Exhibit 99.3
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ADMINISTRATION AGREEMENT
among
SALLIE MAE SERVICING L.P.,
as Servicer
SLM EDUCATION CREDIT FUNDING LLC,
as Depositor
SALLIE MAE, INC.,
as Administrator
JPMORGAN CHASE BANK,
as Indenture Trustee
and
SLM PRIVATE CREDIT STUDENT LOAN TRUST 2003-C,
as Issuer
Dated as of October 1, 2003
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TABLE OF CONTENTS
Page
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ARTICLE I
Section 1.01. Definitions and Usage...........................................1
ARTICLE II
Section 2.01. Duties with Respect to the Indenture............................2
Section 2.02. Duties with Respect to the Issuer...............................3
Section 2.03. Establishment of Trust Accounts.................................4
Section 2.04. Collections.....................................................7
Section 2.05. Application of Collections......................................7
Section 2.06. Additional Deposits.............................................7
Section 2.07. Distributions...................................................8
Section 2.08. Cash Capitalization Account and Reserve Account................13
Section 2.09. Statements to Certificateholders and Noteholders...............15
Section 2.10. Non-Ministerial Matters........................................17
Section 2.11. Exceptions.....................................................17
Section 2.12. Compensation...................................................17
Section 2.13. Servicer and Administrator Expenses............................17
ARTICLE III
Section 3.01. Administrator's Certificate; Servicer's Report.................18
Section 3.02. Annual Statement as to Compliance; Notice of
Default; Financial Statements.................................18
Section 3.03. Annual Independent Certified Public Accountants' Reports.......19
ARTICLE IV
Section 4.01. Representations of Administrator...............................20
Section 4.02. Liability of Administrator; Indemnities........................21
Section 4.03. Merger or Consolidation of, or Assumption of the
Obligations of, Administrator.................................22
Section 4.04. Limitation on Liability of Depositor, Administrator
and Others....................................................23
Section 4.05. Administrator May Own Certificates or Notes....................24
Section 4.06. Sallie Mae, Inc. Not to Resign as Administrator................24
ARTICLE V
Section 5.01. Administrator Default..........................................24
Section 5.02. Appointment of Successor.......................................25
Section 5.03. Notification to Noteholders and Certificateholders.............26
Section 5.04. Waiver of Past Defaults........................................26
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Page
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ARTICLE VI
Section 6.01. Termination....................................................26
ARTICLE VII
Section 7.01. Protection of Interests in Trust...............................27
ARTICLE VIII
Section 8.01. Independence of the Administrator..............................29
Section 8.02. No Joint Venture...............................................30
Section 8.03. Other Activities of Administrator..............................30
Section 8.04. Powers of Attorney.............................................30
Section 8.05. Amendment......................................................30
Section 8.06. Assignment.....................................................31
Section 8.07. Limitations on Rights of Others................................31
Section 8.08. Assignment to Indenture Trustee................................31
Section 8.09. Nonpetition Covenants..........................................31
Section 8.10. Limitation of Liability of Trustee and Indenture Trustee.......32
Section 8.11. Governing Law..................................................32
Section 8.12. Headings.......................................................32
Section 8.13. Counterparts...................................................32
Section 8.14. Severability...................................................33
Appendix
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ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of October 1, 2003, is among SALLIE
MAE, INC., as administrator (the "Administrator"), SALLIE MAE SERVICING L.P., as
servicer (the "Servicer"), SLM EDUCATION CREDIT FUNDING LLC, as depositor (the
"Depositor"), JPMORGAN CHASE BANK, a New York banking corporation, not in its
individual capacity but solely as indenture trustee (the "Indenture Trustee"),
and SLM PRIVATE CREDIT STUDENT LOAN TRUST 2003-C, as issuer (the "Issuer").
WITNESSETH:
WHEREAS, the Issuer is issuing six classes of Student Loan-Backed Notes
(collectively, the "Notes") pursuant to the Indenture, dated as of October 1,
2003 (the "Indenture"), between the Issuer and the Indenture Trustee and one
class of Student Loan-Backed Certificates (the "Certificates") pursuant to the
Trust Agreement, dated as of October 1, 2003 (the "Trust Agreement"), among the
Depositor, the Trustee and the Indenture Trustee;
WHEREAS, the Issuer has entered into certain agreements in connection with
the issuance of the Notes and the Certificates, including the Servicing
Agreement, the Depositor Sale Agreement, the Swap Agreements, the Interest Rate
Cap Agreement and the Indenture;
WHEREAS, pursuant to certain Basic Documents, the Issuer and the Trustee
are required to perform certain duties in connection with (a) the Notes and the
Collateral therefor pledged pursuant to the Indenture and (b) the Certificates;
WHEREAS, the Issuer and the Trustee desire to have the Administrator and
the Servicer perform certain of the duties of the Issuer and the Trustee
referred to in the preceding clause, and to provide such additional services
consistent with the terms of this Agreement and the Basic Documents as the
Issuer and the Trustee may from time to time request; and
WHEREAS, the Administrator and the Servicer have the capacity to provide
the services required hereby and are willing to perform such services for the
Issuer and the Trustee on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties agree as follows:
ARTICLE I
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 and Appendix A-2 hereto,
which also contains rules as to usage that shall be applicable herein.
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ARTICLE II
Section 2.01. Duties with Respect to the Indenture. The Administrator
agrees to consult with the Trustee regarding the duties of the Issuer under the
Indenture and the Depository Agreements. The Administrator shall monitor the
performance of the Issuer and shall advise the Trustee when action is necessary
to comply with the Issuer's duties under the Indenture and the Depository
Agreements. The Administrator shall prepare for execution by the Issuer or shall
cause the preparation by other appropriate Persons of all such documents,
reports, filings, instruments, certificates and opinions as it shall be the duty
of the Issuer to prepare, file or deliver pursuant to the Indenture and the
Depository Agreements. In furtherance of the foregoing, the Administrator shall
take the actions with respect to the following matters that it is the duty of
the Issuer or the Indenture Trustee to take pursuant to the Indenture
(references being to Sections of the Indenture):
(a) preparing or obtaining the documents and instruments required for
authentication of the Notes and delivering the same to the Indenture Trustee
(Section 2.02);
(b) preparing, obtaining or filing the instruments, opinions and
certificates and other documents required for the release of collateral (Section
2.09);
(c) obtaining and preserving the Issuer's qualification to do business in
each jurisdiction in which such qualification is or shall be necessary to
protect the validity and enforceability of the Indenture, the Notes, the
Collateral and each other instrument and agreement included in the Indenture
Trust Estate (Section 3.04);
(d) preparing all supplements, amendments, financing statements,
continuation statements, instruments of further assurance and other instruments,
in accordance with Section 3.05 of the Indenture, necessary to protect the
Indenture Trust Estate (Section 3.05);
(e) the delivery by the Issuer of the Opinion of Counsel on the Closing
Date and the annual delivery of Opinions of Counsel, in accordance with Section
3.06 of the Indenture, as to the Indenture Trust Estate, and the annual delivery
of the Officers' Certificate of the Issuer and certain other statements, in
accordance with Section 3.09 of the Indenture, as to compliance with the
Indenture (Sections 3.06 and 3.09);
(f) in the event of a Servicer Default, the taking of all reasonable steps
available to enforce the Issuer's rights under the Basic Documents in respect of
such Servicer Default (Section 3.07(d));
(g) the preparation and obtaining of documents and instruments required
for the release of the Issuer from its obligations under the Indenture (Section
3.10);
(h) monitoring the Issuer's obligations as to the satisfaction and
discharge of the Indenture and preparation of an Officers' Certificate of the
Issuer and obtaining of the Opinion of Counsel and the Independent Certificate
relating thereto (Section 4.01);
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(i) sale of the Indenture Trust Estate in a commercially reasonable manner
if an Event of Default has occurred and is continuing (Section 5.04) or an
Insolvency Event with respect to the Depositor has occurred and is continuing
(Section 6.05(b));
(j) preparing and, after execution by the Issuer, filing with the
Commission, any applicable State agencies and the Indenture Trustee of documents
required to be filed on a periodic basis with, and summaries thereof as may be
required by rules and regulations prescribed by, the Commission and any
applicable State agencies (Section 7.03);
(k) the opening of one or more accounts in the Issuer's name, the
preparation of Issuer Orders, Officers' Certificates of the Issuer and Opinions
of Counsel and all other actions necessary with respect to investment and
reinvestment of funds in the Trust Accounts (Sections 8.02 and 8.03);
(l) the preparation of an Issuer Request and Officers' Certificate of the
Issuer and the obtaining of an Opinion of Counsel and Independent Certificates,
if necessary, for the release of the Indenture Trust Estate (Sections 8.04 and
8.05);
(m) the preparation of Issuer Orders and the obtaining of Opinions of
Counsel with respect to the execution of supplemental indentures (Sections 9.01,
9.02 and 9.03);
(n) the preparation of or obtaining of the documents and instruments
required for the execution and authentication of new Notes conforming to any
supplemental indenture and the delivery of the same to the Trustee and the
Indenture Trustee, respectively (Section 9.06);
(o) the preparation of all Officers' Certificates of the Issuer, Opinions
of Counsel and Independent Certificates with respect to any requests by the
Issuer to the Indenture Trustee to take any action under the Indenture (Section
11.01(a));
(p) the preparation and delivery of Officers' Certificates of the Issuer
and the obtaining of Independent Certificates, if necessary, for the release of
property from the lien of the Indenture (Section 11.01(b));
(q) the preparation and delivery to Noteholders and the Indenture Trustee
of any agreements with respect to alternate payment and notice provisions
(Section 11.06);
(r) the recording of the Indenture, if applicable (Section 11.15);
(s) engaging or terminating any Broker-Dealers and taking other actions
with respect to the Auction Rate Procedures (Appendix A-2);
(t) approving persons to serve as a Broker-Dealer under the Broker-Dealer
Agreements, and providing all such Broker-Dealer Agreements to the
Indenture Trustee and the Auction Agent, as set forth in the Auction
Rate Note Procedures (Appendix A-2 to the Indenture);
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(u) the undertaking of all obligations required to be performed by the
Administrator, and to act on behalf of the Trust in fulfilling all
duties of the Trust, as set forth in the Auction Rate Note Procedures
(Appendix A-2 to the Indenture);
(v) the undertaking of all obligations required to be performed by the
Administrator, including, without limitation, preparing and delivering
all notices, communications, information and calculations, under any
Swap Agreement or the Cap Agreement;
(w) calculating prior to the fifth Business Day of each month, the ARS
Student Loan Rate and notifying the Auction Agent, the Indenture
Trustee and the Broker-Dealers promptly following the calculation
date;
(x) on the Closing Date, directing the Trustee to enter into the Interest
Rate Cap Agreement (not in its individual capacity, but solely on
behalf of the Trust) with the Interest Rate Cap Counterparty;
(y) calculating the Carry-over Amount, if any, for each class of Auction
Rate Notes and notifying each Auction Rate Noteholder, the Auction
Agent and the Trust at least four Business Days prior to the related
Auction Rate Distribution Date;
(z) calculating on each Quarterly Distribution Date, as applicable: the
Principal Distribution Amount and the applicable Specified Reserve
Account Balance;
(aa) calculating on or before each Distribution Date, as applicable, any
amounts to be deposited in, or withdrawn from, each Trust Account; and
(bb) prior to each Quarterly Distribution Date, calculating the ARS Student
Loan Rate applicable for such date.
