Exhibit 4.2
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INDENTURE
between
SLM PRIVATE CREDIT STUDENT LOAN TRUST 2004-A,
as Issuer
and
JPMORGAN CHASE BANK,
not in its individual capacity but
solely as Indenture Trustee
Dated as of March 1, 2004
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND USAGE
Section 1.01. Definitions and Usage...........................................2
Section 1.02. Incorporation by Reference of Trust Indenture Act...............2
ARTICLE II THE NOTES
Section 2.01. Form............................................................3
Section 2.02. Execution, Authentication and Delivery..........................3
Section 2.03. Temporary Notes.................................................3
Section 2.04. Registration; Registration of Transfer and Exchange.............4
Section 2.05. Mutilated, Destroyed, Lost or Stolen Notes......................5
Section 2.06. Persons Deemed Owner............................................6
Section 2.07. Payment of Principal and Interest; Note Interest Shortfall......6
Section 2.08. Cancellation....................................................7
Section 2.09. Release of Collateral...........................................7
Section 2.10. Book-Entry Notes................................................7
Section 2.11. Notices to Clearing Agency......................................8
Section 2.12. Definitive Notes................................................8
ARTICLE III COVENANTS
Section 3.01. Payment to Noteholders..........................................9
Section 3.02. Maintenance of Office or Agency.................................9
Section 3.03. Money for Payments To Be Held in Trust..........................9
Section 3.04. Existence......................................................11
Section 3.05. Protection of Indenture Trust Estate...........................11
Section 3.06. Opinions as to Indenture Trust Estate..........................12
Section 3.07. Performance of Obligations; Servicing of Trust Student Loans...12
Section 3.08. Negative Covenants.............................................14
Section 3.09. Annual Statement as to Compliance..............................15
Section 3.10. Issuer May Consolidate, etc., Only on Certain Terms............15
Section 3.11. Successor or Transferee........................................17
Section 3.12. No Other Business..............................................17
Section 3.13. No Borrowing...................................................17
Section 3.14. Obligations of Servicer and Administrator......................17
Section 3.15. Guarantees, Loans, Advances and Other Liabilities..............17
Section 3.16. Capital Expenditures...........................................18
Section 3.17. Restricted Payments............................................18
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Section 3.18. Notice of Events of Default....................................18
Section 3.19. Further Instruments and Acts...................................18
ARTICLE IV SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture........................18
Section 4.02. Application of Trust Money.....................................19
Section 4.03. Repayment of Moneys Held by Paying Agent.......................20
Section 4.04. Auction of Trust Student Loans.................................20
ARTICLE V REMEDIES
Section 5.01. Events of Default..............................................21
Section 5.02. Acceleration of Maturity; Rescission and Annulment.............22
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee..............................................22
Section 5.04. Remedies; Priorities...........................................24
Section 5.05. Optional Preservation of the Trust Student Loans...............27
Section 5.06. Limitation of Suits............................................27
Section 5.07. Unconditional Rights of Noteholders To Receive Principal
and Interest...................................................28
Section 5.08. Restoration of Rights and Remedies.............................28
Section 5.09. Rights and Remedies Cumulative.................................28
Section 5.10. Delay or Omission Not a Waiver.................................28
Section 5.11. Control by Noteholders.........................................28
Section 5.12. Waiver of Past Defaults........................................29
Section 5.13. Undertaking for Costs..........................................29
Section 5.14. Waiver of Stay or Extension Laws...............................30
Section 5.15. Action on Notes................................................30
Section 5.16. Performance and Enforcement of Certain Obligations.............30
ARTICLE VI THE INDENTURE TRUSTEE
Section 6.01. Duties of Indenture Trustee....................................31
Section 6.02. Rights of Indenture Trustee....................................32
Section 6.03. Individual Rights of Indenture Trustee.........................33
Section 6.04. Indenture Trustee's Disclaimer.................................33
Section 6.05. Notice of Defaults; Depositor Insolvency.......................33
Section 6.06. Reports by Indenture Trustee to Noteholders....................33
Section 6.07. Compensation and Indemnity.....................................33
Section 6.08. Replacement of Indenture Trustee...............................34
Section 6.09. Successor Indenture Trustee by Merger..........................35
Section 6.10. Appointment of Co-Trustee or Separate Trustee..................35
Section 6.11. Eligibility; Disqualification..................................36
Section 6.12. Preferential Collection of Claims Against Issuer...............37
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ARTICLE VII NOTEHOLDERS' LISTS AND REPORTS
Section 7.01. Issuer To Furnish Indenture Trustee Names and Addresses
of Noteholders.................................................37
Section 7.02. Preservation of Information; Communications to Noteholders.....38
Section 7.03. Reports by Issuer..............................................39
ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01. Collection of Money............................................39
Section 8.02. Trust Accounts.................................................40
Section 8.03. General Provisions Regarding Accounts..........................40
Section 8.04. Release of Indenture Trust Estate..............................41
Section 8.05. Opinion of Counsel.............................................41
ARTICLE IX SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Noteholders.........42
Section 9.02. Supplemental Indentures With Consent of Noteholders............43
Section 9.03. Execution of Supplemental Indentures...........................44
Section 9.04. Effect of Supplemental Indenture...............................44
Section 9.05. Conformity with Trust Indenture Act............................44
Section 9.06. Reference in Notes to Supplemental Indentures..................44
ARTICLE X REDEMPTION OF NOTES
Section 10.01. Redemption....................................................45
Section 10.02. Form of Redemption Notice.....................................45
Section 10.03. Notes Payable on Redemption Date..............................45
ARTICLE XI MISCELLANEOUS
Section 11.01. Compliance Certificates and Opinions, etc......................46
Section 11.02. Form of Documents Delivered to Indenture Trustee...............48
Section 11.03. Acts of Noteholders............................................48
Section 11.04. Notices, etc., to Indenture Trustee, Issuer and
Rating Agencies................................................49
Section 11.05. Notices to Noteholders; Waiver.................................49
Section 11.06. Alternate Payment and Notice Provisions........................50
Section 11.07. Conflict with Trust Indenture Act..............................50
Section 11.08. Effect of Headings and Table of Contents.......................50
Section 11.09. Successors and Assigns.........................................50
Section 11.10. Separability...................................................51
Section 11.11. Benefits of Indenture..........................................51
Section 11.12. Legal Holidays.................................................51
Section 11.13. Governing Law..................................................51
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Section 11.14. Counterparts...................................................51
Section 11.15. Recording of Indenture.........................................51
Section 11.16. Trust Obligations..............................................51
Section 11.17. No Petition....................................................52
Section 11.18. Inspection.....................................................52
APPENDICES, SCHEDULES AND EXHIBITS
APPENDIX A-1 Definitions and Usage
SCHEDULE A Schedule of Trust Student Loans
SCHEDULE B Location of Trust Student Loan Files
EXHIBIT A Forms of Notes
EXHIBIT B Form of Note Depository Agreement
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INDENTURE
This INDENTURE, dated as of March 1, 2004, is between SLM PRIVATE CREDIT
STUDENT LOAN TRUST 2004-A, a Delaware statutory trust (the "Issuer"), and
JPMORGAN CHASE BANK, a New York banking corporation, as trustee and not in its
individual capacity (the "Indenture Trustee").
Each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the holders of the Issuer's Student Loan-Backed
Notes (the "Notes"):
GRANTING CLAUSE
The Issuer hereby Grants to the Indenture Trustee, as trustee for the
benefit of the Noteholders, effective as of the Closing Date all of their right,
title and interest in and to the following:
(a) the Trust Student Loans, and all obligations of the Obligors
thereunder including all moneys accrued and paid thereunder on or after the
Cutoff Date;
(b) the Servicing Agreement, including the right of the Issuer to cause
the Servicer to purchase Trust Student Loans from the Issuer under circumstances
described therein;
(c) the Depositor Sale Agreement, including the right of the Issuer to
cause the Depositor to repurchase Trust Student Loans from the Issuer under
circumstances described therein and including the rights of the Depositor under
the Seller Sale Agreement;
(d) the Seller Sale Agreement, to the extent that the rights of the
Depositor thereunder have been assigned to the Issuer pursuant to the Depositor
Sale Agreement, including the right of the Depositor to cause the Seller to
repurchase Trust Student Loans from the Depositor under circumstances described
therein;
(e) the Administration Agreement;
(f) the Swap Agreement and the Interest Rate Cap Agreements;
(g) the Trust Accounts and all funds on deposit from time to time in the
Trust Accounts, including the Reserve Account Initial Deposit and the Cash
Capitalization Account Initial Deposit, and all investments and proceeds thereof
(including all income thereon); and
(h) all present and future claims, demands, causes and choices in action
in respect of any or all of the foregoing and all payments on or under and all
proceeds of every kind and nature whatsoever in respect of any or all of the
foregoing, including all proceeds of the conversion, voluntary or involuntary,
into cash or other liquid property, all cash proceeds, accounts, accounts
receivable, notes, drafts, acceptances, chattel paper, checks, general
intangibles, deposit accounts, insurance proceeds, condemnation awards, rights
to payment of any and every kind and other forms of obligations and receivables,
instruments and other property which at any time constitute all or part of or
are included in the proceeds of any of the foregoing (collectively, the
"Collateral").
The foregoing Grant is made in trust to secure the payment of principal of
and interest on, and any other amounts owing in respect of, the Notes, equally
and ratably without prejudice, priority or distinction, and to secure compliance
with the provisions of this Indenture, all as provided in this Indenture.
The Indenture Trustee, as Indenture Trustee on behalf of the Noteholders,
acknowledges such Grant, accepts the trusts under this Indenture in accordance
with the provisions of this Indenture and agrees to perform its duties required
in this Indenture to the best of its ability to the end that the interests of
the Noteholders may be adequately and effectively protected.
ARTICLE I
DEFINITIONS AND USAGE
Section 1.01. Definitions and Usage. Except as otherwise specified herein
or as the context may otherwise require, capitalized terms used but not
otherwise defined herein are defined in Appendix A-1 hereto, which also contains
rules as to usage that shall be applicable herein.
Section 1.02. Incorporation by Reference of Trust Indenture Act. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Indenture Trustee.
"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule have
the meaning assigned to them by such definitions.
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ARTICLE II
THE NOTES
Section 2.01. Form. The Notes, together with the Indenture Trustee's
certificate of authentication, shall be in substantially the forms set forth in
Exhibit A, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing the Notes, as evidenced by their execution of the Notes. Any
portion of the text of any Note may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Note.
The Definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders), all as determined by the officers executing such Notes, as
evidenced by their execution of such Notes.
Each Note shall be dated the date of its authentication. The terms of the
Notes set forth in Exhibit A are part of the terms of this Indenture.
Section 2.02. Execution, Authentication and Delivery. The Notes shall be
executed on behalf of the Issuer by any of its Authorized Officers. The
signature of any such Authorized Officer on the Notes may be manual or
facsimile.
Notes bearing the manual or facsimile signature of individuals who were at
any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
The Indenture Trustee shall upon Issuer Order authenticate and deliver
Notes for original issue in an aggregate principal amount of $1,336,083,000, of
which $600,000,000 shall be denominated Class A-1 Notes, $307,000,000 shall be
denominated Class A-2 Notes, $325,016,000 shall be denominated Class A-3 Notes,
$43,641,000 shall be denominated Class B Notes and $60,426,000 shall be
denominated Class C Notes.
Each Note shall be dated the date of its authentication. The Notes shall be
issuable as registered Notes in multiple denominations of $1,000.
No Note shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose, unless there appears on such Note a certificate
of authentication substantially in the form provided for herein executed by the
Indenture Trustee by the manual signature of one of its authorized signatories,
and such certificate upon any Note shall be conclusive evidence, and the only
evidence, that such Note has been duly authenticated and delivered hereunder.
Section 2.03. Temporary Notes. Pending the preparation of Definitive
Notes, the Issuer may execute, and upon receipt of an Issuer Order the Indenture
Trustee shall authenticate and deliver, temporary Notes which are printed,
lithographed, typewritten, mimeographed or otherwise produced, of the tenor of
the Definitive Notes in lieu of which they are issued and with
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such variations not inconsistent with the terms of this Indenture determined to
be appropriate by the Responsible Officer of the Issuer executing the temporary
Notes, as evidenced by his or her execution of such temporary Notes.
If temporary Notes are issued, the Issuer will cause Definitive Notes to be
prepared without unreasonable delay. After the preparation of Definitive Notes,
the temporary Notes shall be exchangeable for Definitive Notes upon surrender of
the temporary Notes at the office or agency of the Issuer to be maintained as
provided in Section 3.02, without charge to the Noteholder. Upon surrender for
cancellation of any one or more temporary Notes, the Issuer shall execute and
the Indenture Trustee shall authenticate and deliver in exchange therefor a like
principal amount of Definitive Notes of authorized denominations. Until so
exchanged, the temporary Notes shall in all respects be entitled to the same
benefits under this Indenture as Definitive Notes.
Section 2.04. Registration; Registration of Transfer and Exchange. The
Issuer shall cause to be kept a register (the "Note Register") in which, subject
to such reasonable regulations as it may prescribe, the Issuer shall provide for
the registration of Notes and the registration of transfers of Notes. The
Indenture Trustee shall be "Note Registrar" for the purpose of registering Notes
and transfers of Notes as herein provided. Upon any resignation of any Note
Registrar, the Issuer shall promptly appoint a successor or, if it elects not to
make such an appointment, assume the duties of Note Registrar.
If a Person other than the Indenture Trustee is appointed by the Issuer as
Note Registrar, the Issuer shall give the Indenture Trustee prompt written
notice of the appointment of such Note Registrar and of the location, and any
change in the location, of the Note Register, and the Indenture Trustee shall
have the right to inspect the Note Register at all reasonable times and to
obtain copies thereof, and the Indenture Trustee shall have the right to rely
upon a certificate executed on behalf of the Note Registrar by an Executive
Officer thereof as to the names and addresses of the Noteholders and the
principal amounts and number of such Notes.
Upon surrender for registration of transfer of any Note at the office or
agency of the Issuer to be maintained as provided in Section 3.02, if the
requirements of Section 8-401(1) of the UCC are met, the Issuer shall execute,
and the Indenture Trustee shall authenticate and the Noteholder shall obtain
from the Indenture Trustee, in the name of the designated transferee or
transferees, one or more new Notes in any authorized denominations and a like
aggregate principal amount.
At the option of the Noteholder, Notes may be exchanged for other Notes in
any authorized denominations and a like aggregate principal amount, upon
surrender of the Notes to be exchanged at such office or agency. Whenever any
Notes are so surrendered for exchange, the Issuer shall execute, and the
Indenture Trustee shall authenticate and the Noteholder shall obtain from the
Indenture Trustee, the Notes which the Noteholder making the exchange is
entitled to receive.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Issuer, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
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Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed by, or be accompanied by a written instrument of
transfer in form satisfactory to the Indenture Trustee duly executed by the
Noteholder thereof or such Noteholder's attorney duly authorized in writing,
with such signature guaranteed by an "eligible guarantor institution" meeting
the requirements of the Note Registrar, which requirements include membership or
participation in Securities Transfer Agent's Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Note Registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Exchange Act.
No service charge shall be made to a Noteholder for any registration of
transfer or exchange of Notes, but the Indenture Trustee may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of Notes,
other than exchanges pursuant to Section 2.03 or 9.06 not involving any
transfer.
The preceding provisions of this Section notwithstanding, the Issuer shall
not be required to make and the Note Registrar need not register transfers or
exchanges of Notes selected for redemption or of any Note for a period of 15
days preceding the due date for any payment with respect to the Note.
Section 2.05. Mutilated, Destroyed, Lost or Stolen Notes. If (i) any
mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to the Issuer and the Indenture Trustee such
security or indemnity as may be required by each of them to hold the Issuer and
the Indenture Trustee harmless, then, in the absence of notice to the Issuer,
the Note Registrar or the Indenture Trustee that such Note has been acquired by
a bona fide purchaser, and provided that the requirements of Section 8-405 of
the UCC are met, the Issuer shall execute and upon its request the Indenture
Trustee shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Note, a replacement Note; provided,
however, that if any such destroyed, lost or stolen Note, but not a mutilated
Note, shall have become or within 15 days shall be due and payable, or shall
have been called for redemption, instead of issuing a replacement Note, the
Issuer may pay such destroyed, lost or stolen Note when so due or payable or
upon the Redemption Date without surrender thereof. If, after the delivery of
such replacement Note or payment of a destroyed, lost or stolen Note pursuant to
the proviso to the preceding sentence, a bona fide purchaser of the original
Note in lieu of which such replacement Note was issued presents for payment such
original Note, the Issuer and the Indenture Trustee shall be entitled to recover
such replacement Note (or such payment) from the Person to whom it was delivered
or any Person taking such replacement Note from such Person to whom such
replacement Note was delivered or any assignee of such Person, except a bona
fide purchaser, and shall be entitled to recover upon the security or indemnity
provided therefor to the extent of any loss, damage, cost or expense incurred by
the Issuer or the Indenture Trustee in connection therewith.
Upon the issuance of any replacement Note under this Section, the Issuer
may require the payment by the Noteholder thereof of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other reasonable expenses (including the fees and expenses of the Indenture
Trustee) connected therewith.
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Every replacement Note issued pursuant to this Section in replacement of
any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
Section 2.06. Persons Deemed Owner. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and any
agent of the Issuer or the Indenture Trustee may treat the Person in whose name
any Note is registered (as of the day of determination) as the owner of such
Note for the purpose of receiving payments of principal of, interest, if any, on
such Note and for all other purposes whatsoever, whether or not such Note be
overdue, and neither the Issuer, the Indenture Trustee nor any agent of the
Issuer or the Indenture Trustee shall be affected by notice to the contrary.
Section 2.07. Payment of Principal and Interest; Note Interest Shortfall.
(a) The Notes shall accrue interest as provided in the forms of Notes set forth
in Exhibit and such interest shall be payable on each applicable Distribution
Date as specified therein, subject to Section 3.01. Any installment of interest
or principal, if any, payable on any Note which is punctually paid or duly
provided for by the Issuer on the applicable Distribution Date shall be paid to
the Person in whose name such Note (or one or more Predecessor Notes) is
registered on the applicable Record Date by check mailed first-class, postage
prepaid to such Person's address as it appears on the Note Register on such
Record Date, except that, unless Definitive Notes have been issued pursuant to
Section 2.12, with respect to Notes registered on the Record Date in the name of
the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
payment shall be made by wire transfer in immediately available funds to the
account designated by such nominee and except for the final installment of
principal payable with respect to such Note on a Distribution Date or on the
Note Final Maturity Date for such Note which shall be payable as provided below.
The funds represented by any such checks returned undelivered shall be held in
accordance with Section 3.03.
(b) The principal of each Note shall be payable in installments on each
Distribution Date as provided in the forms of such note set forth in Exhibit A.
Notwithstanding the foregoing, the entire unpaid principal amount of each class
of the Notes shall be due and payable, if not previously paid, on the Note Final
Maturity Date for such class of Notes and on the date on which an Event of
Default shall have occurred and be continuing if the Indenture Trustee or the
Noteholders of the Notes representing not less than a majority of the
Outstanding Amount of the Controlling Notes have declared the Notes to be
immediately due and payable in the manner provided in Section 5.02. All
principal payments on the Notes shall be made pro rata to the Class of
Noteholders entitled thereto. The Indenture Trustee shall notify the Person in
whose name a Note is registered at the close of business on the Record Date
preceding the Distribution Date on which the Issuer expects that the final
installment of principal of and interest on such Note will be paid. Such notice
shall be mailed or transmitted by facsimile prior to such final Distribution
Date and shall specify that such final installment will be payable only upon
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presentation and surrender of such Note and shall specify the place where such
Note may be presented and surrendered for payment of such Installment. Notices
in connection with redemptions of Notes shall be mailed to Noteholders as
provided in Section 10.02.
(c) If the Issuer defaults in a payment of interest at the applicable Note
Rate on the Notes, the Issuer shall pay the resulting Note Interest Shortfall on
the following Distribution Date as provided in the Administration Agreement.
Section 2.08. Cancellation. All Notes surrendered for payment,
registration of transfer, exchange or redemption shall, if surrendered to any
Person other than the Indenture Trustee, be delivered to the Indenture Trustee
and shall be promptly cancelled by the Indenture Trustee. The Issuer may at any
time deliver to the Indenture Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Issuer may have acquired in any
manner whatsoever and all Notes so delivered shall be promptly cancelled by the
Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange for
any Notes cancelled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Notes may be held or disposed of by the
Indenture Trustee in accordance with its standard retention or disposal policy
as in effect at the time, unless the Issuer shall direct by an Issuer Order that
they be returned to it and so long as such Issuer Order is timely and the Notes
have not been previously disposed of by the Indenture Trustee.
Section 2.09. Release of Collateral. Subject to Section 11.01 and the
terms of the Basic Documents, the Indenture Trustee shall release property from
the lien of this Indenture only upon receipt of an Issuer Request accompanied by
an Officers' Certificate of the Issuer, an Opinion of Counsel and Independent
Certificates in accordance with TIA Sections 314(c) and 314(d)(1) or an Opinion
of Counsel in lieu of such Independent Certificates to the effect that the TIA
does not require any such Independent Certificates.
Section 2.10. Book-Entry Notes. The Notes, upon original issuance, will be
issued in the form of typewritten Notes representing the Book-Entry Notes, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Issuer. Such Notes shall initially be registered on the Note
Register in the name of Cede & Co., the nominee of the initial Clearing Agency,
and no Note Owner shall receive a Definitive Note (as defined below)
representing such Note Owner's interest in such Note, except as provided in
Section 2.12. Unless and until definitive, fully registered Notes (the
"Definitive Notes") have been issued to Note Owners pursuant to Section 2.12:
(i) the provisions of this Section shall be in full force and
effect;
(ii) the Note Registrar and the Indenture Trustee, and their
respective directors, officers, employees and agents, may deal with the
Clearing Agency for all purposes (including the payment of principal of and
interest and other amounts on the Notes) as the authorized representative
of the Note Owners;
(iii) to the extent that the provisions of this Section conflict with
any other provisions of this Indenture, the provisions of this Section
shall control;
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(iv) the rights of Note Owners shall be exercised only through the
Clearing Agency and shall be limited to those established by law and
agreements between such Note Owners and the Clearing Agency and/or the
Clearing Agency Participants pursuant to the Note Depository Agreement; and
unless and until Definitive Notes are issued pursuant to Section 2.12, the
initial Clearing Agency will make book-entry transfers among the Clearing
Agency Participants and receive and transmit payments of principal of and
interest and other amounts on the Notes to such Clearing Agency
Participants; and
(v) whenever this Indenture requires or permits actions to be taken
based upon instructions or directions of Noteholders of Notes evidencing a
specified percentage of the Outstanding Amount of the Notes, the Clearing
Agency shall be deemed to represent such percentage only to the extent that
it has received instructions to such effect from Note Owners and/or
Clearing Agency Participants owning or representing, respectively, such
required percentage of the beneficial interest in the Notes and has
delivered such instructions to the Indenture Trustee; and
(vi) upon acquisition or transfer of a beneficial interest in any
Book-Entry Note by, for or with the assets of, an employee benefit plan or
other retirement arrangement ("Plan"), such Note Owner shall be deemed to
have represented that such acquisition or purchase will not constitute or
otherwise result in: (i) in the case of a Plan subject to Section 406 of
ERISA or Section 4975 of the Code, a non-exempt prohibited transaction in
violation of Section 406 of ERISA or Section 4975 of the Code which is not
covered by a class or other applicable exemption and (ii) in the case of a
Plan subject to a substantially similar federal, state, local or foreign
law ("Similar Law"), a non-exempt violation of such substantially Similar
Law. Any transfer found to have been made in violation of such deemed
representation shall be null and void and of no effect.
Section 2.11. Notices to Clearing Agency. Whenever a notice or other
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to Note Owners pursuant to Section
2.12, the Indenture Trustee shall give all such notices and communication
specified herein to be given to Noteholders to the Clearing Agency.
