EXHIBIT 4.1
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INDENTURE OF TRUST
by and among
NELNET EDUCATION LOAN FUNDING, INC.
and
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Indenture Trustee
and
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Eligible Lender Trustee
Dated as of April 1, 2004
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NELNET EDUCATION LOAN FUNDING, INC.
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture
of Trust, dated as of April 1, 2004.
TRUST INDENTURE ACT SECTION
INDENTURE
SECTION
Section 310(a)(1)
7.23
310(a)(2)
7.23
310(b)
7.23, 7.09
Section 311(a)
7.08
311(b)
7.08
Section 312(b)
9.16
312(c)
9.16
Section 313(a)
4.16
313(b)
4.16
313(c)
4.16, 8.04
Section 314(a)(1)
4.17
314(a)(2)
4.17
314(a)(3)
4.17
314(a)(4)
4.17
314(c)
2.02, 5.12
314(d)(1)
5.12
Section 315(b)
8.04
Section 317(a)(1)
4.18
317(a)(2)
7.24
Section 318(a)
9.09
318(c)
9.09
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NOTE: This reconciliation and tie shall not, for any
purpose, be deemed to
be
a part of the Indenture.
Attention should also be directed to
Section 318(c) of the 1939 Act, which
provides that the provisions of Sections
310 to and including 317 of the 1939
Act are a part of and govern every
qualified indenture, whether or not
physically contained therein.
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TABLE OF CONTENTS
(This Table of Contents is for convenience of reference only and is
not
intended to define, limit or describe the
purpose or intent of any provisions of
this Indenture of Trust.)
PAGE
ARTICLE I
DEFINITIONS AND USE OF
PHRASES.................................................3
ARTICLE II
THE Series 2004-2 Notes
Section 2.01. Series 2004-2
Note Details..................................28
Section 2.02. Execution of
Series 2004-2 Notes............................31
Section 2.03. Registration,
Transfer and Exchange of Series 2004-2 Notes;
Persons Treated as Registered Owners........................32
Section 2.04. Lost, Stolen,
Destroyed and Mutilated Series 2004-2 Notes...35
Section 2.05. Forms of Series
2004-2 Notes................................36
Section 2.06. Indenture
Trustee's Authentication Certificate..............36
Section 2.07. Cancellation and
Destruction of Series 2004-2 Notes by the
Indenture Trustee...........................................36
Section 2.08. Temporary Series
2004-2 Notes...............................36
Section 2.09. Redemption of
and Principal Reduction Payments on the
Series 2004-2 Notes.........................................37
Section 2.10. Delivery of
Series 2004-2 Notes.............................42
Section 2.11. Deposit of
Series 2004-2 Note Proceeds......................42
ARTICLE III
PARITY AND
PRIORITY OF LIEN; OTHER OBLIGATIONS; AND DERIVATIVE PRODUCTS
Section 3.01. Parity and
Priority of Lien.................................42
Section 3.02. Other
Obligations...........................................43
Section 3.03. Derivative
Products; Counterparty Payments; Issuer Derivative
Payments....................................................44
ARTICLE IV
PROVISIONS
APPLICABLE TO THE series 2004-2 NOTES; DUTIES OF THE ISSUER
Section 4.01. Payment of
Principal, Interest and Premium..................44
Section 4.02. Representations
and Warranties of the Issuer................44
Section 4.03. Covenants as to
Additional Conveyances......................44
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Section 4.04. Further
Covenants of the Issuer.............................45
Section 4.05. Enforcement of
Servicing Agreements.........................46
Section 4.06. Procedures for
Transfer of Funds............................47
Section 4.07. Additional
Covenants with Respect to the Higher
Education Act...............................................47
Section 4.08. Financed
Eligible Loans; Collections Thereof; Assignment
Thereof.....................................................48
Section 4.09. Appointment of
Agents, Etc..................................49
Section 4.10. Capacity to
Sue.............................................49
Section 4.11. Continued
Existence; Successor to Issuer....................49
Section 4.12. Amendment of
Student Loan Purchase Agreements...............49
Section 4.13. Representations;
Negative Covenants.........................49
Section 4.14. Additional
Covenants........................................55
Section 4.15. Providing of
Notice.........................................56
Section 4.16. Reports by
Issuer...........................................57
Section 4.17. Statement as to
Compliance..................................57
Section 4.18. Collection of
Indebtedness and Suits for Enforcement by
Indenture Trustee...........................................58
Section 4.19. Representations
of the Issuer Regarding the Indenture
Trustee's Security Interest.................................58
Section 4.20. Covenants of the
Issuer Regarding the Indenture Trustee's
Security Interest...........................................59
Section 4.21. Tax
Treatment...............................................59
Section 4.22. Opinions as to
Indenture Trust Estate.......................60
ARTICLE V
FUNDS
Section 5.01. Creation and
Continuation of Funds and Accounts.............60
Section 5.02. Acquisition
Fund............................................61
Section 5.03. Capitalized
Interest Fund...................................63
Section 5.04. Class B
Supplemental Reserve Fund...........................64
Section 5.05. Collection
Fund.............................................65
Section 5.06. Note Payment
Fund...........................................70
Section 5.07. Remarketing Fee
Fund........................................73
Section 5.08. Reserve
Fund................................................74
Section 5.09. Supplemental
Interest Fund..................................74
Section 5.10. Transfers to
Issuer.........................................75
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Section 5.11. Investment of
Funds Held by Indenture Trustee...............75
Section 5.12. Investment
Securities.......................................76
Section 5.13. Release; Sale of
Financed Eligible Loans....................78
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.01. Events of
Default Defined...................................79
Section 6.02. Remedy on
Default; Possession of Trust Estate...............80
Section 6.03. Remedies on
Default; Advice of Counsel......................81
Section 6.04. Remedies on
Default; Sale of Trust Estate...................81
Section 6.05. Appointment of
Receiver.....................................82
Section 6.06. Restoration of
Position.....................................82
Section 6.07. Purchase of
Properties by Indenture Trustee or Registered
Owners......................................................82
Section 6.08. Application of
Sale Proceeds................................83
Section 6.09. Accelerated
Maturity........................................83
Section 6.10. Remedies Not
Exclusive......................................83
Section 6.11. Direction of
Indenture Trustee..............................83
Section 6.12. Right to Enforce
in Indenture Trustee.......................84
Section 6.13. Physical
Possession of Obligations not Required.............84
Section 6.14. Waivers of Events of
Default................................85
Section 6.15. Notice of
Defaults..........................................85
ARTICLE VII
THE INDENTURE TRUSTEE
Section 7.01. Acceptance of
Trust.........................................85
Section 7.02. Recitals of
Others..........................................86
Section 7.03. As to Filing of
Indenture...................................86
Section 7.04. Indenture Trustee May Act Through
Agents....................86
Section 7.05. Indemnification
of Indenture Trustee........................87
Section 7.06. Indenture
Trustee's Right to Reliance.......................88
Section 7.07. Compensation of
Indenture Trustee...........................89
Section 7.08. Indenture
Trustee May Own Series 2004-2 Notes...............89
Section 7.09. Resignation of
Indenture Trustee............................89
Section 7.10. Removal of
Indenture Trustee................................90
Section 7.11. Successor
Indenture Trustee.................................90
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Section 7.12. Manner of
Vesting Title in Indenture Trustee................90
Section 7.13. Additional
Covenants by the Indenture Trustee to Conform to
the Higher Education Act....................................91
Section 7.14. Right of
Inspection.........................................91
Section 7.15. Limitation with
Respect to Examination of Reports...........91
Section 7.16. Servicing
Agreement.........................................92
Section 7.17. Additional
Covenants of Indenture Trustee...................92
Section 7.18. Duty of
Indenture Trustee with Respect to Rating Agencies...92
Section 7.19. Merger of the
Indenture Trustee.............................93
Section 7.20. Receipt of Funds
from Servicers.............................93
Section 7.21. Special
Circumstances Leading to Resignation of Indenture
Trustee.....................................................93
Section 7.22. Survival of
Indenture Trustee's Rights to Receive
Compensation, Reimbursement and Indemnification.............93
Section 7.23. Corporate
Indenture Trustee Required; Eligibility;
Conflicting Interests.......................................93
Section 7.24. Indenture
Trustee May File Proofs of Claim..................94
Section 7.25. Payment of Taxes
and Other Governmental Charges.............95
ARTICLE VIII
SUPPLEMENTAL INDENTURES
Section 8.01. Supplemental
Indentures Not Requiring Consent of Registered
Owners......................................................95
Section 8.02. Supplemental
Indentures Requiring Consent of Registered
Owners......................................................96
Section 8.03. Additional
Limitation on Modification of Indenture..........97
Section 8.04. Notice of
Defaults..........................................97
Section 8.05. Conformity With
the Trust Indenture Act.....................98
ARTICLE IX
GENERAL PROVISIONS
Section 9.01.
Notices.....................................................98
Section 9.02. Covenants Bind
Issuer.......................................99
Section 9.03. Lien
Created................................................99
Section 9.04. Severability of
Lien........................................99
Section 9.05. Consent of
Registered Owners Binds Successors...............99
Section 9.06. Nonliability of
Directors; No General Obligation...........100
Section 9.07. Nonpresentment
of Series 2004-2 Notes or Interest Checks...100
Section 9.08. Security
Agreement.........................................100
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Section 9.09. Laws
Governing.............................................100
Section 9.10.
Severability...............................................100
Section 9.11.
Exhibits...................................................101
Section 9.12. Non-Business
Days..........................................101
Section 9.13. Parties
Interested Herein..................................101
Section 9.14. Obligations Are
Limited Obligations........................101
Section 9.15. Counterparty
Rights........................................101
Section 9.16. Disclosure of
Names and Addresses of Registered Owners.....101
Section 9.17. Aggregate
Principal Amount of Obligations..................102
Section 9.18. Financed
Eligible Loans....................................102
Section 9.19. No Petition;
Subordination.................................102
Section 9.20. Conflict with
Trust Indenture Act..........................102
ARTICLE X
PAYMENT AND CANCELLATION OF NOTES AND SATISFACTION OF INDENTURE
Section 10.01. Trust
Irrevocable..........................................103
Section 10.02. Satisfaction of
Indenture..................................103
Section 10.03. Cancellation of Paid
Series 2004-2 Notes...................103
ARTICLE XI
TERMINATION
Section 11.01. Termination of the
Trust...................................104
Section 11.02.
Notice.....................................................105
ARTICLE XII
REPORTING REQUIREMENTS
Section 12.01. Annual Statement as to
Compliance..........................105
Section 12.02. Annual Independent
Public Accountants' Servicing Report....106
Section 12.03. Issuer's
Certificate.......................................106
Section 12.04. Statements to
Registered Owners............................106
APPENDIX A CERTAIN TERMS AND PROVISIONS OF
THE Reset RATE NOTES................1
APPENDIX B CERTAIN TERMS AND PROVISIONS OF
THE AUCTION RATE NOTES..............1
EXHIBIT A FORM OF LIBOR rate
NOTES.............................................1
EXHIBIT B FORM OF reset rate
NOTES.............................................1
EXHIBIT C FORM OF auction rate
NOTES...........................................1
EXHIBIT D NOTICE OF PAYMENT
DEFAULT............................................1
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EXHIBIT E NOTICE OF CURE OF PAYMENT
DEFAULT....................................1
EXHIBIT F NOTICE OF PROPOSED CHANGE IN
LENGTH OF ONE OR MORE AUCTION PERIODS...1
EXHIBIT G NOTICE ESTABLISHING CHANGE IN
LENGTH OF ONE OR MORE AUCTION PERIODS..1
EXHIBIT H NOTICE OF CHANGE IN AUCTION
DATE.....................................1
EXHIBIT I ELIGIBLE LOAN ACQUISITION
CERTIFICATE................................1
EXHIBIT J FORM OF MONTHLY SERVICING PAYMENT
DATE CERTIFICATE...................1
EXHIBIT K FORM OF DISTRIBUTION DATE
CERTIFICATE................................1
EXHIBIT L FORM OF STUDENT LOAN PURCHASE
AGREEMENT..............................1
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<PAGE>
INDENTURE
OF TRUST
THIS INDENTURE OF TRUST, dated as of April 1, 2004 (this
"Indenture"),
is by and among NELNET EDUCATION LOAN
FUNDING, INC., a corporation duly
organized and existing under the laws of
the State of Nebraska (the "Issuer"),
WELLS FARGO BANK, NATIONAL ASSOCIATION, a
national banking association duly
organized and operating under the laws of
the United States of America, as
indenture trustee hereunder (together with
its successors, the "Indenture
Trustee"), and WELLS FARGO BANK, NATIONAL
ASSOCIATION, as eligible lender
trustee hereunder (together with its
successors, the "Eligible Lender Trustee")
(all capitalized terms used in these
preambles, recitals and granting clauses
shall have the same meanings assigned
thereto in Article I hereof);
W I T N E S S E T H:
WHEREAS, the Issuer represents that it is duly created as a
corporation
under the laws of the State and that by
proper action of its governing body it
has duly authorized the execution and
delivery of this Indenture, which
Indenture provides for the payment of
student loan asset-backed notes (the
"Series 2004-2 Notes") and the payments to
any Counterparty; and
WHEREAS, this Indenture is subject to the provisions of the
Trust
Indenture Act of 1939, as amended (the
"Trust Indenture Act"), that are deemed
to be incorporated into this Indenture and
shall, to the extent applicable, be
governed by such provisions; and
WHEREAS, the Indenture Trustee has agreed to accept the trusts
herein
created upon the terms herein set forth;
and
WHEREAS, it is hereby agreed between the parties hereto, the
Registered
Owners of the Series 2004-2 Notes (the
Registered Owners evidencing their
consent by their acceptance of the Series
2004-2 Notes) and any Counterparty
(the Counterparty evidencing its consent by
its execution and delivery of a
Derivative Product) that in the performance
of any of the agreements of the
Issuer herein contained, any obligation it
may thereby incur for the payment of
money shall not be general debt on its
part, but shall be secured by and payable
solely from the Trust Estate, payable in
such order of preference and priority
as provided herein;
NOW, THEREFORE, the Issuer and, with respect to the legal title to
the
Financed Eligible Loans, the Eligible
Lender Trustee, in consideration of the
premises and acceptance by the Indenture
Trustee of the trusts herein created,
of the purchase and acceptance of the
Series 2004-2 Notes by the Registered
Owners thereof, of the execution and
delivery of any Derivative Product by a
Counterparty and the Issuer and the
acknowledgement thereof by the Indenture
Trustee, and for other good and valuable
consideration, the receipt and
sufficiency of which are hereby
acknowledged, does hereby GRANT, CONVEY, PLEDGE,
TRANSFER, ASSIGN AND DELIVER to the
Indenture Trustee, for the benefit of the
Registered Owners of the Series 2004-2
Notes and any Counterparty (to secure the
payment of any and all amounts which may
from time to time become due and owing
to a Counterparty pursuant to any
Derivative Product), all of their right, title
and interest in and to the moneys, rights,
and properties described in the
granting clauses A through F below (the
"Trust Estate"), as follows:
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GRANTING CLAUSE A
The Revenues (other than Revenues released from the lien of the
Trust
Estate as provided herein);
GRANTING CLAUSE B
All moneys and investments held in the Funds and Accounts
created
pursuant to Section 5.01 hereof;
GRANTING CLAUSE C
The Financed Eligible Loans (other than Financed Eligible Loans
released
from the lien of the Trust Estate as
provided herein);
GRANTING CLAUSE D
The Servicing Agreements, the Administration Agreement, the
Escrow
Reserve Agreement, the Assignment
Agreement, the Student Loan Purchase
Agreements, the Custodian Agreements and
the Guarantee Agreements as the same
relate to Financed Eligible Loans;
GRANTING CLAUSE E
Any Derivative Product and any Counterparty Guarantee;
provided,
however, that this Granting Clause E shall
not be for the benefit of a
Counterparty with respect to its Derivative
Product or any related Counterparty
Guarantee; and
GRANTING CLAUSE F
Any and all other property, rights and interests of every kind
or
description that from time to time
hereafter is granted, conveyed, pledged,
transferred, assigned or delivered to the
Indenture Trustee as additional
security hereunder.
TO HAVE AND TO HOLD the Trust Estate, whether now owned or held
or
hereafter acquired, unto the Indenture
Trustee and its successors or assigns;
IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth
for
the equal and proportionate benefit and
security of all present and future
Registered Owners of the Series 2004-2
Notes, without preference of any Series
2004-2 Note over any other, except as
provided herein, and for enforcement of
the payment of the Series 2004-2 Notes in
accordance with their terms, and all
other sums payable hereunder (including
payments due and payable to any
Counterparty) or on the Series 2004-2
Notes, and for the performance of and
compliance with the obligations, covenants,
and conditions of this Indenture, as
if all the Series 2004-2 Notes and any
Derivative Products at any time
Outstanding had been executed and delivered
simultaneously with the execution
and delivery of this Indenture;
PROVIDED, HOWEVER, that if the Issuer, its successors or assigns,
shall
well and truly pay, or cause to be paid,
the principal of the Series 2004-2
Notes and the interest due and to become
due thereon, or provide fully for
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payment thereof as herein provided, at the
times and in the manner mentioned in
the Series 2004-2 Notes according to the
true intent and meaning thereof, and
shall make all required payments into the
Funds as required under Article V
hereof, or shall provide, as permitted
hereby, for the payment thereof by
depositing with the Indenture Trustee sums
sufficient to pay or to provide for
payment of the entire amount due and to
become so due as herein provided
(including payments due and payable to any
Counterparty), then this Indenture
and the rights hereby granted shall cease,
terminate and be void; otherwise,
this Indenture shall be and remain in full
force and effect;
NOW, THEREFORE, it is mutually covenanted and agreed as
follows:
ARTICLE I
DEFINITIONS AND USE OF PHRASES
The following terms have the following meanings unless the
context
clearly requires otherwise (certain
additional terms relating to the Series
2004-2 Notes are defined in Appendices A
and B hereto):
"ACCOUNT" shall mean any of the accounts created and established
within
any Fund pursuant to this Indenture.
"ACQUISITION FUND" shall mean the Fund by that name created in
Section
5.01(a) hereof and further described in
Section 5.02 hereof, including any
Accounts and Subaccounts created
therein.
"ACCRUAL PERIOD" shall mean, with respect to a Quarterly
Distribution
Date and a Class of the LIBOR Rate Notes,
the period from and including the
immediately preceding Quarterly
Distribution Date for such Class of the LIBOR
Rate Notes, or in the case of the initial
such period the Closing Date, to but
excluding such current Quarterly
Distribution Date. The term "Accrual Period"
shall have the meaning assigned to such
term in Appendix A with respect to the
Reset Rate Notes and in Appendix B with
respect to the Auction Rate Notes.
"ADD-ON CONSOLIDATION LOAN" shall mean an Eligible Loan included in
the
Trust Estate, the principal balance of
which is added to an existing
Consolidation Loan during the Add-on
Period, as required by the Higher Education
Act.
"ADD-ON PERIOD" shall mean the period of 180 days after the date
of
origination of any Consolidation Loan
financed by the Issuer.
"ADMINISTRATION AGREEMENT" shall mean the Administrative
Services
Agreement, dated as of April 1, 2004, among
the Issuer, the Indenture Trustee,
the Eligible Lender Trustee and National
Education Loan Network, Inc., as
administrator, and any other Administration
Agreement entered into between the
Issuer and an entity that will provide
administrative services for the Issuer,
each as amended and supplemented pursuant
to the terms and provisions thereof.
"ADMINISTRATION FEE" shall mean an amount equal to 0.18% per
annum,
based on the aggregate principal amount of
the Financed Eligible Loans within
the Trust Estate at any time, as determined
by the Administrator.
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"ADMINISTRATOR" shall mean National Education Loan Network, Inc. in
its
capacity as administrator of the Issuer and
the Financed Eligible Loans, and any
successor thereto in accordance with the
Administration Agreement.
"AGENT MEMBER" shall mean a member of, or participant in, a
Securities
Depository.
"AGGREGATE VALUE" shall mean on any calculation date the sum of
the
Values of all assets of the Trust
Estate.
"ASSIGNMENT AGREEMENT" shall mean the Partial Assignment
Agreement,
dated as of April 1, 2004, between the
Issuer and the Indenture Trustee
assigning to the Indenture Trustee certain
rights of the Issuer under certain of
its loan purchase agreements and servicing
agreements, as amended and
supplemented pursuant to the terms and
provisions thereof.
"AUCTION RATE DISTRIBUTION DATE" shall mean, with respect to each
Class
of the Auction Rate Notes, (a) so long as
such Class of the Auction Rate Notes
bear interest at an Auction Rate Notes
Interest Rate for an Auction Period of
not greater than 90 days, the Business Day
immediately following the expiration
of the Initial Period for such Auction Rate
Notes, and each related Auction
Period thereafter, commencing as provided
in an Issuer Order pursuant to Section
2.03(c) of Appendix A hereto for the Class
A-5a Notes if the Class A-5a Notes
are reset to bear interest at an Auction
Rate pursuant to Section 2.01(f) of
Appendix A hereto and commencing on May 28,
2004 for the Class A-5b Notes and
May 28, 2004 for the Class A-5c Notes, May
28, 2004 for the Class B-1 Notes and
May 28, 2004 for the Class B-2 Notes; and
(b) if and for so long as such Class
of the Auction Rate Notes bear interest at
an Auction Rate Notes Interest Rate
for an Auction Period of greater than 90
days, the 25th day of each February,
May, August and November and the Business
Day immediately following the
expiration of the related Auction Period.
On any Auction Rate Distribution Date
that is a designated calendar date (such as
described in clause (b) above), if
the designated date is not a Business Day,
interest shall be payable on the next
succeeding Business Day in the amount
accrued to but excluding the designated
calendar date and no interest shall accrue
on the payment so deferred during the
intervening period. On any Auction Rate
Distribution Date that is not a
designated calendar date (such as described
in clause (a) above), interest shall
be payable in the amount accrued to but
excluding the date on which interest is
actually paid.
