Exhibit 4.1
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AMENDED AND RESTATED
TRUST AGREEMENT
among
SLM EDUCATION CREDIT FUNDING LLC,
as Depositor
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
not in its individual capacity but solely,
as Trustee,
and
JPMORGAN CHASE BANK,
not in its individual capacity but solely
as Indenture Trustee
Dated as of May 26, 2004
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND USAGE
Section 1.01. Definitions and Usage...........................................1
ARTICLE II
ORGANIZATION
Section 2.01. Creation of Trust; Name.........................................1
Section 2.02. Office..........................................................2
Section 2.03. Purposes and Powers.............................................2
Section 2.04. Appointment of Trustee..........................................2
Section 2.05. Initial Capital Contribution of Trust Estate....................2
Section 2.06. Declaration of Trust............................................3
Section 2.07. Liability of the Holders of Excess Distribution Certificate.....3
Section 2.08. Title to Trust Property.........................................3
Section 2.09. Representations, Warranties, and Covenants of the Depositor.....3
ARTICLE III
BENEFICIAL OWNERSHIP AND EXCESS DISTRIBUTION CERTIFICATE
Section 3.01. Initial Beneficial Ownership....................................4
Section 3.02. Corporate Trust Office..........................................4
Section 3.03. The Excess Distribution Certificate.............................4
ARTICLE IV
ACTIONS BY TRUSTEE
Section 4.01. Prior Notice to the Holder of the Excess Distribution
Certificate With Respect to Certain Matters.....................9
Section 4.02. Action with Respect to Sale of the Trust Student Loans.........10
Section 4.03. Action with Respect to Bankruptcy..............................10
Section 4.04. Restrictions...................................................10
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ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Application of Trust Funds.....................................10
Section 5.02. Method of Payment..............................................11
Section 5.03. No Segregation of Moneys; No Interest..........................11
Section 5.04. Reports to the Holder of the Excess Distribution Certificate,
the Internal Revenue Service and Others........................11
Section 5.05. Signature on Returns; Tax Matters Partner......................11
ARTICLE VI
AUTHORITY AND DUTIES OF TRUSTEE
Section 6.01. General Authority..............................................11
Section 6.02. General Duties.................................................12
Section 6.03. Action upon Instruction........................................12
Section 6.04. No Duties Except as Specified in this Agreement or in
Instructions...................................................13
Section 6.05. No Action Except Under Specified Documents or Instructions.....13
Section 6.06. Restrictions...................................................13
ARTICLE VII
CONCERNING THE TRUSTEE
Section 7.01. Acceptance of Trusts and Duties................................14
Section 7.02. Reserved.......................................................15
Section 7.03. Representations and Warranties.................................15
Section 7.04. Reliance; Advice of Counsel....................................15
Section 7.05. Not Acting in Individual Capacity..............................16
Section 7.06. Trustee Not Liable for Excess Distribution Certificates or
Trust Student Loans............................................16
Section 7.07. Trustee May Own Notes..........................................16
ARTICLE VIII
COMPENSATION AND INDEMNITY OF TRUSTEE
Section 8.01. Trustee's Fees and Expenses....................................17
Section 8.02. Payments to the Trustee........................................17
Section 8.03. Indemnity......................................................17
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ARTICLE IX
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement.................................17
ARTICLE X
SUCCESSOR TRUSTEES AND ADDITIONAL TRUSTEES
Section 10.01. Eligibility Requirements for Trustee...........................18
Section 10.02. Resignation or Removal of Trustee..............................18
Section 10.03. Successor Trustee..............................................19
Section 10.04. Merger or Consolidation of Trustee.............................19
Section 10.05. Appointment of Co-Trustee or Separate Trustee..................19
ARTICLE XI
MISCELLANEOUS
Section 11.01. Supplements and Amendments.....................................21
Section 11.02. No Legal Title to Trust Estate in Holder of the Excess
Distribution Certificate.......................................22
Section 11.03. Limitations on Rights of Others................................22
Section 11.04. Notices........................................................22
Section 11.05. Severability...................................................22
Section 11.06. Separate Counterparts..........................................22
Section 11.07. Successors and Assigns.........................................22
Section 11.08. No Petition....................................................23
Section 11.09. No Recourse....................................................23
Section 11.10. Headings.......................................................23
Section 11.11. Governing Law..................................................23
Exhibit A Form of Excess Distribution Certificate
Exhibit B Form of Certificate of Trust
Exhibit C Form of Transferor Letter
Exhibit D-1 Form of Transferee Letter (Non-Rule 144A)
Exhibit D-2 Form of Transferee Letter (Rule 144A)
Appendix A-1 to Trust Agreement
Annex 1 Qualified Institutional Buyer Status under SEC Rule 144A
(Non-Registered Investment Companies)
Annex 2 Qualified Institutional Buyer Status under SEC Rule 144A
(Registered Investment Companies)
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TRUST AGREEMENT
This AMENDED AND RESTATED TRUST AGREEMENT, dated as of May 26, 2004 (the
"Agreement"), is among SLM EDUCATION CREDIT FUNDING LLC, a Delaware limited
liability company, as depositor (the "Depositor"), CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, a national banking association, not in its individual
capacity but solely as the Trustee (the "Trustee") and JPMORGAN CHASE BANK, not
in its individual capacity but solely as the Indenture Trustee (the "Indenture
Trustee").
WITNESSETH:
WHEREAS, the Depositor and the Trustee are parties to the trust agreement
dated as of May 1, 2004 (the "Short-Form Trust Agreement") pursuant to which a
trust known as "SLM Private Credit Student Loan Trust 2004-B" was established.
WHEREAS, the Depositor, the Indenture Trustee and the Trustee desire to
amend and restate the Short-Form Trust Agreement upon the terms and conditions
set forth herein as follows.
NOW, THEREFORE, the Depositor, the Trustee and the Indenture Trustee hereby
agree as follows:
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 hereto, which also contains
rules as to usage that shall be applicable herein.
ARTICLE II
ORGANIZATION
Section 2.01. Creation of Trust; Name. There is hereby created a Trust
which shall be known as "SLM Private Credit Student Loan Trust 2004-B", in which
name the Trustee may conduct the business of the Trust, make and execute
contracts and other instruments on behalf of the Trust and sue and be sued. The
Trust shall constitute a statutory trust within the meaning of Section 3801(a)
of the Delaware Statutory Trust Act for which the Trustee has filed a
certificate of trust with the Secretary of State of the State of Delaware
pursuant to Section 3810(a) of the Delaware Statutory Trust Act.
Section 2.02. Office. The office of the Trust shall be in care of the
Trustee at its Corporate Trust Office or at such other address as the Trustee
may designate by written notice to the Depositor.
Section 2.03. Purposes and Powers. The purpose of the Trust is to engage
in the following activities:
(i) to issue the Notes pursuant to the Indenture and the Excess
Distribution Certificate pursuant to this Agreement and to sell the Notes
in one or more transactions;
(ii) with the proceeds of the sale of the Notes, to fund the Reserve
Account and the Cash Capitalization Account pursuant to Section 2.08 the
Administration Agreement and to purchase the Trust Student Loans pursuant
to the Depositor Sale Agreement;
(iii) to Grant the Trust Estate to the Indenture Trustee pursuant to
the Indenture, and to hold, manage and distribute to the holder of the
Excess Distribution Certificate pursuant to the terms of this Agreement any
portion of the Trust Estate released from the Lien of, and remitted to the
Trust pursuant to, the Indenture;
(iv) to enter into and perform its obligations under the Basic
Documents to which it is to be a party, including, but not limited to, any
payments that may be owed by the Trust under the Swap Agreement and the
upfront payment owed by the Trust under the Interest Rate Cap Agreements;
(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(vi) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with conservation of
the Trust Estate and the making of distributions to the Noteholders and the
others specified in Sections 2.07 and 2.08 of the Administration Agreement.
The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this Agreement
or the other Basic Documents.
Section 2.04. Appointment of Trustee. The Depositor hereby appoints the
Trustee as trustee of the Trust, effective as of the date hereof, to have all
the rights, powers and duties set forth herein.
Section 2.05. Initial Capital Contribution of Trust Estate. The Depositor
hereby sells, assigns, transfers, conveys and sets over to the Trustee, as of
the date hereof, the sum of $100.00. The Trustee hereby acknowledges receipt in
trust from the Depositor, as of the date hereof, of the foregoing contribution,
which shall constitute the Initial Trust Estate and shall be deposited in the
Collection Account. The Depositor shall pay the organizational expenses of the
Trust as they may arise or shall, upon the request of the Trustee, promptly
reimburse the Trustee for any such expenses paid by the Trustee.
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Section 2.06. Declaration of Trust. The Trustee hereby declares that it
will hold the Trust Estate in trust upon and subject to the conditions set forth
herein for the use and benefit of the holder of the Excess Distribution
Certificate, subject to the obligations of the Trust under the other Basic
Documents. It is the intention of the parties hereto that the Trust constitute a
statutory trust under Delaware law and that this Agreement constitute the
governing instrument of such trust. Effective as of the date hereof, the Trustee
shall have all rights, powers and duties set forth herein with respect to
accomplishing the purposes of the Trust.
