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Exhibit 3.3
TRUST AGREEMENT
Relating to
STUDENT LOAN FUNDING 1998-A/B TRUST
Dated as of March 1, 1999
among
STUDENT LOAN FUNDING LLC,
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION,
not in its individual capacity, but solely
as Delaware Trustee,
and
FIRSTAR BANK, NATIONAL ASSOCIATION,
not in its individual capacity, but solely
as Co-Owner Trustee
and acknowledged and agreed to by
FIRSTAR BANK, NATIONAL ASSOCIATION,
not in its individual capacity, but solely
as Co-Owner Eligible Lender Trustee
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TABLE OF CONTENTS
INTRODUCTION......................................................................................................1
ARTICLE I.........................................................................................................1
DEFINITIONS.......................................................................................................1
Section 1.1 Definitions........................................................................................1
Section 1.2 Usage of Terms.....................................................................................5
Section 1.3 Section References.................................................................................5
ARTICLE II........................................................................................................6
CREATION OF TRUST.................................................................................................6
Section 2.1 Creation of Trust..................................................................................6
Section 2.2 Office.............................................................................................6
Section 2.3 Purposes and Powers................................................................................6
Section 2.4 Appointment of Delaware Trustee and Co-Owner Trustee...............................................7
Section 2.5 Initial Capital Contribution of Trust Property.....................................................7
Section 2.6 Declaration of Trust...............................................................................7
Section 2.7 Liability of a Certificateholder...................................................................8
Section 2.8 Title to Trust Property............................................................................8
Section 2.9 Situs of Trust.....................................................................................8
Section 2.10 Representations and Warranties of the Depositor...................................................9
Section 2.11 Federal Income Tax Allocations...................................................................10
Section 2.12 Covenants of Certificateholder...................................................................10
ARTICLE III......................................................................................................11
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THE CERTIFICATE..................................................................................................11
Section 3.1. Initial Ownership...............................................................................11
Section 3.2. The Certificate.................................................................................11
Section 3.3. Authentication of Certificate...................................................................11
Section 3.4. Registration of Transfer and Exchange of Certificate............................................11
Section 3.5. Mutilated, Destroyed, Lost or Stolen Certificate................................................12
Section 3.6. Person Deemed Certificateholder.................................................................13
Section 3.7. [Reserved]......................................................................................13
Section 3.8. Maintenance of Office or Agency.................................................................13
Section 3.9. Appointment of Paying Agent.....................................................................14
ARTICLE IV.......................................................................................................15
ACTIONS BY Delaware Trustee,.....................................................................................15
CO-OWNER TRUSTEE AND CO-OWNER ELIGIBLE LENDER TRUSTEE............................................................15
Section 4.1. Restriction on Power of Certificateholder.......................................................15
Section 4.2. Prior Notice to Certificateholder with Respect to Certain Matters...............................15
Section 4.3. Action by Certificateholder with Respect to Bankruptcy..........................................15
Section 4.4. Restrictions on Certificateholder's Power.......................................................15
Section 4.5. Rights of Certificateholder.....................................................................16
ARTICLE V........................................................................................................17
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES.......................................................................17
Section 5.1. Certificate Contribution Account; Certificate Distribution Account..............................17
Section 5.2. Application of Funds in Certificate Distribution Account and Certificate Contribution Account...18
Section 5.3. Method of Payment...............................................................................18
Section 5.4. No Segregation of Moneys; No Interest...........................................................19
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Section 5.5. Accounting; Reports; Tax Returns................................................................19
ARTICLE VI.......................................................................................................20
AUTHORITY AND DUTIES OF DELAWARE TRUSTEE,........................................................................20
CO-OWNER TRUSTEE AND CO-OWNER ELIGIBLE LENDER TRUSTEE............................................................20
Section 6.1. General Authority...............................................................................20
Section 6.2. General Duties..................................................................................20
Section 6.3. Action upon Instruction.........................................................................20
Section 6.4. No Duties Except as Specified in this Agreement or in Instructions..............................21