"AUCTION RATE NOTES" shall mean, collectively, the Class A-5a Notes
(but
only if the Class A-5a Notes have been
reset to bear interest at an Auction Rate
pursuant to Section 2.01(f) of Appendix A
hereto), the Class A-5b Notes, the
Class A-5c Notes and the Class B Notes.
"AUCTION RATE NOTES CARRY-OVER AMOUNT" shall have the meaning
ascribed
to such term in Appendix B hereto.
"AUTHORIZED DENOMINATIONS" shall mean (a) with respect to each
Class of
the LIBOR Rate Notes and the Reset Rate
Notes, $5,000 and any integral multiple
of $1,000 in excess thereof, and (b) with
respect to the Auction Rate Notes,
$50,000 and any integral multiple
thereof.
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"AUTHORIZED OFFICER" shall mean, when used with reference to the
Issuer,
its Chairman, President, any Vice President
or Secretary, or any other officer
or board member authorized in writing by
the Board of Directors to act on behalf
of the Issuer.
"AUTHORIZED REPRESENTATIVE" shall mean, when used with reference to
the
Issuer, (a) an Authorized Officer, (b) the
Administrator or (c) any officer or
board member of any affiliate organization
or other entity authorized by the
Board of Directors to act on the Issuer's
behalf.
"BOARD OF DIRECTORS" shall mean the Board of Directors of the
Issuer.
"BUSINESS DAY" shall have the meanings ascribed to such term in
Appendices A and B hereto.
"CAPITALIZED INTEREST FUND" shall mean the Fund by that name
created in
Section 5.01(b) hereof and further
described in Section 5.03 hereof, including
any Accounts and Subaccounts created
therein.
"CERTIFICATE OF INSURANCE" shall mean any certificate evidencing
a
Financed Eligible Loan is Insured pursuant
to a Contract of Insurance.
"CLASS" shall mean, (a) with the respect to the LIBOR Rate Notes,
any or
all of the Class A-1 Notes, the Class A-2
Notes, the Class A-3 Notes and the
Class A-4 Notes, (b) with the respect to
the Reset Rate Notes, the Class A-5a
Notes (unless the Class A-5a Notes have
been reset to bear interest at an
Auction Rate pursuant to Section 2.01(f) of
Appendix A hereto), and (c) with the
respect to the Auction Rate Notes, any or
all of the Class A-5a Notes (but only
if the Class A-5a Notes have been reset to
bear interest at an Auction Rate
pursuant to Section 2.01(f) of Appendix A
hereto), Class A-5b Notes, the Class
A-5c Notes, the Class B-1 Notes and the
Class B-2 Notes.
"CLASS A NOTES" shall mean, collectively, the Class A-1 Notes, the
Class
A-2 Notes, the Class A-3 Notes, the Class
A-4 Notes, the Class A-5a Notes, the
Class A-5b Notes and the Class A-5c
Notes.
"CLASS A-1 INTEREST ACCOUNT" shall mean the Account by that name
created
by Section 5.01(e) hereof within the Note
Payment Fund and further described in
Section 5.06 hereof, including any
Subaccounts created therein.
"CLASS A-1 NOTES" shall mean the $167,000,000 Nelnet Education
Loan
Funding, Inc., Student Loan Asset-Backed
Notes, Senior Class 2004-2A-1 LIBOR
Rate Notes.
"CLASS A-1 NOTES INTEREST DISTRIBUTION AMOUNT" shall mean, for
each
Quarterly Distribution Date, the sum of (a)
the amount of interest accrued at
the Class A-1 Notes Interest Rate for the
related Accrual Period on the
Outstanding Amount of the Class A-1 Notes
immediately prior to such Quarterly
Distribution Date; and (b) the Class A-1
Notes Interest Shortfall for such
Quarterly Distribution Date, based on the
actual number of days in such Accrual
Period divided by 360 and rounding the
resultant figure to the fifth decimal
place, as determined by the Issuer, or by
the Administrator on behalf of the
Issuer.
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"CLASS A-1 NOTES INTEREST RATE" shall mean, for any Accrual Period
after
the initial Accrual Period, Three-Month
LIBOR as determined by the Issuer, or by
the Administrator on behalf of the Issuer,
on the related LIBOR Determination
Date, plus 0.00%, based on the actual
number of days in such Accrual Period
divided by 360. For the initial Accrual
Period, the Class A-1 Notes Interest
Rate shall mean 1.21909%, based on the
actual number of days in such Accrual
Period divided by 360.
"CLASS A-1 NOTES INTEREST SHORTFALL" shall mean, with respect to
any
Quarterly Distribution Date, the excess, if
any, of (a) the Class A-1 Notes
Interest Distribution Amount on the
immediately preceding Quarterly Distribution
Date over (b) the amount of interest
actually distributed to the Registered
Owners of the Class A-1 Notes on such
preceding Quarterly Distribution Date,
plus interest on the amount of such excess
interest due to the Registered Owners
of the Class A-1 Notes, to the extent
permitted by law, at the interest rate
borne by the Class A-1 Notes from such
immediately preceding Quarterly
Distribution Date to the current Quarterly
Distribution Date, as determined by
the Issuer, or by the Administrator on
behalf of the Issuer.
"CLASS A-1 REDEMPTION ACCOUNT" shall mean the Account by that
name
created by Section 5.01(e) hereof within
the Note Payment Fund and further
described in Section 5.06 hereof, including
any Subaccounts created therein.
"CLASS A-2 INTEREST ACCOUNT" shall mean the Account by that name
created
by Section 5.01(e) hereof within the Note
Payment Fund and further described in
Section 5.06 hereof, including any
Subaccounts created therein.
"CLASS A-2 NOTES" shall mean the $178,000,000 Nelnet Education
Loan
Funding, Inc., Student Loan Asset-Backed
Notes, Senior Class 2004-2A-2 LIBOR
Rate Notes.
"CLASS A-2 NOTES INTEREST DISTRIBUTION AMOUNT" shall mean, for
each
Quarterly Distribution Date, the sum of (a)
the amount of interest accrued at
the Class A-2 Notes Interest Rate for the
related Accrual Period on the
Outstanding Amount of the Class A-2 Notes
immediately prior to such Quarterly
Distribution Date; and (b) the Class A-2
Notes Interest Shortfall for such
Quarterly Distribution Date, based on the
actual number of days in such Accrual
Period divided by 360 and rounding the
resultant figure to the fifth decimal
place, as determined by the Issuer, or by
the Administrator on behalf of the
Issuer.
"CLASS A-2 NOTES INTEREST RATE" shall mean, for any Accrual Period
after
the initial Accrual Period, Three-Month
LIBOR as determined by the Issuer, or by
the Administrator on behalf of the Issuer,
on the related LIBOR Determination
Date, plus 0.03%, based on the actual
number of days in such Accrual Period
divided by 360. For the initial Accrual
Period, the Class A-2 Notes Interest
Rate shall mean 1.24909%, based on the
actual number of days in such Accrual
Period divided by 360.
"CLASS A-2 NOTES INTEREST SHORTFALL" shall mean, with respect to
any
Quarterly Distribution Date, the excess, if
any, of (a) the Class A-2 Notes
Interest Distribution Amount on the
immediately preceding Quarterly Distribution
Date over (b) the amount of interest
actually distributed to the Registered
Owners of the Class A-2 Notes on such
preceding Quarterly Distribution Date,
plus interest on the amount of such excess
interest due to the Registered Owners
6
<PAGE>
of the Class A-2 Notes, to the extent
permitted by law, at the interest rate
borne by the Class A-2 Notes from such
immediately preceding Quarterly
Distribution Date to the current Quarterly
Distribution Date, as determined by
the Issuer, or by the Administrator on
behalf of the Issuer.
"CLASS A-2 REDEMPTION ACCOUNT" shall mean the Account by that
name
created by Section 5.01(e) hereof within
the Note Payment Fund and further
described in Section 5.06 hereof, including
any Subaccounts created therein.
"CLASS A-3 INTEREST ACCOUNT" shall mean the Account by that name
created
by Section 5.01(e) hereof within the Note
Payment Fund and further described in
Section 5.06 hereof, including any
Subaccounts created therein.
"CLASS A-3 NOTES" shall mean the $103,000,000 Nelnet Education
Loan
Funding, Inc., Student Loan Asset-Backed
Notes, Senior Class 2004-2A-3 LIBOR
Rate Notes.
"CLASS A-3
NOTES INTEREST DISTRIBUTION AMOUNT" shall mean, for each
Quarterly Distribution Date, the sum of (a)
the amount of interest accrued at
the Class A-3 Notes Interest Rate for the
related Accrual Period on the
Outstanding Amount of the Class A-3 Notes
immediately prior to such Quarterly
Distribution Date; and (b) the Class A-3
Notes Interest Shortfall for such
Quarterly Distribution Date, based on the
actual number of days in such Accrual
Period divided by 360 and rounding the
resultant figure to the fifth decimal
place, as determined by the Issuer, or by
the Administrator on behalf of the
Issuer.
"CLASS A-3 NOTES INTEREST RATE" shall mean, for any Accrual Period
after
the initial Accrual Period, Three-Month
LIBOR as determined by the Issuer, or by
the Administrator on behalf of the Issuer,
on the related LIBOR Determination
Date, plus 0.10%, based on the actual
number of days in such Accrual Period
divided by 360. For the initial Accrual
Period, the Class A-3 Notes Interest
Rate shall mean 1.31909%, based on the
actual number of days in such Accrual
Period divided by 360.
"CLASS A-3 NOTES INTEREST SHORTFALL" shall mean, with respect to
any
Quarterly Distribution Date, the excess, if
any, of (a) the Class A-3 Notes
Interest Distribution Amount on the
immediately preceding Quarterly Distribution
Date over (b) the amount of interest
actually distributed to the Registered
Owners of the Class A-3 Notes on such
preceding Quarterly Distribution Date,
plus interest on the amount of such excess
interest due to the Registered Owners
of the Class A-3 Notes, to the extent
permitted by law, at the interest rate
borne by the Class A-3 Notes from such
immediately preceding Quarterly
Distribution Date to the current Quarterly
Distribution Date, as determined by
the Issuer, or by the Administrator on
behalf of the Issuer.
"CLASS A-3 REDEMPTION ACCOUNT" shall mean the Account by that
name
created by Section 5.01(e) hereof within
the Note Payment Fund and further
described in Section 5.06 hereof, including
any Subaccounts created therein.
7
<PAGE>
"CLASS A-4 INTEREST ACCOUNT" shall mean the Account by that name
created
by Section 5.01(e) hereof within the Note
Payment Fund and further described in
Section 5.06 hereof, including any
Subaccounts created therein.
"CLASS A-4 NOTES" shall mean the $203,000,000 Nelnet Education
Loan
Funding, Inc., Student Loan Asset-Backed
Notes, Senior Class 2004-2A-4 LIBOR
Rate Notes.
"CLASS A-4 NOTES INTEREST DISTRIBUTION AMOUNT" shall mean, for
each
Quarterly Distribution Date, the sum of (a)
the amount of interest accrued at
the Class A-4 Notes Interest Rate for the
related Accrual Period on the
Outstanding Amount of the Class A-4 Notes
immediately prior to such Quarterly
Distribution Date; and (b) the Class A-4
Notes Interest Shortfall for such
Quarterly Distribution Date, based on the
actual number of days in such Accrual
Period divided by 360 and rounding the
resultant figure to the fifth decimal
place, as determined by the Issuer, or by
the Administrator on behalf of the
Issuer.
"CLASS A-4 NOTES INTEREST RATE" shall mean, for any Accrual Period
after
the initial Accrual Period, Three-Month
LIBOR as determined by the Issuer, or by
the Administrator on behalf of the Issuer,
on the related LIBOR Determination
Date, plus 0.14%, based on the actual
number of days in such Accrual Period
divided by 360. For the initial Accrual
Period, the Class A-4 Notes Interest
Rate shall mean 1.35909%, based on the
actual number of days in such Accrual
Period divided by 360.
"CLASS A-4 NOTES INTEREST SHORTFALL" shall mean, with respect to
any
Quarterly Distribution Date, the excess, if
any, of (a) the Class A-4 Notes
Interest Distribution Amount on the
immediately preceding Quarterly Distribution
Date over (b) the amount of interest
actually distributed to the Registered
Owners of the Class A-4 Notes on such
preceding Quarterly Distribution Date,
plus interest on the amount of such excess
interest due to the Registered Owners
of the Class A-4 Notes, to the extent
permitted by law, at the interest rate
borne by the Class A-4 Notes from such
immediately preceding Quarterly
Distribution Date to the current Quarterly
Distribution Date, as determined by
the Issuer, or by the Administrator on
behalf of the Issuer.
"CLASS A-4 REDEMPTION ACCOUNT" shall mean the Account by that
name
created by Section 5.01(e) hereof within
the Note Payment Fund and further
described in Section 5.06 hereof, including
any Subaccounts created therein.
"CLASS A-5a INTEREST ACCOUNT" shall mean the Account by that
name
created by Section 5.01(e) hereof within
the Note Payment Fund and further
described in Section 5.06 hereof, including
any Subaccounts created therein.
"CLASS A-5a NOTES" shall mean the $200,000,000 Nelnet Education
Loan
Funding, Inc., Student Loan Asset-Backed
Notes, Senior Class 2004-2A-5a Reset
Rate Notes, unless the Class A-5a Notes
have been reset to bear interest at an
Auction Rate pursuant to Section 2.01(f) of
Appendix A hereto, in which case the
Class A-5a Notes shall be redesignated the
$200,000,000 Nelnet Education Loan
Funding, Inc., Student Loan Asset-Backed
Notes, Senior Class 2004-2A-5a Auction
Rate Notes.
8
<PAGE>
"CLASS A-5a NOTES INTEREST DISTRIBUTION AMOUNT" shall mean, for
each
Quarterly Distribution Date, the sum of (a)
the amount of interest accrued at
the Class A-5a Notes Interest Rate for the
related Accrual Period on the
Outstanding Amount of the Class A-5a Notes
immediately prior to such Quarterly
Distribution Date; and (b) the Class A-5a
Notes Interest Shortfall for such
Quarterly Distribution Date, based on the
appropriate Day Count Basis and
rounding the resultant figure to the fifth
decimal place, as determined by the
Issuer, or by the Administrator on behalf
of the Issuer; provided, however, if
the Class A-5a Notes have been reset to
bear interest at an Auction Rate
pursuant to Section 2.01(f) of Appendix A
hereto, "CLASS A-5A NOTES INTEREST
DISTRIBUTION AMOUNT" shall mean, for each
Auction Rate Distribution Date for the
Class A-5a Notes, the sum of (i) the amount
of interest accrued at the Class
A-5a Notes Interest Rate for the related
Accrual Period on the Outstanding
Amount of the Class A-5a Notes immediately
prior to such Auction Rate
Distribution Date for the Class A-5a Notes;
and (ii) the Class A-5a Notes
Interest Shortfall for such Auction Rate
Distribution Date for the Class A-5a
Notes, based on the actual number of days
in such Accrual Period divided by 360
and rounding the resultant figure to the
fifth decimal place, as determined by
the Issuer, or by the Administrator on
behalf of the Issuer.
"CLASS A-5a NOTES INTEREST SHORTFALL" shall mean, with respect to
any
Quarterly Distribution Date, the excess, if
any, of (a) the Class A-5a Notes
Interest Distribution Amount on the
immediately preceding Quarterly Distribution
Date over (b) the amount of interest
actually distributed to the Registered
Owners of the Class A-5a Notes on such
preceding Quarterly Distribution Date,
plus interest on the amount of such excess
interest due to the Registered Owners
of the Class A-5a Notes, to the extent
permitted by law, at the interest rate
borne by the Class A-5a Notes from such
immediately preceding Quarterly
Distribution Date to the current Quarterly
Distribution Date, as determined by
the Issuer, or by the Administrator on
behalf of the Issuer; provided, however,
if the Class A-5a Notes have been reset to
bear interest at an Auction Rate
pursuant to Section 2.01(f) of Appendix A
hereto, "CLASS A-5A NOTES INTEREST
SHORTFALL" shall mean, with respect to any
Auction Rate Distribution Date for
the Class A-5a Notes, the excess, if any,
of (i) the Class A-5a Notes Interest
Distribution Amount on the immediately
preceding Auction Rate Distribution Date
for the Class A-5a Notes over (ii) the
amount of interest actually distributed
to the Registered Owners of the Class A-5a
Notes on such preceding Auction Rate
Distribution Date for the Class A-5a Notes,
plus interest on the amount of such
excess interest due to the Registered
Owners of the Class A-5a Notes, to the
extent permitted by law, at the interest
rate borne by the Class A-5a Notes from
such immediately preceding Auction Rate
Distribution Date for the Class A-5a
Notes to the current Auction Rate
Distribution Date for the Class A-5a Notes, as
determined by the Issuer, or by the
Administrator on behalf of the Issuer.
"CLASS A-5a REDEMPTION ACCOUNT" shall mean the Account by that
name
created by Section 5.01(e) hereof within
the Note Payment Fund and further
described in Section 5.06 hereof, including
any Subaccounts created therein.
"CLASS A-5b INTEREST ACCOUNT" shall mean the Account by that
name
created by Section 5.01(e) hereof within
the Note Payment Fund and further
described in Section 5.06 hereof, including
any Subaccounts created therein.
9
<PAGE>
"CLASS A-5b NOTES" shall mean the $68,050,000 Nelnet Education
Loan
Funding, Inc., Student Loan Asset-Backed
Notes, Senior Class 2004-2A-5b Auction
Rate Notes.
"CLASS A-5b NOTES INTEREST DISTRIBUTION AMOUNT" shall mean, for
each
Auction Rate Distribution Date for the
Class A-5b Notes, the sum of (a) the
amount of interest accrued at the Class
A-5b Notes Interest Rate for the related
Accrual Period on the Outstanding Amount of
the Class A-5b Notes immediately
prior to such Auction Rate Distribution
Date for the Class A-5b Notes; and (b)
the Class A-5b Notes Interest Shortfall for
such Auction Rate Distribution Date
for the Class A-5b Notes, based on the
actual number of days in such Accrual
Period divided by 360 and rounding the
resultant figure to the fifth decimal
place, as determined by the Issuer, or by
the Administrator on behalf of the
Issuer.
"CLASS A-5b NOTES INTEREST SHORTFALL" shall mean, with respect to
any
Auction Rate Distribution Date for the
Class A-5b Notes, the excess, if any, of
(a) the Class A-5b Notes Interest
Distribution Amount on the immediately
preceding Auction Rate Distribution Date
for the Class A-5b Notes over (b) the
amount of interest actually distributed to
the Registered Owners of the Class
A-5b Notes on such preceding Auction Rate
Distribution Date for the Class A-5b
Notes, plus interest on the amount of such
excess interest due to the Registered
Owners of the Class A-5b Notes, to the
extent permitted by law, at the interest
rate borne by the Class A-5b Notes from
such immediately preceding Auction Rate
Distribution Date for the Class A-5b Notes
to the current Auction Rate
Distribution Date for the Class A-5b Notes,
as determined by the Issuer, or by
the Administrator on behalf of the
Issuer.
"CLASS A-5b REDEMPTION ACCOUNT" shall mean the Account by that
name
created by Section 5.01(e) hereof within
the Note Payment Fund and further
described in Section 5.06 hereof, including
any Subaccounts created therein.
"CLASS A-5c INTEREST ACCOUNT" shall mean the Account by that
name
created by Section 5.01(e) hereof within
the Note Payment Fund and further
described in Section 5.06 hereof, including
any Subaccounts created therein.
"CLASS A-5c NOTES" shall mean the $68,050,000 Nelnet Education
Loan
Funding, Inc., Student Loan Asset-Backed
Notes, Senior Class 2004-2A-5c Auction
Rate Notes.
"CLASS A-5c NOTES INTEREST DISTRIBUTION AMOUNT" shall mean, for
each
Auction Rate Distribution Date for the
Class A-5c Notes, the sum of (a) the
amount of interest accrued at the Class
A-5c Notes Interest Rate for the related
Accrual Period on the Outstanding Amount of
the Class A-5c Notes immediately
prior to such Auction Rate Distribution
Date for the Class A-5c Notes; and (b)
the Class A-5c Notes Interest Shortfall for
such Auction Rate Distribution Date
for the Class A-5c Notes, based on the
actual number of days in such Accrual
Period divided by 360 and rounding the
resultant figure to the fifth decimal
place, as determined by the Issuer, or by
the Administrator on behalf of the
Issuer.
"CLASS A-5c NOTES INTEREST SHORTFALL" shall mean, with respect to
any
Auction Rate Distribution Date for the
Class A-5c Notes, the excess, if any, of
(a) the Class A-5c Notes Interest
Distribution Amount on the immediately
preceding Auction Rate Distribution Date
for the Class A-5c Notes over (b) the
amount of interest actually distributed to
the Registered Owners of the Class
10
<PAGE>
A-5c Notes on such preceding Auction Rate
Distribution Date for the Class A-5c
Notes, plus interest on the amount of such
excess interest due to the Registered
Owners of the Class A-5c Notes, to the
extent permitted by law, at the interest
rate borne by the Class A-5c Notes from
such immediately preceding Auction Rate
Distribution Date for the Class A-5c Notes
to the current Auction Rate
Distribution Date for the Class A-5c Notes,
as determined by the Issuer, or by
the Administrator on behalf of the
Issuer.
"CLASS A-5c REDEMPTION ACCOUNT" shall mean the Account by that
name
created by Section 5.01(e) hereof within
the Note Payment Fund and further
described in Section 5.06 hereof, including
any Subaccounts created therein.