Section 2.07. Liability of the Holders of Excess Distribution Certificate.
(a) Notwithstanding the provisions of Section 3803 of the Delaware
Statutory Trust Act, the Depositor shall be liable directly to and shall
indemnify the injured party for all losses, claims, damages, liabilities and
expenses of the Trust (including Expenses, to the extent that the assets of the
Trust that would remain if all of the Notes were paid in full would not be
sufficient to pay any such liabilities, or if such liabilities in fact are not
paid out of the Trust Estate) to the extent that the Depositor would be liable
if the Trust were a partnership under the Delaware Revised Uniform Limited
Partnership Act in which the Depositor were a general partner; provided,
however, that the Depositor shall not be liable for any losses incurred by a
beneficial owner of a Note in its capacity as a holder of limited recourse debt
or to any holder of the Excess Distribution Certificate. In addition, any third
party creditors of the Trust (other than in connection with the obligations to
Noteholders excepted above) shall be third party beneficiaries of this
paragraph.
(b) No holder of the Excess Distribution Certificate (in such capacity)
shall have any personal liability for any liability or obligation of the Trust.
Section 2.08. Title to Trust Property. Legal title to all of the Trust
Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part of
the Trust Estate to be vested in a trustee or trustees, in which case title
shall be deemed to be vested in the Trustee, a co-trustee and/or a separate
trustee, as the case may be.
Section 2.09. Representations, Warranties, and Covenants of the Depositor.
The Depositor hereby represents, warrants and covenants to the Trustee as
follows:
(a) The Depositor is duly organized and validly existing as a Delaware
limited liability company in good standing under the laws of the State of
Delaware, with power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is presently
conducted.
(b) The Depositor has the power and authority to execute and deliver this
Agreement and to carry out its terms; the Depositor has full power and authority
to sell and assign the property to be sold and assigned to and deposited with
the Trust and the Depositor has duly authorized such sale and assignment and
deposit to the Trust by all necessary action; and the execution, delivery and
performance of this Agreement has been duly authorized by the Depositor by all
necessary action.
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(c) This Agreement constitutes a legal, valid and binding obligation of
the Depositor enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization and similar laws relating to creditors'
rights generally and subject to general principles of equity.
(d) The consummation of the transactions contemplated by this Agreement
and the fulfillment of the terms hereof do not conflict with, result in any
breach of any of the terms and provisions of, or constitute (with or without
notice or lapse of time or both) a default under, the Certificate of Formation
or Limited Liability Company Operating Agreement of the Depositor, or any
indenture, agreement or other instrument to which the Depositor is a party or by
which it is bound; nor result in the creation or imposition of any Lien upon any
of its properties pursuant to the terms of any such indenture, agreement or
other instrument (other than pursuant to the Basic Documents); nor violate any
law or, to the Depositor's knowledge, any order, rule or regulation applicable
to the Depositor of any court or of any Federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Depositor or its properties.
(e) The Depositor agrees for the benefit of the Noteholders and the holder
of the Excess Distribution Certificate that it will comply with each of the
requirements set forth in its Certificate of Formation or Limited Liability
Company Operating Agreement.
ARTICLE III
BENEFICIAL OWNERSHIP AND
EXCESS DISTRIBUTION CERTIFICATE
Section 3.01. Initial Beneficial Ownership. Upon the formation of the
Trust by the contribution by the Depositor pursuant to Section 2.05 and until
the issuance of the Excess Distribution Certificate, the Depositor shall be the
sole beneficial owner of the Trust.
Section 3.02. Corporate Trust Office. The Trustee initially designates
Christiana Center/OPS4, 500 Stanton Christiana Road, Newark, Delaware 19713, as
its principal Corporate Trust Office, at which it shall act as Trustee of the
Trust. The Excess Distribution Certificate Registrar's New York office and its
authenticating agent's office are located at 450 West 33rd Street, 15th Floor,
New York, New York 10001, Attention: Structured Finance Services.
Section 3.03. The Excess Distribution Certificate.
(a) General. The Excess Distribution Certificate shall be issued in one or
more registered, definitive, physical certificates substantially in the form of
Exhibit A hereto, in minimum percentage interests of at least 10% and integral
multiples of 10% in excess thereof. The Excess Distribution Certificate shall
receive payments as provided in Section 2.07(c)(xvii) and Section 2.08 of the
Administration Agreement. The Excess Distribution Certificate shall be executed
on behalf of the Trust by manual or facsimile signature of an authorized officer
of the Trustee. An Excess Distribution Certificate bearing the manual or
facsimile signatures of individuals who were, at the time when such signatures
were affixed, authorized to sign on
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behalf of the Trust, shall be valid and binding obligations of the Trust,
notwithstanding that such individuals or any of them shall have ceased to be so
authorized prior to the authentication and delivery of such Excess Distribution
Certificate or did not hold such offices at the date of authentication and
delivery of such Excess Distribution Certificate.
(b) Authentication. Concurrently with the sale of the Trust Student Loans
to the Trust pursuant to the Depositor Sale Agreement, the Trustee shall cause
the Excess Distribution Certificate to be executed on behalf of the Trust,
authenticated and delivered to or upon the written order of the Depositor,
signed by its chairman of the board, its president or any vice president,
without further action by the Depositor. No Excess Distribution Certificate
shall entitle its holder to any benefit under this Agreement, or shall be valid
for any purpose, unless there shall appear on such Excess Distribution
Certificate a certificate of authentication substantially in the form set forth
in Exhibit A, executed by the Trustee or JPMorgan Chase Bank, as the Trustee's
authenticating agent, by manual signature; such authentication shall constitute
conclusive evidence that such Excess Distribution Certificate shall have been
duly authenticated and delivered hereunder. The Excess Distribution Certificate
shall be dated the date of its authentication. No further Excess Distribution
Certificates shall be issued except pursuant to clause (c) or (d) below.
(c) Registration of Transfer and Exchange. The Excess Distribution
Certificate Registrar shall keep or cause to be kept, at the office or agency
maintained pursuant to clause (f) below, an Excess Distribution Certificate
Register in which, subject to such reasonable regulations as it may prescribe,
the Trustee shall provide for the registration of the Excess Distribution
Certificate and of transfers and exchanges of the Excess Distribution
Certificate as herein provided. JPMorgan Chase Bank shall be the initial Excess
Distribution Certificate Registrar.
Upon surrender for registration of transfer of the Excess Distribution
Certificate at the office or agency maintained pursuant to clause (f) below, the
Trustee shall execute, authenticate and deliver (or shall cause JPMorgan Chase
Bank as its authenticating agent to authenticate and deliver), in the name of
the designated transferee, a new Excess Distribution Certificate dated the date
of authentication by the Trustee or any authenticating agent. At the option of
the holder of the Excess Distribution Certificate, the Excess Distribution
Certificate may be exchanged for another Excess Distribution Certificate upon
surrender of the Excess Distribution Certificate to be exchanged at the office
or agency maintained pursuant to clause (f) below.
An Excess Distribution Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Excess Distribution
Certificate Registrar duly executed by the holder thereof or his attorney duly
authorized in writing, with such signature guaranteed by a member firm of the
New York Stock Exchange or a commercial bank or trust company. An Excess
Distribution Certificate surrendered for registration of transfer or exchange
shall be cancelled and subsequently disposed of by the Excess Distribution
Certificate Registrar in accordance with its customary practice.
No service charge shall be made for any registration of transfer or
exchange of the Excess Distribution Certificate, but the Excess Distribution
Certificate Registrar may require payment of
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a sum sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of the Excess Distribution Certificate.
The preceding provisions of this Section notwithstanding, the Trustee shall
not be required to make and the Excess Distribution Certificate Registrar need
not register transfers or exchanges of the Excess Distribution Certificate for a
period of 15 days preceding any Distribution Date with respect to the Excess
Distribution Certificate.
The Excess Distribution Certificate and any beneficial interest in the
Excess Distribution Certificate may not be acquired by (i) employee benefit
plans (as defined in section 3(3) of ERISA) that are subject to the provisions
of Title I of ERISA, (ii) plans described in section 4975(e)(1) of the Code,
including individual retirement accounts described in Section 408(a) of the Code
or Keogh plans, (iii) Benefit Plans, (iv) any person who is not a United States
person within the meaning of section 7701(a)(3) of the Code, or (v) any
"pass-thru entity" referred to in section 1(h)(10)(D), (E) or (F) of the Code,
the income of which pass-thru entity is includible by any person referred to in
clause (iv) above. By accepting and holding the Excess Distribution Certificate
or an interest therein, the holder thereof shall be deemed to have represented
and warranted that it is not a Benefit Plan or any other person referred to in
Clauses (i) through (v) of the preceding sentence, is not purchasing the Excess
Distribution Certificate on behalf of a Benefit Plan or any other person
referred to in Clauses (i) through (v) of the preceding sentence and is not
using assets of a Plan to purchase the Excess Distribution Certificate and to
have agreed that if the Excess Distribution Certificate is deemed to be a plan
asset, the holder thereof will promptly dispose of the Excess Distribution
Certificate. The provisions of Sections 7.01, 7.03, 7.04, 7.05, 8.01 and 8.03
shall apply to the Indenture Trustee also in its role as Excess Distribution
Certificate Registrar, for so long as the Indenture Trustee shall act as Excess
Distribution Certificate Registrar and, to the extent applicable, to any other
certificate registrar appointed hereunder.
