need not be
furnished with respect to any securities so deposited, if the fair value
thereof to the Issuer as set forth in the related Officers' Certificate
is less than $25,000 or less than one percent of the Outstanding Amount
of the Notes.
(iii) Other than any property released as contemplated by
clause (v) below, whenever any property or securities are to be released
from the lien of this Indenture, the Issuer shall also furnish to the
Indenture Trustee an Officers' Certificate of the Issuer certifying or
stating the opinion of each person signing such certificate as to the
fair value (within 90 days of such release) of the property or
securities proposed to be released and stating that in the opinion of
such person the proposed release will not impair the security under this
Indenture in contravention of the provisions hereof.
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(iv) Whenever the Issuer is required to furnish to the
Indenture Trustee an Officers' Certificate of the Issuer certifying or
stating the opinion of any signer thereof as to the matters described in
clause (iii) above, the Issuer shall also furnish to the Indenture
Trustee an Independent Certificate as to the same matters if the fair
value of the property or securities and of all other property, other
than property as contemplated by clause (v) below, or securities
released from the lien of this Indenture since the commencement of the
then-current calendar year, as set forth in the certificates required by
clause (iii) above and this clause (iv), equals 10% or more of the
Outstanding Amount of the Notes, but such certificate need not be
furnished in the case of any release of property or securities if the
fair value thereof as set forth in the related Officers' Certificate is
less than $25,000 or less than one percent of the then Outstanding
Amount of the Notes.
(v) Notwithstanding Section 2.09 or any other provision of
this Section, the Issuer may, without compliance with the requirements
of the other provisions of this Section, (A) collect, liquidate, sell or
otherwise dispose of Trust Student Loans as and to the extent permitted
or required by the Basic Documents, (B) make cash payments out of the
Trust Accounts as and to the extent permitted or required by the Basic
Documents and (C) convey to the Depositor, the Servicer or another
eligible lender those specified Trust Student Loans as and to the extent
permitted or required by and in accordance with Section 8.04(c) hereof
and Section 6.01 of the Depositor Sale Agreement, Section 3.05 of the
Servicing Agreement or Section 3.11(d) of the Servicing Agreement,
respectively, so long as the Issuer shall deliver to the Indenture
Trustee every six months, commencing June 30, 2003, an Officers'
Certificate of the Issuer stating that all the dispositions of
Collateral described in clauses (A), (B) or (C) above that occurred
during the immediately preceding six calendar months were in the
ordinary course of the Issuer's business and that the proceeds thereof
were applied in accordance with the Basic Documents.
Section 11.02. Form of Documents Delivered to Indenture Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters, and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate of an Authorized Officer or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Servicer, the
Depositor, the Issuer or the Administrator, stating that the information with
respect to such factual matters is in the possession of the Servicer, the
Depositor, the Issuer or the Administrator, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
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Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application or
at the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to affect the Indenture Trustee's right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Article VI.
Section 11.03. Acts of Noteholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Noteholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Noteholders in person or by agents duly appointed in writing; and except as
herein otherwise expressly provided such action shall become effective when such
instrument or instruments are delivered to the Indenture Trustee, and, where it
is hereby expressly required, to the Issuer. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Noteholders signing such instrument or instruments. Proof
of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Section
6.01) conclusive in favor of the Indenture Trustee and the Issuer, if made in
the manner provided in this Section.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Noteholder of any Notes shall bind the Noteholder
of every Note issued upon registration of transfer thereof or in exchange
therefor or in lieu thereof, in respect of anything done, omitted or suffered to
be done by the Indenture Trustee or the Issuer in reliance thereon, whether or
not notation of such action is made upon such Note.
Section 11.04. Notices, etc., to Indenture Trustee, Issuer and Rating
Agencies. Any request, demand, authorization, direction, notice, consent, waiver
or Act of Noteholders or other documents provided or permitted by this Indenture
shall be in writing and if such request, demand, authorization, direction,
notice, consent, waiver or Act of Noteholders is to be made upon, given or
furnished to or filed with:
(a) The Indenture Trustee by any Noteholder, the Servicer, the
Administrator or by the Issuer shall be sufficient for every purpose hereunder
if made, given, furnished or filed in writing to or with the Indenture Trustee
at its Corporate Trust Office, or
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(b) The Issuer by the Indenture Trustee or by any Noteholder shall
be sufficient for every purpose hereunder if in writing and mailed, first-class,
postage prepaid, to the Issuer addressed to: SLM Private Credit Student Loan
Trust 2003-A, in care of the Trustee, Christiana Center/OPS4, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Department;
with copies to JPMorgan Chase Bank, 4 New York Plaza, 6th Floor, New York, New
York 10004, Attention: Structured Finance Services; SLM Private Credit Student
Loan Trust 2003-A, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Director, Corporate Finance Operations, or any other address previously
furnished in writing to the Indenture Trustee by the Issuer or the
Administrator. The Issuer shall promptly transmit any notice received by it from
the Noteholders to the Indenture Trustee.
Notices required to be given to the Rating Agencies by the Issuer, the
Indenture Trustee or the Trustee shall be in writing, personally delivered or
mailed by certified mail, return receipt requested, to (i) in the case of
Moody's, at the following address: ABS Monitoring Department, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, (ii) in the case of Standard & Poor's, at the
following address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Asset Backed Surveillance Department, 32nd Floor, and (iii) in the case of
Fitch, at the following address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention Municipal Structured Finance Group; or as to each of the
foregoing, at such other address as shall be designated by written notice to the
other parties.
Section 11.05. Notices to Noteholders; Waiver. Where this Indenture
provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Noteholder affected by such
event, at his address as it appears on the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Noteholders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Noteholder shall affect the sufficiency of such notice with
respect to other Noteholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by any Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Noteholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a result
of a strike, work stoppage or similar activity, it shall be impractical to mail
notice of any event to Noteholders when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Indenture Trustee shall be deemed to be a
sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies, failure
to give such notice shall not affect any other rights or obligations created
hereunder, and shall not under any circumstance constitute a Default.
49
Section 11.06. Alternate Payment and Notice Provisions. Notwithstanding
any provision of this Indenture or any of the Notes to the contrary, the Issuer
may enter into any agreement with any Noteholder providing for a method of
payment, or notice by the Indenture Trustee or any Paying Agent to such
Noteholder, that is different from the methods provided for in this Indenture
for such payments or notices. The Issuer will furnish to the Indenture Trustee a
copy of each such agreement and the Indenture Trustee will cause payments to be
made and notices to be given in accordance with such agreements.
Section 11.07. Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with another provision hereof that is
required to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such required provision shall control.
The provisions of TIA Sections 310 through 317 that impose duties on any
Person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
Section 11.08. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 11.09. Successors and Assigns. All covenants and agreements in
this Indenture and the Notes by the Issuer shall bind its successor and assigns,
whether so expressed or not. All agreements of the Indenture Trustee in this
Indenture shall bind the successors, co-trustees and agents (excluding any legal
representatives or accountants) of the Indenture Trustee.
Section 11.10. Separability. In case any provision in this Indenture or
in the Notes shall be invalid, illegal or unenforceable, the validity, legality,
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 11.11. Benefits of Indenture. Nothing in this Indenture or in
the Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, and the Noteholders, and any other party
secured hereunder, and any other Person with an ownership interest in any part
of the Indenture Trust Estate, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
Section 11.12. Legal Holidays. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the date on which nominally due, and no interest shall
accrue for the period from and after any such nominal date.
Section 11.13. Governing Law. THIS INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN Section5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
50
Section 11.14. Counterparts. This Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
Section 11.15. Recording of Indenture. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer and at its expense accompanied by an Opinion of Counsel
(which may be counsel to the Indenture Trustee or any other counsel reasonably
acceptable to the Indenture Trustee) to the effect that such recording is
necessary either for the protection of the Noteholders or any other Person
secured hereunder or for the enforcement of any right or remedy granted to the
Indenture Trustee under this Indenture.
Section 11.16. Trust Obligations. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Depositor, the
Administrator, the Servicer, the Trustee or the Indenture Trustee on the Notes
or under this Indenture or any certificate or other writing delivered in
connection herewith or therewith, against (i) the Indenture Trustee or the
Trustee in its individual capacity, (ii) any owner of a beneficial interest in
the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director or
employee of the Indenture Trustee or the Trustee in its individual capacity, any
holder or owner of a beneficial interest in the Issuer, the Trustee or the
Indenture Trustee or of any successor or assign thereof in its individual
capacity, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee and the Trustee have no such obligations
in their individual capacity) and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable law, for
any unpaid consideration for stock, unpaid capital contribution or failure to
pay any installment or call owing to such entity. For all purposes of this
Indenture, in the performance of any duties or obligations of the Issuer
hereunder, the Trustee shall be subject to, and entitled to the benefits of, the
terms and provisions of Article VI, VII and VIII of the Trust Agreement.
Section 11.17. No Petition. The Indenture Trustee, by entering into this
Indenture, and each Noteholder, by accepting a Note, hereby covenant and agree
that they shall not at any time institute against the Depositor or the Issuer,
or join in any institution against the Depositor or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency, receivership or liquidation
proceedings, or other proceedings under any United States Federal or state
bankruptcy or similar law in connection with any obligations relating to the
Notes, this Indenture or any of the other Basic Documents. The foregoing shall
not limit the rights of the Indenture Trustee to file any claim in, or otherwise
take any action with respect to, any insolvency proceeding that was instituted
against the Issuer by any Person other than the Indenture Trustee.
Section 11.18. Inspection. The Issuer agrees that, on reasonable prior
notice, it shall permit any representative of the Indenture Trustee, during the
Issuer's normal business hours, to examine all the books of account, records,
reports, and other papers of the Issuer, to make copies and extracts therefrom,
to cause such books to be audited by Independent certified public accountants,
and to discuss the Issuer's affairs, finances and accounts with the Issuer's
officers, employees, and Independent certified public accountants, all at such
reasonable times and as often as may be reasonably requested. The Indenture
Trustee shall and shall cause its representatives to hold in confidence all such
information obtained from such examination or inspection except to the extent
disclosure may be required by law (and all reasonable
51
applications for confidential treatment are unavailing) and except to the extent
that the Indenture Trustee may reasonably determine that such disclosure is
consistent with its obligations hereunder.
52
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused
this Indenture to be duly executed by their respective officers, thereunto duly
authorized and duly attested, all as of the day and year first above written.
SLM PRIVATE CREDIT STUDENT LOAN
TRUST 2003-A
By: CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, not in its individual
capacity but solely as Trustee
By: /s/ ▇▇▇▇ ▇ ▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇▇
Title: Vice President
JPMORGAN CHASE BANK, not in its individual
capacity but solely as Indenture Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Trust Officer
53
APPENDIX A-1
TO THE INDENTURE
Definitions and Usage
54
APPENDIX A-2
TO THE INDENTURE
Certain Terms and Provisions of
the Auction Rate Notes
ARTICLE I
DEFINITIONS
Except as provided below, all terms which are defined in Appendix A-1
shall have the same meanings in this Appendix A-2. In addition, the following
terms shall have the following respective meanings:
"All Hold Rate" shall mean the Applicable LIBOR Rate less 0.20%;
provided, that in no event shall the applicable All Hold Rate be greater than
the applicable Maximum Rate.
"Applicable LIBOR Rate" means, (a) for Auction Periods of 35 days or
less, One-Month LIBOR, (b) for Auction Periods of more than 35 days but less
than 91 days, Three-Month LIBOR, (c) for Auction Periods of more than 90 days
but less than 181 days, Six-Month LIBOR, and (d) for Auction Periods of more
than 180 days, One-Year LIBOR.
"Auction" shall mean the implementation of the Auction Procedures on an
Auction Date.
"Auction Agent" shall mean the Initial Auction Agent under the Initial
Auction Agent Agreement unless and until a Substitute Auction Agent Agreement
becomes effective, after which "Auction Agent" shall mean the Substitute Auction
Agent.
"Auction Agent Agreement" shall mean the Initial Auction Agent Agreement
unless and until a Substitute Auction Agent Agreement is entered into, after
which "Auction Agent Agreement" shall mean such Substitute Auction Agent
Agreement.
"Auction Agent Fee" has the meaning set forth in the Auction Agent
Agreement.
"Auction Date" shall mean, initially, April 16, 2003 with respect to the
Class A-3 Notes and April 29, 2003 with respect to the Class A-4 Notes, and
thereafter, the Business Day immediately preceding the first day of each Auction
Period for each respective Class, other than:
(a) each Auction Period commencing after the ownership of
the applicable Auction Rate Notes is no longer maintained as Book-Entry
Notes by the applicable Clearing Agency;
(b) each Auction Period commencing after and during the
continuance of a Payment Default; or
55
(c) each Auction Period commencing less than two Business
Days after the cure or waiver of a Payment Default.
Notwithstanding the foregoing, the Auction Date for one or more Auction
Periods may be changed pursuant to Section 2.02(h) of this Appendix A-2.
"Auction Note Interest Rate" shall mean the Variable Rate of interest
per annum borne by an Auction Rate Note for each Auction Period and determined
in accordance with the provisions of Sections 2.01 and 2.02 of this Appendix
A-2; provided, however, that in the event of a Payment Default, the Auction Note
Interest Rate shall equal the applicable Non-Payment Rate; provided, further,
however that such Auction Note Interest Rate shall in no event exceed the lesser
of the Student Loan Rate and the Maximum Rate.
"Auction Period" shall mean the period applicable to an Auction Rate
Note from the Business Day following the previous Auction Date to and including
the day before the next Interest Payment Date, which Auction Period (after the
Initial Period for such Class) initially shall consist generally of 28 days for
the Class A-3 Notes and the Class A-4 Notes, as the same may be adjusted
pursuant to Section 2.02(g) of this Appendix A-2.
"Auction Period Adjustment" shall mean an adjustment to the Auction
Period as provided in Section 2.02(g) of this Appendix A-2.
"Auction Procedures" shall mean the procedures set forth in Section
2.02(a) of this Appendix A-2 by which the Auction Rate is determined.
"Auction Rate" shall mean the rate of interest per annum that results
from implementation of the Auction Procedures and is determined as described in
Section 2.02(a)(iii)(B) of this Appendix A-2.
"Authorized Denominations" shall mean $50,000 and any integral multiple
thereof.
"Available Auction Rate Notes" has the meaning set forth in Section
2.02(a)(iii)(A)(1) of this Appendix A-2.
"Bid" has the meaning set forth in Section 2.02(a)(i)(A) of this
Appendix A-2.
"Bid Auction Rate" has the meaning set forth in Section 2.02(a)(iii)(A)
of this Appendix A-2.
"Bidder" has the meaning set forth in Section 2.02(a)(i)(A) of this
Appendix A-2.
"Bond Equivalent Yield" shall mean, in respect of any security the rate
for which is quoted in The Wall Street Journal on a bank discount basis, the
"bond equivalent yield" (expressed as a percentage) for such security which
appears on Telerate's United States Treasury and Money Market Composite Page
0223, rounded up to the nearest one one-hundredth of one percent.
56
"Broker-Dealer" shall mean ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. or any other broker or dealer (each as
defined in the Securities Exchange Act of 1934, as amended), commercial bank or
other entity permitted by law to perform the functions required of a
Broker-Dealer set forth in the Auction Procedures that (a) is a Clearing Agency
Participant (or an affiliate of a Clearing Agency Participant), (b) has been
appointed as such by the Issuer pursuant to Section 2.02(f) of this Appendix
A-2, and (c) has entered into a Broker-Dealer Agreement that is in effect on the
date of reference.
"Broker-Dealer Agreements" shall mean the agreements between the Auction
Agent and the Broker-Dealers, and approved by the Issuer, pursuant to which the
Broker-Dealers agree to participate in Auctions as set forth in the Auction
Procedures, as from time to time amended or supplemented. The Broker-Dealer
Agreements shall be in substantially the form of the Broker-Dealer Agreements,
dated as of March 13, 2003, among the Issuer, The Bank of New York, as Auction
Agent, and the initial Broker-Dealers.
"Broker-Dealer Fee" has the meaning set forth in the Auction Agent
Agreement.
"Cap Rate" shall mean, with respect to any Accrual Period applicable to
the Auction Rate Notes, the lesser of (i) the applicable Maximum Rate for the
related Auction Period and (ii) the Student Loan Rate in effect for the related
Auction Period.
"Carry-over Amount" shall mean, for any Accrual Period during which
interest is calculated at the Student Loan Rate, the excess, if any, of (a) the
amount of interest on an Auction Rate Note that would have accrued with respect
to the related Accrual Period at the lesser of (i) the applicable Auction Rate
and (ii) the Maximum Rate determined as if the Student Loan Rate were not a
component thereof over (b) the amount of interest on such Auction Rate Note
actually accrued with respect to such Auction Rate Note with respect to such
Accrual Period based on the Student Loan Rate, together with the unreduced
portion of any such excess from prior Accrual Periods; provided that any
reference to "principal" or "interest" in the Supplemental Indenture and in this
Appendix A-2 and the Auction Rate Notes shall not include within the meanings of
such words any Carry-over Amount or any interest accrued on any Carry-over
Amount.
"Commercial Paper Rate (90-day)" shall mean the rate determined at the
end of each calendar quarter using the daily average of that quarter's bond
equivalent 3-Month Financial Commercial Paper rates. The daily bond equivalent
rates are calculated from the 3-Month Financial Commercial Paper discount rates
published in the Federal Reserve's H.15 report. On weekends, holidays, and any
other day when no H.15 rates are available, the rate from the most recent
published date is used.
"Effective Interest Rate" shall mean, with respect to any Trust Student
Loan, the interest rate per annum payable by the borrower as of the last day of
the calendar quarter borne by such Trust Student Loan after giving effect to any
reduction in such interest rate pursuant to borrower incentives, (a) less all
accrued rebate fees on such Trust Student Loan paid during such calendar quarter
expressed as a percentage per annum and (b) plus all accrued Interest Subsidy
Payments and Special Allowance Payments applicable to such Trust Student Loan
during such calendar quarter expressed as a percentage per annum.