"CLASS B NOTES" shall mean, collectively, the Class B-1 Notes and
the
Class B-2 Notes.
"CLASS B REDEMPTION ACCOUNT" shall mean the Account by that name
created
by Section 5.01(e) hereof within the Note
Payment Fund and further described in
Section 5.06 hereof, including any
Subaccounts created therein.
"CLASS B SUPPLEMENTAL RESERVE FUND" shall mean the Fund by that
name
created in Section 5.01(c) hereof and
further described in Section 5.04 hereof,
including any Accounts and Subaccounts
created therein.
"CLASS B SUPPLEMENTAL RESERVE FUND REQUIREMENT" shall mean an
amount
equal to 90 days' interest on the
Outstanding Amount of the Class B Notes
calculated at the highest then current
interest rate on either Class of the
Class B Notes.
"CLASS B-1 INTEREST ACCOUNT" shall mean the Account by that name
created
by Section 5.01(e) hereof within the Note
Payment Fund and further described in
Section 5.06 hereof, including any
Subaccounts created therein.
"CLASS B-1 NOTES" shall mean the $15,300,000 Nelnet Education
Loan
Funding, Inc., Student Loan Asset-Backed
Notes, Subordinate Class 2004-2B-1
Auction Rate Notes.
"CLASS B-1 NOTES INTEREST DISTRIBUTION AMOUNT" shall mean, for
each
Auction Rate Distribution Date for the
Class B-1 Notes, the sum of (a) the
amount of interest accrued at the Class B-1
Notes Interest Rate for the related
Accrual Period on the Outstanding Amount of
the Class B-1 Notes immediately
prior to such Auction Rate Distribution
Date for the Class B-1 Notes; and (b)
the Class B-1 Notes Interest Shortfall for
such Auction Rate Distribution Date
for the Class B-1 Notes, based on the
actual number of days in such Accrual
Period divided by 360 and rounding the
resultant figure to the fifth decimal
place, as determined by the Issuer, or by
the Administrator on behalf of the
Issuer.
"CLASS B-1 NOTES INTEREST SHORTFALL" shall mean, with respect to
any
Auction Rate Distribution Date for the
Class B-1 Notes, the excess, if any, of
(a) the Class B-1 Notes Interest
Distribution Amount on the immediately
preceding Auction Rate Distribution Date
for the Class B-1 Notes over (b) the
amount of interest actually distributed to
the Registered Owners of the Class
B-1 Notes on such preceding Auction Rate
Distribution Date for the Class B-1
Notes, plus interest on the amount of such
excess interest due to the Registered
Owners of the Class B-1 Notes, to the
extent permitted by law, at the interest
rate borne by the Class B-1 Notes from such
immediately preceding Auction Rate
Distribution Date for the Class B-1 Notes
to the current Auction Rate
Distribution Date for the Class B-1 Notes,
as determined by the Issuer, or by
the Administrator on behalf of the
Issuer.
11
<PAGE>
"CLASS B-2 INTEREST ACCOUNT" shall mean the Account by that name
created
by Section 5.01(e) hereof within the Note
Payment Fund and further described in
Section 5.06 hereof, including any
Subaccounts created therein.
"CLASS B-2 NOTES" shall mean the $15,300,000 Nelnet Education
Loan
Funding, Inc., Student Loan Asset-Backed
Notes, Subordinate Class 2004-2B-2
Auction Rate Notes.
"CLASS B-2 NOTES INTEREST DISTRIBUTION AMOUNT" shall mean, for
each
Auction Rate Distribution Date for the
Class B-2 Notes, the sum of (a) the
amount of interest accrued at the Class B-2
Notes Interest Rate for the related
Accrual Period on the Outstanding Amount of
the Class B-2 Notes immediately
prior to such Auction Rate Distribution
Date for the Class B-2 Notes; and (b)
the Class B-2 Notes Interest Shortfall for
such Auction Rate Distribution Date
for the Class B-2 Notes, based on the
actual number of days in such Accrual
Period divided by 360 and rounding the
resultant figure to the fifth decimal
place, as determined by the Issuer, or by
the Administrator on behalf of the
Issuer.
"CLASS B-2 NOTES INTEREST SHORTFALL" shall mean, with respect to
any
Auction Rate Distribution Date for the
Class B-2 Notes, the excess, if any, of
(a) the Class B-2 Notes Interest
Distribution Amount on the immediately
preceding Auction Rate Distribution Date
for the Class B-2 Notes over (b) the
amount of interest actually distributed to
the Registered Owners of the Class
B-2 Notes on such preceding Auction Rate
Distribution Date for the Class B-2
Notes, plus interest on the amount of such
excess interest due to the Registered
Owners of the Class B-2 Notes, to the
extent permitted by law, at the interest
rate borne by the Class B-2 Notes from such
immediately preceding Auction Rate
Distribution Date for the Class B-2 Notes
to the current Auction Rate
Distribution Date for the Class B-2 Notes,
as determined by the Issuer, or by
the Administrator on behalf of the
Issuer.
"CLEARSTREAM" shall mean Clearstream Banking, societe anonyme or
its
successor in interest.
"CLOSING DATE" shall mean April 29, 2004, the date of initial
issuance
and delivery of the Series 2004-2 Notes
hereunder.
"CODE" shall mean the Internal Revenue Code of 1986, as amended
from
time to time. Each reference to a section
of the Code herein shall be deemed to
include the United States Treasury
Regulations, including applicable temporary
and proposed regulations relating to such
section which are applicable to the
Series 2004-2 Notes or the use of the
proceeds thereof. A reference to any
specific section of the Code shall be
deemed also to be a reference to the
comparable provisions of any enactment
which supersedes or replaces the Code
thereunder from time to time.
"COLLECTION FUND" shall mean the Fund by that name created in
Section
5.01(d) hereof and further described in
Section 5.05 hereof, including any
Accounts and Subaccounts created
therein.
12
<PAGE>
"COMMERCIAL PAPER RATE TRIGGER" shall mean as of the last day of
any
calendar quarter (a) the average daily
90-Day Financial Commercial Paper Rate
for such calendar quarter exceeded 6.80%
per annum and (b) 5% or more of the
Financed Eligible Loans within the Trust
Estate are eligible to receive Interest
Subsidy Payments pursuant to Section
438(b)(2)(B)(i) of the Higher Education
Act.
"COMMISSION" shall mean the Securities and Exchange Commission.
"CONSOLIDATION FEE" shall mean any federal origination fee,
monthly
rebate fee or similar fee payable to the
Department of Education relating to the
origination or ownership of Consolidation
Loans.
"CONSOLIDATION LOAN" shall mean an Eligible Loan made pursuant
to
Section 428C of the Higher Education Act to
consolidate the borrower's
obligations under various federally
authorized student loan programs into a
single loan, as supplemented by the
addition of any related Add-on Consolidation
Loan.
"CONTRACT OF INSURANCE" shall mean the contract of insurance
between the
Eligible Lender and the Secretary.
"COUNTERPARTY" shall mean any counterparty under a Derivative
Product.
"COUNTERPARTY PAYMENT ACCOUNT" shall mean each Account by that
name
established for a Derivative Product
pursuant to Section 5.01(e) hereof within
the Note Payment Fund for the payment of
Issuer Derivative Payments and further
described in Section 5.06 hereof, including
any Subaccounts created therein.
"COUNTERPARTY PAYMENTS" shall mean any payment to be made to, or
for the
benefit of, the Issuer under a Derivative
Product.
"CUSTODIAN AGREEMENT" shall mean the Custodian Agreement, dated as
of
April 1, 2004, among the Issuer, the
Eligible Lender Trustee, the Indenture
Trustee and Nelnet, Inc., as custodian, and
any other custodian agreements with
any Servicer, subservicer or other
custodian or bailee related to Financed
Eligible Loans, each as amended and
supplemented pursuant to the terms and
provisions thereof.
"DEFINITIVE CERTIFICATES" shall mean definitive, fully
registered
certificates evidencing the Series 2004-2
Notes which are not registered in the
name of the nominee of a Securities
Depository.
"DEPARTMENT OF EDUCATION" shall mean the United Stated Department
of
Education, or any successor thereto.
"DERIVATIVE PRODUCT" shall mean any written contract or
agreement
between the Issuer and a Counterparty
entered into pursuant to Section 3.03
hereof for any interest rate swap, cap,
floor, collar or other investment
contract, including the General Interest
Rate Cap Derivative Agreement and the
LIBOR Interest Rate Cap Derivative
Agreement.
13
<PAGE>
"DERIVATIVE PRODUCT DISTRIBUTION DATE" shall mean, with respect to
a
Derivative Product, any date specified in
such Derivative Product on which an
Issuer Derivative Payment is due and
payable under such Derivative Product.
"DERIVATIVE VALUE" shall mean, with respect to any Derivative
Product,
the value of such Derivative Product to the
Counterparty; provided that such
value is defined and calculated in
substantially the same manner as amounts are
defined and calculated pursuant to the
applicable provisions of an ISDA Master
Agreement.
"DISSOLUTION" shall mean, with respect to Article XI hereof and
the
Issuer, the occurrence of any of the events
which would cause a dissolution of a
limited partnership organized under the
laws of the State of Delaware, the sole
general partner of which is the Issuer.
"DISTRIBUTION DATE" shall mean (i) each Quarterly Distribution
Date,
(ii) each Auction Rate Distribution Date
and (iii) each Derivative Product
Distribution Date.
"DISTRIBUTION DATE CERTIFICATE" shall mean a certificate signed by
the
Issuer, or by the Administrator on behalf
of the Issuer, in substantially the
form attached as Exhibit K hereto.
"DTC" shall mean The Depository Trust Company or its successors
in
interest.
"ELIGIBLE LENDER" shall mean any "ELIGIBLE LENDER," as defined in
the
Higher Education Act, and which has
received an eligible lender designation from
the Secretary with respect to Eligible
Loans made under the Higher Education
Act.
"ELIGIBLE LENDER TRUSTEE" shall mean Wells Fargo Bank, National
Association, a national banking
association, not in its individual capacity but
solely as Eligible Lender Trustee hereunder
and under the Eligible Lender Trust
Agreement, or its successors and
assigns.
"ELIGIBLE LENDER TRUSTEE FEE" shall mean the annual compensation to
the
Eligible Lender Trustee for acting as
eligible lender trustee hereunder and
under the Eligible Lender Trust Agreement.
So long as the Indenture Trustee is
acting as Eligible Lender Trustee hereunder
and under the Eligible Lender Trust
Agreement, there shall be no Eligible
Lender Trustee Fee.
"ELIGIBLE LENDER TRUST AGREEMENT" shall mean the Eligible Lender
Trust
Agreement, dated as of April 1, 2004,
between the Issuer and the Eligible Lender
Trustee, as amended and supplemented
pursuant to the terms and provisions
thereof.
"ELIGIBLE LOAN" shall mean any loan made to finance
post-secondary
education that (a)(i) is made to an
eligible borrower in compliance with the
requirements of the Higher Education Act
(including Consolidation Loans and
Add-on Consolidation Loans), (ii) is
guaranteed by a Guaranty Agency or Insured
by the Secretary, (iii) bears interest at
not less than the maximum applicable
rate of interest permitted by the Higher
Education Act at the time originated,
or any lesser rate of interest shown in the
cash flow analyses provided to each
Rating Agency on the Closing Date; provided
that such rate of interest may be
reduced if Rating Confirmation is obtained,
based on new cash flow analyses
containing such assumptions as the Issuer
shall reasonably determine, and (iv)
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<PAGE>
is eligible for Special Allowance Payments;
or (b) is insured by the Secretary
of Health and Human Services pursuant to
the Public Health Services Act;
provided, however, that if after any
reauthorization or amendment of the Higher
Education Act loans authorized thereunder,
including, without limitation, their
benefits, any provisions, or the servicing
thereof, are materially different
from loans authorized prior to such
reauthorization or amendment, such loans
shall not constitute Eligible Loans unless
a Rating Confirmation is obtained.
"ELIGIBLE LOAN ACQUISITION CERTIFICATE" shall mean a certificate
signed
by an Authorized Representative of the
Issuer in substantially the form attached
as Exhibit I hereto.
"ENDING BALANCE FACTOR" shall mean, for any given day, the
number
calculated by dividing the unpaid principal
balance of the appropriate Class of
the Outstanding LIBOR Rate Notes or Reset
Rate Notes (after any Principal
Reduction Payments are made thereto) by the
original principal balance of such
Class of the LIBOR Rate Notes or Reset Rate
Notes, and rounding the result to
nine decimal places.
"ESCROW RESERVE AGREEMENT" shall mean the Escrow Reserve
Agreement,
dated as of April 1, 2004, between the
Issuer and Wells Fargo Bank, National
Association, as escrow agent, as amended
and supplemented pursuant to the terms
and provisions thereof.
"EUROCLEAR" shall mean The Euroclear System or its successor in
interest.
"EVENT OF BANKRUPTCY" shall mean, with respect to any Person (a)
such
Person shall have commenced a voluntary
case or other proceeding seeking
liquidation, reorganization, or other
relief with respect to itself or its debts
under any bankruptcy, insolvency, or other
similar law now or hereafter in
effect or seeking the appointment of a
trustee, receiver, liquidator, custodian,
or other similar official of it or any
substantial part of its property, or
shall have made a general assignment for
the benefit of creditors, or shall have
declared a moratorium with respect to its
debts or shall have failed generally
to pay its debts as they become due, or
shall have taken any action to authorize
any of the foregoing; or (b) an involuntary
case or other proceeding shall have
been commenced against such Person seeking
liquidation, reorganization, or other
relief with respect to it or its debts
under any bankruptcy, insolvency or other
similar law now or hereafter in effect or
seeking the appointment of a trustee,
receiver, liquidator, custodian, or other
similar official of it or any
substantial part of its property provided
such action or proceeding is not
dismissed within 60 days.
"EVENT OF DEFAULT" shall have the meaning specified in Article
VI
hereof.
"FINANCED" or "FINANCING" when used with respect to Eligible
Loans,
shall mean or refer to Eligible Loans (a)
financed by the Issuer with balances
in the Acquisition Fund or otherwise
deposited in or accounted for in the
Acquisition Fund or otherwise constituting
a part of the Trust Estate and (b)
Eligible Loans substituted or exchanged for
Financed Eligible Loans, but does
not include Eligible Loans released from
the lien of this Indenture and sold or
transferred, to the extent permitted by
this Indenture.
"FISCAL YEAR" shall mean the fiscal year of the Issuer ending
December
31, or as otherwise established from time
to time.
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<PAGE>
"FITCH" shall mean Fitch, Inc., also known as Fitch Ratings, a
corporation organized and existing under
the laws of the State of Delaware, its
successors and assigns.
"FUNDS" shall mean each of the Funds created pursuant to Section
5.01
hereof.
"GENERAL INTEREST RATE CAP DERIVATIVE AGREEMENT" shall mean the
ISDA
Master Agreement, Schedule and
Confirmation, each dated April 21, 2004, between
the Issuer and Morgan Stanley Capital
Services, Inc., as amended and
supplemented pursuant to the terms and
provisions thereof, which General
Interest Rate Cap Derivative Agreement
shall constitute a Derivative Agreement
hereunder.
"GLOBAL
CERTIFICATE" shall mean any Series 2004-2 Note registered in
the
name of a Securities Depository or its
nominee. Each Rule 144A Certificate or
Regulation S Certificate shall constitute a
"Global Certificate."
"GUARANTEE" or "GUARANTEED" shall mean, with respect to an
Eligible
Loan, the insurance or guarantee by a
Guaranty Agency pursuant to such Guaranty
Agency's Guarantee Agreement of the maximum
percentage of the principal of and
accrued interest on such Eligible Loan
allowed by the terms of the Higher
Education Act with respect to such Eligible
Loan at the time it was originated
and the coverage of such Eligible Loan by
the federal reimbursement contracts,
providing, among other things, for
reimbursement to a Guaranty Agency for
payments made by it on defaulted Eligible
Loans insured or guaranteed by a
Guaranty Agency of at least the minimum
reimbursement allowed by the Higher
Education Act with respect to a particular
Eligible Loan.
"GUARANTEE AGREEMENTS" shall mean a guaranty or lender agreement
between
the Indenture Trustee or the Eligible
Lender Trustee and any Guaranty Agency,
and any amendments thereto.
"GUARANTY AGENCY" shall mean any entity authorized to guarantee
student
loans under the Higher Education Act and
with which the Indenture Trustee and
the Eligible Lender Trustee maintains a
Guarantee Agreement.
"HIGHER EDUCATION ACT" shall mean the Higher Education Act of 1965,
as
amended or supplemented from time to time,
or any successor federal act and all
regulations, directives, bulletins, and
guidelines promulgated from time to time
thereunder.
"HIGHEST PRIORITY OBLIGATIONS" shall mean (a) at any time when
Senior
Obligations are Outstanding, the Senior
Obligations and (b) at any time when no
Senior Obligations are Outstanding, the
Subordinate Obligations.
"INDENTURE" shall mean this Indenture of Trust, including all
supplements and amendments hereto.
"INDENTURE TRUSTEE" shall mean Wells Fargo Bank, National
Association,
acting in its capacity as Indenture Trustee
under this Indenture, or any
successor trustee designated pursuant to
this Indenture.
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<PAGE>
"INDENTURE TRUSTEE FEE" shall mean an amount equal to the annual
amount
set in the Trustee Fee Letter dated April
23, 2004. Such fee shall be in
satisfaction of the Indenture Trustee's
compensation as trustee hereunder and as
eligible lender trustee hereunder and under
the Eligible Lender Trust Agreement.
"INITIAL PURCHASERS" shall mean with respect to the Class A-5a
Notes,
collectively, J.P. Morgan Securities Inc.,
Morgan Stanley & Co. Incorporated,
Barclays Capital Inc., Citigroup Global
Markets Inc. and SG Cowen Securities
Corporation.
"INSURANCE" or "INSURED" or "INSURING" shall mean, with respect to
an
Eligible Loan, the insuring by the
Secretary (as evidenced by a Certificate of
Insurance or other document or
certification issued under the provisions of the
Higher Education Act) under the Higher
Education Act of 100% of the principal of
and accrued interest on such Eligible
Loan.
"INTEREST BENEFIT PAYMENT" shall mean an interest payment on
Eligible
Loans received pursuant to the Higher
Education Act and an agreement with the
federal government, or any similar
payments.
"INVESTMENT AGREEMENT" shall mean, collectively, (a) the
Investment
Agreement, dated April 29, 2004, between
the Indenture Trustee and Trinity Plus
Funding Company, LLC, (b) the Investment
Agreement, dated April 29, 2004,
between the Indenture Trustee and FSA
Capital Management Services LLC, and
acknowledged by the Issuer and (c) any
other investment agreement approved by
the Rating Agencies, each as amended and
supplemented pursuant to the terms and
provisions thereof.
"INVESTMENT
SECURITIES" shall mean book-entry securities, negotiable
instruments or securities represented by
instruments in bearer or registered
form, all purchased at a price not in
excess of par, which evidence:
(a) direct obligations of, and obligations fully guaranteed as
to
timely payment by, the United States of America;
(b) demand deposits, time deposits or certificates of deposit
of
any depository institution or trust company incorporated under the
laws
of the United States of America or any State (or any domestic
branch of
a foreign bank) and subject to supervision and examination by
federal or
state banking or depository institution authorities (including
depository receipts issued by any such institution or trust company
as
custodian with respect to any obligation referred to in paragraph
(a)
above or portion of such obligation for the benefit of the holders
of
such depository receipts); provided, however, that at the time of
the
investment therein (which shall be deemed to be made again each
time
funds are reinvested following each Distribution Date), the
commercial
paper or other short-term senior unsecured debt obligations (other
than
such obligations the rating of which is based on the credit of a
Person
other than such depository institution or trust company) thereof
shall
have a credit rating from each of the Rating Agencies in the
highest
investment category granted thereby;
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<PAGE>
(c) commercial paper and auction rate securities having, at the
time of the investment or contractual commitment to invest therein,
a
rating from each of
the Rating Agencies in the highest investment
category granted thereby;
(d) investments in money market funds having a rating from each
of the Rating Agencies rating such fund, in the highest
investment
category granted thereby provided at least Moody's has rated such
fund
(including funds for which the Indenture Trustee, a Servicer or
the
Eligible Lender Trustee or any of their respective affiliates
is
investment manager or advisor); provided, however, that such
Fitch
rating shall be "AA/F1+" or higher for any money market fund which
has
the ability to maintain a stable one-dollar net asset value per
share
and whose shares are freely transferable on a daily basis;
(e) bankers' acceptances issued by any depository institution
or
trust company referred to in clause (b) above;
(f) repurchase obligations with respect to any security that is
a
direct obligation of, or fully guaranteed by, the United States
of
America or any agency or instrumentality thereof the obligations
of
which are backed by the full faith and credit of the United States
of
America, in either case entered into with a depository institution
or
trust company (acting as principal) described in clause (b)
above;
(g) any Investment Agreement; and
(h) any other investment permitted by each of the Rating
Agencies
as evidenced by a Rating Confirmation delivered to the
Indenture
Trustee.
Notwithstanding the foregoing, for purposes
of clauses (b), (c), (e) and (f)
above, the provider must have a Moody's
long term rating of "Aaa" if the
investment is longer than 6 months, "Aa3"
if the investment is between 90 and
180 days, and "A1" if the investment is
between 30 and 90 days. No obligation
will be considered to be rated in the
highest investment category if it has an
"r" highlighter affixed to its rating.
"ISDA MASTER AGREEMENT" shall mean the 1992 ISDA Master
Agreement
(Multicurrency - Cross Border), as amended
from time to time, and as in effect
with respect to any Derivative Product.
"ISSUER" shall mean Nelnet Education Loan Funding, Inc., a
corporation
organized and existing under the laws of
the State, and any successor thereto.
"ISSUER ORDER" shall mean a written order signed in the name of
the
Issuer by an Authorized Representative.