Section 2.12. Definitive Notes. If (i) the Administrator advises the
Indenture Trustee in writing that the Clearing Agency is no longer willing or
able to discharge its responsibilities with respect to the Notes, and the
Administrator is unable to locate a successor, (ii) the Administrator at its
option advises the Indenture Trustee in writing that it elects to terminate the
book-entry system through the Clearing Agency or (iii) after the occurrence of
an Event of Default, a Servicer Default or an Administrator Default, Note Owners
representing beneficial interests aggregating at least a majority of the
Outstanding Amount of the Notes advise the Clearing Agency (which shall then
notify the Indenture Trustee) in writing that the continuation of a book-entry
system through the Clearing Agency is no longer in the best interests of the
Note Owners, then the Indenture Trustee shall cause the Clearing Agency to
notify all Note Owners, through the Clearing Agency, of the occurrence of any
such event and of the availability of Definitive Notes to Note Owners requesting
the same. Upon surrender to the Indenture Trustee of the typewritten Notes
representing the Book-Entry Notes by the Clearing Agency, accompanied by
registration instructions, the Issuer shall execute and the Indenture Trustee
shall authenticate the Definitive Notes in accordance with the instructions of
the Clearing Agency.
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None of the Issuer, the Note Registrar or the Indenture Trustee shall be liable
for any delay in delivery of such instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance of
Definitive Notes, the Indenture Trustee shall recognize the holders of the
Definitive Notes as Noteholders.
Upon acquisition or transfer of a Definitive Note by, for or with the
assets of, a Plan, such Note Owner shall be deemed to have represented that such
acquisition or purchase will not constitute or otherwise result in: (i) in the
case of a Plan subject to Section 406 of ERISA or Section 4975 of the Code, a
non-exempt prohibited transaction in violation of Section 406 of ERISA or
Section 4975 of the Code which is not covered by a class or other applicable
exemption and (ii) in the case of a Plan subject to a substantially Similar Law,
a non-exempt violation of such substantially Similar Law. Any transfer found to
have been made in violation of such deemed representation shall be null and void
and of no effect.
ARTICLE III
COVENANTS
Section 3.01. Payment to Noteholders. The Issuer shall duly and punctually
pay the principal and interest, if any, with respect to the Notes in accordance
with the terms of the Notes and this Indenture. Without limiting the foregoing,
the Issuer shall cause to be distributed to Noteholders, in accordance with the
Administration Agreement, that portion of the amounts on deposit in the Trust
Accounts on a Distribution Date (other than any Eligible Investments deposited
therein that will mature on the Business Day preceding a subsequent Distribution
Date) which the Noteholders are entitled to receive pursuant to the
Administration Agreement. Amounts properly withheld under the Code by any Person
from a payment to any Noteholder of interest and/or principal shall be
considered as having been paid by the Issuer to such Noteholder for all purposes
of this Indenture.
Section 3.02. Maintenance of Office or Agency. The Issuer shall maintain
in the Borough of Manhattan, The City of New York, an office or agency where
Notes may be surrendered for registration of transfer or exchange, and where
notices and demands to or upon the Issuer in respect of the Notes and this
Indenture may be served. The Issuer hereby initially appoints the Indenture
Trustee to serve as its agent for the foregoing purposes. The Issuer shall give
prompt written notice to the Indenture Trustee of the location, and of any
change in the location, of any such office or agency. If at any time the Issuer
shall fail to maintain any such office or agency or shall fail to furnish the
Indenture Trustee with the address thereof, such surrenders, notices and demands
may be made or served at the Corporate Trust Office, and the Issuer hereby
appoints the Indenture Trustee as its agent to receive all such surrenders,
notices and demands.
Section 3.03. Money for Payments To Be Held in Trust. As provided in
Sections 8.02(a) and (b), all payments of amounts due and payable with respect
to any Notes that are to be made from amounts distributed from the Collection
Account or any other Trust Account pursuant to Sections 2.07 and 2.08 of the
Administration Agreement shall be made on behalf of the Issuer by the Indenture
Trustee or by another Paying Agent, and no amounts so distributed
9
from the Collection Account for payments of Notes shall be paid over to the
Issuer except as provided in this Section.
On or before the Business Day next preceding each Distribution Date and
Redemption Date, the Issuer shall distribute or cause to be distributed to the
Indenture Trustee (or any other Paying Agent) an aggregate sum sufficient to pay
the amounts then becoming due under the Notes, such sum to be held in trust for
the benefit of the Persons entitled thereto and (unless the Paying Agent is the
Indenture Trustee) shall promptly notify the Indenture Trustee of its action or
failure so to act.
The Issuer shall cause each Paying Agent other than the Indenture Trustee
to execute and deliver to the Indenture Trustee an instrument in which such
Paying Agent shall agree with the Indenture Trustee (and if the Indenture
Trustee acts as Paying Agent, it hereby so agrees), subject to the provisions of
this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of amounts due with
respect to the Notes in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and pay such sums to such Persons as herein provided;
(ii) give the Indenture Trustee notice of any default by the Issuer
of which it has actual knowledge (or any other obligor upon the Notes) in
the making of any payment required to be made with respect to the Notes;
(iii) at any time during the continuance of any such default, upon the
written request of the Indenture Trustee, forthwith pay to the Indenture
Trustee all sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to the
Indenture Trustee all sums held by it in trust for the payment of Notes if
at any time it ceases to meet the standards required to be met by a Paying
Agent at the time of its appointment; and
(v) comply with all requirements of the Code with respect to the
withholding from any payments made by it on any Notes of any applicable
withholding taxes imposed thereon and with respect to any applicable
reporting requirements in connection therewith.
The Issuer may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, by Issuer Order direct
any Paying Agent to pay to the Indenture Trustee all sums held in trust by such
Paying Agent, such sums to be held by the Indenture Trustee upon the same trusts
as those upon which the sums were held by such Paying Agent; and upon such
payment by any Paying Agent to the Indenture Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds, any money held
by the Indenture Trustee or any Paying Agent in trust for the payment of any
amount due with respect to any Note and remaining unclaimed for two years after
such amount has become due and
10
payable shall be discharged from such trust and be paid to the Issuer on Issuer
Request or if the Issuer has been terminated to the Depositor upon its written
request; and the Noteholder thereof shall thereafter, as an unsecured general
creditor, look only to the Issuer for payment thereof (but only to the extent of
the amounts so paid to the Issuer), and all liability of the Indenture Trustee
or such Paying Agent with respect to such trust money shall thereupon cease;
provided, however, that the Indenture Trustee or such Paying Agent, before being
required to make any such repayment, shall at the expense and direction of the
Issuer cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in The City of New York, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Issuer. The Indenture Trustee shall also adopt and employ,
at the expense of the Issuer, any other reasonable means of notification of such
repayment (including mailing notice of such repayment to Noteholders whose Notes
have been called but have not been surrendered for redemption or whose right to
or interest in moneys due and payable but not claimed is determinable from the
records of the Indenture Trustee or of any Paying Agent, at the last address of
record for each such Noteholder).
Section 3.04. Existence. The Issuer shall keep in full effect its
existence, rights and franchises as a statutory trust under the laws of the
State of Delaware (unless it becomes, or any successor Issuer hereunder is or
becomes, organized under the laws of any other State or of the United States of
America, in which case the Issuer shall keep in full effect its existence,
rights and franchises under the laws of such other jurisdiction) and shall
obtain and preserve its qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Indenture Trust Estate.
Section 3.05. Protection of Indenture Trust Estate. The Issuer will from
time to time execute and deliver all such supplements and amendments hereto and
all such financing statements, continuation statements, will take such other
action necessary or advisable to:
(i) maintain or preserve the lien and security interest (and the
priority thereof) of this Indenture or carry out more effectively the
purposes hereof;
(ii) perfect, publish notice of or protect the validity of any grant
made or to be made by this Indenture;
(iii) enforce any of the Collateral; or
(iv) preserve and defend title to the Indenture Trust Estate and the
rights of the Indenture Trustee and the Noteholders in such Indenture Trust
Estate against the claims of all persons and parties.
The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement or
other instrument required to be executed pursuant to this Section.
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Section 3.06. Opinions as to Indenture Trust Estate. (a) On the Closing
Date, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel
either stating that, in the opinion of such counsel, such action has been taken
with respect to the recording and filing of this Indenture as is necessary to
perfect and make effective the lien and security interest of this Indenture and
reciting the details of such action, or stating that, in the opinion of such
counsel, no such action is necessary to make such lien and security interest
effective.
(b) On or before December 31 in each calendar year, beginning in 2004, the
Issuer shall furnish to the Indenture Trustee an Opinion of Counsel either
stating that, in the opinion of such counsel, such action has been taken with
respect to the recording, filing, re-recording and refiling of this Indenture
and any indentures supplemental hereto as is necessary to maintain the lien and
security interest created by this Indenture and relating the details of such
action or stating that in the opinion of such counsel no such action is
necessary to maintain such lien and security interest. Such Opinion of Counsel
shall also describe the recording, filing, recording and refiling of this
Indenture and any indentures supplemental hereto that will, in the opinion of
such counsel, be required to maintain the lien and security interest of this
Indenture until December 31 in the following calendar year.
Section 3.07. Performance of Obligations; Servicing of Trust Student
Loans.(a) The Issuer will not take any action and will use its best efforts not
to permit any action to be taken by others that would release any Person from
any of such Person's material covenants or obligations under any instrument or
agreement included in the Indenture Trust Estate or that would result in the
amendment, hypothecation, subordination, termination or discharge of, or impair
the validity or effectiveness of, any such instrument or agreement, except as
expressly provided in this Indenture, any other Basic Document or such other
instrument or agreement.
(b) The Issuer may contract with other Persons to assist it in performing
its duties under this Indenture, and any performance of such duties by a Person
identified to the Indenture Trustee in an Officers' Certificate of the Issuer
shall be deemed to be action taken by the Issuer; provided, however, the Issuer
shall not be liable for any acts of Persons with whom the Issuer has contracted
with reasonable care. Initially, the Issuer has contracted with the Servicer and
the Administrator to assist the Issuer in performing its duties under this
Indenture. The Issuer shall give written notice to the Indenture Trustee and
each Rating Agency of any such contract with any other Person.
(c) The Issuer shall punctually perform and observe all of its obligations
and agreements contained in this Indenture, the other Basic Documents and the
instruments and agreements included in the Indenture Trust Estate, including
filing or causing to be filed all UCC financing statements and continuation
statements prepared by the Issuer and required to be filed by the terms of this
Indenture and the Administration Agreement in accordance with and within the
time periods provided for herein and therein. Except as otherwise expressly
provided therein, the Issuer shall not waive, amend, modify, supplement or
terminate any Basic Document or any provision thereof without the consent of the
Indenture Trustee or the Noteholders of at least a majority of the Outstanding
Amount of the Notes. The Issuer shall give written notice to each Rating Agency
of any such waiver, amendment, modification, supplement or termination.
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(d) If a Responsible Officer of the Issuer shall have knowledge of the
occurrence of a Servicer Default or an Administrator Default under the Servicing
Agreement or the Administration Agreement, respectively, the Issuer shall
promptly notify the Indenture Trustee and the Rating Agencies thereof, and shall
specify in such notice the action, if any, the Issuer is taking with respect to
such default. If a Servicer Default shall arise from the failure of the Servicer
to perform any of its duties or obligations under the Servicing Agreement, or an
Administrator Default shall arise from the failure of the Administrator to
perform any of its duties or obligations under the Administration Agreement, as
the case may be, with respect to the Trust Student Loans, the Issuer shall take
all reasonable steps available to it to enforce its rights under the Basic
Documents in respect of such failure.
(e) As promptly as possible after the giving of notice of termination to
the Servicer of the Servicer's rights and powers, pursuant to Section 5.01 of
the Servicing Agreement, or to the Administrator of the Administrator's rights
and powers, pursuant to Section 5.01 of the Administration Agreement, the Issuer
shall appoint a successor servicer (the "Successor Servicer") or a successor
administrator (the "Successor Administrator"), respectively, and such Successor
Servicer or Successor Administrator, as the case may be, shall accept its
appointment by a written assumption in a form acceptable to the Indenture
Trustee. In the event that a Successor Servicer or Successor Administrator has
not been appointed and accepted its appointment at the time when the Servicer or
Administrator, as the case may be, ceases to act as Servicer or Administrator,
respectively, the Indenture Trustee without further action shall automatically
be appointed the Successor Servicer or Successor Administrator, as the case may
be. The Indenture Trustee may resign as the Servicer or the Administrator by
giving written notice of resignation to the Issuer and in such event will be
released from such duties and obligations, such release not to be effective
until the date a new servicer or a new administrator enters into an agreement
with the Issuer as provided below. Upon delivery of any such notice to the
Issuer, the Issuer shall obtain a new servicer as the Successor Servicer under
the Servicing Agreement or a new administrator as the Successor Administrator
under the Administration Agreement, as the case may be. Any Successor Servicer
or Successor Administrator, other than the Indenture Trustee, shall (i) be an
established institution whose regular business includes the servicing or
administration of student loans and (ii) enter into a servicing agreement or an
administration agreement, respectively, with the Issuer having substantially the
same provisions as the provisions of the Servicing Agreement and the
Administration Agreement, as applicable. If within 30 days after the delivery of
the notice referred to above, the Issuer shall not have obtained such a new
servicer or new administrator, as the case may be, the Indenture Trustee may
appoint, or may petition a court of competent jurisdiction to appoint, a
Successor Servicer or Successor Administrator; provided, however, that such
right to appoint or to petition for the appointment of any such successor shall
in no event relieve the Indenture Trustee from any obligations otherwise imposed
on it under the Basic Documents until such successor has in fact assumed such
appointment. In connection with any such appointment, the Indenture Trustee may
make such arrangements for the compensation of such successor as it and such
successor shall agree, subject to the limitations set forth below and in the
Servicing Agreement or Administration Agreement, as applicable, and in
accordance with Section 5.02 of the Servicing Agreement and Section 5.02 of the
Administration Agreement, the Issuer shall enter into an agreement with such
successor for the servicing or administration of the Trust Student Loans (such
agreement to be in form and substance satisfactory to the Indenture Trustee). If
the Indenture Trustee shall succeed as provided herein to the Servicer's duties
as Servicer with
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respect to the Trust Student Loans, or the Administrator's duties with respect
to the Issuer and the Trust Student Loans, as the case may be, it shall do so in
its individual capacity and not in its capacity as Indenture Trustee and,
accordingly, the provisions of Article VI hereof shall be inapplicable to the
Indenture Trustee in its duties as the successor to the Servicer or the
Administrator, as the case may be, and the servicing or administration of the
Trust Student Loans. In case the Indenture Trustee shall become successor to the
Servicer or the Administrator, the Indenture Trustee shall be entitled to
appoint as Servicer or as Administrator, as the case may be, any one of its
Affiliates, provided that such appointment shall not affect or alter in any way
the liability of the Indenture Trustee as Successor Servicer or Successor
Administrator, respectively, in accordance with the terms hereof.
(f) Upon any termination of the Servicer's rights and powers pursuant to
the Servicing Agreement, or any termination of the Administrator's rights and
powers pursuant to the Administration Agreement, as the case may be, the Issuer
shall promptly notify the Indenture Trustee and each Rating Agency. As soon as a
Successor Servicer or a Successor Administrator is appointed, the Issuer shall
notify the Indenture Trustee and each Rating Agency of such appointment,
specifying in such notice the name and address of such Successor Servicer or
such Successor Administrator.
(g) Without derogating from the absolute nature of the assignment granted
to the Indenture Trustee under this Indenture or the rights of the Indenture
Trustee hereunder, the Issuer agrees that it will not, without the prior written
consent of the Indenture Trustee or the Noteholders of at least a majority in
Outstanding Amount of the Notes, amend, modify, waive, supplement, terminate or
surrender, or agree to any amendment, modification, supplement, termination,
waiver or surrender of, the terms of any Collateral or the Basic Documents,
except to the extent otherwise provided in the Basic Documents, or waive timely
performance or observance by the Servicer, the Administrator, the Depositor, SLM
Education Credit Finance Corporation or the Issuer under the Basic Documents;
provided, however, that no such amendment shall (i) increase or reduce in any
manner the amount of, or accelerate or delay the timing of, distributions that
are required to be made for the benefit of the Noteholders, or (ii) reduce the
aforesaid percentage of the Notes which are required to consent to any such
amendment, without the consent of the Noteholders of all the Outstanding Notes.
If any such amendment, modification, supplement or waiver shall be so consented
to by the Indenture Trustee or such Noteholders, the Issuer shall give written
notice thereof to each Rating Agency and agrees, promptly following a request by
the Indenture Trustee to do so, to execute and deliver, in its own name and at
its own expense, such agreements, instruments, consents and other documents as
the Indenture Trustee may deem necessary or appropriate in the circumstances.
Section 3.08. Negative Covenants. So long as any Notes are Outstanding,
the Issuer shall not:
(i) except as expressly permitted by this Indenture or any other
Basic Document, sell, transfer, exchange or otherwise dispose of any of the
properties or assets of the Issuer, including those included in the
Indenture Trust Estate, unless directed to do so by the Indenture Trustee;
14
(ii) claim any credit on, or make any deduction from the principal or
interest payable in respect of, the Notes (other than amounts properly
withheld from such payments under the Code or applicable state law) or
assert any claim against any present or former Noteholder by reason of the
payment of the taxes levied or assessed upon any part of the Indenture
Trust Estate;
(iii) (A) permit the validity or effectiveness of this Indenture to be
impaired, or permit the lien of this Indenture to be amended, hypothecated,
subordinated, terminated or discharged, or permit any Person to be released
from any covenants or obligations with respect to the Notes under this
Indenture except as may be expressly permitted hereby, (B) permit any lien,
charge, excise, claim, security interest, mortgage or other encumbrance
(other than the lien of this Indenture) to be created on or extend to or
otherwise arise upon or burden the Indenture Trust Estate or any part
thereof or any interest therein or the proceeds thereof (other than tax
liens and other liens that arise by operation of law, and other than as
expressly permitted by the Basic Documents) or (C) permit the lien of this
Indenture not to constitute a valid first priority (other than with respect
to any such tax or other lien) security interest in the Indenture Trust
Estate; or
(iv) enter into any amendment to the Swap Agreement or any Interest
Rate Cap Agreement to cure any ambiguity in, or to correct or supplement
any provision of the Swap Agreement or any Interest Rate Cap Agreement, so
long as the Issuer has determined, and the Indenture Trustee has agreed in
writing at the written direction of the Issuer, that the amendment will not
materially adversely affect the interests of the Noteholders and provided
that the Indenture Trustee has provided reasonable notice to the Rating
Agencies of such amendment and each Rating Agency has provided written
confirmation that the then current rating of the Notes will not be lowered
or withdrawn.
Section 3.09. Annual Statement as to Compliance. The Issuer will deliver
to the Indenture Trustee and each Rating Agency, within 120 days after the end
of each fiscal year of the Issuer (commencing with the fiscal year ending
December 31, 2004), an Officers' Certificate of the Issuer stating that:
(i) a review of the activities of the Issuer during such year and of
performance under this Indenture has been made under such Authorized
Officers' supervision; and
(ii) to the best of such Authorized Officers' knowledge, based on
such review, the Issuer has complied with all conditions and covenants
under this Indenture throughout such year, or, if there has been a default
in the compliance of any such condition or covenant, specifying each such
default known to such Authorized Officers and the nature and status
thereof.
Section 3.10. Issuer May Consolidate, etc., Only on Certain Terms.
(a) The Issuer shall not consolidate or merge with or into any other
Person, unless:
(i) the Person (if other than the Issuer) formed by or surviving
such consolidation or merger shall be a Person organized and existing under
the laws of the
15
United States of America or any State and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Indenture
Trustee, in form satisfactory to the Indenture Trustee, the due and
punctual payment of the principal of, and interest, if any, on all Notes
and the performance or observance of every agreement and covenant of this
Indenture and the other Basic Documents on the part of the Issuer to be
performed or observed, all as provided herein;
(ii) immediately after giving effect to such transaction, no Default
shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and shall
have delivered copies thereof to the Indenture Trustee) to the effect that
such transaction will not have any material adverse Federal or Delaware
state tax consequence to the Issuer, any Noteholder or any
Certificateholder;
(v) any action as is necessary to maintain the lien and security
interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee an
Officers' Certificate of the Issuer and an Opinion of Counsel each stating
that such consolidation or merger and such supplemental indenture comply
with this Article III and that all conditions precedent herein provided for
relating to such transaction have been complied with (including any filing
required by the Exchange Act).
(b) The Issuer shall not convey or transfer all or substantially all its
properties or assets, including those included in the Indenture Trust Estate, to
any Person, unless:
(i) the Person that acquires by conveyance or transfer the
properties and assets of the Issuer the conveyance or transfer of which is
hereby restricted shall (A) be a United States citizen or a Person
organized and existing under the laws of the United States of America or
any State, (B) expressly assume, by an indenture supplemental hereto,
executed and delivered to the Indenture Trustee, in form satisfactory to
the Indenture Trustee, the due and punctual payment of the principal of,
and interest, if any, on all Notes and the performance or observance of
every agreement and covenant of this Indenture on the part of the Issuer to
be performed or observed, all as provided herein, (C) expressly agree by
means of such supplemental indenture that all right, title and interest so
conveyed or transferred shall be subject and subordinate to the rights of
Noteholders, (D) unless otherwise provided in such supplemental indenture,
expressly agree to indemnify, defend and hold harmless the Issuer against
and from any loss, liability or expense arising under or related to this
Indenture and the Notes and (E) expressly agree by means of such
supplemental indenture that such Person (or if a group of Persons, then one
specified Person) shall make all filings with the Commission (and any other
appropriate Person) required by the Exchange Act in connection with the
Notes;
16
(ii) immediately after giving effect to such transaction, no Default
shall have occurred and be continuing;
(iii) the Rating Agency Condition shall have been satisfied with
respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel (and shall
have delivered copies thereof to the Indenture Trustee) to the effect that
such transaction will not have any material adverse Federal or Delaware
state tax consequence to the Issuer, any Noteholder or any
Certificateholder;
(v) any action as is necessary to maintain the lien and security
interest created by this Indenture shall have been taken; and
(vi) the Issuer shall have delivered to the Indenture Trustee an
Officers' Certificate of the Issuer and an Opinion of Counsel each stating
that such conveyance or transfer and such supplemental indenture comply
with this Article III and that all conditions precedent herein provided for
relating to such transaction have been complied with (including any filing
required by the Exchange Act).
Section 3.11. Successor or Transferee. (a) Upon any consolidation or
merger of the Issuer in accordance with Section 3.10(a), the Person formed by or
surviving such consolidation or merger (if other than the Issuer) shall succeed
to, and be substituted for, and may exercise every right and power of, the
Issuer under this Indenture with the same effect as if such Person had been
named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and properties of the
Issuer pursuant to Section 3.10(b), SLM Private Credit Student Loan Trust 2004-A
will be released from every covenant and agreement of this Indenture to be
observed or performed on the part of the Issuer with respect to the Notes
immediately upon the delivery by the Issuer of written notice to the Indenture
Trustee stating that SLM Private Credit Student Loan Trust 2004-A is to be so
released.
Section 3.12. No Other Business. The Issuer shall not engage in any
business other than financing, purchasing, owning, selling and managing the
Trust Student Loans in the manner contemplated by this Indenture and the other
Basic Documents and activities incidental thereto.
Section 3.13. No Borrowing. The Issuer shall not issue, incur, assume,
guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Notes.
Section 3.14. Obligations of Servicer and Administrator. The Issuer shall
cause the Servicer to comply with Sections 3.01, 3.02 and 3.03 of the
Administration Agreement and Section 3.07 of the Servicing Agreement and the
Administrator to comply with Sections 2.09, 3.01, 3.02 and 3.03 of the
Administration Agreement.
Section 3.15. Guarantees, Loans, Advances and Other Liabilities. Except as
contemplated by this Indenture and the other Basic Documents, the Issuer shall
not make any loan or advance or credit to, or guarantee (directly or indirectly
or by an instrument having the
17
effect of assuring another's payment or performance on any obligation or
capability of so doing or otherwise), endorse or otherwise become contingently
liable, directly or indirectly, in connection with the obligations, stocks or
dividends of, or own, purchase, repurchase or acquire (or agree contingently to
do so) any stock, obligations, assets or securities of, or any other interest
in, or make any capital contribution to, any other Person.
Section 3.16. Capital Expenditures. The Issuer shall not make any
expenditure (by long-term or operating lease or otherwise) for capital assets
(either realty or personalty).