Section 6.5. No Action Except under Specified Documents or Instructions......................................22
Section 6.6. Restrictions....................................................................................22
Section 6.7. Administration Agreement........................................................................22
ARTICLE VII......................................................................................................24
CONCERNING THE DELAWARE TRUSTEE..................................................................................24
Section 7.1. Acceptance of Delaware Trustee and Co-Owner Trustee; Duties.....................................24
Section 7.2. Furnishing of Documents.........................................................................25
Section 7.3. Representations and Warranties..................................................................25
Section 7.4. Reliance; Advice of Counsel.....................................................................27
Section 7.5. Not Acting in Individual Capacity...............................................................28
Section 7.6. Delaware Trustee Not Liable for Certificate, Notes or Financed Student Loans....................28
Section 7.7. Delaware Trustee, Co-Owner Trustee and Co-Owner Eligible Lender Trustee May Own Certificate
and Notes.....................................................................................................29
ARTICLE VIII.....................................................................................................30
COMPENSATION OF DELAWARE TRUSTEE,................................................................................30
THE CO-OWNER TRUSTEE AND CO-OWNER ELIGIBLE LENDER TRUSTEE........................................................30
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Section 8.1. Fees and Expenses of Delaware Trustee, Co-Owner Trustee and Co-Owner Eligible Lender Trustee....30
Section 8.2. Indemnification.................................................................................30
Section 8.3. Non-recourse Obligations........................................................................31
ARTICLE IX.......................................................................................................32
TERMINATION......................................................................................................32
Section 9.1. Termination of the Trust........................................................................32
ARTICLE X........................................................................................................34
SUCCESSOR DELAWARE TRUSTEES,.....................................................................................34
CO-OWNER TRUSTEES AND CO-OWNER ELIGIBLE LENDER TRUSTEES..........................................................34
Section 10.1. Eligibility Requirements for Delaware Trustee, Co-Owner Trustee and
Co-Owner Eligible Lender Trustee..............................................................................34
Section 10.2. Resignation or Removal of Delaware Trustee, Co-Owner Trustee or
Co-Owner Eligible Lender Trustee..............................................................................34
Section 10.3. Successor Trustee..............................................................................35
Section 10.4. Merger or Consolidation of Delaware Trustee, Co-Owner Trustee or
Co-Owner Eligible Lender Trustee..............................................................................36
Section 10.5. Appointment of Additional Co-Trustee or Separate Trustee.......................................36
ARTICLE XI.......................................................................................................39
MISCELLANEOUS PROVISIONS.........................................................................................39
Section 11.1. Amendment......................................................................................39
Section 11.2. No Recourse....................................................................................40
Section 11.3. Governing Law..................................................................................40
Section 11.4. Severability of Provisions.....................................................................41
Section 11.5. Certificate Nonassessable and Fully Paid.......................................................41
Section 11.6. Third-Party Beneficiaries......................................................................41
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Section 11.7. Counterparts..................................................................................41
Section 11.8. Notices.......................................................................................41
SIGNATURES......................................................................................................43
EXHIBIT A - FORM OF TRUST CERTIFICATE
EXHIBIT B - FORM OF PURCHASER'S LETTER
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THIS TRUST AGREEMENT, dated as of March 1, 1999, is made among STUDENT
LOAN FUNDING, LLC, a Delaware limited liability company (together with its
permitted successors and assigns, the "Depositor"), FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION, a national banking association, not in its individual
capacity, but solely as Delaware Trustee of the Trust created hereunder (in such
capacity, the "Delaware Trustee") and FIRSTAR BANK, NATIONAL ASSOCIATION, a
national banking association, not in its individual capacity, but solely as
co-owner trustee of the Trust created hereunder (in such capacity, the "Co-Owner
Trustee") and is acknowledged and agreed to by, for purposes of any provision
relating to, FIRSTAR BANK, NATIONAL ASSOCIATION, a national banking association,
not in its individual capacity, but solely as co-owner eligible lender trustee
for the benefit of the Co-Owner Trustee (in such capacity, the "Co-Owner
Eligible Lender Trustee").
WHEREAS, the Depositor has heretofore issued and sold certain Notes
secured under the hereinafter-defined Indenture and now desires to form a common
law (as opposed to statutory) trust under the laws of the State of Delaware (the
"Trust") and, in connection therewith, to assign all the assets pledged under
the Indenture to secure the payment of the Notes to the Co-Owner Trustee and,
but solely with respect to legal title to the Financed Student Loans, to the
Co-Owner Eligible Lender Trustee, in consideration of the assumption by the
Co-Owner Trustee of all the Depositor's obligations with respect to the Notes;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions.