"ISSUER DERIVATIVE PAYMENT" shall mean a payment required to be
made by
or on behalf of the Issuer due to a
Counterparty pursuant to a Derivative
Product (including Priority Termination
Payments, but excluding other
Termination Payments).
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<PAGE>
"LIBOR DETERMINATION DATE" shall mean, for each Accrual Period,
the
second Business Day before the beginning of
that Accrual Period.
"LIBOR INTEREST RATE CAP DERIVATIVE AGREEMENT" shall mean the
ISDA
Master Agreement, Schedule and
Confirmation, each dated April 21, 2004, between
the Issuer and Morgan Stanley Capital
Services, Inc., as amended and
supplemented pursuant to the terms and
provisions thereof and relating
specifically to the LIBOR Rate Notes, which
LIBOR Interest Rate Cap Derivative
Agreement shall constitute a Derivative
Agreement hereunder.
"LIBOR RATE NOTES" shall mean, collectively, the Class A-1 Notes,
the
Class A-2 Notes, the Class A-3 Notes and
the Class A-4 Notes.
"LIQUIDATED FINANCED ELIGIBLE LOAN" shall mean any defaulted
Financed
Eligible Loan liquidated by a Servicer
(which shall not include any Financed
Eligible Loan on which payments are
received from a Guaranty Agency) or which a
Servicer has, after using all reasonable
efforts to realize upon such Financed
Eligible Loan, determined to charge
off.
"LIQUIDATION PROCEEDS" shall mean, with respect to any
Liquidated
Financed Eligible Loan which became a
Liquidated Financed Eligible Loan during
the current calendar quarter in accordance
with a Servicer's customary servicing
procedures, the moneys collected in respect
of the liquidation thereof from
whatever source, other than moneys
collected with respect to any Liquidated
Financed Eligible Loan which was written
off in prior calendar quarters or
during the current calendar quarter, net of
the sum of any amounts expended by a
Servicer in connection with such
liquidation and any amounts required by law to
be remitted to the obligor on such
Liquidated Financed Eligible Loan.
"MASTER PROMISSORY NOTE" shall mean a note (a) that evidences one
or
more loans made to finance post-secondary
education financing and (b) that is in
the form mandated by Section 432(m)(1) of
the Higher Education Act, as added by
Public Law No: 105-244, ss. 427, 112 Stat.
1702 (1998), as amended by Public Law
No: 106-554 (enacted December 21, 2000) and
as codified in 20 U.S.C. ss.
1082(m)(1).
"MATURITY" when used with respect to any Series 2004-2 Note, shall
mean
the date on which the principal thereof
becomes due and payable as therein or
herein provided, whether at its Stated
Maturity, by earlier redemption, by
declaration of acceleration, or
otherwise.
"MONTHLY SERVICING PAYMENT DATE" shall mean the twenty-fifth day of
each
calendar month or, if such day is not a
Business Day, the immediately following
Business Day, commencing on May 25,
2004.
"MONTHLY SERVICING PAYMENT DATE CERTIFICATE" shall mean a
certificate
signed by the Issuer, or by the
Administrator on behalf of the Issuer, in
substantially the form attached as Exhibit
J hereto.
"MOODY'S" shall mean Moody's Investors Service, its successors
and
assigns.
"90-DAY FINANCIAL COMMERCIAL PAPER RATE" shall mean the 90-Day
AA
Financial Commercial Paper rate posted on
the Federal Reserve Release entitled
"Commercial Paper Rates and Outstandings,"
which rate may be available on the
Internet at
www.federalreserve.gov/releases/cp.
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<PAGE>
"NON-AMORTIZING RESET RATE NOTES" shall mean the Reset Rate Notes
when
the Principal Reduction Payments on the
Reset Rate Notes are to be paid only on
the Business Day succeeding its current
Reset Period.
"NON-U.S. PERSON" shall mean a Person who is not a U.S. Person,
as
defined in Regulation S.
"NOTE COUNSEL" shall mean Kutak Rock LLP or any other
nationally
recognized law firm which is requested to
deliver its approving opinion with
respect to the Series 2004-2 Notes.
"NOTE PAYMENT FUND" shall mean the Fund by that name created in
Section
5.01(e) hereof and further described in
Section 5.06 hereof, including any
Accounts and Subaccounts created
therein.
"OBLIGATIONS" shall mean, collectively, the Senior Obligations and
the
Subordinate Obligations.
"OUTSTANDING" shall mean (a) when used in connection with any
Series
2004-2 Note, a Series 2004-2 Note which has
been executed and delivered pursuant
to this Indenture which at such time
remains unpaid as to principal or interest,
unless provision has been made for such
payment pursuant to Section 10.02
hereof, excluding Series 2004-2 Notes which
have been replaced pursuant to
Section 2.03 hereof, and (b) when used in
connection with a Derivative Product,
a Derivative Product which has not expired
or been terminated, unless provision
has been made for such payment pursuant to
Section 10.02 hereof.
"OUTSTANDING AMOUNT" shall mean the aggregate principal amount of
all
Series 2004-2 Notes Outstanding at the date
of determination or, if the context
so requires, the aggregate principal amount
of one or more Classes of the Class
A Notes or Class B Notes Outstanding at the
date of determination.
"PERSON" shall mean an individual, corporation, partnership,
joint
venture, association, joint stock company,
trust, limited liability company,
unincorporated organization, or government
or agency or political subdivision
thereof.
"POOL BALANCE" for any date means the aggregate principal balance
of the
Student Loans held in the Trust Estate on
that date, including accrued interest
that is expected to be capitalized, as
reduced by the principal portion of:
(a) all payments received in the Trust Estate through that date
from the borrowers, the Guaranty Agencies and the Department of
Education,
(b) all amounts received in the Trust Estate through that date
from purchases of Student Loans,
20
<PAGE>
(c) all liquidation proceeds and realized losses on the Student
Loans through that
date,
(d) the amount of any adjustment to balances of the student
loans
that the Servicer makes under the Servicing Agreement through that
date,
and
(e) the amount by which guarantor reimbursements of principal
on
defaulted Student Loans through that date are reduced from 100% to
98%,
or other applicable percentage, as required by the risk sharing
provisions of the Higher Education Act.
"PRINCIPAL OFFICE" shall mean the principal office of the party
indicated, as set forth in Section 9.01
hereof or elsewhere in this Indenture.
"PRINCIPAL REDUCTION PAYMENTS" shall mean principal payments made
prior
to a Stated Maturity from the Note Payment
Fund on the Class A-1 Notes, the
Class A-2 Notes, the Class A-3 Notes, the
Class A-4 Notes or the Class A-5a
Notes (unless the Class A-5a Notes are
reset to bear interest at an Auction
Rate) which reduce the principal balances
of all notes within such Class, as
appropriate, on a pro rata basis.
"PRIORITY TERMINATION PAYMENT" shall mean, with respect to a
Derivative
Product, any termination payment payable by
or on behalf of the Issuer under
such Derivative Product relating to an
early termination of such Derivative
Product by the Counterparty, as the
non-defaulting party, following (i) the
failure of the Issuer to make an Issuer
Derivative Payment when due (after any
applicable grace periods), but only if the
Issuer had sufficient moneys on
deposit in the Collection Fund (after
giving effect to any required transfers
thereto) as of the due date of such Issuer
Derivative Payment, (ii) the
occurrence of an Event of Default specified
in Section 6.01(f) hereof, (iii) the
Indenture Trustee's taking any action
hereunder to liquidate the entire Trust
Estate following an Event of Default and
acceleration of the Series 2004-2 Notes
pursuant to Section 6.09 hereof or (iv) any
other termination payments permitted
by the Rating Agencies with a Rating
Confirmation.
"PROGRAM" shall mean
the Issuer's program for the origination and the
purchase of Eligible Loans, as the same may
be modified from time to time.
"PROGRAM EXPENSES" shall mean (a) the fees and expenses of the
Indenture
Trustee and the Eligible Lender Trustee;
(b) the fees and expenses of the
Auction Agent and any Broker-Dealer; (c)
the fees and expenses of any
Remarketing Agent; (d) the fees and
expenses due to any credit provider of the
Series 2004-2 Notes for which a credit
facility or liquidity facility is in
place; (e) the fees of any Servicer and/or
custodian under any Servicing
Agreement or Custodian Agreement; (f) the
fees and expenses of any Administrator
and the Issuer incurred in connection with
the preparation of legal opinions and
other authorized reports or statements
attributable to the Series 2004-2 Notes
and the Financed Eligible Loans; (g)
transfer fees, loan origination fees,
Consolidation Fees and all other fees due
to the Department of Education on
Financed Eligible Loans; (h) fees and
expenses associated with the delivery of a
credit facility or liquidity facility; (i)
fees and expenses associated with
(but not payments under) Derivative
Products; (j) the costs of remarketing any
of the Series 2004-2 Notes and (k) expenses
incurred for the Issuer's
maintenance and operation of its Program as
a direct consequence of this
21
<PAGE>
Indenture, the Series 2004-2 Notes or the
Financed Eligible Loans; including,
but not limited to, taxes, the reasonable
fees and expenses of attorneys,
agents, financial advisors, consultants,
accountants and other professionals,
attributable to such maintenance and
operation, marketing expenses for the
Program and a prorated portion of the rent,
personnel compensation, office
supplies and equipment, travel expenses and
other lawful payments made to
members of the Board of Directors.
"PRO RATA PORTION" shall mean a percentage determined by dividing
the
Outstanding Amount of the Reset Rate Notes
or Auction Rate Notes proposed to be
redeemed or paid (less, with respect to the
Reset Rate Notes, an allocable
portion of the amounts in the Redemption
Account of the Note Payment Fund
corresponding to the Reset Rate Notes that
were deposited therein prior to the
preceding Quarterly Payment Date) by the
Outstanding Amount of all of the Series
2004-2 Notes (less any amounts in the
Redemption Account of the Note Payment
Fund corresponding to the Reset Rate Notes
that were deposited therein prior to
the preceding Quarterly Payment Date).
"PRO RATA MINIMUM PURCHASE AMOUNT" shall have the meaning ascribed
to
such term in Section 2.05(c) of Appendix A
hereto with respect to the Reset Rate
Notes and Section 2.04 of Appendix B with
respect to the Auction Rate Notes.
"PURCHASE OPTION" shall mean the options described in Section
2.07(a)
and (b) of Appendix A hereto and Section
2.04 of Appendix B hereto owned by
Nelnet, Inc. or one of its subsidiaries as
a permitted transferee (provided,
that no such subsidiary shall possess the
Purchase Option if it at any time
owned an interest in any of the Financed
Eligible Loans) to purchase Financed
Eligible Loans.
"QUALIFIED INSTITUTIONAL BUYER" shall mean a "qualified
institutional
buyer" within the meaning of Rule 144A.
"QUARTERLY DISTRIBUTION DATE" shall mean the twenty-fifth (25th)
day of
each February, May, August and November,
commencing on August 25, 2004, or, if
such day is not a Business Day, the
immediately following Business Day.
"QUARTERLY FUNDING AMOUNT" shall mean, for the Reset Rate Notes for
any
Quarterly Distribution Date (a)(i) the
Reset Period Target Amount for that
Quarterly Distribution Date, minus (ii) the
amount on deposit in the Remarketing
Fee Fund immediately prior to that
Quarterly Distribution Date; divided by (b)
the number of Quarterly Distribution Dates
from and excluding that Quarterly
Distribution Date through and including the
next Reset Date for the Reset Rate
Notes.
"RATING" shall mean one of the rating categories of Fitch, Moody's
and
S&P or any other Rating Agency,
provided Fitch, Moody's and S&P or any other
Rating Agency, as the case may be, is
currently rating the Series 2004-2 Notes.
"RATING AGENCY" shall mean, collectively, Fitch, Moody's and
S&P and
their successors and assigns or any other
Rating Agency; provided that in each
such case the Issuer has requested such
Rating Agency to maintain a Rating on
any of the Series 2004-2 Notes. If no such
organization or successor is any
longer in existence, "Rating Agency" shall
be a nationally recognized
statistical rating organization or other
comparable Person designated by the
Issuer, notice of which designation shall
be given to the Indenture Trustee.
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<PAGE>
"RATING AGENCY CONDITION" shall mean, with respect to any action,
that
each Rating Agency shall have been given
prior notice thereof and that each of
the Rating Agencies shall have issued a
Rating Confirmation.
"RATING CONFIRMATION" shall mean a letter from each Rating Agency
then
providing a Rating for any of the Series
2004-2 Notes at the request of the
Issuer, confirming that the action proposed
to be taken by the Issuer will not,
in and of itself, result in a downgrade of
any of the Ratings then applicable to
the Series 2004-2 Notes, or cause any
Rating Agency to suspend or withdraw the
Ratings then applicable to the Series
2004-2 Notes.
"REALIZED LOSS" shall mean the excess of the principal balance
(including any interest that had been or
had been expected to be capitalized) of
any Liquidated Financed Eligible Loan over
Liquidation Proceeds with respect to
such Financed Eligible Loan to the extent
allocable to principal (including any
interest that had been or had been expected
to be capitalized).
"RECORD DATE" shall mean (a) with respect to the LIBOR Rate Notes
and
the Reset Rate Notes, the close of business
on the Business Day preceding each
Quarterly Distribution Date and (b) with
respect to the Auction Rate Notes, the
Business Day next preceding the applicable
Auction Rate Distribution Date.
"RECOVERIES OF PRINCIPAL" shall mean all amounts received by
the
Indenture Trustee from or on account of any
Financed Eligible Loan as a recovery
of the principal amount thereof, including
scheduled, delinquent and advance
payments, payouts or prepayments, proceeds
from insurance or from the sale,
assignment, transfer, reallocation or other
disposition of a Financed Eligible
Loan and any payments representing such
principal from the guarantee or
insurance of any Financed Eligible Loan,
net of accrued interest which will be
capitalized at a later date.
"REDEMPTION ACCOUNTS" shall mean one or more of the Class A-1
Redemption
Account, the Class A-2 Redemption Account,
the Class A-3 Redemption Account, the
Class A-4 Redemption Account, the Class
A-5a Redemption Account, the Class A-5b
Redemption Account, the Class A-5c
Redemption Account and the Class B Redemption
Account, as the context requires.
"REGISTERED OWNER" shall mean the Person in whose name a Series
2004-2
Note is registered on the Series 2004-2
Note registration books maintained by
the Indenture Trustee, and shall also mean
with respect to a Derivative Product,
any Counterparty, unless the context
otherwise requires. All references herein
to "Registered Owner" shall reflect the
rights of beneficial owners of the
Series 2004-2 Notes as they may indirectly
exercise such rights through a
Securities Depository and its Agent
Members, except as otherwise specified
herein; provided, however, that the parties
hereto shall be required to
recognize as a "Registered Owner" only the
Person in whose name a Series 2004-2
Note is registered in the registration
books of the Indenture Trustee.
"REGULATION S" shall mean Regulation S under the Securities
Act.
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<PAGE>
"REGULATION S CERTIFICATE" shall have the meaning ascribed to such
term
in Section 2.01(b) hereof.
REGULATIONS" shall mean the Regulations promulgated from time to
time by
the Secretary or any Guaranty Agency
guaranteeing Financed Eligible Loans.
"REMARKETING FEE FUND" shall mean the Fund by that name created
in
Section 5.01(f) hereof and further
described in Section 5.07 hereof, including
any Accounts and Subaccounts created
therein.
"RESERVE FUND" shall mean the Fund by that name created in
Section
5.01(g) hereof and further described in
Section 5.08 hereof, including any
Accounts and Subaccounts created
therein.
"RESERVE FUND REQUIREMENT" shall mean 0.25% of the Pool Balance
determined as of the close of business on
the last day of the preceding calendar
month; provided, however, that so long as
any Series 2004-2 Notes remain
Outstanding there shall be at least 0.15%
of the Pool Balance on the Closing
Date ($2,500,017) on deposit in the Reserve
Fund or such lower amount as may be
agreed to by the Rating Agencies as
evidenced by a Rating Confirmation.
"RESERVE FUND SURETY BOND" shall mean a letter of credit, surety
bond,
insurance policy, agreement guaranteeing
payment or other undertaking by a
financial institution to ensure that cash
in an amount required to meet a
Reserve Fund Requirement is available to
the Indenture Trustee.
"RESET PERIOD TARGET AMOUNT" shall mean (a) for any Quarterly
Distribution Date through and including the
Initial Reset Date for the Class
A-5a Notes, $380,000.00; and (b) for any
Quarterly Distribution Date thereafter,
the highest remarketing fee payable to the
Remarketing Agents for the Class A-5a
Notes (not to exceed 0.10% per annum of the
maximum Outstanding Amount of such
Class of the Reset Rate Notes that could be
remarketed) on the next Reset Date,
as determined by the Issuer, or by the
Administrator on behalf of the Issuer,
based on the assumed weighted average life
of the Class A-5a Notes and the
maximum remarketing fee set forth in a
schedule to the Remarketing Agreement, as
such schedule may be amended from time to
time.
"RESET RATE NOTES" shall mean the Class A-5a Notes (unless the
Class
A-5a Notes have been reset to bear interest
at an Auction Rate pursuant to
Section 2.01(f) of Appendix A hereto).
"RESET RATE NOTES CARRY-OVER AMOUNT" shall have the meaning
ascribed to
such term in Appendix A hereto.
"RESOLUTION" shall mean a resolution duly adopted by the Board
of
Directors.
"REVENUE" or "REVENUES" shall mean all Recoveries of Principal,
payments, proceeds, charges and other
income received by the Indenture Trustee
or the Issuer from or on account of any
Financed Eligible Loan (including
scheduled, delinquent and advance payments
of and any insurance proceeds with
respect to and interest, including Interest
Benefit Payments on any Financed
Eligible Loan and any Special Allowance
Payment received by the Issuer with
respect to any Financed Eligible Loan) and
all interest earned or gain realized
from the investment of amounts in any Fund,
Account or Subaccount and all
Counterparty Payments received by the
Issuer pursuant to a Derivative Product.
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"RULE 144A" shall mean Rule 144A promulgated under the Securities
Act.
"RULE 144A CERTIFICATE" shall have the meaning ascribed to such
term in
Section 2.01(b) hereof.
"S&P" shall mean Standard & Poor's Ratings Group, a
Division of The
McGraw-Hill Companies, Inc., its successors
and assigns.
"SECRETARY" shall mean the Secretary of the United States
Department of
Education or any successor to the pertinent
functions thereof under the Higher
Education Act.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended.
"SECURITIES DEPOSITORY" shall mean DTC, or if, (a) DTC resigns from
its
functions as depository of the Series
2004-2 Notes or (b) the Issuer
discontinues use of DTC, any other
securities depository which agrees to follow
the procedures required to be followed by a
securities depository in connection
with the Series 2004-2 Notes and which is
selected by the Issuer with the
consent of the Indenture Trustee.
"SECURITIES EXCHANGE ACT" shall mean the Securities Exchange Act
of
1934, as amended.
"SELLER" shall mean an Eligible Lender from which the Issuer is
purchasing or has purchased or agreed to
purchase Eligible Loans pursuant to a
Student Loan Purchase Agreement between the
Issuer and such Eligible Lender.
"SENIOR OBLIGATIONS" shall mean the Class A Notes and any
Derivative
Product, the priority of payment of which
is equal with that of interest on the
Class A Notes.
"SERIES 2004-2 NOTES" shall mean, collectively, the Class A Notes
and
the Class B Notes.
"SERVICER" shall mean, collectively, Nelnet, Inc., Sallie Mae
Servicing,
EFS Services, Inc., ACS Educational
Services, Inc., Pennsylvania Higher
Education Assistance Agency, Great Lakes
Educational Loan Services, Inc. and any
other additional Servicer, subservicer or
successor Servicer or subservicer
selected by the Issuer, including an
affiliate of the Issuer, so long as the
Issuer obtains a Rating Confirmation as to
each such other Servicer or
subservicer.
"SERVICER'S REPORT" shall mean the servicer reports to be furnished
to
the Issuer by a Servicer pursuant to its
Servicing Agreement.
"SERVICING AGREEMENT" shall mean, collectively, (a) the
Servicing
Agreement, dated as of April 1, 2004,
between the Issuer and Nelnet, Inc., as
supplemented and amended pursuant to its
terms, and (b) any other servicing
agreement or subservicing agreement entered
into with a Servicer or a
subservicer.
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"SERVICING FEE" shall mean the fees and expenses due to a Servicer
under
the terms of its Servicing Agreement and
the fees and expenses due to any
custodian under the terms of a Custodian
Agreement.
"SPECIAL ALLOWANCE PAYMENTS" shall mean the special allowance
payments
authorized to be made by the Secretary by
Section 438 of the Higher Education
Act, or similar allowances, if any,
authorized from time to time by federal law
or regulation.
"STATE" shall mean the State of Nebraska.
"STATED MATURITY" shall mean the date specified in the Series
2004-2
Notes as the fixed date on which principal
of such Series 2004-2 Notes is due
and payable.
"STUDENT LOAN PURCHASE AGREEMENT" shall mean a loan purchase
agreement
entered into for the purchase of Eligible
Loans into the Trust Estate from a
third party seller, substantially in the
form attached as Exhibit L hereto.
"SUBACCOUNT" shall mean any of the subaccounts which may be created
and
established within any Account pursuant to
this Indenture.
"SUBORDINATE INTEREST TRIGGER" shall mean, with respect to any
Distribution Date, (a) the Total Parity
Ratio is less than 97% or such other
percentage that satisfies the Rating Agency
Condition, determined after giving
effect to the distribution of any amounts
in the Collection Fund on such
Distribution Date and (b) any Class A Notes
are Outstanding.
"SUBORDINATE OBLIGATIONS" shall mean the Class B Notes and any
Derivative Product, the priority of payment
of which is equal with that of
interest on the Class B Notes.