Section 2.02. Duties with Respect to the Issuer.
(a) In addition to the duties of the Administrator set forth above and in
the other Basic Documents, the Administrator shall perform such calculations and
shall prepare for execution by the Issuer or the Trustee or shall cause the
preparation by other appropriate Persons of all such documents, reports,
filings, instruments, certificates and opinions as it shall be the duty of the
Issuer or the Trustee to prepare, file or deliver pursuant to the Basic
Documents, and at the request of the Trustee shall take all appropriate action
that it is the duty of the Issuer to take pursuant to the Basic Documents.
Subject to Section 8.01, and in accordance with the directions of the Trustee,
the Administrator shall administer, perform or supervise the performance of such
other activities in connection with the Collateral (including the Basic
Documents) as are not covered by any of the foregoing provisions and as are
expressly requested by the Trustee and are reasonably within the capability of
the Administrator.
(b) The Administrator shall be responsible for performance of the duties
of the Trustee set forth in Sections 5.04(a), (b), (c) and (d) of the Trust
Agreement with respect to, among other things, accounting and reports to
Certificateholders; provided, however, that the
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Trustee shall retain responsibility for the distribution of the Schedule K-1's
necessary to enable each Certificateholder to prepare its Federal and state
income tax returns.
(c) The Administrator shall perform the duties of the Administrator
specified in Section 10.02 of the Trust Agreement required to be performed in
connection with the resignation or removal of the Trustee, and any other duties
expressly required to be performed by the Administrator under the Trust
Agreement and the other Basic Documents.
(d) In carrying out the foregoing duties or any of its other obligations
under this Agreement, the Administrator may enter into transactions with or
otherwise deal with any of its Affiliates; provided, however, that the terms of
any such transactions or dealings shall be, in the Administrator's opinion, no
less favorable to the Issuer than would be available from unaffiliated parties.
(e) The Administrator shall perform the notice obligations in the event of
default by the Swap Counterparties or the Cap Counterparty specified in the
related Swap Agreements and Interest Rate Cap Agreement, respectively. The
Administrator shall also provide written notice to the Rating Agencies in the
event that a Swap Counterparty's rating is withdrawn, downgraded below "Aa3" by
Moody's, "A+" by S&P or "A-" by Fitch or put on watch for downgrade at a time
when the related Swap Counterparty's rating is "Aa3" by Moody's, "A+" by S&P or
"A-" by Fitch.
Section 2.03. Establishment of Trust Accounts.
(a)
(i) The Administrator, for the benefit of the Issuer, shall
establish and maintain in the name of the Indenture Trustee an Eligible
Deposit Account (the "Collection Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Issuer. The Collection Account will initially be established as a
segregated trust account in the name of the Indenture Trustee with the
corporate trust department of JPMorgan Chase Bank.
(ii) The Administrator, for the benefit of the Issuer, shall
establish and maintain in the name of the Indenture Trustee an Eligible
Deposit Account (the "Reserve Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Issuer. The Reserve Account will initially be established as a segregated
trust account in the name of the Indenture Trustee with the corporate trust
department of JPMorgan Chase Bank.
(iii) The Administrator, for the benefit of the Issuer, shall
establish and maintain in the name of the Indenture Trustee an Eligible
Deposit Account (the "Cash Capitalization Account"), bearing a designation
clearly indicating that the funds deposited therein are held for the
benefit of the Issuer. The Cash Capitalization Account will initially be
established as a segregated trust account in the name of the Indenture
Trustee with the corporate trust department of JPMorgan Chase Bank.
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(iv) The Administrator, for the benefit of the Issuer, shall
establish and maintain in the name of the Indenture Trustee an Eligible
Deposit Account (the "Principal Distribution Account"), bearing a
designation clearly indicating that the funds deposited therein are held
for the benefit of the Issuer. The Principal Distribution Account will
initially be established as a segregated trust account in the name of the
Indenture Trustee with the corporate trust department of JPMorgan Chase
Bank.
(v) The Administrator, for the benefit of the Issuer, shall
establish and maintain in the name of the Indenture Trustee an Eligible
Deposit Account (the "Future Distribution Account"), bearing a designation
clearly indicating that the funds deposited therein are held for the
benefit of the Issuer. The Future Distribution Account will initially be
established as a segregated trust account in the name of the Indenture
Trustee with the corporate trust department of JPMorgan Chase Bank.
(b) Funds on deposit in the Collection Account, the Reserve Account, the
Cash Capitalization Account and the Future Distribution Account (collectively,
the "Trust Accounts") shall be invested by the Indenture Trustee (or any
custodian or designated agent with respect to any amounts on deposit in such
accounts) in Eligible Investments pursuant to written instructions by the
Administrator; provided, however, it is understood and agreed that the Indenture
Trustee shall not be liable for the selection of, or any loss arising from such
investment in, Eligible Investments. All such Eligible Investments shall be held
by (or by any custodian on behalf of) the Indenture Trustee for the benefit of
the Issuer; provided, that on the Business Day preceding each Distribution Date
all interest and other investment income (net of losses and investment expenses)
on funds on deposit therein shall be deposited into the Collection Account and
shall be deemed to constitute a portion of the Available Funds for such
Distribution Date. Other than as described in the following proviso or as
otherwise permitted by the Rating Agencies, funds on deposit in the Trust
Accounts shall be invested in Eligible Investments that will mature so that such
funds will be available at the close of business on the Business Day preceding
the following Monthly Servicing Payment Date (to the extent necessary to pay the
Primary Servicing Fee payable on such date) or Distribution Date; provided,
however, that funds on deposit in Trust Accounts may be invested in Eligible
Investments of the Indenture Trustee which may mature so that such funds will be
available on such Monthly Servicing Payment Date or Distribution Date.
(c) (i) The Issuer has pledged to the Indenture Trustee all of their
respective right, title and interest in all funds on deposit from time to
time in the Trust Accounts and in all proceeds thereof (including all
income thereon) and all such funds, investments, proceeds and income shall
be part of the Trust Estate. Subject to the Administrator's power to
instruct the Indenture Trustee pursuant to clause (b) above and paragraph
(c)(iii) below, the Trust Accounts shall be under the sole dominion and
control of the Indenture Trustee for the benefit of the Noteholders and the
Issuer. If, at any time, any of the Trust Accounts ceases to be an Eligible
Deposit Account, the Indenture Trustee (or the Administrator on its behalf)
agrees, by its acceptance hereto, that it shall within 10 Business Days (or
such longer period, not to exceed 30 calendar days, as to which each Rating
Agency may consent) establish a new Trust Account as an Eligible Deposit
Account and shall transfer any cash and/or any investments to such new
Trust Account. In connection with the foregoing, the Administrator agrees
that, in the event that any of the Trust Accounts are not accounts with the
Indenture Trustee, the Administrator shall
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notify the Indenture Trustee in writing promptly upon any of such Trust
Accounts ceasing to be an Eligible Deposit Account.
(ii) With respect to the Trust Account Property, the Indenture
Trustee agrees, by its acceptance hereof, that:
(A) any Trust Account Property that is held in deposit
accounts shall be held solely in Eligible Deposit
Accounts, subject to the last sentence of Section
2.03(c)(i) and, subject to Section 2.03(b), each such
Eligible Deposit Account shall be subject to the exclusive
custody and control of the Indenture Trustee, and the
Indenture Trustee shall have sole signature authority with
respect thereto;
(B) any Trust Account Property that constitutes Physical
Property shall be Delivered to the Indenture Trustee in
accordance with paragraph (a) of the definition of
"Delivery" and shall be held, pending maturity or
disposition, solely by the Indenture Trustee or a
financial intermediary (as such term is defined in Section
8-313(4) of the UCC) acting solely for the Indenture
Trustee;
(C) any Trust Account Property that is a book-entry security
held through the Federal Reserve System pursuant to
Federal book-entry regulations shall be Delivered in
accordance with paragraph (b) of the definition of
"Delivery" and shall be maintained by the Indenture
Trustee, pending maturity or disposition, through
continuous book-entry registration of such Trust Account
Property as described in such paragraph; and
(D) any Trust Account Property that is an "uncertificated
security" under Article 8 of the UCC and that is not
governed by clause (C) above shall be Delivered to the
Indenture Trustee in accordance with paragraph (c) of the
definition of "Delivery" and shall be maintained by the
Indenture Trustee, pending maturity or disposition,
through continued registration of the Indenture Trustee's
(or its nominee's) ownership of such security.
(iii) The Administrator shall have the power, revocable for cause or
upon the occurrence and during the continuance of an Administrator Default
by the Indenture Trustee or by the Trustee with the consent of the
Indenture Trustee, to instruct the Indenture Trustee to make withdrawals
and payments from the Trust Accounts for the purpose of permitting the
Servicer, the Administrator or the Trustee to carry out its respective
duties hereunder or permitting the Indenture Trustee to carry out its
duties under the Indenture.
Section 2.04. Collections. The Servicer shall remit within two Business
Days of receipt thereof to the Collection Account all payments by or on behalf
of the Obligors with respect to the Trust Student Loans (other than Purchased
Student Loans), and all Recoveries, as collected
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during the Collection Period. Notwithstanding the foregoing, for so long as no
Administrator Default shall have occurred and be continuing, the Servicer and
the Trustee shall remit such collections within two Business Days of receipt
thereof to the Administrator, and the Administrator need not deposit such
collections into the Collection Account until one Business Day immediately prior
to the next following Monthly Servicing Payment Date together with interest on
such amounts (less Servicing Fees paid during such period) calculated on a daily
basis from the first day of the month following receipt thereof by the
Administrator through the last day of the related Collection Period at a rate
not less than the Federal Funds Rate less 0.20%. In the event that the foregoing
condition for ceasing daily remittances shall no longer be satisfied, then the
Administrator shall deposit all collections held by it into the Collection
Account within two Business Days thereof.
Section 2.05. Application of Collections.
(a) With respect to each Trust Student Loan, all collections with respect
thereto for each Collection Period shall be applied to interest and principal on
such Trust Student Loan by the Servicer in accordance with its customary
practice.
(b) All Recoveries shall be applied to the related Trust Student Loan.
Section 2.06. Additional Deposits.
(a) The Servicer shall deposit or cause to be deposited in the Collection
Account the aggregate purchase price with respect to Purchased Student Loans as
determined pursuant to Section 3.05 of the Servicing Agreement and all other
amounts to be paid by the Servicer under Section 3.05 of the Servicing Agreement
when such amounts are due, and the Depositor shall deposit or cause to be
deposited in the Collection Account the aggregate Purchase Amount with respect
to Purchased Student Loans and all other amounts to be paid by the Depositor
under Article VI of the Depositor Sale Agreement when such amounts are due.