Section 3.17. Restricted Payments. The Issuer shall not, directly or
indirectly, (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Trustee or any owner of a beneficial interest in the Issuer or
otherwise with respect to any ownership or equity interest or security in or of
the Issuer or to the Servicer or the Administrator, (ii) redeem, purchase,
retire or otherwise acquire for value any such ownership or equity interest or
security or (iii) set aside or otherwise segregate any amounts for any such
purpose; provided, however, that the Issuer may make, or cause to be made,
distributions to the Servicer, the Trustee, the Indenture Trustee, the
Noteholders, the Certificateholders, the Administrator and the Depositor as
contemplated by, and to the extent funds are available for such purpose under,
this Indenture and the other Basic Documents. The Issuer will not, directly or
indirectly, make payments to or distributions from the Collection Account except
in accordance with this Indenture and the other Basic Documents.
Section 3.18. Notice of Events of Default. The Issuer shall give the
Indenture Trustee and the Rating Agencies prompt written notice of each Event of
Default hereunder and each default on the part of the Depositor of its
obligations under the Depositor Sale Agreement, SLM Education Credit Finance
Corporation of its obligations under the Seller Sale Agreement, the Servicer of
its obligations under the Servicing Agreement, or the Administrator of its
obligations under the Administration Agreement. In addition, the Issuer shall
deliver to the Indenture Trustee and each Rating Agency, within five days after
the occurrence thereof, written notice in the form of an Officers' Certificate
of the Issuer of any event which with the giving of notice and the lapse of time
would become an Event of Default under Section 5.01(iii), its status and what
action the Issuer is taking or proposes to take with respect thereto.
Section 3.19. Further Instruments and Acts. Upon request of the Indenture
Trustee, the Issuer will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect with respect to the Notes except as to (i)
rights of registration of transfer and exchange, (ii) substitution of mutilated,
destroyed, lost or stolen Notes, (iii) rights of Noteholders to receive payments
of principal thereof and interest thereon, (iv) Sections 3.03, 3.04, 3.05, 3.08,
3.10, 3.12 and 3.13, (v) the rights, obligations and immunities of the Indenture
Trustee hereunder
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(including, without limitation, the rights of the Indenture Trustee under
Section 6.07 and the obligations of the Indenture Trustee under Section 4.02)
and (vi) the rights of Noteholders as beneficiaries hereof with respect to the
property so deposited with the Indenture Trustee payable to all or any of them,
and the Indenture Trustee, on demand of and at the expense of the Issuer, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture with respect to the Notes, when:
(a) either
(1) all Notes theretofore authenticated and delivered (other than (A)
Notes that have been destroyed, lost or stolen and that have been replaced
or paid as provided in Section 2.05 and (B) Notes for whose payment money
has theretofore been deposited in trust or segregated and held in trust by
the Issuer and thereafter repaid to the Issuer or discharged from such
trust, as provided in Section 3.03) have been delivered to the Indenture
Trustee for cancellation; or
(2) all Notes not theretofore delivered to the Indenture Trustee for
cancellation
(A) have become due and payable,
(B) will become due and payable at their respective Note Final
Maturity Date, within one year, or
(C) are to be called for redemption within one year under
arrangements satisfactory to the Indenture Trustee for the giving of notice
of redemption by the Indenture Trustee in the name, and at the expense, of
the Issuer, and the Issuer, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be irrevocably deposited with the
Indenture Trustee cash or direct obligations of or obligations guaranteed
by the United States of America (which will mature prior to the date such
amounts are payable), in trust for such purpose, in an amount sufficient to
pay and discharge the entire indebtedness on such Notes not theretofore
delivered to the Indenture Trustee for cancellation when due to the Note
Final Maturity Date;
(b) the Issuer has paid or caused to be paid all other sums payable
hereunder by the Issuer; and
(c) the Issuer has delivered to the Indenture Trustee an Officers'
Certificate of the Issuer, an Opinion of Counsel and (if required by the TIA or
the Indenture Trustee) an Independent Certificate from a firm of certified
public accountants, each meeting the applicable requirements of Section 11.01(a)
and, subject to Section 11.02, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Section 4.02. Application of Trust Money. All moneys deposited with the
Indenture Trustee pursuant to Section 4.01 hereof shall be held in trust and
applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent, as the
Indenture Trustee may determine, to the Noteholders of the particular Notes
19
for the payment or redemption of which such moneys have been deposited with the
Indenture Trustee, of all sums due and to become due thereon for principal and
interest; but such moneys need not be segregated from other funds except to the
extent required herein or in the Administration Agreement or required by law.
Section 4.03. Repayment of Moneys Held by Paying Agent. In connection with
the satisfaction and discharge of this Indenture with respect to the Notes, all
moneys then held by any Paying Agent other than the Indenture Trustee under the
provisions of this Indenture with respect to such Notes shall, upon demand of
the Issuer, be paid to the Indenture Trustee to be held and applied according to
Section 3.03 and thereupon such Paying Agent shall be released from all further
liability with respect to such moneys.
Section 4.04. Auction of Trust Student Loans. Any Trust Student Loans
remaining in the Trust as of the end of the Collection Period immediately
preceding the earliest Distribution Date on which the Pool Balance is equal to
10% or less of the initial Pool Balance three business days prior to such
Distribution Date (the "Trust Auction Date") shall be offered for sale by the
Indenture Trustee unless the Servicer has exercised its option to purchase the
Trust Estate as described in Section 6.01(a) of the Administration Agreement
with respect to such Distribution Date. The Servicer will be deemed to have
waived such option if it fails to notify the Trustee and the Indenture Trustee
of its exercise thereof in writing prior to the Indenture Trustee's acceptance
of a bid to purchase such Trust Student Loans; provided, however, that there
shall be no such offer for sale if the Indenture Trustee fails to provide notice
to the Servicer in accordance with this Section 4.04. The Indenture Trustee
shall provide written notice to the Servicer of any such offer for sale at least
5 business days in advance of the Trust Auction Date. The Indenture Trustee
shall permit the Servicer or any of its Affiliates, including SLM Education
Credit Finance Corporation and the Depositor, to offer bids only if the Pool
Balance as of the applicable Trust Auction Date is equal to 10% or less of the
Initial Pool Balance and such bid does not exceed the fair market value of the
Trust Student Loans as of the Trust Auction Date. If at least two bids are
received, the Indenture Trustee shall solicit and resolicit new bids from all
participating bidders until only one bid remains or the remaining bidders
decline to resubmit bids. The Indenture Trustee shall accept the highest of such
remaining bids if it is equal to or in excess of both the Minimum Purchase
Amount and the fair market value of such Trust Student Loans as of the end of
the Collection Period immediately preceding the Trust Auction Date. If at least
two bids are not received or the highest bid after the resolicitation process is
completed is not equal to or in excess of the higher of the Minimum Purchase
Amount and the fair market value of the Trust Student Loans, the Indenture
Trustee shall not consummate such sale. The Indenture Trustee may consult, and,
at the direction of the Depositor, shall consult, with a financial advisor,
including an underwriter of the Notes or the Administrator, to determine if the
fair market value of the Trust Student Loans has been offered. The proceeds of
any such sale will be applied in the order of priority set forth in Section
5.04(b). If the sale is not consummated in accordance with the foregoing, the
Indenture Trustee may, but shall not be under any obligation to, solicit bids
for sale of the Trust Student Loans with respect to future Distribution Dates
upon terms similar to those described above, including the Servicer's waiver of
its option to purchase the Trust Estate in accordance with Section 6.01(a) of
the Administration Agreement with respect to each such future Distribution Date.
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ARTICLE V
REMEDIES
Section 5.01. Events of Default. "Event of Default," wherever used herein,
means any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any interest on any Controlling Note when
the same becomes due and payable, and such default shall continue for a period
of five Business Days or more;
(b) default in the payment of the principal of any Note when the same
becomes due and payable on the related Note Final Maturity Date;
(c) default in the observance or performance of any covenant or agreement
of the Issuer made in this Indenture (other than a covenant or agreement, a
default in the observance or performance of which is elsewhere in this Section
specifically dealt with), or any representation or warranty of the Issuer made
in this Indenture or in any certificate or other writing having been incorrect
in any material respect as of the time when made, such default or breach having
a material adverse effect on the holders of the Notes, and such default or
breach shall continue or not be cured, or the circumstance or condition in
respect of which such misrepresentation or warranty was incorrect shall not have
been eliminated or otherwise cured, for a period of 30 days after there shall
have been given, by registered or certified mail, to the Issuer by the Indenture
Trustee or to the Issuer and the Indenture Trustee by the Noteholders of at
least 25% of the Outstanding Amount of the Controlling Notes, a written notice
specifying such default or incorrect representation or warranty and requiring it
to be remedied and stating that such notice is a notice of Default hereunder;
(d) the filing of a decree or order for relief by a court having
jurisdiction in the premises in respect of the Issuer or any substantial part of
the Indenture Trust Estate in an involuntary case under any applicable Federal
or state bankruptcy, insolvency or other similar law now or hereafter in effect,
or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator
or similar official of the Issuer or for any substantial part of the Indenture
Trust Estate, or ordering the winding-up or liquidation of the Issuer's affairs,
and such decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(e) the commencement by the Issuer of a voluntary case under any
applicable Federal or state bankruptcy, insolvency or other similar law now or
hereafter in effect, or the consent by the Issuer to the entry of an order for
relief in an involuntary case under any such law, or the consent by the Issuer
to the appointment or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Issuer or for any
substantial part of the Indenture Trust Estate, or the making by the Issuer of
any general assignment for the benefit of creditors, or the failure by the
Issuer generally to pay its debts as such debts become due, or the taking of
action by the Issuer in furtherance of any of the foregoing.
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Section 5.02. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default should occur and be continuing, then and in every such case the
Indenture Trustee or the Noteholders of Notes representing not less than a
majority of the Outstanding Amount of the Controlling Notes may declare all the
Notes to be immediately due and payable, by a notice in writing to the Issuer
(and to the Indenture Trustee if given by Noteholders), and upon any such
declaration the unpaid principal amount of such Notes, together with accrued and
unpaid interest thereon through the date of acceleration, shall become
immediately due and payable, subject, however, to Section 5.04 of this
Indenture.
At any time after such declaration of acceleration of maturity has been
made and before a judgment or decree for payment of the money due has been
obtained by the Indenture Trustee as hereinafter in this Article V provided, the
Noteholders of Notes representing a majority of the Outstanding Amount of the
Controlling Notes, by written notice to the Issuer and the Indenture Trustee,
may rescind and annul such declaration and its consequences if:
(a) the Issuer has paid or deposited with the Indenture Trustee a sum
sufficient to pay:
(i) all payments of principal of and interest on all Notes and all
other amounts that would then be due hereunder or upon such Notes if the
Event of Default giving rise to such acceleration had not occurred; and
(ii) all sums paid or advanced by the Indenture Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of the
Indenture Trustee and its agents and counsel; and
(b) all Events of Default, other than the nonpayment of the principal of
the Notes that has become due solely by such acceleration, have been cured or
waived as provided in Section 5.12.
No such rescission shall affect any subsequent default or impair any right
consequent thereto.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by
Indenture Trustee. The Issuer covenants that if (i) default is made in the
payment of any interest on any Controlling Note when the same becomes due and
payable, and such default continues for a period of five days, or (ii) default
is made in the payment of the principal of any Note when the same becomes due
and payable at the related Note Final Maturity Date, the Issuer shall, upon
demand of the Indenture Trustee, pay to it, for the benefit of the Noteholders,
the whole amount then due and payable on such Notes for principal and interest,
with interest upon the overdue principal, and, to the extent payment at such
rate of interest shall be legally enforceable, upon overdue installments of
interest, at the rate specified in Section 2.07 and in addition thereto such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Indenture Trustee and its agents and counsel.
(a) In case the Issuer shall fail forthwith to pay such amounts upon such
demand, the Indenture Trustee, in its own name and as trustee of an express
trust, may institute a Proceeding
22
for the collection of the sums so due and unpaid, and may prosecute such
Proceeding to judgment or final decree, and may enforce the same against the
Issuer or other obligor upon such Notes and collect in the manner provided by
law out of the property of the Issuer or other obligor upon such Notes, wherever
situated, the moneys adjudged or decreed to be payable.
(b) If an Event of Default occurs and is continuing, the Indenture Trustee
may, as more particularly provided in Section 5.04, in its discretion, proceed
to protect and enforce its rights and the rights of the Noteholders, by such
appropriate Proceedings as the Indenture Trustee shall deem most effective to
protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy or legal or equitable
right vested in the Indenture Trustee by this Indenture or by law.
(c) In case there shall be pending, relative to the Issuer or any other
obligor upon the Notes or any Person having or claiming an ownership interest in
the Indenture Trust Estate, Proceedings under Title 11 of the United States Code
or any other applicable Federal or state bankruptcy, insolvency or other similar
law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Issuer or its property or such other obligor or Person,
or in case of any other, comparable judicial Proceedings relative to the Issuer
or other obligor upon the Notes, or to the creditors or property of the Issuer
or such other obligor, the Indenture Trustee, irrespective of whether the
principal of any Notes shall then be due and payable, as therein expressed or by
declaration or otherwise and irrespective of whether the Indenture Trustee shall
have made any demand pursuant to the provisions of this Section, shall be
entitled and empowered, by intervention in such proceedings or otherwise:
(i) to file and prove a claim or claims for the whole amount of
principal and interest owing and unpaid in respect of the Notes and to file
such other papers or documents as may be necessary or advisable in order to
have the claims of the Indenture Trustee (including any claim for
reasonable compensation to the Indenture Trustee and each predecessor
Indenture Trustee, and their respective agents, attorneys and counsel, and
for reimbursement of all expenses and liabilities incurred, and all
advances made, by the Indenture Trustee and each predecessor Indenture
Trustee, except as a result of negligence or bad faith) and of the
Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations, to vote on
behalf of the Noteholders in any election of a trustee, a standby trustee
or Person performing similar functions in any such Proceedings;
(iii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute all amounts received with
respect to the claims of the Noteholders and of the Indenture Trustee on
their behalf; and
(iv) to file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Indenture
Trustee or the Noteholders allowed in any judicial proceedings relative to
the Issuer, its creditors and its property;
23
and any trustee, receiver, liquidator, custodian or other similar official
in any such Proceeding is hereby authorized by each of such Noteholders to make
payments to the Indenture Trustee, and, in the event that the Indenture Trustee
shall consent to the making of payments directly to such Noteholders, to pay to
the Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Indenture Trustee and each
predecessor Indenture Trustee except as a result of negligence or bad faith.
(d) Nothing herein contained shall be deemed to authorize the Indenture
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Noteholder thereof or to
authorize the Indenture Trustee to vote in respect of the claim of any
Noteholder in any such proceeding except, as aforesaid, to vote for the election
of a trustee in bankruptcy or similar Person.
(e) All rights of action and of asserting claims under this Indenture, or
under any of the Notes, may be enforced by the Indenture Trustee without the
possession of any of the Notes or the production thereof in any trial or other
Proceedings relative thereto, and any such action or Proceedings instituted by
the Indenture Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Indenture Trustee, each predecessor
Indenture Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Noteholders.
(f) In any Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all the Noteholders, and it shall not be necessary to make any
Noteholder a party to any such Proceedings.
Section 5.04. Remedies; Priorities. If an Event of Default shall have
occurred and be continuing, the Indenture Trustee may do one or more of the
following (subject to Section 5.05):
(a) (i) institute Proceedings in its own name and as trustee of an
express trust for the collection of all amounts then payable on the Notes
or under this Indenture with respect thereto, whether by declaration or
otherwise, enforce any judgment obtained, and collect from the Issuer and
any other obligor upon such Notes moneys adjudged due;
(ii) institute Proceedings from time to time for the complete or
partial foreclosure of this Indenture, with respect to the Indenture Trust
Estate;
(iii) exercise any remedies of a secured party under the UCC with
respect to the Trust Estate and take any other appropriate action to
protect and enforce the rights and remedies of the Indenture Trustee and
the Noteholders;
(iv) sell the Indenture Trust Estate or any portion thereof or rights
or interest therein, at one or more public or private sales called and
conducted in any manner permitted by law; and/or
24
(v) elect to have the Trustee maintain ownership of the Trust
Student Loans and continue to apply collections with respect to the Trust
Student Loans as if there had been no declaration of acceleration;
provided, however, that the Indenture Trustee may not sell or otherwise
liquidate the Indenture Trust Estate following an Event of Default, other than
an Event of Default described in Section 5.01(a) or (b), unless (A) the
Noteholders of 100% of the Outstanding Amount of the Controlling Notes consent
thereto, (B) the proceeds of such sale or liquidation distributable to the
Noteholders of the Controlling Notes are sufficient to discharge in full all
amounts then due and unpaid upon such Notes for principal and interest or (C)
the Indenture Trustee determines that the Indenture Trust Estate will not
continue to provide sufficient funds for the payment of principal of and
interest on the Controlling Notes as they would have become due if the
Controlling Notes had not been declared due and payable, and the Indenture
Trustee obtains the consent of Noteholders of 66-2/3% of the Outstanding Amount
of the Class A Notes; provided, further, that the Indenture Trustee may not sell
or otherwise liquidate the Indenture Trust Estate following an Event of Default,
other than an Event of Default described in Section 5.01(a) or (b) with respect
to the Class A Notes, unless (D) the proceeds of such sale or liquidation
distributable to the Class B Noteholders plus the proceeds of the sale or
liquidation of the Trust Estate distributable to the Class C Noteholders are
sufficient to pay to the Class B Noteholders and the Class C Noteholders the
outstanding principal plus accrued and unpaid interest thereon or (E) if the
proceeds of such sale or liquidation distributable to the Class B Noteholders
plus the proceeds of the sale or liquidation of the Trust Estate distributable
to the Class C Noteholders would not be sufficient to pay to the Class B
Noteholders and the Class C Noteholders the outstanding principal plus accrued
and unpaid interest thereon, the Class B Noteholders and the Class C Noteholders
of at least a majority of the principal amount of the Class B Notes and the
Class C Notes consent thereto. In determining such sufficiency or insufficiency
with respect to clauses (B), (C), (D) and (E), the Indenture Trustee may, but
need not, obtain and rely upon an opinion of an Independent investment banking
or accounting firm of national reputation as to the feasibility of such proposed
action and as to the sufficiency of the Indenture Trust Estate and/or Trust
Estate, as applicable, for such purpose.
(b) Notwithstanding the provisions of Section 8.02, following the
occurrence and during the continuation of an Event of Default specified in
Section 5.01(a), 5.01(b), 5.01(d) or 5.01(e) which has resulted in an
acceleration of the Notes (or following the occurrence of any such event after
an Event of Default specified in Section 5.01(c) has occurred and the Trust has
been liquidated), if the Indenture Trustee collects any money or property, it
shall pay out the money or property (and other amounts including amounts held on
deposit in the Reserve Account and the Cash Capitalization Account) held as
Collateral for the benefit of the Noteholders, net of liquidation costs
associated with the sale of the assets of the Trust, in the following order:
(i) to the Indenture Trustee for amounts due under Section 6.07;
(ii) to the Servicer for any due and unpaid Primary Servicing Fees;
(iii) to the Administrator, any due and unpaid Administration Fees;
25
(iv) to the Swap Counterparty, any Swap Payment payable to such Swap
Counterparty under the Swap Agreement for such Distribution Date;
(v) pro rata, based on the Class Note Balance and the amount of any
Swap Termination Payments due and payable by the Issuer to a Swap
Counterparty under this clause (v);
(A) to the Class A Noteholders, for amounts due and unpaid
on the Class A Notes for interest, ratably, without preference
or priority of any kind, according to the amounts due and
payable on the Class A Notes for such interest; and
(B) to the Swap Counterparty, the amount of any Swap
Termination Payments, if any, due to the Swap Counterparty
under the Swap Agreement due to a Termination Event resulting
from a payment default by the Issuer or the insolvency of the
Issuer; provided, that if any amounts allocable to the Class A
Notes are not needed to pay Class A Noteholders' Interest
Distribution Amount as of such Distribution Date, such amounts
will be applied to pay the portion, if any, of any Swap
Termination Payments remaining unpaid;
(vi) A: so long as the Swap Agreement is in effect, to the Class A
Noteholders, ratably, an amount sufficient to reduce their respective Class
A Note Balance to zero; and
B: if the Swap Agreement is not in effect, pro rata (1) to the
Class A Noteholders, ratably, an amount sufficient to reduce the respective
principal balances of the Class A Notes to zero and (2) to the Swap
Counterparty under the terminated Swap Agreement, the amount (to the extent
not paid under clause (v) above) of any Swap Termination Payment due to the
Swap Counterparty due to a Termination Event resulting from a "Cross
Default" under 5(a)(vi) of such Swap Agreement by the Issuer. For the
avoidance of doubt, any Swap Termination Payment due to the Swap
Counterparty resulting from such a "Cross-Default" that is a result of the
bankruptcy or insolvency of the Trust shall be payable under clause (v)
above.
(vii) to the Class B Noteholders for amounts due and unpaid on the
Class B Notes for interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Class B Notes for
such interest;
(viii) to Class B Noteholders, an amount sufficient to reduce the
Class B Note Balance to zero;
(ix) to the Class C Noteholders, for amounts due and unpaid on the
Class C Notes for interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Class C Notes for
such interest;
(x) to the Class C Noteholders, an amount sufficient to reduce the
Class C Note Balance to zero;
26
(xi) to the Servicer, for any unpaid Carryover Servicing Fees;
(xii) to the Swap Counterparty, the amount of any Swap Termination
Payment due and payable by the Issuer to the Swap Counterparty under the
Swap Agreement and not payable in clause (v) and (vi) above and the amount
of any termination payment due and payable by the Issuer to the Cap
Counterparties under the Interest Rate Cap Agreements; and
(xiii) to the Certificateholders, any remaining funds.
The Indenture Trustee may fix a record date and payment date for any
payment to Noteholders pursuant to this Section. At least 15 days before such
record date, the Indenture Trustee shall mail to each Noteholder and the Issuer
a notice that states the record date, the payment date and the amount to be
paid.
Section 5.05. Optional Preservation of the Trust Student Loans. If the
Notes have been declared to be due and payable under Section 5.02 following an
Event of Default and such declaration and its consequences have not been
rescinded and annulled, the Indenture Trustee may, but need not, elect to
maintain possession of the Indenture Trust Estate. It is the desire of the
parties hereto and the Noteholders that there be at all times sufficient funds
for the payment of principal of and interest on the Notes, and the Indenture
Trustee shall take such desire into account when determining whether or not to
maintain possession of the Indenture Trust Estate. In determining whether to
maintain possession of the Indenture Trust Estate, the Indenture Trustee may,
but need not, obtain and rely upon an opinion of an Independent investment
banking or accounting firm of national reputation as to the feasibility of such
proposed action and as to the sufficiency of the Indenture Trust Estate for such
purpose.
Section 5.06. Limitation of Suits. No Noteholder shall have any right to
institute any Proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(a) such Noteholder has previously given written notice to the Indenture
Trustee of a continuing Event of Default;
(b) the Noteholders of not less than 25% of the Outstanding Amount of the
Controlling Notes have made written request to the Indenture Trustee to
institute such Proceeding in respect of such Event of Default in its own name as
Indenture Trustee hereunder;
(c) such Noteholder or Noteholders have offered to the Indenture Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in complying with such request;
(d) the Indenture Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute such Proceeding; and
(e) no direction inconsistent with such written request has been given to
the Indenture Trustee during such 60-day period by the Noteholders of a majority
of the Outstanding Amount of the Controlling Notes;
27
it being understood and intended that no one or more Noteholders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this indenture to affect, disturb or prejudice the rights of any other
Noteholders or to obtain or to seek to obtain priority or preference over any
other Noteholders or to enforce any right under this Indenture, except in the
manner herein provided.
In the event the Indenture Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Noteholders, each
representing less than a majority of the Outstanding Amount of the Notes, the
Indenture Trustee in its sole discretion may determine what action, if any,
shall be taken, notwithstanding any other provisions of this Indenture.
Section 5.07. Unconditional Rights of Noteholders To Receive Principal and
Interest. Notwithstanding any other provisions in this Indenture, any Noteholder
shall have the right, which is absolute and unconditional, to receive payment of
the principal of and interest on such Note on or after the respective due dates
thereof expressed in such Note or in this Indenture (or, in the case of
redemption, on or after the Redemption Date) and to institute suit for the
enforcement of any such payment, and such right shall not be impaired without
the consent of such Noteholder.