(d) Mutilated, Destroyed, Lost or Stolen Excess Distribution Certificate.
If (i) the mutilated Excess Distribution Certificate shall be surrendered to the
Excess Distribution Certificate Registrar, or if the Excess Distribution
Certificate Registrar shall receive evidence to its satisfaction of the
destruction, loss or theft of the Excess Distribution Certificate, and (ii)
there shall be delivered to the Excess Distribution Certificate Registrar and
the Trustee such security or indemnity as may be required by them to save each
of them and the Trust harmless, then in the absence of notice that such Excess
Distribution Certificate shall have been acquired by a bona fide purchaser, the
Trustee on behalf of the Trust shall execute and the Trustee shall authenticate
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Excess Distribution Certificate, a new Excess Distribution Certificate
of like tenor. In connection with the issuance of any new Excess Distribution
Certificate under this Section, the Excess Distribution Certificate Registrar
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Excess Distribution Certificate issued pursuant to this paragraph shall
constitute conclusive evidence of ownership in the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Excess Distribution
Certificate shall be found at any time.
(e) Persons Deemed Owners. Prior to due presentation of the Excess
Distribution Certificate for registration of transfer, the Trustee and the
Excess Distribution Certificate
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Registrar and any agent of either of them may treat the Person in whose name the
Excess Distribution Certificate shall be registered in the Excess Distribution
Certificate Register as the owner of such Excess Distribution Certificate for
the purpose of receiving distributions thereon and for all other purposes
whatsoever, and neither the Trustee, the Excess Distribution Certificate
Registrar nor any agent thereof shall be bound by any notice to the contrary.
(f) Maintenance of Office or Agency. The Trustee shall maintain in the
Borough of Manhattan, The City of New York, an office or offices or agency or
agencies where the Excess Distribution Certificate may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Trustee in respect of the Excess Distribution Certificate may be served.
(g) Appointment of Excess Distribution Certificate Paying Agent. The
Excess Distribution Certificate Paying Agent shall make distributions to the
holder of the Excess Distribution Certificate from the amounts received from the
Indenture Trustee pursuant to Section 2.07(c)(xvii) and Section 2.08 of the
Administration Agreement and shall report the amounts of such distributions to
the Indenture Trustee (if the Excess Distribution Certificate Paying Agent is
not the Indenture Trustee). Any Excess Distribution Certificate Paying Agent
shall have the revocable power to receive such funds from the Indenture Trustee
for the purpose of making the distributions referred to above. The Trustee may
revoke such power and remove the Excess Distribution Certificate Paying Agent if
the Trustee determines in its sole discretion that the Excess Distribution
Certificate Paying Agent shall have failed to perform its obligations under this
Agreement in any material respect. The Excess Distribution Certificate Paying
Agent shall initially be the Indenture Trustee, and any co-paying agent chosen
by the Trustee and consented to by the Administrator (which consent shall not be
unreasonably withheld). The Indenture Trustee shall be permitted to resign as
Excess Distribution Certificate Paying Agent upon 30 days' written notice to the
Trustee. In the event that the Indenture Trustee shall no longer be the Excess
Distribution Certificate Paying Agent, the Trustee shall appoint a successor to
act as Excess Distribution Certificate Paying Agent (which shall be a bank or
trust company). The Trustee shall cause such successor Excess Distribution
Certificate Paying Agent or any additional Excess Distribution Certificate
Paying Agent appointed by the Trustee to execute and deliver to the Trustee an
instrument in which such successor Excess Distribution Certificate Paying Agent
or additional Excess Distribution Certificate Paying Agent shall agree with the
Trustee that as Excess Distribution Certificate Paying Agent, such successor
Excess Distribution Certificate Paying Agent or additional Excess Distribution
Certificate Paying Agent will hold all sums, if any, held by it for payment to
the holder of the Excess Distribution Certificate in trust for the benefit of
such holder until such sums shall be paid to such holder. The Excess
Distribution Certificate Paying Agent shall return all unclaimed funds to the
Trustee and upon removal of an Excess Distribution Certificate Paying Agent such
Excess Distribution Certificate Paying Agent shall also return all funds in its
possession to the Trustee. The provisions of Sections 7.01, 7.03, 7.04, 7.05,
8.01 and 8.03 shall apply to the Indenture Trustee also in its role as Excess
Distribution Certificate Paying Agent, for so long as the Indenture Trustee
shall act as Excess Distribution Certificate Paying Agent and, to the extent
applicable, to any other paying agent appointed hereunder. Any reference in this
Agreement to the Excess Distribution Certificate Paying Agent shall include any
co-paying agent unless the context requires otherwise.
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(h) Restrictions on Transfer of the Excess Distribution Certificate. (i)
The Excess Distribution Certificate may be transferred to the Depositor or to
any Affiliate of the Depositor, without any requirement to provide any officer's
certificates or legal opinions that would otherwise be required if such proposed
transfer was being made to a Person who is not an Affiliate of the Depositor.
(ii) Except as provided above, the Excess Distribution Certificate
shall not be sold, pledged, transferred or assigned except as provided
below:
A. The Excess Distribution Certificate has not been registered
or qualified under the Securities Act of 1933, as amended (the "Securities
Act") or any state securities law. No transfer, sale, pledge or other
disposition of the Excess Distribution Certificate or any interest therein
shall be made unless such transfer is made pursuant to an effective
registration statement under the Securities Act and effective registration
or qualification under applicable state securities laws, or is made in a
transaction which does not require such registration or qualification. In
the event that a transfer is to be made without registration or
qualification, the Trustee shall require, in order to assure compliance
with such laws, that the prospective transferor and transferee each certify
to the Trustee, the Excess Distribution Certificate Registrar, the
Administrator, and, if it is not the proposed transferor, the Depositor, in
writing, the facts surrounding the transfer. Such certifications shall be
substantially in the forms of Exhibits C and D-1 or D-2 hereto,
respectively. In the event that such a transfer is to be made within two
years from the date of the initial issuance of the Excess Distribution
Certificate pursuant hereto (other than a transfer as to which the proposed
transferee has provided a certificate in the form of Exhibit D-2), the
Trustee in its sole discretion, may require that there shall also be
delivered to the Trustee, the Excess Distribution Certificate Registrar,
the Administrator, and, if it is not the proposed transferor, the
Depositor, at the expense of the transferor, an opinion of counsel that
such transfer may be made pursuant to an exemption from the Securities Act
and such state securities laws. Any such opinion of counsel shall not be an
expense of the Trustee, the Excess Distribution Certificate Registrar, the
Administrator, and, if it is not the proposed transferor, the Depositor.
None of the Depositor, the Administrator or the Trustee is obligated to
register or qualify the Excess Distribution Certificate under the
Securities Act or any other securities law or to take any action not
otherwise required under this Agreement to permit the transfer of the
Excess Distribution Certificate without registration or qualification. Any
such holder of the Excess Distribution Certificate desiring to effect such
transfer shall, and does hereby agree to, indemnify the Trustee, the Excess
Distribution Certificate Registrar, the Administrator, and, if it is not
the proposed transferor, the Depositor, against any liability that may
result if the transfer is not so exempt or is made in accordance with such
applicable federal and state laws.
B. No transfer of the Excess Distribution Certificate will be
registered by the Trustee or the Excess Distribution Certificate Registrar
unless the Trustee, the Certificate Registrar, the Administrator, and, if
it is not the proposed transferor, the Depositor receives a representation
from the proposed transferee of the Excess Distribution Certificate,
substantially in the form of Exhibit D-1 or D-2, as the case may be, that
such transferee is not acquiring the Excess Distribution Certificate
directly or
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indirectly for, on behalf of or with the assets of a Plan. If any proposed
transferee shall become a holder of the Excess Distribution Certificate in
violation of these provisions, then the last preceding permitted transferee
shall be restored, to the extent permitted by law, to all rights as holder
of the Excess Distribution Certificate, retroactive to the date of
registration of such transfer of the Excess Distribution Certificate.
Neither the Trustee nor the Excess Distribution Certificate Registrar shall
have any liability to any person for any registration or transfer of the
Excess Distribution Certificate that is not permitted or for making any
payments due on the Excess Distribution Certificate to the holder or taking
any action with respect to such holder under this Agreement. Any proposed
transferee who becomes a holder of the Excess Distribution Certificate
shall agree to indemnify the Trustee, the Excess Distribution Certificate
Registrar, the Swap Counterparty, the Administrator, if it is not the
proposed transferor, the Cap Counterparty, and, if it is not the proposed
transferor, the Depositor, against any loss, damage or penalty incurred as
a result of the transfer of the Excess Distribution Certificate to such
proposed transferee in violation of such restrictions.
C. The prospective transferee shall be aware that the Excess
Distribution Certificate shall bear legends referring to the restrictions
contained in sub-clauses (A) and (B) above and by its acceptance of the
Excess Distribution Certificate agrees to abide by such restrictions.