(b) Notwithstanding anything to the contrary set forth in clause (a)
above, if daily deposits to the Collection Account are not required pursuant to
Section 2.04, the Servicer shall pay the amounts referred to in clause (a) above
that would otherwise be deposited into the Collection Account to the
Administrator. The Administrator shall not be required to deposit such amounts
into the Collection Account until the Business Day preceding each Quarterly
Distribution Date; provided, however, that (1) on or before the Business Day
preceding each Monthly Servicing Payment Date that is not a Quarterly
Distribution Date, the Administrator shall deposit into the Collection Account
that portion of such amounts received by it that is equal to the Primary
Servicing Fee payable on such date and (2) the Administrator shall also deposit
into the Collection Account (a) on or before the fifteenth calendar day of each
month, an amount sufficient to make the allocations described under Section
2.07(e) and (b) on or before the Business Day preceding each Distribution Date
that is not a Quarterly Distribution Date any amounts required to make
distributions on such Distribution Date not previously deposited pursuant to
clause (a) above, in each case, to the extent it has collected such amounts
during the related Collection Period; and provided, further, that the
Administrator shall also deposit into the Collection Account on such date
interest on such amounts (less Servicing Fees paid during such period)
calculated on a daily basis from the first day of the month following receipt
thereof by
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the Administrator through the last day of the related Collection Period at a
rate equal to the Federal Funds Rate less 0.20%.
(c) The Administrator shall deposit all payments received by the Issuer
from the Swap Counterparties and Cap Counterparty during the Collection Period
into the Collection Account.
Section 2.07. Distributions.
(a) On each Determination Date, the Administrator shall calculate all
amounts required to determine the amounts to be deposited in the Collection
Account from the Cash Capitalization Account and the Reserve Account and the
amounts to be distributed therefrom on the related Distribution Date. On or
before the Business Day immediately preceding each Distribution Date that is not
a Quarterly Distribution Date, the Administrator shall calculate all amounts
required to be deposited in the Collection Account from the Reserve Account and
the Cash Capitalization Account and the amount to be distributed therefrom on
the related Distribution Date. On or before the Business Day immediately
preceding each Distribution Date, the Administrator shall calculate any amounts
to be withdrawn from the Future Distribution Account with respect to each
applicable entity. On the fifth Business Day preceding each Monthly Servicing
Payment Date that is not a Distribution Date, the Administrator shall calculate
all amounts required to determine the amounts to be deposited in the Collection
Account from the Cash Capitalization Account and the Reserve Account and the
amounts to be distributed therefrom on the related Monthly Servicing Payment
Date.
(b) The Administrator shall instruct the Indenture Trustee in writing no
later than the second Business Day preceding each Monthly Servicing Payment Date
that is not a Quarterly Distribution Date (based on the information contained in
the Administrator's Certificate and the related Servicer's Report delivered
pursuant to Section 3.01 (a) and (b)) to distribute to the Servicer, by 1.00
p.m. (New York time) on such Monthly Servicing Payment Date, from and to the
extent of funds on deposit in the Future Distribution Account (with respect to
funds allocated to the Servicer) and, if amounts on deposit therein are
insufficient, from Available Funds on deposit in the Collection Account, the
Primary Servicing Fee due with respect to the preceding calendar month, and the
Indenture Trustee shall comply with such instructions.
(c) The Administrator shall instruct the Indenture Trustee in writing no
later than the second Business Day preceding each Quarterly Distribution Date
(based on the information contained in the Administrator's Certificate and the
related Servicer's Report delivered pursuant to Section 3.01(a) and 3.01(c)) to
make the following deposits and distributions with respect to Notes that have a
Distribution Date on that Quarterly Distribution Date, and in the case of a
Quarterly Distribution Date that is not an Auction Rate Distribution Date for
one or more classes of the Auction Rate Notes, allocations to the Future
Distribution Account with respect to those Auction Rate Notes (for principal and
Carry-over Amounts), to the Persons or to the account specified below by 1:00
p.m. (New York time) on such Quarterly Distribution Date (to the extent that
funds are not required to be distributed pursuant to Section 5.04(b) of the
Indenture), to the extent of the amount of Available Funds in the Collection
Account plus amounts transferred to the Collection Account pursuant to Section
2.08 of this Agreement, and, as applicable, amounts
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on deposit in the Future Distribution Account, in the following order of
priority, and the Indenture Trustee shall comply with such instructions:
(i) to the Servicer, the Primary Servicing Fee due on such
Distribution Date;
(ii) to the Administrator, the Administration Fee due on such
Distribution Date, plus any unpaid Administration Fees from previous
Distribution Dates;
(iii) pro rata, to the Auction Agent any Auction Agent Fees and to
the Broker-Dealers, any Broker-Dealer Fees;
(iv) to the Swap Counterparties, any Swap Payment payable by the
Issuer to each Swap Counterparty under its Swap Agreement for such
Distribution Date;
(v) pro rata, based on the aggregate principal balance of the Notes
and the amount of any Swap Termination Payment due and payable by the
Issuer to a Swap Counterparty under this clause (v):
(A) to the Class A Noteholders, the Class A Noteholders'
Interest Distribution Amount; and
(B) to the Swap Counterparties, the amount of any Swap
Termination Payment 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
the Class A Noteholders' Interest Distribution Amount
as of such Distribution Date, such amounts shall be
applied to pay the portion, if any, of any Swap
Termination Payment referred to above remaining unpaid;
(vi) to the Principal Distribution Account, the First Priority
Principal Distribution Amount, if any;
(vii) to the Class B Noteholders, the Class B Noteholders' Interest
Distribution Amount;
(viii) to the Principal Distribution Account, the Second Priority
Principal Distribution Amount, if any;
(ix) to the Class C Noteholders, the Class C Noteholders' Interest
Distribution Amount;
(x) to the Principal Distribution Account, the Third Priority
Principal Distribution Amount, if any;
(xi) to the Reserve Account, the amount required to reinstate the
amount in the Reserve Account up to the Specified Reserve Account Balance;
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(xii) to the Principal Distribution Account, the Regular Principal
Distribution Amount, if any;
(xiii) to the Servicer, all Carryover Servicing Fees, if any;
(xiv) to the Auction Rate Noteholders, any Carry-over Amounts due to
the Auction Rate Notes;
(xv) to each Swap Counterparty, the amount of any Swap Termination
Payments owed by the Issuer to that Swap Counterparty under its Swap
Agreement and not payable in clause (v) above;
(xvi) to the Principal Distribution Account, the Additional Principal
Distribution Amount, if any; and
(xvii) to the Certificateholders, any remaining funds.
(d) The Administrator shall instruct the Indenture Trustee to make the
following distributions and allocations from the Principal Distribution Account
on each Quarterly Distribution Date:
(i) Principal payable to a class of Auction Rate Notes will be
allocated to such class of Auction Rate Notes on a Quarterly Distribution
Date that is not an Auction Rate Distribution Date and deposited in the
Future Distribution Account and then paid to the applicable class of
Auction Rate Notes on the first Auction Rate Distribution Date for such
class after the Quarterly Distribution Date on which principal was
allocated to such class.
(ii) With respect to each Quarterly Distribution Date (x) before the
Stepdown Date or (y) with respect to which a Trigger Event is in effect, to
pay Holders of the Class A Notes 100% of the Principal Distribution Amount
for such Quarterly Distribution Date, such amount to be paid sequentially
first, to the Class A-1 Notes, second, to the Class A-2 Notes, and third,
pro rata, to the Class A-3 Notes, Class A-4 Notes and Class A-5 Notes,
until the Class A Note Balance has been reduced to zero. Once the Class A
Note Balance has been reduced to zero, to pay the Holders of the Class B
Notes 100% of the Principal Distribution Amount for that Quarterly
Distribution Date until the Class B Note Balance has been reduced to zero.
Once the Class B Note Balance has been reduced to zero, to pay the Holders
of the Class C Notes 100% of the Principal Distribution Amount for that
Quarterly Distribution Date until the Class C Note Balance has been reduced
to zero.
(iii) On each Quarterly Distribution Date (x) on or after the
Stepdown Date and (y) as long as a Trigger Event and is not in effect, the
Indenture Trustee shall pay the Holders of all Classes of Notes (or with
respect to the Auction Rate Notes, allocate) payments of principal, in the
order of priority and in the amounts set forth below to the extent funds
are available in the Principal Distribution Account:
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(A) an amount up to the Class A Noteholders' Principal
Distribution Amount sequentially first, to the Class A-1
Notes, second, to the Class A-2 Notes, and third, pro
rata, to the Class A-3 Notes, Class A-4 Notes and Class
A-5 Notes, until the Class A Note Balances have been
reduced to zero; provided, however, that on any
Distribution Date on which the Class A Note Parity Trigger
is in effect, the Indenture Trustee shall distribute (or
with respect to the Auction Rate Notes, allocate) the
Class A Noteholders' Principal Distribution Amount, pro
rata, to the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes (in lots of $50,000), the Class A-4 Notes
(in lots of $50,000) and the Class A-5 Notes (in lots of
$50,000) based on their Outstanding Amount, until the
Class A Note Balances have been reduced to zero;
(B) amounts remaining in the Principal Distribution Account up
to the related Class B Noteholders' Principal Distribution
Amount to the Class B Notes, until the Class B Note
Balance has been reduced to zero;
(C) amounts remaining in the Principal Distribution Account up
to the related Class C Noteholders Principal Distribution
Amount to the Class C Notes, until the Class C Note
Balance thereof has been reduced to zero; and
(D) amounts remaining in the Principal Distribution Amount
sequentially, to the Class C Notes until the Class C Note
Balance has been reduced to zero, then to the Class B
Notes until the Class B Note Balance has been reduced to
zero, then to the Class A Notes (or, with respect to the
Auction Rate Notes, be allocated) until the Class A Note
Balance has been reduced to zero.
(e) On or prior to the fifth business day of each month, the Administrator
shall instruct the Indenture Trustee to make the following allocations on or
before the fifteenth calendar day of the same month with funds on deposit in the
Collection Account in the following order of priority:
(i) deposit into the Future Distribution Account for the Servicer
and the Administrator, pro rata, the amount of the Servicing Fee and
Administration Fee that will accrue for the related calendar month plus any
previously accrued and unpaid or set aside Servicing Fee and Administration
Fee,
(ii) deposit into the Future Distribution Account, pro rata, for the
Auction Agent and the Broker-Dealers an amount equal to their Auction Agent
Fees and Broker-Dealer Fees, respectively, expected to be payable from the
calendar day after the current calendar month's Quarterly Distribution Date
or Monthly Servicing Payment Date through the following month's Quarterly
Distribution Date or Monthly Servicing
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Payment Date, as the case may be, plus previously accrued and unpaid or set
aside Auction Agent Fees and Broker-Dealer Fees,
(iii) deposit into the Future Distribution Account for the Swap
Counterparties an amount equal to Swap Payments to each Swap Counterparty
expected to accrue on the Class A Notes from the calendar day after the
current calendar month's Quarterly Distribution Date or Monthly Servicing
Payment Date through the following month's Quarterly Distribution Date or
Monthly Servicing Payment Date, as the case may be, plus previously accrued
and unpaid or set aside Swap Payments, net of payments expected to accrue
for this period from the related Swap Counterparty, and
(iv) deposit into the Future Distribution Account, pro rata, for (a)
each class of the Class A Notes an amount equal to interest expected to
accrue on the Class A Notes from the calendar day after the current
calendar month's Quarterly Distribution Date or Monthly Servicing Payment
Date through the following month's Quarterly Distribution Date or Monthly
Servicing Payment Date, as the case may be, plus previously accrued and
unpaid or set aside interest and (b) each Swap Counterparty, Swap
Termination Payments described under Section 2.07(c)(v)(B) due to that Swap
Counterparty under its Swap Agreement.