Section 5.08. Restoration of Rights and Remedies. If the Indenture Trustee
or any Noteholder has instituted any Proceeding to enforce any right or remedy
under this Indenture and such Proceeding has been discontinued or abandoned for
any reason or has been determined adversely to the Indenture Trustee or to such
Noteholder, then and in every such case the Issuer, the Indenture Trustee and
the Noteholders shall, subject to any determination in such Proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Indenture Trustee and the Noteholders
shall continue as though no such Proceeding had been instituted.
Section 5.09. Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Indenture Trustee or to the Noteholders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 5.10. Delay or Omission Not a Waiver. No delay or omission of the
Indenture Trustee or any Noteholder to exercise any right or remedy accruing
upon any Default shall impair any such right or remedy or constitute a waiver of
any such Default or an acquiescence therein. Every right and remedy given by
this Article V or by law to the Indenture Trustee or to the Noteholders may be
exercised from time to time, and as often as may be deemed expedient, by the
Indenture Trustee or by the Noteholders, as the case may be.
Section 5.11. Control by Noteholders. The Noteholders of a majority of the
Outstanding Amount of the Controlling Notes shall have the right to direct the
time, method and place of conducting any Proceeding for any remedy available to
the Indenture Trustee with respect to the Notes or exercising any trust or power
conferred on the Indenture Trustee; provided, that
28
(a) such direction shall not be in conflict with any rule of law or with
this Indenture;
(b) subject to the express terms of Section 5.04, any direction to the
Indenture Trustee to sell or liquidate the Indenture Trust Estate shall be by
the Noteholders of not less than 100% of the Outstanding Amount of the
Controlling Notes;
(c) if the conditions set forth in Section 5.05 have been satisfied and
the Indenture Trustee elects to retain the Indenture Trust Estate pursuant to
such Section, then any direction to the Indenture Trustee by Noteholders of less
than 100% of the Outstanding Amount of the Controlling Notes to sell or
liquidate the Indenture Trust Estate shall be of no force and effect; and
(d) the Indenture Trustee may take any other action deemed proper by the
Indenture Trustee that is not inconsistent with such direction;
provided, however, that subject to Section 6.01, the Indenture Trustee need not
take any action that it determines might involve it in liability or might
materially adversely affect the rights of any Noteholders not consenting to such
action.
Section 5.12. Waiver of Past Defaults. Prior to the time a judgment or
decree for payment of money due has been obtained as described in Section 5.02,
the Noteholders of not less than a majority of the Outstanding Amount of the
Controlling Notes may waive any past Default and its consequences except a
Default (a) in payment when due of principal of or interest on any of the Notes
or (b) in respect of a covenant or provision hereof which cannot be modified or
amended without the consent of each Noteholder. In the case of any such waiver,
the Issuer, the Indenture Trustee and the Noteholders shall be restored to their
former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other Default or impair any right consequent
thereto.
Upon any such waiver, such Default shall cease to exist and be deemed to
have been cured and not to have occurred for every purpose of this Indenture;
but no such waiver shall extend to any subsequent or other Default or impair any
right consequent thereto.
Section 5.13. Undertaking for Costs. All parties to this Indenture agree,
and each Noteholder by such Noteholder's acceptance of any Note shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Indenture Trustee for any action taken, suffered or omitted by it as
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to (a) any suit instituted by the
Indenture Trustee, (b) any suit instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 10% of the
Outstanding Amount of the Notes or (c) any suit instituted by any Noteholder for
the enforcement of the payment of principal of or interest on any Note on or
after the respective due dates expressed in such Note and in this Indenture (or,
in the case of redemption, on or after the Redemption Date).
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Section 5.14. Waiver of Stay or Extension Laws. The Issuer covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead or in any manner whatsoever, claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, that may affect the covenants or the performance of this Indenture; and
the Issuer (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Indenture
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
Section 5.15. Action on Notes. The Indenture Trustee's right to seek and
recover judgment on the Notes or under this Indenture shall not be affected by
the seeking, obtaining or application of any other relief under or with respect
to this Indenture. Neither the lien of this Indenture nor any rights or remedies
of the Indenture Trustee or the Noteholders shall be impaired by the recovery of
any judgment by the Indenture Trustee against the Issuer or by the levy of any
execution under such judgment upon any portion of the Indenture Trust Estate or
upon any of the assets of the Issuer. Any money or property collected by the
Indenture Trustee shall be applied in accordance with Section 5.04(b).
Section 5.16. Performance and Enforcement of Certain Obligations.
(a) Promptly following a request from the Indenture Trustee to do so and
at the Administrator's expense, the Issuer shall take all such lawful action as
the Indenture Trustee may request to compel or secure the performance and
observance by the Depositor, SLM Education Credit Finance Corporation, the
Administrator and the Servicer, as applicable, of each of their obligations to
the Issuer, whether directly or by assignment, under or in connection with a
Basic Document, respectively, in accordance with the terms thereof, and to
exercise any and all rights, remedies, powers and privileges lawfully available
to the Issuer under or in connection with a Basic Document, as the case may be,
to the extent and in the manner directed by the Indenture Trustee, including the
transmission of notices of default on the part of the Depositor, SLM Education
Credit Finance Corporation, the Administrator or the Servicer thereunder and the
institution of legal or administrative actions or proceedings to compel or
secure performance by the Depositor, SLM Education Credit Finance Corporation,
the Administrator or the Servicer of each of their obligations under a Basic
Document, respectively.
(b) If an Event of Default has occurred and is continuing, the Indenture
Trustee may, and at the written direction of the Noteholders of 66-2/3% of the
Controlling Outstanding Amount of the Notes shall, exercise all rights,
remedies, powers, privileges and claims of the Issuer against the Depositor, SLM
Education Credit Finance Corporation, the Administrator or the Servicer under or
in connection with a Basic Document, respectively, including the right or power
to take any action to compel or secure performance or observance by the
Depositor, SLM Education Credit Finance Corporation, the Administrator or the
Servicer of each of their obligations to the Issuer thereunder, whether directly
or by assignment, and to give any consent, request, notice, direction, approval,
extension or waiver under a Basic Document, respectively, and any right of the
Issuer to take such action shall be suspended.
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ARTICLE VI
THE INDENTURE TRUSTEE
Section 6.01. Duties of Indenture Trustee.
(a) If an Event of Default has occurred and is continuing, the Indenture
Trustee shall exercise the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent person
would exercise or use under the circumstances in the conduct of such person's
own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Indenture Trustee; and
(ii) in the absence of bad faith on its part, the Indenture Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Indenture Trustee and conforming to the
requirements of this Indenture; provided, however, that the Indenture
Trustee shall examine the certificates and opinions to determine whether or
not they conform to the requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this clause (c) does not limit the effect of clause (b) of this
Section;
(ii) the Indenture Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is proved
that the Indenture Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Indenture Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction of the Noteholders received by it pursuant to this Indenture.
(d) The Indenture Trustee shall not be liable for interest on any money
received by it except as the Indenture Trustee may agree in writing with the
Issuer.
(e) Money held in trust by the Indenture Trustee need not be segregated
from other funds except to the extent required by law or the terms of this
Indenture or the other Basic Documents.
(f) No provision of this Indenture shall require the Indenture Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to
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believe that repayments of such funds or adequate indemnity satisfactory to it
against any loss, liability or expense is not reasonably assured to it.
(g) Except as expressly provided in the Basic Documents, the Indenture
Trustee shall have no obligation to administer, service or collect the Trust
Student Loans or to maintain, monitor or otherwise supervise the administration,
servicing or collection of the Trust Student Loans.
(h) In the event that the Indenture Trustee is the Paying Agent or the
Note Registrar, the rights and protections afforded to the Indenture Trustee
pursuant to this Indenture shall also be afforded to the Indenture Trustee in
its capacity as Paying Agent or Note Registrar.
(i) Every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Indenture Trustee shall be
subject to the provisions of this Section and to the provisions of the TIA.
(j) The rights and protections of the Indenture Trustee under
Sections 6.01 and 6.02 shall apply to each of the Basic Documents as though
explicitly incorporated therein.
Section 6.02. Rights of Indenture Trustee. (a) The Indenture Trustee may
rely on any document believed by it to be genuine and to have been signed or
presented by the proper Person. The Indenture Trustee need not investigate any
fact or matter stated in such document.
(b) Before the Indenture Trustee acts or refrains from acting, it may
require and shall be entitled to receive an Officers' Certificate of the Issuer
and/or an Opinion of Counsel. The Indenture Trustee may conclusively rely on any
such Opinion of Counsel or Officers' Certificate and shall not be liable for any
action it takes or omits to take in good faith in reliance on such Officers'
Certificate or Opinion of Counsel.
(c) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian or nominee, and the Indenture Trustee shall
not be responsible for any misconduct or negligence on the part of, or for the
supervision of, any such agent, attorney, custodian or nominee appointed with
due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Indenture Trustee's conduct does
not constitute willful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Notes shall be full and complete authorization and protection from liability
in respect to any action taken, omitted or suffered by it hereunder in good
faith and in accordance with the advice or opinion of such counsel.
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Section 6.03. Individual Rights of Indenture Trustee. The Indenture
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with the Issuer or its Affiliates with the same
rights it would have if it were not Indenture Trustee. Any Paying Agent, Note
Registrar, co-registrar or co-paying agent may do the same with like rights.
However, the Indenture Trustee must comply with Sections 6.11 and 6.12.
Section 6.04. Indenture Trustee's Disclaimer. The Indenture Trustee shall
not be responsible for and makes no representation as to the validity or
adequacy of this Indenture or the Notes, it shall not be accountable for the
Issuer's use of the proceeds from the Notes, and it shall not be responsible for
any statement of the Issuer in the Indenture or in any document issued in
connection with the sale of the Notes or in the Notes other than the Indenture
Trustee's certificate of authentication.
Section 6.05. Notice of Defaults. If a Default or a Servicer Default
occurs and is continuing and if it is either actually known to a Responsible
Officer or written notice of the existence thereof has been delivered to a
Responsible Officer of the Indenture Trustee, the Indenture Trustee shall mail
notice of the Default to each Noteholder within 90 days and to each Rating
Agency as soon as practicable within 30 days after it occurs. Except in the case
of a Default in payment of principal of or interest on any Note (including
payments pursuant to the mandatory redemption provisions of such Note), the
Indenture Trustee may withhold the notice if and so long as a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of Noteholders. Except as provided in the first sentence of this
Section 6.05, in no event shall the Indenture Trustee be deemed to have
knowledge of a Default, a Servicer Default or an Event of Default.
Section 6.06. Reports by Indenture Trustee to Noteholders. The Indenture
Trustee shall deliver to each Noteholder (and to each Person who was a
Noteholder at any time during the applicable calendar year) such information as
may be required to enable such holder to prepare its Federal and state income
tax returns. Within 60 days after each December 31 beginning with the December
31 following the date of this Indenture, the Indenture Trustee shall mail to
each Noteholder a brief report as of such December 31 that complies with TIA
Section 313(a) if required by said section. The Indenture Trustee shall also
comply with TIA Section 313(b). A copy of each such report required pursuant to
TIA Section 313(a) or (b) shall, at the time of such transaction to Noteholders,
be filed by the Indenture Trustee with the Commission and with each securities
exchange, if any, upon which the Notes are listed, provided that the Issuer has
previously notified the Indenture Trustee of such listing.
Section 6.07. Compensation and Indemnity. The Issuer shall cause the
Depositor to pay to the Indenture Trustee reasonable compensation for its
services in accordance with a separate agreement between the Depositor and the
Indenture Trustee and shall cause the Depositor to reimburse the Indenture
Trustee for all reasonable out-of-pocket expenses including the reasonable
expenses and disbursements of its counsel incurred or made by it as provided in
such separate agreement. The Indenture Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Issuer
shall cause the Administrator to indemnify the Indenture Trustee and its
directors, officers, employees and agents against any and all loss, liability or
expense (including attorneys' fees) incurred by it in connection with the
administration of this trust and the performance of its duties hereunder and
under the other Basic
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Documents. The Indenture Trustee shall notify the Issuer and the Administrator
promptly of any claim for which it may seek indemnity. Failure by the Indenture
Trustee to so notify the Issuer and the Administrator shall not relieve the
Issuer or the Administrator of its obligations hereunder and under the other
Basic Documents. The Issuer shall cause the Administrator to defend the claim
and the Administrator shall not be liable for the legal fees and expenses of the
Indenture Trustee after it has assumed such defense; provided, however, that, in
the event that there may be a conflict between the positions of the Indenture
Trustee and the Administrator in conducting the defense of such claim, the
Indenture Trustee shall be entitled to separate counsel acceptable to it in its
sole discretion the reasonable fees and expenses of which shall be paid by the
Administrator on behalf of the Issuer. Neither the Issuer nor the Administrator
need reimburse any expense or indemnify against any loss, liability or expense
incurred by the Indenture Trustee through the Indenture Trustee's own willful
misconduct, negligence or bad faith.
The Issuer's payment obligations to the Indenture Trustee pursuant to this
Section shall survive the discharge of this Indenture or the earlier resignation
and removal of the Indenture Trustee. When the Indenture Trustee incurs expenses
after the occurrence of a Default specified in Section 5.01(d) or (e) with
respect to the Issuer, the expenses are intended to constitute expenses of
administration under Title 11 of the United States Code or any other applicable
Federal or state bankruptcy, insolvency or similar law.
Section 6.08. Replacement of Indenture Trustee. No resignation or removal
of the Indenture Trustee and no appointment of a successor Indenture Trustee
shall become effective until the acceptance of appointment by the successor
Indenture Trustee pursuant to this Section 6.08. The Indenture Trustee may
resign at any time by so notifying the Issuer. The Noteholders of a majority in
Outstanding Amount of the Controlling Notes may remove the Indenture Trustee by
so notifying the Indenture Trustee and may appoint a successor Indenture
Trustee. The Issuer shall remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11;
(ii) an Insolvency Event occurs with respect to the Indenture
Trustee;
(iii) a receiver or other public officer takes charge of the Indenture
Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of acting.
If the Indenture Trustee resigns or is removed or if a vacancy exists in
the office of Indenture Trustee for any reason (the Indenture Trustee in such
event being referred to herein as the retiring Indenture Trustee), the Issuer
shall promptly appoint a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written acceptance of its
appointment to the retiring Indenture Trustee and to the Issuer. Thereupon the
resignation or removal of the retiring Indenture Trustee shall become effective,
and the successor Indenture Trustee shall have all the rights, powers and duties
of the Indenture Trustee under this Indenture. The successor Indenture Trustee
shall mail a notice of its succession to Noteholders. The retiring Indenture
Trustee shall promptly transfer all property held by it as Indenture Trustee to
the successor Indenture Trustee.
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If a successor Indenture Trustee does not take office within 60 days after
the retiring Indenture Trustee resigns or is removed, the retiring Indenture
Trustee, the Issuer or the Noteholders of a majority in Outstanding Amount of
the Controlling Notes may petition any court of competent jurisdiction for the
appointment of a successor Indenture Trustee. The successor Indenture Trustee
shall give notice of its appointment as successor Indenture Trustee to the
Rating Agencies.
If the Indenture Trustee fails to comply with Section 6.11, any Noteholder
may petition any court of competent jurisdiction for the removal of the
Indenture Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to this
Section, the Issuer's and the Administrator's obligations under Section 6.07
shall continue for the benefit of the retiring Indenture Trustee.
Section 6.09. Successor Indenture Trustee by Merger. If the Indenture
Trustee consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another corporation
or banking association, the resulting, surviving or transferee corporation
without any further act shall be the successor Indenture Trustee, provided that
such corporation or banking association shall be otherwise qualified and
eligible under Section 6.11.
In case at the time such successor or successors by merger, conversion or
consolidation to the Indenture Trustee shall succeed to the trusts created by
this Indenture any of the Notes shall have been authenticated but not delivered,
any such successor to the Indenture Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Notes or in this Indenture
provided that the certificate of the Indenture Trustee shall have.
Section 6.10. Appointment of Co-Trustee or Separate Trustee. (a)
Notwithstanding any other provisions of this Indenture, at any time, for the
purpose of meeting any legal requirement of any jurisdiction in which any part
of the Indenture Trust Estate may at the time be located, the Indenture Trustee
shall have the power and may execute and deliver all instruments to appoint one
or more Persons to act as a co-trustee or co-trustees, or separate trustee or
separate trustees, of all or any part of the Indenture Trust Estate, and to vest
in such Person or Persons, in such capacity and for the benefit of the
Noteholders, such title to the Indenture Trust Estate, or any part hereof, and,
subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Indenture Trustee may consider necessary
or desirable. No such appointment shall relieve the Indenture Trustee of its
obligations hereunder. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under Section
6.11 and no notice to Noteholders of the appointment of any co-trustee or
separate trustee shall be required under Section 6.08 hereof.
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(b) Every separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Indenture Trustee shall be conferred or imposed upon and exercised
or performed by the Indenture Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Indenture
Trustee joining in such act), except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be performed
the Indenture Trustee shall be incompetent or unqualified to perform such
act or acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Indenture Trust Estate or any
portion thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the direction
of the Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason of any
act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the resignation of
or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture and
the conditions of this Article VI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Indenture Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision of this
Indenture relating to the conduct of, affecting the liability of, or affording
protection to, the Indenture Trustee. Every such instrument shall be filed with
the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the
Indenture Trustee, its agent or attorney-in-fact with full power and authority,
to the extent not prohibited by law, to do any lawful act under or in respect of
this Indenture on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all its
estates, properties, rights, remedies and trusts shall vest in and be exercised
by the Indenture Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 6.11. Eligibility; Disqualification. (a) The Indenture Trustee
shall at all times satisfy the requirements of TIA Section 310(a). The Indenture
Trustee shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition and it shall have
a long-term senior unsecured debt rating of not less than investment grade by
each of the Rating Agencies. The Indenture Trustee shall comply with TIA Section
310(b), including the optional provision permitted by the second sentence of TIA
Section 310(b)(9); provided, however, that there shall be excluded from the
operation of TIA Section 310(b)(1) any indenture or
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indentures under which other securities of the Issuer are outstanding if the
requirements for such exclusion set forth in TIA Section 310(b)(1) are met.
(b) Within ninety (90) days after ascertaining the occurrence of an Event
of Default which shall not have been cured or waived, unless authorized by the
TIA or the Commission, the Indenture Trustee shall resign with respect to the
Class A Notes, the Class B Notes and/or the Class C Notes in accordance with
Section 6.08 of this Indenture, and the Issuer shall appoint a successor
Indenture Trustee for two or all of such Classes, as applicable, so that there
will be separate Indenture Trustees for the Class A Notes, the Class B Notes and
the Class C Notes. In the event the Indenture Trustee fails to comply with the
terms of the preceding sentence, the Indenture Trustee shall comply with clauses
(ii) and (iii) of TIA Section 310(b).
(c) In the case of the appointment hereunder of a successor Indenture
Trustee with respect to any Class of Notes pursuant to this Section 6.11, the
Issuer, the retiring Indenture Trustee and the successor Indenture Trustee with
respect to such Class of Notes shall execute and deliver an indenture
supplemental hereto wherein each successor Indenture Trustee shall accept such
appointment and which (i) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, the successor Indenture
Trustee all the rights, powers, trusts and duties of the retiring Indenture
Trustee with respect to the Notes of the Class to which the appointment of such
successor Indenture Trustee relates, (ii) if the retiring Indenture Trustee is
not retiring with respect to all Classes of Notes, shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Indenture Trustee with respect to the
Notes of each Class as to which the retiring Indenture Trustee is not retiring
shall continue to be vested in the Indenture Trustee and (iii) shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
Indenture Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Indenture Trustees co-trustees of
the same trust and that each such Indenture Trustee shall be a trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Indenture Trustee; and upon the removal of the
retiring Indenture Trustee shall become effective to the extent provided herein.
Section 6.12. Preferential Collection of Claims Against Issuer. The
Indenture Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). An Indenture Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
Section 7.01. Issuer to Furnish Indenture Trustee Names and Addresses of
Noteholders. The Issuer will furnish or cause to be furnished to the Indenture
Trustee (a) not more than five days after the earlier of (i) each Record Date
and (ii) three months after the last Record Date, a list, in such form as the
Indenture Trustee may reasonably require, of the names and addresses of
37
the Noteholders as of such Record Date, (b) at such other times as the Indenture
Trustee may request in writing, within 30 days after receipt by the Issuer of
any such request, a list of similar form and content as of a date not more than
10 days prior to the time such list is furnished; provided, however, that so
long as the Indenture Trustee is the Note Registrar, no such list shall be
required to be furnished.
Section 7.02. Preservation of Information; Communications to Noteholders.
The Indenture Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of the Noteholders contained in the most
recent list furnished to the Indenture Trustee as provided in Section 7.01 and
the names and addresses of Noteholders received by the Indenture Trustee in its
capacity as Note Registrar. The Indenture Trustee may destroy any list furnished
to it as provided in such Section 7.01 upon receipt of a new list so furnished.
(a) Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Indenture or under the
Notes. Upon receipt by the Indenture Trustee of any request by three or more
Noteholders or by one or more holders of Notes evidencing not less than 25% of
the Outstanding Amount of the Notes to receive a copy of the current list of
Noteholders (whether or not made pursuant to TIA Section 312(b)), the Indenture
Trustee shall promptly notify the Administrator thereof by providing to the
Administrator a copy of such request and a copy of the list of Noteholders
produced in response thereto.
(b) The Issuer, the Indenture Trustee and the Note Registrar shall have
the protection of TIA Section 312(c).
(c) On each Distribution Date, the Indenture Trustee shall provide to each
Noteholder of record as of the related Record Date the information provided by
the Administrator to the Indenture Trustee on the related Determination Date
pursuant to Section 2.09 of the Administration Agreement. The Indenture Trustee
shall make such information available on its website at
http://www.jpmorgan.com/absmbs. In connection with any electronic transmissions
of information, including without limitation, the use of electronic mail or
internet or intranet web sites, the systems used in such transmissions are not
fully tested by the Indenture Trustee and may not be completely reliable as to
stability, robustness and accuracy. Accordingly, the parties hereto acknowledge
and agree that information electronically transmitted as described herein may
not be relied upon as timely, accurate or complete and that the Indenture
Trustee shall have no liability hereunder in connection with such information
transmitted electronically. The parties hereto further acknowledge that any
systems, software or hardware utilized in posting or retrieving any such
information is utilized on an "as is" basis without representation or warranty
as to the intended uses of such systems, software or hardware. The Indenture
Trustee makes no representation or warranty that the systems and the related
software used in connection with the electronic transmission of information are
free and clear of threats known as software and hardware viruses, time bombs,
logic bombs, Trojan horses, worms, or other malicious computer instructions,
intentional devices or techniques which may cause a component or system to
become erased, damaged, inoperable, or otherwise incapable of being used in the
manner to which it is intended, or which would permit unauthorized access
thereto. In the event such web site is not available, the Indenture Trustee
shall use reasonable efforts to distribute such information in a timely manner
to the intended recipients.
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(d) The Indenture Trustee shall furnish to the Noteholders promptly upon
receipt of a written request therefor, duplicates or copies of all reports,
notices, requests, demands, certificates, financial statements and any other
instruments furnished to the Indenture Trustee under the Basic Documents. The
Indenture Trustee shall furnish to the Noteholders promptly upon receipt thereof
from the Trustee notice of any amendment of the Administration Agreement
pursuant to Section 8.05 of the Administration Agreement.