D. The prospective transferee shall deliver an opinion of
counsel addressed to the Trustee, the Swap Counterparty, the Administrator,
if it is not the proposed transferor, the Cap Counterparty, and, if it is
not the proposed transferor, the Depositor, to the effect that, (1) as a
matter of federal income tax law, such prospective transferee is permitted
to accept the transfer of the Excess Distribution Certificate, (2) such
transfer or pledge would not jeopardize the tax treatment of the Trust,
(3) such transfer or pledge would not subject the Trust to any entity-level
tax, (4) such transfer or pledge would not jeopardize the status of the
Notes as debt for all purposes, and (5) such pledge or transfer would not
cause the Trust to be treated, for federal income tax purposes, as an
association or a publicly traded partnership taxable as a corporation.
E. No pledge or transfer of the Excess Distribution Certificate
shall be effective unless such purchase or transfer is to a single
beneficial owner who shall be the registered holder of the Excess
Distribution Certificate.
ARTICLE IV
ACTIONS BY TRUSTEE
Section 4.01. Prior Notice to the Holder of the Excess Distribution
Certificate With Respect to Certain Matters. With respect to the following
matters, the Trustee shall not take action unless at least 30 days before the
taking of such action, the Trustee shall have notified the holder of the Excess
Distribution Certificate and each of the Rating Agencies in writing of the
proposed action and the holder shall not have notified the Trustee in writing
prior to the 30th day after such notice is given that it has withheld consent or
provided alternative direction:
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(a) the initiation of any material claim or lawsuit by the Trust (except
claims or lawsuits brought in connection with the collection of the Trust
Student Loans) and the compromise of any material action, claim or lawsuit
brought by or against the Trust (except with respect to the aforementioned
claims or lawsuits for collection of Trust Student Loans);
(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any class of Noteholders is required;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any class of Noteholder is not required and
such amendment materially adversely affects the interest of the holder of the
Excess Distribution Certificate; or
(d) the amendment of the Swap Agreement or an Interest Rate Cap Agreement
in circumstances where the consent of any class of Noteholders is required or in
circumstances where the consent of Noteholders is not required but where such
amendment materially adversely affects the interest of the holder of the Excess
Distribution Certificate.
Section 4.02. Action with Respect to Sale of the Trust Student Loans. The
Trustee shall not have the power, except upon the written direction of the
Depositor and except as expressly provided in the Basic Documents, to sell the
Trust Student Loans after the payment in full of the Notes.
Section 4.03. Action with Respect to Bankruptcy. The Trustee shall not
have the power to commence a voluntary proceeding in bankruptcy relating to the
Trust without the prior approval of the Depositor and the delivery to the
Trustee by the Depositor of a certificate certifying that the Depositor
reasonably believes that the Trust is insolvent.
Section 4.04. Restrictions. Neither the Depositor nor the holder of the
Excess Distribution Certificate shall direct the Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Trustee under this Agreement or any of the other Basic
Documents or would be contrary to Section 2.03 nor shall the Trustee be
permitted to follow any such direction, if given.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Application of Trust Funds.
(a) On each Distribution Date, the Trustee shall distribute to the holder
of the Excess Distribution Certificate any amounts payable in respect of the
Excess Distribution Certificate in accordance with the Administration Agreement.
(b) In the event that any withholding tax is imposed on the Trust's
payment to the holder of the Excess Distribution Certificate, such tax shall
reduce the amount otherwise distributable on the Excess Distribution
Certificate.
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Section 5.02. Method of Payment. Distributions required to be made to the
holder of the Excess Distribution Certificate on any Distribution Date shall be
made to the holder of record on the preceding Record Date either by wire
transfer, in immediately available funds, to the account of such holder at a
bank or other entity having appropriate facilities therefor, if such holder
shall have provided to the Excess Distribution Certificate Registrar appropriate
written instructions signed by two authorized officers, if any, at least five
Business Days prior to such Distribution Date, or, if not, by check mailed to
such holder at the address of such holder appearing in the Excess Distribution
Certificate Register.
Section 5.03. No Segregation of Moneys; No Interest. Subject to Section
5.01, moneys received by the Trustee hereunder need not be segregated in any
manner except to the extent required by law or the Administration Agreement and
may be deposited under such general conditions as may be prescribed by law, and
the Trustee shall not be liable for any interest thereon.
Section 5.04. Reports to the Holder of the Excess Distribution
Certificate, the Internal Revenue Service and Others. The Trustee shall provide
(or cause to be provided) any reports or other information required to be
provided to the holder of the Excess Distribution Certificate pursuant to the
Code, the regulations promulgated thereunder or other applicable law. In
addition, the Trustee shall provide (or cause to be provided) any information
concerning the Excess Distribution Certificate to the Internal Revenue Service
or other taxing authority as required under the Code, the regulations
promulgated thereunder or other applicable law. The Trustee shall be entitled to
hire an independent accounting firm to perform the functions described in this
Section 5.04, the reasonable fees and expenses of which shall be paid by the
Depositor.
Section 5.05. Signature on Returns; Tax Matters Partner.
(a) The Trustee shall sign on behalf of the Trust the tax returns of the
Trust, unless applicable law requires a Certificateholder to sign such
documents, in which case such documents shall be signed by the Depositor or the
then holder of the Excess Distribution Certificate.
(b) The Depositor shall be designated the "tax matters partner" of the
Trust pursuant to Section 6231(a)(7)(A) of the Code and applicable Treasury
Regulations.
ARTICLE VI
AUTHORITY AND DUTIES OF TRUSTEE
Section 6.01. General Authority. The Trustee is authorized and directed to
execute and deliver the Basic Documents to which the Trust is to be a party and
each certificate or other document attached as an exhibit to or contemplated by
the Basic Documents to which the Trust is to be a party, in each case, in such
form as the Depositor shall approve as evidenced conclusively by the Trustee's
execution thereof, and, on behalf of the Trust, to direct the Indenture Trustee
to authenticate and deliver Notes in the aggregate principal amount of
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$1,507,574,000. In addition to the foregoing, the Trustee is authorized to take
all actions required of the Trust pursuant to the Basic Documents. The Trustee
is further authorized from time to time to take such action as the Administrator
directs or instructs with respect to the Basic Documents and is directed to take
such action to the extent that the Administrator is expressly required pursuant
to the Basic Documents to cause the Trustee to act.
Section 6.02. General Duties. It shall be the duty of the Trustee to
discharge (or cause to be discharged) all its responsibilities pursuant to the
terms of this Agreement, the other Basic Documents to which the Trust is a party
and to administer the Trust in the interest of the Noteholders and the holder of
the Excess Distribution Certificate subject to and in accordance with the
provisions of this Agreement and the other Basic Documents. Without limiting the
foregoing, the Trustee shall on behalf of the Trust file and prove any claim or
claims that may exist on behalf of the Trust against the Depositor in connection
with any claims paying procedure as part of an insolvency or a receivership
proceeding involving the Depositor. Notwithstanding the foregoing, the Trustee
shall be deemed to have discharged its duties and responsibilities hereunder and
under the other Basic Documents to the extent the Administrator has agreed in
the Administration Agreement to perform and act or to discharge any duty of the
Trustee hereunder or under any other Basic Document, and the Trustee shall not
be held liable for the default or failure of the Administrator to carry out its
obligations under the Administration Agreement. Except as expressly provided in
the Basic Documents, the 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.
Section 6.03. Action Upon Instruction.
(a) Reserved.
(b) The Trustee shall not be required to take any action hereunder or
under any other Basic Document if the Trustee shall have reasonably determined,
or shall have been advised by counsel, that such action is likely to result in
liability on the part of the Trustee or is contrary to the terms hereof, any
other Basic Document or is otherwise contrary to law.
(c) Whenever the Trustee is unable to determine the appropriate course of
action between alternative courses and actions permitted or required by the
terms of this Agreement or under any other Basic Document, the Trustee shall
promptly give notice (in such form as shall be appropriate under the
circumstances) to the Depositor requiring instruction as to the course of action
to be adopted, and to the extent the Trustee acts in good faith in accordance
with any written instruction of the Depositor received, the Trustee shall not be
liable on account of such action to any Person. If the Trustee shall not have
received appropriate instruction within 10 days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to, take
or refrain from taking such action, not inconsistent with this Agreement, the
other Basic Documents, as it shall deem to be in the best interests of the
Depositor, and shall have no liability to any Person for such action or
inaction.
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(d) In the event that the Trustee is unsure as to the application of any
provision of this Agreement, any other Basic Document or any such provision is
ambiguous as to its application, or is, or appears to be, in conflict with any
other applicable provision, or in the event that this Agreement permits any
determination by the Trustee or is silent or is incomplete as to the course of
action that the Trustee is required to take with respect to a particular set of
facts, the Trustee may give notice (in such form as shall be appropriate under
the circumstances) to the Depositor requesting instruction and, to the extent
that the Trustee acts or refrains from acting in good faith in accordance with
any such instruction received, the Trustee shall not be liable, on account of
such action or inaction, to any Person. If the Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action, not inconsistent with this Agreement or the other Basic
Documents, as it shall deem to be in the best interest of the holder of the
Excess Distribution Certificate, and shall have no liability to any Person for
such action or inaction.