"SUPPLEMENTAL INDENTURE" shall mean an agreement supplemental
hereto
executed pursuant to Article VIII
hereof.
"SUPPLEMENTAL INTEREST
DEPOSIT AMOUNT" shall mean, for any Quarterly
Distribution Date and the Supplemental
Interest Fund, the amount that satisfies
the Rating Agency Condition obtained in
connection with the remarketing of
Non-amortizing Reset Rate Notes. For any
Quarterly Distribution Date on which
the balance in the Class A-5a Redemption
Account is zero (after taking into
account all deposits and withdrawals to be
made on such Quarterly Distribution
Date), the corresponding Supplemental
Interest Deposit Amount will be zero.
"SUPPLEMENTAL INTEREST FUND" shall mean the Fund by that name
created in
Section 5.01(h) hereof and further
described in Section 5.10 hereof, including
any Accounts and Subaccounts created
therein.
"TERMINATION PAYMENT" shall mean, with respect to a Derivative
Product,
any termination payment payable by the
Issuer under such Derivative Product
relating to an early termination of such
Derivative Product after the occurrence
of a termination event or event of default
specified in such Derivative Product,
including any Priority Termination
Payment.
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<PAGE>
"TOTAL PARITY RATIO" shall mean, with respect to any date or
calculation, the percentage equivalent of a
fraction of (a) aggregate Value of
the Trust Estate, less (i) amounts on
deposit in the Redemption Accounts for the
Class A Notes and, if the Class A Notes are
no longer Outstanding, amounts on
deposit in the Class B Redemption Account,
(ii) amounts that were received under
the General Interest Rate Cap Agreement and
the LIBOR Interest Rate Cap
Derivative Agreement, (iii) amounts on
deposit in the Remarketing Fee Fund and
(iv) amounts on deposit in the Capitalized
Interest Fund over (b) the
Outstanding Amount of the Class A Notes
plus the original Outstanding Amount of
the Class B Notes (unless the Class A Notes
are no longer Outstanding, in which
case the current Outstanding Amount of the
Class B Notes shall be used), less
amounts on deposit in the Redemption
Accounts for the Class A Notes and, if the
Class A Notes are no longer Outstanding,
amounts on deposit in the Class B
Redemption Accounts. The Total Parity Ratio
will be calculated on each
Distribution Date after giving affect to
the deposits and distributions
described in Section 5.05(c) hereof
"TRUST ESTATE" shall mean the property described as such in the
granting
clauses hereto.
"TRUST INDENTURE ACT" shall mean the Trust Indenture Act of 1939,
as
amended, and as in force at the date as of
which this Indenture was executed,
except as provided in Section 8.05.
"UNDERWRITERS" shall mean with respect to the Series 2004-2 Notes,
other
than the Class A-5a Notes, collectively,
J.P. Morgan Securities Inc., Morgan
Stanley & Co. Incorporated, Barclays
Capital Inc., Citigroup Global Markets Inc.
and SG Cowen Securities Corporation.
"U.S. PERSON" shall have the meaning assigned to such term in
Regulation
S.
"VALUE" on any calculation date when required under this Indenture
shall
mean the value of the Trust Estate
calculated by the Issuer with respect to
clause (a) and by the Indenture Trustee
with respect to clauses (b) and (c) as
follows:
(a) with respect to any Eligible Loan owned by the Issuer as of
the calculation date, the unpaid principal amount thereof plus
any
accrued but unpaid interest, Interest Benefit Payments and
Special
Allowance Payments;
(b) with respect to any funds of the Issuer held under this
Indenture and on deposit in any commercial bank or as to any
banker's
acceptance or repurchase agreement or investment contract, the
amount
thereof plus accrued but unpaid interest; and
(c) with respect to any Investment Securities, the par value
thereof, plus accrued but unpaid interest.
Words importing the masculine gender include the feminine gender,
and
words importing the feminine gender include
the masculine gender. Words
importing persons include firms,
associations and corporations. Words importing
the singular number include the plural
number and vice versa. Additional terms
are defined in the body of this Indenture.
Any other terms used in this
Indenture that are defined in the Trust
Indenture Act, defined in the Trust
Indenture Act by a reference to another
statute or defined by Commission rule
have the meanings assigned to tem by such
definitions.
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<PAGE>
ARTICLE II
THE SERIES 2004-2 NOTES
SECTION 2.01. SERIES 2004-2 NOTE DETAILS.
(a) The aggregate principal amount of the Series 2004-2 Notes
which may be initially authenticated and delivered pursuant to
this
Indenture is limited to $1,017,700,000 except for Series 2004-2
Notes
authenticated and delivered upon transfer of, or in exchange for,
or in
lieu of Series 2004-2 Notes pursuant to Sections 2.03 and 2.04
hereof.
The Series 2004-2 Notes shall be issued in nine (9) separate
classes
(each a "Class") consisting of the Class A-1 Notes, the Class A-2
Notes,
the Class A-3 Notes, the Class A-4 Notes, the Class A-5a Notes,
the
Class A-5b Notes, the Class A-5c Notes, the Class B-1 Notes and
the
Class B-2 Notes. The Series 2004-2 Notes shall be issuable only as
fully
registered notes in Authorized Denominations. The Series 2004-2
Notes of
each Class shall each be lettered "R" and shall be numbered
separately
from 1 upwards, respectively. The Class A-1 Notes, the Class A-2
Notes,
the Class A-3 Notes, the Class A-4 Notes, the Class A-5a Notes,
the
Class A-5b Notes and the Class A-5c Notes (collectively, the "Class
A
Notes") constitute Senior Obligations hereunder and the Class B-1
Notes
and the Class B-2 Notes (collectively, the "Class B Notes")
constitute
Subordinate Obligations hereunder.
The Class A-1 Notes, the Class A-2 Notes, the Class A-3 Notes
and the Class A-4 Notes (collectively, the "LIBOR Rate Notes")
shall be
dated as of the Closing Date and shall bear interest from the
Closing
Date, payable on each Quarterly Distribution Date, except that
LIBOR
Rate Notes which are issued upon transfer, exchange or other
replacement
shall bear interest from the most recent Quarterly Distribution
Date to
which interest has been paid, or if no interest has been paid, from
the
Closing Date. The Class A-1 Notes shall mature on the Quarterly
Distribution Date in November of 2009. The Class A-2 Notes shall
mature
on the Quarterly Distribution Date in November of 2013. Class A-3
Notes
shall mature on the Quarterly Distribution Date in November of
2015. The
Class A-4 Notes shall mature on the Quarterly Distribution Date
in
August of 2019. For each Accrual Period, the Class A-1 Notes shall
bear
interest at the Class A-1 Notes Interest Rate, the Class A-2 Notes
shall
bear interest at the Class A-2 Notes Interest Rate, the Class A-3
Notes
shall bear interest at the Class A-3 Notes Interest Rate and the
Class
A-4 Notes shall bear interest at the Class A-4 Notes Interest Rate.
The
determination by the Issuer, or by the Administrator on behalf of
the
Issuer, of the Class A-1 Notes Interest Rate, the Class A-2
Notes
Interest Rate, the Class A-3 Notes Interest Rate, the Class A-4
Notes
Interest Rate shall (in the absence of manifest error) be final
and
binding upon all parties.
The Class A-5a Notes shall be dated as of the Closing Date and
shall bear interest from the Closing Date, payable on each
Quarterly
Distribution Date (unless the Class A-5a Notes have been reset to
bear
interest at an Auction Rate pursuant to Section 2.01(f) of Appendix
A
hereto, in which case the Class A-5a Notes shall be payable on
each
Auction Rate Distribution Date for the Class A-5a Notes), except
that
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Class A-5a Notes which are issued upon transfer, exchange or
other
replacement shall bear interest from the most recent Quarterly
Distribution Date (or, if the Class A-5a Notes have been reset to
bear
interest at an Auction Rate pursuant to Section 2.01(f) of Appendix
A
hereto, the most recent corresponding Auction Rate Distribution
Date) to
which interest has been paid, or if no interest has been paid, from
the
Closing Date. The Class A-5a Notes shall mature on the
Quarterly
Distribution Date in February of 2039. The terms of and
definitions
related to the Reset Rate Notes are found in Article I hereof
and
Appendix A hereto, and the terms of and definitions related to
the
Auction Rate Notes are found in Article I hereof and Appendix B
hereto.
The Class A-5b Notes and the Class A-5c Notes shall be dated as
of the Closing Date and shall bear interest from the Closing
Date,
payable on each corresponding Auction Rate Distribution Date,
except
that Class A-5b Notes and Class A-5c Notes which are issued
upon
transfer, exchange or other replacement shall bear interest from
the
most recent corresponding Auction Rate Distribution Date to
which
interest has been paid, or if no interest has been paid, from
the
Closing Date. The Class A-5b Notes and the Class A-5c Notes shall
mature
on February 25, 2039. The terms of and definitions related to
the
Auction Rate Notes are found in Article I hereof and Appendix B
hereto.
The Class B Notes shall be dated as of the Closing Date and
shall bear interest from the Closing Date, payable on each
corresponding
Auction Rate Distribution Date, except that Class B Notes which
are
issued upon transfer, exchange or other replacement shall bear
interest
from the most recent corresponding Auction Rate Distribution Date
to
which interest has been paid, or if no interest has been paid, from
the
Closing Date. The Class B Notes shall mature on February 25,
2039.
Interest on the Auction Rate Notes shall be computed based on the
actual
number of days in each Accrual Period divided by 360. The terms of
and
definitions related to the Auction Rate Notes are found in Article
I
hereof and Appendix B hereto.
The principal of each Class of the Series 2004-2 Notes due at
its Stated Maturity or redemption in whole shall be payable at
the
Principal Office of the Indenture Trustee, or such other location
as
directed by the Indenture Trustee, or at the Principal Office of
its
successor in trust upon presentation and surrender of such Class
of
Series 2004-2 Notes. Payment of interest and principal,
including
Principal Reduction Payments, paid upon a partial redemption or
reduction of any Series 2004-2 Note shall be made to the
Registered
Owner thereof by check or draft mailed on the applicable
Distribution
Date by the Indenture Trustee to the Registered Owner at his
address as
it last appears on the registration books kept by the Indenture
Trustee
at the close of business on the Record Date for such Distribution
Date.
Payment of interest and principal to a Securities Depository or
its
nominee shall, and at the written request addressed to the
Indenture
Trustee of any other Registered Owner owning at least
$1,000,000
principal amount of the Series 2004-2 Notes, payments of interest
shall,
be paid by wire transfer within the United States to the bank
account
number filed no later than the Record Date with the Indenture
Trustee
for such purpose. All payments on the Series 2004-2 Notes shall be
made
in lawful money of the United States of America.
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<PAGE>
(b) Except as otherwise provided in this Section, the LIBOR
Rate
Notes and the Auction Rate Notes (other than the Class A-5a Notes
if the
Class A-5a Notes are converted to bear interest at an Auction
Rate
pursuant to Section 2.01(f) of Appendix A hereto) in the form of
one
global note for each Stated Maturity of each Class shall be
registered
in the name of the Securities Depository or its nominee and
ownership
thereof shall be maintained in book-entry form by the
Securities
Depository for the account of the Agent Members. Initially, each
LIBOR
Rate Note and each Auction Rate Note shall be registered in the
name of
CEDE & Co., as the nominee of DTC. The Class A-5a Notes may be
offered
and sold only to Qualified Institutional Buyers in reliance on Rule
144A
or to a Non-U.S. Person outside the United States of America in
reliance
on Regulation S, as applicable. Except as otherwise provided in
this
Section, the
Class A-5a Notes sold to Qualified Institutional Buyers in
reliance on Rule 144A will be represented by interests in a Rule
144A
global registered note certificate (a "Rule 144A Certificate") and
the
Class A-5a Notes sold to Non-U.S. Person outside the United States
of
America in reliance on Regulation S will be represented by a
Regulation
S global registered note certificate (a "Regulation S Certificate")
for
each Stated Maturity. The Rule 144A Certificate will be deposited
on the
Closing Date with the Indenture Trustee, as custodian for DTC (the
"DTC
Custodian") and registered in the name of CEDE & Co. as initial
nominee
for DTC. The aggregate principal amount of the Rule 144A
Certificate may
from time to time be increased or decreased by adjustments made on
the
records of the Indenture Trustee or DTC or its nominee, as the case
may
be, as hereinafter provided. The Regulation S Certificate will
be
deposited on the Closing Date with the DTC Custodian and registered
in
the name of CEDE & Co. as initial nominee for DTC for the
accounts of
Morgan Guaranty Trust Company of New York, Brussels, as operator
of
Euroclear, and Clearstream. The aggregate principal amount of
the
Regulation S Certificate may from time to time be increased or
decreased
by adjustments made on the records of the Indenture Trustee or DTC
or
its nominee, as the case may be, as hereinafter provided. At all
times,
there will be only one Rule 144A Certificate and one Regulation
S
Certificate for the Class A-5a Notes. At all times, the entire
Outstanding Amount of the Class A-5a Notes will be allocated
between the
corresponding Rule 144A Certificate and Regulation S
Certificate.
Ownership of the Class A-5a Notes shall be maintained in book-entry
form
by the Securities Depository for the account of the Agent
Members.
Except as provided in subsection (d) of this Section, the Series
2004-2
Notes may be transferred, in whole but not in part, only to the
Securities Depository or a nominee of such Securities Depository or
to a
successor Securities Depository selected or approved by the Issuer
or to
a nominee of such successor Securities Depository. Each global
note
shall bear a legend substantially to the following effect: "Except
as
otherwise provided in the Indenture, this global note may be
transferred, in whole but not in part, only to another nominee of
the
Securities Depository or to a successor Securities Depository or to
a
nominee of a successor Securities Depository."
(c) Except as otherwise provided herein, the Issuer and the
Indenture Trustee shall have no responsibility or obligation
with
respect to (i) the accuracy of the records of any Securities
Depository
or any Agent Member with respect to any beneficial ownership
interest in
the Series 2004-2 Notes, (ii) the delivery to any Agent Member,
beneficial owner of the Series 2004-2 Notes or other Person, other
than
the Securities Depository, of any notice with respect to the
Series
2004-2 Notes or (iii) the payment to any Agent Member, beneficial
owner
of the Series 2004-2 Notes or other Person, other than the
Securities
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<PAGE>
Depository, of any amount with respect to the principal of or
interest
on the Series 2004-2 Notes. So long as the certificates for the
Series
2004-2 Notes issued under this Indenture are not issued pursuant
to
subsection (d) of this Section, the Issuer and the Indenture
Trustee may
treat the Securities Depository as, and deem the Securities
Depository
to be, the absolute owner of the Series 2004-2 Notes for all
purposes
whatsoever, including, without limitation, (A) the payment of
principal
of and interest on such Series 2004-2 Notes, (B) giving notices
of
redemption and other matters with respect to such Series 2004-2
Notes
and (C) registering transfers with respect to such Series 2004-2
Notes.
In connection with any notice or other communication to be provided
to
the Registered Owners pursuant to this Indenture by the Issuer or
the
Indenture Trustee with respect to any consent or other action to
be
taken by the Registered Owners, the Issuer or the Indenture
Trustee, as
the case may be, shall establish a record date for such consent or
other
action and, if the Securities Depository shall hold all of the
Series
2004-2 Notes, give the Securities Depository notice of such record
date
not less
than 15 calendar days in advance of such record date to the
extent possible. Such notice to the Securities Depository shall be
given
only when the Securities Depository is the sole Registered
Owner.
(d) If at any time the Securities Depository notifies the
Issuer
and the Indenture Trustee that it is unwilling or unable to
continue as
Securities Depository with respect to any or all of the Series
2004-2
Notes or if at any time the Securities Depository shall no longer
be
registered or in good standing under the Securities Exchange Act
or
other applicable statute or regulation and a successor
Securities
Depository is not appointed by the Issuer within 90 days after
the
Issuer receives notice or becomes aware of such condition, as the
case
may be, subsections (b) and (c) of this Section shall no longer
be
applicable and the Issuer shall execute and the Indenture Trustee
shall
authenticate and deliver certificates representing the Series
2004-2
Notes as provided below. In addition, the Issuer may determine at
any
time that the Series 2004-2 Notes shall no longer be represented
by
Global Certificates and that the provisions of subsections (b) and
(c)
of this Section shall no longer apply to the Series 2004-2 Notes.
In
such event, the Issuer shall execute and the Indenture Trustee
shall
authenticate and deliver certificates representing the Series
2004-2
Notes as provided below. Certificates for the Series 2004-2 Notes
issued
in exchange for a Global Certificate pursuant to this subsection
(d)
shall be registered in such names and Authorized Denominations as
the
Securities Depository, pursuant to instructions from the Agent
Members
or otherwise, shall instruct in writing to the Issuer and the
Indenture
Trustee, and upon which written instructions the Indenture Trustee
may
rely without investigation. The Indenture Trustee shall promptly
deliver
such certificates representing the Series 2004-2 Notes to the
Persons in
whose names such Series 2004-2 Notes are so registered.
(e) Any Class A-5a Notes issued to Qualified Institutional
Buyers who are U.S. Persons and are not affiliates of the
Issuer
pursuant to Rule 144A will be issued as Rule 144A Certificates.
Any
Class A-5a Notes issued to Non-U.S. Persons pursuant to Regulation
S
will be issued as Regulation S Certificates.
SECTION 2.02. EXECUTION OF SERIES 2004-2 NOTES. The Series 2004-2
Notes
shall be executed in the name and on behalf
of the Issuer by the manual or
facsimile signature of any of its
Authorized Officers. Any Series 2004-2 Note
may be signed manually or by facsimile or
attested on behalf of the Issuer by
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any person who, at the date of such act,
shall hold the proper office,
notwithstanding that at the date of
authentication, issuance or delivery, such
person may have ceased to hold such office.
The Indenture Trustee shall upon
Issuer Order authenticate and deliver the
Series 2004-2 Notes for original issue
in an aggregate principal amount of
$1,017,700,000. The aggregate principal
amount of the Series 2004-2 Notes
Outstanding at any time may not exceed such
amount. Each Series 2004-2 Note shall be
dated the date of its authentication.
On each Spread Determination Date, upon
receipt of an Issuer Order, the
Indenture Trustee shall deliver a revised
Annex 1 for the Class A-5a Notes to
the DTC Custodian.
SECTION 2.03. REGISTRATION, TRANSFER AND EXCHANGE OF SERIES
2004-2
NOTES; PERSONS TREATED AS REGISTERED
OWNERS.
(a) The Issuer shall cause books for the registration and for
the transfer of the Series 2004-2 Notes as provided in this
Indenture to
be kept by the Indenture Trustee which is hereby appointed the
registrar
and transfer agent of the Issuer for the Series 2004-2 Notes.
Notwithstanding such appointment and with the prior written consent
of
the Issuer, the Indenture Trustee is hereby authorized to make
any
arrangements with other institutions which it deems necessary
or
desirable in order that such institutions may perform the duties
of
registrar and transfer agent for the Series 2004-2 Notes. Upon
surrender
for transfer of any Series 2004-2 Note at the Principal Office of
the
Indenture Trustee, duly endorsed for transfer or accompanied by
an
assignment duly executed by the Registered Owner or his attorney
duly
authorized in writing, the Issuer shall execute and the
Indenture
Trustee shall authenticate and deliver in the name of the
transferee or
transferees a new fully registered Series 2004-2 Note or Series
2004-2
Notes of the same interest rate and for a like Class and
aggregate
principal amount of the same Stated Maturity. The transfer of each
Class
A-5a Note shall be subject to the restrictions set forth in
Appendix C
hereto.
Series 2004-2 Notes may be exchanged at the Principal Office of
the Indenture Trustee for a like aggregate principal amount of
fully
registered Series 2004-2 Notes of the same Class, interest rate
and
Stated Maturity in Authorized Denominations. The Issuer shall
execute
and the Indenture Trustee shall authenticate and deliver Series
2004-2
Notes which the Registered Owner making the exchange is entitled
to
receive, bearing numbers not contemporaneously outstanding. The
execution by the Issuer of any fully registered Series 2004-2 Note
of
any authorized denomination shall constitute full and due
authorization
of such denomination and the Indenture Trustee shall thereby be
authorized to authenticate and deliver such fully registered
Series
2004-2 Note.
The Indenture Trustee shall not be required to transfer or
exchange any Series 2004-2 Note during the period of 15 Business
Days
next preceding the mailing of notice of redemption as herein
provided.
After the giving of such notice of redemption, the Indenture
Trustee
shall not be required to transfer or exchange any Series 2004-2
Note,
which Series 2004-2 Note or portion thereof has been called for
redemption.
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As to any Series 2004-2 Note, the person in whose name the same
shall be registered shall be deemed and regarded as the absolute
owner
thereof for all purposes, and payment of either principal or
interest on
any fully registered Series 2004-2 Note shall be made only to or
upon
the written order of the Registered Owner thereof or his legal
representative but such registration may be changed as
hereinabove
provided. All such payments shall be valid and effectual to satisfy
and
discharge the liability upon such Series 2004-2 Note to the extent
of
the sum or sums paid.
The Indenture Trustee shall require the payment by any
Registered
Owner requesting exchange or transfer of any tax or other
governmental
charge and all expenses and charges of the Issuer and of the
Indenture
Trustee required to be paid with respect to such exchange or
transfer.
The Registered Owner for any such transfer or exchange may be
required
to pay all taxes and governmental charges in connection with
such
transfer or exchange.
For so long as the Class A-5a Notes are "restricted securities"
within the meaning of Rule 144(a)(3) of the Securities Act, (i)
the
Issuer will provide or cause to be provided to any holder of such
Class
A-5a Notes and any prospective purchaser thereof designated by such
a
holder, upon the request of such holder or prospective purchaser,
the
information required to be provided to such holder or
prospective
purchaser by Rule 144A(d)(4) under the Securities Act; and (ii)
the
Issuer shall update such information from time to time in order
to
prevent such information from becoming false and misleading and
will
take such other actions as are necessary to ensure that the safe
harbor
exemption from the registration requirements of the Securities Act
under
Rule 144A is and will be available for resales of such Class A-5a
Notes
conducted in accordance with Rule 144A.