Section 7.03. Reports by Issuer. (a) The Issuer shall:
(i) supply to the Indenture Trustee, within 15 days after the Issuer
is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Issuer may be required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange
Act;
(ii) supply to the Indenture Trustee and file with the Commission in
accordance with rules and regulations prescribed from time to time by the
Commission such additional information, documents and reports with respect
to compliance by the Issuer with the conditions and covenants of this
Indenture as may be required from time to time by such rules and
regulations; and
(iii) supply to the Indenture Trustee (and the Indenture Trustee shall
transmit by mail to all Noteholders described in TIA Section 313(c)) such
summaries of any information, documents and reports required to be filed by
the Issuer pursuant to clauses (i) and (ii) of this Section 7.03(a) as may
be required by rules and regulations prescribed from time to time by the
Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of the Issuer
shall end on December 31 of each year.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
Section 8.01. Collection of Money. Except as otherwise expressly provided
herein, the Indenture Trustee may demand payment or delivery of, and shall
receive and collect, directly and without intervention or assistance of any
fiscal agent or other intermediary, all money and other property payable to or
receivable by the Indenture Trustee pursuant to this Indenture. The Indenture
Trustee shall apply all such money received by it on behalf of Noteholders
pursuant to the Administration Agreement as provided in this Indenture. Except
as otherwise expressly provided in this Indenture, if any default occurs in the
making of any payment or performance under any agreement or instrument that is
part of the Indenture Trust Estate, the Indenture Trustee may take such action
as may be appropriate to enforce such payment or performance, including the
institution and prosecution of appropriate Proceedings. Any such action shall be
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without prejudice to any right to claim a Default under this Indenture and any
right to proceed thereafter as provided in Article V.
Section 8.02. Trust Accounts. (a) On or prior to the Closing Date, the
Issuer shall cause the Administrator to establish and maintain, in the name of
the Indenture Trustee, for the benefit of the Noteholders and the
Certificateholders, the Trust Accounts as provided in Section 2.03 of the
Administration Agreement.
(b) On or before the Business Day preceding each Distribution Date, all
Available Funds with respect to the preceding Collection Period will be
deposited in the Collection Account as provided in Section 2.04 of the
Administration Agreement. On or before each Distribution Date, the Indenture
Trustee (or any other Paying Agent) shall make the deposits and distributions as
provided in Sections 2.07, 2.08(a), (b) and (c) of the Administration Agreement
(except as otherwise provided in Section 5.02 or Section 5.04(b)).
Section 8.03. General Provisions Regarding Accounts. (a) So long as no
Default shall have occurred and be continuing, all or a portion of the funds in
the Trust Accounts shall be invested in Eligible Investments and reinvested by
the Indenture Trustee upon Issuer Order, subject to the provisions of Section
2.03(b) of the Administration Agreement. All income or other gain from
investments of moneys deposited in the Trust Accounts shall be deposited by the
Indenture Trustee in the Collection Account, and any loss resulting from such
investments shall be charged to such Trust Account. The Issuer will not direct
the Indenture Trustee to make any investment of any funds or to sell any
investment held in any of the Trust Accounts unless the security interest
granted and perfected in such account will continue to be perfected in such
investment or the proceeds of such sale, in either case without any further
action by any Person, and, in connection with any direction to the Indenture
Trustee to make any such investment or sale, if requested by the Indenture
Trustee, the Issuer shall deliver to the Indenture Trustee an Opinion of
Counsel, acceptable to the Indenture Trustee, to such effect.
(b) Subject to Section 6.01(c), the Indenture Trustee shall not in any way
be held liable for the selection of Eligible Investments or by reason of any
insufficiency in any of the Trust Accounts resulting from any loss on any
Eligible Investment included therein except for losses attributable to the
Indenture Trustee's failure to make payments on such Eligible Investments issued
by the Indenture Trustee, in its commercial capacity as principal obligor and
not as trustee, in accordance with their terms. The Indenture Trustee shall have
no liability in respect of losses incurred as a result of the liquidation of any
investment prior to its stated maturity or the failure of the Issuer to provide
timely written investment direction.
(c) If (i) the Issuer shall have failed to give investment directions for
any funds on deposit in the Trust Accounts to the Indenture Trustee by 10:00
a.m. Eastern Time (or such other time as may be agreed by the Issuer and
Indenture Trustee) on any Business Day; or (ii) a Default shall have occurred
and be continuing with respect to the Notes but the Notes shall not have been
declared due and payable pursuant to Section 5.02, or, if such Notes shall have
been declared due and payable following an Event of Default, amounts collected
or receivable from the Indenture Trust Estate are being applied in accordance
with Section 5.05 as if there had not been such a declaration; then the
Indenture Trustee shall invest and reinvest funds in the Trust Accounts in the
Eligible Investments described in clause (d) of the definition thereof.
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Section 8.04. Release of Indenture Trust Estate. (a) Subject to the
payment of its fees and expenses pursuant to Section 6.07, the Indenture Trustee
may, and when required by the provisions of this Indenture shall, execute
instruments to release property from the lien of this Indenture, or convey the
Indenture Trustee's interest in the same, in a manner and under circumstances
that are not inconsistent with the provisions of this Indenture. No party
relying upon an instrument executed by the Indenture Trustee as provided in this
Article VIII shall be bound to ascertain the Indenture Trustee's authority,
inquire into the satisfaction of any conditions precedent or see to the
application of any moneys.
(b) The Indenture Trustee shall, at such time as there are no Notes
Outstanding and all sums due the Indenture Trustee pursuant to Section 6.07 have
been paid, release any remaining portion of the Indenture Trust Estate that
secured the Notes from the lien of this Indenture and release to the Issuer or
any other Person entitled thereto any funds then on deposit in the Trust
Accounts. The Indenture Trustee shall release property from the lien of this
Indenture pursuant to this Section 8.04(b) only upon receipt of an Issuer
Request accompanied by an Officers' Certificate of the Issuer, an Opinion of
Counsel and (if required by the TIA) Independent Certificates in accordance with
TIA Sections 314(c) and 314(d)(1) meeting the applicable requirements of Section
11.01.
(c) Each Noteholder, by the acceptance of a Note, acknowledges that from
time to time the Indenture Trustee shall release the lien of this Indenture on
any Trust Student Loan to be sold to (i) the Depositor in accordance with
Article VI of the Depositor Sale Agreement, (ii) the Seller in accordance with
Article VI of the Seller Sale Agreement and (iii) the Servicer in accordance
with Section 3.05 of the Servicing Agreement and each Noteholder, by the
acceptance of a Note, consents to any such release.
Section 8.05. Opinion of Counsel. The Indenture Trustee shall receive at
least seven days' notice when requested by the Issuer to take any action
pursuant to Section 8.04(a), accompanied by copies of any instruments involved,
and the Indenture Trustee shall also require, except in connection with any
action contemplated by Section 8.04(c), as a condition to such action, an
Opinion of Counsel, in form and substance satisfactory to the Indenture Trustee,
stating the legal effect of any such action, outlining the steps required to
complete the same, and concluding that all conditions precedent to the taking of
such action have been complied with and such action will not materially and
adversely impair the security for the Notes or the rights of the Noteholders in
contravention of the provisions of this Indenture; provided, however, that such
Opinion of Counsel shall not be required to express an opinion as to the fair
value of the Indenture Trust Estate. Counsel rendering any such opinion may
rely, without independent investigation, on the accuracy and validity of any
certificate or other instrument delivered to the Indenture Trustee in connection
with any such action.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 19.01. Supplemental Indentures Without Consent of Noteholders. (a)
Without the consent of any Noteholders but with prior notice to the Rating
Agencies, the Issuer and the Indenture Trustee, when authorized by an Issuer
Order, at any time and from time to time, may enter into one or more indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as in force at the date of the execution thereof), in form
satisfactory to the Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at any
time subject to the lien of this Indenture, or better to assure, convey and
confirm unto the Indenture Trustee any property subject or required to be
subjected to the lien of this Indenture, or to subject to the lien of this
Indenture additional property;
(ii) to evidence the succession, in compliance with the applicable
provisions hereof, of another person to the Issuer, and the assumption by
any such successor of the covenants of the Issuer herein and in the Notes
contained;
(iii) to add to the covenants of the Issuer, for the benefit of the
Noteholders, or to surrender any right or power herein conferred upon the
Issuer;
(iv) to convey, transfer, assign, mortgage or pledge any property to
the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement any provision
herein or in any supplemental indenture which may be inconsistent with any
other provision herein or in any supplemental indenture or to make any
other provisions with respect to matters or questions arising under this
Indenture or in any supplemental indenture; provided, that such action
shall not materially adversely affect the interests of the Noteholders;
(vi) to evidence and provide for the acceptance of the appointment
hereunder by a successor trustee with respect to the Notes and to add to or
change any of the provisions of this Indenture as shall be necessary to
facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Article VI; or
(vii) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to effect the qualification of this
Indenture under the TIA or under any similar Federal statute hereafter
enacted and to add to this Indenture such other provisions as may be
expressly required by the TIA.
The Indenture Trustee is hereby authorized to join in the execution of any
such supplemental indenture and to make any further appropriate agreements and
stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by an Issuer
Order, may, also without the consent of any of the Noteholders but with prior
notice to the Rating Agencies,
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enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture or of modifying in any manner the rights of the
Noteholders under this Indenture; provided, however, that such action shall not,
as evidenced by an Opinion of Counsel, adversely affect in any material respect
the interests of any Noteholder.
Section 9.02. Supplemental Indentures With Consent of Noteholders. The
Issuer and the Indenture Trustee, when authorized by an Issuer Order, also may,
with prior notice to the Rating Agencies and with the consent of the Noteholders
of not less than a majority of the Outstanding Amount of the Notes, by Act of
such Noteholders delivered to the Issuer and the Indenture Trustee, enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to, or changing in any manner or eliminating any of the provisions
of, this Indenture or of modifying in any manner the rights of the Noteholders
under this Indenture; provided, however, that no such supplemental indenture
shall, without the consent of the Noteholder of each Outstanding Note affected
thereby:
(i) change the date of payment of any installment of principal of or
interest on any Note, or reduce the principal amount thereof, the interest
rate thereon or the Redemption Price with respect thereto, change the
provisions of this Indenture relating to the application of collections on,
or the proceeds of the sale of, the Indenture Trust Estate to payment of
principal of or interest on the Notes, or change any place of payment
where, or the coin or currency in which, any Note or the interest thereon
is payable, or impair the right to institute suit for the enforcement of
the provisions of this Indenture requiring the application of funds
available therefor, as provided in Article V, to the payment of any such
amount due on the Notes on or after the respective due dates thereof (or,
in the case of redemption, on or after the Redemption Date);
(ii) reduce the percentage of the Outstanding Amount of the Notes,
the consent of the Noteholders of which is required for any such
supplemental indenture, or the consent of the Noteholders of which is
required for any waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences provided for
in this Indenture;
(iii) modify or alter the provisions of the proviso to the definition
of the term "Outstanding";
(iv) reduce the percentage of the Outstanding Amount of the Notes
required to direct the Indenture Trustee to direct the Issuer to sell or
liquidate the Indenture Trust Estate pursuant to Section 5.04;
(v) modify any provision of this Section except to increase any
percentage specified herein or to provide that certain additional
provisions of this Indenture or the other Basic Documents cannot be
modified or waived without the consent of the Noteholder of each
Outstanding Note affected thereby;
(vi) modify any of the provisions of this Indenture in such manner as
to affect the calculation of the amount of any payment of interest or
principal due on any Note on
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any Distribution Date (including the calculation of any of the individual
components of such calculation) or to affect the rights of the Noteholders
to the benefit of any provisions for the mandatory redemption of the Notes
contained herein; or
(vii) permit the creation of any lien ranking prior to or on a parity
with the lien of this Indenture with respect to any part of the Indenture
Trust Estate or, except as otherwise permitted or contemplated herein,
terminate the lien of this Indenture on any property at any time subject
hereto or deprive any Noteholder of any Note of the security provided by
the lien of this Indenture.
It shall not be necessary for any Act of Noteholders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Promptly after the execution by the Issuer and the Indenture Trustee of any
supplemental indenture pursuant to this Section, the Indenture Trustee shall
mail to the Noteholders of the Notes to which such amendment or supplemental
indenture relates a notice setting forth in general terms the substance of such
supplemental indenture. Any failure of the Indenture Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such supplemental indenture.
Section 9.03. Execution of Supplemental Indentures. In executing, or
permitting the additional trusts created by, any supplemental indenture
permitted by this Article IX or the modifications thereby of the trusts created
by this Indenture, the Indenture Trustee shall be entitled to receive, and
subject to Sections 6.01 and 6.02, shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Indenture Trustee may, but shall
not be obligated to, enter into any such supplemental indenture that affects the
Indenture Trustee's own rights, duties, liabilities or immunities under this
Indenture or otherwise.
Section 9.04. Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and be deemed to be modified and amended in accordance therewith with respect
to the Notes affected thereby, and the respective rights, limitations of rights,
obligations, duties, liabilities and immunities under this Indenture of the
Indenture Trustee, the Issuer and the Noteholders shall thereafter be
determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such
supplemental indenture shall be and be deemed to be part of the terms and
conditions of this Indenture for any and all purposes.
Section 9.05. Conformity with Trust Indenture Act. Every amendment of this
Indenture and every supplemental indenture executed pursuant to this Article IX
shall conform to the requirements of the Trust Indenture Act as then in effect
so long as this Indenture shall then be qualified under the Trust Indenture Act.
Section 9.06. Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and if required by the Indenture Trustee shall,
bear a notation in form approved by the Indenture
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Trustee as to any matter provided for in such supplemental indenture. If the
Issuer or the Indenture Trustee shall so determine, new Notes so modified as to
conform, in the opinion of the Indenture Trustee and the Issuer, to any such
supplemental indenture may be prepared and executed by the Issuer and
authenticated and delivered by the Indenture Trustee in exchange for Outstanding
Notes.
ARTICLE X
REDEMPTION OF NOTES
Section 10.01. Redemption. The Indenture Trustee shall, upon receipt of
written notice from the Servicer pursuant to Section 6.01 of the Administration
Agreement, give prompt written notice to the Noteholders of the occurrence of
such event. In the event that the assets of the Trust are sold pursuant to
Section 6.01 of the Administration Agreement, that portion of the amounts on
deposit in the Trust Accounts to be distributed to the Noteholders shall be paid
to the Noteholders up to the Outstanding Amount of the Notes and all accrued and
unpaid interest thereon. If amounts are to be paid to Noteholders pursuant to
this Section 10.01, the notice of such event from the Indenture Trustee to the
Noteholders shall include notice of the redemption of Notes by application of
such amounts on the next Distribution Date which is not sooner than 15 days
after the date of such notice (the "Redemption Date"), whereupon all such
amounts shall be payable on the Redemption Date.
Section 10.02. Form of Redemption Notice. Notice of redemption under
Section 10.01 shall be given by the Indenture Trustee by first-class mail,
postage prepaid, or by facsimile, mailed or transmitted on or prior to the
applicable Redemption Date to each Noteholder, as of the close of business on
the Record Date preceding the applicable Redemption Date, at such Noteholder's
address or facsimile number appearing in the Note Register.
All notices of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price; and
(iii) the place where such Notes are to be surrendered for payment of
the Redemption Price (which shall be the office or agency of the Issuer to
be maintained as provided in Section 3.02).
Notice of redemption of the Notes shall be given by the Indenture Trustee
in the name and at the expense of the Issuer. Failure to give notice of
redemption, or any defect therein, to any Noteholder of any Note shall not
impair or affect the validity of the redemption of any other Note.
Section 10.03. Notes Payable on Redemption Date. The Notes or portions
thereof to be redeemed shall on the Redemption Date become due and payable at
the Redemption Price and (unless the Issuer shall default in the payment of the
Redemption Price) no interest shall accrue
45
on the Redemption Price for any period after the date to which accrued interest
is calculated for purposes of calculating the Redemption Price.
ARTICLE XI
MISCELLANEOUS
Section 11.01. Compliance Certificates and Opinions, etc. Upon any
application or request by the Issuer to the Indenture Trustee to take any action
under any provision of this Indenture, the Issuer shall furnish to the Indenture
Trustee and the Rating Agencies (i) an Officers' Certificate of the Issuer
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with, (ii) an Opinion of
Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with and (iii) (if required by the TIA) an
Independent Certificate from a firm of certified public accountants meeting the
applicable requirements of this Section, except that, in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture, no additional
certificate or opinion need be furnished.
(a) Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this indenture shall include:
(i) a statement that each signatory of such certificate or opinion
has read or has caused to be read such covenant or condition and the
definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the opinion of each such signatory, such
signatory has made such examination or investigation as is necessary to
enable such signatory to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other property or
securities with the Indenture Trustee that is to be made the basis for the
release of any property or securities subject to the lien of this
Indenture, the Issuer shall, in addition to any obligation imposed in
Section 11.01(a) or elsewhere in this Indenture, furnish to the Indenture
Trustee and the Rating Agencies an Officers' Certificate of the Issuer
certifying or stating the opinion of each person signing such certificate
as to the fair value (within 90 days of such deposit) to the Issuer of the
Collateral or other property or securities to be so deposited.
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(ii) Whenever the Issuer is required to furnish to the Indenture
Trustee and the Rating Agencies an Officers' Certificate of the Issuer
certifying or stating the opinion of any signer thereof as to the matters
described in clause (i) above, the Issuer shall also deliver to the
Indenture Trustee an Independent Certificate as to the same matters, if the
fair value to the Issuer of the securities to be so deposited and of all
other such securities made the basis of any such withdrawal or release
since the commencement of the then-current fiscal year of the Issuer, as
set forth in the certificates delivered pursuant to clause (i) above and
this clause (ii), is 10% or more of the Outstanding Amount of the Notes,
but such a certificate need not be furnished with respect to any securities
so deposited, if the fair value thereof to the Issuer as set forth in the
related Officers' Certificate is less than $25,000 or less than one percent
of the Outstanding Amount of the Notes.
(iii) Other than any property released as contemplated by clause (v)
below, whenever any property or securities are to be released from the lien
of this Indenture, the Issuer shall also furnish to the Indenture Trustee
an Officers' Certificate of the Issuer certifying or stating the opinion of
each person signing such certificate as to the fair value (within 90 days
of such release) of the property or securities proposed to be released and
stating that in the opinion of such person the proposed release will not
impair the security under this Indenture in contravention of the provisions
hereof.
(iv) Whenever the Issuer is required to furnish to the Indenture
Trustee an Officers' Certificate of the Issuer certifying or stating the
opinion of any signer thereof as to the matters described in clause (iii)
above, the Issuer shall also furnish to the Indenture Trustee an
Independent Certificate as to the same matters if the fair value of the
property or securities and of all other property, other than property as
contemplated by clause (v) below, or securities released from the lien of
this Indenture since the commencement of the then-current calendar year, as
set forth in the certificates required by clause (iii) above and this
clause (iv), equals 10% or more of the Outstanding Amount of the Notes, but
such certificate need not be furnished in the case of any release of
property or securities if the fair value thereof as set forth in the
related Officers' Certificate is less than $25,000 or less than one percent
of the then Outstanding Amount of the Notes.
(v) Notwithstanding Section 2.09 or any other provision of this
Section, the Issuer may, without compliance with the requirements of the
other provisions of this Section, (A) collect, liquidate, sell or otherwise
dispose of Trust Student Loans as and to the extent permitted or required
by the Basic Documents, (B) make cash payments out of the Trust Accounts as
and to the extent permitted or required by the Basic Documents and (C)
convey to the Depositor, the Servicer or another eligible lender those
specified Trust Student Loans as and to the extent permitted or required by
and in accordance with Section 8.04(c) hereof and Section 6.01 of the
Depositor Sale Agreement, Section 3.05 of the Servicing Agreement or
Section 3.11(d) of the Servicing Agreement, respectively, so long as the
Issuer shall deliver to the Indenture Trustee every six months, commencing
December 31, 2004, an Officers' Certificate of the Issuer stating that all
the dispositions of Collateral described in clauses (A), (B) or (C) above
that occurred during the immediately preceding six calendar months were in
the ordinary course of the Issuer's business and that the proceeds thereof
were applied in accordance with the Basic Documents.
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Section 11.02. Form of Documents Delivered to Indenture Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters, and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate of an Authorized Officer or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Servicer, the
Depositor, the Issuer or the Administrator, stating that the information with
respect to such factual matters is in the possession of the Servicer, the
Depositor, the Issuer or the Administrator, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this indenture, they may, but need not, be consolidated and
form one instrument.
Whenever in this Indenture, in connection with any application or
certificate or report to the Indenture Trustee, it is provided that the Issuer
shall deliver any document as a condition of the granting of such application,
or as evidence of the Issuer's compliance with any term hereof, it is intended
that the truth and accuracy, at the time of the granting of such application or
at the effective date of such certificate or report (as the case may be), of the
facts and opinions stated in such document shall in such case be conditions
precedent to the right of the Issuer to have such application granted or to the
sufficiency of such certificate or report. The foregoing shall not, however, be
construed to affect the Indenture Trustee's right to rely upon the truth and
accuracy of any statement or opinion contained in any such document as provided
in Article VI.
Section 11.03. Acts of Noteholders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Noteholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Noteholders in person
or by agents duly appointed in writing; and except as herein otherwise expressly
provided such action shall become effective when such instrument or instruments
are delivered to the Indenture Trustee, and, where it is hereby expressly
required, to the Issuer. Such instrument or instruments (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Noteholders signing such instrument or instruments. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Section 6.01)
conclusive in favor of the Indenture Trustee and the Issuer, if made in the
manner provided in this Section.
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(b) The fact and date of the execution by any person of any such
instrument or writing may be proved in any manner that the Indenture Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Noteholder of any Notes shall bind the Noteholder of
every Note issued upon registration of transfer thereof or in exchange therefor
or in lieu thereof, in respect of anything done, omitted or suffered to be done
by the Indenture Trustee or the Issuer in reliance thereon, whether or not
notation of such action is made upon such Note.
Section 11.04. Notices, etc., to Indenture Trustee, Issuer and Rating
Agencies. Any request, demand, authorization, direction, notice, consent, waiver
or Act of Noteholders or other documents provided or permitted by this Indenture
shall be in writing and if such request, demand, authorization, direction,
notice, consent, waiver or Act of Noteholders is to be made upon, given or
furnished to or filed with:
(a) The Indenture Trustee by any Noteholder, the Servicer, the
Administrator or by the Issuer shall be sufficient for every purpose hereunder
if made, given, furnished or filed in writing to or with the Indenture Trustee
at its Corporate Trust Office, or
(b) The Issuer by the Indenture Trustee or by any Noteholder shall be
sufficient for every purpose hereunder if in writing and mailed, first-class,
postage prepaid, to the Issuer addressed to: SLM Private Credit Student Loan
Trust 2004-A, in care of the Trustee, Christiana Center/OPS4, 500 Stanton
Christiana Road, Newark, Delaware 19713, Attention: Corporate Trust Department;
with copies to JPMorgan Chase Bank, 4 New York Plaza, 6th Floor, New York, New
York 10004, Attention: Structured Finance Services; SLM Private Credit Student
Loan Trust 2004-A, 11600 Sallie Mae Drive, Reston, Virginia 20193, Attention:
Director, Corporate Finance Operations, or any other address previously
furnished in writing to the Indenture Trustee by the Issuer or the
Administrator. The Issuer shall promptly transmit any notice received by it from
the Noteholders to the Indenture Trustee.
Notices required to be given to the Rating Agencies by the Issuer, the
Indenture Trustee or the Trustee shall be in writing, personally delivered or
mailed by certified mail, return receipt requested, to (i) in the case of
Moody's, at the following address: ABS Monitoring Department, 99 Church Street,
New York, New York 10007, (ii) in the case of Standard & Poor's, at the
following address: 55 Water Street, New York, New York 10041-0003, Attention:
Asset Backed Surveillance Department, 32nd Floor, and (iii) in the case of
Fitch, at the following address: One State Street Plaza, New York, New York
10004, Attention Municipal Structured Finance Group; or as to each of the
foregoing, at such other address as shall be designated by written notice to the
other parties.
Section 11.05. Notices to Noteholders; Waiver. Where this Indenture
provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Noteholder affected by such
event, at his address as it appears on the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case
49
where notice to Noteholders is given by mail, neither the failure to mail such
notice nor any defect in any notice so mailed to any particular Noteholder shall
affect the sufficiency of such notice with respect to other Noteholders, and any
notice that is mailed in the manner herein provided shall conclusively be
presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by any Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Noteholders shall be filed with the Indenture Trustee but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service as a result of
a strike, work stoppage or similar activity, it shall be impractical to mail
notice of any event to Noteholders when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Indenture Trustee shall be deemed to be a
sufficient giving of such notice.
Where this Indenture provides for notice to the Rating Agencies, failure to
give such notice shall not affect any other rights or obligations created
hereunder, and shall not under any circumstance constitute a Default.