57
"Eligible Carry-Over Make-Up Amount" shall mean, with respect to each
Accrual Period relating to the Auction Rate Notes as to which, as of the first
day of such Accrual Period, there is any unpaid Carry-over Amount, an amount
equal to the lesser of (a) interest computed on the principal balance of the
Auction Rate Notes in respect to such Accrual Period at a per annum rate equal
to the excess, if any, of the Student Loan Rate over the Auction Rate, together
with the unreduced portion of any such excess from prior Accrual Periods and (b)
the aggregate Carry-over Amount remaining unpaid as of the first day of such
Accrual Period together with interest accrued and unpaid thereon through the end
of such Accrual Period.
"Existing Owner" shall mean (a) with respect to and for the purpose of
dealing with the Auction Agent in connection with an Auction, a Person who is a
Broker-Dealer listed in the Existing Owner Registry at the close of business on
the Business Day immediately preceding the Auction Date for such Auction and (b)
with respect to and for the purpose of dealing with the Broker-Dealers in
connection with an Auction, a Person who is a beneficial owner of Auction Rate
Notes.
"Existing Owner Registry" shall mean the registry of Persons who are
owners of the Auction Rate Notes, maintained by the Auction Agent as provided in
the Auction Agent Agreement.
"Expense Percentage" shall mean the fees payable to the Administrator,
the Servicer, the Broker-Dealers and the Auction Agent as a percentage of the
total principal balance of the Notes outstanding.
"Hold Order" has the meaning set forth in Section 2.02(a)(i)(A) of this
Appendix A-2.
"Initial Auction Agent" shall mean The Bank of New York, a New York
banking corporation, its successors and assigns.
"Initial Auction Agent Agreement" shall mean, collectively, the Auction
Agent Agreement dated as of March 13, 2003, by and among the Issuer, the
Indenture Trustee and the Initial Auction Agent, including any amendment thereof
or supplement thereto.
"Initial Period" shall mean, as to Auction Rate Notes, the period
commencing on the Closing Date and continuing through the day immediately
preceding the Initial Rate Adjustment Date for such Auction Rate Notes.
"Initial Rate" shall mean 1.28% for the Class A-3 Notes and 1.26% for
the Class A-4 Notes.
"Initial Rate Adjustment Date" shall mean the day immediately following
the Initial Auction Date for each class of Auction Rate Notes.
"Interest Rate Adjustment Date" shall mean the date on which an Auction
Note Interest Rate is effective, and shall mean, with respect to the Auction
Rate Notes, the date of commencement of each Auction Period.
58
"Interest Rate Determination Date" shall mean, with respect to the
Auction Rate Notes, the Auction Date, or if no Auction Date is applicable to
such Class, the Business Day immediately preceding the date of commencement of
an Auction Period.
"Maximum Rate" means the least of (a) either (i) the Applicable LIBOR
Rate plus 1.50% (if the ratings assigned by ▇▇▇▇▇'▇, S&P and Fitch to the
Auction Rate Notes are "Aaa," "AAA" and "AAA," respectively, or better) or (ii)
the Applicable LIBOR Rate plus 2.50% (if any one of the ratings assigned by
▇▇▇▇▇'▇, S&P and Fitch to the Auction Rate Notes is less than "Aaa," "AAA" and
"AAA," respectively, and greater than or equal to "A3," "A-" and "A-,"
respectively), or (iii) the Applicable LIBOR Rate plus 3.50% (if any one of the
ratings assigned by ▇▇▇▇▇'▇, S&P and Fitch to the Auction Rate Notes is less
than "A3," "A-" and "A-" respectively), (b) 18% and (c) the highest rate the
Issuer may legally pay, from time to time, as interest on the Auction Rate
Notes. For purposes of the Auction Agent and the Auction Procedures, the ratings
referred to in this definition shall be the last ratings of which the Auction
Agent has been given written notice pursuant to the Auction Agent Agreement.
"Non-Payment Rate" shall mean One-Month LIBOR plus 1.50%.
"One-Month LIBOR," "Three-Month LIBOR," "Six-Month LIBOR" or "One-Year
LIBOR," shall mean the offered rate, as determined by the Auction Agent or
Indenture Trustee, as applicable, of the Applicable LIBOR Based Rate for United
States dollar deposits which appears on Telerate Page 3750, as reported by
Moneyline Telerate Service (or such other page as may replace Telerate Page 3750
for the purpose of displaying comparable rates) as of approximately 11:00 a.m.,
London time, on the LIBOR Determination Date; provided, that if on any
calculation date, no rate appears on Telerate Page 3750 as specified above, the
Auction Agent or Indenture Trustee, as applicable, shall determine the
arithmetic mean of the offered quotations of four major banks in the London
interbank market, for deposits in United States dollars for the respective
periods specified above to the banks in the London interbank market as of
approximately 11:00 a.m., London time, on such calculation date and in a
principal amount of not less than $1,000,000 that is representative of a single
transaction in such market and at such time, unless fewer than two such
quotations are provided, in which case, the Applicable LIBOR Based Rate shall be
the arithmetic mean of the offered quotations that leading banks in New York
City selected by the Auction Agent or Indenture Trustee, as applicable, are
quoting on the relevant LIBOR Determination Date for loans in United States
dollars to leading European banks in a principal amount of not less than
$1,000,000 that is representative of a single transaction in such market at such
time. All percentages resulting from such calculations shall be rounded upwards,
if necessary, to the nearest one-hundredth of one percent.
"Order" has the meaning set forth in Section 2.02(a)(i)(A) of this
Appendix A-2.
"Payment Default" shall mean, with respect to the Auction Rate Notes,
(a) a default in the due and punctual payment of any installment of interest at
the applicable Note Rate on such Auction Rate Notes, or (b) a default in the due
and punctual payment of any interest on and principal of such Auction Rate Notes
at their maturity.
"Potential Owner" shall mean any Person (including an Existing Owner
that is (a) a Broker-Dealer when dealing with the Auction Agent and (b) a
potential beneficial owner when
59
dealing with a Broker-Dealer) who may be interested in acquiring Auction Rate
Notes (or, in the case of an Existing Owner thereof, an additional principal
amount of Auction Rate Notes).
"PSA" shall mean the Public Securities Association, its successors and
assigns.
"S&P" shall mean Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., its successors and assigns.
"Sell Order" has the meaning set forth in Section 2.02(a)(i)(A) of this
Appendix A-2.
"Student Loan Rate" shall mean, respect to any Accrual Period applicable
to the Auction Rate Notes, the rate of interest per annum (rounded to the next
highest one-hundredth of one percent) equal to (i) the weighted average
Effective Interest Rate of the Trust Student Loans for the calendar quarter
immediately preceding such Accrual Period, as determined by the Issuer on the
last day of such calendar quarter, less (ii) the Expense Percentage, as
determined by the Issuer on the last day of each calendar year. The
determinations made by the Issuer in (b)(i) and (ii) of this definition of
"Student Loan Rate" shall be given in writing to the Auction Agent, the
Indenture Trustee and the Broker-Dealers immediately upon their respective
calculation dates.
"Submission Deadline" shall mean 1:00 p.m., eastern time, on any Auction
Date or such other time on any Auction Date by which the Broker-Dealers are
required to submit Orders to the Auction Agent as specified by the Auction Agent
from time to time.
"Submitted Bid" has the meaning set forth in Section 2.02(a)(iii)(A) of
this Appendix A-2.
"Submitted Hold Order" has the meaning set forth in Section
2.02(a)(iii)(A) of this Appendix A-2.
"Submitted Order" has the meaning set forth in Section 2.02(a)(iii)(A)
of this Appendix A-2.
"Submitted Sell Order" has the meaning set forth in Section
2.02(a)(iii)(A) of this Appendix A-2.
"Substitute Auction Agent" shall mean the Person with whom the Issuer
and the Indenture Trustee enter into a Substitute Auction Agent Agreement.
"Substitute Auction Agent Agreement" shall mean an auction agent
agreement containing terms substantially similar to the terms of the Initial
Auction Agent Agreement, whereby a Person having the qualifications required by
Section 2.02(e) of this Appendix A-2 agrees with the Indenture Trustee and the
Issuer to perform the duties of the Auction Agent under this Appendix A-2.
"Sufficient Bids" has the meaning set forth in Section 2.02(a)(iii)(A)
of this Appendix A-2.
60
"Variable Rate" shall mean the variable rate of interest per annum,
including the Initial Rate, borne by each Class of Auction Rate Notes during the
Initial Period for such Class, and each Accrual Period thereafter as such rate
of interest is determined in accordance with the provisions of Article II of
this Appendix A-2.
ARTICLE II
TERMS AND ISSUANCE
Section 2.01 Auction Rate and Carry-Over Amounts. During the Initial
Period, each Class of Auction Rate Notes shall bear interest at the Initial Rate
for such Class. Thereafter, and except with respect to an Auction Period
Adjustment, the Auction Rate Notes shall bear interest at an Auction Note
Interest Rate based on a 28-day Auction Period for the Auction Rate Notes, as
determined pursuant to this Section 2.01 and Section 2.02 of this Appendix A-2.
For the Auction Rate Notes during the Initial Period and each Auction
Period thereafter, interest at the applicable Auction Rate Notes Interest Rate
shall accrue daily and shall be computed for the actual number of days elapsed
on the basis of a year consisting of 360 days.
The Auction Note Interest Rate to be borne by the Auction Rate Notes
after such Initial Period for each Auction Period until an Auction Period
Adjustment, if any, shall be determined as described below. Each such Auction
Period after the Initial Period shall commence on and include the day following
the expiration of the immediately preceding Auction Period and terminate on and
include the third Business Day of the following fourth week in the case of the
Class A-3 Notes and the Class A-4 Notes; provided, however, that in the case of
the Auction Period that immediately follows the Initial Period for the Auction
Rate Notes, such Auction Period shall commence on the Initial Rate Adjustment
Date. The Auction Note Interest Rate of the Auction Rate Notes for each Auction
Period shall be the Auction Rate in effect for such Auction Period as determined
in accordance with Section 2.02(a) of this Appendix A-2; provided that if, on
any Interest Rate Determination Date, an Auction is not held for any reason,
then the Auction Note Interest Rate on such Auction Rate Notes for the next
succeeding Auction Period shall be the applicable Cap Rate.
Notwithstanding the foregoing:
(a) if the ownership of an Auction Rate Note is no longer
maintained as a Book-Entry Note, the Auction Note Interest Rate on the
Auction Rate Notes for any Accrual Period commencing after the delivery
of certificates representing Auction Rate Notes pursuant to this
Indenture shall equal the Cap Rate; or
(b) if a Payment Default shall have occurred, the Auction
Note Interest Rate on the Auction Rate Notes for the Accrual Period
commencing on or immediately after such Payment Default, and for each
Accrual Period thereafter, to and including the Accrual Period, if any,
during which, or commencing less than two Business Days after, such
Payment Default is cured, shall equal the applicable Non-Payment Rate on
the first day of each such Accrual Period.
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In accordance with Section 2.02(a)(iii)(B) and (C) of this Appendix A-2,
the Auction Agent shall promptly give written notice to the Indenture Trustee
and the Issuer of each Auction Note Interest Rate (unless the Auction Note
Interest Rate is the applicable Non-Payment Rate) and the Maximum Rate when such
rate is not the Auction Note Interest Rate, applicable to the Auction Rate
Notes. The Indenture Trustee shall, upon request, notify the Noteholders and the
Issuer of Auction Rate Notes of the applicable Auction Note Interest Rate
applicable to such Auction Rate Notes for each Auction Period not later than the
third Business Day of such Auction Period. Notwithstanding any other provision
of the Auction Rate Notes or this Indenture and except for the occurrence of a
Payment Default, interest payable on the Auction Rate Notes for an Auction
Period shall never exceed for such Auction Period the amount of interest payable
at the applicable Maximum Rate in effect for such Auction Period.
If the Auction Rate for the Auction Rate Notes is greater than the
Student Loan Rate, then the Variable Rate applicable to such Auction Rate Notes
for that Accrual Period will be the Student Loan Rate and the Issuer shall
determine the Carry-over Amount, if any, with respect to such Auction Rate Notes
for such Accrual Period.
Such Carry-over Amount shall bear interest calculated at a rate equal to
One-Month LIBOR (as determined by the Issuer, provided the Indenture Trustee has
received notice of One-Month LIBOR from the Issuer, and if the Indenture Trustee
shall not have received such notice from the Issuer, then as determined by the
Indenture Trustee) from the Distribution Date for the Accrual Period with
respect to which such Carry-over Amount was calculated, until paid. Any payment
in respect of Carry-over Amount shall be applied, first, to any accrued interest
payable thereon and, second, in reduction of such Carry-over Amount. For
purposes of this Indenture and this Appendix A-2, any reference to "principal"
or "interest" herein shall not include within the meaning of such words
Carry-over Amount or any interest accrued on any such Carry-over Amount. Such
Carry-over Amount shall be separately calculated for each Auction Rate Note by
the Issuer during such Accrual Period in sufficient time for the Indenture
Trustee to give notice to each Noteholder of such Carry-over Amount as required
in the next succeeding sentence. Not less than four days before the Distribution
Date for an Accrual Period with respect to which such Carry-over Amount has been
calculated by the Issuer, the Indenture Trustee shall give written notice to
each Noteholder the Auction Agent and the Issuer, in the form provided by the
Issuer, of the Carry-over Amount applicable to each Auction Rate Note, which
written notice may accompany the payment of interest made to the Noteholder on
such Distribution Date. Such notice shall state, in addition to such Carry-over
Amount, that, unless and until an Auction Rate Note has been redeemed (other
than by optional redemption), after which all accrued Carry-over Amounts (and
all accrued interest thereon) that remains unpaid shall be canceled and no
Carry-over Amount (and interest accrued thereon) shall be paid with respect to
such Auction Rate Note, (a) the Carry-over Amount (and interest accrued thereon
calculated at a rate equal to One-Month LIBOR) shall be paid by the Indenture
Trustee pursuant to an Issuer Order on an Auction Rate Note on the earliest of
(i) the date of defeasance of the Auction Rate Notes or (ii) the first occurring
Distribution Date with respect to the Auction Rate Note (or on the date of any
such optional redemption) if and to the extent that (A) the Eligible Carry-over
Make-Up Amount with respect to such subsequent Accrual Period is greater than
zero, and (B) moneys are available pursuant to the terms of the Indenture in an
amount sufficient to pay all or a portion of such Carry-over Amount (and
interest accrued thereon), and (b) interest shall accrue on the Carry-over
62
Amount at a rate equal to One-Month LIBOR until such Carry-over Amount is paid
in full or is cancelled.
The Carry-over Amount (and interest accrued thereon until the date of
payment) for Auction Rate Notes shall be allocated to the Auction Rate Notes by
the Indenture Trustee pursuant to an Issuer Order on Outstanding Auction Rate
Notes on the first occurring Quarterly Distribution Date if and to the extent
that (i) the Eligible Carry-over Make-Up Amount is greater than zero, and (ii)
on such Quarterly Distribution Date there are sufficient moneys available after
all distributions or allocations with a higher priority have been made and paid
to the Auction Rate Notes on the succeeding Distribution Date (or on such
Quarterly Distribution Date if it is a Distribution Date for such Auction Rate
Notes). Any Carry-over Amount (and any interest accrued thereon) on any Auction
Rate Note which is due and payable on a Quarterly Distribution Date, which
Auction Rate Note is to be allocated principal (other than by optional
redemption) on said Distribution Date, shall be paid to the Noteholder thereof
on the related Distribution Date to the extent that moneys are available
therefor in accordance with the provisions of this Appendix A-2; provided,
however, that any Carry-over Amount (and any interest accrued thereon) which is
not yet due and payable on said Distribution Date shall be cancelled with
respect to said Auction Rate Note that is to be allocated principal (other than
by optional redemption) on said Quarterly Distribution Date and shall not be
paid on any succeeding Distribution Date. To the extent that any portion of the
Carry-over Amount (and any interest accrued thereon) remains unpaid after
payment of a portion thereof, such unpaid portion shall be paid in whole or in
part as required hereunder until fully allocated by the Indenture Trustee on the
next occurring Quarterly Distribution Date or Dates, as necessary, if and to the
extent that the conditions in the second preceding sentence are satisfied. On
any Distribution Date on which the Indenture Trustee pays only a portion of the
Carry-over Amount (and any interest accrued thereon) on Auction Rate Notes, the
Indenture Trustee shall give written notice in the manner set forth in the
immediately preceding paragraph to the Noteholder of such Auction Rate Note
receiving such partial payment of the Carry-over Amount remaining unpaid on such
Auction Rate Note.
The Quarterly Distribution Date or other date on which such Carry-over
Amount (or any interest accrued thereon) for Auction Rate Notes shall be
allocated shall be determined by the Indenture Trustee in accordance with the
provisions of the immediately preceding paragraph. Any payment of Carry-over
Amounts (and interest accrued thereon) shall reduce the amount of Eligible
Carry-over Make-up Amount.
In the event that the Auction Agent no longer determines, or fails to
determine, when required, the Auction Note Interest Rate with respect to Auction
Rate Notes, or, if for any reason such manner of determination shall be held to
be invalid or unenforceable, the Auction Note Interest Rate for the next
succeeding Auction Period, for Auction Rate Notes shall be the applicable Cap
Rate as determined by the Auction Agent for such next succeeding Auction Period,
and if the Auction Agent shall fail or refuse to determine the Cap Rate, the Cap
Rate shall be determined by the securities dealer appointed by the Issuer
capable of making such a determination in accordance with the provisions of this
Appendix A-2 and written notice of such determination shall be given by such
securities dealer to the Indenture Trustee.
Section 2.02 Auction Rate.