(b) Notwithstanding any provision to the contrary herein, so
long as a Global Certificate is held by or on behalf of DTC,
transfers
of a Global Certificate, in whole or in part, shall only be made
in
accordance with Section 2.01(b) and this subsection (b).
(i) GLOBAL CERTIFICATES. Subject to clauses (ii), (iii)
and (iv) of this subsection (b), transfers of a Global
Certificate shall be limited to transfers of such Global Note
in
whole, but not in part, to nominees of DTC or to a successor of
DTC or such successor's nominee.
(ii) RULE 144A CERTIFICATE TO REGULATION S CERTIFICATE.
If a holder of a beneficial interest in a Rule 144A Certificate
wishes at any time to exchange its interest in such Rule 144A
Certificate for an interest in the corresponding Regulation S
Certificate, or
to transfer its interest in such Rule 144A
Certificate to a Person who wishes to take delivery thereof in
the form of an interest in the corresponding Regulation S
Certificate, such holder may, subject to the immediately
succeeding sentence and the rules and procedures of Euroclear,
Clearstream or DTC, as the case may be, exchange or transfer or
cause the exchange or transfer of such interest for an
equivalent beneficial interest in the Regulation S Certificate.
Upon receipt by the Indenture Trustee, as registrar, of:
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(A) instructions given in accordance with
Euroclear, Clearstream or DTC's procedures, as the case
may be, from an Agent Member to instruct DTC to cause to
be credited a beneficial interest in the Regulation S
Certificate in an amount equal to the beneficial
interest in the Rule 144A Certificate to be exchanged or
transferred; and
(B) a written order given in accordance with
DTC's procedures containing information regarding the
participant account of DTC and the Euroclear and
Clearstream account to be credited with such increase,
then the Indenture Trustee, as registrar, will instruct DTC to
(1) reduce the principal amount of the Rule 144A Certificate
and
increase the principal amount of the Regulation S Certificate
by
the
aggregate principal amount of the beneficial interest in the
Rule 144A Certificate to be exchanged or transferred, and (2)
credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the
Regulation S Certificate equal to the reduction in the
principal
amount of the Rule 144A Certificate.
(iii) REGULATION S CERTIFICATE TO RULE 144A CERTIFICATE.
If a holder of a beneficial interest in a Regulation S
Certificate wishes at any time to exchange its interest in such
Regulation S Certificate for an interest in a Rule 144A
Certificate or to transfer its interest in such Regulation S
Certificate to a Person who wishes to take delivery thereof in
the form of an interest in the corresponding Rule 144A
Certificate, such holder may, subject to the immediately
succeeding sentence and the rules and procedures of Euroclear
and Clearstream or DTC, as the case may be, exchange or
transfer
or cause the exchange or transfer of such interest for an
equivalent beneficial interest in the Rule 144A Certificate.
Upon receipt by the Indenture Trustee, as registrar, of:
(A) instructions given in accordance with DTC's
procedure from an Agent Member to instruct Euroclear or
Clearstream to cause to be credited a beneficial
interest in the Rule 144A Certificate equal to the
beneficial interest in the Regulation S Certificate to
be exchanged or transferred, and
(B) a written order given in accordance with
DTC's procedures containing information regarding the
participant account with DTC to be credited with such
increase,
then Euroclear or Clearstream or the Indenture Trustee, as
registrar, as the case may be, will instruct DTC to (i) reduce
the Regulation S
Certificate and increase the principal amount
of the Rule 144A Certificate by the aggregate principal amount
of the beneficial interest in the Regulation S Certificate to
be
transferred or exchanged, and (ii) credit or cause to be
credited to the account of the Person specified in such
instructions a beneficial interest in the Rule 144A Certificate
equal to the reduction in the principal amount of the
Regulation
S Certificate.
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(iv) CERTIFICATED SECURITIES. In the event that a Global
Certificate is exchanged for the Class A-5a Notes in definitive
registered form without interest coupons, pursuant to Section
2.01(d)
hereof such Class A-5a Notes may be exchanged for one another only
in
accordance with such procedures and restrictions as are
substantially
consistent as determined by the Issuer and the Indenture Trustee
to
insure that such transfers comply with Rule 144A, or are to
Non-U.S.
Persons and non-U.S. residents (as determined for purposes of
the
Investment Company Act), or otherwise comply with Regulation S, as
the
case may be.
(v) TRANSFER OF INTERESTS IN THE GLOBAL CERTIFICATE.
Notwithstanding anything herein to the contrary, transfers of
interests
in a Global Certificate may be made (A) by book-entry transfer
of
beneficial interests within the relevant Securities Depository or
(B)(1)
in the case of transfers of interests in a Rule 144A Certificate,
in
accordance with subsection (b)(ii) of this Section or (2) in the
case of
transfers of interest in a Regulation S Certificate, in accordance
with
subsection (b)(iii); provided that in the case of any such transfer
of
interests pursuant to clause (A) or (B) above, such transfer is
made in
accordance with subsection (vi) below.
(vi) RESTRICTIONS ON TRANSFERS.
(A) Transfers of interests in a Regulation S Certificate
to a U.S. Person or a U.S. resident (as determined for purposes
of the Investment Company Act) shall be made by delivery of an
interest in a Rule 144A Certificate and shall be limited to
transfers made pursuant to the provisions of subsection
(b)(iii)
of this Section. Beneficial interests in a Regulation S
Certificate may only be held through Euroclear and Clearstream.
(B) Any transfer of an interest in a Rule 144A
Certificate to a U.S. Person or a U.S. resident (as determined
for purposes of the Investment Company Act) that is not a
Qualified Institutional Buyer shall be null and void and shall
not be given effect for any purpose hereunder, and the
Indenture
Trustee shall hold any funds conveyed by the intended
transferee
of such interest in such Rule 144A Certificate in trust for the
transferor and shall promptly reconvey such funds to such
Person
in accordance with the written instructions thereof delivered
to
the Indenture Trustee at its address listed in Section 9.01
hereof
SECTION 2.04. LOST, STOLEN, DESTROYED AND MUTILATED SERIES 2004-2
NOTES.
Upon receipt by the Indenture Trustee of
evidence satisfactory to it of the
ownership of and the loss, theft,
destruction or mutilation of any Series 2004-2
Note and, in the case of a lost, stolen or
destroyed Series 2004-2 Note, of
indemnity satisfactory to it, and upon
surrender and cancellation of the Series
2004-2 Note, if mutilated, (a) the Issuer
shall execute, and the Indenture
Trustee shall authenticate and deliver, a
new Series 2004-2 Note of the same
Class, interest rate, Stated Maturity and
Authorized Denomination in lieu of
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such lost, stolen, destroyed or mutilated
Series 2004-2 Note or (b) if such
lost, stolen, destroyed or mutilated Series
2004-2 Note shall have matured or
have been called for redemption, in lieu of
executing and delivering a new
Series 2004-2 Note as aforesaid, the Issuer
may pay such Series 2004-2 Note. Any
such new Series 2004-2 Note shall bear a
number not contemporaneously
outstanding. The Registered Owner for any
such new Series 2004-2 Note may be
required to pay all taxes and governmental
charges and all expenses and charges
of the Issuer and of the Indenture Trustee
in connection with the issuance of
such Series 2004-2 Note. All Series 2004-2
Notes shall be held and owned upon
the express condition that, to the extent
permitted by law, the foregoing
conditions are exclusive with respect to
the replacement and payment of
mutilated, destroyed, lost or stolen Series
2004-2 Notes, negotiable instruments
or other securities.
SECTION 2.05. FORMS OF SERIES 2004-2 NOTES. The LIBOR Rate Notes
shall
be in substantially the form set forth in
Exhibit A hereto, each with such
variations, omissions and insertions as may
be necessary. The Reset Rate Notes
shall be in substantially the form set
forth in Exhibit B hereto, each with such
variations, omissions and insertions as may
be necessary. The Auction Rate Notes
shall be in substantially the form set
forth in Exhibit C hereto, with such
variations, omissions and insertions as may
be necessary.
SECTION 2.06. INDENTURE TRUSTEE'S AUTHENTICATION CERTIFICATE.
The
Indenture Trustee's authentication
certificate upon the Series 2004-2 Notes
shall be substantially in the forms
provided in Exhibits A, B and C hereto,
respectively. No Series 2004-2 Note shall
be secured hereby or entitled to the
benefit hereof, or shall be valid or
obligatory for any purpose, unless a
certificate of authentication,
substantially in such form, has been duly
executed by the Indenture Trustee; and such
certificate of the Indenture Trustee
upon any Series 2004-2 Note shall be
conclusive evidence and the only competent
evidence that such Series 2004-2 Note has
been authenticated and delivered
hereunder. The Indenture Trustee's
certificate of authentication shall be deemed
to have been duly executed by it if
manually signed by an authorized officer of
the Indenture Trustee, but it shall not be
necessary that the same person sign
the certificate of authentication on all of
the Series 2004-2 Notes issued
hereunder.
SECTION 2.07. CANCELLATION AND DESTRUCTION OF SERIES 2004-2 NOTES
BY THE
INDENTURE TRUSTEE. Whenever any Outstanding
Series 2004-2 Notes shall be
delivered to the Indenture Trustee for the
cancellation thereof pursuant to this
Indenture, upon payment of the principal
amount and interest represented
thereby, or for replacement pursuant to
Section 2.03 hereof, such Series 2004-2
Notes shall be promptly cancelled and,
within a reasonable time, cremated or
otherwise destroyed by the Indenture
Trustee and counterparts of a certificate
of destruction evidencing such cremation or
other destruction shall be furnished
by the Indenture Trustee to the Issuer upon
request.
SECTION 2.08. TEMPORARY SERIES 2004-2 NOTES. Pending the
preparation of
definitive Series 2004-2 Notes, the Issuer
may execute and the Indenture Trustee
shall authenticate and deliver temporary
Series 2004-2 Notes. Temporary Series
2004-2 Notes shall be issuable as fully
registered notes without coupons, of any
denomination, and substantially in the form
of the definitive Series 2004-2
Notes but with such omissions, insertions
and variations as may be appropriate
for temporary Series 2004-2 Notes, all as
may be determined by the Issuer. Every
temporary Series 2004-2 Note shall be
executed by the Issuer and be
authenticated by the Indenture Trustee upon
the same conditions and in
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substantially the same manner, and with
like effect, as the definitive Series
2004-2 Notes. As promptly as practicable
the Issuer shall execute and shall
furnish definitive Series 2004-2 Notes and
thereupon temporary Series 2004-2
Notes may be surrendered in exchange
therefor without charge at the designated
corporate trust office of the Indenture
Trustee, and the Indenture Trustee shall
authenticate and deliver in exchange for
such temporary Series 2004-2 Notes a
like aggregate principal amount of
definitive Series 2004-2 Notes. Until so
exchanged the temporary Series 2004-2 Notes
shall be entitled to the same
benefits under this Indenture as definitive
Series 2004-2 Notes.
SECTION 2.09. REDEMPTION OF AND PRINCIPAL REDUCTION PAYMENTS ON
THE
SERIES 2004-2 NOTES.
(a) OPTIONAL REDEMPTION OF THE RESET RATE NOTES. The Reset Rate
Notes are subject to optional redemption, in whole only, at the
option
of the Issuer, from any source of funds (other than from a sale of
a Pro
rata Portion of the Financed Eligible Loans as provided in
Section
2.05(c) or 2.07(a) of Appendix A hereto) on any Reset Date on or
after
November 1, 2005, at a redemption price equal to the principal
amount
thereof being redeemed, plus accrued interest, if any, and any
Reset
Rate Notes Carry-over Amounts (and any accrued interest thereon)
due and
payable on such Class of the Reset Rate Notes (as described in
Appendix
A hereto) to such Reset Date.
(b) OPTIONAL REDEMPTION OF RESET RATE NOTES FROM THE SALE OF
FINANCED ELIGIBLE LOANS. If the Class A-1 Notes, the Class A-2
Notes,
the Class A-3 Notes, the Class A-4 Notes are no longer Outstanding,
upon
a sale of a Pro rata Portion of the Financed Eligible Loans as
provided
in Section 2.05(c) or 2.07(a) of Appendix A hereto, the Reset Rate
Notes
are subject to redemption, in whole only, on any Reset Date on or
after
November 1, 2005 from the proceeds of such sale of a Pro rata
Portion of
the Financed Eligible Loans, at a redemption price equal to the
principal amount thereof being redeemed, plus accrued interest, if
any,
and any Reset Rate Notes Carry-over Amounts (and any accrued
interest
thereon) due and payable on such Class of the Reset Rate Notes
(as
described in Appendix A hereto) to such Reset Date.
(c) OPTIONAL REDEMPTION OF AUCTION RATE NOTES. Subject to the
provisions of subsection (k) of this Section, each Class of the
Auction
Rate Notes is subject to redemption at the option of the Issuer,
from
any source of funds (other than from a sale of a Pro rata Portion
of the
Financed Eligible Loans pursuant to Section 2.04 of Appendix B
hereto),
in whole or in part, on any Auction Rate Distribution Date for
such
Class of the Auction Rate Notes, at a redemption price equal to
the
principal amount thereof being redeemed, plus accrued interest, if
any,
and any Auction Rate Notes Carry-over Amounts (and any accrued
interest
thereon) due and payable on such Class of the Auction Rate Notes
(as
described in Appendix B hereto) to such Auction Rate Distribution
Date.
(d) OPTIONAL REDEMPTION OF AUCTION RATE NOTES FROM THE SALE OF
FINANCED ELIGIBLE LOANS. If the Class A-1 Notes, the Class A-2
Notes,
the Class A-3 Notes, the Class A-4 Notes are no longer Outstanding
and
subject to the provisions of subsection (k) of this Section, upon a
sale
of a Pro rata Portion of the Financed Eligible Loans as provided
in
Section 2.04 of Appendix B hereto, each Class of the Auction Rate
Notes
is subject to redemption, in whole or in part, on any Auction
Rate
Distribution Date for such Class of the Auction Rate Notes from
the
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proceeds of such sale of a Pro rata Portion of the Financed
Eligible
Loans, at a redemption price equal to the principal amount thereof
being
redeemed, plus accrued interest, if any, and any Auction Rate
Notes
Carry-over Amounts (and any accrued interest thereon) due and
payable on
such Class of the Auction Rate Notes (as described in Appendix B
hereto)
to such Auction Rate Distribution Date.
(e) MANDATORY PRINCIPAL REDUCTION PAYMENTS ON THE LIBOR RATE
NOTES AND THE RESET RATE NOTES. The Registered Owners of the Class
A-1
Notes shall receive pro rata reductions of principal pursuant
to
Principal Reduction Payments to be made on Quarterly Distribution
Dates
from amounts on deposit in the Class A-1 Redemption Account of the
Note
Payment Fund for such purpose, the Registered Owners of the Class
A-2
Notes shall receive pro rata reductions of principal pursuant
to
Principal Reduction Payments to be made on Quarterly Distribution
Dates
from amounts on deposit in the Class A-2 Redemption Account of the
Note
Payment Fund for such purpose, the Registered Owners of the Class
A-3
Notes shall receive pro rata reductions of principal pursuant
to
Principal Reduction Payments to be made on Quarterly Distribution
Dates
from amounts on deposit in the Class A-3 Redemption Account of the
Note
Payment Fund for such purpose, the Registered Owners of the Class
A-4
Notes shall receive pro rata reductions of principal pursuant
to
Principal Reduction Payments to be made on Quarterly Distribution
Dates
from amounts on deposit in the Class A-4 Redemption Account of the
Note
Payment Fund for such purpose and the Registered Owners of the
Class
A-5a Notes shall receive pro rata reductions of principal pursuant
to
Principal Reduction Payments to be made on Quarterly Distribution
Dates
(or on Reset Dates as provided in Section 5.06(b) hereof) from
amounts
on deposit in the Class A-5a Redemption Account of the Note Payment
Fund
for such purpose, on any Quarterly Distribution Date (or on any
Reset
Dates as provided in Section 5.06(b) hereof) from amounts
transferred to
the Note Payment Fund representing Recoveries of Principal (other
than
Recoveries of Principal as a result of the voluntary sale of
Financed
Eligible Loans) or representing amounts transferred from the
Collection
Fund pursuant to Section 5.05(c)(xix) hereof. Such amounts are
allocated
to the Class A-1 Redemption Account, the Class A-2 Redemption
Account,
the Class A-3 Redemption Account, the Class A-4 Redemption Account
and
the Class A-5a Redemption Account pursuant to Section 5.06(a)
hereof.
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(f) MANDATORY REDEMPTION OF THE LIBOR RATE NOTES AND THE RESET
RATE NOTES. Upon a sale of the Financed Eligible Loans after
the
Commercial Paper Rate Trigger has occurred as provided in
Section
2.07(b) or 2.13 of Appendix A hereto, the LIBOR Rate Notes and the
Reset
Rate Notes are subject to mandatory redemption, in whole only, on
any
Quarterly Distribution Date on or after November 1, 2005, at a
redemption price equal to the principal amount thereof being
redeemed,
plus accrued interest, if any (but not, with respect to the Reset
Rate
Notes, including any Reset Rate Notes Carry-over Amounts, if any,
except
to the extent such Reset Rate Notes Carry-over Amounts is payable
on
such Quarterly Distribution Date pursuant to Section 5.05(c)
hereof), to
such Quarterly Distribution Date.
(g) MANDATORY REDEMPTION OF AUCTION RATE NOTES.
(i) Subject to the provisions of subsection (k) of this
Section, the Class A-5a Notes (but only if the Class A-5a Notes
have been reset to bear interest at an Auction Rate pursuant to
Section 2.01(f) of Appendix A hereto) are subject to mandatory
redemption, in whole or in part, from amounts on deposit in the
Class A-5a Redemption Account of the Note Payment Fund for such
purpose, the Class A-5b Notes are subject to mandatory
redemption, in whole or in part, from amounts on deposit in the
Class A-5b Redemption Account of the Note Payment Fund for such
purpose, the Class A-5c Notes are subject to mandatory
redemption, in whole or in part, from amounts on deposit in the
Class A-5c Redemption Account of the Note Payment Fund for such
purpose, the Class B-1 Notes are subject to mandatory
redemption, in whole or in part, from amounts on deposit in the
Class B Redemption Account of the Note Payment Fund for such
purpose and the Class B-2 Notes are subject to mandatory
redemption, in whole or in part, from amounts on deposit in the
Class B Redemption Account of the Note Payment Fund for such
purpose, on any Auction Rate Distribution Date for such Class
of
the Auction Rate Notes and for which notice can be given
pursuant to subsection (h) of this Section, each at a
redemption
price equal to the principal balance being redeemed plus
accrued
interest, if any (but not including any Auction Rate Notes
Carry-over Amounts, if any, except to the extent such Auction
Rate Notes Carry-over Amounts is payable on such Auction Rate
Distribution Date pursuant to Section 5.05(c) hereof), to such
Auction Rate Distribution Date from amounts transferred to the
Class A-5a Redemption Account (but only if the Class A-5a Notes
have been reset to bear interest at an Auction Rate pursuant to
Section 2.01(f) of Appendix A hereto), the Class A-5b
Redemption
Account, the Class A-5c Redemption Account and the Class B
Redemption Account of the Note Payment Fund, as appropriate,
representing Recoveries of Principal (other than Recoveries of
Principal as a result of the voluntary sale of Financed
Eligible
Loans) or representing amounts transferred from the Collection
Fund pursuant to Section 5.05(c)(xix) hereof. Recoveries of
Principal generated as a result of the voluntary sale of
Financed Eligible Loans shall be used to redeem Auction Rate
Notes pursuant to subsection (d) of this Section. Redemptions
of
the Auction Rate Notes which constitute Class A Notes made
pursuant to this subsection (g)(i) shall be made on a pro rata
basis (based upon Outstanding Amounts) between the Classes of
such Auction Rate Notes, and redemptions of the Auction Rate
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Notes which constitute Class B Notes made pursuant to this
subsection (g)(i) shall be made on a pro rata basis (based upon
Outstanding Amounts) between the Classes of such Auction Rate
Notes.
(ii) Upon a sale of the Financed Eligible Loans after
the Commercial Paper Rate Trigger has occurred as provided in
Section 2.07(b) or 2.13 of Appendix A hereto, the Auction Rate
Notes are subject to mandatory redemption, in whole only, on
any
Auction Rate Distribution Date for such Auction Rate Notes and
for which notice can be given pursuant to subsection (h) of
this
Section, at a redemption price equal to the principal amount
thereof being redeemed, plus accrued interest, if any (but not
including any Auction Rate Notes Carry-over Amounts, if any,
except to the extent such Auction Rate Notes Carry-over Amounts
is payable on such Auction Rate Distribution Date pursuant to
Section 5.05(c) hereof), to such Auction Rate Distribution
Date.