Section 11.06. Alternate Payment and Notice Provisions. Notwithstanding any
provision of this Indenture or any of the Notes to the contrary, the Issuer may
enter into any agreement with any Noteholder providing for a method of payment,
or notice by the Indenture Trustee or any Paying Agent to such Noteholder, that
is different from the methods provided for in this Indenture for such payments
or notices. The Issuer will furnish to the Indenture Trustee a copy of each such
agreement and the Indenture Trustee will cause payments to be made and notices
to be given in accordance with such agreements.
Section 11.07. Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with another provision hereof that is required to
be included in this Indenture by any of the provisions of the Trust Indenture
Act, such required provision shall control.
The provisions of TIA Sections 310 through 317 that impose duties on any
Person (including the provisions automatically deemed included herein unless
expressly excluded by this Indenture) are a part of and govern this Indenture,
whether or not physically contained herein.
Section 11.08. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 11.09. Successors and Assigns. All covenants and agreements in this
Indenture and the Notes by the Issuer shall bind its successor and assigns,
whether so expressed or not. All agreements of the Indenture Trustee in this
Indenture shall bind the successors, co-trustees and agents (excluding any legal
representatives or accountants) of the Indenture Trustee.
50
Section 11.10. Separability. In case any provision in this Indenture or in
the Notes shall be invalid, illegal or unenforceable, the validity, legality,
and enforceability of the remaining provisions shall not in any way be affected
or impaired thereby.
Section 11.11. Benefits of Indenture. Nothing in this Indenture or in the
Notes, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, and the Noteholders, and any other party
secured hereunder, and any other Person with an ownership interest in any part
of the Indenture Trust Estate, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
Section 11.12. Legal Holidays. In any case where the date on which any
payment is due shall not be a Business Day, then (notwithstanding any other
provision of the Notes or this Indenture) payment need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the date on which nominally due, and no interest shall
accrue for the period from and after any such nominal date.
Section 11.13. Governing Law. THIS INDENTURE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS (OTHER THAN Section5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.14. Counterparts. This Indenture may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
Section 11.15. Recording of Indenture. If this Indenture is subject to
recording in any appropriate public recording offices, such recording is to be
effected by the Issuer and at its expense accompanied by an Opinion of Counsel
(which may be counsel to the Indenture Trustee or any other counsel reasonably
acceptable to the Indenture Trustee) to the effect that such recording is
necessary either for the protection of the Noteholders or any other Person
secured hereunder or for the enforcement of any right or remedy granted to the
Indenture Trustee under this Indenture.
Section 11.16. Trust Obligations. No recourse may be taken, directly or
indirectly, with respect to the obligations of the Issuer, the Depositor, the
Administrator, the Servicer, the Trustee or the Indenture Trustee on the Notes
or under this Indenture or any certificate or other writing delivered in
connection herewith or therewith, against (i) the Indenture Trustee or the
Trustee in its individual capacity, (ii) any owner of a beneficial interest in
the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director or
employee of the Indenture Trustee or the Trustee in its individual capacity, any
holder or owner of a beneficial interest in the Issuer, the Trustee or the
Indenture Trustee or of any successor or assign thereof in its individual
capacity, except as any such Person may have expressly agreed (it being
understood that the Indenture Trustee and the Trustee have no such obligations
in their individual capacity) and except that any such partner, owner or
beneficiary shall be fully liable, to the extent provided by applicable law, for
any unpaid consideration for stock, unpaid capital contribution or failure to
pay any installment
51
or call owing to such entity. For all purposes of this Indenture, in the
performance of any duties or obligations of the Issuer hereunder, the Trustee
shall be subject to, and entitled to the benefits of, the terms and provisions
of Article VI, VII and VIII of the Trust Agreement.
Section 11.17. No Petition. The Indenture Trustee, by entering into this
Indenture, and each Noteholder, by accepting a Note, hereby covenant and agree
that they shall not at any time institute against the Depositor or the Issuer,
or join in any institution against the Depositor or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency, receivership or liquidation
proceedings, or other proceedings under any United States Federal or state
bankruptcy or similar law in connection with any obligations relating to the
Notes, this Indenture or any of the other Basic Documents. The foregoing shall
not limit the rights of the Indenture Trustee to file any claim in, or otherwise
take any action with respect to, any insolvency proceeding that was instituted
against the Issuer by any Person other than the Indenture Trustee.
Section 11.18. Inspection. The Issuer agrees that, on reasonable prior
notice, it shall permit any representative of the Indenture Trustee, during the
Issuer's normal business hours, to examine all the books of account, records,
reports, and other papers of the Issuer, to make copies and extracts therefrom,
to cause such books to be audited by Independent certified public accountants,
and to discuss the Issuer's affairs, finances and accounts with the Issuer's
officers, employees, and Independent certified public accountants, all at such
reasonable times and as often as may be reasonably requested. The Indenture
Trustee shall and shall cause its representatives to hold in confidence all such
information obtained from such examination or inspection except to the extent
disclosure may be required by law (and all reasonable applications for
confidential treatment are unavailing) and except to the extent that the
Indenture Trustee may reasonably determine that such disclosure is consistent
with its obligations hereunder.
52
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused this
Indenture to be duly executed by their respective officers, thereunto duly
authorized and duly attested, all as of the day and year first above written.
SLM PRIVATE CREDIT STUDENT LOAN
TRUST 2004-A
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
JPMORGAN CHASE BANK, not in its
individual capacity but solely as
Indenture Trustee
By: /s/ DAVID CONTINO
Name: David Contino
Title: Assistant Vice President
53
APPENDIX A-1
DEFINITIONS AND USAGE
2004-A
Usage
-----
The following rules of construction and usage shall be applicable to any
instrument that is governed by this Appendix:
(a) All terms defined in this Appendix shall have the defined
meanings when used in any instrument governed hereby and in any certificate or
other document made or delivered pursuant thereto unless otherwise defined
therein.
(b) As used herein, in any instrument governed hereby and in any
certificate or other document made or delivered pursuant thereto, accounting
terms not defined in this Appendix or in any such instrument, certificate or
other document, and accounting terms partly defined in this Appendix or in any
such instrument, certificate or other document, to the extent not defined, shall
have the respective meanings given to them under generally accepted accounting
principles as in effect on the date of such instrument. To the extent that the
definitions of accounting terms in this Appendix or in any such instrument,
certificate or other document are inconsistent with the meanings of such terms
under generally accepted accounting principles, the definitions contained in
this Appendix or in any such instrument, certificate or other document shall
control.
(c) The words "hereof," "herein," "hereunder" and words of similar
import when used in an instrument refer to such instrument as a whole and not to
any particular provision or subdivision thereof; references in an instrument to
"Article," "Section" or another subdivision or to an attachment are, unless the
context otherwise requires, to an article, section or subdivision of or an
attachment to such instrument; and the term "including" means "including without
limitation."
(d) The definitions contained in this Appendix are equally applicable
to both the singular and plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to below
or in any agreement or instrument that is governed by this Appendix means such
agreement or instrument or statute as from time to time amended, modified or
supplemented, including (in the case of agreements or instruments) by
assignment, assumption, waiver or consent and (in the case of statutes) by
succession of comparable successor statutes and includes (in the case of
agreements or instruments) references to all attachments thereto and instruments
incorporated therein. References to a Person are also to its permitted
successors and assigns.
Appendix A-1-1
Definitions
-----------
"Accrual Period" means, with respect to a Distribution Date for a class of
Floating Rate Notes, the period from and including the immediately preceding
Distribution Date for such class of Floating Rate Notes, or in the case of the
initial such period, the Closing Date, to but excluding such current
Distribution Date.
"Act" has the meaning specified in Section 11.03(a) of the Indenture.
"Actual/360" means that interest is calculated on the basis of the actual
number of days elapsed in a year of 360 days.
"Additional Principal Distribution Amount" means, as of any Distribution
Date after the last day of the Collection Period on which the Pool Balance has
declined to 10% or less of the Initial Pool Balance, an amount equal to the
lesser of (i) amounts available to be distributed on such Distribution Date
after payment of clauses (i) through (xiii) under Section 2.07(c) of the
Administration Agreement and (ii) the Class Note Balance after giving effect to
all distributions and allocations on that Distribution Date other than pursuant
to Section 2.07(c)(xiv) of the Administration Agreement.
"Administration Agreement" means the Administration Agreement, dated as of
March 1, 2004, among the Servicer, the Administrator, the Indenture Trustee, the
Issuer and the Depositor, as such agreement may be amended or supplemented.
"Administration Fee" has the meaning specified in Section 2.12 of the
Administration Agreement.
"Administrator" means Sallie Mae, Inc., in its capacity as administrator of
the Trust and the Trust Student Loans in accordance with the Administration
Agreement.
"Administrator Default" has the meaning specified in Section 5.01 of the
Administration Agreement.
"Administrator's Certificate" means an Officers' Certificate of the
Administrator delivered pursuant to Section 3.01(c) of the Administration
Agreement.
"Affiliate" means, with respect to any specified Person, any other Person
controlling or controlled by or under common control with such specified Person.
For the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Asset Balance" means, with respect to any Distribution Date, an amount
equal to:
PB + CI - R
Appendix A-1-2
Where:
CI = the amount on deposit in the Cash Capitalization Account on
the last day of the related Collection Period less the excess for that
Distribution Date of (i) interest due on the Notes plus any Primary
Servicing Fees, Administration Fees, any Swap Payments owed to a Swap
Counterparty by the Trust and any Swap Termination Payments owed by
the Trust to a Swap Counterparty which are pari passu with interest
payments on the Class A Notes due, over (ii) Available Funds on
deposit in the Collection Account. In no case shall CI be less than
zero;
PB = the Pool Balance as of the last day of the related
Collection Period; and
R = the amount to be released from the Cash Capitalization
Account pursuant to section 2.08(a)(viii) and (ix) of the
Administration Agreement.
provided, however, that as of the Closing Date, the Asset Balance shall equal
$1,342,797,096, and that, for all Distribution Dates occurring on or after the
September 2007 Distribution Date, the Asset Balance will be equal to the Pool
Balance as of the last day of the related Collection Period.
"Authorized Officer" means (i) with respect to the Trust, any officer of
the Trustee who is authorized to act for the Trustee in matters relating to the
Trust pursuant to the Basic Documents and who is identified on the list of
Authorized Officers delivered by the Trustee to the Indenture Trustee on the
Closing Date (as such list may be modified or supplemented from time to time
thereafter), (ii) with respect to the Administrator, any officer of the
Administrator or any of its Affiliates who is authorized to act for the
Administrator in matters relating to itself or to the Trust and to be acted upon
by the Administrator pursuant to the Basic Documents and who is identified on
the list of Authorized Officers delivered by the Administrator to the Indenture
Trustee on the Closing Date (as such list may be modified or supplemented from
time to time thereafter), (iii) with respect to the Depositor, any officer of
the Depositor or any of its Affiliates who is authorized to act for the
Depositor in matters relating to or to be acted upon by the Depositor pursuant
to the Basic Documents and who is identified on the list of Authorized Officers
delivered by the Depositor to the Indenture Trustee on the Closing Date (as such
list may be modified or supplemented from time to time thereafter) and (iv) with
respect to the Servicer, any officer of the Servicer who is authorized to act
for the Servicer in matters relating to or to be acted upon by the Servicer
pursuant to the Basic Documents and who is identified on the list of Authorized
Officers delivered by the Servicer to the Indenture Trustee on the Closing Date
(as such list may be modified or supplemented from time to time thereafter).
"Available Funds" means, with respect to a Distribution Date or any related
Monthly Servicing Payment Date, the sum of the following amounts for the related
Collection Period, or, in the case of a Monthly Servicing Payment Date, the
applicable portion of these amounts: (i) all collections received by the
Servicer from borrowers on the Trust Student Loans, (ii) all Recoveries received
during that Collection Period, (iii) the aggregate Purchase Amounts received
during that Collection Period for those Trust Student Loans repurchased by the
Depositor or purchased by the Servicer or SLM Education Credit Finance
Corporation, (iv) amounts received
Appendix A-1-3
by the Trust pursuant to the Servicing Agreement during that Collection Period
related to yield or principal adjustments, (v) Investment Earnings for that
Distribution Date and any interest remitted by the Administrator to the
Collection Account prior to such Distribution Date or Monthly Servicing Payment
Date, (vi) any payments received under the Interest Rate Cap Agreements and
(vii) amounts received from the Swap Counterparties for that Distribution Date;
provided, however, that if with respect to any Distribution Date there would not
be sufficient funds to pay all of the items specified in clauses (i) through
(xi) of Section 2.07(c) of the Administration Agreement, after application of
Available Funds and application of (a) amounts available from the Cash
Capitalization Account to pay any of the items specified in clauses (i) through
(ix) of Section 2.07(c) of the Administration Agreement and (b) amounts
available from the Reserve Account to pay any of the items specified in clauses
(i) through (iv), (vi) and (viii) and on the respective Note Final Maturity Date
of each Class of Notes, clauses (v), (vii) and (ix), then Available Funds for
that Distribution Date shall include, in addition to the Available Funds as
defined above, amounts on deposit in the Collection Account, or amounts held by
the Administrator, or which the Administrator reasonably estimates to be held by
the Administrator, for deposit into the Collection Account which would have
constituted Available Funds for the Distribution Date succeeding such
Distribution Date, up to the amount necessary to pay such items, and the
Available Funds for such succeeding Distribution Date shall be adjusted
accordingly. In addition, Available Funds on the Distribution Dates from March
2005 through September 2007 shall include all funds released from the Cash
Capitalization Account for deposit into the Collection Account on those
Distribution Dates.
"Back-End Fee" means an amount equal to, with respect to each Trust Student
Loan, the maximum fee allowable under the note evidencing such Trust Student
Loan unless otherwise limited by the insurance commissioner, but not greater
than the amount for such Trust Student Loan listed on Attachment D to the
Servicing Agreement.
"Basic Documents" means the Trust Agreement, the Indenture, the Servicing
Agreement, the Administration Agreement, the Seller Sale Agreement, the
Depositor Sale Agreement, the Note Depository Agreement, the Swap Agreement, the
Interest Rate Cap Agreements and other documents and certificates delivered in
connection with any thereof.
"Benefit Plan" has the meaning specified in Exhibit A to the Trust
Agreement.
"Bill of Sale" has the meaning specified in the Seller Sale Agreement or
the Depositor Sale Agreement, as applicable.
"Book-Entry Note" means a beneficial interest in the Notes, ownership and
transfers of which shall be made through book entries by a Clearing Agency as
described in Section 2.10 of the Indenture.
"Business Day" means (i) with respect to calculating Two-Month or
Three-Month LIBOR, any day on which banks in New York, New York and London,
England are open for the transaction of international business; and (ii) for all
other purposes, any day other than a Saturday, a Sunday or a day on which
banking institutions or trust companies in New York, New
Appendix A-1-4
York or Wilmington, Delaware are authorized or obligated by law, regulation or
executive order to remain closed.
"Cap Counterparty" means each of Morgan Stanley Capital Services Inc. and
Merrill Lynch Capital Services, Inc., together with their successors and
permitted assigns.
"Carryover Servicing Fee" has the meaning specified in Attachment A to the
Servicing Agreement.
"Cash Capitalization Account" means the account designated as such,
established and maintained pursuant to Section 2.03(a)(iii) of the
Administration Agreement.
"Cash Capitalization Account Initial Deposit" means $90,638,804.
"Charged-Off Loan" means a Trust Student Loan which is written-off in
accordance with the Servicer's policies and procedures, but in any event, not
later than the date such Trust Student Loan becomes 271 days past due.
"Class A Enhancement" means, for any Distribution Date, the excess of (i)
the Asset Balance as of the prior Distribution Date (or as of the Closing Date,
in the case of the first Distribution Date) over (ii) the Class A Note Balance
before taking into account any principal distributions to the Class A Notes on
the current Distribution Date.
"Class A Note" means a Class A-1 Note, a Class A-2 Note, or a Class A-3
Note.
"Class A Note Balance" means the sum of the Class A-1 Note Balance, the
Class A-2 Note Balance, and the Class A-3 Note Balance.
"Class A Note Interest Shortfall" means, with respect to any Distribution
Date, the sum for all of the Class A Notes of the excess of (i) the amount of
interest that was payable to the Class A Notes on the preceding Distribution
Date over (ii) the amount of interest actually distributed with respect to the
Class A Notes on such preceding Distribution Date, plus interest on the amount
of such excess interest due to the Class A Noteholders, to the extent permitted
by law, at the weighted average interest rate borne by the Class A Notes from
such preceding Distribution Date to the current Distribution Date.
"Class A Note Parity Trigger" means with respect to any Distribution Date
that (i) the Class A Note Balance (prior to giving effect to distributions on
such date) is in excess of the sum of (a) the Pool Balance as of the last day of
the related Collection Period and (b) amounts on deposit in the Collection
Account and Cash Capitalization Account after payment of items (i) through (iv)
of Section 2.07(c) of the Administration Agreement or (ii) the Class A Note
Balance for such Distribution Date (prior to giving effect to any distributions
on that date) is greater than or equal to the Asset Balance for the prior
Distribution Date. The Class A Note Parity Trigger will remain in effect until
the Class A Enhancement is greater than or equal to the Specified Class A
Enhancement.
"Class A Noteholder" means the Person in whose name a Class A Note is
registered in the Note Register.
Appendix A-1-5
"Class A Noteholders' Interest Distribution Amount" means, with respect to
any Distribution Date, the sum of (i) the amount of interest accrued at the
Class A-1 Rate, the Class A-2 Rate or the Class A-3 Rate, as applicable, for the
related Accrual Period with respect to all classes of Class A Notes on the
aggregate outstanding principal balances of these classes of Class A Notes (a)
on the immediately preceding Distribution Date after giving effect to all
principal distributions to Class A Noteholders on such preceding Distribution
Date or (b) in the case of the first Distribution Date, on the Closing Date; and
(ii) the Class A Note Interest Shortfall for such Distribution Date.
"Class A Noteholders' Principal Distribution Amount" means (a) as of any
Distribution Date prior to the Stepdown Date or on which a Trigger Event is in
effect, the lesser of (i) 100% of the excess, if any, of (x) the Class Note
Balance (after taking into account distributions or allocations of principal on
the immediately preceding Distribution Date or as of the Closing Date in the
case of the first Distribution Date) over (y) the excess, if any, of (1) the
Asset Balance for such Distribution Date over (2) the Specified
Overcollateralization Amount and (ii) the Class A Note Balance and (b) on or
after the Stepdown Date and as long as a Trigger Event is not in effect for such
Distribution Date, the excess, if any, of (x) the Class A Note Balance
immediately prior to such Distribution Date over (y) the lesser of (A) the
product of (i) 85% and (ii) the Asset Balance as of such Distribution Date and
(B) the excess, if any, of the Asset Balance for such Distribution Date over the
Specified Overcollateralization Amount. Notwithstanding the foregoing, on or
after the Class A-1 Maturity Date, the Class A-2 Maturity Date or the Class A-3
Maturity Date, as applicable, the Class A Noteholders' Principal Distribution
Amount shall not be less than the amount that is necessary to reduce the Class
A-1 Note Balance, Class A-2 Note Balance or Class A-3 Note Balance, as
applicable, to zero.
"Class A-1 Maturity Date" means the March 2017 Distribution Date.
"Class A-1 Note Balance" means, with respect to any Distribution Date, the
Outstanding Amount of the Class A-1 Notes.
"Class A-1 Noteholder" means the Person in whose name a Class A-1 Note is
registered in the Note Register.
"Class A-1 Notes" means the $600,000,000 Floating Rate Class A-1 Student
Loan-Backed Notes issued by the Trust pursuant to the Indenture, substantially
in the form of Exhibit A-1 thereto.
"Class A-1 Rate" means, for any Accrual Period after the initial Accrual
Period, Three-Month LIBOR, as determined on the related LIBOR Determination
Date, plus 0.06%, based on an Actual/360 accrual method. For the initial Accrual
Period, the Class A-1 Rate shall mean the Initial Accrual Rate plus 0.06%, based
on an Actual/360 accrual method.
"Class A-2 Maturity Date" means the March 2020 Distribution Date.
"Class A-2 Note Balance" means, with respect to any Distribution Date, the
Outstanding Amount of the Class A-2 Notes.
Appendix A-1-6
"Class A-2 Noteholder" means the Person in whose name a Class A-2 Note is
registered in the Note Register.
"Class A-2 Notes" means the $307,000,000 Floating Rate Class A-2 Student
Loan-Backed Notes issued by the Trust pursuant to the Indenture, substantially
in the form of Exhibit A-2 thereto.
"Class A-2 Rate" means, for any Accrual Period after the initial Accrual
Period, Three-Month LIBOR, as determined on the related LIBOR Determination
Date, plus 0.20%, based on an Actual/360 accrual method. For the initial Accrual
Period, the Class A-2 Rate shall mean the Initial Accrual Rate plus 0.20%, based
on an Actual/360 accrual method.
"Class A-3 Maturity Date" means the June 2033 Distribution Date.
"Class A-3 Note Balance" means, with respect to any Distribution Date, the
Outstanding Amount of the Class A-3 Notes.
"Class A-3 Noteholder" means the Person in whose name a Class A-3 Note is
registered in the Note Register.
"Class A-3 Notes" means the $325,016,000 Floating Rate Class A-3 Student
Loan-Backed Notes issued by the Trust pursuant to the Indenture, substantially
in the form of Exhibit A-3 thereto.
"Class A-3 Rate" means, for any Accrual Period after the initial Accrual
Period, Three-Month LIBOR, as determined on the related LIBOR Determination
Date, plus 0.40%, based on an Actual/360 accrual method. For the initial Accrual
Period, the Class A-1 Rate shall mean the Initial Accrual Rate plus 0.40%, based
on an Actual/360 accrual method.
"Class B Enhancement" means for any Distribution Date, the excess of (i)
the Asset Balance as of the prior Distribution Date (or as of the Closing Date,
in the case of the first Distribution Date) over (ii) the Class A Note Balance
and the Class B Note Balance before taking into account any principal
distributions on the current Distribution Date.
"Class B Maturity Date" means the June 2033 Distribution Date.
"Class B Note Balance" means, with respect to any Distribution Date, the
Outstanding Amount of the Class B Notes.
"Class B Note Interest Shortfall" means, with respect to any Distribution
Date, the excess of (i) the Class B Noteholders' Interest Distribution Amount on
the preceding Distribution Date over (ii) the amount of interest actually
distributed to the Class B Noteholders on that preceding Distribution Date, plus
interest on the amount of that excess, to the extent permitted by law, at the
Class B Rate from that preceding Distribution Date to the current Distribution
Date.
"Class B Note Parity Trigger" means with respect to any Distribution Date
that (i) the outstanding Class A Note Balance and Class B Note Balance (prior to
giving effect to any distributions on such date) is in excess of the sum of (a)
the Pool Balance as of the last day of the
Appendix A-1-7
related Collection Period and (b) amounts on deposit in the Collection Account,
Principal Distribution Account and Cash Capitalization Account after payment of
clauses (i) through (vi) under Section 2.07(c) of the Administration Agreement,
or (ii) the Class A Note Balance and the Class B Note Balance as of the related
Distribution Date (prior to giving effect to any distributions on that date) is
greater than or equal to the Asset Balance for the prior Distribution Date. The
Class B Note Parity Trigger will remain in effect until the Class B Enhancement
is greater than or equal to the Specified Class B Enhancement.
"Class B Noteholder" means the Person in whose name a Class B Note is
registered in the Note Register.
"Class B Noteholders' Interest Distribution Amount" means, with respect to
any Distribution Date, the sum of (a) the amount of interest accrued at the
Class B Note Rate for the related Accrual Period on the Class B Note Balance (i)
on the immediately preceding Distribution Date, after giving effect to all
principal distributions to Class B Noteholders on that preceding Distribution
Date or (ii) in the case of the first Distribution Date, the Closing Date, and
(b) the Class B Note Interest Shortfall for that Distribution Date.