Section 6.04. No Duties Except as Specified in this Agreement or in
Instructions. The Trustee shall not have any duty or obligation to manage, make
any payment with respect to, register, record, sell, service, dispose of or
otherwise deal with the Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Trustee is a party, except as expressly provided by the terms of
this Agreement or in any document or written instruction received by the Trustee
pursuant to Section 6.03; and no implied duties or obligations shall be read
into this Agreement or any other Basic Document against the Trustee. The Trustee
shall have no responsibility for filing any financing or continuation statement
in any public office at any time or to otherwise perfect or maintain the
perfection of any security interest or lien granted to it hereunder or to
prepare or file any Commission filing for the Trust or to record this Agreement
or any other Basic Document. The Trustee nevertheless agrees that it will, at
its own cost and expense, promptly take all action as may be necessary to
discharge any Liens on any part of the Trust Estate that result from actions by,
or claims against, Chase Manhattan Bank USA, National Association in its
individual capacity or as the Trustee that are not related to the ownership or
the administration of the Trust Estate.
Section 6.05. No Action Except Under Specified Documents or Instructions.
The Trustee shall not otherwise deal with any part of the Trust Estate except
(i) in accordance with the powers granted to and the authority conferred upon
the Trustee pursuant to this Agreement, (ii) in accordance with the other Basic
Documents to which it is a party and (iii) in accordance with any document or
instruction delivered to the Trustee pursuant to Section 6.03.
Section 6.06. Restrictions. The Trustee shall not take any action (a) that
is inconsistent with the purposes of the Trust set forth in Section 2.03 or (b)
that, to the actual knowledge of the Trustee, would result in the Trust's
becoming taxable as a corporation for Federal income tax purposes. Neither the
Depositor nor the holder of the Excess Distribution Certificate shall direct the
Trustee to take action that would violate the provisions of this Section.
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ARTICLE VII
CONCERNING THE TRUSTEE
Section 7.01. Acceptance of Trusts and Duties. The Trustee accepts the
trusts hereby created and agrees to perform its duties hereunder with respect to
such trusts but only upon the terms of this Agreement. The Trustee also agrees
to disburse all moneys actually received by it constituting part of the Trust
Estate upon the terms of this Agreement and the other Basic Documents. The
Trustee shall not be answerable or accountable hereunder or under any other
Basic Document under any circumstances, except (i) for its own willful
misconduct or negligence or (ii) in the case of the inaccuracy of any
representation or warranty contained in Section 7.03 expressly made by the
Trustee. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
(a) the Trustee shall not be liable for any error of judgment made by a
responsible officer of the Trustee;
(b) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in accordance with the direction or instructions of
the Administrator, the Depositor or the holder of the Excess Distribution
Certificate;
(c) no provision of this Agreement or any other Basic Document shall
require the Trustee to expend or risk funds or otherwise incur any financial
liability in the performance of any of its rights or powers hereunder or under
any other Basic Document, if the Trustee shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Trustee be liable for indebtedness
evidenced by or arising under any of the Basic Documents, including the
principal of and interest on the Notes;
(e) the Trustee shall not be responsible for or in respect of the validity
or sufficiency of this Agreement or for the due execution hereof by the
Depositor or for the form, character, genuineness, sufficiency, value or
validity of any of the Trust Estate or for or in respect of the validity or
sufficiency of the Basic Documents, other than the certificate of authentication
on the Excess Distribution Certificate, and the Trustee shall in no event assume
or incur any liability, duty, or obligation to any Noteholder or the holder of
the Excess Distribution Certificate, other than as expressly provided for herein
and in the other Basic Documents;
(f) the Trustee shall not be liable for the action or inaction, default or
misconduct of the Administrator, the Depositor, the Indenture Trustee, the
Servicer or the Swap Counterparties under any of the other Basic Documents or
otherwise and the Trustee shall have no obligation or liability to perform the
obligations of the Trust under this Agreement or the other Basic Documents that
are required to be performed by the Administrator under the Administration
Agreement, the Indenture Trustee under the Indenture, the Servicer under the
Servicing Agreement, the Swap Counterparty under the Swap Agreement or a Cap
Counterparty under its related Interest Rate Cap Agreement; and
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(g) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Agreement, or to institute, conduct or defend any
litigation under this Agreement or otherwise or in relation to this Agreement,
any other Basic Document, at the request, order or direction of the Depositor or
holder of the Excess Distribution Certificate, unless the Depositor or such
holder has offered to the Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities that may be incurred by the Trustee
therein or thereby. The right of the Trustee to perform any discretionary act
enumerated in this Agreement or in any other Basic Document shall not be
construed as a duty, and the Trustee shall not be answerable for other than its
negligence or willful misconduct in the performance of any such act.
Section 7.02. Reserved.
Section 7.03. Representations and Warranties. The Trustee hereby
represents and warrants to the Depositor, for the benefit of the Noteholders and
the holder of the Excess Distribution Certificate, that:
(a) It is a national banking association duly organized and validly
existing in good standing under the laws of the United States and has its
principal office located within the State of Delaware. It has all requisite
banking power and authority to execute, deliver and perform its obligations
under this Agreement.
(b) It has taken all action necessary to authorize the execution and
delivery by it of this Agreement, and this Agreement will be executed and
delivered by one of its officers who is duly authorized to execute and deliver
this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement, nor
the consummation by it of the transactions contemplated hereby nor compliance by
it with any of the terms or provisions hereof will contravene any Federal or
Delaware state law, governmental rule or regulation governing the banking or
trust powers of the Trustee or any judgment or order binding on it, or
constitute any default under its charter documents or by-laws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or by which
any of its properties may be bound.
Section 7.04. Reliance; Advice of Counsel.
(a) The Trustee shall incur no liability to anyone in acting upon any
signature, instrument, direction, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper believed by it to
be genuine and believed by it to be signed by the proper party or parties. The
Trustee may accept a certified copy of a resolution of the board of directors or
other governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full force
and effect. As to any fact or matter the method of the determination of which is
not specifically prescribed herein, the Trustee may for all purposes hereof rely
on a certificate, signed by the president or any vice president or by the
treasurer or other authorized officers of the relevant party, as to such fact or
matter and such certificate shall constitute full protection to the Trustee for
any action taken or omitted to be taken by it in good faith in reliance thereon.
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(b) In the exercise or administration of the trusts hereunder and in the
performance of its duties and obligations under this Agreement or the other
Basic Documents, the Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them and the Trustee
shall not be liable for the conduct or misconduct of such agents or attorneys if
such agents or attorneys shall have been selected by the Trustee with reasonable
care, and (ii) may consult with counsel and accountants to be selected with
reasonable care and employed by it. The Trustee shall not be liable for anything
done, suffered or omitted in good faith by it in accordance with the written
opinion or advice of any such counsel or accountants and not contrary to this
Agreement or any other Basic Document.
Section 7.05. Not Acting in Individual Capacity. Except as provided in
this Article VII, in accepting the trusts hereby created Chase Manhattan Bank
USA, National Association acts solely as Trustee hereunder and not in its
individual capacity and all Persons having any claim against the Trustee by
reason of the transactions contemplated by this Agreement or any other Basic
Document shall look only to the Trust Estate for payment or satisfaction
thereof.
Section 7.06. Trustee Not Liable for Excess Distribution Certificate or
Trust Student Loans. The recitals contained herein and in the Excess
Distribution Certificate (other than the signature of and authentication by the
Trustee on the Excess Distribution Certificate) shall be taken as the statements
of the Depositor and the Trustee assumes no responsibility for the correctness
thereof. The Trustee makes no representations as to the validity or sufficiency
of this Agreement, the Excess Distribution Certificate, or any other Basic
Document (other than the signature of and authentication by the Trustee on the
Excess Distribution Certificate), or the Notes, or of any Trust Student Loan or
related documents. The Trustee shall at no time have any responsibility for or
with respect to the legality, validity and enforceability of any Trust Student
Loan, or for or with respect to the sufficiency of the Trust Estate or its
ability to generate the payments to be distributed to the holder of the Excess
Distribution Certificate under this Agreement or the Noteholders under the
Indenture, including the existence and contents of any computer or other record
of any Trust Student Loan; the validity of the assignment of any Trust Student
Loan to the Trustee on behalf of the Trust; the completeness of any Trust
Student Loan; the performance or enforcement (except as expressly set forth in
any Basic Document) of any Trust Student Loan; the compliance by the Depositor
or the Servicer with any warranty or representation made under any Basic
Document or in any related document or the accuracy of any such warranty or
representation or any action or inaction of the Administrator, the Indenture
Trustee or the Servicer or any subservicer taken in the name of the Trustee.
Section 7.07. Trustee May Own Notes. The Trustee in its individual or any
other capacity may become the owner or pledgee of Notes and may deal with the
Depositor, the Administrator, the Indenture Trustee, the Servicer or the Swap
Counterparties in banking transactions with the same rights as if it were owner
of the Notes and not acting as Trustee.
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ARTICLE VIII
COMPENSATION AND INDEMNITY OF TRUSTEE
Section 8.01. Trustee's Fees and Expenses. The Trustee shall receive as
compensation for its services hereunder such fees as have been separately agreed
upon before the date hereof between the Depositor and the Trustee, and the
Trustee shall be entitled to be reimbursed by the Depositor, to the extent
provided in such separate agreement, for its other reasonable expenses
(including the reasonable fees and expenses of counsel and independent
accountants) hereunder.