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(a) Determining the Auction Rate. By purchasing Auction Rate Notes,
whether in an Auction or otherwise, each purchaser of the Auction Rate Notes, or
its Broker-Dealer, must agree and shall be deemed by such purchase to have
agreed (x) to participate in Auctions on the terms described herein, (y) to have
its beneficial ownership of the Auction Rate Notes maintained at all times as
Book-Entry Notes for the account of its Clearing Agency Participant, which in
turn will maintain records of such beneficial ownership and (z) to authorize
such Clearing Agency Participant to disclose to the Auction Agent such
information with respect to such beneficial ownership as the Auction Agent may
request.
So long as the ownership of Auction Rate Notes is maintained as
Book-Entry Notes by the Clearing Agency, an Existing Owner may sell, transfer or
otherwise dispose of Auction Rate Notes only pursuant to a Bid or Sell Order
placed in an Auction or otherwise sell, transfer or dispose of Auction Rate
Notes through a Broker-Dealer, provided that, in the case of all transfers other
than pursuant to Auctions, such Existing Owner, its Broker-Dealer or its
Clearing Agency Participant advises the Auction Agent of such transfer. Auctions
shall be conducted on each Auction Date, if there is an Auction Agent on such
Auction Date, in the following manner:
(i) (A) Prior to the Submission Deadline on each Auction
Date;
(1) each Existing Owner of Auction Rate Notes may
submit to a Broker-Dealer by telephone or otherwise any
information as to:
a. the principal amount of Outstanding
Auction Rate Notes, if any, owned by such Existing Owner
which such Existing Owner desires to continue to own
without regard to the Auction Note Interest Rate for the
next succeeding Auction Period;
b. the principal amount of Outstanding
Auction Rate Notes, if any, which such Existing Owner
offers to sell if the Auction Note Interest Rate for the
next succeeding Auction Period shall be less than the
rate per annum specified by such Existing Owner; and/or
c. the principal amount of Outstanding
Auction Rate Notes, if any, owned by such Existing Owner
which such Existing Owner offers to sell without regard
to the Auction Note Interest Rate for the next
succeeding Auction Period;
and
(2) one or more Broker-Dealers may contact Potential
Owners to determine the principal amount of Auction Rate Notes
which each Potential Owner offers to purchase, if the Auction
Note Interest Rate for the next succeeding Auction Period shall
not be less than the rate per annum specified by such Potential
Owner.
The statement of an Existing Owner or a Potential Owner referred to in
(1) or (2) of this paragraph (A) is herein referred to as an "Order," and each
Existing Owner and each Potential Owner placing an Order is herein referred to
as a "Bidder"; an Order described in clause (1)a. is
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herein referred to as a "Hold Order"; an Order described in clauses (1)b. and
(2) is herein referred to as a "Bid"; and an Order described in clause (1)c. is
herein referred to as a "Sell Order."
(B) (1) Subject to the provisions of Section
2.02(a)(ii) of this Appendix A-2, a Bid by an Existing Owner
shall constitute an irrevocable offer to sell:
a. the principal amount of Outstanding
Auction Rate Notes specified in such Bid if the Auction
Note Interest Rate determined as provided in this
Section 2.02(a) shall be less than the rate specified
therein; or
b. such principal amount, or a lesser
principal amount of Outstanding Auction Rate Notes to be
determined as set forth in Section 2.02(a)(iv)(A)(4) of
this Appendix A-2, if the Auction Note Interest Rate
determined as provided in this Section 2.02(a) shall be
equal to the rate specified therein; or
c. such principal amount, or a lesser
principal amount of Outstanding Auction Rate Notes to be
determined as set forth in Section 2.02(a)(iv)(B)(3) of
this Appendix A-2, if the rate specified therein shall
be higher than the applicable Maximum Rate and
Sufficient Bids have not been made.
(2) Subject to the provisions of Section 2.02(a)(ii)
of this Appendix A-2, a Sell Order by an Existing Owner shall
constitute an irrevocable offer to sell:
a. the principal amount of Outstanding
Auction Rate Notes specified in such Sell Order; or
b. such principal amount, or a lesser
principal amount of Outstanding Auction Rate Notes set
forth in Section 2.02(a)(iv)(B)(3) of this Appendix A-2,
if Sufficient Bids have not been made.
(3) Subject to the provisions of Section 2.02(a)(ii)
of this Appendix A-2, a Bid by a Potential Owner shall
constitute an irrevocable offer to purchase:
a. the principal amount of Outstanding
Auction Rate Notes specified in such Bid if the Auction
Note Interest Rate determined as provided in this
Section 2.02(a) shall be higher than the rate specified
in such Bid; or
b. such principal amount, or a lesser
principal amount of Outstanding Auction Rate Notes set
forth in Section 2.02(a)(iv)(A)(5) of this Appendix A-2,
if the Auction Note Interest Rate determined as provided
in this Section 2.02(a) shall be equal to the rate
specified in such Bid.
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(ii) (A) Each Broker-Dealer shall submit in writing to the
Auction Agent prior to the Submission Deadline on each Auction Date all
Orders obtained by such Broker-Dealer and shall specify with respect to
each such Order:
(1) the name of the Bidder placing such Order;
(2) the aggregate principal amount of Auction Rate
Notes that are the subject of such Order;
(3) to the extent that such Bidder is an Existing
Owner:
a. the principal amount of Auction Rate
Notes, if any, subject to any Hold Order placed by such
Existing Owner;
b. the principal amount of Auction Rate
Notes, if any, subject to any Bid placed by such
Existing Owner and the rate specified in such Bid; and
c. the principal amount of Auction Rate
Notes, if any, subject to any Sell Order placed by such
Existing Owner;
and
(4) to the extent such Bidder is a Potential Owner,
the rate specified in such Potential Owner's Bid.
(B) If any rate specified in any Bid contains more than
three figures to the right of the decimal point, the Auction Agent shall
round such rate up to the next higher one thousandth of 1%.
(C) If an Order or Orders covering all Outstanding Auction
Rate Notes owned by an Existing Owner is not submitted to the Auction
Agent prior to the Submission Deadline, the Auction Agent shall deem a
Hold Order to have been submitted on behalf of such Existing Owner
covering the principal amount of Outstanding Auction Rate Notes owned by
such Existing Owner and not subject to an Order submitted to the Auction
Agent.
(D) Neither the Issuer, the Indenture Trustee nor the
Auction Agent shall be responsible for any failure of a Broker-Dealer to
submit an Order to the Auction Agent on behalf of any Existing Owner or
Potential Owner.
(E) If any Existing Owner submits through a Broker-Dealer to
the Auction Agent one or more Orders covering in the aggregate more than
the principal amount of Outstanding Auction Rate Notes owned by such
Existing Owner, such Orders shall be considered valid as follows and in
the following order of priority:
(1) All Hold Orders shall be considered valid, but
only up to the aggregate principal amount of Outstanding Auction
Rate Notes owned by such
66
Existing Owner, and if the aggregate principal amount of Auction
Rate Notes subject to such Hold Orders exceeds the aggregate
principal amount of Auction Rate Notes owned by such Existing
Owner, the aggregate principal amount of Auction Rate Notes
subject to each such Hold Order shall be reduced pro rata so
that the aggregate principal amount of Auction Rate Notes
subject to such Hold Order equals the aggregate principal amount
of Outstanding Auction Rate Notes owned by such Existing Owner.
(2) a. Any Bid shall be considered valid up to an
amount equal to the excess of the principal amount of
Outstanding Auction Rate Notes owned by such Existing Owner over
the aggregate principal amount of Auction Rate Notes subject to
any Hold Order referred to in clause (A) of this paragraph (ii);
b. subject to subclause (1) of this clause
(E), if more than one Bid with the same rate is
submitted on behalf of such Existing Owner and the
aggregate principal amount of Outstanding Auction Rate
Notes subject to such Bids is greater than such excess,
such Bids shall be considered valid up to an amount
equal to such excess;
c. subject to subclauses (1) and (2) of
this clause (E), if more than one Bid with different
rates are submitted on behalf of such Existing Owner,
such Bids shall be considered valid first in the
ascending order of their respective rates until the
highest rate is reached at which such excess exists and
then at such rate up to the amount of such excess; and
d. in any such event, the amount of
Outstanding Auction Rate Notes, if any, subject to Bids
not valid under this clause (E) shall be treated as the
subject of a Bid by a Potential Owner at the rate
therein specified; and
(3) All Sell Orders shall be considered valid up to
an amount equal to the excess of the principal amount of
Outstanding Auction Rate Notes owned by such Existing Owner over
the aggregate principal amount of Auction Rate Notes subject to
Hold Orders referred to in clause (1) of this paragraph (v) and
valid Bids referred to in clause (2) of this paragraph (E).
(F) If more than one Bid for Auction Rate Notes is submitted
on behalf of any Potential Owner, each Bid submitted shall be a separate
Bid with the rate and principal amount therein specified.
(G) An Existing Owner that offers to purchase additional
Auction Rate Notes is, for purposes of such offer, treated as a
Potential Owner.
(H) Any Bid or Sell Order submitted by an Existing Owner
covering an aggregate principal amount of Auction Rate Notes not equal
to an Authorized Denomination shall be rejected and shall be deemed a
Hold Order. Any Bid submitted by a Potential Owner covering an aggregate
principal amount of Auction Rate Notes not equal to an Authorized
Denomination shall be rejected.
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(I) Any Bid specifying a rate higher than the applicable
Maximum Rate will (1) be treated as a Sell Order if submitted by an
Existing Owner and (2) not be accepted if submitted by a Potential
Owner.
(J) Any Order submitted in an Auction by a Broker-Dealer to
the Auction Agent prior to the Submission Deadline on any Auction Date
shall be irrevocable.
(iii) (A) Not earlier than the Submission Deadline on each Auction
Date, the Auction Agent shall assemble all valid Orders submitted or deemed
submitted to it by the Broker-Dealers (each such Order as submitted or deemed
submitted by a Broker-Dealer being herein referred to individually as a
"Submitted Hold Order," a "Submitted Bid" or a "Submitted Sell Order," as the
case may be, or as a "Submitted Order," and collectively as "Submitted Hold
Orders," "Submitted Bids" or "Submitted Sell Orders," as the case may be, or as
"Submitted Orders") and shall determine:
(1) the excess of the total principal amount of
Outstanding Auction Rate Notes over the sum of the aggregate
principal amount of Outstanding Auction Rate Notes subject to
Submitted Hold Orders (such excess being herein referred to as
the "Available Auction Rate Notes"), and
(2) from the Submitted Orders whether:
a. the aggregate principal amount of
Outstanding Auction Rate Notes subject to Submitted Bids
by Potential Owners specifying one or more rates equal
to or lower than the applicable Maximum Rate;
exceeds or is equal to the sum of:
b. the aggregate principal amount of
Outstanding Auction Rate Notes subject to Submitted Bids
by Existing Owners specifying one or more rates higher
than the applicable Maximum Rate; and
c. the aggregate principal amount of
Outstanding Auction Rate Notes subject to Submitted Sell
Orders;
(in the event such excess or such equality exists, other
than because all of the Outstanding Auction Rate Notes are
subject to Submitted Hold Orders, such Submitted Bids described
in subclause a. above shall be referred to collectively as
"Sufficient Bids"); and
(3) if Sufficient Bids exist, the Bid Auction Rate,
which shall be the lowest rate specified in such Submitted Bids
such that if:
a. (x) each Submitted Bid from Existing
Owners specifying such lowest rate and (y) all other
Submitted Bids from Existing Owners specifying lower
rates were rejected, thus entitling such Existing Owners
to continue to own the principal amount of Auction Rate
Notes subject to such Submitted Bids; and
68
b. (x) each such Submitted Bid from
Potential Owners specifying such lowest rate and (y) all
other Submitted Bids from Potential Owners specifying
lower rates were accepted;
the result would be that such Existing Owners described
in subclause a. above would continue to own an aggregate
principal amount of Outstanding Auction Rate Notes which, when
added to the aggregate principal amount of Outstanding Auction
Rate Notes to be purchased by such Potential Owners described in
subclause b. above, would equal not less than the Available
Auction Rate Notes.
(B) Promptly after the Auction Agent has made the
determinations pursuant to Section 2.02(a)(iii)(A) of this Appendix A-2,
the Auction Agent shall advise the Indenture Trustee, the Broker-Dealers
and the Issuer of the Student Loan Rate, Maximum Rate and the All Hold
Rate and the components thereof on the Auction Date. Based on such
determinations, the Auction Rate for the next succeeding Accrual Period
will be established as follows:
(1) if Sufficient Bids exist, that the Auction Rate
for the next succeeding Auction Period shall be equal to the Bid
Auction Rate so determined;
(2) if Sufficient Bids do not exist (other than
because all of the Outstanding Auction Rate Notes are subject to
Submitted Hold Orders), that the Auction Rate for the next
succeeding Auction Period shall be equal to the applicable
Maximum Rate; or
(3) if all Outstanding Auction Rate Notes are
subject to Submitted Hold Orders, that the Auction Rate for the
next succeeding Auction Period shall be equal to the applicable
All Hold Rate.
(C) Promptly after the Auction Agent has determined the
Auction Rate, the Auction Agent shall determine and advise the Indenture
Trustee of the Auction Note Interest Rate, which rate shall be the least
of (x) the Auction Rate, (y) the applicable Maximum Rate and (z) the
Student Loan Rate.
(iv) Existing Owners shall continue to own the principal amount of
Auction Rate Notes that are subject to Submitted Hold Orders. If the Student
Loan Rate is equal to or greater than the Bid Auction Rate and if Sufficient
Bids have been received by the Auction Agent, the Bid Auction Rate will be the
Auction Note Interest Rate, and Submitted Bids and Submitted Sell Orders will be
accepted or rejected and the Auction Agent will take such other action as
described below in subparagraph (A).
If the Maximum Rate is less than the Auction Rate, the Maximum Rate will
be the Auction Note Interest Rate. If the Auction Agent has not received
Sufficient Bids (other than because all of the Outstanding Auction Rate Notes
are subject to Submitted Hold Orders), the Auction Note Interest Rate will be
the applicable Maximum Rate. In any of the cases described above, Submitted
Orders will be accepted or rejected and the Auction Agent will take such other
action as described below in subparagraph (B).
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(A) If Sufficient Bids have been made and the Maximum Rate
is equal to or greater than the Bid Auction Rate (in which case the
Auction Note Interest Rate shall be the Bid Auction Rate), all Submitted
Sell Orders shall be accepted and, subject to the provisions of clauses
(4) and (5) of this Section 2.02(a)(iv), Submitted Bids shall be
accepted or rejected as follows in the following order of priority, and
all other Submitted Bids shall be rejected:
(1) Existing Owners' Submitted Bids specifying any
rate that is higher than the Auction Note Interest Rate shall be
accepted, thus requiring each such Existing Owner to sell the
aggregate principal amount of Auction Rate Notes subject to such
Submitted Bids;
(2) Existing Owners' Submitted Bids specifying any
rate that is lower than the Auction Note Interest Rate shall be
rejected, thus entitling each such Existing Owner to continue to
own the aggregate principal amount of Auction Rate Notes subject
to such Submitted Bids;
(3) Potential Owners' Submitted Bids specifying any
rate that is lower than the Auction Note Interest Rate shall be
accepted;
(4) Each Existing Owners' Submitted Bid specifying a
rate that is equal to the Auction Note Interest Rate shall be
rejected, thus entitling such Existing Owner to continue to own
the aggregate principal amount of Auction Rate Notes subject to
such Submitted Bid, unless the aggregate principal amount of
Outstanding Auction Rate Notes subject to all such Submitted
Bids shall be greater than the principal amount of Auction Rate
Notes (the "remaining principal amount") equal to the excess of
the Available Auction Rate Notes over the aggregate principal
amount of Auction Rate Notes subject to Submitted Bids described
in clauses (2) and (3) of this Section 2.02(a)(iv)(A), in which
event such Submitted Bid of such Existing Owner shall be
rejected in part, and such Existing Owner shall be entitled to
continue to own the principal amount of Auction Rate Notes
subject to such Submitted Bid, but only in an amount equal to
the aggregate principal amount of Auction Rate Notes obtained by
multiplying the remaining principal amount by a fraction, the
numerator of which shall be the principal amount of Outstanding
Auction Rate Notes owned by such Existing Owner subject to such
Submitted Bid and the denominator of which shall be the sum of
the principal amount of Outstanding Auction Rate Notes subject
to such Submitted Bids made by all such Existing Owners that
specified a rate equal to the Auction Note Interest Rate,
subject to the provisions of Section 2.02(a)(iv)(D) of this
Appendix A-2; and
(5) Each Potential Owner's Submitted Bid specifying
a rate that is equal to the Auction Note Interest Rate shall be
accepted, but only in an amount equal to the principal amount of
Auction Rate Notes obtained by multiplying the excess of the
aggregate principal amount of Available Auction Rate Notes over
the aggregate principal amount of Auction Rate Notes subject to
Submitted Bids described in clauses (2), (3) and (4) of this
Section 2.02(a)(iv)(A) by a fraction the
70
numerator of which shall be the aggregate principal amount of
Outstanding Auction Rate Notes subject to such Submitted Bid and
the denominator of which shall be the sum of the principal
amount of Outstanding Auction Rate Notes subject to Submitted
Bids made by all such Potential Owners that specified a rate
equal to the Auction Note Interest Rate, subject to the
provisions of Section 2.02(a)(iv)(D) of this Appendix A-2.