"Class B Noteholders' Principal Distribution Amount" means, as of any
Distribution Date on or after the Stepdown Date and as long as a Trigger Event
is not in effect on such Distribution Date, the excess, if any, of (x) the sum
of (i) the Class A Note Balance (after taking into account the Class A
Noteholders' Principal Distribution Amount due on such Distribution Date) and
(ii) the Class B Note Balance immediately prior to such Distribution Date over
(y) the lesser of (A) the product of (i) 89.875% and (ii) the Asset Balance for
such Distribution Date and (B) the excess, if any, of the Asset Balance for such
Distribution Date over the Specified Overcollateralization Amount. Prior to the
Stepdown Date or any Distribution Date for which a Trigger Event is in effect,
the excess, if any, of (i) the amounts in clause (a)(i) of the definition of the
Class A Noteholders' Principal Distribution Amount over (ii) the Class A Note
Balance). Notwithstanding the foregoing, on or after the Class B Maturity Date,
the Class B Noteholders' Principal Distribution Amount shall not be less than
the amount that is necessary to reduce the Class B Note Balance to zero.
"Class B Notes" means the $43,641,000 Floating Rate Class B Student
Loan-Backed Notes issued by the Trust pursuant to the Indenture, substantially
in the form of Exhibit A-4 thereto.
"Class B Rate" means, for any Accrual Period after the initial Accrual
Period, Three-Month LIBOR, as determined on the related LIBOR Determination
Date, plus 0.58%, based on an Actual/360 accrual method. For the initial Accrual
Period, the Class B Rate shall mean the Initial Accrual Rate plus 0.58%, based
on an Actual/360 accrual method.
"Class C Enhancement" means, for any Distribution Date, the excess of (i)
the Asset Balance as of the prior Distribution Date (or as of the Closing Date,
in the case of the first Distribution Date) over (ii) the Class Note Balance
before taking into account any principal distributions on the current
Distribution Date.
"Class C Maturity Date" means the June 2033 Distribution Date.
Appendix A-1-8
"Class C Note Balance" means, with respect to any Distribution Date, the
Outstanding Amount of the Class C Notes.
"Class C Note Interest Shortfall" means, with respect to any Distribution
Date, the excess of (i) the Class C Noteholders' Interest Distribution Amount on
the preceding Distribution Date over (ii) the amount of interest actually
distributed to the Class C Noteholders on that preceding Distribution Date, plus
interest on the amount of that excess, to the extent permitted by law, at the
Class C Rate from that preceding Distribution Date to the current Distribution
Date.
"Class C Note Parity Trigger" means with respect to any Distribution Date
that (i) the Class A Note Balance, Class B Note Balance and Class C Note Balance
(prior to giving effect to any distributions on such date) is in excess of the
sum of (a) Pool Balance as of the last day of the related Collection Period and
(b) amounts on deposit in the Collection Account, Principal Distribution Account
and Cash Capitalization Account after payment of clauses (i) through (viii)
under Section 2.07(c) of the Administration Agreement, or (ii) the Class Note
Balance as of the related Distribution Date (prior to giving effect to any
distributions on that date) is greater than or equal to the Asset Balance for
the prior Distribution Date. The Class C Note Parity Trigger will remain in
effect until the Class C Enhancement is greater than or equal to the Specified
Class C Enhancement.
"Class C Noteholder" means the Person in whose name a Class C Note is
registered in the Note Register.
"Class C Noteholders' Interest Distribution Amount" means, with respect to
any Distribution Date, the sum of (i) the amount of interest accrued at the
Class C Rate for the related Accrual Period (a) on the Class C Note Balance on
the immediately preceding Distribution Date after giving effect to all principal
distributions to Class C Noteholders on that preceding Distribution Date or (b)
in the case of the first Distribution Date, the Closing Date and (ii) the Class
C Note Interest Shortfall for that Distribution Date.
"Class C Noteholders' Principal Distribution Amount" means, as of any
Distribution Date on or after the Stepdown Date and, as long as a Trigger Event
is not in effect on such Distribution Date, the excess, if any, of (x) the sum
of (i) the Class A Note Balance (after taking into account the Class A
Noteholders' Principal Distribution Amount due on such Distribution Date), (ii)
the Class B Note Balance (after taking into account the Class B Noteholders'
Principal Distribution Amount due on such Distribution Date) and (iii) the Class
C Note Balance immediately prior to such Distribution Date over (y) the lesser
of (A) the product of (i) 97.0% and (ii) the Asset Balance as of such
Distribution Date and (B) the excess, if any, of the related Asset Balance for
such Distribution Date over the Specified Overcollateralization Amount. Prior to
the Stepdown Date or on any Distribution Date with respect to which a Trigger
Event is in effect, the excess, if any, of (i) amounts in clause (a)(i) of the
definition of the Class A Noteholders' Principal Distribution Amount over (ii)
the Class A Note Balance plus the Class B Note Balance. Notwithstanding the
foregoing, on or after the Class C Maturity Date, the Class C Noteholders'
Principal Distribution Amount shall not be less than the amount that is
necessary to reduce the Class C Note Balance to zero.
Appendix A-1-9
"Class C Notes" means the $60,426,000 Floating Rate Class C Student
Loan-Backed Notes issued by the Trust pursuant to the Indenture, substantially
in the form of Exhibit A-5 thereto.
"Class C Rate" means, for any Accrual Period after the initial Accrual
Period, Three-Month LIBOR, as determined on the related LIBOR Determination
Date, plus 0.95%, based on an Actual/360 accrual method. For the initial Accrual
Period, the Class C Rate shall mean the Initial Accrual Rate plus 0.95%, based
on an Actual/360 accrual method.
"Class Note Balance" means the sum of the Class A Note Balance, the Class B
Note Balance and the Class C Note Balance.
"Clearing Agency" means an organization registered as a "clearing agency"
pursuant to Section 17A of the Exchange Act. The initial Clearing Agency shall
be The Depository Trust Company and the initial nominee for the Clearing Agency
shall be Cede & Co.
"Clearing Agency Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time a Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency.
"Closing Date" means March 25, 2004.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and Treasury Regulations promulgated thereunder.
"Collateral" has the meaning specified in the Granting Clause of the
Indenture.
"Collection Account" means the account designated as such, established and
maintained pursuant to Section 2.03(a)(i) of the Administration Agreement.
"Collection Period" means, with respect to the first Distribution Date, the
period beginning on the Cutoff Date and ending on May 31, 2004, and with respect
to each subsequent Distribution Date, the Collection Period means the three
calendar months immediately following the end of the previous Collection Period.
"Commission" means the Securities and Exchange Commission.
"Controlling Note" means so long as any of the Class A Notes are
Outstanding, the Class A Notes (voting together as a single class), if the Class
A Notes have been paid in full, the Class B Notes and if the Class B Notes have
been paid in full, the Class C Notes.
"Corporate Trust Office" means (i) with respect to the Indenture Trustee,
the principal office of the Indenture Trustee at which at any particular time
its corporate trust business shall be administered, which office at the Closing
Date is located at 4 New York Plaza, 6/th/ Floor, New York, New York 10004,
Attention: Corporate Trust and Agency Group, Structured Finance Team (telephone:
(212) 623-5600; facsimile: (212) 623-4498) or at such other address as the
Indenture Trustee may designate from time to time by notice to the Noteholders
and the Depositor, or the principal corporate trust office of any successor
Indenture Trustee (the address
Appendix A-1-10
of which the successor Indenture Trustee will notify the Noteholders, the
Administrator and the Depositor) and (ii) with respect to the Trustee, the
principal corporate trust office of the Trustee located at Christiana
Center/OPS4, 500 Stanton Christiana Road, Newark, Delaware 19713, Attention:
Corporate Trust Department (telephone: (302) 552-6279; facsimile: (302)
552-6280); or at such other address as the Trustee may designate by notice to
the Depositor, or the principal corporate trust office of any successor Trustee
(the address of which the successor Trustee will notify the Administrator and
the Depositor).
"Cumulative Realized Losses Test" is satisfied for any Distribution Date on
which the cumulative principal amount of Charged-Off Loans, net of Recoveries is
equal to or less than the percentage of the Initial Pool Balance set forth below
for the specified period:
Percentage of
Initial Pool
Distribution Date Balance
- ---------------------------------------------------------- -------------
June 2004 through March 2009.............................. 15%
June 2009 through March 2012.............................. 18%
June 2012 and thereafter.................................. 20%
"Cutoff Date" means February 23, 2004.
"Default" means any occurrence that is, or with notice or the lapse of time
or both would become, an Event of Default.
"Definitive Notes" has the meaning specified in Section 2.10 of the
Indenture.
"Delaware Statutory Trust Act" means Chapter 38 of Title 12, Part V of the
Delaware Code, entitled "Treatment of Delaware Statutory Trusts."
"Delivery" when used with respect to Trust Account Property means:
(a) with respect to bankers' acceptances, commercial paper, negotiable
certificates of deposit and other obligations that constitute "instruments"
within the meaning of Section 9-102(a)(47) of the UCC and are susceptible of
physical delivery, transfer thereof to the Indenture Trustee or its nominee or
custodian by physical delivery to the Indenture Trustee or its nominee or
custodian endorsed to, or registered in the name of, the Indenture Trustee or
its nominee or custodian or endorsed in blank, and, with respect to a
certificated security (as defined in Section 8-102(a)(3) of the UCC) transfer
thereof (i) by delivery of such certificated security endorsed to, or registered
in the name of, the Indenture Trustee or its nominee or custodian or endorsed in
blank to a securities intermediary (as defined in Section 8-102(a)(14) of the
UCC) and the making by such securities intermediary of entries on its books and
records identifying such certificated securities as belonging to the Indenture
Trustee or its nominee or custodian and the sending by such securities
intermediary of a confirmation of the purchase of such certificated security by
the Indenture Trustee or its nominee or custodian, or (ii) by delivery thereof
to a "clearing corporation" (as defined in Section 8-102(a)(5) of the UCC) and
the making by such clearing corporation of appropriate entries on its books
reducing the appropriate securities account of the transferor and increasing the
appropriate securities account of a securities intermediary by the amount of
such certificated security, the identification by the clearing corporation of
the certificated securities for the sole and exclusive account of the securities
Appendix A-1-11
intermediary, the maintenance of such certificated securities by such clearing
corporation or the nominee of either subject to the clearing corporation's
exclusive control, the sending of a confirmation by the securities intermediary
of the purchase by the Indenture Trustee or its nominee or custodian of such
securities and the making by such securities intermediary of entries on its
books and records identifying such certificated securities as belonging to the
Indenture Trustee or its nominee or custodian (all of the foregoing, but not
including Trust Student Loans, "Physical Property"); and such additional or
alternative procedures as may hereafter become appropriate to effect the
complete transfer of ownership of any such Trust Account Property to the
Indenture Trustee or its nominee or custodian, consistent with changes in
applicable law or regulations or the interpretation thereof;
(b) with respect to any security issued by the U.S. Treasury, the
Government National Mortgage Association, the Federal Home Loan Mortgage
Corporation or by the Federal National Mortgage Association that is a book-entry
security held at a Federal Reserve Bank pursuant to Federal book-entry
regulations, the following procedures, all in accordance with applicable law,
including applicable Federal regulations and Articles 8 and 9 of the UCC: the
crediting of such book-entry security to an appropriate book-entry account of
the Indenture Trustee or its nominee or the custodian or securities intermediary
at a Federal Reserve Bank, causing the custodian to continuously indicate by
book-entry such book-entry security as credited to the relevant book-entry
account, the continuous crediting of such book-entry security to a securities
account of the custodian at such Federal Reserve Bank and the continuous
identification of such book-entry security by the custodian as credited to the
appropriate book-entry account; and
(c) with respect to any item of Trust Account Property that is an
uncertificated security under Article 8 of the UCC and that is not governed by
clause (b) above, registration on the books and records of the issuer thereof in
the name of the securities intermediary, the sending of a confirmation by the
securities intermediary of the purchase by the Indenture Trustee or its nominee
or custodian of such uncertificated security, the making by such securities
intermediary of entries on its books and records identifying such uncertificated
certificates as belonging to the Indenture Trustee or its nominee or custodian.
"Depositor" means SLM Education Credit Funding LLC, a Delaware limited
liability company.
"Depositor Sale Agreement" means the Sale Agreement, dated as of March 25,
2004, between the Trust and the Depositor.
"Depository Agreement" means the Note Depository Agreement.
"Determination Date" means, with respect to the Collection Period preceding
any Distribution Date, the third Business Day preceding such Distribution Date.
"Distribution Date" means the 15th day of each March, June, September and
December, or, if such day is not a Business Day, the immediately following
Business Day, commencing on June 15, 2004.
"Eligible Deposit Account" means either (a) a segregated account with an
Eligible Institution or (b) a segregated trust account with the corporate trust
department of a depository
Appendix A-1-12
institution organized under the laws of the United States of America or any one
of the States or the District of Columbia (or any domestic branch of a foreign
bank), having corporate trust powers and acting as trustee for funds deposited
in such account, so long as any of the securities of such depository institution
have a credit rating from Moody's, Standard & Poor's, and, if such institution
is rated by Fitch, Fitch, in one of their generic rating categories which
signifies investment grade.
"Eligible Institution" means a depository institution organized under the
laws of the United States of America or any one of the States or the District of
Columbia (or any domestic branch of a foreign bank) (i) which has (A) either a
long-term senior unsecured debt rating of AAA or a short-term senior unsecured
debt or certificate of deposit rating of A-1+ or better by Standard & Poor's and
(B)(1) a long-term senior unsecured debt rating of A1 or better and (2) a
short-term senior unsecured debt rating of P-1 or better by Moody's, and (C) if
such institution is rated by Fitch, a long-term senior unsecured debt rating of
AA or a short-term senior unsecured debt rating of F-1+, or any other long-term,
short-term or certificate of deposit rating with respect to which the Rating
Agency Condition has been satisfied and (ii) whose deposits are insured by the
FDIC. If so qualified, the Trustee or the Indenture Trustee may be considered an
Eligible Institution.
"Eligible Investments" means book-entry securities, negotiable instruments
or securities represented by instruments in bearer or registered form which
evidence:
(a) direct obligations of, and obligations fully guaranteed as to timely
payment by, the United States of America, the Government National Mortgage
Association, the Federal Home Loan Mortgage Corporation, the Federal National
Mortgage Association, the Student Loan Marketing Association, or any agency or
instrumentality of the United States of America the obligations of which are
backed by the full faith and credit of the United States of America; provided,
that obligations of, or guaranteed by, the Government National Mortgage
Association, the Federal Home Loan Mortgage Corporation, the Federal National
Mortgage Association or the Student Loan Marketing Association shall be Eligible
Investments only if, at the time of investment, they meet the criteria of each
of the Rating Agencies for collateral for securities having ratings equivalent
to the respective ratings of the Notes in effect at the Closing Date;
(b) demand deposits, time deposits or certificates of deposit of any
depository institution or trust company incorporated under the laws of the
United States of America or any State (or any domestic branch of a foreign bank)
and subject to supervision and examination by Federal or state banking or
depository institution authorities (including depository receipts issued by any
such institution or trust company as custodian with respect to any obligation
referred to in clause (a) above or portion of such obligation for the benefit of
the holders of such depository receipts); provided, that at the time of the
investment or contractual commitment to invest therein (which shall be deemed to
be made again each time funds are reinvested following each Distribution Date),
the commercial paper or other short-term senior unsecured debt obligations
(other than such obligations the rating of which is based on the credit of a
Person other than such depository institution or trust company) thereof shall
have a credit rating from each of the Rating Agencies in the highest investment
category granted thereby;
Appendix A-1-13
(c) commercial paper having, at the time of the investment, a rating from
each of the Rating Agencies in the highest investment category granted thereby;
(d) investments in money market funds having a rating from each of the
Rating Agencies in the highest investment category granted thereby (including
funds for which the Indenture Trustee, the Administrator or the Trustee or any
of their respective Affiliates is investment manager or advisor);
(e) bankers' acceptances issued by any depository institution or trust
company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that is a direct
obligation of, or fully guaranteed by, the United States of America or any
agency or instrumentality thereof the obligations of which are backed by the
full faith and credit of the United States of America, in either case entered
into with a depository institution or trust company (acting as principal)
described in clause (b) above; and
(g) any other investment which would not result in the downgrading or
withdrawal of any rating of the Securities by any of the Rating Agencies as
affirmed in writing delivered to the Indenture Trustee.
For purposes of the definition of "Eligible Investments," the phrase
"highest investment category" means (i) in the case of Fitch, "AAA" for
long-term investments (or the equivalent) and "F-1+" for short-term investments
(or the equivalent), (ii) in the case of Moody's, "Aaa" for long-term
investments (or the equivalent) and "P-1" for short-term investments (or the
equivalent), and (iii) in the case of Standard & Poor's, "AAA" for long-term
investments (or the equivalent) and "A-1+" for short-term investments (or the
equivalent). A proposed investment not rated by Fitch but rated in the highest
investment category by Moody's and Standard & Poor's shall be considered to be
rated by each of the Rating Agencies in the highest investment category granted
thereby.
"Eligible Loans" has the meaning specified in the Purchase Agreement or the
Sale Agreement, as applicable.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Event of Default" has the meaning specified in Section 5.01 of the
Indenture.
"Excess Distribution Certificate" means the certificate, substantially in
the form of Exhibit A to the Trust Agreement.
"Excess Distribution Certificate Paying Agent" means any paying agent or
co-paying agent appointed pursuant to Section 3.13(g) of the Trust Agreement,
which shall initially be the Trustee.
"Excess Distribution Certificate Register" and "Excess Distribution
Certificate Registrar" mean the register mentioned and the registrar appointed
pursuant to Section 3.13(c) of the Trust Agreement.
Appendix A-1-14
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expenses" means any and all liabilities, obligations, losses, damages,
taxes, claims, actions and suits, and any and all reasonable costs, expenses and
disbursements (including reasonable legal fees and expenses) of any kind and
nature whatsoever which may at any time be imposed on, incurred by, or asserted
against the Trustee or any of its officers, directors or agents in any way
relating to or arising out of the Trust Agreement, the other Basic Documents,
the Trust Estate, the administration of the Trust Estate or the action or
inaction of the Trustee under the Trust Agreement or the other Basic Documents.
"Executive Officer" means, with respect to any corporation, the Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer, President,
any Executive Vice President, any Senior Vice President, any Vice President, the
Secretary or the Treasurer of such corporation; and with respect to any
partnership, any general partner thereof.
"FDIC" means the Federal Deposit Insurance Corporation.
"Federal Funds Rate" for any day means the rate set forth for such day
opposite the caption "Federal Funds (effective)" in the weekly statistical
release designated H.15(519), or any successor publication, published by the
Board of Governors of the Federal Reserve System. If such rate is not published
in the relevant H.15(519) for any day, the rate for such day shall be the
arithmetic mean of the rates for the last transaction in overnight Federal Funds
arranged prior to 9:00 a.m. New York City time on that day by each of four
leading brokers in such transactions located in New York City selected by the
Administrator. The Federal Funds rate for each Saturday and Sunday and for any
other that is not a Business Day shall be the Federal Funds Rate for the
preceding Business Day as determined above.
"First Priority Principal Distribution Amount" means, with respect to any
Distribution Date, an amount not less than zero equal to:
AN - AB
Where:
AN = the Class A Note Balance on (i) the immediately preceding
Distribution Date (after giving effect to any principal payments made
on the Class A Notes on such preceding Distribution Date) or (ii) in
the case of the first Distribution Date, on the Closing Date;
AB = the Asset Balance for such Distribution Date;
provided, however, that:
. if a Class A Note Parity Trigger is in effect, then the
First Priority Principal Distribution Amount shall
equal the Class A Noteholders' Principal Distribution
Amount;
Appendix A-1-15
. on or after the Class A-1 Maturity Date, the First
Priority Principal Distribution Amount shall not be
less than the amount that is necessary to reduce the
Class A-1 Note Balance to zero;
. on or after the Class A-2 Maturity Date, the First
Priority Principal Distribution Amount shall not be
less than the amount that is necessary to reduce the
Class A-2 Note Balance to zero; and
. on or after the Class A-3 Maturity Date, the First
Priority Principal Distribution Amount shall not be
less than the amount that is necessary to reduce the
Class A-3 Note Balance to zero.
"Fitch" means Fitch, Inc. (also known as Fitch Ratings).
"Floating Rate Notes" means the Class A-1 Notes, the Class A-2 Notes, the
Class A-3 Notes, the Class B Notes and the Class C Notes.
"Grant" means mortgage, pledge, bargain, sell, warrant, alienate, remise,
release, convey, assign, transfer, create and grant a lien upon and a security
interest in and right of set-off against, deposit, set over and confirm pursuant
to the Indenture. A Grant of the Collateral or of any other agreement or
instrument shall include all rights, powers and options (but none of the
obligations) of the Granting party thereunder, including the immediate and
continuing right to claim for, collect, receive and give receipt for principal
and interest payments in respect of the Collateral and all other moneys payable
thereunder, to give and receive notices and other communications, to make
waivers or other agreements, to exercise all rights and options, to bring
Proceedings in the name of the Granting party or otherwise and generally to do
and receive anything that the Granting party is or may be entitled to do or
receive thereunder or with respect thereto.
"Indenture" means the Indenture dated as of March 1, 2004, between the
Trust and the Indenture Trustee.
"Indenture Trust Estate" means all money, instruments, rights and other
property that are subject or intended to be subject to the lien and security
interest of the Indenture for the benefit of the Noteholders (including all
property and interests Granted to the Indenture Trustee), including all proceeds
thereof.
"Indenture Trustee" means JPMorgan Chase Bank, a New York banking
corporation, not in its individual capacity but solely as trustee under the
Indenture.
"Independent" means, when used with respect to any specified Person, that
the Person (a) is in fact independent of the Trust, any other obligor upon the
Notes, the Depositor and any Affiliate of any of the foregoing Persons, (b) does
not have any direct financial interest or any material indirect financial
interest in the Trust, any such other obligor, the Depositor or any Affiliate of
any of the foregoing Persons and (c) is not connected with the Trust, any such
other obligor, the Depositor or any Affiliate of any of the foregoing Persons as
an officer, employee,
Appendix A-1-16
promoter, underwriter, placement agent, trustee, partner, director or person
performing similar functions.
"Independent Certificate" means a certificate or opinion to be delivered to
the Indenture Trustee under the circumstances described in, and otherwise
complying with, the applicable requirements of Section 11.01 of the Indenture,
made by an Independent appraiser or other expert appointed by an Issuer Order
and approved by the Indenture Trustee in the exercise of reasonable care, and
such opinion or certificate shall state that the signer has read the definition
of "Independent" in the Indenture and that the signer is Independent within the
meaning thereof.
"Index Maturity" means, with respect to any Accrual Period, a period of
time equal to, one month, two months, three months or four months, as
applicable, commencing on the first day of that Accrual Period.
"Initial Accrual Rate" means for each class of Notes and the Accrual Period
commencing on the Closing Date to, but excluding, the first Distribution Date,
the rate per annum as determined on the related Determination Date, as follows:
x + [21/31 * (y - x)]
where:
x = Two-Month LIBOR, and
y = Three-Month LIBOR.
"Initial Pool Balance" means the Pool Balance as of the Cutoff Date, which
is $1,252,158,292.
"Insolvency Event" means, with respect to a specified Person, (a) the
filing of a decree or order for relief by a court having jurisdiction in the
premises in respect of such Person or any substantial part of its property in an
involuntary case under any applicable Federal or state bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official for
such Person or for any substantial part of its property, or ordering the
winding-up or liquidation of such Person's affairs, which decree or order
remains unstayed and in effect for a period of 60 consecutive days; or (b) the
commencement by such Person of a voluntary case under any applicable Federal or
state bankruptcy, insolvency or other similar law now or hereafter in effect, or
the consent by such Person to the entry of an order for relief in an involuntary
case under any such law, or the consent by such Person to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official for such Person or for any substantial part of
its property, or the making by such Person of any general assignment for the
benefit of creditors, or the failure by such Person generally to pay its debts
as such debts become due, or the taking of action by such Person in furtherance
of any of the foregoing.
"Insolvency Proceeds" has the meaning set forth in Section 6.01(b) of the
Administration Agreement.
Appendix A-1-17
"Interest Rate Cap Agreement" means the agreement between the Trust and
Morgan Stanley Capital Services Inc., dated March 16, 2004, documented under a
1992 ISDA Master Agreement (Multicurrency-Cross Border), including the related
schedule and confirmations, providing for certain payments to the Trust, in the
amounts and under the conditions set forth therein, which will terminate in
accordance with its terms on the March 2005 Distribution Date, and the two
agreements between the Trust and Merrill Lynch Capital Services, Inc., each
dated March 16, 2004, documented under a 1992 ISDA Master Agreement
(Multicurrency-Cross Border), including the related schedule and confirmations,
providing for certain payments to the Trust, in the amounts and under the
conditions set forth therein, which will terminate in accordance with their
terms on the March 2006 or March 2007 Distribution Dates, as applicable.