(f) On each Auction Rate Distribution Date that is not a Quarterly
Distribution Date, the Administrator shall instruct the Indenture Trustee to
make the following distributions in the following order of priority:
(i) from amounts deposited in the Future Distribution Account that
were allocated to the Auction Agent and the Broker-Dealers, and then from
amounts on deposit in the Collection Account, pro rata, to the Auction
Agent and the Broker-Dealers, the Auction Agent Fees of the Auction Agent
and the Broker-Dealer Fees of the Broker-Dealers; and
(ii) from amounts deposited in the Future Distribution Account for
the benefit of the Auction Rate Notes with a Distribution Date on this
Auction Rate Distribution Date, and then from amounts on deposit in the
Collection Account, pro rata, to the Auction Rate Notes with a Distribution
Date on the Auction Rate Distribution Date, an amount equal to the Class A
Noteholders' Interest Distribution Amount on such Auction Rate Notes.
(g) All amounts deposited in the Future Distribution Account shall be
deposited therein for the benefit of an entity or a class of Notes. Each such
amount shall only be distributable to the entity or the class of Notes for whom
it was so deposited. Amounts on deposit in the Future Distribution Account with
respect to principal and Carry-Over Amounts allocated to the Auction Rate Notes
shall be paid to the Auction Rate Notes on their Auction Rate Distribution
Dates.
(h) If less than all of the Auction Rate Notes are to be paid or allocated
principal sufficient to repay them in full on a Quarterly Distribution Date, the
Administrator shall determine the particular classes of Auction Rate Notes which
will be paid or allocated principal
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on a Quarterly Distribution Date. The Administrator shall make such
determination as follows: (1) first, the Administrator shall compute the number
of $50,000 increments of principal that are available to be paid or allocated to
the Auction Rate Notes and (2) second, the Administrator shall pay or allocate
such $50,000 increments in a manner that will preserve as nearly as practicable,
the respective original proportions of such Classes that remain outstanding,
with any excess increment that cannot be so paid or allocated being chosen by
random lot.
If less than all of the Auction Rate Notes of a given class are to be paid
or allocated principal on a Quarterly Distribution Date in an amount sufficient
to pay such class in full, the particular Auction Rate Notes to be paid shall be
selected by the Administrator by random lots of $50,000. If there are any
amounts available to pay or allocate principal to the Auction Rate Notes that
are not in $50,000 increments, the Administrator shall deposit such amounts to
the Future Distribution Account to pay principal to the Auction Rate Notes in
the future.
Section 2.08. Cash Capitalization Account and Reserve Account.
(a) On the Closing Date, the Issuer shall deposit the Cash Capitalization
Account Initial Deposit into the Cash Capitalization Account and the Reserve
Account Initial Deposit into the Reserve Account.
(i) The Administrator shall instruct the Indenture Trustee in
writing to withdraw funds on deposit in the Cash Capitalization Account and
deposit such amounts into the Collection Account if Available Funds for a
Distribution Date are insufficient to make the payment described under
Section 2.07(b) for a Monthly Servicing Payment Date that is not a
Quarterly Distribution Date in an amount equal to the shortfall.
(ii) The Administrator shall instruct the Indenture Trustee in
writing to withdraw funds on deposit in the Cash Capitalization Account and
deposit such amounts into the Collection Account if Available Funds for a
Distribution Date are insufficient to make the payments described under
Sections 2.07(c)(i) through (x) for a Quarterly Distribution Date in an
amount equal to the shortfall.
(iii) The Administrator shall instruct the Indenture Trustee in
writing to withdraw funds on deposit in the Cash Capitalization Account and
deposit such amounts into the Collection Account if amounts on deposit in
the Future Distribution Account and in the Collection Account for a
Distribution Date are insufficient to make the payments described under
Section 2.07(f) for a Distribution Date in an amount equal to the
shortfall.
(iv) The Administrator shall instruct the Indenture Trustee in
writing to withdraw funds on deposit in the Reserve Account and deposit
such amounts into the Collection Account if Available Funds and amounts
withdrawn from the Cash Capitalization Account and deposited into the
Collection Account pursuant to clause (i) above for a Distribution Date are
insufficient to make the payment described under Section 2.07(b) for a
Monthly Servicing Payment Date that is not a Quarterly Distribution Date in
an amount equal to the shortfall.
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(v) The Administrator shall instruct the Indenture Trustee in
writing to withdraw funds on deposit in the Reserve Account and deposit
such amounts into the Collection Account if amounts on deposit in the
Future Distribution Account and in the Collection Account and amounts
withdrawn from the Cash Capitalization Account and deposited into the
Collection Account pursuant to clause (iii) above for a Distribution Date
are insufficient to make the payments described under Section 2.07(f) for a
Distribution Date in an amount equal to the shortfall.
(vi) The Administrator shall instruct the Indenture Trustee to
withdraw funds on deposit in the Reserve Account and deposit such amounts
into the Collection Account if Available Funds and amounts withdrawn from
the Cash Capitalization Account and deposited into the Collection Account
pursuant to clause (ii) above for a Quarterly Distribution Date are
insufficient to make the payments described under Sections 2.07(c)(i)
through (v), (vii) and (ix) for a Quarterly Distribution Date in an amount
equal to the shortfall.
(vii) The Administrator shall instruct the Indenture Trustee in
writing to withdraw funds on deposit in the Reserve Account and deposit
such amounts in the Collection Account if Available Funds and amounts
withdrawn from the Cash Capitalization Account and deposited in the
Collection Account for a Distribution Date are insufficient to make the
payments described under Sections 2.07(vi), (viii) and (x) on the
respective Note Final Maturity Date of each Class of Notes in an amount
equal to the unpaid Outstanding Amount of the maturing Class of Notes and,
as applicable, amounts on deposit in the Future Distribution Account.
(viii) On each Quarterly Distribution Date from the September 2004
Quarterly Distribution Date through the March 2007 Quarterly Distribution
Date, the Administrator shall instruct the Indenture Trustee in writing to
withdraw funds on deposit in the Cash Capitalization Account in the amount
by which CI (as defined in the definition of Asset Balance) for such
Quarterly Distribution Date is in excess of 5.50% of the Asset Balance on
the Closing Date, deposit such amounts into the Collection Account and
treat such amount as Available Funds if:
(A) the sum of (1) the Pool Balance as of the last day of the
second preceding Collection Period and (2) the amount on deposit in
the Cash Capitalization Account immediately following the preceding
Quarterly Distribution Date, minus the aggregate outstanding balance
of the Notes immediately following the preceding Quarterly
Distribution Date is greater than or equal to $6,764,122; and
(B) at least 45% of the Trust Student Loans by principal
balance are in repayment and are not more than 30 days past due as of
the end of the Collection Period for the current Quarterly
Distribution Date.
(ix) On each Quarterly Distribution Date from the September 2005
Quarterly Distribution Date through the March 2007 Quarterly Distribution
Date, the Administrator shall instruct the Indenture Trustee in writing to
withdraw funds on deposit in the Cash
15
Capitalization Account in the amount by which CI (as defined in the
definition of Asset Balance) for such Quarterly Distribution Date is in
excess of 3.50% of the Asset Balance on the Closing Date, deposit such
amounts into the Collection Account and treat such amount as Available
Funds if:
(A) the sum of (1) the Pool Balance as of the last day of the
second preceding Collection Period and (2) the amount on deposit in
the Cash Capitalization Account immediately following the preceding
Quarterly Distribution Date, minus the aggregate outstanding balance
of the Notes immediately following the preceding Quarterly
Distribution Date is greater than or equal to $13,528,244; and
(B) at least 60% of the Trust Student Loans by principal
balance are in repayment and are not more than 30 days past due as of
the end of the Collection Period for the current Quarterly
Distribution Date.
(b) The Indenture Trustee shall withdraw all amounts on deposit in the
Cash Capitalization Account on the March 2007 Quarterly Distribution Date and
deposit such amount to the Collection Account and treat such amounts as
Available Funds.
(c) On the final Distribution Date upon termination of the Trust and
following the payment in full of the Class Note Balance and of all other amounts
(other than Carryover Servicing Fees, Carry-over Amounts and Swap Termination
Payments) owing or to be distributed hereunder or under the Indenture or the
Trust Agreement to Noteholders, the Servicer, the Swap Counterparties or the
Administrator, to the extent that Available Funds on such date are insufficient
to make the following payments, amounts remaining in the Reserve Account shall
be used first to pay any Carryover Servicing Fees, second to pay any Carry-over
Amounts to the Auction Rate Noteholders and third to pay any Swap Termination
Payments. Any amount remaining on deposit in the Reserve Account after such
payments have been made shall be distributed to the Certificateholders. The
Certificateholders shall in no event be required to refund any amounts properly
distributed pursuant to this Section 2.08(c).
(d) Anything in this Section 2.08 to the contrary notwithstanding, if the
market value of securities and cash in the Reserve Account and any other
Available Funds is on any Distribution Date sufficient to pay the remaining
principal amount of and interest accrued on the Notes, any amount owing to the
Swap Counterparties, any unpaid Primary Servicing Fees and Administration Fees
and all other amounts due by the Trust on such Distribution Date, such amount
shall be so applied on such Distribution Date and the Administrator shall
instruct the Indenture Trustee to use all amounts in the Reserve Account and all
other Available Funds to pay such amounts due or outstanding.
Section 2.09. Statements to Certificateholders and Noteholders. On each
Determination Date preceding a Distribution Date, the Administrator shall
provide to the Indenture Trustee and the Trustee (with a copy to the Rating
Agencies) for the Indenture Trustee to forward on such succeeding Distribution
Date to each Noteholder of record and for the Trustee to forward on such
succeeding Distribution Date to each Certificateholder of record a statement,
setting forth at
16
least the following information with respect to such Distribution Date as to the
Notes and the Certificates to the extent applicable:
(a) the amount of such distribution allocable to principal of each class
of the Notes;
(b) the amount of the distribution allocable to interest on each class of
the Notes;
(c) the amount of the distribution allocable to the Certificates;
(d) the amount of Swap Payments payable by the Issuer to each Swap
Counterparty, the amount payable by each Swap Counterparty to the Issuer and the
amount of Swap Termination Payments payable by either the Issuer or a Swap
Counterparty;
(e) the Pool Balance as of the close of business on the last day of the
preceding Collection Period;
(f) the aggregate outstanding principal balance of the Notes, the Note
Pool Factor, as of such Distribution Date, after giving effect to payments
allocated to principal reported under clauses (a) and (c) above;
(g) the Note Rate for the next period for any class of Notes;
(h) the amount of the Primary Servicing Fee and any Carryover Servicing
Fee paid to the Servicer on such Distribution Date and on the two preceding
Monthly Servicing Payment Dates, and the amount, if any, of the Carryover
Servicing Fee remaining unpaid after giving effect to any such payments;
(i) the amount of the Administration Fee paid to the Administrator on such
Distribution Date;
(j) the amount of the aggregate principal balances of Trust Student Loans
that became Charged-Off Loans, if any, for the related Collection Period and the
balance of Trust Student Loans that are delinquent in each delinquency period as
of the end of such Collection Period;
(k) the amount of any Note Interest Shortfall, if any, in each case as
applicable to each class of Notes, and the change in such amounts from the
preceding statement;
(l) the aggregate Purchase Amounts for Trust Student Loans, if any, that
were repurchased by the Depositor or the Seller or purchased by the Servicer
from the Issuer in such Collection Period;
(m) whether the Cumulative Realized Loss Test is satisfied on such
Distribution Date; and
(n) the respective balance of the Reserve Account and the Cash
Capitalization Account on such Distribution Date, after giving effect to changes
therein on such Distribution Date.