(B) If Sufficient Bids have not been made (other than
because all of the Outstanding Auction Rate Notes are subject to
submitted Hold Orders), or if the Maximum Rate is less than the Bid
Auction Rate (in which case the Auction Note Interest Rate shall be the
Maximum Rate), subject to the provisions of Section 2.02(a)(iv)(D) of
this Appendix A-2, Submitted Orders shall be accepted or rejected as
follows in the following order of priority and all other Submitted Bids
shall be rejected:
(1) Existing Owners' Submitted Bids specifying any
rate that is equal to or lower than the Auction Note Interest
Rate shall be rejected, thus entitling such Existing Owners to
continue to own the aggregate principal amount of Auction Rate
Notes subject to such Submitted Bids;
(2) Potential Owners' Submitted Bids specifying (x)
any rate that is equal to or lower than the Auction Note
Interest Rate shall be accepted and (y) any rate that is higher
than the Auction Note Interest Rate shall be rejected; and
(3) each Existing Owner's Submitted Bid specifying
any rate that is higher than the Auction Note Interest Rate and
the Submitted Sell Order of each Existing Owner shall be
accepted, thus entitling each Existing Owner that submitted any
such Submitted Bid or Submitted Sell Order to sell the Auction
Rate Notes subject to such Submitted Bid or Submitted Sell
Order, but in both cases only in an amount equal to the
aggregate principal amount of Auction Rate Notes obtained by
multiplying the aggregate principal amount of Auction Rate Notes
subject to Submitted Bids described in clause (2)(x) of this
Section 2.02(a)(iv)(B) by a fraction the numerator of which
shall be the aggregate principal amount of Outstanding Auction
Rate Notes owned by such Existing Owner subject to such
submitted Bid or Submitted Sell Order and the denominator of
which shall be the aggregate principal amount of Outstanding
Auction Rate Notes subject to all such Submitted Bids and
Submitted Sell Orders.
(C) If all Auction Rate Notes are subject to Submitted Hold
Orders, all Submitted Bids shall be rejected.
(D) If, as a result of the procedures described in paragraph
(A) or (B) of this Section 2.02(a)(iv), any Existing Owner would be
entitled or required to sell, or any Potential Owner would be entitled
or required to purchase, a principal amount of Auction Rate Notes that
is not equal to an Authorized Denomination, the Auction Agent shall, in
such manner as in its sole discretion it shall determine, round up or
down the principal amount of Auction Rate Notes to be purchased or sold
by any Existing Owner or
71
Potential Owner so that the principal amount of Auction Rate Notes
purchased or sold by each Existing Owner or Potential Owner shall be
equal to an Authorized Denomination.
(E) If, as a result of the procedures described in paragraph
(B) of this Section 2.02(a)(iv), any Potential Owner would be entitled
or required to purchase less than an Authorized Denomination of Auction
Rate Notes, the Auction Agent shall, in such manner as in its sole
discretion it shall determine, allocate Auction Rate Notes for purchase
among Potential Owners so that only Auction Rate Notes in Authorized
Denominations are purchased by any Potential Owner, even if such
allocation results in one or more of such Potential Owners not
purchasing any Auction Rate Notes.
(v) Based on the result of each Auction, the Auction Agent shall
determine the aggregate principal amount of Auction Rate Notes to be purchased
and the aggregate principal amount of Auction Rate Notes to be sold by Potential
Owners and Existing Owners on whose behalf each Broker-Dealer submitted Bids or
Sell Orders and, with respect to each Broker-Dealer, to the extent that such
aggregate principal amount of Auction Rate Notes to be sold differs from such
aggregate principal amount of Auction Rate Notes to be purchased, determine to
which other Broker-Dealer or Broker-Dealers acting for one or more purchasers
such Broker-Dealer shall deliver, or from which other Broker-Dealer or
Broker-Dealers acting for one or more sellers such Broker-Dealer shall receive,
as the case may be, Auction Rate Notes.
(vi) Any calculation by the Auction Agent or the Indenture Trustee,
as applicable, of the Auction Note Interest Rate, the Maximum Rate, the All Hold
Rate, the Student Loan Rate and the Non-Payment Rate shall, in the absence of
manifest error, be binding on all other parties.
(vii) Notwithstanding anything in this Appendix A-2 to the contrary,
(A) no Auction for the Auction Rate Notes for an Auction Period of less than 180
days will be held on any Auction Date hereunder on which there are insufficient
moneys in the Collection Account to pay, or otherwise held by the Indenture
Trustee under the Indenture and available to pay, the principal of and interest
due on the Auction Rate Notes on the Distribution Date immediately following
such Auction Date, and (B) no Auction will be held on any Auction Date hereunder
during the continuance of a Payment Default. The Indenture Trustee shall
promptly notify the Auction Agent of any such occurrence.
(b) Application of Interest Payments for the Auction Rate Notes.
(i) The Indenture Trustee shall determine not later than 2:00 p.m.,
eastern time, on the Business Day next succeeding a Distribution Date, whether a
Payment Default has occurred. If a Payment Default has occurred, the Indenture
Trustee shall, not later than 2:15 p.m., eastern time, on such Business Day,
send a notice thereof in substantially the form of Exhibit C attached hereto to
the Auction Agent by telecopy or similar means and, if such Payment Default is
cured, the Indenture Trustee shall immediately send a notice in substantially
the form of Exhibit D attached hereto to the Auction Agent by telecopy or
similar means.
(ii) Not later than 2:00 p.m., eastern time, on each anniversary of
the initial Distribution Date, the Indenture Trustee shall pay to the Auction
Agent, in immediately available funds out of amounts in the Collection Account,
an amount equal to the Auction Agent Fee as set
72
forth in the Auction Agent Agreement. Not later than 2:00 p.m., eastern time, on
each Auction Date, the Indenture Trustee shall pay to the Auction Agent, in
immediately available funds out of amounts in the Collection Account, an amount
equal to the Broker-Dealer Fee as calculated in the Auction Agent Agreement. The
Indenture Trustee shall, from time to time at the request of the Auction Agent
and at the direction of an Authorized Officer, reimburse the Auction Agent for
its reasonable expenses as provided in the Auction Agent Agreement, such
expenses to be paid out of amounts in the Collection Account.
(c) Calculation of Maximum Rate, All Hold Rate, Student Loan Rate,
Applicable LIBOR Rate, and Non-Payment Rate. The Auction Agent shall calculate
the applicable Maximum Rate, Applicable LIBOR Rate, and All Hold Rate, as the
case may be, on each Auction Date and shall notify the Indenture Trustee and the
Broker-Dealers of the applicable Maximum Rate, Student Loan Rate, Applicable
LIBOR Rate and All Hold Rate, as the case may be, as provided in the Auction
Agent Agreement; provided, that if the ownership of the Auction Rate Notes is no
longer maintained as Book-Entry Notes, or if a Payment Default has occurred,
then the Indenture Trustee shall determine the applicable Maximum Rate,
Applicable LIBOR Rate, All Hold Rate and Non-Payment Rate for each such Accrual
Period. The Student Loan Rate shall be communicated to the Auction Agent by the
Issuer. If the ownership of the Auction Rate Notes is no longer maintained as
Book-Entry Notes by the Clearing Agency, the Indenture Trustee shall calculate
the applicable Maximum Rate and the Student Loan Rate on the Business Day
immediately preceding the first day of each Auction Period after the delivery of
certificates representing the Auction Rate Notes pursuant to the Indenture. If a
Payment Default shall have occurred, the Indenture Trustee shall calculate the
Non-Payment Rate on the Interest Rate Determination Date for (i) each Accrual
Period commencing after the occurrence and during the continuance of such
Payment Default and (ii) any Accrual Period commencing less than two Business
Days after the cure of any Payment Default. The determination by the Indenture
Trustee or the Auction Agent, as the case may be, of the applicable Maximum
Rate, Student Loan Rate, Applicable LIBOR Rate, All Hold Rate and Non-Payment
Rate shall (in the absence of manifest error) be final and binding upon all
parties. If calculated or determined by the Auction Agent, the Auction Agent
shall promptly advise the Indenture Trustee of the applicable Maximum Rate,
Applicable LIBOR Rate and All Hold Rate.
(d) Notification of Rates, Amounts and Distribution Dates.
(i) By 12:00 noon, eastern time, on the Business Day following each
Record Date, the Indenture Trustee shall determine the aggregate amounts of
interest distributable on the next succeeding Distribution Date to the
beneficial owners of Auction Rate Notes.
(ii) At least four days prior to any Distribution Date, the Indenture
Trustee shall:
(A) confirm with the Auction Agent, so long as no Payment
Default has occurred and is continuing and the ownership of the Auction
Rate Notes is maintained as Book-Entry Notes by the applicable Clearing
Agency, (1) the date of such next Distribution Date and (2) the amount
payable to the Auction Agent on the Auction Date pursuant to Section
2.02(b)(ii) of this Appendix A-2; and
73
(B) advise the applicable Clearing Agency, so long as the
ownership of the Auction Rate Notes is maintained as Book-Entry Notes by
the applicable Clearing Agency, upon request, of the aggregate amount of
interest distributable on such next Distribution Date to the beneficial
owners of each Class of the Auction Rate Notes.
If any day scheduled to be an Distribution Date shall be changed after
the Indenture Trustee shall have given the notice or confirmation referred to in
clause (i) of the preceding sentence, the Indenture Trustee shall, not later
than 11:15 a.m., eastern time, on the Business Day next preceding the earlier of
the new Distribution Date or the old Distribution Date, by such means as the
Indenture Trustee deems practicable, give notice of such change to the Auction
Agent, so long as no Payment Default has occurred and is continuing and the
ownership of the Auction Rate Notes is maintained as Book-Entry Notes by the
applicable Clearing Agency.
(e) Auction Agent.
(i) The Bank of New York is hereby appointed as Initial Auction
Agent to serve as agent for the Issuer in connection with Auctions. The
Indenture Trustee and the Issuer will, and the Indenture Trustee is hereby
directed to, enter into the Initial Auction Agent Agreement with The Bank of New
York, as the Initial Auction Agent. Any Substitute Auction Agent shall be (A) a
bank, national banking association or trust company duly organized under the
laws of the United States of America or any state or territory thereof having
its principal place of business in the Borough of Manhattan, New York, or such
other location as approved by the Indenture Trustee in writing and having a
combined capital stock or surplus of at least $50,000,000, or (B) a member of
the National Association of Securities Dealers, Inc., having a capitalization of
at least $50,000,000, and, in either case, authorized by law to perform all the
duties imposed upon it hereunder and under the Auction Agent Agreement. The
Auction Agent may at any time resign and be discharged of the duties and
obligations created by this Appendix A-2 by giving at least 90 days' notice to
the Indenture Trustee, each Broker-Dealer and the Issuer. The Auction Agent may
be removed at any time by the Indenture Trustee upon the written direction of an
Authorized Officer or by the holders of a majority of the aggregate principal
amount of the Auction Rate Notes then Outstanding, and if by such Noteholders,
by an instrument signed by such Noteholders or their attorneys and filed with
the Auction Agent, the Issuer and the Indenture Trustee upon at least 90 days'
written notice. Neither resignation nor removal of the Auction Agent pursuant to
the preceding two sentences shall be effective until and unless a Substitute
Auction Agent has been appointed and has accepted such appointment. If required
by the Issuer, a Substitute Auction Agent Agreement shall be entered into with a
Substitute Auction Agent. Notwithstanding the foregoing, the Auction Agent may
terminate the Auction Agent Agreement if, within 25 days after notifying the
Indenture Trustee, each Broker-Dealer and the Issuer in writing that it has not
received payment of any Auction Agent Fee due it in accordance with the terms of
the Auction Agent Agreement, the Auction Agent does not receive such payment.
(ii) If the Auction Agent shall resign or be removed or be dissolved,
or if the property or affairs of the Auction Agent shall be taken under the
control of any state or federal court or administrative body because of
bankruptcy or insolvency, or for any other reason, the Indenture Trustee at the
direction of an Authorized Officer, shall use its best efforts to appoint a
Substitute Auction Agent.
74
(iii) The Auction Agent is acting as agent for the Issuer in
connection with Auctions. In the absence of bad faith, negligent failure to act
or negligence on its part, the Auction Agent shall not be liable for any action
taken, suffered or omitted or any error of judgment made by it in the
performance of its duties under the Auction Agent Agreement and shall not be
liable for any error of judgment made in good faith unless the Auction Agent
shall have been negligent in ascertaining (or failing to ascertain) the
pertinent facts.
(f) Broker-Dealer.
(i) The Auction Agent will enter into Broker-Dealer Agreements with
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
as the initial Broker-Dealers. An Authorized Officer of the Administrator, on
behalf of the Issuer may, from time to time, approve one or more additional
persons to serve as a Broker-Dealer under the Broker-Dealer Agreements and shall
be responsible for providing such Broker-Dealer Agreements to the Indenture
Trustee and the Auction Agent.
(ii) Any Broker-Dealer may be removed at any time, at the request of
an Authorized Officer of the Administrator, on behalf of the Issuer, but there
shall, at all times, be at least one Broker-Dealer appointed and acting as such.
(g) Changes in Auction Period or Periods and Certain Percentages.
(i) While any of the Auction Rate Notes are Outstanding, the Issuer
may, at the direction of the Broker-Dealers, from time to time, change the
length of one or more Auction Periods (an "Auction Period Adjustment"), in order
to conform with then current market practice with respect to similar securities
or to accommodate economic and financial factors that may affect or be relevant
to the length of the Auction Period and the interest rate borne by the Auction
Rate Notes. The Issuer shall not initiate an Auction Period Adjustment unless it
shall have received the written direction of the applicable Broker-Dealer, not
later than nine days prior to the Auction Date for such Auction Period. The
Broker-Dealer shall initiate the Auction Period Adjustment by giving written
notice by Issuer Order to the Indenture Trustee, the Auction Agent, the
applicable Broker-Dealers, each Rating Agency and the applicable Clearing Agency
in substantially the form of, or containing substantially the information
contained in, Exhibit E attached hereto at least 10 days prior to the Auction
Date for such Auction Period.
(ii) Any such adjusted Auction Period shall not be less than 7 days
nor more than 270 days.
(iii) An Auction Period Adjustment shall take effect only if (A) the
Indenture Trustee and the Auction Agent receive, by 11:00 a.m., eastern time, on
the Business Day before the Auction Date for the first such Auction Period, an
Issuer Certificate in substantially the form attached as, or containing
substantially the same information contained in, Exhibit F attached hereto,
authorizing the Auction Period Adjustment specified in such certificate along
with a copy of the written direction of the applicable Broker-Dealer and, (B)
Sufficient Bids exist as of the Auction on the Auction Date for such first
Auction Period. If the condition referred to in (A) above is not met, the
applicable Auction Note Interest Rate for the next Auction Period shall be
determined pursuant to the above provisions of this Section 2.02 and the Auction
Period shall be
75
the Auction Period determined without reference to the proposed change. If the
condition referred to in (A) is met but the condition referred in (B) above is
not met, the applicable Auction Note Interest Rate for the next Auction Period
shall be the applicable Maximum Rate and the Auction Period shall be the Auction
Period determined without reference to the proposed change.
In connection with any Auction Period Adjustment, the Auction Agent
shall provide such further notice to such parties as is specified in Section
2.03 of the Auction Agent Agreement.
(h) Changes in the Auction Date. The applicable Broker-Dealer, and,
if applicable, upon receipt of the opinion of counsel as required below, may
specify a different Auction Date (but in no event more than five Business Days
earlier) than the Auction Date that would otherwise be determined in accordance
with the definition of "Auction Date" in Section 1.01 of this Appendix A-2 with
respect to one or more specified Auction Periods in order to conform with then
current market practice with respect to similar securities or to accommodate
economic and financial factors that may affect or be relevant to the day of the
week constituting an Auction Date and the interest rate borne on the Auction
Rate Notes. The applicable Broker-Dealer shall deliver a written direction to
such change in the length of the Auction Date to the Issuer at least 14 days
prior to the effective date of such change. If the Issuer shall have delivered
such written direction of the applicable Broker-Dealer, such Broker-Dealer shall
provide notice of its determination to specify an earlier Auction Date for one
or more Auction Periods by means of a written notice delivered at least 10 days
prior to the proposed changed Auction Date to the Indenture Trustee, the Auction
Agent, the Issuer, each Rating Agency and the Clearing Agency. Such notice shall
be substantially in the form of, or contain substantially the information
contained in, Exhibit G attached hereto.
In connection with any change described in this Section 2.02(h), the
Auction Agent shall provide such further notice to such parties as is specified
in Section 2.03 of the Auction Agent Agreement.
Section 2.03 Additional Provisions Regarding the Interest Rates on the
Auction Rate Notes. The determination of a Variable Rate by the Auction Agent or
any other Person pursuant to the provisions of the applicable Section of this
Article II shall be conclusive and binding on the Noteholders of the Auction
Rate Notes to which such Variable Rate applies, and the Issuer and the Indenture
Trustee may rely thereon for all purposes.
In no event shall the cumulative amount of interest paid or payable on
the Auction Rate Notes (including interest calculated as provided herein, plus
any other amounts that constitute interest on the Auction Rate Notes under
applicable law, which are contracted for, charged, reserved, taken or received
pursuant to the Auction Rate Notes or related documents) calculated from the
Closing Date through any subsequent day during the term of the Auction Rate
Notes or otherwise prior to payment in full of the Auction Rate Notes exceed the
amount permitted by applicable law. If the applicable law is ever judicially
interpreted so as to render usurious any amount called for under the Auction
Rate Notes or related documents or otherwise contracted for, charged, reserved,
taken or received in connection with the Auction Rate Notes, or if the
redemption or acceleration of the maturity of the Auction Rate Notes results in
payment to or receipt by the Noteholder or any former Noteholder of the Auction
Rate Notes of any interest in excess of that permitted by applicable law, then,
notwithstanding any provision of the Auction
76
Rate Notes or related documents to the contrary, all excess amounts theretofore
paid or received with respect to the Auction Rate Notes shall be credited on the
principal balance of the Auction Rate Notes (or, if the Auction Rate Notes have
been paid or would thereby be paid in full, refunded by the recipient thereof),
and the provisions of the Auction Rate Notes and related documents shall
automatically and immediately be deemed reformed and the amounts thereafter
collectible hereunder and thereunder reduced, without the necessity of the
execution of any new document, so as to comply with the applicable law, but so
as to permit the recovery of the fullest amount otherwise called for under the
Auction Rate Notes and under the related documents.