Section 8.02. Payments to the Trustee. Any amounts paid to the Trustee
pursuant to Section 8.01 hereof or pursuant to Section 9.01 of the Depositor
Sale Agreement, Section 4.02 of the Administration Agreement or Section 4.02 of
the Servicing Agreement shall be deemed not to be a part of the Trust Estate
immediately after such payment.
Section 8.03. Indemnity. The Depositor shall cause the Administrator to
indemnify the Trustee in its individual capacity and any of its officer,
directors, employees and agents as and to the extent provided for in Section
4.02 of the Administration Agreement.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement.
(a) This Agreement (other than Article VIII) and the Trust shall terminate
and be of no further force or effect upon the final distribution by the Trustee
of all moneys or other property or proceeds of the Trust Estate in accordance
with the terms of the Indenture, the Administration Agreement and Article V
hereof and (2) the filing of the certificate of cancellation by the Trustee
pursuant to Section 9.01(b) below of this Agreement. The bankruptcy,
liquidation, dissolution, death or incapacity of the holder of the Excess
Distribution Certificate, shall not (x) operate to terminate this Agreement or
the Trust, nor (y) entitle such holder's legal representatives or heirs to claim
an accounting or to take any action or proceeding in any court for a partition
or winding up of all or any part of the Trust or Trust Estate nor (z) otherwise
affect the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 9.01(a), none of the Depositor, any
Noteholder or the holder of the Excess Distribution Certificate shall be
entitled to revoke or terminate the Trust.
Upon final distribution of any funds remaining in the Trust, the Trustee
shall file a certificate of cancellation of the Trust's certificate of trust
pursuant to Section 3810(c) of the Delaware Statutory Trust Act.
ARTICLE X
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SUCCESSOR TRUSTEES AND
ADDITIONAL TRUSTEES
Section 10.01. Eligibility Requirements for Trustee. The Trustee shall at
all times (i) be an entity having its principal place of business in the State
of Delaware and otherwise complying with Section 3807 of the Delaware Statutory
Trust Act, (ii) be authorized to exercise statutory trust powers, (iii) have a
combined capital and surplus of at least $50,000,000 and subject to supervision
or examination by Federal or state authorities and (iv) have (or have a parent
which has) a rating in respect of its long-term senior unsecured debt of at
least BBB- (or the equivalent) by each of the Rating Agencies (or which, if the
long-term senior unsecured debt of such entity is not rated by any Rating
Agency, shall have provided to the Indenture Trustee written confirmation from
such Rating Agency that the appointment of such entity to serve as Trustee will
not result in and of itself in a reduction or withdrawal of the then current
rating of any of the Notes). If the Trustee shall publish reports of condition
at least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this Section, the
combined capital and surplus of the Trustee shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign
immediately in the manner and with the effect specified in Section 10.02.
Section 10.02. Resignation or Removal of Trustee. The Trustee may at any
time resign and be discharged from the trusts hereby created by giving written
notice thereof to the Administrator. Upon receiving such notice of resignation,
the Administrator shall promptly appoint a successor Trustee meeting the
eligibility requirements of Section 10.01 by written instrument, in duplicate,
one copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor Trustee. If no successor Trustee shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee; provided, however, that
such right to appoint or to petition for the appointment of any such successor
shall in no event relieve the resigning Trustee from any obligations otherwise
imposed on it under the Basic Documents until such successor has in fact assumed
such appointment.
If at any time the Trustee shall cease to be or shall be likely to cease to
be eligible in accordance with the provisions of Section 10.01 and shall fail to
resign after written request therefor by the Administrator, or if at any time an
Insolvency Event with respect to the Trustee shall have occurred and be
continuing, then the Administrator may remove the Trustee. If the Administrator
shall remove the Trustee under the authority of the immediately preceding
sentence, the Administrator shall promptly appoint a successor Trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the outgoing Trustee so removed and one copy to the successor
Trustee and payment of all fees owed to the outgoing Trustee.
Any resignation or removal of the Trustee and appointment of a successor
Trustee pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by the successor Trustee pursuant to
Section 10.03, payment of all fees and expenses owed to the outgoing Trustee and
the filing of a certificate of amendment to the Trust's certificate of trust
pursuant to Section 3810(b) of the Delaware Statutory Trust Act. The
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Administrator shall provide notice of such resignation or removal of the Trustee
and to each of the Rating Agencies.
Section 10.03. Successor Trustee. Any successor Trustee appointed pursuant
to Section 10.02 shall execute, acknowledge and deliver to the Administrator and
to its predecessor Trustee an instrument accepting such appointment under this
Agreement, and thereupon the resignation or removal of the predecessor Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor under this Agreement, with like effect as if
originally named as Trustee. The predecessor Trustee shall upon payment of its
fees and expenses deliver to the successor Trustee all documents, statements,
moneys and properties held by it under this Agreement; and the Administrator and
the predecessor Trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for fully and certainly vesting and
confirming in the successor Trustee all such rights, powers, duties and
obligations.
No successor Trustee shall accept such appointment as provided in this
Section unless at the time of such acceptance such successor Trustee shall be
eligible pursuant to Section 10.01.
Upon acceptance of appointment by a successor Trustee pursuant to this
Section, the Administrator shall mail notice of the successor of such Trustee to
the holder of the Excess Distribution Certificate, the Indenture Trustee, the
Noteholders, the Rating Agencies and the Swap Counterparties. If the
Administrator shall fail to mail such notice within 10 days after acceptance of
appointment by the successor Trustee, the successor Trustee shall cause such
notice to be mailed at the expense of the Administrator.
Section 10.04. Merger or Consolidation of Trustee. Any corporation into
which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Trustee, shall, without the execution or filing of any instrument or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding, be the successor of the Trustee hereunder; provided, that such
corporation shall be eligible pursuant to Section 10.01; and provided, further,
that the Trustee shall mail notice of such merger or consolidation to the Rating
Agencies not less than 15 days prior to the effective date thereof.
Section 10.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust may at the time be located, the Administrator and the Trustee
acting jointly shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Trustee, meeting the
eligibility requirements of clauses (i) through (iii) of Section 10.01, to act
as co-trustee, jointly with the Trustee, or separate trustee or separate
trustees, of all or any part of the Trust Estate, and to vest in such Person, in
such capacity, such title to the Trust Estate, or any part thereof, and, subject
to the other provisions of this Section, such powers, duties, obligations,
rights and trusts as the Administrator and the Trustee may consider necessary or
desirable. If the Administrator shall not have joined in such appointment within
15 days after the receipt by it of a request so to do,
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the Trustee alone shall have the power to make such appointment. No co-trustee
or separate trustee under this Agreement shall be required to meet the terms of
eligibility as a successor trustee pursuant to clauses (iv), (v) and (vi) of
Section 10.01 and no notice of the appointment of any co-trustee or separate
trustee shall be required pursuant to Section 10.03.
Each separate trustee and co-trustee shall, to the extent permitted by law,
be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties, and obligations conferred or imposed
upon the Trustee shall be conferred upon and exercised or performed by the
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 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 Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties, and obligations (including the holding of title to the
Trust or any portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-trustee, solely at the
direction of the Trustee;
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
(iii) the Administrator and the Trustee acting jointly may at any time
accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be deemed
to have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Each
such instrument shall be filed with the Trustee and a copy thereof given to the
Administrator.
Any separate trustee or co-trustee may at any time appoint the Trustee as
its agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Agreement on
its behalf and in its name. If any separate trustee or co-trustee shall die,
become incapable of acting, resign or be removed, all its estates, properties,
rights, remedies and trusts shall vest in and be exercised by the Trustee, to
the extent permitted by law, without the appointment of a new or successor
trustee.
20
ARTICLE XI
MISCELLANEOUS
Section 11.01. Supplements and Amendments. This Agreement may be amended by
the Depositor and the Trustee, with prior written notice to the Rating Agencies,
without the consent of any of the Noteholders or the Swap Counterparties, to
cure any ambiguity, to correct or supplement any provisions in this Agreement or
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions in this Agreement or modifying in any manner
the rights of the Noteholders or the Swap Counterparties; provided, however,
that such action shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any Noteholder or the Swap
Counterparties.
This Agreement may also be amended from time to time by the Depositor and
the Trustee, with prior written notice to the Rating Agencies, with the consent
of Noteholders evidencing not less than a majority of the Outstanding Amount of
the Notes, for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Agreement or modifying in any
manner the rights of the Noteholders; provided, however, that no such amendment
shall (a) increase or reduce in any manner the amount of, or accelerate or delay
the timing of, collections of payments on Trust Student Loans or distributions
that shall be required to be made for the benefit of the Noteholders or (b)
reduce the aforesaid percentage of the Outstanding Amount of the Notes required
to consent to any such amendment, without the consent of all the outstanding
Noteholders.
This Agreement may also be amended from time to time by the Depositor and
the Trustee, with prior written notice to the Rating Agencies, with the consent
of the Swap Counterparty or the Cap Counterparty for the purpose of adding any
provisions to, changing in any manner, or eliminating any of the provisions of
this Agreement or modifying in any manner the rights of the Swap Counterparty or
the Cap Counterparty, respectively, if in the Opinion of Counsel such amendment
materially adversely affects the interests of the Swap Counterparty or the Cap
Counterparties, respectively.