17
Each amount set forth pursuant to clauses (a), (b), (c), (e), (i), (j) and
(l) above shall be expressed as a dollar amount per $1,000 of original principal
balance of a Certificate or Note, as applicable. A copy of the statements
referred to above may be obtained by any Certificate Owner or Note Owner by a
written request to the Trustee or the Indenture Trustee, respectively, addressed
to the respective Corporate Trust Office.
Section 2.10. Non-Ministerial Matters. With respect to matters that in the
reasonable judgment of the Administrator are nonministerial, the Administrator
shall not take any action unless within a reasonable time before the taking of
such action, the Administrator shall have notified the Trustee of the proposed
action and the Trustee shall not have withheld consent or provided an
alternative direction. For the purpose of the preceding sentence,
"non-ministerial matters" shall include:
(a) the amendment of or any supplement to the Indenture;
(b) the initiation of any claim or lawsuit by the Issuer and the
compromise of any action, claim or lawsuit brought by or against the Issuer
(other than in connection with the collection of the Trust Student Loans);
(c) the amendment, change or modification of the Basic Documents;
(d) the appointment of successor Note Registrars, successor Paying Agents
and successor Indenture Trustees pursuant to the Indenture or the appointment of
Successor Administrators or Successor Servicers, or the consent to the
assignment by the Note Registrar, Paying Agent or Indenture Trustee of its
obligations under the Indenture; and
(e) the removal of the Indenture Trustee.
Section 2.11. Exceptions. Notwithstanding anything to the contrary in this
Agreement, except as expressly provided herein or in the other Basic Documents,
the Administrator shall not be obligated to, and shall not, (i) make any
payments to the Noteholders under the Basic Documents, (ii) sell the Indenture
Trust Estate pursuant to Section 5.04 of the Indenture, (iii) take any other
action that the Issuer directs the Administrator not to take on its behalf, (iv)
in connection with its duties hereunder assume any indemnification obligation of
any other Person or (v) service the Trust Student Loans.
Section 2.12. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Administrator shall be entitled to $20,000 for
each Collection Period payable on the related Quarterly Distribution Date (the
"Administration Fees") payable in arrears which shall be solely an obligation of
the Issuer.
Section 2.13. Servicer and Administrator Expenses. Each of the Servicer and
the Administrator shall be severally required to pay all expenses incurred by it
in connection with its activities hereunder, including fees and disbursements of
independent accountants, taxes imposed on the Servicer or the Administrator, as
the case may be, and expenses incurred in connection with distributions and
reports to the Administrator or to the Certificateholders and the Noteholders,
as the case may be.
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ARTICLE III
Section 3.01. Administrator's Certificate; Servicer's Report.
(a) On or before the tenth day of each month (or, if any such day is not a
Business Day, on the next succeeding Business Day), the Servicer shall deliver
to the Administrator a Servicer's Report with respect to the preceding month
containing all information necessary for the Administrator to receive in
connection with the preparation of the Administrator's Officers' Certificate and
the Administrator's Certificate covering such calendar month referred to in
clause (b) below. On or before the tenth day (or, if any such day is not a
Business Day, on the next succeeding Business Day), preceding each Quarterly
Distribution Date the Servicer shall deliver to the Administrator a Servicer's
Report with respect to the preceding Collection Period containing all
information necessary for the Administrator to receive in connection with the
preparation of the Administrator's Officers' Certificate and the Administrator's
Certificate covering such calendar month referred to in clause (c) below.
(b) On the second Business Day prior to each Monthly Servicing Payment
Date that is not a Distribution Date, the Administrator shall deliver to the
Trustee and the Indenture Trustee, an Officer's Certificate of the Administrator
containing all information necessary to pay the Servicer the Primary Servicing
Fee due on such Monthly Servicing Payment Date pursuant to Section 2.07(b).
(c) On each Determination Date prior to a Distribution Date, the
Administrator shall deliver to the Trustee and the Indenture Trustee, with a
copy to the Rating Agencies, an Administrator's Certificate containing all
information necessary to make the distributions pursuant to Sections 2.07 and
2.08, if applicable, for the Collection Period preceding the date of such
Administrator's Certificate.
(d) Prior to each Determination Date, the Administrator shall determine
the Note Rates that will be applicable to the Distribution Date following such
Determination Date, in compliance with its obligation to prepare and deliver an
Administrator's Certificate on such Determination Date pursuant to this Section
3.01. The Administrator shall furnish to the Issuer from time to time such
information regarding the Collateral as the Issuer shall reasonably request.
Section 3.02. Annual Statement as to Compliance; Notice of Default;
Financial Statements.
(a) Each of the Servicer and the Administrator shall deliver to the
Trustee and the Indenture Trustee on or before 120 days after the end of the
fiscal year of the Servicer and the Administrator, an Officer's Certificate of
the Servicer or the Administrator, as the case may be, dated as of December 31
of the preceding year, stating that (i) a review of the activities of the
Servicer or the Administrator, as the case may be, during the preceding 12-month
period (or, in the case of the first such certificate, during the period from
the Closing Date to December 31, 2003) and of its performance under this
Agreement has been made under such officers' supervision and (ii) to the best of
such officers' knowledge, based on such review, the Servicer or the
Administrator, as the case may be, has fulfilled its obligations in all material
respects
19
under this Agreement and, with respect to the Servicer, the Servicing Agreement
throughout such year or, if there has been a material default in the fulfillment
of any such obligation, specifying each such material default known to such
officers and the nature and status thereof. The Indenture Trustee shall send a
copy of each such Officers' Certificate and each report referred to in Section
3.01 to the Rating Agencies. A copy of each such Officers' Certificate and each
report referred to in Section 3.01 may be obtained by any Certificateholder,
Certificate Owner, Noteholder or Note Owner by a request in writing to the
Trustee addressed to its Corporate Trust Office, together with evidence
satisfactory to the Trustee that such Person is one of the foregoing parties.
Upon the telephone request of the Trustee, the Indenture Trustee will promptly
furnish the Trustee a list of Noteholders as of the date specified by the
Trustee.
(b) The Servicer shall deliver to the Trustee, the Indenture Trustee and
the Rating Agencies, promptly after having obtained knowledge thereof, but in no
event later than five Business Days thereafter, written notice in an Officers'
Certificate of the Servicer of any event which with the giving of notice or
lapse of time, or both, would become a Servicer Default under Section 5.01 of
the Servicing Agreement.
(c) The Administrator shall deliver to the Trustee, the Indenture Trustee
and the Rating Agencies, promptly after having obtained knowledge thereof, but
in no event later than five Business Days thereafter, written notice in an
Officers' Certificate of the Administrator of any event which with the giving of
notice or lapse of time, or both, would become an Administrator Default under
Sections 5.01(a) or (b) or would cause the Student Loan Marketing Association to
fail to meet the requirement of clause (i) of Section 2.04.
(d) The Administrator shall provide to the Trustee, the Indenture Trustee
and the Rating Agencies (i) as soon as possible and in no event more than 120
days after the end of each fiscal year of the Administrator audited financials
as at the end of and for such year and (ii) as soon as possible and in no event
more than 45 days after the end of each quarterly accounting period of the
Administrator unaudited financials as at the end of and for such period.
Section 3.03. Annual Independent Certified Public Accountants' Reports.
Each of the Servicer and the Administrator shall cause a firm of independent
certified public accountants, which may also render other services to the
Servicer or the Administrator, as the case may be, to deliver to the Trustee,
the Indenture Trustee and the Rating Agencies on or before March 31 of each
year, a report addressed to the Servicer or the Administrator, as the case may
be, the Trustee and the Indenture Trustee, to the effect that such firm has
examined certain documents and records relating to the servicing of the Trust
Student Loans, or the administration of the Trust Student Loans and of the
Trust, as the case may be, during the preceding calendar year (or, in the case
of the first such report, during the period from the Closing Date to December
31, 2003) and that, on the basis of the accounting and auditing procedures
considered appropriate under the circumstances, such firm is of the opinion that
such servicing or administration, respectively, was conducted in compliance with
those terms of this Agreement and in the case of the Servicer, the Servicing
Agreement, including any applicable statutory provisions incorporated therein
and such additional terms and statutes as may be specified from time to time by
the Administrator, except for (i) such exceptions as such firm shall believe to
be immaterial and (ii) such other exceptions as shall be set forth in such
report.
20
Such report will also indicate that the firm is independent of the Servicer
or the Administrator, as the case may be, within the meaning of the Code of
Professional Ethics of the American Institute of Certified Public Accountants.
ARTICLE IV
Section 4.01. Representations of Administrator. Sallie Mae, Inc., as
Administrator, makes the following representations on which the Issuer is deemed
to have relied in acquiring the Trust Student Loans. The representations speak
as of the execution and delivery of this Agreement and as of the Closing Date
and shall survive the sale of the Trust Student Loans to the Trustee on behalf
of the Issuer and the pledge thereof to the Indenture Trustee pursuant to the
Indenture.
(a) Organization and Good Standing. The Administrator is duly organized
and validly existing as a corporation under the laws of the State of Delaware,
with the power and authority to own its properties and to conduct its business
as such properties are currently owned and such business is presently conducted.
(b) Power and Authority. The Administrator has the corporate power and
authority to execute and deliver this Agreement and to carry out its terms, and
the execution, delivery and performance of this Agreement have been duly
authorized by the Administrator by all necessary corporate action.
(c) Binding Obligation. This Agreement constitutes a legal, valid and
binding obligation of the Administrator enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization and similar
laws relating to creditors' rights generally and subject to general principles
of equity.
(d) No Violation. The consummation of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof or thereof do not
conflict with, result in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time or both) a default under,
the charter or by-laws of the Administrator, or any indenture, agreement or
other instrument to which the Administrator is a party or by which it shall be
bound; nor result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or other
instrument (other than pursuant to the Basic Documents); nor violate any law or,
to the knowledge of the Administrator, any order, rule or regulation applicable
to the Administrator of any court or of any Federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Administrator or its properties.