77
SCHEDULE A
TO THE INDENTURE
Schedule of Trust Student Loans
[See Schedule A to the ▇▇▇▇ of Sale
(Attachment B to the Sale Agreement)]
78
SCHEDULE B
TO THE INDENTURE
Location of Trust Student Loan Files
[See Attachment B to the Servicing Agreement]
79
EXHIBIT A-1
TO THE INDENTURE
[FORM OF CLASS A-1 NOTE]
SEE REVERSE FOR CERTAIN DEFINITIONS
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer (as
defined below) or its agent for registration of transfer, exchange or payment,
and any Note issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. THIS NOTE IS NOT
GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY.
NUMBER $[______________]
R-[__] CUSIP NO. 78443C AE4
▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇-▇-▇
▇▇▇ PRIVATE CREDIT STUDENT LOAN TRUST 2003-A
FLOATING RATE CLASS A-1 STUDENT LOAN-BACKED NOTES
SLM Private Credit Student Loan Trust 2003-A, a statutory trust
organized and existing under the laws of the State of Delaware (herein referred
to as the "Issuer"), for value received, hereby promises to pay to CEDE & CO.,
or registered assigns, the principal sum of [NOTE FACE AMOUNT] DOLLARS
($[__________]) payable on each Distribution Date in an amount equal to the
result obtained by multiplying (i) a fraction the numerator of which is [Note
Face Amount] and the denominator of which is $500,071,000 by (ii) the aggregate
amount, if any, payable to Class A-1 Noteholders on such Distribution Date in
respect of principal of the Notes pursuant to Section 3.01 of the Indenture
dated as of March 1, 2003, among the Issuer, Chase Manhattan Bank USA, National
Association, a national banking association, as Trustee on behalf of the Issuer,
and JPMorgan Chase Bank, a New York banking corporation, as Indenture Trustee
(the "Indenture Trustee") (capitalized terms used but not defined herein being
defined in Appendix A-1 and Appendix A-2 to the Indenture, which also contains
rules as to usage that shall be applicable herein); provided, however, that the
entire unpaid principal amount of this Note shall be due and payable on the
December 2015 Distribution Date (the "Class A-1 Maturity Date").
The Issuer shall pay interest on this Note at the rate per annum equal
to the Class A-1 Rate (as defined on the reverse hereof), on each Distribution
Date until the principal of this Note is paid or made available for payment, on
the principal amount of this Note outstanding on the preceding Distribution Date
(after giving effect to all payments of principal made on the preceding
Distribution Date), subject to certain limitations contained in Section 3.01 of
the Indenture. Interest on this Note shall accrue from and including the
preceding Distribution Date (or, in the case of the first Accrual Period, the
Closing Date) to but excluding the following Distribution Date (each an "Accrual
Period"). Interest shall be calculated on the basis of the actual number of days
elapsed in each Accrual Period divided by 360. Such principal of and interest on
this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
A-1-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed, manually or in facsimile, as of the date set forth below.
SLM PRIVATE CREDIT STUDENT LOAN
TRUST 2003-A
By: CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee under
the Trust Agreement
By:
------------------------
Authorized Signatory
Date: March 13, 2003
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
JPMORGAN CHASE BANK, not in its individual
capacity but solely as Indenture Trustee under
the Indenture
By:
------------------------
Authorized Signatory
Date: March 13, 2003
A-1-3
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Floating Rate Class A-1 Student Loan-Backed Notes (the "Class
A-1 Notes"), which, together with the Issuer's Floating Rate Class A-2 Student
Loan-Backed Notes (the "Class A-2 Notes"), Auction Rate Class A-3 Student-Loan
Backed Notes (the "Class A-3 Notes"),Auction Rate Class A-4 Student Loan-Backed
Notes (the "Class A-4 Notes"), Floating Rate Class B Student Loan-Backed Notes
(the "Class B Notes") and Floating Rate Class C Student Loan-Backed Notes (the
"Class C Notes" and, together with the Class A-1 Notes, Class A-2 Notes, Class
A-3 Notes, Class A-4 Notes and Class B Notes, the "Notes"), are issued under and
secured by the Indenture, to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights and
obligations thereunder of the Issuer, the Indenture Trustee and the Noteholders.
The Notes are subject to all terms of the Indenture.
The Class A-1 Notes are and will be equally and ratably secured by the
Collateral pledged as security therefor as provided in the Indenture. The Class
A-1 Notes are prior in order of principal payment to the Class A-2 Notes, the
Class A-3 Notes, the Class A-4 Notes, the Class B Notes and the Class C Notes
and senior to the Class B Notes and the Class C Notes as and to the extent
provided in the Indenture.
Principal of the Class A-1 Notes shall be payable on each Distribution
Date in an amount described on the face hereof. "Distribution Date" means the
15th day of each March, June, September and December or, if any such date is not
a Business Day, the next succeeding Business Day, commencing June 15, 2003.
As described on the face hereof, the entire unpaid principal amount of
this Note shall be due and payable on the Class A-1 Maturity Date.
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
shall be due and payable on the date on which (i) an Event of Default shall have
occurred and be continuing and (ii) the Indenture Trustee or the Noteholders
representing not less than a majority of the Outstanding Amount of the Notes
shall have declared the Notes to be immediately due and payable in the manner
provided in Section 5.02 of the Indenture. All principal payments on the Class
A-1 Notes shall be made pro rata to the Noteholders entitled thereto.
Interest on the Class A-1 Notes shall be payable on each Distribution
Date on the principal amount outstanding of the Class A-1 Notes until the
principal amount thereof is paid in full, at a rate per annum equal to the Class
A-1 Rate. The "Class A-1 Rate" for each Accrual Period other than the initial
Accrual Period shall be equal to Three-Month LIBOR as determined on the second
Business Day before the beginning of that Accrual Period plus 0.11%. The Class
A-1 Rate for the initial Accrual Period shall be equal to [____]%.
Payments of interest on this Note on each Distribution Date, together
with the installment of principal, if any, to the extent not in full payment of
this Note, shall be made by check mailed to the Person whose name appears as the
Registered Holder of this Note (or one or more Predecessor Notes) on the Note
Register on the Record Date, except that with respect to Notes registered on the
Record Date in the name of the nominee of the Clearing Agency, unless Definitive
Notes have been issued (initially, such nominee to be Cede & Co.), payments
shall be
A-1-4
made by wire transfer in immediately available funds to the account designated
by such nominee. Such checks shall be mailed to the Person entitled thereto at
the address of such Person as it appears on the Note Register as of the
applicable Record Date without requiring that this Note be submitted for
notation of payment, and the mailing of such check shall constitute payment of
the amount thereof regardless of whether such check is returned undelivered. Any
reduction in the principal amount of this Note (or any one or more Predecessor
Notes) effected by any payments made on any Distribution Date shall be binding
upon all future Noteholders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not noted hereon. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount of
this Note on a Distribution Date, then the Indenture Trustee, in the name of and
on behalf of the Issuer, shall notify the Person who was the Noteholder hereof
as of the preceding Record Date by notice mailed no later than five days prior
to such Distribution Date and the amount then due and payable shall be payable
only upon presentation and surrender of this Note at the Indenture Trustee's
Corporate Trust Office or at the office of the Indenture Trustee's agent
appointed for such purposes located in the Borough of Manhattan, The City of New
York.
The Issuer shall pay interest on overdue installments of interest on
this Note at the Class A-1 Rate to the extent lawful.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Noteholder hereof or his attorney duly
authorized in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, which requirements
include membership or participation in Securities Transfer Agent's Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP
(all in accordance with the Exchange Act), and such other documents as the
Indenture Trustee may require, and thereupon one or more new Notes of authorized
denominations and in the same aggregate principal amount shall be issued to the
designated transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Note, but the transferor may be
required to pay a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any such registration of transfer or
exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in the Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer or the Indenture Trustee on the Notes or under the Indenture or
any certificate or other writing delivered in connection therewith, against (i)
the Indenture Trustee or the Trustee in its individual capacity, (ii) any owner
of a beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Trustee in
its individual capacity, any holder or owner of a beneficial interest in the
Issuer, the Trustee or the Indenture Trustee or of any successor or assign
thereof in its individual capacity, except as any such Person may have expressly
agreed (it being understood that the Indenture Trustee and the Trustee have no
such obligations in their individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable,
A-1-5
to the extent provided by applicable law, for any unpaid consideration for
stock, unpaid capital contribution or failure to pay any installment or call
owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture such Noteholder or Note Owner will not
at any time institute against the Depositor or the Issuer, or join in any
institution against the Depositor or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency, receivership or liquidation proceedings
or other proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Notes, the
Indenture or the other Basic Documents.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Noteholders under the Indenture at any time by the
Issuer with the consent of the Noteholders representing a majority of the
Outstanding Amount of all Notes at the time outstanding. The Indenture also
contains provisions permitting the Noteholders representing specified
percentages of the Outstanding Amount of the Notes, on behalf of all the
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the holder of this Note (or any one of more
Predecessor Notes) shall be conclusive and binding upon such holder and upon all
future holders of this Note and of any Note issued upon registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Indenture Trustee and the
Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note shall be construed in accordance with the laws of the State of
New York, without reference to its conflict of law provisions, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
A-1-6
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place, and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of JPMorgan Chase Bank in its individual
capacity, Chase Manhattan Bank USA, National Association in its individual
capacity, any owner of a beneficial interest in the Issuer, or any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns shall be personally liable for, nor shall recourse be had
to any of them for, the payment of principal of or interest on, or performance
of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture; it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Trustee for the sole purposes of binding the interests of the Trustee in
the assets of the Issuer. The Noteholder of this Note by the acceptance hereof
agrees that, except as expressly provided in the Basic Documents, in the case of
an Event of Default under the Indenture, the Noteholder shall have no claim
against any of the foregoing for any deficiency, loss or claim therefrom;
provided, however, that nothing contained herein shall be taken to prevent
recourse to, and enforcement against, the assets of the Issuer for any and all
liabilities, obligations and undertakings contained in the Indenture or in this
Note.
A-1-7
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
-----------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
-----------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints attorney, to transfer said Note on the books kept for registration
thereof, with full power of substitution in the premises.
Dated: __________________
_________________________ */
Signature Guaranteed:
_________________________ */
------------
*/NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
TO THE INDENTURE
[FORM OF CLASS A-2 NOTE]
SEE REVERSE FOR CERTAIN DEFINITIONS
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer (as
defined below) or its agent for registration of transfer, exchange or payment,
and any Note issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. THIS NOTE IS NOT
GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY.
NUMBER $[_____________]
R-[__] CUSIP NO. 78443C AF1
ISIN ▇▇. ▇▇▇▇▇▇ ▇▇▇▇
▇-▇-▇
▇▇▇ PRIVATE CREDIT STUDENT LOAN TRUST 2003-A
FLOATING RATE CLASS A-2 STUDENT LOAN-BACKED NOTES
SLM Private Credit Student Loan Trust 2003-A, a business trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of [NOTE FACE AMOUNT] DOLLARS
($[____________]) payable on each Distribution Date in an amount equal to the
result obtained by multiplying (i) a fraction the numerator of which is [Note
Face Amount] and the denominator of which is $320,000,000 by (ii) the aggregate
amount, if any, payable to Class A-2 Noteholders on such Distribution Date in
respect of principal of the Notes pursuant to Section 3.01 of the Indenture
dated as of March 1, 2003, among the Issuer, Chase Manhattan Bank USA, National
Association, a national banking association, as Trustee on behalf of the Issuer,
and JPMorgan Chase Bank, a New York banking corporation, as Indenture Trustee
(the "Indenture Trustee") (capitalized terms used but not defined herein being
defined in Appendix A-1 and Appendix A-2 to the Indenture, which also contains
rules as to usage that shall be applicable herein); provided, however, that the
entire unpaid principal amount of this Note shall be due and payable on the
September 2020 Distribution Date (the "Class A-2 Maturity Date").
The Issuer shall pay interest on this Note at the rate per annum equal
to the Class A-2 Rate (as defined on the reverse hereof), on each Distribution
Date until the principal of this Note is paid or made available for payment, on
the principal amount of this Note outstanding on the preceding Distribution Date
(after giving effect to all payments of principal made on the preceding
Distribution Date), subject to certain limitations contained in Section 3.01 of
the Indenture. Interest on this Note shall accrue from and including the
preceding Distribution Date (or, in the case of the first Accrual Period, the
Closing Date) to but excluding the following Distribution Date (each an "Accrual
Period"). Interest shall be calculated on the basis of the actual number of days
elapsed in each Accrual Period divided by 360. Such principal of and interest on
this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
A-2-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed, manually or in facsimile, as of the date set forth below.
SLM PRIVATE CREDIT STUDENT
LOAN TRUST 2003-A
By: CHASE MANHATTAN BANK
USA, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Trustee under the Trust
Agreement
By:
------------------------
Authorized Signatory
Date: March 13, 2003
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
JPMORGAN CHASE BANK, not in its
individual capacity but solely as
Indenture Trustee under the Indenture
By:
------------------------
Authorized Signatory
Date: March 13, 2003
A-2-3
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Floating Rate Class A-2 Student Loan-Backed Notes (the "Class
A-2 Notes"), which, together with the Issuer's Floating Rate Class A-1 Student
Loan-Backed Notes (the "Class A-1 Notes"), Auction Rate Class A-3 Student
Loan-Backed Notes (the "Class A-3 Notes"), Auction Rate Class A-4 Student
Loan-Backed Notes (the "Class A-4 Notes"), Floating Rate Class B Student
Loan-Backed Notes (the "Class B Notes") and Floating Rate Class C Student
Loan-Backed Notes (the "Class C Notes" and, together with the Class A-1 Notes,
Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and Class B Notes, the
"Notes") are issued under and secured by the Indenture, to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Noteholders. The Notes are subject to all terms of the
Indenture.
The Class A-2 Notes are and will be equally and ratably secured by the
Collateral pledged as security therefor as provided in the Indenture. The Class
A-1 Notes are prior in order of principal payment to the Class A-2 Notes, and
the Class A-2 Notes are senior to the Class A-3 Notes, Class A-4 Notes, Class B
Notes and the Class C Notes, as and to the extent provided in the Indenture.
Principal of the Class A-2 Notes shall be payable on each Distribution
Date in an amount described on the face hereof. "Distribution Date" means the
15th day of each March, June, September and December or, if any such date is not
a Business Day, the next succeeding Business Day, commencing June 15, 2003.
As described on the face hereof, the entire unpaid principal amount of
this Note shall be due and payable on the Class A-2 Maturity Date.
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
shall be due and payable on the date on which (i) an Event of Default shall have
occurred and be continuing and (ii) the Indenture Trustee or the Noteholders
representing not less than a majority of the Outstanding Amount of the Notes
shall have declared the Notes to be immediately due and payable in the manner
provided in Section 5.02 of the Indenture. All principal payments on the Class
A-2 Notes shall be made pro rata to the Noteholders entitled thereto.
Interest on the Class A-2 Notes shall be payable on each Distribution
Date on the principal amount outstanding of the Class A-2 Notes until the
principal amount thereof is paid in full, at a rate per annum equal to the Class
A-2 Rate. The "Class A-2 Rate" for each Accrual Period other than the initial
Accrual Period shall be equal to Three-Month LIBOR as determined on the second
Business Day before the beginning of that Accrual Period plus 0.44%. The Class
A-2 Rate for the initial Accrual Period shall be equal to [___]%.
Payments of interest on this Note on each Distribution Date, together
with the installment of principal, if any, to the extent not in full payment of
this Note, shall be made by check mailed to the Person whose name appears as the
Registered Holder of this Note (or one or more Predecessor Notes) on the Note
Register on the Record Date, except that with respect to Notes registered on the
Record Date in the name of the nominee of the Clearing Agency, unless Definitive
Notes have been issued
A-2-4
(initially, such nominee to be Cede & Co.), payments shall be made by wire
transfer in immediately available funds to the account designated by such
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable
Record Date without requiring that this Note be submitted for notation of
payment, and the mailing of such check shall constitute payment of the amount
thereof regardless of whether such check is returned undelivered. Any reduction
in the principal amount of this Note (or any one or more Predecessor Notes)
effected by any payments made on any Distribution Date shall be binding upon all
future Noteholders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof, whether or not noted
hereon. If funds are expected to be available, as provided in the Indenture, for
payment in full of the then remaining unpaid principal amount of this Note on a
Distribution Date, then the Indenture Trustee, in the name of and on behalf of
the Issuer, shall notify the Person who was the Noteholder hereof as of the
preceding Record Date by notice mailed no later than five days prior to such
Distribution Date and the amount then due and payable shall be payable only upon
presentation and surrender of this Note at the Indenture Trustee's Corporate
Trust Office or at the office of the Indenture Trustee's agent appointed for
such purposes located in the Borough of Manhattan, The City of New York.