Promptly after the execution of any such amendment or consent, the Trustee
shall furnish written notification of the substance of such amendment or consent
to the holder of the Excess Distribution Certificate, the Indenture Trustee, the
Swap Counterparties and each of the Rating Agencies.
It shall not be necessary for the consent of the Noteholders, the Indenture
Trustee, or the Swap Counterparties pursuant to this Section to approve the
particular form of any proposed amendment or consent, but it shall be sufficient
if such consent shall approve the substance thereof. The manner of obtaining
such consents (and any other consents of provided for in this Agreement or in
any other Basic Document) and of evidencing the authorization of the execution
thereof shall be subject to such reasonable requirements as the Trustee may
prescribe.
Prior to the execution of any amendment to this Agreement, the Trustee
shall be entitled to receive and rely upon an Opinion of Counsel stating that
the execution of such amendment is authorized or permitted by this Agreement.
The Trustee may, but shall not be obligated to, enter
21
into any such amendment which affects the Trustee's own rights, duties or
immunities under this Agreement or otherwise.
Section 11.02. No Legal Title to Trust Estate in Holder of the Excess
Distribution Certificate. The holder of the Excess Distribution Certificate
shall not have legal title to any part of the Trust Estate. The holder of the
Excess Distribution Certificate shall be entitled to receive distributions with
respect to its undivided beneficial ownership interest therein only in
accordance with Section 3.03 of this Agreement. No transfer, by operation of law
or otherwise, of any right, title, or interest of the holder of the Excess
Distribution Certificate to and in its beneficial ownership interest in the
Trust Estate shall operate to terminate this Agreement or the trusts hereunder
or entitle any transferee to an accounting or to the transfer to it of legal
title to any part of the Trust Estate.
Section 11.03. Limitations on Rights of Others. Except for Section 2.07,
the provisions of this Agreement are solely for the benefit of the Trustee, the
Depositor, the holder of the Excess Distribution Certificate, the Administrator
and, to the extent expressly provided herein, the Indenture Trustee, the
Noteholders and the Swap Counterparties, and nothing in this Agreement (other
than Section 2.07), whether express or implied, shall be construed to give to
any other Person any legal or equitable right, remedy or claim in the Trust
Estate or under or in respect of this Agreement or any covenants, conditions or
provisions contained herein.
Section 11.04. Notices. Unless otherwise expressly specified or permitted
by the terms hereof, all notices shall be in writing and shall be deemed given
upon receipt by the intended recipient or three Business Days after mailing if
mailed by certified mail, postage prepaid (except that notice to the Trustee
shall be deemed given only upon actual receipt by the Trustee), if to the
Trustee, addressed to its Corporate Trust Office; if to the Depositor, addressed
to SLM Education Credit Funding LLC, 20 Hemingway Drive, East Providence, Rhode
Island 02915, or, as to each party, at such other address as shall be designated
by such party in a written notice to each other party.
Section 11.05. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 11.06. Separate Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 11.07. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon to the benefit of, the Depositor and its
successors, the Trustee and its successors, each holder of the Excess
Distribution Certificate and its successors and permitted assigns, all as herein
provided. Any request, notice, direction, consent, waiver or other instrument or
action by a Noteholder or the holder of the Excess Distribution Certificate
shall bind the successors and assigns of such holder.
22
Section 11.08. No Petition.
(a) The Depositor will not at any time institute against the Trust any
bankruptcy proceedings under any United States Federal or state bankruptcy or
similar law in connection with any obligations relating to the Excess
Distribution Certificate, the Notes, this Agreement or any of the other Basic
Documents.
(b) The Trustee (not in its individual capacity but solely as Trustee), by
entering into this Agreement, the holder of the Excess Distribution Certificate
by accepting the Excess Distribution Certificate, and the Indenture Trustee and
each Noteholder by accepting the benefits of this Agreement, hereby covenant and
agree that they will not at any time institute against the Depositor or the
Trust, or join in any institution against the Depositor or the Trust of, any
bankruptcy, reorganization, arrangement, insolvency, receivership or liquidation
proceedings, or other proceedings under any United States Federal or state
bankruptcy or similar law in connection with any obligations relating to the
Notes, this Agreement or any of the other Basic Documents.
Section 11.09. No Recourse. Each holder of the Excess Distribution
Certificate by accepting the Excess Distribution Certificate acknowledges that
such holder's certificate represents beneficial interests in the Trust only and
do not represent interests in or obligations of the Depositor, the Servicer, the
Administrator, the Trustee, the Indenture Trustee, the Swap Counterparties or
any Affiliate thereof or any officer, director or employee of any thereof and no
recourse may be had against such parties or their assets, except as may be
expressly set forth or contemplated in this Agreement, the Excess Distribution
Certificate or the other Basic Documents.
Section 11.10. Headings. The headings of the various Articles and Sections
herein are for convenience of reference only and shall not define or limit any
of the terms or provisions hereof.
Section 11.11. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without
reference to its conflict of law provisions, and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such
laws.
23
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Trustee
By: /s/ JOHN J. CASHIN
Name: John J. Cashin
Title: Vice President
SLM EDUCATION CREDIT FUNDING LLC,
as Depositor
By: /s/ MARK L. HELEEN
Name: Mark L. Heleen
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
24
EXHIBIT A
TO THE TRUST AGREEMENT
[FORM OF EXCESS DISTRIBUTION CERTIFICATE]
SEE REVERSE FOR CERTAIN DEFINITIONS
[PLEASE SEE ATTACHED]
Exhibit A-1
EXHIBIT B
FORM OF
CERTIFICATE OF TRUST
OF
SLM PRIVATE CREDIT STUDENT LOAN
TRUST 2004-B
This Certificate of Trust of SLM PRIVATE CREDIT STUDENT LOAN TRUST 2004-B
(the "Trust") is being duly executed and filed on behalf of the Trust by the
undersigned, as trustee, to form a statutory trust under the Delaware Statutory
Trust Act (12 Del. C. Section 3801 et seq.) (the "Act").
1. Name. The name of the statutory trust formed by this Certificate of
Trust is SLM PRIVATE CREDIT STUDENT LOAN TRUST 2004-B.
2. Delaware Trustee. The name and business address of the trustee of the
Trust in the State of Delaware are the Chase Manhattan Bank USA, National
Association, c/o JPMorgan Chase Bank, 500 Stanton Christiana Road, Christiana
Center/OPS4/3/rd/ Floor, Newark, Delaware 19713. Attn: Institutional Trust
Services.
3. Effective Date. This Certificate of Trust shall be effective upon
filing.
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate of
Trust in accordance with Section 3811(a)(1) of the Act.
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, not in its
individual capacity but solely as
Trustee
By:
------------------------------------
Name:
Title:
Exhibit B-1
EXHIBIT C
[FORM OF TRANSFEROR LETTER]
[Date]
Sallie Mae, Inc.
as Administrator
11600 Sallie Mae Drive
Reston, Virginia 20193
Chase Manhattan Bank USA, National Association
as Trustee and Excess Distribution Certificate Registrar
Christiana Center/OPS4
500 Stanton Christiana Road
Newark, Delaware 19713
Re: SLM Private Credit Student Loan Trust 2004-B,
Excess Distribution Certificate (the "Certificate")
---------------------------------------------------
Ladies and Gentlemen:
In connection with our disposition of the above Certificate, we certify
that (a) we understand that the Certificate has not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), and is being disposed
by us in a transaction that is exempt from the registration requirements of the
Securities Act, and (b) we have not offered or sold the Certificate to, or
solicited offers to buy the Certificate from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner that
would be deemed, or taken any other action would result in, a violation of
Section 5 of the Securities Act.
Very truly yours,
- ----------------------------------------
[Print Name of Transferor]
By:
-------------------------------------
Authorized Officer
Exhibit C-1
EXHIBIT D-1
[FORM OF TRANSFEREE LETTER (NON-RULE 144A)]
[Date]
Sallie Mae, Inc.
as Administrator
11600 Sallie Mae Drive
Reston, Virginia 20193
Chase Manhattan Bank USA, National Association
as Trustee and Excess Distribution Certificate Registrar
Christiana Center/OPS4
500 Stanton Christiana Road
Newark, Delaware 19713
Re: SLM Private Credit Student Loan Trust 2004-B,
Excess Distribution Certificate (the "Certificate")
---------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificate, we certify
that (a) we understand that the Certificate is not being registered under the
Securities Act of 1933, as amended (the "Securities Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Securities Act and any such laws, (b)
we are an institutional "accredited investor," as defined in Rule 501 (a) (1),
(2), (3) or (7) of Regulation D under the Securities Act or an entity in which
all of the equity owners come within such paragraphs, and have such knowledge
and experience in financial and business matters that we are capable of
evaluating the merits and risks of investments in the Certificate, (c) we have
had the opportunity to ask questions of and receive answers from the Depositor
concerning the purchase of the Certificate and all matters relating thereto or
any additional information deemed necessary to our decision to purchase the
Certificate, (d) we are not acquiring the Certificate for, on behalf of or with
the assets of, an employee benefit plan or other retirement arrangement (a
"Plan") which is subject to Title I of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), and/or Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code"), (e) we are acquiring the Certificate for
investment for our own account and not with a view to any distribution of the
Certificate (but without prejudice to our right at all times to sell or
otherwise dispose of the Certificate in accordance with clause (g) below), (f)
we have not offered or sold the Certificate to, or solicited offers to buy the
Certificate from, any person, or otherwise approached or negotiated with any
person with respect thereto, or taken any other action which would result in a
violation of Section 5 of the Securities Act, and (g) we will not sell, transfer
or otherwise dispose of the Certificate unless (1) such sale, transfer or other
disposition is made pursuant to an effective registration statement under the
Securities Act or is exempt from such registration requirements, and if
requested, we will at our expense provide an opinion of counsel satisfactory to
the addressees of this Letter that such sale, transfer
Exhibit D-1-1
or other disposition may be made pursuant to an exemption from the Securities
Act, (2) the purchaser or transferee of such Certificate has executed and
delivered to you a certificate to substantially the same effect as this
certificate and (3) the purchaser or transferee has otherwise complied with any
conditions for transfer set forth in the Trust Agreement relating to the
Certificate.