(e) No Proceedings. There are no proceedings or investigations pending
against the Administrator or, to its best knowledge, threatened against the
Administrator, before any court, regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Administrator or its
properties: (i) asserting the invalidity of this Agreement or any of the other
Basic Documents, the Notes or the Certificates, (ii) seeking to prevent the
issuance of the Notes or the Certificates or the consummation of any of the
transactions contemplated by this
21
Agreement or any of the other Basic Documents, (iii) seeking any determination
or ruling that could reasonably be expected to have a material and adverse
effect on the performance by the Administrator of its obligations under, or the
validity or enforceability of, this Agreement, any of the other Basic Documents,
the Notes or the Certificates or (iv) seeking to affect adversely the Federal or
state income tax attributes of the Issuer, the Notes or the Certificates.
(f) All Consents. All authorizations, consents, orders or approvals of or
registrations or declarations with any court, regulatory body, administrative
agency or other government instrumentality required to be obtained, effected or
given by the Administrator in connection with the execution and delivery by the
Administrator of this Agreement and the performance by the Administrator of the
transactions contemplated by this Agreement have been duly obtained, effected or
given and are in full force and effect.
Section 4.02. Liability of Administrator; Indemnities. The
Administrator shall be liable in accordance herewith only to the extent of the
obligations specifically undertaken by the Administrator under this Agreement.
The Administrator shall indemnify, defend and hold harmless the Issuer, the
Certificateholders and the Noteholders and any of the officers, directors,
employees and agents of the Issuer from and against any and all costs, expenses,
losses, claims, damages and liabilities to the extent that such cost, expense,
loss, claim, damage or liability arose out of, or was imposed upon any such
Person through, the gross negligence, willful misfeasance or bad faith of the
Administrator in the performance of its duties under this Agreement or by reason
of reckless disregard of its obligations and duties hereunder or thereunder.
The Administrator shall indemnify the Indenture Trustee in its individual
capacity and any of its officers, directors, employees and agents against any
and all loss, liability or expense (including attorneys' fees) incurred by it in
connection with the performance of its duties under the Indenture and the other
Basic Documents. The Indenture Trustee shall notify the Issuer and the
Administrator promptly of any claim for which it may seek indemnity. Failure by
the Indenture Trustee to so notify the Issuer and the Administrator shall not
relieve the Issuer or the Administrator of its obligations hereunder and under
the other Basic Documents. The Administrator shall defend the claim and the
Administrator shall not be liable for the legal fees and expenses of the
Indenture Trustee after it has assumed such defense; provided, however, that, in
the event that there may be a conflict between the positions of the Indenture
Trustee and the Administrator in conducting the defense of such claim, the
Indenture Trustee shall be entitled to separate counsel the fees and expenses of
which shall be paid by the Administrator on behalf of the Issuer. Neither the
Issuer nor the Administrator need to reimburse any expense or indemnify against
any loss, liability or expense incurred by the Indenture Trustee through the
Indenture Trustee's own willful misconduct, negligence or bad faith.
The Administrator shall indemnify the Trustee in its individual capacity
and any of its officers, directors, employees and agents against any and all
loss, liability, claims, damages, costs, penalties, taxes (excluding taxes
payable by it on any compensation received by it for its services as trustee) or
expense (including attorneys' fees) incurred by it in connection with the
performance of its duties under the Trust Agreement and the other Basic
Documents.
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Without limiting the generality of the foregoing, the Administrator shall
indemnify the Trustee in its individual capacity and any of its officers,
directors, employees and agents against any and all liability relating to or
resulting from any of the following:
(i) any claim that the Trust Student Loans (or any guarantee with
respect thereto) are delinquent, uncollectable, uninsured, illegal, invalid
or unenforceable;
(ii) any claim that the Trust Student Loans have not been made,
administered, serviced or collected in accordance with applicable federal
and state laws or the requirements of any Guarantor; or
(iii) any claim that any original note or other document evidencing or
relating to the Trust Student Loans has been lost, misplaced or destroyed.
The Trustee shall notify the Administrator promptly of any claim for which
it may seek indemnity. Failure by the Trustee to so notify the Administrator
shall not relieve the Administrator of its obligations hereunder and under the
other Basic Documents. The Administrator shall defend the claim and the
Administrator shall not be liable for the legal fees and expenses of the Trustee
after it has assumed such defense; provided, however, that, in the event that
there may be a conflict between the positions of the Trustee and the
Administrator in conducting the defense of such claim, the Trustee shall be
entitled to separate counsel the fees and expenses of which shall be paid by the
Administrator on behalf of the Issuer. Neither the Issuer nor the Administrator
need reimburse any expense or indemnify against any loss, liability or expense
incurred by the Trustee through the Trustee's own willful misconduct, negligence
or bad faith.
The Depositor shall pay reasonable compensation to the Indenture Trustee
and shall reimburse the Indenture Trustee for all reasonable expenses,
disbursements and advances in accordance with a separate agreement between the
Depositor and the Indenture Trustee.
For purposes of this Section, in the event of the termination of the rights
and obligations of the Administrator (or any successor thereto pursuant to
Section 4.03) as Administrator pursuant to Section 5.01, or a resignation by
such Administrator pursuant to this Agreement, such Administrator shall be
deemed to be the Administrator pending appointment of a successor Administrator
pursuant to Section 5.02.
Indemnification under this Section shall survive the resignation or removal
of the Trustee or the Indenture Trustee or the termination of this Agreement and
shall include reasonable fees and expenses of counsel and expenses of
litigation. If the Administrator shall have made any indemnity payments pursuant
to this Section and the Person to or on behalf of whom such payments are made
thereafter collects any of such amounts from others, such Person shall promptly
repay such amounts to the Administrator, without interest.
Section 4.03. Merger or Consolidation of, or Assumption of the Obligations
of, Administrator. Any Person (a) into which the Administrator may be
merged or consolidated, (b) which may result from any merger or consolidation to
which the Administrator shall be a party or (c) which may succeed to the
properties and assets of the Administrator substantially as a whole, shall be
the successor to the Administrator without the execution or filing of any
23
document or any further act by any of the parties to this Agreement; provided,
however, that the Administrator hereby covenants that it will not consummate any
of the foregoing transactions except upon satisfaction of the following: (i) the
surviving Administrator, if other than Sallie Mae, Inc., executes an agreement
of assumption to perform every obligation of the Administrator under this
Agreement, (ii) immediately after giving effect to such transaction, no
representation or warranty made pursuant to Section 4.01 shall have been
breached and no Administrator Default, and no event that, after notice or lapse
of time, or both, would become an Administrator Default shall have occurred and
be continuing, (iii) the surviving Administrator, if other than Sallie Mae,
Inc., shall have delivered to the Trustee and the Indenture Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such consolidation,
merger or succession and such agreement of assumption comply with this Section
4.03 and that all conditions precedent, if any, provided for in this Agreement
relating to such transaction have been complied with, and that the Rating Agency
Condition shall have been satisfied with respect to such transaction, (iv)
unless Sallie Mae, Inc. is the surviving entity, such transaction will not
result in a material adverse Federal or state tax consequence to the Issuer, the
Noteholders or the Certificateholders and (v) unless Sallie Mae, Inc. is the
surviving entity, the Administrator shall have delivered to the Trustee and the
Indenture Trustee an Opinion of Counsel either (A) stating that, in the opinion
of such counsel, all financing statements and continuation statements and
amendments thereto have been executed and filed that are necessary fully to
preserve and protect the interest of the Trustee and Indenture Trustee,
respectively, in the Trust Student Loans and reciting the details of such
filings, or (B) stating that, in the opinion of such counsel, no such action
shall be necessary to preserve and protect such interests. Anything in this
Section 4.03 to the contrary notwithstanding, the Administrator may at any time
assign its rights, obligations and duties under this Agreement to an Affiliate
provided that the Rating Agencies confirm that such assignment will not result
in a downgrading or a withdrawal of the ratings then applicable to the Notes.
Section 4.04. Limitation on Liability of Administrator and Others.
Neither the Administrator nor any of its directors, officers, employees or
agents shall be under any liability to the Issuer, the Noteholders or the
Certificateholders, or to the Indenture Trustee or the Trustee except as
provided under this Agreement for any action taken or for refraining from the
taking of any action pursuant to this Agreement or for errors in judgment;
provided, however, that these provisions shall not protect the Administrator or
any such person against any liability that would otherwise be imposed by reason
of willful misfeasance, bad faith or negligence in the performance of duties or
by reason of reckless disregard of obligations and duties under this Agreement.
The Administrator and any of its directors, officers, employees or agents may
rely in good faith on the advice of counsel or on any document of any kind,
prima facie properly executed and submitted by any Person respecting any matters
arising hereunder.
Except as provided in this Agreement, the Administrator shall not be under
any obligation to appear in, prosecute or defend any legal action that shall not
be incidental to its duties to administer the Trust Student Loans and the Trust
in accordance with this Agreement and that in its opinion may involve it in any
expense or liability; provided, however, that the Administrator may undertake
any reasonable action that it may deem necessary or desirable in respect of this
Agreement and the other Basic Documents and the rights and duties of the parties
to this Agreement and the other Basic Documents and the interests of the
Certificateholders under this Agreement and the Noteholders under the Indenture
and under this Agreement.
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Section 4.05. Administrator May Own Certificates or Notes. The
Administrator and any Affiliate thereof may in its individual or any other
capacity become the owner or pledgee of Certificates or Notes with the same
rights as it would have if it were not the Administrator or an Affiliate
thereof, except as expressly provided herein or in any other Basic Document.
Section 4.06. Sallie Mae, Inc. Not to Resign as Administrator.
Subject to the provisions of Section 4.03, Sallie Mae, Inc. shall not resign
from the obligations and duties imposed on it as Administrator under this
Agreement except upon determination that the performance of its duties under
this Agreement shall no longer be permissible under applicable law or shall
violate any final order of a court or administrative agency with jurisdiction
over Sallie Mae, Inc. or its properties. Notice of any such determination
permitting or requiring the resignation of Sallie Mae, Inc. shall be
communicated to the Trustee and the Indenture Trustee at the earliest
practicable time (and, if such communication is not in writing, shall be
confirmed in writing at the earliest practicable time) and any such
determination shall be evidenced by an Opinion of Counsel to such effect
delivered to the Trustee and the Indenture Trustee concurrently with or promptly
after such notice. No such resignation shall become effective until the
Indenture Trustee or a successor Administrator shall have assumed the
responsibilities and obligations of Sallie Mae, Inc. in accordance with Section
5.02. Anything in this Section 4.06 to the contrary notwithstanding, the
Administrator may resign at any time subsequent to the assignment of its duties
and obligations hereunder pursuant to Section 4.03.