"Interest Rate Cap Counterparty" see "Cap Counterparty."
"Investment Earnings" means, with respect to any Distribution Date, the
investment earnings (net of losses and investment expenses) on amounts on
deposit in the Trust Accounts to be deposited into the Collection Account on or
prior to such Distribution Date pursuant to Section 2.03(b) of the
Administration Agreement.
"Issuer" means the Trust and, for purposes of any provision contained in
the Indenture and required by the TIA, each other obligor on the Notes.
"Issuer Order" and "Issuer Request" means a written order or request signed
in the name of the Issuer by any one of its Authorized Officers and delivered to
the Indenture Trustee.
"LAW Loan" means a loan originated under the LAWLOANS Program.
"LIBOR Determination Date" means, for each Accrual Period, the second
Business Day before the beginning of that Accrual Period.
"Lien" means a security interest, lien, charge, pledge, equity or
encumbrance of any kind, other than tax liens and any other liens, if any, which
attach to the respective Trust Student Loan by operation of law as a result of
any act or omission by the related Obligor.
"Liquidating Distribution" means the amount of any distribution to the
Depositor in connection with the termination of the Trust under Section 9.01(a)
of the Trust Agreement.
"MBA Loan" means a loan originated under the MBA Loans Program.
"MED Loan" means a loan originated under the MEDLOANS Program.
"Minimum Purchase Amount" means an amount that would be sufficient to (i)
reduce the Outstanding Amount of each class of Notes on such Distribution Date
to zero and, (ii) pay to the respective Noteholders the Class A Noteholders'
Interest Distribution Amount, the Class B Noteholders' Interest Distribution
Amount and the Class C Noteholders' Interest Distribution Amount payable on such
Distribution Date.
Appendix A-1-18
"Monthly Servicing Payment Date" means the 15th day of each calendar month
or, if such day is not a Business Day, the immediately following Business Day,
commencing on April 15, 2004.
"Moody's" means Moody's Investors Service, Inc.
"Note Depository Agreement" means the Letter of Representations, dated
March 25, 2004, between the Trust, the Trustee and the Indenture Trustee in
favor of the Depository Trust Company.
"Note Final Maturity Date" for a class of Notes means the Class A-1
Maturity Date, the Class A-2 Maturity Date, the Class A-3 Maturity Date, the
Class B Maturity Date or the Class C Maturity Date, as applicable.
"Note Interest Shortfall" means the Class A Note Interest Shortfall, the
Class B Note Interest Shortfall and the Class C Note Interest Shortfall.
"Note Owner" means, with respect to a Book-Entry Note, the Person who is
the owner of such Book-Entry Note, as reflected on the books of the Clearing
Agency, or on the books of a Person maintaining an account with such Clearing
Agency (directly as a Clearing Agency Participant or as an indirect participant,
in each case in accordance with the rules of such Clearing Agency).
"Note Pool Factor" as of the close of business on a Distribution Date means
a seven-digit decimal figure equal to the outstanding principal balance of a
class of Notes divided by the original outstanding principal balance of such
class of Notes. The Note Pool Factor for each class will be 1.0000000 as of the
Closing Date; thereafter, the Note Pool Factor for each class will decline to
reflect reductions in the outstanding principal balance of that class of Notes.
"Note Rates" means, with respect to any Accrual Period, the Class A-1 Rate,
the Class A-2 Rate, the Class A-3 Rate, the Class B Rate and the Class C Rate
for such Accrual Period, collectively.
"Note Register" and "Note Registrar" have the respective meanings specified
in Section 2.04 of the Indenture.
"Noteholder" or "Holder" means either a Class A Noteholder, a Class B
Noteholder or a Class C Noteholder.
"Noteholders' Interest Distribution Amount" means the Class A Noteholders'
Interest Distribution Amount, the Class B Noteholders' Interest Distribution
Amount and the Class C Noteholders' Interest Distribution Amount.
"Noteholders' Principal Distribution Amount" means the Class A Noteholders'
Principal Distribution Amount, the Class B Noteholders' Principal Distribution
Amount and the Class C Noteholders' Principal Distribution Amount.
Appendix A-1-19
"Notes" means the Class A-1 Notes, the Class A-2 Notes, the Class A-3
Notes, the Class B Notes and the Class C Notes, collectively.
"Obligor" on a Trust Student Loan means the borrower or co-borrowers of
such Trust Student Loan and any other Person who owes payments in respect of
such Trust Student Loan.
"Officers' Certificate" means (i) in the case of the Trust, a certificate
signed by any two Authorized Officers of the Trustee, under the circumstances
described in, and otherwise complying with, the applicable requirements of
Section 11.01 of the Indenture, and delivered to the Indenture Trustee, and (ii)
in the case of the Depositor, the Administrator or the Servicer, a certificate
signed by any two Authorized Officers of the Depositor, the Administrator or the
Servicer, as applicable.
"Opinion of Counsel" means (i) with respect to the Trust, one or more
written opinions of counsel who may, except as otherwise expressly provided in
the Indenture, be employees of or counsel to the Trustee, the Trust, the
Depositor or an Affiliate of the Depositor and who shall be satisfactory to the
Indenture Trustee, and which opinion or opinions shall be addressed to the
Indenture Trustee as Indenture Trustee, shall comply with any applicable
requirements of Section 11.01 of the Indenture and shall be in form and
substance satisfactory to the Indenture Trustee, and (ii) with respect to the
Depositor, the Administrator or the Servicer, one or more written opinions of
counsel who may be an employee of or counsel to the Depositor, the Administrator
or the Servicer, which counsel shall be acceptable to the Indenture Trustee and
the Trustee.
"Outstanding" means, as of the date of determination, all Notes theretofore
authenticated and delivered under the Indenture except (i) Notes theretofore
cancelled by the Note Registrar or delivered to the Note Registrar for
cancellation, (ii) Notes or portions thereof the payment for which money in the
necessary amount has been theretofore deposited with the Indenture Trustee or
any Paying Agent in trust for the Noteholders thereof (provided, however, that
if such Notes are to be redeemed, notice of such redemption has been duly given
pursuant to the Indenture), and (iii) Notes in exchange for or in lieu of other
Notes which have been authenticated and delivered pursuant to the Indenture
unless proof satisfactory to the Indenture Trustee is presented that any such
Notes are held by a bona fide purchaser; provided, that in determining whether
the Noteholders of the requisite Outstanding Amount of the Notes have given any
request, demand, authorization, direction, notice, consent or waiver hereunder
or under any other Basic Document, Notes owned by the Trust, any other obligor
upon the Notes, the Depositor or any Affiliate of any of the foregoing Persons
shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Indenture Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Notes that a Responsible Officer of the Indenture Trustee either actually knows
to be so owned or has received written notice thereof shall be so disregarded.
Notes so owned that have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Indenture
Trustee the pledgee's right so to act with respect to such Notes and that the
pledgee is not the Trust, any other obligor upon the Notes, the Depositor or any
Affiliate of any of the foregoing Persons.
"Outstanding Amount" means the aggregate principal amount of all (or, if
specified, a subset of) Notes Outstanding at the date of determination.
Appendix A-1-20
"Paying Agent" means the Indenture Trustee or any other Person that meets
the eligibility standards for the Indenture Trustee specified in Section 6.11 of
the Indenture and is authorized by the Trustee on behalf of the Trust to make
the payments to and distributions from the Collection Account and payments of
principal of and interest and any other amounts owing on the Notes on behalf of
the Trust.
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, trust (including any beneficiary
thereof), unincorporated organization, limited liability company, limited
liability partnership or government or any agency or political subdivision
thereof.
"Physical Property" has the meaning assigned to such terms in the
definition of "Delivery" above.
"Pool Balance" means, as of the last day of a Collection Period, the
aggregate principal balance of the Trust Student Loans as of the beginning of
such Collection Period, including accrued interest as of the beginning of such
Collection Period, that is expected to be capitalized, plus interest and
insurance fees that accrue during such Collection Period that are capitalized or
are to be capitalized and which were not included in the prior Pool Balance, as
reduced by (i) all payments received by the Trust through the last day of such
Collection Period from Obligors (other than Recoveries), (ii) all amounts
received by the Trust through that date from purchases of the Trust Student
Loans by SLM Education Credit Finance Corporation or the Servicer, (iii) the
aggregate principal balance of all Trust Student Loans that became Charged-Off
Loans during such Collection Period, and (iv) the amount of any adjustments to
balances of the Trust Student Loans that the Servicer makes under the Servicing
Agreement through the last day of such Collection Period. The principal balance
of a Trust Student Loan that became a Charged-Off Loan during a prior Collection
Period shall be deemed to be zero.
"Predecessor Note" means, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 2.05 of the Indenture and in lieu of a
mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same
debt as the mutilated, lost, destroyed or stolen Note.
"Primary Servicing Fee" for any Monthly Servicing Payment Date has the
meaning specified in Attachment A to the Servicing Agreement, and shall include
any such fees from prior Monthly Servicing Payment Dates that remain unpaid.
"Principal Distribution Account" means the account designated as such,
established and maintained pursuant to Section 2.03(a)(iv) of the Administration
Agreement.
"Principal Distribution Amount" means the sum of the First Priority
Principal Distribution Amount, the Second Priority Principal Distribution
Amount, the Third Priority Principal Distribution Amount, and the Regular
Principal Distribution Amount for a Distribution Date.
"Proceeding" means any suit in equity, action at law or other judicial or
administrative proceeding.
Appendix A-1-21
"Program" means one of the loan programs under which a Med Loan, MBA Loan,
LAW Loan or Signature Loan was originated.
"Purchase Amount" with respect to any Trust Student Loan means the amount
required to prepay in full such Trust Student Loan under the terms thereof
including all accrued interest thereon.
"Purchased Student Loan" means a Trust Student Loan which is, as of the
close of business on the last, day of a Collection Period, purchased by the
Servicer pursuant to Section 3.05 of the Servicing Agreement or repurchased by
the Depositor pursuant to Section 6.01 of the Depositor Sale Agreement or
purchased by the Seller pursuant to Section 6.01 of the Seller Sale Agreement.
"Rating Agency" means Moody's, Standard & Poor's and Fitch. If any such
organization or successor thereto is no longer in existence, "Rating Agency"
with respect to such organization shall be a nationally recognized statistical
rating organization or other comparable Person designated by the Administrator,
notice of which designation shall be given to the Indenture Trustee, the Trustee
and the Servicer.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have been given 10 days' prior notice thereof and that each
of the Rating Agencies shall have notified the Administrator, the Servicer, the
Trustee and the Indenture Trustee in writing that such action will not result in
and of itself in a reduction or withdrawal of the then current rating of any of
the Notes.
"Record Date" means, with respect to a Distribution Date or Redemption
Date, the close of business on the day preceding such Distribution Date or
Redemption Date.
"Recoveries" means, as of any date of determination, all amounts received
by the Trust in respect of a Charged-Off Loan after such Trust Student Loan
became a Charged-Off Loan.
"Redemption Date" means in the case of a payment to Noteholders pursuant to
Section 10.01 of the Indenture, the Distribution Date specified pursuant to
Section 10.01 of the Indenture.
"Redemption Price" means an amount equal to the Class Note Balance, plus
accrued and unpaid interest thereon at the applicable Note Rates to but
excluding the Redemption Date.
"Reference Banks" means four major banks in the London interbank market
selected by the Administrator.
"Regular Principal Distribution Amount" means, with respect to any
Distribution Date, an amount not less than zero and equal to:
(N - (AB - SOA)) - (FPDA + SPDA + TPDA)
Where:
Appendix A-1-22
N = the Class Note Balance on (i) the immediately preceding
Distribution Date (after giving effect to any principal payments made
on such preceding Distribution Date) or (ii) in the case of the first
Distribution Date, the Closing Date, as the case may be;
AB = the Asset Balance for such Distribution Date;
SOA = the Specified Overcollateralization Amount for such
Distribution Date;
FPDA = the First Priority Principal Distribution Amount, if any,
for such Distribution Date;
SPDA = the Second Priority Principal Distribution Amount, if any,
for such Distribution Date; and
TPDA = the Third Priority Principal Distribution Amount, if any,
for such Distribution Date;
provided, however, that:
. the Regular Principal Distribution Amount shall not
exceed the Class Note Balance on such Distribution Date
(after taking into account the allocation of the First
Priority Principal Distribution Amount, the Second
Priority Principal Distribution Amount and the Third
Principal Distribution Amount, if any, on such
Distribution Date).
"Reserve Account" means the account designated as such, established and
maintained pursuant to Section 2.03(a)(ii) of the Administration Agreement.
"Reserve Account Initial Deposit" means $3,130,396.
"Responsible Officer" means, with respect to the Indenture Trustee, any
officer within the Corporate Trust Office of the Indenture Trustee, including
any Vice President, Assistant Vice President, Assistant Treasurer, Assistant
Secretary, or any other officer of the Indenture Trustee customarily performing
functions similar to those performed by any of the above designated officers,
with direct responsibility for the administration of the Indenture and the other
Basic Documents on behalf of the Indenture Trustee and also, with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer's knowledge of and familiarity with the particular subject.
"Sale Agreement" means, collectively, the Depositor Sale Agreement and the
Seller Sale Agreement.
"Schedule of Trust Student Loans" means the listing of the Trust Student
Loans set forth in Schedule A to the Indenture and the Bill of Sale (which
Schedule may be in the form of microfiche).
Appendix A-1-23
"Second Priority Principal Distribution Amount" means, with respect to any
Distribution Date, an amount not less than zero equal to:
(ABN - AB) - FPDA
Where:
ABN = the sum of the Class A Note Balance and the Class B Note
Balance on (i) the immediately preceding Distribution Date (after
giving effect to any principal payments made on the Class A Notes and
the Class B Notes on such preceding Distribution Date or (ii) in the
case of the first Distribution Date, the Closing Date;
AB = the Asset Balance for such Distribution Date; and
FPDA = the First Priority Principal Distribution Amount, if any,
with respect to such Distribution Date;
provided, however, that:
. if a Class B Note Parity Trigger is in effect, then the
Second Priority Principal Distribution Amount shall
equal (a) the sum of (i) the Class A Noteholders'
Principal Distribution Amount and (ii) the Class B
Noteholders' Principal Distribution Amount less (b) the
First Priority Principal Distribution Amount;
. on or after the Class B Maturity Date, the Second
Priority Principal Distribution Amount shall not be
less than the amount that is necessary to reduce the
Class B Note Balance to zero; and
. the Second Priority Principal Distribution Amount shall
not exceed the Class A Note Balance and the Class B
Note Balance as of such Distribution Date (after taking
into account the allocation of the First Priority
Principal Distribution Amount, if any, on such
Distribution Date).
"Seller" means SLM Education Credit Finance Corporation.
"Seller Sale Agreement" means the Sale Agreement, dated March 25, 2004,
between the Seller and the Depositor.
"Servicer" means Sallie Mae, Inc., in its capacity as servicer of the Trust
Student Loans, or any successor thereto in such capacity in accordance with the
Servicing Agreement.
"Servicer Default" means an event specified in Section 5.01 of the
Servicing Agreement.
Appendix A-1-24
"Servicer's Report" means any report of the Servicer delivered pursuant to
Section 3.01(a) of the Administration Agreement, substantially in the form
acceptable to the Administrator.
"Servicing Agreement" means the Servicing Agreement, dated as of March 25,
2004, among the Trust, the Trustee, the Depositor, the Servicer, the
Administrator and the Indenture Trustee.
"Servicing Fee" has the meaning specified in Attachment A to the Servicing
Agreement.
"Signature Student Loan" means a loan originated under the Signature
Education Loan Program.
"Specified Class A Enhancement" means, for any Distribution Date, the
greater of (a) 15.00% of the Asset Balance for such Distribution Date, or (b)
the Specified Overcollateralization Amount for such Distribution Date.
"Specified Class B Enhancement" means, for any Distribution Date, the
greater of (a) 10.125% of the Asset Balance for such Distribution Date, or (b)
the Specified Overcollateralization Amount for such Distribution Date.
"Specified Class C Enhancement" means, for any Distribution Date, means the
greater of (a) 3.00% of the Asset Balance for such Distribution Date, or (b) the
Specified Overcollateralization Amount for such Distribution Date.
"Specified Overcollateralization Amount" means, as of any Distribution
Date, 2.00% of the initial Asset Balance.
"Specified Reserve Account Balance" means the lesser of $3,130,396 and the
Class Note Balance.
"Standard & Poor's" means Standard & Poor's, a division of The McGraw-Hill
Companies, Inc.
"State" means any one of the 50 States of the United States of America or
the District of Columbia.
"Stepdown Date" means the earlier to occur of (a) the March 2009
Distribution Date and (b) the Distribution Date following that date on which the
Class A Note Balance is reduced to zero.
"Student Loans" means private education loans to students and parents of
students that are not reinsured by the Department of Education or any other
government agency.
"Successor Administrator" has the meaning specified in Section 3.07(e) of
the Indenture.
"Successor Servicer" has the meaning specified in Section 3.07(e) of the
Indenture.
Appendix A-1-25
"Swap Agreement" means the ISDA Master Agreement by and between the Trust
and JPMorgan Chase Bank, dated as of March 16, 2004, including the related
schedule and confirmation.
"Swap Counterparty" means JPMorgan Chase Bank, together with its successors
and permitted assigns, or any Cap Counterparty, as applicable (collectively, the
"Swap Counterparties").
"Swap Payment" means, with respect to each Distribution Date, the amount
payable to the Swap Counterparty by the Trust for such date as specified in the
Swap Agreement.
"Swap Termination Date" means the date on which the Swap Agreement
terminates in accordance with its terms.
"Swap Termination Payments" has the meaning set forth in the Swap
Agreement.
"Telerate Page 3750" means the display page so designated on the Moneyline
Telerate Service (or such other page as may replace that page on that service
for the purpose of displaying comparable rates or prices).
"Third Priority Principal Distribution Amount" means, with respect to any
Distribution Date, an amount not less than zero equal to:
(N - AB) - (FPDA + SPDA)
Where:
N = the Class Note Balance on (i) the immediately preceding
Distribution Date (after giving effect to any principal payments made
on the Notes on such preceding Distribution Date) or (ii) in the case
of the first Distribution Date, the Closing Date;
AB = the Asset Balance for such Distribution Date;
FPDA = the First Priority Principal Distribution Amount, if any,
such Distribution Date; and
SPDA = the Second Priority Principal Distribution Amount, if any,
for such Distribution Date;
provided, however, that:
.. if a Class C Note Parity Trigger is in effect, then the Third Priority
Principal Distribution Amount shall equal (a) the sum of (i) the Class A
Noteholders' Principal Distribution Amount, (ii) the Class B Noteholders'
Principal Distribution Amount and (iii) the Class C Noteholders' Principal
Distribution Amount less (b) the First Priority Principal Distribution
Amount plus the Second Priority Principal Distribution Amount;
Appendix A-1-26
.. on or after the Class C Maturity Date, the Third Priority Principal
Distribution Amount shall not be less than the amount that is necessary to
reduce the Class C Note Balance to zero; and
.. the Third Priority Principal Distribution Amount shall not exceed the Class
Note Balance on such Distribution Date (after taking into account the
allocation of the First Priority Principal Distribution Amount and the
Second Priority Principal Distribution Amount, if any, on such Distribution
Date).
"Transfer Date" has the meaning specified in Section 5.02(a) of the
Administration Agreement.
"Treasury Regulations" means regulations, including proposed or temporary
regulations, promulgated under the Code. References in any document or
instrument to specific provisions of proposed or temporary regulations shall
include analogous provisions of final Treasury Regulations or other successor
Treasury Regulations.
"Trigger Event" means with respect to any Distribution Date, that the
Cumulative Realized Losses Test is not satisfied.
"Trust" means SLM Private Credit Student Loan Trust 2004-A, a Delaware
statutory trust established pursuant to the Trust Agreement.
"Trust Account Property" means the Trust Accounts, all cash and investments
held from time to time in any Trust Account (whether in the form of deposit
accounts, Physical Property, book-entry securities, uncertificated securities or
otherwise), including the Reserve Account Initial Deposit, and all earnings on
and proceeds of the foregoing.
"Trust Accounts" has the meaning specified in Section 2.03 of the
Administration Agreement.
"Trust Agreement" means the Short-Form Trust Agreement, dated as of March
1, 2004, between the Depositor and the Trustee as amended and restated pursuant
to an Amended and Restated Trust Agreement, dated as of March 25, 2004, among
the Depositor, the Trustee and the Indenture Trustee.
"Trust Auction Date" has the meaning specified in Section 4.04 of the
Indenture.
"Trustee" means Chase Manhattan Bank USA, National Association, a national
banking association, not in its individual capacity but solely as Trustee under
the Trust Agreement. "Trustee" shall also mean each successor Trustee as of the
qualification of such successor as Trustee under the Trust Agreement.
"Trust Estate" means all right, title and interest of the Trust (or the
Trustee on behalf of the Trust) in and to the property and rights sold,
transferred and assigned to the Trust pursuant to the Sale Agreement, all funds
on deposit from time to time in the Trust Accounts and all other property of the
Trust from time to time, including any rights of the Trustee and the Trust
pursuant to the Trust Agreement, the Administration Agreement, the Interest Rate
Cap Agreements and the Swap Agreement.
Appendix A-1-27
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 as in
force on the date hereof, unless otherwise specifically provided.
"Trust Student Loan" means any student loan that is listed on the Schedule
of Trust Student Loans on the Closing Date plus any student loan that is
substituted for a Trust Student Loan by the Depositor pursuant to Section 6.01
of the Depositor Sale Agreement, by the Seller pursuant to Section 6.01 of the
Seller Sale Agreement or by the Servicer pursuant to Section 3.05 of the
Servicing Agreement, but shall not include any Purchased Student Loan following
receipt by or on behalf of the Trust of the Purchase Amount with respect
thereto.
"Trust Student Loan Files" means the documents specified in Section 2.01 of
the Servicing Agreement.
"Two-Month LIBOR" or "Three-Month LIBOR" means, with respect to any Accrual
Period, the London interbank offered rate for deposits in U.S. dollars having
the Index Maturity which appears on Telerate Page 3750 as of 11:00 a.m. London
time, on the related LIBOR Determination Date. If this rate does not appear on
Telerate Page 3750, the rate for that day will be determined on the basis of the
rates at which deposits in U.S. dollars, having the Index Maturity and in a
principal amount of not less than U.S. $1,000,000, are offered at approximately
11:00 a.m., London time, on that LIBOR Determination Date, to prime banks in the
London interbank market by the Reference Banks. The Administrator will request
the principal London office of each Reference Bank to provide a quotation of its
rate. If the Reference Banks provide at least two quotations, the rate for that
day will be the arithmetic mean of the quotations. If the Reference Banks
provide fewer than two quotations, the rate for that day will be the arithmetic
mean of the rates quoted by major banks in New York City, selected by the
Administrator, at approximately 11:00 a.m., New York City time, on that LIBOR
Determination Date, for loans in U.S. dollars to leading European banks having
the Index Maturity and in a principal amount of not less than U.S. $1,000,000.
If the banks selected as described above are not providing quotations, LIBOR in
effect for the applicable Accrual Period will be LIBOR for the specified
maturity in effect for the previous Accrual Period.
"UCC" means, unless the context otherwise requires, the Uniform Commercial
Code, as in effect in the relevant jurisdiction, as amended from time to time.
"91-Day Treasury Bills" means direct obligations of the United States with
a maturity of thirteen weeks.
Appendix A-1-28
SCHEDULE A
Schedule of Trust Student Loans
-------------------------------
[See Schedule A to the Bill of Sale
(Attachment B to the Sale Agreement)]
Schedule A-1
SCHEDULE B
Location of Trust Student Loan Files
------------------------------------
[See Attachment B to the Servicing Agreement]
Schedule B-1
Exhibit A
[Form of Notes]
(See Tabs 15.1 through 16.7)
Exhibit A-1
EXHIBIT B
[Form of Note Depository Agreement]
Exhibit B-1