Very truly yours,
----------------------------------------
[Print Name of Transferee]
By:
-------------------------------------
Authorized Officer
Exhibit D-1-2
EXHIBIT D-2
[FORM OF TRANSFEREE LETTER (RULE 144A)]
[Date]
Sallie Mae, Inc.
as Administrator
11600 Sallie Mae Drive
Reston, Virginia 20193
Chase Manhattan Bank USA, National Association
as Trustee and Excess Distribution Certificate Registrar
Christiana Center/OPS4
500 Stanton Christiana Road
Newark, Delaware 19713
Re: SLM Private Credit Student Loan Trust 2004-B,
Excess Distribution Certificate (the "Certificate")
---------------------------------------------------
Ladies and Gentlemen:
In connection with our acquisition of the above Certificate, we certify
that (a) we understand that the Certificate is not being registered under the
Securities Act of 1933, as amended (the "Securities Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Securities Act and any such laws, (b)
we have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificate, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificate and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificate, (d) we are not acquiring the Certificate
for, on behalf of or with the assets of, an employee benefit plan or other
retirement arrangement (a "Plan") which is subject to Title I of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and/or Section
4975 of the Internal Revenue Code of 1986, as amended (the "Code"), (e) we have
not, nor has anyone acting on our behalf offered, transferred, pledged, sold or
otherwise disposed of the Certificate, any interest in the Certificate or any
other similar security to, or solicited any offer to buy or accept a transfer,
pledge or other disposition of the Certificate, any interest in the Certificate
or any other similar security from, or otherwise approached or negotiated with
respect to the Certificate, any interest in the Certificate or any other similar
security with, any person in any manner, or made any general solicitation by
means of general advertising or in any other manner, or taken any other action,
that would constitute a distribution of the Certificate under the Securities Act
or that would render the disposition of the Certificate a violation of Section 5
of the Securities Act or require registration pursuant thereto, nor will act,
nor has authorized or will authorize any person to act, in such manner with
respect to the Certificate, (f) we are a "qualified institutional buyer" as that
term is defined in Rule 144A under the Securities Act ("Rule 144A") and have
completed either of the forms of certification to
Exhibit D-2-1
that effect attached hereto as Annex 1 or Annex 2. We are aware that the sale to
us is being made in reliance on Rule 144A. We are acquiring the Certificate for
our own account or for resale pursuant to Rule 144A and further understand that
the Certificate may be resold, pledged or transferred only (1) to a person
reasonably believed to be a qualified institutional buyer that purchases for its
own account or for the account of a qualified institutional buyer to whom notice
is given that the resale, pledge or transfer is being made in reliance on Rule
144A, or (ii) pursuant to another exemption from registration under the
Securities Act.
Very truly yours,
----------------------------------------
[Print Name of Transferee]
By:
-------------------------------------
Authorized Officer
Exhibit D-2-2
ANNEX 1
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Letter to which this certification relates
with respect to the Certificate described therein:
1. As indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because (i) the Buyer
owned and/or invested on a discretionary basis $____________ /1/ in
securities (except for the excluded securities referred to below) as
of the end of the Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A) and (ii) the Buyer satisfies
the criteria in the category marked below.
-- Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501 (c) (3) of the
Internal Revenue Code of 1986, as amended.
-- Bank. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District
of Columbia, the business of which is substantially confined to
banking and is supervised by the State or territorial banking
commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
-- Savings and Loan. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision
over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto.
- ----------
/1/ Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own
and/or invest on a discretionary basis at least $10,000,000 in securities.
Annex 1-1
-- Broker-dealer. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
-- Insurance Company. The Buyer is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State,
territory or the District of Columbia.
-- State or Local Plan. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any agency
or instrumentality of the State or its political subdivisions,
for the benefit of its employees.
-- ERISA Plan. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act
of 1974.
-- Investment Advisor. The Buyer is an investment advisor registered
under the Investment Advisors Act of 1940.
-- Small Business Investment Company. The Buyer is a small business
investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958.
-- Business Development Company. The Buyer is a business development
company as defined in Section 202(a)(22) of the Investment
Advisors Act of 1940.
-- Qualified Institutional Buyers. The Buyer owned and/or invested
on a discretionary basis less than $100,000,000, but it is an
entity in which all of the equity owners are qualified
institutional buyers.
3. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if
the Buyer is a dealer, (iii) securities issued or guaranteed by the
U.S. or any instrumentality thereof, (iv) bank deposit notes and
certificates of deposit, (v) loan participations, (vi) repurchase
agreements, (vii) securities owned but subject to a repurchase
agreement and (viii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer used
the cost of such securities to the Buyer and did not include any of
the securities referred to in the preceding paragraph, except (i)
where the Buyer reports its securities holdings in its financial
statements on the basis of their market value, and (ii) no current
information with respect to the cost of those securities has been
published. If clause (ii) in the preceding sentence applies, the
securities may be valued at market. Further, in determining such
aggregate amount, the Buyer may have included securities owned by
subsidiaries of the Buyer, but only if such
Annex 1-2
subsidiaries are consolidated with the Buyer in its financial
statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed
under the Buyer's direction. However, such securities were not
included if the Buyer is a majority-owned, consolidated subsidiary of
another enterprise and the Buyer is not itself a reporting company
under the Securities Exchange Act of 1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the
Certificate are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer may be in reliance
on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer will
notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice
is given, the Buyer's purchase of the Certificate will constitute a
reaffirmation of this certification as of the date of such purchase.
In addition, if the Buyer is a bank or savings and loan is provided
above, the Buyer agrees that it will furnish to such parties updated
annual financial statements promptly after they become available.
- ----------------------------------------
[Print Name of Transferee]
By:
-------------------------------------
Name:
Title:
Date:
-----------------------------------
Annex 1-3
ANNEX 2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the parties
listed in the Rule 144A Transferee Letter to which this certification relates
with respect to the Certificate described therein:
1. As indicated below, the undersigned is the President, Chief Financial
Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A
under the Securities Act of 1933, as amended ("Rule 144A") because
Buyer is part of a Family of Investment Companies (as defined below),
is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer
is an investment company registered under the Investment Company Act
of 1940, as amended and (ii) as marked below, the Buyer alone, or the
Buyer's Family of Investment Companies, owned at least $100,000,000 in
securities (other than the excluded securities referred to below) as
of the end of the Buyer's most recent fiscal year. For purposes of
determining the amount of securities owned by the Buyer or the Buyer's
Family of Investment Companies, the cost of such securities was used,
except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements
on the basis of their market value, and (ii) no current information
with respect to the cost of those securities has been published. If
clause (ii) in the preceding sentence applies, the securities may be
valued at market.
-- The Buyer owned $______________ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
-- The Buyer is part of a Family of Investment Companies which owned
in the aggregate $_____________ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
3. The term "Family of Investment Companies" as used herein means two or
more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or
because one investment adviser is a majority owned subsidiary of the
other).
Annex 2-1
4. The term "securities" as used herein does not include (i) securities
of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or
guaranteed by the U.S. or any instrumentality thereof, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations,
(v) repurchase agreements, (vi) securities owned but subject to a
repurchase agreement and (vii) currency, interest rate and commodity
swaps.
5. The Buyer is familiar with Rule 144A and understands that the parties
listed in the Rule 144A Transferee Letter to which this certification
relates are relying and will continue to rely on the statements made
herein because one or more sales to the Buyer will be in reliance on
Rule 144A. In addition, the Buyer will only purchase for the Buyer's
own account.
6. Until the date of purchase of the Certificate, the undersigned will
notify the parties listed in the Rule 144A Transferee Letter to which
this certification relates of any changes in the information and
conclusions herein. Until such notice is given, the Buyer's purchase
of the Certificate will constitute a reaffirmation of this
certification by the undersigned as of the date of such purchase.
----------------------------------------
Print Name of Buyer or Adviser
By:
-------------------------------------
Name:
Title:
[IF AN ADVISER:]
----------------------------------------
Print Name of Buyer
Date:
-----------------------------------
Annex 2-2