ARTICLE V
Section 5.01. Administrator Default. If any one of the following
events (an "Administrator Default") shall occur and be continuing:
(a) (i) in the event that daily deposits into the Collection Account are
not required, any failure by the Administrator to deliver to the Indenture
Trustee for deposit in the Trust Accounts any Available Funds required to be
paid on or before the Business Day immediately preceding any Monthly Servicing
Payment Date or Distribution Date, as applicable, or (ii) any failure by the
Administrator to direct the Indenture Trustee to make any required distributions
from either of the Trust Accounts, which failure in case of either clause (i) or
(ii) continues unremedied for five Business Days after written notice of such
failure is received by the Administrator from the Indenture Trustee or the
Trustee or after discovery of such failure by an officer of the Administrator;
(b) any failure by the Administrator duly to observe or to perform in any
material respect any other term, covenant or agreement of the Administrator set
forth in this Agreement or any other Basic Document, which failure shall (i)
materially and adversely affect the rights of Noteholders or Certificateholders
and (ii) continue unremedied for a period of 60 days after the date on which
written notice of such failure, requiring the same to be remedied, shall have
been given (A) to the Administrator by the Indenture Trustee or the Trustee or
(B) to the Administrator, the Indenture Trustee and the Trustee by the
Noteholders or Certificateholders, as applicable, representing not less than 50%
of the Outstanding Amount of the Controlling Notes or 50% of the outstanding
Certificates (including any Certificates owned by the Depositor); or
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(c) an Insolvency Event occurs with respect to the Administrator;
then, and in each and every case, so long as the Administrator Default shall not
have been remedied, either the Indenture Trustee or the Noteholders evidencing
not less than a majority of the Outstanding Amount of the Controlling Notes, by
notice then given in writing to the Administrator (and to the Indenture Trustee
and the Trustee if given by the Noteholders) may terminate all the rights and
obligations (other than the obligations set forth in Section 4.02) of the
Administrator under this Agreement. On or after the receipt by the Administrator
of such written notice, all authority and power of the Administrator under this
Agreement, whether with respect to the Notes, the Certificates, the Trust
Student Loans or otherwise, shall, without further action, pass to and be vested
in the Indenture Trustee or such successor Administrator as may be appointed
under Section 5.02; and, without limitation, the Indenture Trustee and the
Trustee are hereby authorized and empowered to execute and deliver, for the
benefit of the predecessor Administrator, as attorney-in-fact or otherwise, any
and all documents and other instruments, and to do or accomplish all other acts
or things necessary or appropriate to effect the purposes of such notice of
termination. The predecessor Administrator shall cooperate with the successor
Administrator, the Indenture Trustee and the Trustee in effecting the
termination of the responsibilities and rights of the predecessor Administrator
under this Agreement. All reasonable costs and expenses (including attorneys'
fees) incurred in connection with amending this Agreement to reflect such
succession as Administrator pursuant to this Section shall be paid by the
predecessor Administrator (other than the Indenture Trustee acting as the
Administrator under this Section 5.01) upon presentation of reasonable
documentation of such costs and expenses. Upon receipt of notice of the
occurrence of an Administrator Default, the Trustee shall give notice thereof to
the Rating Agencies.
Section 5.02. Appointment of Successor.
(a) Upon receipt by the Administrator of notice of termination pursuant to
Section 5.01, or the resignation by the Administrator in accordance with the
terms of this Agreement, the predecessor Administrator shall continue to perform
its functions as Administrator under this Agreement in the case of termination,
only until the date specified in such termination notice or, if no such date is
specified in a notice of termination, until receipt of such notice and, in the
case of resignation, until the later of (x) the date 120 days from the delivery
to the Trustee and the Indenture Trustee of written notice of such resignation
(or written confirmation of such notice) in accordance with the terms of this
Agreement and (y) the date upon which the predecessor Administrator shall become
unable to act as Administrator as specified in the notice of resignation and
accompanying Opinion of Counsel (the "Transfer Date"). In the event of the
termination hereunder of the Administrator the Issuer shall appoint a successor
Administrator acceptable to the Indenture Trustee, and the successor
Administrator shall accept its appointment by a written assumption in form
acceptable to the Indenture Trustee. In the event that a successor Administrator
has not been appointed at the time when the predecessor Administrator has ceased
to act as Administrator in accordance with this Section, the Indenture Trustee
without further action shall automatically be appointed the successor
Administrator and the Indenture Trustee shall be entitled to the Administration
Fee. Notwithstanding the above, the Indenture Trustee shall, if it shall be
unwilling or legally unable so to act, appoint or petition a court of competent
jurisdiction to appoint any established institution whose regular business shall
include the servicing of student loans, as the successor to the Administrator
under this Agreement.
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(b) Upon appointment, the successor Administrator (including the Indenture
Trustee acting as successor Administrator), shall be the successor in all
respects to the predecessor Administrator and shall be subject to all the
responsibilities, duties and liabilities placed on the predecessor Administrator
that arise thereafter or are related thereto and shall be entitled to an amount
agreed to by such successor Administrator (which shall not exceed the
Administration Fee unless such compensation arrangements will not result in a
downgrading or withdrawal of any rating on the Notes or the Certificates by any
Rating Agency) and all the rights granted to the predecessor Administrator by
the terms and provisions of this Agreement.
(c) The Administrator may not resign unless it is prohibited from serving
as such by law as evidenced by an Opinion of Counsel to such effect delivered to
the Indenture Trustee and the Trustee. Notwithstanding the foregoing or anything
to the contrary herein or in the other Basic Documents, the Indenture Trustee,
to the extent it is acting as successor Administrator pursuant hereto and
thereto, shall be entitled to resign to the extent a qualified successor
Administrator has been appointed and has assumed all the obligations of the
Administrator in accordance with the terms of this Agreement and the other Basic
Documents.
Section 5.03. Notification to Noteholders and Certificateholders.
Upon any termination of, or appointment of a successor to, the Administrator
pursuant to this Article V, the Trustee shall give prompt written notice thereof
to Certificateholders and the Indenture Trustee shall give prompt written notice
thereof to Noteholders and the Rating Agencies (which, in the case of any such
appointment of a successor, shall consist of prior written notice thereof to the
Rating Agencies).
Section 5.04. Waiver of Past Defaults. The Noteholders of Notes
evidencing a majority of the Outstanding Amount of the Controlling Notes (or the
Certificateholders evidencing a majority of the outstanding Certificates, in the
case of any default which does not adversely affect the Indenture Trustee or the
Noteholders) may, on behalf of all Noteholders and Certificateholders, waive in
writing any default by the Administrator in the performance of its obligations
hereunder and any consequences thereof, except a default in making any required
deposits to or payments from any of the Trust Accounts (or giving instructions
regarding the same) in accordance with this Agreement. Upon any such waiver of a
past default, such default shall cease to exist, and any Administrator Default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereto.
ARTICLE VI
Section 6.01. Termination.
(a) Optional Purchase of All Trust Student Loans. The Administrator shall
notify the Depositor, the Servicer, the Trustee and the Indenture Trustee in
writing, within 15 days after the last day of any Collection Period as of which
the then outstanding Pool Balance is 12% or less of the Initial Pool Balance, of
the percentage that the then outstanding Pool Balance bears to the Initial Pool
Balance. As of the last day of any Collection Period immediately preceding a
Distribution Date as of which the then outstanding Pool Balance is 10% or less
of the Initial Pool
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Balance, the Servicer shall have the option to purchase the Trust Estate, other
than the Trust Accounts. To exercise such option, the Servicer shall deposit
pursuant to Section 2.06 in the Collection Account an amount equal to the
aggregate Purchase Amount for the Trust Student Loans and the related rights
with respect thereto, plus the appraised value of any such other property held
by the Trust other than the Trust Accounts, such value to be determined by an
appraiser mutually agreed upon by the Servicer, the Trustee and the Indenture
Trustee, and shall succeed to all interests in and to the Trust; provided,
however, that the Servicer may not effect such purchase if such aggregate
Purchase Amounts do not equal or exceed the Minimum Purchase Amount plus any
Carryover Servicing Fees and any amounts owing to the Swap Counterparties. In
the event the Servicer fails to notify the Trustee and the Indenture Trustee in
writing prior to the acceptance by the Indenture Trustee of a bid to purchase
the Trust Estate pursuant to Section 4.04 of the Indenture that the Servicer
intends to exercise its option to purchase the Trust Estate, the Servicer shall
be deemed to have waived its option to purchase the Trust Estate as long as the
Servicer has received five (5) business days' notice from the Indenture Trustee
as provided in Section 4.04 of the Indenture.
(b) Reserved.
(c) Notice. Notice of any termination of the Trust shall be given by the
Administrator to the Trustee and the Indenture Trustee as soon as practicable
after the Administrator has received notice thereof.
(d) Succession. Following the satisfaction and discharge of the Indenture
and the payment in full of the principal of and interest on the Notes, the
Certificateholders shall succeed to the rights of the Noteholders hereunder and
the Trustee shall succeed to the rights of, and assume the obligations of, the
Indenture Trustee pursuant to this Agreement and any other Basic Documents.
ARTICLE VII
Section 7.01. Protection of Interests in Trust.
(a) The Administrator shall, on behalf of the Depositor, execute and file
such financing statements and cause to be executed and filed such continuation
statements, all in such manner and in such places as may be required by law
fully to preserve, maintain, and protect the interest of the Issuer, the Trustee
and the Indenture Trustee in the Trust Student Loans and in the proceeds
thereof. The Administrator shall deliver (or cause to be delivered) to the
Trustee and the Indenture Trustee file-stamped copies of, or filing receipts
for, any document filed as provided above, as soon as available following such
filing.
(b) Neither the Depositor nor the Servicer shall change its name, identity
or corporate structure in any manner that would, could or might make any
financing statement or continuation statement filed in accordance with clause
(a) above seriously misleading within the meaning of Section 9-402(7) of the
UCC, unless it shall have given the Trustee and the Indenture Trustee at least
five days' prior written notice thereof and shall have promptly filed
appropriate amendments to all previously filed financing statements or
continuation statements.
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(c) Each of the Depositor and the Servicer shall have an obligation to
give the Trustee and the Indenture Trustee at least 60 days' prior written
notice of any relocation of its principal executive office if, as a result of
such relocation, the applicable provisions of the UCC would require the filing
of any amendment of any previously filed financing or continuation statement or
of any new financing statement and shall promptly file any such amendment. The
Servicer shall at all times maintain each office from which it shall service
Trust Student Loans, and its principal executive office, within the United
States of America.
(d) The Servicer shall maintain accounts and records as to each Trust
Student Loan accurately and in sufficient detail to permit (i) the reader
thereof to know at any time the status of such Trust Student Loan, including
payments and recoveries made and payments owing (and the nature of each) and
(ii) reconciliation between payments or recoveries on (or with respect to) each
Trust Student Loan and the amounts from time to time deposited by the Servicer
in the Collection Account in respect of such Trust Student Loan.
(e) The Servicer shall maintain its computer systems so that, from and
after the time of sale of the Trust Student Loans to the Trustee on behalf of
the Issuer, the Servicer's master computer records (including any backup
archives) that refer to a Trust Student Loan shall indicate clearly the interest
of the Issuer, the Trustee and the Indenture Trustee in such Trust Student Loan
and that such Trust Student Loan is owned by the Trustee on behalf of the Issuer
and has been pledged to the Indenture Trustee. Indication of the Issuer's, the
Trustee's and the Indenture Trustee's interest in a Trust Student Loan shall be
deleted from or modified on the Servicer's computer systems when, and only when,
the related Trust Student Loan shall have been paid in full or repurchased.