The Issuer shall pay interest on overdue installments of interest on
this Note at the Class A-2 Rate to the extent lawful.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Noteholder hereof or his attorney duly
authorized in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, which requirements
include membership or participation in Securities Transfer Agent's Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP
(all in accordance with the Exchange Act), and such other documents as the
Indenture Trustee may require, and thereupon one or more new Notes of authorized
denominations and in the same aggregate principal amount shall be issued to the
designated transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Note, but the transferor may be
required to pay a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any such registration of transfer or
exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in the Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer or the Indenture Trustee on the Notes or under the Indenture or
any certificate or other writing delivered in connection therewith, against (i)
the Indenture Trustee or the Trustee in its individual capacity, (ii) any owner
of a beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Trustee in
its individual capacity, any holder or owner of a beneficial interest in the
Issuer, the Trustee or the Indenture Trustee or of any
A-2-5
successor or assign thereof in its individual capacity, except as any such
Person may have expressly agreed (it being understood that the Indenture Trustee
and the Trustee have no such obligations in their individual capacity) and
except that any such partner, owner or beneficiary shall be fully liable, to the
extent provided by applicable law, for any unpaid consideration for stock,
unpaid capital contribution or failure to pay any installment or call owing to
such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture such Noteholder or Note Owner will not
at any time institute against the Depositor or the Issuer, or join in any
institution against the Depositor or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency, receivership or liquidation proceedings
or other proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Notes, the
Indenture or the other Basic Documents.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Noteholders under the Indenture at any time by the
Issuer with the consent of the Noteholders representing a majority of the
Outstanding Amount of all Notes at the time outstanding. The Indenture also
contains provisions permitting the Noteholders representing specified
percentages of the Outstanding Amount of the Notes, on behalf of all the
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the holder of this Note (or any one of more
Predecessor Notes) shall be conclusive and binding upon such holder and upon all
future holders of this Note and of any Note issued upon registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Indenture Trustee and the
Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note shall be construed in accordance with the laws of the State of
New York, without reference to its conflict of law provisions, and the
obligations, rights
A-2-6
and remedies of the parties hereunder and thereunder shall be determined in
accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place, and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of JPMorgan Chase Bank in its individual
capacity, Chase Manhattan Bank USA, National Association in its individual
capacity, any owner of a beneficial interest in the Issuer, or any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns shall be personally liable for, nor shall recourse be had
to any of them for, the payment of principal of or interest on, or performance
of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture; it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Trustee for the sole purposes of binding the interests of the Trustee in
the assets of the Issuer. The Noteholder of this Note by the acceptance hereof
agrees that, except as expressly provided in the Basic Documents, in the case of
an Event of Default under the Indenture, the Noteholder shall have no claim
against any of the foregoing for any deficiency, loss or claim therefrom;
provided, however, that nothing contained herein shall be taken to prevent
recourse to, and enforcement against, the assets of the Issuer for any and all
liabilities, obligations and undertakings contained in the Indenture or in this
Note.
A-2-7
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
________________________________________________________________________________
________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
________________
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints attorney, to transfer said Note on the books kept for registration
thereof, with full power of substitution in the premises.
Dated: __________________
*/
-------------------------
Signature Guaranteed:
*/
-------------------------
------------
*/NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
TO THE INDENTURE
[FORM OF CLASS A-3 NOTE]
SEE REVERSE FOR CERTAIN DEFINITIONS
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer (as
defined below) or its agent for registration of transfer, exchange or payment,
and any Note issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. THIS NOTE IS NOT
GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY.
NUMBER $[____________]
R-[__] CUSIP ▇▇. ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇-▇-▇
▇▇▇ PRIVATE CREDIT STUDENT LOAN TRUST 2003-A
AUCTION RATE CLASS A-3 STUDENT LOAN-BACKED NOTES
SLM Private Credit Student Loan Trust 2003-A, a statutory trust
organized and existing under the laws of the State of Delaware (herein referred
to as the "Issuer"), for value received, hereby promises to pay to CEDE & CO.,
or registered assigns, the principal sum of [NOTE FACE AMOUNT] DOLLARS
($[__________]) payable on each Distribution Date in an amount equal to the
result obtained by multiplying (i) a fraction the numerator of which is [Note
Face Amount] and the denominator of which is $76,600,000 by (ii) the aggregate
amount, if any, payable to Class A-3 Noteholders on such Distribution Date in
respect of principal of the Notes pursuant to Section 3.01 of the Indenture
dated as of March 1, 2003, among the Issuer, Chase Manhattan Bank USA, National
Association, a national banking association, as Trustee on behalf of the Issuer,
and JPMorgan Chase Bank, a New York banking corporation, as Indenture Trustee
(the "Indenture Trustee") (capitalized terms used but not defined herein being
defined in Appendix A-1 and Appendix A-2 to the Indenture, which also contains
rules as to usage that shall be applicable herein); provided, however, that the
entire unpaid principal amount of this Note shall be due and payable on the June
2032 Distribution Date (the "Class A-3 Maturity Date").
The Issuer shall pay interest on this Note at the rate per annum equal
to the Class A-3 Rate (as defined on the reverse hereof), on each Distribution
Date until the principal of this Note is paid or made available for payment, on
the principal amount of this Note outstanding on the preceding Distribution Date
(after giving effect to all payments of principal made on the preceding
Distribution Date), subject to certain limitations contained in Section 3.01 of
the Indenture. Interest on this Note shall accrue from and including the
preceding Distribution Date for the Class A-3 Notes (or, in the case of the
first Accrual Period, the Closing Date) to but excluding the following
Distribution Date for the Class A-3 Notes (or, in the case of the first Accrual
Period, to and including the initial Auction Date for the Class A-3 Notes) (each
an "Accrual Period"). Interest shall be calculated on the basis of the actual
number of days elapsed in each Accrual Period divided by 360. Such principal of
and interest on this Note shall be paid in the manner specified on the reverse
hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
A-3-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed, manually or in facsimile, as of the date set forth below.
SLM PRIVATE CREDIT STUDENT LOAN
TRUST 2003-A
By: CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee
under the Trust Agreement,
By:
-------------------------------------
Authorized Signatory
Date: March 13, 2003
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
JPMORGAN CHASE BANK,
not in its individual capacity but solely
as Indenture Trustee under the Indenture,
By:
-------------------------------------
Authorized Signatory
Date: March 13, 2003
A-3-3
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Auction Rate Class A-3 Student Loan-Backed Notes (the "Class
A-3 Notes"), which, together with the Issuer's Floating Rate Class A-1 Student
Loan-Backed Notes (the "Class A-1 Notes"), Floating Rate Class A-2 Student
Loan-Backed Notes (the "Class A-2 Notes"), Auction Rate Class A-4 Student
Loan-Backed Notes (the "Class A-4 Notes"), Floating Rate Class B Student
Loan-Backed Notes (the "Class B Notes") and Floating Rate Class C Student
Loan-Backed Notes (the "Class C Notes" and, together with the Class A-1 Notes,
Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and Class B Notes, the
"Notes") are issued under and secured by the Indenture, to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Noteholders. The Notes are subject to all terms of the
Indenture.
The Class A-3 Notes are and will be equally and ratably secured by the
Collateral pledged as security therefor as provided in the Indenture. The Class
A-1 Notes and Class A-2 Notes are prior in order of principal payment to the
Class A-3 Notes, interest on the Class A-3 Notes are paid pari passu and
principal on the Class A-3 Notes are paid pari passu, in lots of $50,000, with
the Class A-4 Notes, and the Class A-3 Notes are senior to the Class B Notes and
Class C Notes, as and to the extent provided in the Indenture.
Principal of the Class A-3 Notes shall be payable on each Distribution
Date in an amount described on the face hereof. "Distribution Date" means (a)
the day following the end of each Auction Period for that class of Auction Rate
Notes and (b) for a class of Auction Rate Notes with an Auction Period in excess
of 90 days, in addition to the days referred to in clause (a), the Quarterly
Distribution Dates.
As described on the face hereof, the entire unpaid principal amount of
this Note shall be due and payable on the Class A-3 Maturity Date.
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
shall be due and payable on the date on which (i) an Event of Default shall have
occurred and be continuing and (ii) the Indenture Trustee or the Noteholders
representing not less than a majority of the Outstanding Amount of the Notes
shall have declared the Notes to be immediately due and payable in the manner
provided in Section 5.02 of the Indenture. All principal payments on the Class
A-3 Notes shall be made pro rata to the Noteholders entitled thereto.
Interest on the Class A-3 Notes shall be payable on each Distribution
Date on the principal amount outstanding of the Class A-3 Notes until the
principal amount thereof is paid in full, at a rate per annum equal to the Class
A-3 Rate. The "Class A-3 Rate" for each Accrual Period shall be equal to the
Auction Note Interest Rate for the Class A-3 Notes.
The applicable Auction Note Interest Rate will be determined
periodically on the basis of orders placed in an Auction conducted on the
Business Day immediately preceding the first day of each Auction Period and in
such other manner as described in the Indenture.
A-3-4
The Auction Period, the applicable Auction Note Interest Rate, the
method of determining the applicable Auction Note Interest Rate, the
Distribution Dates, and the Auction Procedures related thereto will be
determined upon the terms and conditions, including required notices thereof to
the beneficial owners thereof, provided in the Indenture, to which provisions
specific reference is hereby made, and all of which provisions are hereby
specifically incorporated herein by reference.
In no event shall the applicable Auction Note Interest Rate exceed the
Maximum Rate. The excess of the amount of interest that would have accrued on
this Class A-3 Note at the lesser of the Auction Rate and the Maximum Rate
determined as if the Student Loan Rate were not a component thereof over the
amount of interest actually accrued at the Student Loan Rate, together with the
unreduced portion of any such excess from prior Accrual Periods will accrue as
the Carry-over Amount as provided in the Indenture. Any Carry-over Amount on
this Class A-3 Note and any interest accrued thereon, is due and payable only if
and to the extent as set forth in the Indenture. Any such payment obligation is
extinguished when this Class A-3 Note is paid at maturity or by earlier
redemption.
Payments of interest on this Note on each Distribution Date, together
with the installment of principal, if any, to the extent not in full payment of
this Note, shall be made by check mailed to the Person whose name appears as the
Registered Holder of this Note (or one or more Predecessor Notes) on the Note
Register on the Record Date, except that with respect to Notes registered on the
Record Date in the name of the nominee of the Clearing Agency, unless Definitive
Notes have been issued (initially, such nominee to be Cede & Co.), payments
shall be made by wire transfer in immediately available funds to the account
designated by such nominee. Such checks shall be mailed to the Person entitled
thereto at the address of such Person as it appears on the Note Register as of
the applicable Record Date without requiring that this Note be submitted for
notation of payment, and the mailing of such check shall constitute payment of
the amount thereof regardless of whether such check is returned undelivered. Any
reduction in the principal amount of this Note (or any one or more Predecessor
Notes) effected by any payments made on any Distribution Date shall be binding
upon all future Noteholders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not noted hereon. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount of
this Note on a Distribution Date, then the Indenture Trustee, in the name of and
on behalf of the Issuer, shall notify the Person who was the Noteholder hereof
as of the preceding Record Date by notice mailed no later than five days prior
to such Distribution Date and the amount then due and payable shall be payable
only upon presentation and surrender of this Note at the Indenture Trustee's
Corporate Trust Office or at the office of the Indenture Trustee's agent
appointed for such purposes located in the Borough of Manhattan, The City of New
York.
The Issuer shall pay interest on overdue installments of interest on
this Note at the Class A-3 Rate to the extent lawful.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written
A-3-5
instrument of transfer in form satisfactory to the Indenture Trustee duly
executed by, the Noteholder hereof or his attorney duly authorized in writing,
with such signature guaranteed by an "eligible guarantor institution" meeting
the requirements of the Note Registrar, which requirements include membership or
participation in Securities Transfer Agent's Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Note Registrar
in addition to, or in substitution for, STAMP (all in accordance with the
Exchange Act), and such other documents as the Indenture Trustee may require,
and thereupon one or more new Notes of authorized denominations and in the same
aggregate principal amount shall be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in the Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer or the Indenture Trustee on the Notes or under the Indenture or
any certificate or other writing delivered in connection therewith, against (i)
the Indenture Trustee or the Trustee in its individual capacity, (ii) any owner
of a beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Trustee in
its individual capacity, any holder or owner of a beneficial interest in the
Issuer, the Trustee or the Indenture Trustee or of any successor or assign
thereof in its individual capacity, except as any such Person may have expressly
agreed (it being understood that the Indenture Trustee and the Trustee have no
such obligations in their individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture such Noteholder or Note Owner will not
at any time institute against the Depositor or the Issuer, or join in any
institution against the Depositor or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency, receivership or liquidation proceedings
or other proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Notes, the
Indenture or the other Basic Documents.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Noteholders under the Indenture at any time by the
Issuer with the consent of the Noteholders representing a majority of the
Outstanding Amount of all Notes at the time outstanding. The Indenture also
contains provisions permitting
A-3-6
the Noteholders representing specified percentages of the Outstanding Amount of
the Notes, on behalf of all the Noteholders, to waive compliance by the Issuer
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the holder of
this Note (or any one of more Predecessor Notes) shall be conclusive and binding
upon such holder and upon all future holders of this Note and of any Note issued
upon registration of transfer hereof or in exchange hereof or in lieu hereof
whether or not notation of such consent or waiver is made upon this Note. The
Indenture also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of holders of the
Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Indenture Trustee and the
Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note shall be construed in accordance with the laws of the State of
New York, without reference to its conflict of law provisions, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place, and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of JPMorgan Chase Bank, in its individual
capacity, Chase Manhattan Bank USA, National Association in its individual
capacity, any owner of a beneficial interest in the Issuer, or any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns shall be personally liable for, nor shall recourse be had
to any of them for, the payment of principal of or interest on, or performance
of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture; it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Trustee for the sole purposes of binding the interests of the Trustee in
the assets of the Issuer. The Noteholder of this Note by the acceptance hereof
agrees that, except as expressly provided in the Basic Documents, in the case of
an Event of Default under the Indenture, the Noteholder shall have no claim
against any of the foregoing for any deficiency, loss or claim therefrom;
provided, however, that nothing contained herein shall be taken to prevent
recourse to, and enforcement against, the assets of the Issuer for any and all
liabilities, obligations and undertakings contained in the Indenture or in this
Note.
A-3-7
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
----------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
--------------------------------------------------------------------------------
attorney, to transfer said Note on the books kept for registration thereof, with
full power of substitution in the premises.
Dated:
------------------
_________________________ */
Signature Guaranteed:
_________________________ */
----------
*/ NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
TO THE INDENTURE
[FORM OF CLASS A-4 NOTE]
SEE REVERSE FOR CERTAIN DEFINITIONS
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer (as
defined below) or its agent for registration of transfer, exchange or payment,
and any Note issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. THIS NOTE IS NOT
GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY.
NUMBER $[____________]
R-[__] CUSIP NO. 78443C AK0
ISIN ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇-▇-▇
▇▇▇ PRIVATE CREDIT STUDENT LOAN TRUST 2003-A
AUCTION RATE CLASS A-4 STUDENT LOAN-BACKED NOTES
SLM Private Credit Student Loan Trust 2003-A, a statutory trust
organized and existing under the laws of the State of Delaware (herein referred
to as the "Issuer"), for value received, hereby promises to pay to CEDE & CO.,
or registered assigns, the principal sum of [NOTE FACE AMOUNT] DOLLARS
($[__________]) payable on each Distribution Date in an amount equal to the
result obtained by multiplying (i) a fraction the numerator of which is [Note
Face Amount] and the denominator of which is $76,600,000 by (ii) the aggregate
amount, if any, payable to Class A-4 Noteholders on such Distribution Date in
respect of principal of the Notes pursuant to Section 3.01 of the Indenture
dated as of March 1, 2003, among the Issuer, Chase Manhattan Bank USA, National
Association, a national banking association, as Trustee on behalf of the Issuer,
and JPMorgan Chase Bank, a New York banking corporation, as Indenture Trustee
(the "Indenture Trustee") (capitalized terms used but not defined herein being
defined in Appendix A-1 and Appendix A-2 to the Indenture, which also contains
rules as to usage that shall be applicable herein); provided, however, that the
entire unpaid principal amount of this Note shall be due and payable on the June
2032 Distribution Date (the "Class A-4 Maturity Date").
The Issuer shall pay interest on this Note at the rate per annum equal
to the Class A-4 Rate (as defined on the reverse hereof), on each Distribution
Date until the principal of this Note is paid or made available for payment, on
the principal amount of this Note outstanding on the preceding Distribution Date
(after giving effect to all payments of principal made on the preceding
Distribution Date), subject to certain limitations contained in Section 3.01 of
the Indenture. Interest on this Note shall accrue from and including the
preceding Distribution Date for the Class A-4 Notes (or, in the case of the
first Accrual Period, the Closing Date) to but excluding the following
Distribution Date for the Class A-4 Notes (or, in the case of the first Accrual
Period, to and including the initial Auction Date for the Class A-4 Notes) (each
an "Accrual Period"). Interest shall be calculated on the basis of the actual
number of days elapsed in each Accrual Period divided by 360. Such principal of
and interest on this Note shall be paid in the manner specified on the reverse
hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
A-4-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed, manually or in facsimile, as of the date set forth below.
SLM PRIVATE CREDIT STUDENT LOAN
TRUST 2003-A
By: CHASE MANHATTAN BANK USA, NATIONAL
ASSOCIATION, not in its individual capacity but
solely as Trustee under the Trust Agreement,
By:
-------------------------------------
Authorized Signatory
Date: March 13, 2003
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
JPMORGAN CHASE BANK,
not in its individual capacity but solely as
Indenture Trustee under the Indenture,
By:
-------------------------------------
Authorized Signatory
Date: March 13, 2003
A-4-3
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Auction Rate Class A-4 Student Loan-Backed Notes (the "Class
A-4 Notes"), which, together with the Issuer's Floating Rate Class A-1 Student
Loan-Backed Notes (the "Class A-1 Notes"), Floating Rate Class A-2 Student
Loan-Backed Notes (the "Class A-2 Notes"), Auction Rate Class A-3 Student
Loan-Backed Notes (the "Class A-3 Notes"), Floating Rate Class B Student
Loan-Backed Notes (the "Class B Notes") and Floating Rate Class C Student
Loan-Backed Notes (the "Class C Notes" and, together with the Class A-1 Notes,
Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and Class B Notes, the
"Notes") are issued under and secured by the Indenture, to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Noteholders. The Notes are subject to all terms of the
Indenture.
The Class A-4 Notes are and will be equally and ratably secured by the
Collateral pledged as security therefor as provided in the Indenture. The Class
A-1 Notes and Class A-2 Notes are prior in order of principal payment to the
Class A-4 Notes, interest on the Class A-4 Notes are paid pari passu and
principal on the Class A-4 Notes are paid pari passu, in lots of $50,000, with
the Class A-3 Notes, and the Class A-4 Notes are senior to the Class B Notes and
Class C Notes, as and to the extent provided in the Indenture.