(h) NOTICE OF REDEMPTION AND PRINCIPAL REDUCTION PAYMENTS. The
Indenture Trustee shall cause notice of any redemption of Auction
Rate
Notes to be given by mailing a copy of the notice by first-class
mail or
by electronic means to the Auction Agent and to the Registered
Owner of
the Auction Rate Notes designated for redemption in whole or in
part, at
their address as the same shall last appear upon the registration
books,
in each case not less than 10 days prior to the redemption
date;
provided, however, that failure to give such notice, or any
defect
therein, shall not affect the validity of any proceedings for
the
redemption of such Auction Rate Notes for which no such failure
or
defect occurs. Preferably five, but not less than two Business
Days
prior to each Quarterly Distribution Date on which Principal
Reduction
Payments will be made on the LIBOR Rate Notes and the Reset Rate
Notes
or on which the LIBOR Rate Notes and Reset Rate Notes are to be
redeemed, the Indenture Trustee shall cause notice of any
reduction
pursuant to subsection (e) of this Section or any redemption
pursuant to
subsection (a), (b), (f) or (j) of this Section to be given by
mailing a
copy of the notice by first class mail to the Administrator and
Registered Owners of the Class of the LIBOR Rate Notes or the Reset
Rate
Notes designated for reduction, in whole or in part, or redemption
at
their address as the same shall last appear upon the registration
books
on such date; provided, however, that failure to give such notice,
or
any
defect therein, shall not affect the validity of any proceedings
for
the reduction or redemption of such LIBOR Rate Notes or Reset
Rate
Notes.
In addition, preferably five, but not less than two Business
Days
prior to each
Quarterly Distribution Date, the Indenture Trustee shall
send the Securities Depository written notice with respect to the
dollar
amount per $1,000 original principal amount of the Class of the
LIBOR
Rate Notes or Reset Rate Notes that the Indenture Trustee will be
paying
to the Securities Depository on the Quarterly Distribution Date.
The
Indenture Trustee may, to the extent necessary to avoid payments
of
fractional cents, reduce scheduled payments by up to $1,000 for
each
Class. Such notices, which shall clearly indicate that they relate
to a
pro rata reduction of principal on the notes of such Class of the
LIBOR
Rate Notes and the Reset Rate Notes, shall contain the Ending
Balance
Factor and the Indenture Trustee contact's name and telephone
number,
shall be sent by facsimile (or such other method designated by
the
Securities Depository) to the Securities Depository's Dividend
Department at (212) 855-4555.
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(i) PARTIAL REDEMPTION.
(i) If less than all of a Class of the Auction Rate
Notes are to be redeemed pursuant to subsection (c), (d) or (g)
of this Section, such Auction Rate Notes to be redeemed shall
be
selected by a random method in Authorized Denominations in such
manner as the Indenture Trustee shall determine.
(ii) In case an Auction Rate Note is of a denomination
larger than an Authorized Denomination, a portion of such
Auction Rate Note (in an Authorized Denomination) may be
redeemed. Upon surrender of any Auction Rate Note for
redemption
in part only, the Issuer shall execute and the Indenture
Trustee
shall authenticate and deliver to the Registered Owner thereof,
the cost of which shall be paid by the Issuer, a new Auction
Rate Note or Auction Rate Notes of the same Class in Authorized
Denominations in an aggregate principal amount equal to the
unredeemed portion of the Auction Rate Note surrendered.
(j) EXTRAORDINARY OPTIONAL REDEMPTION OF SERIES 2004-2 NOTES.
The Series 2004-2 Notes are subject to redemption at the option of
the
Issuer exercised by an Issuer Order (which Issuer Order shall
be
received by the Indenture Trustee not less than 16 days prior to
such
redemption or such lesser period agreed to by the Indenture
Trustee), in
whole only, on any Auction Rate Distribution Date with respect to
the
Auction Rate Notes, any Quarterly Distribution Date with respect to
the
LIBOR Rate Notes and any Reset Date with respect to the Reset Rate
Notes
after the Distribution Date on which the aggregate current
principal
balance of the Series 2004-2 Notes is less than or equal to 10% of
the
initial Pool Balance on the Closing Date, at a redemption price
equal to
(A) the principal balance plus accrued interest to the date fixed
for
redemption and (B) any applicable Reset Rate Notes Carry-over
Amount,
Auction Rate Notes Carry-over Amount and interest accrued on such
Reset
Rate Notes Carry-over Amount and Auction Rate Notes Carry-over
Amount to
the date fixed for redemption, from the proceeds of funds received
by
the Indenture Trustee and deposited in the appropriate Accounts of
the
Note Payment Fund and the Reserve Fund, and the Issuer shall
deposit or
cause to be deposited in or transferred to the Note Payment Fund
an
amount sufficient to redeem all of the Series 2004-2 Notes, less
amounts
on deposit in the Reserve Fund. Upon such deposit of funds by
the
Issuer, the Indenture Trustee shall transfer amounts in the Reserve
Fund
to the Accounts of the Note Payment Fund and effect the redemptions
of
all the Series 2004-2 Notes.
(k) RESTRICTIONS ON THE REDEMPTION OF CLASS B NOTES. Class B
Notes may not be redeemed until all of the Class A Notes are no
longer
Outstanding hereunder; provided, however, Class B Notes may be
redeemed
at any time when any Class A Notes are Outstanding hereunder if
the
Issuer provides Indenture Trustee with an Issuer Order directing
such
redemption together with funds sufficient to redeem such Class B
Notes
pursuant to subsection (c) of this Section for deposit to Class
B
Redemption Account of the Note Payment Fund.
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SECTION 2.10. DELIVERY OF SERIES 2004-2 NOTES. Upon the execution
and
delivery of this Indenture, the Issuer
shall execute and deliver to the
Indenture Trustee and the Indenture Trustee
shall authenticate the Series 2004-2
Notes and deliver them to appropriate
Securities Depositories and as hereinafter
in this Section provided.
Prior to the delivery by the Indenture Trustee of any of the
Series
2004-2 Notes, there shall have been filed
with or delivered to the Indenture
Trustee the following:
(a) A resolution duly adopted by the Issuer, certified by the
Secretary or other Authorized Officer thereof, authorizing the
execution
and delivery of this Indenture, the Assignment Agreement, the
Escrow
Reserve Agreement, the Eligible Lender Trust Agreement, the
Auction
Agent Agreement, each Broker-Dealer Agreement, the Remarketing
Agreement, the initial Custodian Agreement, the initial
Servicing
Agreement, the Administration Agreement, the initial Investment
Agreement and the issuance of the Series 2004-2 Notes.
(b) Duly executed copies of the documents listed in subsection
(a) of this Section.
(c) Rating letters from each Rating Agency stating (i) that the
Class A Notes have been rated "AAA" by Fitch and S&P and "Aaa"
by
Moody's; and (ii) that the Class B Notes have been rated "AA" by
Fitch
"AA-" by S&P and "A2" by Moody's.
(d) Upon the issuance of the Series 2004-2 Notes, an amount
equal to the Reserve Fund Requirement shall be deposited in the
Reserve
Fund.
(e) The Indenture Trustee shall have received a written order
from the Issuer to authenticate and deliver the Series 2004-2
Notes.
SECTION 2.11. DEPOSIT OF SERIES 2004-2 NOTE PROCEEDS. Upon the
issuance
and delivery of the Series 2004-2 Notes,
the Indenture Trustee shall deposit the
net proceeds thereof ($1,017,700,000) as
follows:
(a) an amount equal to $16,000,000 shall be deposited to the
Capitalized Interest Fund;
(b) an amount equal to $2,500,017 shall be deposited to the
Reserve Fund; and
(c) the remainder ($999,199,983) shall be deposited to the
Acquisition Fund.
ARTICLE III
PARITY AND PRIORITY OF LIEN; OTHER OBLIGATIONS;
AND DERIVATIVE PRODUCTS
SECTION 3.01. PARITY AND PRIORITY OF LIEN. The provisions,
covenants and
agreements herein set forth to be performed
by or on behalf of the Issuer shall
be for the equal benefit, protection and
security of the Registered Owners of
any and all of the Obligations, all of
which, regardless of the time or times of
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their issuance or maturity, shall be of
equal rank without preference, priority
or distinction of any of the Obligations
over any other thereof, except as
expressly provided in this Indenture with
respect to certain payment and other
priorities.
SECTION 3.02. OTHER OBLIGATIONS.
(a) The Issuer reserves the right to issue other notes or
obligations which do not constitute or create a lien on the
Trust
Estate, subject to receipt of a Rating Confirmation.
(b) The Issuer
shall not commingle the Funds established by this
Indenture with funds, proceeds, or investments of funds relating
to
other issues or series of notes heretofore or hereafter issued,
except
to the extent such permitted commingling is required by the
Indenture
Trustee for ease in administration of its duties and
responsibilities;
provided, however, that should the Indenture Trustee require
such
permitted commingling, it shall keep complete records in order that
the
funds, proceeds, or investments under this Indenture may at all
times be
identified by source and application, and if necessary,
separated.
(c) The Revenues and other moneys, Financed Eligible Loans,
securities, evidences of indebtedness, interests, rights and
properties
pledged under this Indenture are and will be owned by the Issuer
(or the
Eligible Lender Trustee) free and clear of any pledge, lien, charge
or
encumbrance thereon or with respect thereto prior to, of equal rank
with
or subordinate to the respective pledges created by this
Indenture,
except as otherwise expressly provided herein, and all action on
the
part of the Issuer to that end has been duly and validly taken. If
any
Financed Eligible Loan is found to have been subject to a lien at
the
time such Financed Eligible Loan was acquired, the Issuer shall
cause
such lien to be released, shall purchase such Financed Eligible
Loan
from the Trust Estate for a purchase price equal to its principal
amount
and interest accrued thereon or shall replace such Financed
Eligible
Loan with another Eligible Loan with substantially identical
characteristics which replacement Eligible Loan shall be free and
clear
of liens at the time of such replacement. Except as otherwise
provided
herein, the Issuer shall not create or voluntarily permit to be
created
any debt, lien, or charge on the Financed Eligible Loans which
would be
on a parity with, subordinate to, or prior to the lien of this
Indenture; shall not do or omit to do or suffer to be done or
omitted to
be done any matter or things whatsoever whereby the lien of
this
Indenture or the priority of such lien for the Obligations
hereby
secured might or could be lost or impaired; and will pay or cause
to be
paid or will make adequate provisions for the satisfaction and
discharge
of
all lawful claims and demands which if unpaid might by law be
given
precedence to or any equality with this Indenture as a lien or
charge
upon the Financed Eligible Loans; provided, however, that nothing
in
this subsection (c) shall require the Issuer to pay, discharge, or
make
provision for any such lien, charge, claim, or demand so long as
the
validity thereof shall be by it in good faith contested, unless
thereby,
in the opinion of the Indenture Trustee, the same will endanger
the
security for the Obligations; and provided further that any
subordinate
lien hereon (i.e., subordinate to the lien securing the Senior
Obligations and the Subordinate Obligations) shall be entitled to
no
payment from the Trust Estate, nor may any remedy be exercised
with
respect to such subordinate lien against the Trust Estate until
all
Obligations have been paid or deemed paid hereunder.
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SECTION 3.03. DERIVATIVE PRODUCTS; COUNTERPARTY PAYMENTS;
ISSUER
DERIVATIVE PAYMENTS. The Issuer hereby
authorizes and directs the Indenture
Trustee to acknowledge and agree to any
Derivative Product hereafter entered
into by the Issuer and a Counterparty under
which (a) the Issuer may be required
to make, from time to time, Issuer
Derivative Payments and (b) the Indenture
Trustee may receive, from time to time,
Counterparty Payments for the account of
the Issuer. No Derivative Product shall be
entered into unless the Indenture
Trustee shall have received a Rating
Confirmation from each Rating Agency that
such Derivative Product will not adversely
affect the Rating on any of the
Series 2004-2 Notes.
ARTICLE IV
PROVISIONS APPLICABLE TO THE SERIES 2004-2 NOTES;
DUTIES OF THE ISSUER
SECTION 4.01. PAYMENT OF PRINCIPAL, INTEREST AND PREMIUM. The
Issuer
covenants that it will promptly pay, but
solely from the Trust Estate, the
principal of and interest, if any, on each
and every Obligation issued under the
provisions of this Indenture at the places,
on the dates and in the manner
specified herein and in said Obligations
and any premium required for the
retirement of said Obligations by purchase
or redemption according to the true
intent and meaning thereof. The Obligations
shall be and are hereby declared to
be payable from and equally secured by an
irrevocable first lien on and pledge
of the properties constituting the Trust
Estate, subject to the application
thereof as permitted by this Indenture, but
in no event shall the Registered
Owners or any Counterparty have any right
to possession of any Financed Eligible
Loans, which shall be held only by the
Indenture Trustee or its agent or bailee.
SECTION 4.02. REPRESENTATIONS AND WARRANTIES OF THE ISSUER. The
Issuer
represents and warrants that it is duly
authorized under the laws of the State
to create and issue the Series 2004-2 Notes
and to execute and deliver this
Indenture and any Derivative Product and to
make the pledge to the payment of
Series 2004-2 Notes and any Issuer
Derivative Payments hereunder, that all
necessary action on the part of the Issuer
and the Board of Directors for the
creation and issuance of the Series 2004-2
Notes and the execution and delivery
of this Indenture and any Derivative
Product has been duly and effectively
taken; and that the Series 2004-2 Notes in
the hands of the Registered Owners
thereof and the Issuer Derivative Payments
are and will be valid and enforceable
special limited obligations of the Issuer
secured by and payable solely from the
Trust Estate.
SECTION 4.03. COVENANTS AS TO ADDITIONAL CONVEYANCES. At any and
all
times, the Issuer will duly execute,
acknowledge, and deliver, or will cause to
be done, executed, and delivered, all and
every such further acts, conveyances,
transfers, and assurances in law as the
Indenture Trustee shall reasonably
require for the better conveying,
transferring, and pledging and confirming unto
the Indenture Trustee, all and singular,
the properties constituting the Trust
Estate hereby transferred and pledged, or
intended so to be transferred and
pledged.
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SECTION 4.04. FURTHER COVENANTS OF THE ISSUER.
(a) The Issuer will cause financing statements and continuation
statements with respect thereto at all times to be filed in the
office
of the Secretary of State of the State and any other
jurisdiction
necessary to perfect and maintain the security interest granted by
the
Issuer hereunder, and will provide the Indenture Trustee with
copies of
all such statements.
(b) The Issuer will duly and punctually keep, observe and
perform each and every term, covenant, and condition on its part to
be
kept, observed, and performed, contained in this Indenture and the
other
agreements to which the Issuer is a party pursuant to the
transactions
contemplated herein, and will punctually perform all duties
required by
the Articles of Incorporation and Bylaws of the Issuer and the laws
of
the State.
(c) The Issuer shall be operated on the basis of its Fiscal
Year.
(d) The Issuer shall cause to be kept full and proper books of
records and accounts, in which full, true, and proper entries will
be
made of all dealings, business, and affairs of the Issuer which
relate
to the Series 2004-2 Notes and any Derivative Product.
(e) The Issuer, upon written request of the Indenture Trustee,
will permit at all reasonable times the Indenture Trustee or its
agents,
accountants, and attorneys, to examine and inspect the property,
books
of account, records, reports, and other data relating to the
Financed
Eligible Loans, and will furnish the Indenture Trustee such
other
information as it may reasonably request. The Indenture Trustee
shall be
under no duty to make any such examination unless requested in
writing
to do so by the Registered Owners of not less than a majority of
the
principal amount of the Series 2004-2 Notes, and unless such
Registered
Owners shall have offered the Indenture Trustee security and
indemnity
satisfactory to it against any costs, expenses and liabilities
which
might be incurred thereby.
(f) The Issuer shall cause an annual audit to be made by an
independent auditing firm of national reputation and file one
copy
thereof with the Indenture Trustee and each Rating Agency within
150
days of the close of each Fiscal Year. The Indenture Trustee shall
be
under no obligation to
review or otherwise analyze such audit.
(g) The Issuer covenants that all Financed Eligible Loans upon
receipt thereof shall be delivered to the Indenture Trustee or its
agent
or bailee to be held pursuant to this Indenture and pursuant to
a
Servicing Agreement or a Custodian Agreement.
(h) Notwithstanding anything to the contrary contained herein,
except upon the occurrence and during the continuance of an Event
of
Default hereunder, the Issuer hereby expressly reserves and retains
the
privilege to receive and, subject to the terms and provisions of
this
Indenture, to keep or dispose of, claim, bring suits upon or
otherwise
exercise, enforce or realize upon its rights and interest in and to
the
Financed Eligible Loans and the proceeds and collections therefrom,
and
neither the Indenture Trustee nor any Registered Owner shall in
any
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manner be or be deemed to be an indispensable party to the exercise
of
any such privilege, claim or suit and the Indenture Trustee shall
be
under no obligation whatsoever to exercise any such privilege,
claim or
suit; provided,
however, that the Indenture Trustee shall have and
retain possession or control of the Financed Eligible Loans
pursuant to
Section 5.02 hereof (which Financed Eligible Loans may be held by
the
Indenture Trustee's agent or bailee pursuant to a Custodian
Agreement)
so long as such loans are subject to the lien of this
Indenture.
(i) The Issuer shall notify the Indenture Trustee and each
Rating Agency in writing prior to entering into any Derivative
Product
and shall not enter into any Derivative Product unless the
Indenture
Trustee has received a Rating Confirmation.
SECTION 4.05. ENFORCEMENT OF SERVICING AGREEMENTS. The Issuer
shall
comply with and shall require each Servicer
to comply with the following whether
or not the Issuer is otherwise in default
under this Indenture:
(a) cause to be diligently enforced and taken all reasonable
steps, actions and proceedings necessary for the enforcement of
all
terms, covenants and conditions of all Servicing Agreements,
including
the prompt payment of all amounts due the Issuer thereunder,
including,
without limitation, all principal and interest payments, and
Guarantee
payments which
relate to any Financed Eligible Loans and cause each
Servicer to specify whether payments received by it represent
principal
or interest;
(b) not permit the release of the obligations of any Servicer
under any
Servicing Agreement except in conjunction with amendments or
modifications permitted by subsection (h) of this Section;
(c) at all times, to the extent permitted by law, cause to be
defended, enforced, preserved and protected the rights and
privileges of
the Issuer and of the Registered Owners under or with respect to
each
Servicing Agreement;
(d) at its own expense, the Issuer shall duly and punctually
perform and observe each of its obligations to each Servicer under
its
Servicing Agreement in accordance with the terms thereof;
(e) the Issuer agrees to give the Indenture Trustee prompt
written notice of each default on the part of a Servicer of its
obligations under its Servicing Agreement coming to the
Issuer's
attention;
(f) the Issuer shall not waive any default by a Servicer under
its Servicing Agreement without the written consent of the
Indenture
Trustee;
(g) the Issuer shall cause each Servicer to deliver to the
Indenture Trustee and the Issuer, on or before April 30 of each
year,
beginning with April 30, 2005, a certificate stating that (i) a
review
of
the activities of such Servicer during the preceding calendar
year
and of its performance under its Servicing Agreement has been made
under
the supervision of the officer signing such certificate and (ii) to
the
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best of such officers' knowledge, based on such review, such
Servicer
has fulfilled all its obligations under its Servicing Agreement
throughout such year, or, there has been a default in the
fulfillment of
any such obligation, specifying each such default known to such
officer
and the nature and statue thereof; and
(h) not consent or
agree to or permit any amendment or modification of any
Servicing Agreement which will in any manner materially adversely
affect
the rights or security of the Registered Owners. The Issuer
shall be
entitled to receive and rely upon an opinion of its counsel that
any
such amendment or modification will not materially adversely affect
the
rights or security of the Registered Owners.
SECTION 4.06. PROCEDURES FOR TRANSFER OF FUNDS. In any instance
where
this Indenture requires a transfer of funds
or money from one Fund to another, a
transfer of ownership in investments or an
undivided interest therein may be
made in any manner agreeable to the Issuer
and the Indenture Trustee, and in the
calculation of the amount transferred,
interest on the investment which has or
will accrue before the date the money is
needed in the fund to which the
transfer is made shall not be taken into
account or considered as money on hand
at the time of such transfer.
SECTION 4.07. ADDITIONAL COVENANTS WITH RESPECT TO THE HIGHER
EDUCATION
ACT. The Issuer covenants that it will
cause each of the Indenture Trustee and
the Eligible Lender Trustee to be, or
replace the Indenture Trustee and the
Eligible Lender Trustee with, an Eligible
Lender under the Higher Education Act,
that it will acquire or cause to be
acquired Eligible Loans originated and held
only by an Eligible Lender and that it will
not dispose of or deliver any
Financed Eligible Loans or any security
interest in any such Financed Eligible
Loans to any party who is not an Eligible
Lender so long as the Higher Education
Act or Regulations adopted thereunder
require an Eligible Lender to be the owner
or holder of such Eligible Loans; provided,
however, that nothing above shall
prevent the Issuer from delivering the
Eligible Loans to a Servicer or a
Guaranty Agency. The Registered Owners of
the Series 2004-2 Notes shall not in
any circumstances be deemed to be the owner
or holder of the Eligible Loans.
The Issuer, or its designated agent, shall be responsible for each
of
the following actions with respect to the
Higher Education Act:
(a) the Issuer, through its Authorized Representative, shall be
responsible for dealing with the Secretary with respect to the
rights,
benefits and obligations under the Certificates of Insurance and
the
Contract of Insurance, and the Issuer shall be responsible for
dealing
with the Guarantee Agencies with respect to the rights, benefits
and
obligations under the Guarantee Agreements with respect to the
Financed
Eligible Loans;
(b) the Issuer, through its Authorized Representative, shall
cause to be diligently enforced, and shall cause to be taken
all
reasonable steps, actions and proceedings necessary or appropriate
for
the
enforcement of all terms, covenants and conditions of all
Financed
Eligible Loans and agreements in connection therewith, including
the
prompt payment of all principal and interest payments and all
other
amounts due thereunder;
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(c) the Issuer, through its Authorized Representative, shall
cause the Financed Eligible Loans to be serviced by entering into
one or
more Servicing Agreements or other agreement with a Servicer for
the
collection of payments made for, and the administration of the
accounts
of, the Financed Eligible Loans;
(d) the Issuer, through its Authorized Representative, shall
comply, and shall cause all of its officers, directors, employees
and
agents to comply, with the provisions of the Higher Education Act
and
any regulations or rulings thereunder, with respect to the
Financed
Eligible Loans;
(e) the Issuer, through its Authorized Representative, shall
cause the benefits of the Guarantee Agreements, the Interest
Subsidy
Payments and the Special Allowance Payments to flow to the
Indenture
Trustee. The Indenture Trustee shall have no liability for actions
taken
at the direction of the Issuer, except for negligence or
willful
misconduct in the performance of its express duties hereunder.