(f) If at any time the Depositor or the Administrator shall propose to
sell, grant a security interest in, or otherwise transfer any interest in
student loans to any prospective purchaser, lender or other transferee, the
Servicer shall give to such prospective purchaser, lender or other transferee
computer tapes, records or printouts (including any restored from backup
archives) that, if they refer in any manner whatsoever to any Trust Student
Loan, indicate clearly that such Trust Student Loan has been sold and is owned
by the Trustee on behalf of the Issuer and has been pledged to the Indenture
Trustee.
(g) Upon reasonable notice, the Servicer shall permit the Indenture
Trustee and its agents at any time during normal business hours to inspect,
audit and make copies of and abstracts from the Servicer's records regarding any
Trust Student Loan.
(h) Upon request, at any time the Trustee or the Indenture Trustee have
reasonable grounds to believe that such request would be necessary in connection
with its performance of its duties under the Basic Documents, the Servicer shall
furnish to the Trustee or to the Indenture Trustee (in each case, with a copy to
the Administrator), within five Business Days, a list of all Trust Student Loans
(by borrower social security number, type of loan and date of issuance) then
held as part of the Trust, and the Administrator shall furnish to the Trustee or
to the Indenture Trustee, within 20 Business Days thereafter, a comparison of
such list to the list of Initial Trust Student Loans set forth in Schedule A to
the Indenture as of the Closing Date, and, for each Trust Student Loan that has
been removed from the pool of loans held by the Trustee on behalf of the
29
Issuer, information as to the date as of which and circumstances under which
each such Trust Student Loan was so removed.
(i) The Depositor shall deliver to the Trustee and the Indenture Trustee:
(A) promptly after the execution and delivery of this Agreement
and of each amendment thereto and on each Transfer Date, an
Opinion of Counsel either (1) stating that, in the opinion
of such counsel, all financing statements and continuation
statements have been executed and filed that are necessary
fully to preserve and protect the interest of the Trustee
and the Indenture Trustee in the Trust Student Loans, and
reciting the details of such filings or referring to prior
Opinions of Counsel in which such details are given, or (2)
stating that, in the opinion of such counsel, no such action
shall be necessary to preserve and protect such interest;
and
(B) within 120 days after the beginning of each calendar year
beginning with the first calendar year beginning more than
three months after the Cutoff Date, an Opinion of Counsel,
dated as of a date during such 120-day period, either (1)
stating that, in the opinion of such counsel, all financing
statements and continuation statements have been executed
and filed that are necessary fully to preserve and protect
the interest of the Trustee and the Indenture Trustee in the
Trust Student Loans, and reciting the details of such
filings or referring to prior Opinions of Counsel in which
such details are given, or (2) stating that, in the opinion
of such counsel, no such action shall be necessary to
preserve and protect such interest; provided, that a single
Opinion of Counsel may be delivered in satisfaction of the
foregoing requirement and that of Section 3.06(b) of the
Indenture.
Each Opinion of Counsel referred to in clause (A) or (B) above shall
specify (as of the date of such opinion and given all applicable laws as in
effect on such date) any action necessary to be taken in the following year to
preserve and protect such interest.
(j) The Depositor shall, to the extent required by applicable law, cause
the Certificates and the Notes to be registered with the Commission pursuant to
Section 12(b) or Section 12(g) of the Exchange Act within the time periods
specified in such sections.
ARTICLE VIII
Section 8.01. Independence of the Administrator. For all purposes of
this Agreement, the Administrator shall be an independent contractor and shall
not be subject to the supervision of the Issuer or the Trustee with respect to
the manner in which it accomplishes the performance of its obligations
hereunder. Unless expressly authorized by the Issuer, the Administrator shall
30
have no authority to act for or represent the Issuer or the Trustee in any way
and shall not otherwise be deemed an agent of the Issuer or the Trustee.
Section 8.02. No Joint Venture. Nothing contained in this Agreement (i)
shall constitute the Administrator and either of the Issuer or the Trustee as
members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to confer
on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
Section 8.03. Other Activities of Administrator. Nothing herein shall
prevent the Administrator or its Affiliates from engaging in other businesses
or, in its sole discretion, from acting in a similar capacity as an
administrator for any other person or entity even though such person or entity
may engage in business activities similar to those of the Issuer, the Trustee or
the Indenture Trustee.
Section 8.04. Powers of Attorney. The Trustee and the Indenture Trustee
shall upon the written request of the Administrator furnish the Administrator
with any powers of attorney and other documents reasonably necessary or
appropriate to enable the Administrator to carry out its administrative duties
hereunder.
Section 8.05. Amendment. This Agreement (other than Sections 2.01 and 2.02)
may be amended by the Depositor, the Servicer, the Administrator, the Trustee
and the Indenture Trustee, without the consent of any of the Noteholders or the
Certificateholders, to cure any ambiguity, to correct or supplement any
provisions in this Agreement or for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions in this Agreement or
of modifying in any manner the rights of the Noteholders or the
Certificateholders; provided, however, that such action shall not, as evidenced
by an Opinion of Counsel delivered to the Eligible Lender Trustee and the
Indenture Trustee, adversely affect in any material respect the interests of any
Noteholder or Certificateholder.
Sections 2.01 and 2.02 may be amended from time to time by a written
amendment duly executed and delivered by the Trustee, the Indenture Trustee and
the Administrator, without the consent of the Noteholders and the
Certificateholders, for the purpose of adding any provision to or changing in
any manner or eliminating any of the provisions of such Article; provided that
such amendment will not, in an Opinion of Counsel obtained on behalf of the
Issuer and satisfactory to the Indenture Trustee and the Trustee, materially and
adversely affect the interest of any Noteholder or Certificateholder.
This Agreement (other than Sections 2.01 and 2.02) may also be amended from
time to time by the Depositor, the Servicer, the Administrator, the Indenture
Trustee and the Trustee, and Sections 2.01 and 2.02 may also be amended by the
Trustee, the Administrator and the Indenture Trustee, with the consent of the
Noteholders of Notes evidencing a majority of the Outstanding Amount of the
Notes and the consent of the Certificateholders evidencing a majority of the
Certificates, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of the Noteholders or the Certificateholders; provided,
however, that no such amendment shall (a)
31
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments with respect to Trust Student Loans or
distributions that shall be required to be made for the benefit of the
Noteholders or the Certificateholders or (b) reduce the aforesaid percentage of
the Outstanding Amount of the Notes, the Noteholders or the Certificateholders
of which are required to consent to any such amendment, without the consent of
all outstanding Noteholders and Certificateholders.
Promptly after the execution of any such amendment (or, in the case of the
Rating Agencies, fifteen days prior thereto), the Trustee shall furnish written
notification of the substance of such amendment to each Certificateholder, the
Indenture Trustee and each of the Rating Agencies.
It shall not be necessary for the consent of Certificateholders or
Noteholders pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof.
Prior to the execution of any amendment to this Agreement, the Trustee and
the Indenture Trustee shall be entitled to receive and rely upon an Opinion of
Counsel stating that the execution of such amendment is authorized or permitted
by this Agreement and the Opinion of Counsel referred to in Section 7.01(i)(A).
The Trustee and the Indenture Trustee may, but shall not be obligated to, enter
into any such amendment which affects the Trustee's or the Indenture Trustee's,
as applicable, own rights, duties or immunities under this Agreement or
otherwise.
Section 8.06. Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Section 4.03 of the Servicing Agreement
and Section 4.03 of this Agreement, this Agreement may not be assigned by the
Depositor, the Administrator or the Servicer. This Agreement may be assigned by
the Trustee only to its permitted successor pursuant to the Trust Agreement.
Section 8.07. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Depositor, the Servicer, the Issuer,
the Indenture Trustee and the Trustee and for the benefit of the
Certificateholders and the Noteholders, as third party beneficiaries, and
nothing in this Agreement, whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in the
Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
Section 8.08. Assignment to Indenture Trustee. The Depositor hereby
acknowledges and consents to any Grant by the Issuer to the Indenture Trustee
pursuant to the Indenture for the benefit of the Noteholders of a security
interest in all right, title and interest of the Issuer in, to and under the
Trust Student Loans and the assignment of any or all of the Issuer's rights and
obligations under this Agreement. The Servicer hereby acknowledges and consents
to the assignment by the Issuer to the Indenture Trustee pursuant to the
Indenture for the benefit of the Noteholders of any and all of the Issuer's
rights and obligations under this Agreement.
Section 8.09. Nonpetition Covenants.
(a) Notwithstanding any prior termination of this Agreement, the Servicer,
the Administrator, the Trustee and the Depositor shall not, prior to the date
which is one year and
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one day after the termination of this Agreement, acquiesce, petition or
otherwise invoke or cause the Issuer to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Issuer under any Federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Issuer or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Issuer.
(b) Notwithstanding any prior termination of this Agreement, the Servicer,
the Administrator, the Issuer and the Trustee shall not, prior to the date which
is one year and one day after the termination of this Agreement, acquiesce,
petition or otherwise invoke or cause the Depositor to invoke the process of any
court or government authority for the purpose of commencing or sustaining a case
against the Depositor under any insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Depositor or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Depositor.
Section 8.10. Limitation of Liability of Trustee and Indenture
Trustee.
(a) Notwithstanding anything contained herein to the contrary, this
Agreement has been signed by Chase Manhattan Bank USA, National Association not
in its individual capacity but solely in its capacity as Trustee of the Issuer
and in no event shall Chase Manhattan Bank USA, National Association in its
individual capacity have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer or the Trustee
hereunder or in any of the certificates, notices or agreements delivered
pursuant hereto as to all of which recourse shall be had solely to the assets of
the Issuer.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been executed and signed by JPMorgan Chase Bank not in its
individual capacity but solely as Indenture Trustee and in no event shall
JPMorgan Chase Bank have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder or in any of
the certificates, notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer.
(c) The rights and protections of the Indenture Trustee under the
Indenture shall be incorporated as though explicitly set forth herein.
Section 8.11. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 8.12. Headings. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
Section 8.13. Counterparts. This Agreement may be executed in counterparts,
each of which when so executed shall together constitute but one and the same
agreement.
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Section 8.14. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
SALLIE MAE, INC.,
as Administrator
By: /s/ PETER W. STRANG
-------------------------------------
Name: Peter W. Strang
Title: Vice President
SLM EDUCATION CREDIT FUNDING LLC,
as Depositor
By: /s/ J. LANCE FRANKE
-------------------------------------
Name: J. Lance Franke
Title: Vice President
SALLIE MAE SERVICING L.P.,
as Servicer
By: /s/ PETER W. STRANG
-------------------------------------
Name: Peter W. Strang
Title: Vice President
JPMORGAN CHASE BANK, not in its
individual capacity but solely as the
Indenture Trustee
By: /s/ DAVID CONTINO
-------------------------------------
Name: David Contino
Title: Trust Officer
35
SLM PRIVATE CREDIT STUDENT LOAN TRUST
2003-C,
as Issuer
By: CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, not in its
individual capacity but solely as
Trustee
By: /s/ JOHN J. CASHIN
Name: John J. Cashin
Title: Vice President
36