Principal of the Class A-4 Notes shall be payable on each Distribution
Date in an amount described on the face hereof. "Distribution Date" means (a)
the day following the end of each Auction Period for that class of Auction Rate
Notes and (b) for a class of Auction Rate Notes with an Auction Period in excess
of 90 days, in addition to the days referred to in clause (a), the Quarterly
Distribution Dates.
As described on the face hereof, the entire unpaid principal amount of
this Note shall be due and payable on the Class A-4 Maturity Date.
Notwithstanding the foregoing, the entire unpaid principal amount of the Notes
shall be due and payable on the date on which (i) an Event of Default shall have
occurred and be continuing and (ii) the Indenture Trustee or the Noteholders
representing not less than a majority of the Outstanding Amount of the Notes
shall have declared the Notes to be immediately due and payable in the manner
provided in Section 5.02 of the Indenture. All principal payments on the Class
A-4 Notes shall be made pro rata to the Noteholders entitled thereto.
Interest on the Class A-4 Notes shall be payable on each Distribution
Date on the principal amount outstanding of the Class A-4 Notes until the
principal amount thereof is paid in full, at a rate per annum equal to the Class
A-4 Rate. The "Class A-4 Rate" for each Accrual Period shall be equal to the
Auction Note Interest Rate for the Class A-4 Notes.
The applicable Auction Note Interest Rate will be determined
periodically on the basis of orders placed in an Auction conducted on the
Business Day immediately preceding the first day of each Auction Period and in
such other manner as described in the Indenture.
The Auction Period, the applicable Auction Note Interest Rate, the
method of determining the applicable Auction Note Interest Rate, the
Distribution Dates, and the Auction
A-4-4
Procedures related thereto will be determined upon the terms and conditions,
including required notices thereof to the beneficial owners thereof, provided in
the Indenture, to which provisions specific reference is hereby made, and all of
which provisions are hereby specifically incorporated herein by reference.
In no event shall the applicable Auction Note Interest Rate exceed the
Maximum Rate. The excess of the amount of interest that would have accrued on
this Class A-4 Note at the lesser of the Auction Rate and the Maximum Rate
determined as if the Student Loan Rate were not a component thereof over the
amount of interest actually accrued at the Student Loan Rate, together with the
unreduced portion of any such excess from prior Accrual Periods will accrue as
the Carry-over Amount as provided in the Indenture. Any Carry-over Amount on
this Class A-4 Note and any interest accrued thereon, is due and payable only if
and to the extent as set forth in the Indenture. Any such payment obligation is
extinguished when this Class A-4 Note is paid at maturity or by earlier
redemption.
Payments of interest on this Note on each Distribution Date, together
with the installment of principal, if any, to the extent not in full payment of
this Note, shall be made by check mailed to the Person whose name appears as the
Registered Holder of this Note (or one or more Predecessor Notes) on the Note
Register on the Record Date, except that with respect to Notes registered on the
Record Date in the name of the nominee of the Clearing Agency, unless Definitive
Notes have been issued (initially, such nominee to be Cede & Co.), payments
shall be made by wire transfer in immediately available funds to the account
designated by such nominee. Such checks shall be mailed to the Person entitled
thereto at the address of such Person as it appears on the Note Register as of
the applicable Record Date without requiring that this Note be submitted for
notation of payment, and the mailing of such check shall constitute payment of
the amount thereof regardless of whether such check is returned undelivered. Any
reduction in the principal amount of this Note (or any one or more Predecessor
Notes) effected by any payments made on any Distribution Date shall be binding
upon all future Noteholders of this Note and of any Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof, whether
or not noted hereon. If funds are expected to be available, as provided in the
Indenture, for payment in full of the then remaining unpaid principal amount of
this Note on a Distribution Date, then the Indenture Trustee, in the name of and
on behalf of the Issuer, shall notify the Person who was the Noteholder hereof
as of the preceding Record Date by notice mailed no later than five days prior
to such Distribution Date and the amount then due and payable shall be payable
only upon presentation and surrender of this Note at the Indenture Trustee's
Corporate Trust Office or at the office of the Indenture Trustee's agent
appointed for such purposes located in the Borough of Manhattan, The City of New
York.
The Issuer shall pay interest on overdue installments of interest on
this Note at the Class A-4 Rate to the extent lawful.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Noteholder hereof or his attorney duly
authorized in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the
A-4-5
requirements of the Note Registrar, which requirements include membership or
participation in Securities Transfer Agent's Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Note Registrar
in addition to, or in substitution for, STAMP (all in accordance with the
Exchange Act), and such other documents as the Indenture Trustee may require,
and thereupon one or more new Notes of authorized denominations and in the same
aggregate principal amount shall be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Note, but the transferor may be required to pay a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in the Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer or the Indenture Trustee on the Notes or under the Indenture or
any certificate or other writing delivered in connection therewith, against (i)
the Indenture Trustee or the Trustee in its individual capacity, (ii) any owner
of a beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Trustee in
its individual capacity, any holder or owner of a beneficial interest in the
Issuer, the Trustee or the Indenture Trustee or of any successor or assign
thereof in its individual capacity, except as any such Person may have expressly
agreed (it being understood that the Indenture Trustee and the Trustee have no
such obligations in their individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable, to the extent provided by applicable
law, for any unpaid consideration for stock, unpaid capital contribution or
failure to pay any installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture such Noteholder or Note Owner will not
at any time institute against the Depositor or the Issuer, or join in any
institution against the Depositor or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency, receivership or liquidation proceedings
or other proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Notes, the
Indenture or the other Basic Documents.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Noteholders under the Indenture at any time by the
Issuer with the consent of the Noteholders representing a majority of the
Outstanding Amount of all Notes at the time outstanding. The Indenture also
contains provisions permitting the Noteholders representing specified
percentages of the Outstanding Amount of the Notes, on behalf of all the
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the holder of this Note (or any
A-4-6
one of more Predecessor Notes) shall be conclusive and binding upon such holder
and upon all future holders of this Note and of any Note issued upon
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this Note. The Indenture
also permits the Indenture Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of holders of the
Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Indenture Trustee and the
Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note shall be construed in accordance with the laws of the State of
New York, without reference to its conflict of law provisions, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place, and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of JPMorgan Chase Bank, in its individual
capacity, Chase Manhattan Bank USA, National Association in its individual
capacity, any owner of a beneficial interest in the Issuer, or any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns shall be personally liable for, nor shall recourse be had
to any of them for, the payment of principal of or interest on, or performance
of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture; it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Trustee for the sole purposes of binding the interests of the Trustee in
the assets of the Issuer. The Noteholder of this Note by the acceptance hereof
agrees that, except as expressly provided in the Basic Documents, in the case of
an Event of Default under the Indenture, the Noteholder shall have no claim
against any of the foregoing for any deficiency, loss or claim therefrom;
provided, however, that nothing contained herein shall be taken to prevent
recourse to, and enforcement against, the assets of the Issuer for any and all
liabilities, obligations and undertakings contained in the Indenture or in this
Note.
A-4-7
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
----------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints
-------------------------------------------------------------------------------
attorney, to transfer said Note on the books kept for registration thereof, with
full power of substitution in the premises.
Dated:
------------------
_________________________ */
Signature Guaranteed:
_________________________ */
----------
*/ NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
TO THE INDENTURE
[FORM OF CLASS B NOTE]
SEE REVERSE FOR CERTAIN DEFINITIONS
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer (as
defined below) or its agent for registration of transfer, exchange or payment,
and any Note issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. THIS NOTE IS NOT
GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY.
NUMBER $[____________]
R-[__] CUSIP NO. 78443C AG9
ISIN ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇-▇-▇
▇▇▇ PRIVATE CREDIT STUDENT LOAN TRUST 2003-A
FLOATING RATE CLASS B STUDENT LOAN-BACKED NOTES
SLM Private Credit Student Loan Trust 2003-A, a business trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of [NOTE FACE AMOUNT] DOLLARS
($[____________]) payable on each Distribution Date in an amount equal to the
result obtained by multiplying (i) a fraction the numerator of which is [Note
Face Amount] and the denominator of which is $34,570,000 by (ii) the aggregate
amount, if any, payable to Class B Noteholders on such Distribution Date in
respect of principal of the Notes pursuant to Section 3.01 of the Indenture
dated as of March 1, 2003, among the Issuer, Chase Manhattan Bank USA, National
Association, a national banking association, as Trustee on behalf of the Issuer,
and JPMorgan Chase Bank, a New York banking corporation, as Indenture Trustee
(the "Indenture Trustee") (capitalized terms used but not defined herein being
defined in Appendix A-1 and Appendix A-2 to the Indenture, which also contains
rules as to usage that shall be applicable herein); provided, however, that the
entire unpaid principal amount of this Note shall be due and payable on the June
2032 Distribution Date (the "Class B Maturity Date").
The Issuer shall pay interest on this Note at the rate per annum equal
to the Class B Rate (as defined on the reverse hereof), on each Distribution
Date until the principal of this Note is paid or made available for payment, on
the principal amount of this Note outstanding on the preceding Distribution Date
(after giving effect to all payments of principal made on the preceding
Distribution Date), subject to certain limitations contained in Section 3.01 of
the Indenture. Interest on this Note shall accrue from and including the
preceding Distribution Date (or, in the case of the first Accrual Period, the
Closing Date) to but excluding the following Distribution Date (each an "Accrual
Period"). Interest shall be calculated on the basis of the actual number of days
elapsed in each Accrual Period divided by 360. Such principal of and interest on
this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed, manually or in facsimile, as of the date set forth below.
SLM PRIVATE CREDIT STUDENT LOAN
TRUST 2003-A
By: CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee under
the Trust Agreement,
By:
-------------------------------------
Authorized Signatory
Date: March 13, 2003
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
JPMORGAN CHASE BANK, not in its individual
capacity but solely as Indenture Trustee under the
Indenture
By:
-------------------------------------
Authorized Signatory
Date: March 13, 2003
A-5-3
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Floating Rate Class B Student Loan-Backed Notes (the "Class B
Notes"), which, together with the Issuer's Floating Rate Class A-1 Student
Loan-Backed Notes (the "Class A-1 Notes"), Floating Rate Class A-2 Student
Loan-Backed Notes (the "Class A-2 Notes"), Auction Rate Class A-3 Student
Loan-Backed Notes (the "Class A-3 Notes"), Auction Rate Class A-4 Student
Loan-Backed Notes (the "Class A-4 Notes") and Floating Rate Class C Student
Loan-Backed Notes (the "Class C Notes" and, together with the Class A-1 Notes,
Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and Class B Notes, the
"Notes") are issued under and secured by the Indenture, to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Noteholders. The Notes are subject to all terms of the
Indenture.
The Class B Notes are and will be equally and ratably secured by the
Collateral pledged as security therefor as provided in the Indenture. The Class
A-1 Notes, Class A-2 Notes,Class A-3 Notes and the Class A-4 Notes are prior in
order of principal payment, and are senior, to the Class B Notes and the Class C
Notes as and to the extent provided in the Indenture. The Class B Notes are
prior in order of principal payment, and are senior, to the Class C Notes as and
to the extent provided in the Indenture.
Principal of the Class B Notes shall be payable on each Distribution
Date in an amount described on the face hereof. "Distribution Date" means the
15th day of each March, June, September and December or, if any such date is not
a Business Day, the next succeeding Business Day, commencing June 15, 2003.
As described on the face hereof, the entire unpaid principal amount of
this Note shall be due and payable on the Class B Maturity Date. Notwithstanding
the foregoing, the entire unpaid principal amount of the Notes shall be due and
payable on the date on which (i) an Event of Default shall have occurred and be
continuing and (ii) the Indenture Trustee or the Noteholders representing not
less than a majority of the Outstanding Amount of the Notes shall have declared
the Notes to be immediately due and payable in the manner provided in Section
5.02 of the Indenture. All principal payments on the Class B Notes shall be made
pro rata to the Noteholders entitled thereto.
Interest on the Class B Notes shall be payable on each Distribution Date
on the principal amount outstanding of the Class B Notes until the principal
amount thereof is paid in full, at a rate per annum equal to the Class B Rate.
The "Class B Rate" for each Accrual Period other than the initial Accrual Period
shall be equal to Three-Month LIBOR as determined on the second Business Day
before the beginning of that Accrual Period plus 0.75%. The Class B Rate for the
initial Accrual Period shall be equal to [____]%.
Payments of interest on this Note on each Distribution Date, together
with the installment of principal, if any, to the extent not in full payment of
this Note, shall be made by check mailed to the Person whose name appears as the
Registered Holder of this Note (or one or more Predecessor Notes) on the Note
Register on the Record Date, except that with respect to Notes registered on the
Record Date in the name of the nominee of the Clearing Agency, unless
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Definitive Notes have been issued (initially, such nominee to be Cede & Co.),
payments shall be made by wire transfer in immediately available funds to the
account designated by such nominee. Such checks shall be mailed to the Person
entitled thereto at the address of such Person as it appears on the Note
Register as of the applicable Record Date without requiring that this Note be
submitted for notation of payment, and the mailing of such check shall
constitute payment of the amount thereof regardless of whether such check is
returned undelivered. Any reduction in the principal amount of this Note (or any
one or more Predecessor Notes) effected by any payments made on any Distribution
Date shall be binding upon all future Noteholders of this Note and of any Note
issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not noted hereon. If funds are expected to be available, as
provided in the Indenture, for payment in full of the then remaining unpaid
principal amount of this Note on a Distribution Date, then the Indenture
Trustee, in the name of and on behalf of the Issuer, shall notify the Person who
was the Noteholder hereof as of the preceding Record Date by notice mailed no
later than five days prior to such Distribution Date and the amount then due and
payable shall be payable only upon presentation and surrender of this Note at
the Indenture Trustee's Corporate Trust Office or at the office of the Indenture
Trustee's agent appointed for such purposes located in the Borough of Manhattan,
The City of New York.
The Issuer shall pay interest on overdue installments of interest on
this Note at the Class B Rate to the extent lawful.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Noteholder hereof or his attorney duly
authorized in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, which requirements
include membership or participation in Securities Transfer Agent's Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP
(all in accordance with the Exchange Act), and such other documents as the
Indenture Trustee may require, and thereupon one or more new Notes of authorized
denominations and in the same aggregate principal amount shall be issued to the
designated transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Note, but the transferor may be
required to pay a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any such registration of transfer or
exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in the Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer or the Indenture Trustee on the Notes or under the Indenture or
any certificate or other writing delivered in connection therewith, against (i)
the Indenture Trustee or the Trustee in its individual capacity, (ii) any owner
of a beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Trustee in
its individual capacity, any holder or owner of a beneficial interest in the
Issuer, the Trustee or the Indenture Trustee or of any successor or assign
thereof in its individual capacity, except as any such Person may have expressly
agreed (it being understood that the Indenture Trustee and the Trustee have no
such obligations in their
A-5-5
individual capacity) and except that any such partner, owner or beneficiary
shall be fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture such Noteholder or Note Owner will not
at any time institute against the Depositor or the Issuer, or join in any
institution against the Depositor or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency, receivership or liquidation proceedings
or other proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Notes, the
Indenture or the other Basic Documents.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Noteholders under the Indenture at any time by the
Issuer with the consent of the Noteholders representing a majority of the
Outstanding Amount of all Notes at the time outstanding. The Indenture also
contains provisions permitting the Noteholders representing specified
percentages of the Outstanding Amount of the Notes, on behalf of all the
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the holder of this Note (or any one of more
Predecessor Notes) shall be conclusive and binding upon such holder and upon all
future holders of this Note and of any Note issued upon registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Indenture Trustee and the
Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note shall be construed in accordance with the laws of the State of
New York, without reference to its conflict of law provisions, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
A-5-6
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place, and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of JPMorgan Chase Bank in its individual
capacity, Chase Manhattan Bank USA, National Association in its individual
capacity, any owner of a beneficial interest in the Issuer, or any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns shall be personally liable for, nor shall recourse be had
to any of them for, the payment of principal of or interest on, or performance
of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture; it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Trustee for the sole purposes of binding the interests of the Trustee in
the assets of the Issuer. The Noteholder of this Note by the acceptance hereof
agrees that, except as expressly provided in the Basic Documents, in the case of
an Event of Default under the Indenture, the Noteholder shall have no claim
against any of the foregoing for any deficiency, loss or claim therefrom;
provided, however, that nothing contained herein shall be taken to prevent
recourse to, and enforcement against, the assets of the Issuer for any and all
liabilities, obligations and undertakings contained in the Indenture or in this
Note.
A-5-7
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
-----------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
-----------------------------------------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints attorney, to transfer said Note on the books kept for registration
thereof, with full power of substitution in the premises.
Dated: __________________
_________________________ */
Signature Guaranteed:
_________________________ */
------------
*/NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
▇-▇-▇
▇▇▇▇▇▇▇ ▇-▇
TO THE INDENTURE
[FORM OF CLASS C NOTE]
SEE REVERSE FOR CERTAIN DEFINITIONS
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Issuer (as
defined below) or its agent for registration of transfer, exchange or payment,
and any Note issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
THE PRINCIPAL OF THIS NOTE IS PAYABLE IN INSTALLMENTS AS SET FORTH
HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE AT ANY TIME
MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE HEREOF. THIS NOTE IS NOT
GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY.