Capitalized words and phrases used as defined words and phrases and not
otherwise defined herein shall have the meanings given such words and phrases in
the Indenture. The following words and phrases, unless otherwise specified,
shall have the following meanings:
"Administration Agreement" shall mean the Administration
Agreement, to be dated as of March 15, 1999, between the Administrator
and the Co-Owner Trustee, as the same may be amended and supplemented
from time to time.
"Administrator" shall mean Student Loan Funding Resources,
Inc., an Ohio corporation, or any successor Administrator under the
Administration Agreement.
"Agreement" or "this Agreement" shall mean this Trust
Agreement, all amendments and supplements thereto and all exhibits and
schedules to any of the foregoing.
"Authentication Agent" shall mean Firstar Bank, National
Association, or its successor in interest, and any successor
authentication agent appointed as provided in this Agreement.
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"Benefit Plan" shall mean the meaning assigned in Section 3.4
hereof.
"Business Day" shall mean any day on which the Delaware
Trustee, Co-Owner Trustee and the Paying Agent, if any, at their
respective addresses set forth in or for purposes of this Agreement,
are open for commercial banking business and on which the New York
Stock Exchange is open.
"Certificate" shall mean a certificate executed by the
Delaware Trustee and authenticated by the Authentication Agent
evidencing an undivided interest, whether fractional or whole, in the
Trust.
"Certificate Contribution Account" shall mean the account
designated as the Certificate Contribution Account in, and which is
established and maintained pursuant to, Section 5.1 hereof.
"Certificate Distribution Account" shall mean the account
designated as the Certificate Distribution Account in, and which is
established and maintained pursuant to, Section 5.1 hereof.
"Certificate Register" shall mean the register maintained by
the Certificate Registrar pursuant to Section 3.4 hereof.
"Certificate Registrar" shall mean the registrar appointed
pursuant to Section 3.4 hereof.
"Certificateholder" or "Holder" shall mean the Person in whose
name the Certificate is registered in the Certificate Register;
provided, however, that if no Certificate has been issued by the
Delaware Trustee, the Depositor shall be deemed to be the
Certificateholder for purposes of this Agreement.
Certificateholder's Distribution Date" shall mean the date on
which amounts in the Certificate Distribution Account are disbursed by
the Co-Owner Trustee to the Certificateholder which Date shall be the
last Business Day of each calendar month in which a deposit has been
made to the Certificate Distribution Account at least one day prior to
such last Business Day.
"Closing Date" shall mean March 5, 1999.
"Co-Owner Eligible Lender Trust Agreement" shall mean the
Co-Owner Eligible Lender Trust Agreement, dated as of March 15, 1999,
by and between the Co-Owner Trustee and the Co-Owner Eligible Lender
Trustee, as originally executed and as from time to time amended or
supplemented.
"Co-Owner Eligible Lender Trustee" shall mean Firstar Bank,
National Association, not in its individual capacity, but solely as
eligible lender trustee for the benefit of the Co-Owner Trustee, and
its permitted successors and assigns. The Co-Owner Eligible Lender
Trustee is not a trustee of the Trust.
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"Co-Owner Trustee" shall mean Firstar Bank, National
Association, not in its individual capacity, but solely as co-owner
trustee of the Trust created hereunder, and its permitted successors
and assigns.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder.
"Corporate Trust Office" shall mean (i) with respect to the
Delaware Trustee, the principal office of the Delaware Trustee at
which, at any particular time, its corporate trust business shall be
administered, which office at the Closing Date is located at One Xxxxxx
Square, Suite 100, 000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000,
Attention: Corporate Trust Administration; the telecopy number for the
Corporate Trust Office on the date of the execution of this Agreement
is (000) 000-0000; (ii) with respect to the Co-Owner Trustee, the
principal office of the Co-Owner Trustee at which, at any particular
time, its corporate trust business shall be administered, which office
at the Closing Date is located at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx
00000, Attention: Corporate Trust Administration; the telecopy number
for the Corporate Trust Office on the date of the execution of this
Agreement is (000) 000-0000 and (iii) with respect to the Co-Owner
Eligible Lender Trustee, at the principal office of the Co-Owner
Eligible Lender Trustee at which, at any particular time, its corporate
trust business shall be administered, which office at the Closing Date
is located at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000, Attention:
Corporate Trust Administration -- Eligible Lender Trustee; the telecopy
number for the Corporate Trust Office of the Co-Owner Eligible Lender
Trustee on the date of the execution of this Agreement is (513)
632-5511.