The
Indenture Trustee shall have no obligation to administer, service
or
collect the loans in the Trust Estate or to maintain or monitor
the
administration, servicing or collection of such loans; and
(f) the Issuer, through its Authorized Representative, shall
cause each Financed Eligible Loan evidenced by a Master Promissory
Note
in the form mandated by Section 432(m)(1) of the Higher Education
Act to
be acquired pursuant to a Student Loan Purchase Agreement
containing
language similar to the following:
"The [Seller] hereby represents and warrants that the
[Seller] is transferring all of its right title and interest in
the MPN Loan to the Indenture Trustee, that it has not assigned
any interest in such MPN Loan (other than security interests
that
have been released or ownership interests that the [Seller] has
reacquired) to any person other than the Indenture Trustee, and
that no prior holder of the MPN Loan has assigned any interest
in
such MPN Loan (other than security interests that have been
released or ownership interests that such prior holder has
reacquired) to any person other than a predecessor in title to
the [Seller]. The [Seller] hereby covenants that the [Seller]
shall not attempt to transfer to any other person any interest
in
any MPN Loan assigned hereunder. The [Seller] hereby authorizes
the
Indenture Trustee to file a UCC-1 financing statement
identifying the [Seller] as debtor and the Indenture Trustee as
secured party and describing the Loans sold pursuant to this
Agreement. The preparation or filing of such UCC-1 financing
statement is solely for additional protection of the Indenture
Trustee's interest in the MPN Loans and shall not be deemed to
contradict the express intent of the [Seller] and the Indenture
Trustee that the transfer of MPN Loans under this Agreement is
an
absolute assignment of such MPN Loans and is not a transfer of
such MPN Loans as security for a debt."]
SECTION 4.08. FINANCED ELIGIBLE LOANS; COLLECTIONS THEREOF;
ASSIGNMENT
THEREOF. The Issuer, through one or more
Servicers, shall diligently collect all
principal and interest payments on all
Financed Eligible Loans, and all Interest
Benefit Payments, insurance, guarantee and
default claims and Special Allowance
Payments which relate to such Financed
Eligible Loans. The Issuer shall cause
the filing and assignment of such claims
(prior to the timely filing deadline
for such claims under the Regulations) by
the appropriate Servicer. The Issuer
will comply with the Higher Education Act
and Regulations which apply to the
Program and to such Financed Eligible
Loans.
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SECTION 4.09. APPOINTMENT OF AGENTS, ETC. The Issuer shall employ
and
appoint all employees, agents, consultants
and attorneys which it may consider
necessary. No member of the Board of
Directors, neither singly nor collectively,
shall be personally liable for any act or
omission not willfully fraudulent.
SECTION
4.10. CAPACITY TO SUE. The Issuer shall have the power and
capacity to sue and to be sued on matters
arising out of or relating to the
financing of the Financed Eligible
Loans.
SECTION 4.11. CONTINUED EXISTENCE; SUCCESSOR TO ISSUER. The
Issuer
agrees that it will do or cause to be done
all things necessary to preserve and
keep in full force and effect its
existence, rights and franchises as a Nebraska
corporation, except as otherwise permitted
by this Section. The Issuer further
agrees that it will not (a) sell, transfer
or otherwise dispose of all or
substantially all, of its assets (except
Financed Eligible Loans if such sale,
transfer or disposition will discharge this
Indenture in accordance with Article
X hereof); (b) consolidate with or merge
into another corporation or entity; or
(c) permit one or more other corporations
or entities to consolidate with or
merge into it. The preceding restrictions
in clauses (a), (b) and (c) shall not
apply to a transaction if the transferee or
the surviving or resulting
corporation or entity, if other than the
Issuer, by proper written instrument
for the benefit of the Indenture Trustee,
irrevocably and unconditionally
assumes the obligation to perform and
observe the agreements and obligations of
the Issuer under this Indenture.
If a transfer is made as provided in this Section, the provisions
of
this Section shall continue in full force
and effect and no further transfer
shall be made except in compliance with the
provisions of this Section.
SECTION 4.12. AMENDMENT OF STUDENT LOAN PURCHASE AGREEMENTS. The
Issuer
shall notify the Indenture Trustee in
writing of any proposed material
amendments to any existing Student Loan
Purchase Agreement. No such material
amendment shall become effective unless and
until the Indenture Trustee consents
thereto in writing. The consent of the
Indenture Trustee shall not be
unreasonably withheld and shall not be
withheld if the Indenture Trustee
receives an opinion of counsel acceptable
to them that such an amendment is
required by the Higher Education Act and is
not materially prejudicial to the
Registered Owners. Notwithstanding the
foregoing, however, the Indenture Trustee
shall consent to an amendment from time to
time so long as it is not materially
prejudicial to the interests of the
Registered Owners, and the Indenture Trustee
may rely on an opinion of counsel to such
effect.
SECTION 4.13. REPRESENTATIONS; NEGATIVE COVENANTS.
(a) The Issuer hereby makes the following representations and
warranties to the Indenture Trustee on which the Indenture
Trustee
relies in authenticating the Series 2004-2 Notes and on which
the
Registered Owners have relied in purchasing the Series 2004-2
Notes.
Such representations and warranties shall survive the grant of the
Trust
Estate to the Indenture Trustee pursuant to this Indenture.
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(i) ORGANIZATION AND GOOD STANDING. The Issuer is duly
organized and validly existing under the laws of the State, and
has the power to own its assets and to transact the business in
which it presently engages.
(ii) DUE QUALIFICATION. The Issuer is duly qualified to
do business and is in good standing, and has obtained all
material necessary licenses and approvals, in all jurisdictions
where the failure to be so qualified, have such good standing
or
have such licenses or approvals would have a material adverse
effect on the Issuer's business and operations or in which the
actions as required by this Indenture require or will require
such qualification.
(iii) AUTHORIZATION. The Issuer has the power, authority
and legal right to execute, deliver and perform this Indenture
and to grant the Trust Estate to the Indenture Trustee and the
execution, delivery and performance of this Indenture and grant
of the Trust Estate to the Indenture Trustee have been duly
authorized by the Issuer by all necessary corporate action.
(iv) BINDING OBLIGATION. This Indenture, assuming due
authorization, execution and delivery by the Indenture Trustee,
constitutes a legal, valid and binding obligation of the Issuer
enforceable against the Issuer in accordance with its terms,
except that (A) such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws
(whether statutory, regulatory or decisional) now or hereafter
in effect relating to creditors' rights generally and (B) the
remedy of specific performance and injunctive and other forms
of
equitable relief may be subject to certain equitable defenses
and to the discretion of the court before which any proceeding
therefor may be brought, whether a proceeding at law or in
equity.
(v) NO VIOLATION. The consummation of the transactions
contemplated by this Indenture and the fulfillment of the terms
hereof does not conflict with, result in any breach of any of
the terms and provisions of or constitute (with or without
notice, lapse of time or both) a default under the
organizational documents of the Issuer, or any material
indenture, agreement, mortgage, deed of trust or other
instrument to which the Issuer is a party or by which it is
bound, or result in the creation or imposition of any lien upon
any of its material properties pursuant to the terms of any
such
indenture, agreement, mortgage, deed of trust or other
instrument, other than this Indenture, nor violate any law or
any order, rule or regulation applicable to the Issuer of any
court or of any federal or state regulatory body,
administrative
agency, or other governmental instrumentality having
jurisdiction over the Issuer or any of its properties.
(vi) NO PROCEEDINGS. There are no proceedings,
injunctions, writs, restraining orders or investigations to
which the Issuer or any of such entity's affiliates is a party
pending, or, to the best of such entity's knowledge,
threatened,
before any court, regulatory body, administrative agency, or
other tribunal or governmental instrumentality (A) asserting
the
invalidity of this Indenture, (B) seeking to prevent the
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issuance of any Series 2004-2 Notes or the consummation of any
of the transactions contemplated by this Indenture or (C)
seeking any determination or ruling that might materially and
adversely affect the performance by the Issuer of its
obligations under, or the validity or enforceability of this
Indenture.
(vii) APPROVALS. All approvals, authorizations,
consents, orders or other actions of any person, corporation or
other
organization, or of any court, governmental agency or body
or official, required on the part of the Issuer in connection
with the execution and delivery of this Indenture have been
taken or obtained on or prior to the Closing Date.
(viii) PLACE OF BUSINESS. The Issuer's place of business
and chief executive office is 121 South 13 Street, Suite 201,
Lincoln, NE 68508.
(ix) TAX AND ACCOUNTING TREATMENT. The Issuer intends to
treat the transactions contemplated by the Student Loan
Purchase
Agreements as an absolute transfer rather than as a pledge of
the Financed Eligible Loans from the Seller thereof for federal
income tax and financial accounting purposes and the Issuer
(through the Eligible Lender Trustee) will be treated as the
owner of the Financed Eligible Loans for all purposes. The
Issuer further intends to treat the Series 2004-2 Notes as its
indebtedness for federal income tax and financial accounting
purposes.
(x) TAXES. The Issuer has filed (or caused to be filed)
all federal, state, county, local and foreign income, franchise
and other tax returns required to be filed by it through the
date hereof, and has paid all taxes reflected as due thereon.
The Issuer has taken all steps necessary to ensure that it is
eligible to file a consolidated federal income tax return with
National Education Loan Network, Inc. and such returns will be
filed for all taxable years in which the Series 2004-2 Notes
are
Outstanding. There is no pending dispute with any taxing
authority that, if determined adversely to the Issuer, would
result in the assertion by any taxing authority of any material
tax deficiency, and the Issuer has no knowledge of a proposed
liability for any tax year to be imposed upon such entity's
properties or assets for which there is not an adequate reserve
reflected in such entity's current financial statements.
(xi) LEGAL NAME. The legal name of the Issuer is "Nelnet
Education Loan Funding, Inc.," formerly known as NEBHELP, Inc.
and
Nebraska Higher Education Loan Program, Inc.
(xii) BUSINESS PURPOSE. The Issuer has (i) originated or
(ii) previously acquired or will acquire the Financed Eligible
Loans conveyed to it under student loan purchase agreements
substantially in the form of the Student Loan Purchase
Agreement
attached hereto as Exhibit L for a bona fide business purpose
and has undertaken the transactions contemplated herein as
principal rather than as an agent of any other Person. The
Issuer has no subsidiaries, has adopted and operated
consistently with all corporate formalities with respect to its
operations.
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(xiii) COMPLIANCE WITH LAWS. The Issuer is in compliance
with all applicable laws and regulations with respect to the
conduct of its business and has obtained and maintains all
permits, licenses and other approvals as are necessary for the
conduct of its operations.
(xiv) VALID BUSINESS REASONS; NO FRAUDULENT TRANSFERS.
The transactions contemplated by this Indenture are in the
ordinary course of the Issuer's business and the Issuer has
valid business reasons for granting the Trust Estate pursuant
to
this Indenture. At the time of each such grant: (A) the Issuer
granted the Trust Estate to the Indenture Trustee without any
intent to hinder, delay, or defraud any current or future
creditor of the Issuer; (B) the Issuer was not insolvent and
did
not become insolvent as a result of any such grant; (C) the
Issuer was not engaged and was not about to engage in any
business or transaction for which any property remaining with
such entity was
an unreasonably small capital or for which the
remaining assets of such entity are unreasonably small in
relation to the business of such entity or the transaction; (D)
the Issuer did not intend to incur, and did not believe or
should not have reasonably believed, that it would incur, debts
beyond its ability to pay as they become due; and (E) the
consideration received by the Issuer for the grant of the Trust
Estate was reasonably equivalent to the value of the related
grant.
(xv) NO MANAGEMENT OF AFFAIRS OF ANY SELLER. The Issuer
is not and will not be involved in the day-to-day management of
any Seller or the Issuer's parent or any affiliate.
(xvi) NO INTERCORPORATE TRANSFERS WITH ANY SELLER OR
AFFILIATES. Other than the transfer of assets and the transfer
of
any Series 2004-2 Notes pursuant to this Indenture, the
Issuer does not engage in and will not engage in any
intercorporate transactions with any Seller or its affiliates,
except as provided herein with respect to Program Expenses and
the Administration Agreement or the payment of dividends to the
Issuer's parent.
(xvii) ABILITY TO PERFORM. There has been no material
impairment in the ability of the Issuer to perform its
obligations under this Indenture.
(xviii) FINANCIAL CONDITION. No material adverse change
has occurred in the Issuer's financial status since the date of
its formation.
(xix) EVENT OF DEFAULT. No Event of Default has occurred
and no event has occurred that, with the giving of notice, the
passage of time, or both, would become an Event of Default.
(xx) ACQUISITION OF FINANCED ELIGIBLE LOANS LEGAL. The
Issuer has complied with all applicable federal, state and
local
laws and regulations in connection with its acquisition of the
Financed Eligible Loans from the Sellers.
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(b) The Issuer will not:
(i) sell, transfer, exchange or otherwise dispose of any
portion of the Trust Estate except as expressly permitted by
this Indenture;
(ii) claim any credit on, or make any deduction from,
the principal amount of any of the Series 2004-2 Notes by
reason
of the payment of any taxes levied or assessed upon any portion
of the Trust Estate;
(iii) except as otherwise provided herein, dissolve or
liquidate in whole or in part, except with the prior written
consent of the Indenture Trustee, and to the extent Series
2004-2 Notes remain Outstanding, approval of the Registered
Owners and a Rating Confirmation;
(iv) permit the validity or effectiveness of this
Indenture, any Supplemental Indenture or any grant hereunder to
be impaired, or permit the lien of this Indenture to be
amended,
hypothecated, subordinated, terminated or discharged, or permit
any Person to be released from any covenants or obligations
under this Indenture, except as may be expressly permitted
hereby;
(v) except as otherwise provided herein, permit any
lien, charge, security interest, mortgage or other encumbrance
(other than the lien of this Indenture) to be created on or
extend to or otherwise arise upon or burden the Trust Estate or
any part thereof or any interest therein or the proceeds
thereof;
(vi) permit the lien of this Indenture not to constitute
a valid first priority, perfected security interest in the
Trust
Estate;
(vii) guarantee any indebtedness of any Person whether
secured by any Financed Eligible Loans under this Indenture or
otherwise, except for such obligations as may be incurred by
the
Issuer in connection with the issuance of the Series 2004-2
Notes pursuant to this Indenture and unsecured trade payables
in
the ordinary course of its business;
(viii) operate such that it would be consolidated with
its parent or any other affiliate and its separate corporate
existence disregarded in any federal or state proceeding;
(ix) act as agent of any Seller or, except as provided
in a Servicing Agreement, allow the Seller to act as its agent;
(x) other than certain indemnifications provided to it
by its parent, the Issuer will not allow the Seller or its
parent or any other affiliate to pay its expenses, guarantee
its
obligations or advance funds to it for payment of expenses; or
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(xi) consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of
or relating to the Issuer or of or relating to all or
substantially all of its property, or a decree or order of a
court or agency or supervisory authority having jurisdiction in
the premises for the appointment of a conservator or receiver
or
liquidator in any insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been
entered against the Issuer; or the Issuer shall not consent to
the appointment of a receiver, conservator or liquidator in any
insolvency, readjustment of debt, marshalling of assets and
liabilities, voluntary liquidation or similar proceedings of or
relating to the Issuer or of or relating to all or
substantially
all of its property; or admit in writing its inability to pay
its debts generally as they become due, file a petition to take
advantage of any
applicable insolvency, bankruptcy or
reorganization statute, make an assignment for the benefit of
its creditors or voluntarily suspend payment of its
obligations.
(c) The Issuer makes the following representations and
warranties as to the Trust Estate which is granted to the
Indenture
Trustee hereunder on such date, on which the Indenture Trustee
relies in
accepting the Trust Estate. Such representations and warranties
shall
survive the grant of the Trust Estate to the Indenture Trustee
pursuant
to this Indenture:
(i) FINANCED ELIGIBLE LOANS. Each Financed Eligible Loan
financed by the Issuer shall constitute an Eligible Loan and
contain the characteristics found in a Student Loan Purchase
Agreement.
(ii) SCHEDULE OF FINANCED ELIGIBLE LOANS. The
information set forth in each schedule of Financed Eligible
Loans to the Student Loan Purchase Agreements is true and
correct in all material respects as of the opening of business
on the Closing Date.
(iii) GRANT. It is the intention of the Issuer that the
transfer herein contemplated constitutes a grant of the
Financed
Eligible Loans to the Indenture Trustee.
(iv) ALL FILINGS MADE. All filings (including, without
limitation, UCC filings) necessary in any jurisdiction to give
the Indenture Trustee a first priority perfected ownership and
security interest in the Trust Estate, including the Financed
Eligible Loans, have been made no later than the Closing Date
and copies of the file-stamped financing statements shall be
delivered to the Indenture Trustee within five Business Days of
receipt by the Issuer or its agent from the appropriate
secretary of state. The Issuer has not caused, suffered or
permitted any lien, pledges, offsets, defenses, claims,
counterclaims, charges or security interest with respect to the
promissory notes relating to the Financed Eligible Loans (other
than the security interest created in favor of the Indenture
Trustee) to be created.
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(v) TRANSFER NOT SUBJECT TO BULK TRANSFER ACT. Each
grant of the Financed Eligible Loans by the Issuer pursuant to
this Indenture is not subject to the bulk transfer act or any
similar statutory provisions in effect in any applicable
jurisdiction.
(vi) NO TRANSFER TAXES DUE. Each grant of the Financed
Eligible Loans (including all payments due or to become due
thereunder) by the Issuer pursuant to this Indenture is not
subject to and will not result in any tax, fee or governmental
charge payable by the Issuer or the Seller to any federal,
state
or local government.
(vii) NOT AN INVESTMENT COMPANY. The Issuer is not an
"investment company" within the meaning of the Investment
Company Act of 1940, as amended, or is exempt from all
provisions of the Investment Company Act of 1940, as amended.
(viii) BINDING OBLIGATIONS. This Indenture, the Series
2004-2 Notes and each Obligation constitutes the legal, valid
and binding obligation of the Issuer, enforceable against the
Issuer in accordance with its terms, except (A) as such
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws
now
or hereafter in effect, affecting the enforcement of creditors'
rights in general; and (B) as such enforceability may be
limited
by general principles of equity (whether considered in a suit
at
law or in equity).
(ix) VALID SECURITY INTEREST. This Indenture creates a
valid and continuing security interest (as defined in the
Uniform Commercial Code as in effect in the State of Nebraska)
in the Financed Eligible Loans in favor of the Indenture
Trustee, and is enforceable as such against any creditors of
the
Issuer.
SECTION 4.14. ADDITIONAL COVENANTS. So long as any of the Series
2004-2
Notes are Outstanding:
(a) The Issuer shall not engage in any business or activity
other than in connection with the activities contemplated by
its
Articles of Incorporation.
(b) The Issuer shall not consolidate or merge with or into any
other entity or convey or transfer its properties and assets
substantially as an entirety to any entity except as otherwise
provided
herein.
(c) The funds and other assets of the Issuer shall not be
commingled with those
of any other individual, corporation, estate,
partnership, joint venture, association, joint stock company,
trust,
unincorporated organization, or government or any agency or
political
subdivision thereof.
(d) The Issuer shall not be, become or hold itself out as being
liable for the debts of any other party.
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(e) The Issuer shall act solely in its own name and through its
duly Authorized Representative in the conduct of its business, and
shall
conduct its business so as not to mislead others as to the identity
of
the entity with which they are concerned.
(f) The Issuer shall maintain its records and books of account
and shall not commingle its records and books of account with
the
records and books of account of any other Person. The books of
the
Issuer may be kept (subject to any provision contained in the
statutes)
inside or outside the State at such place or places as may be
designated
from time to time by the board of trustees or in the bylaws of
the
Issuer.
(g) All actions of the Issuer shall be taken by a duly
Authorized Representative of the Issuer.
(h) The Issuer shall not amend, alter, change or repeal any
provision contained in this Section without (i) the prior
written
consent of the Indenture Trustee and (ii) a Rating Confirmation (a
copy
of which shall be provided to the Indenture Trustee).
(i) The Issuer shall not amend its Articles of Incorporation
without first obtaining the prior written consent of each Rating
Agency.
(j) All
audited financial statements of the Issuer that are
consolidated with those of any affiliate thereof will contain
detailed
notes clearly stating that (i) all of the Issuer's assets are owned
by
the Issuer, and (ii) the Issuer is a separate entity with creditors
who
have received ownership and/or security interests in the
Issuer's
assets.
(k) The Issuer will strictly observe legal formalities in its
dealings with each Seller, the Issuer's parent or any affiliate
thereof,
and funds or other assets of the Issuer will not be commingled
with
those of any Seller, the Issuer's parent or any other affiliate
thereof.
The Issuer shall not maintain joint bank accounts or other
depository
accounts to which any Seller, the Issuer's parent or any other
affiliate
has independent access. None of the Issuer's funds will at any time
be
pooled with any funds of any Seller, the Issuer's parent or any
other
affiliate.
(l) The Issuer will maintain an arm's length relationship with
each Seller (and any affiliate). Any Person that renders or
otherwise
furnishes services to the Issuer will be compensated by the Issuer
at
market rates for such services it renders or otherwise furnishes to
the
Issuer except as otherwise provided in this Indenture. Except
as
contemplated in this Indenture, the Student Loan Purchase
Agreements,
the Administration Agreement or a Servicing Agreement, the Issuer
will
not hold itself out to be responsible for the debts of any Seller,
the
parent or the decisions or actions respecting the daily business
and
affairs of any Seller or parent.