NUMBER $[___________]
R-[__] CUSIP NO. 78443C AH7
ISIN ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇-▇-▇
▇▇▇ PRIVATE CREDIT STUDENT LOAN TRUST 2003-A
FLOATING RATE CLASS C STUDENT LOAN-BACKED NOTES
SLM Private Credit Student Loan Trust 2003-A, a business trust organized
and existing under the laws of the State of Delaware (herein referred to as the
"Issuer"), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of [NOTE FACE AMOUNT] DOLLARS
($[___________]) payable on each Distribution Date in an amount equal to the
result obtained by multiplying (i) a fraction the numerator of which is [Note
Face Amount] and the denominator of which is $47,866,000 by (ii) the aggregate
amount, if any, payable to Class C Noteholders on such Distribution Date in
respect of principal of the Notes pursuant to Section 3.01 of the Indenture
dated as of March 1, 2003, among the Issuer, Chase Manhattan Bank USA, National
Association, a national banking association, as Trustee on behalf of the Issuer,
and JPMorgan Chase Bank, a New York banking corporation, as Indenture Trustee
(the "Indenture Trustee") (capitalized terms used but not defined herein being
defined in Appendix A-1 and Appendix A-2 to the Indenture, which also contains
rules as to usage that shall be applicable herein); provided, however, that the
entire unpaid principal amount of this Note shall be due and payable on the June
2032 Distribution Date (the "Class C Maturity Date").
The Issuer shall pay interest on this Note at the rate per annum equal
to the Class C Rate (as defined on the reverse hereof), on each Distribution
Date until the principal of this Note is paid or made available for payment, on
the principal amount of this Note outstanding on the preceding Distribution Date
(after giving effect to all payments of principal made on the preceding
Distribution Date), subject to certain limitations contained in Section 3.01 of
the Indenture. Interest on this Note shall accrue from and including the
preceding Distribution Date (or, in the case of the first Accrual Period, the
Closing Date) to but excluding the following Distribution Date (each an "Accrual
Period"). Interest shall be calculated on the basis of the actual number of days
elapsed in each Accrual Period divided by 360. Such principal of and interest on
this Note shall be paid in the manner specified on the reverse hereof.
The principal of and interest on this Note are payable in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. All payments made by the Issuer
with respect to this Note shall be applied first to interest due and payable on
this Note as provided above and then to the unpaid principal of this Note.
Reference is made to the further provisions of this Note set forth on
the reverse hereof, which shall have the same effect as though fully set forth
on the face of this Note.
Unless the certificate of authentication hereon has been executed by the
Indenture Trustee whose name appears below by manual signature, this Note shall
not be entitled to any benefit under the Indenture referred to on the reverse
hereof, or be valid or obligatory for any purpose.
A-6-2
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed, manually or in facsimile, as of the date set forth below.
SLM PRIVATE CREDIT STUDENT LOAN
TRUST 2003-A
By: CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee under
the Trust Agreement
By:
-------------------------------------
Authorized Signatory
Date: March 13, 2003
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes designated above and referred to in the
within-mentioned Indenture.
JPMORGAN CHASE BANK, not in its individual
capacity but solely as Indenture Trustee under
the Indenture
By:
-------------------------------------
Authorized Signatory
Date: March 13, 2003
A-6-3
[REVERSE OF NOTE]
This Note is one of a duly authorized issue of Notes of the Issuer,
designated as its Floating Rate Class C Student Loan-Backed Notes (the "Class C
Notes"), which, together with the Issuer's Floating Rate Class A-1 Student
Loan-Backed Notes (the "Class A-1 Notes"), Floating Rate Class A-2 Student
Loan-Backed Notes (the "Class A-2 Notes"), Auction Rate Class A-3 Student
Loan-Backed Notes (the "Class A-3 Notes"), Auction Rate Class A-4 Student
Loan-Backed Notes (the "Class A-4 Notes") and Floating Rate Class B Student
Loan-Backed Notes (the "Class B Notes" and, together with the Class A-1 Notes,
Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and Class C Notes, the
"Notes") are issued under and secured by the Indenture, to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights and obligations thereunder of the Issuer, the Indenture
Trustee and the Noteholders. The Notes are subject to all terms of the
Indenture.
The Class C Notes are and will be equally and ratably secured by the
Collateral pledged as security therefor as provided in the Indenture. The Class
A-1 Notes, Class A-2 Notes, Class A-3 Notes, Class A-4 Notes and the Class B
Notes are prior in order of principal payment, and are senior, to the Class C
Notes as and to the extent provided in the Indenture.
Principal of the Class C Notes shall be payable on each Distribution
Date in an amount described on the face hereof. "Distribution Date" means the
15th day of each March, June, September and December or, if any such date is not
a Business Day, the next succeeding Business Day, commencing June 15, 2003.
As described on the face hereof, the entire unpaid principal amount of
this Note shall be due and payable on the Class C Maturity Date. Notwithstanding
the foregoing, the entire unpaid principal amount of the Notes shall be due and
payable on the date on which (i) an Event of Default shall have occurred and be
continuing and (ii) the Indenture Trustee or the Noteholders representing not
less than a majority of the Outstanding Amount of the Notes shall have declared
the Notes to be immediately due and payable in the manner provided in Section
5.02 of the Indenture. All principal payments on the Class C Notes shall be made
pro rata to the Noteholders entitled thereto.
Interest on the Class C Notes shall be payable on each Distribution Date
on the principal amount outstanding of the Class C Notes until the principal
amount thereof is paid in full, at a rate per annum equal to the Class C Rate.
The "Class C Rate" for each Accrual Period (other than the initial Accrual
Period) shall be equal to Three-Month LIBOR as determined on the second Business
Day before the beginning of that Accrual Period plus 1.60%. The Class C Rate for
the initial Accrual Period shall be [____]%.
Payments of interest on this Note on each Distribution Date, together
with the installment of principal, if any, to the extent not in full payment of
this Note, shall be made by check mailed to the Person whose name appears as the
Registered Holder of this Note (or one or more Predecessor Notes) on the Note
Register on the Record Date, except that with respect to Notes registered on the
Record Date in the name of the nominee of the Clearing Agency, unless Definitive
Notes have been issued (initially, such nominee to be Cede & Co.), payments
shall be made by wire transfer in immediately available funds to the account
designated by such
A-6-4
nominee. Such checks shall be mailed to the Person entitled thereto at the
address of such Person as it appears on the Note Register as of the applicable
Record Date without requiring that this Note be submitted for notation of
payment, and the mailing of such check shall constitute payment of the amount
thereof regardless of whether such check is returned undelivered. Any reduction
in the principal amount of this Note (or any one or more Predecessor Notes)
effected by any payments made on any Distribution Date shall be binding upon all
future Noteholders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof, whether or not noted
hereon. If funds are expected to be available, as provided in the Indenture, for
payment in full of the then remaining unpaid principal amount of this Note on a
Distribution Date, then the Indenture Trustee, in the name of and on behalf of
the Issuer, shall notify the Person who was the Noteholder hereof as of the
preceding Record Date by notice mailed no later than five days prior to such
Distribution Date and the amount then due and payable shall be payable only upon
presentation and surrender of this Note at the Indenture Trustee's Corporate
Trust Office or at the office of the Indenture Trustee's agent appointed for
such purposes located in the Borough of Manhattan, The City of New York.
The Issuer shall pay interest on overdue installments of interest on
this Note at the Class C Rate to the extent lawful.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Note may be registered on the Note Register
upon surrender of this Note for registration of transfer at the office or agency
designated by the Issuer pursuant to the Indenture, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Indenture Trustee duly executed by, the Noteholder hereof or his attorney duly
authorized in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Note Registrar, which requirements
include membership or participation in Securities Transfer Agent's Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP
(all in accordance with the Exchange Act), and such other documents as the
Indenture Trustee may require, and thereupon one or more new Notes of authorized
denominations and in the same aggregate principal amount shall be issued to the
designated transferee or transferees. No service charge will be charged for any
registration of transfer or exchange of this Note, but the transferor may be
required to pay a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection with any such registration of transfer or
exchange.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in the Note, covenants and agrees that no
recourse may be taken, directly or indirectly, with respect to the obligations
of the Issuer or the Indenture Trustee on the Notes or under the Indenture or
any certificate or other writing delivered in connection therewith, against (i)
the Indenture Trustee or the Trustee in its individual capacity, (ii) any owner
of a beneficial interest in the Issuer or (iii) any partner, owner, beneficiary,
agent, officer, director or employee of the Indenture Trustee or the Trustee in
its individual capacity, any holder or owner of a beneficial interest in the
Issuer, the Trustee or the Indenture Trustee or of any successor or assign
thereof in its individual capacity, except as any such Person may have expressly
agreed (it being understood that the Indenture Trustee and the Trustee have no
such obligations in their individual capacity) and except that any such partner,
owner or beneficiary shall be fully liable,
A-6-5
to the extent provided by applicable law, for any unpaid consideration for
stock, unpaid capital contribution or failure to pay any installment or call
owing to such entity.
Each Noteholder or Note Owner, by acceptance of a Note or, in the case
of a Note Owner, a beneficial interest in a Note, covenants and agrees that by
accepting the benefits of the Indenture such Noteholder or Note Owner will not
at any time institute against the Depositor or the Issuer, or join in any
institution against the Depositor or the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency, receivership or liquidation proceedings
or other proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Notes, the
Indenture or the other Basic Documents.
Prior to the due presentment for registration of transfer of this Note,
the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture
Trustee may treat the Person in whose name this Note (as of the day of
determination or as of such other date as may be specified in the Indenture) is
registered as the owner hereof for all purposes whether or not this Note be
overdue, and neither the Issuer, the Indenture Trustee nor any such agent shall
be affected by notice to the contrary.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuer and the rights of the Noteholders under the Indenture at any time by the
Issuer with the consent of the Noteholders representing a majority of the
Outstanding Amount of all Notes at the time outstanding. The Indenture also
contains provisions permitting the Noteholders representing specified
percentages of the Outstanding Amount of the Notes, on behalf of all the
Noteholders, to waive compliance by the Issuer with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the holder of this Note (or any one of more
Predecessor Notes) shall be conclusive and binding upon such holder and upon all
future holders of this Note and of any Note issued upon registration of transfer
hereof or in exchange hereof or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note. The Indenture also permits the
Indenture Trustee to amend or waive certain terms and conditions set forth in
the Indenture without the consent of holders of the Notes issued thereunder.
The term "Issuer" as used in this Note includes any successor to the
Issuer under the Indenture.
The Issuer is permitted by the Indenture, under certain circumstances,
to merge or consolidate, subject to the rights of the Indenture Trustee and the
Noteholders under the Indenture.
The Notes are issuable only in registered form in denominations as
provided in the Indenture, subject to certain limitations therein set forth.
This Note shall be construed in accordance with the laws of the State of
New York, without reference to its conflict of law provisions, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
A-6-6
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place, and rate, and in the coin or currency, herein prescribed.
Anything herein to the contrary notwithstanding, except as expressly
provided in the Basic Documents, none of JPMorgan Chase Bank in its individual
capacity, Chase Manhattan Bank USA, National Association in its individual
capacity, any owner of a beneficial interest in the Issuer, or any of their
respective partners, beneficiaries, agents, officers, directors, employees or
successors or assigns shall be personally liable for, nor shall recourse be had
to any of them for, the payment of principal of or interest on, or performance
of, or omission to perform, any of the covenants, obligations or
indemnifications contained in this Note or the Indenture; it being expressly
understood that said covenants, obligations and indemnifications have been made
by the Trustee for the sole purposes of binding the interests of the Trustee in
the assets of the Issuer. The Noteholder of this Note by the acceptance hereof
agrees that, except as expressly provided in the Basic Documents, in the case of
an Event of Default under the Indenture, the Noteholder shall have no claim
against any of the foregoing for any deficiency, loss or claim therefrom;
provided, however, that nothing contained herein shall be taken to prevent
recourse to, and enforcement against, the assets of the Issuer for any and all
liabilities, obligations and undertakings contained in the Indenture or in this
Note.
A-6-7
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
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FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
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(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints attorney, to transfer said Note on the books kept for registration
thereof, with full power of substitution in the premises.
Dated: __________________
_________________________ */
Signature Guaranteed:
_________________________ */
------------
*/NOTICE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Note in every
particular, without alteration, enlargement or any change whatever. Such
signature must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Note Registrar, which requirements include membership or
participation in STAMP or such other "signature guarantee program" as may be
determined by the Note Registrar in addition to, or in substitution for, STAMP,
all in accordance with the Securities Exchange Act of 1934, as amended.
A-6-8
EXHIBIT B
TO THE INDENTURE
Note Depository Agreement
B-1
EXHIBIT C
TO THE INDENTURE
NOTICE OF PAYMENT DEFAULT
SLM PRIVATE CREDIT STUDENT LOAN TRUST 2003-A
STUDENT LOAN-BACKED NOTES
CLASS [A-3] [A-4] AUCTION RATE NOTES
NOTICE IS HEREBY GIVEN that a Payment Default has occurred and is
continuing with respect to the Auction Rate Notes identified above. The next
Auction for the Auction Rate Notes will not be held. The Auction Rate for the
Auction Rate Notes for the next succeeding Accrual Period shall be the
Non-Payment Rate.
JPMORGAN CHASE BANK, not in its individual
capacity but solely as Indenture Trustee
Dated:
---------
By:
-----------------------------
C-1
EXHIBIT D
TO THE INDENTURE
NOTICE OF CURE OF PAYMENT DEFAULT
SLM PRIVATE CREDIT STUDENT LOAN TRUST 2003-A
STUDENT LOAN-BACKED NOTES
CLASS [A-3] [A-4] AUCTION RATE NOTES
NOTICE IS HEREBY GIVEN that a Payment Default with respect to the
Auction Rate Notes identified above has been waived or cured. The next Payment
Date is _____________ and the Auction Date is _________________.
JPMORGAN CHASE BANK, not in its individual
capacity but solely as Indenture Trustee
Dated:
---------
By:
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D-1
EXHIBIT E
TO THE INDENTURE
NOTICE OF PROPOSED CHANGE IN LENGTH
OF ONE OR MORE AUCTION PERIODS
SLM PRIVATE CREDIT STUDENT LOAN TRUST 2003-A
STUDENT LOAN-BACKED NOTES
CLASS [A-3] [A-4] AUCTION RATE NOTES
Notice is hereby given that the Issuer proposes to change the length of
one or more Auction Periods pursuant to the Indenture as follows:
1. The change shall take effect on ____________, the Interest Rate
Adjustment Date for the next Auction Period (the "Effective Date").
2. The Auction Period Adjustment in Paragraph 1 shall take place
only if (a) the Indenture Trustee and the Auction Agent receive, by 11:00 a.m.,
eastern time, on the Business Day before the Auction Date for the Auction Period
commencing on the Effective Date, a certificate from the Issuer, as required by
the Indenture authorizing the change in length of one or more Auction Periods
and (b) Sufficient Bids exist on the Auction Date for the Auction Period
commencing on the Effective Date.
3. If the condition referred to in (a) above is not met, the
Auction Rate for the Auction Period commencing on the Effective Date will be
determined pursuant to the Auction Procedures and the Auction Period shall be
the Auction Period determined without reference to the proposed change. If the
condition referred to in (a) is met but the condition referred to in (b) above
is not met, the Auction Rate for the Auction Period commencing on the Effective
Date shall be the Maximum Rate and the Auction Period shall be the Auction
Period determined without reference to the proposed change.
4. It is hereby represented, upon advice of the Auction Agent for
the Class __ Notes described herein, that there were Sufficient Bids for such
Class [A-3] [A-4] Notes at the Auction immediately preceding the date of this
Notice.
5. Terms not defined in this Notice shall have the meanings set
forth in the Indenture entered into in connection with the Class [A-3] [A-4]
Notes.
SLM PRIVATE CREDIT STUDENT LOAN TRUST 2003-A
Dated:
---------
By:
-----------------------------
E-1
EXHIBIT F
TO THE INDENTURE
NOTICE ESTABLISHING CHANGE IN LENGTH
OF ONE OR MORE AUCTION PERIODS
SLM PRIVATE CREDIT STUDENT LOAN TRUST 2003-A
STUDENT LOAN-BACKED NOTES
CLASS [A-3] [A-4] AUCTION RATE NOTES
Notice is hereby given that the Issuer hereby establishes new lengths
for one or more Auction Periods pursuant to the Indenture of Trust, as follows:
1. The change shall take effect on ____________, the Interest Rate
Adjustment Date for the next Auction Period (the "Effective Date").
2. The Auction Period commencing on the Effective Date, the
Interest Rate Adjustment Date shall be ___________________, or the next
succeeding Business Day if such date is not a Business Day.
3. For Auction Periods occurring after the Auction Period
commencing on the Effective Date, the Interest Rate Adjustment Date shall be
[_______________ (date) and every ___________ (number) ___________ (day of week)
thereafter] [every __________ (number) ______________ (day of week) after the
date set forth in paragraph 2 above], or the next Business Day if any such day
is not a Business Day; provided, however, that the length of subsequent Auction
Periods shall be subject to further change hereafter as provided in the
Indenture of Trust.
4. The changes described in paragraphs 2 and 3 above shall take
place only upon delivery of this Notice and the satisfaction of other conditions
set forth in the Indenture of Trust and our prior notice dated __________
regarding the proposed change.
5. Terms not defined in this Notice shall have the meanings set
forth in the Indenture entered into in connection with the Class [A-3] [A-4]
Notes.
SLM PRIVATE CREDIT STUDENT LOAN TRUST 2003-A
Dated:
---------
By:
-----------------------------
F-1
EXHIBIT G
TO THE INDENTURE
NOTICE OF CHANGE IN AUCTION DATE
SLM PRIVATE CREDIT STUDENT LOAN TRUST 2003-A
STUDENT LOAN-BACKED NOTES
CLASS [A-3] [A-4]AUCTION RATE NOTES
Notice is hereby given by [_________], as Broker-Dealer for the Auction
Rate Notes, that with respect to the Auction Rate Notes, the Auction Date is
hereby changed as follows:
1. With respect to Class [A-3] [A-4] Notes, the definition of
"Auction Date" shall be deemed amended by substituting "______________ (number)
Business Day" in the second line thereof and by substituting "______________
(number) Business Days" for "two Business Days" in subsection (d) thereof.
2. This change shall take effect on ____________, which shall be
the Auction Date for the Auction Period commencing on________________.
3. The Auction Date for the Class [A-3] [A-4] Notes shall be
subject to further change hereafter as provided in the Indenture.
5. Terms not defined in this Notice shall have the meanings set
forth in the Indenture, as amended, relating to the Class [A-3] [A-4] Notes.
[BROKER-DEALER], as Broker-Dealer
Dated:
---------
By:
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G-1