"Delaware Trustee" shall mean First Union Trust Company,
National Association, not in its individual capacity, but solely as
Delaware trustee of the Trust created hereunder, and any successor
trustee appointed as provided in this Agreement.
"Depositor" shall mean Student Loan Funding LLC, a Delaware
limited liability company, and its permitted successors and assigns.
"Depositor Eligible Lender Trustee" shall mean Firstar Bank,
National Association (successor by merger to Star Bank, National
Association), as the eligible lender trustee under the Eligible Lender
Trust Agreement, and its lawful successors and assigns.
"Eligible Lender Trust Agreement" shall mean the Eligible
Lender Trust Agreement, dated as of June 1, 1998, by and between the
Depositor and the Depositor Eligible Lender Trustee, as originally
executed and as from time to time amended or supplemented.
"ERISA" shall mean the meaning assigned to such term in
Section 3.4(e) hereof.
"Expenses" shall have the meaning assigned to such term in
Section 8.2 hereof.
"Indemnified Parties" shall mean the meaning assigned to such
term in Section 8.2 hereof.
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"Indenture" shall mean, collectively, the Indenture of Trust
and the Terms Supplement to the Indenture of Trust, each dated as of
December 1, 1998, among the Depositor, the Depositor Eligible Lender
Trustee and the Indenture Trustee, as amended, supplemented or restated
from time to time.
"Indenture Trustee" shall mean Firstar Bank, National
Association (successor by merger to Star Bank, National Association),
or its successor in interest, acting not individually but solely as
trustee, and any successor trustee appointed as provided in the
Indenture.
"Instructing Party" shall have the meaning assigned to such
term in Section 6.3(a) hereof
"Master Servicing Agreement" shall mean the Master Servicing
Agreement, to be dated as of March 15, 1999, between the Co-Owner
Trustee and the Administrator, as the same may be amended and
supplemented from time to time.
"Notes" shall mean the Student Loan Asset-Backed Notes, Senior
Series 1998A-3, Senior Series 1998A-4, Senior Series 1998A-5, Senior
Series 1998A-6 and Subordinate Series 1998B-3, dated December 22, 1998,
issued by the Depositor under the Indenture and to be assigned by the
Depositor to, and assumed by, the Co-Owner Trustee pursuant to the
Transfer and Sale Agreement, and any notes issued in exchange therefor.
"Paying Agent" shall mean any paying agent or co-paying agent
appointed pursuant to Section 3.9 hereof, which initially shall be
Firstar Bank, National Association.
"Percentage Interest" shall mean that percentage of the total
beneficial interest in the Trust that is held by the Certificateholder,
which Percentage Interest with respect to the initially issued
Certificate shall be 100%.
"Record Date" shall mean, with respect to the
Certificateholder's Distribution Date, the close of business on the
last Business Day immediately preceding such Certificateholder's
Distribution Date.
"Related Documents" shall mean the Co-Owner Eligible Lender
Trust Agreement, the Transfer and Sale Agreement, the Master Servicing
Agreement, the Indenture, the Certificate, the Notes and the
Administration Agreement. The Related Documents executed by any party
are referred to herein as "such party's Related Documents," "its
Related Documents" or by a similar expression.
"Responsible Officer" shall mean a duly appointed officer of
the Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible
Lender Trustee, having responsibility for performance of the respective
obligations of the Delaware Trustee, the Co-Owner Trustee or Co-Owner
Eligible Lender Trustee hereunder.
"Student Loan" shall have the meaning assigned to such term in
Section 1.1 of the Indenture.
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"Transfer and Sale Agreement" shall mean the Transfer and Sale
Agreement, to be dated as of March 15, 1999, among the Transferor, the
Co-Owner Trustee and the Co-Owner Eligible Lender Trustee, as the same
may be amended and supplemented from time to time.
"Transferor" shall mean, collectively, the Depositor or its
successor in interest, and the Depositor Eligible Lender Trustee or its
successor in interest, if and to the extent that the Depositor Eligible
Lender Trustee holds legal title to the Financed Student Loans on
behalf of the Depositor to be transferred in trust to the Co-Owner
Eligible Lender Trustee.
"Trust" shall mean the common law (as opposed to statutory)
trust created by this Agreement under the laws of the State of Delaware
and designated "Student Loan Funding 1998-A/B Trust", the estate of
which consists of the Trust Property.
"Trust Property" shall mean the property and proceeds of every
description conveyed to the Co-Owner Trustee and, but solely with
respect to legal title to the Financed Student Loans, the Co-Owner
Eligible Lender Trustee (i) initially pursuant to Section 2.5 hereof
and (ii) hereafter pursuant to the Transfer and Sale Agreement,
together with all amounts deposited in the Certificate Contribution
Account and the Certificate Distribution Account (including all
Eligible Investments therein and all proceeds therefrom).
"Trustee" shall mean any one of the Trustees.
"Trustees" shall mean, collectively, the Delaware Trustee, the
Co-Owner Trustee and the Co-Owner Eligible Lender Trustee (although the
Co-Owner Eligible Lender Trustee is not a trustee of the Trust.
Section 1.2. Usage of Terms.
With respect to all terms used in this Agreement, the singular includes
the plural and the plural the singular; words importing any gender include the
other genders; references to "writing" include printing, typing, lithography,
and other means of reproducing words in a visible form; references to agreements
and other contractual instruments include all subsequent amendments thereto or
changes therein entered into in accordance with their respective terms and not
prohibited by this Agreement; references to Persons include their permitted
successors and assigns; and the terms "include" or "including" mean "include
without limitation" or "including without limitation." To the extent that
definitions are contained in this Agreement, or in any such certificate or other
document, such definitions shall control.
Section 1.3. Section References.
All references to Articles, Sections, paragraphs, subsections, exhibits
and schedules shall be to such portions of this Agreement unless otherwise
specified.
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ARTICLE II
CREATION OF TRUST
Section 2.1. Creation of Trust.
There is hereby formed a common law (as opposed to statutory) trust to
be known as "Student Loan Funding 1998-A/B Trust," under which and in which
name, but solely to the extent provided in this Agreement, the Delaware Trustee
and the Co-Owner Trustee may conduct business, make and execute contracts and
other instruments and xxx and be sued. References to the name "Student Loan
Funding 1998-A/B Trust" in this Agreement, any Related Document or any
registration statement and related prospectus shall mean Firstar Bank, National
Association, not in its individual capacity, but solely as Co-Owner Trustee of
the Trust.
Section 2.2. Office.
Except as otherwise provided in this Agreement with respect to the
Delaware Trustee for purposes of performance of the duties of the Delaware
Trustee set forth herein, the office of the Trust shall be in care of the
Co-Owner Trustee at its Corporate Trust Office or at such other address in the
State of Ohio as the Co-Owner Trustee may designate by written notice to the
Delaware Trustee, the Certificateholder and the Depositor.
Section 2.3. Purposes and Powers.
(a) The purpose of the Trust is, and the Delaware Trustee and the
Co-Owner Trustee on behalf of the Trust, but each only to the extent provided in
this Agreement, shall have the power and authority, to engage in the following
activities:
(i) to issue and sell the initial Certificate pursuant to this
Agreement and to pay the organizational, start-up and transactional
expenses of the Trust from amounts on deposit in the Certificate
Contribution Account;
(ii) to execute and deliver the Transfer and Sale Agreement,
whereby the Co-Owner Trustee and the Co-Owner Eligible Lender Trustee,
in consideration of the assignment and transfer by the Depositor and
the Depositor Eligible Lender Trustee of all of the assets pledged
under the Indenture, will assume all obligations of the Depositor and
the Depositor Eligible Lender Trustee under the Notes and the
Indenture;
(iii) to assign, grant, transfer, pledge, mortgage and convey
the Trust Property to which it holds title and all of its right, title
and interest in the Transfer and Sale Agreement, to the Indenture
Trustee for the benefit of the Noteholders (and to execute (by any one
or more of the Trustees) and file Uniform Commercial Code financing
statements as deemed necessary or appropriate to evidence the same) and
to hold, manage and distribute to the Certificateholder pursuant to the
terms hereof any portion of the Trust Property released from the lien
of, and remitted to the Co-Owner Trustee for deposit in the Trust
pursuant to, the Indenture;
(iv) to issue and exchange Exchange Notes for the outstanding
Notes pursuant to the Exchange Offer;
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(v) to enter into and perform its obligations under the
Related Documents to which it is a party;
(vi) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(vii) subject to compliance with the Related Documents, to
engage in such other activities as may be required in connection with
conservation of the Trust Property and the making of distributions to
the Certificateholder.
(b) Except as otherwise expressly provided herein with respect to the Delaware
Trustee and the Co-Owner Eligible Lender Trustee, the Co-Owner Trustee is hereby
authorized to engage in the foregoing activities. The Co-Owner Trustee shall not
engage in any activity other than in connection with the foregoing or other than
as required or expressly authorized by the terms of this Agreement or the
Related Documents.
Section 2.4. Appointment of Delaware Trustee and Co-Owner Trustee.
The Depositor hereby appoints (i) the Delaware Trustee as trustee of
the Trust and (ii) the Co-Owner Trustee as co-trustee of the Trust, effective as
of the date hereof, to have all the respective rights, powers and duties set
forth herein. Each of the Delaware Trustee and the Co-Owner Trustee hereby
accepts its respective appointment.
Section 2.5. Initial Capital Contribution of Trust Property.
The Depositor hereby assigns, transfers, conveys and sets over to the
Co-Owner Trustee, as of the date hereof, the sum of One Hundred Dollars ($100).
The Co-Owner Trustee hereby acknowledges receipt in trust from the Depositor, as
of the date hereof, of the foregoing contribution, which shall constitute the
initial Trust Property and shall be deposited in the Certificate Contribution
Account. To the extent not otherwise provided for by amounts on deposit in the
Certificate Contribution Account, the Depositor shall pay organizational
expenses of the Trust as they may arise or shall, upon the request of the
Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible Lender Trustee,
promptly reimburse the Delaware Trustee, the Co-Owner Trustee or the Co-Owner
Eligible Lender Trustee for any such expenses paid by the Delaware Trustee, the
Co-Owner Trustee or the Co-Owner Eligible Lender Trustee.
Section 2.6. Declaration of Trust.
Each of the Delaware Trustee and the Co-Owner Trustee hereby declares
that it will hold the Trust Property in trust upon and subject to the conditions
set forth herein for the use and benefit of the Certificateholder, subject to
the interests and rights in the Trust Property granted to other Persons by the
Related Documents. The Co-Owner Eligible Lender Trustee hereby acknowledges and
agrees that it is holding legal title to that part of the Trust Property
constituting Financed Student Loans in trust upon and subject to the conditions
set forth in the Co-Owner Eligible Lender Trust Agreement and also subject to
the conditions set forth herein. It is the intention and agreement of the
parties hereto that the Trust constitute a common law (as opposed to a
statutory) trust under the laws of the State of Delaware and that this Agreement
constitute the governing instrument of such trust. It is the intention and
agreement of the parties hereto that, solely for income and franchise tax
purposes, the Trust, having at all times but a
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single Certificateholder, shall be treated as a "disregarded entity", i.e. the
Trust will be disregarded as an entity separate from the Certificateholder.
Unless otherwise required by appropriate tax authorities, the Trust will file or
cause to be filed all required annual or other necessary returns, reports and
other forms consistent with the characterization of the Trust as a "disregarded
entity" for such tax purposes. Effective as of the date hereof, each of the
Delaware Trustee, the Co-Owner Trustee and the Co-Owner Eligible Lender Trustee
shall have all rights, powers and duties set forth herein and in the laws of the
State of Delaware with respect to accomplishing the purposes of the Trust.
Section 2.7. Liability of a Certificateholder.
(a) The Certificateholder shall not be liable directly to indemnify an
injured party for all losses, claims, damages, liabilities and expenses of the
Trust, to the extent not paid out of the Trust Property. The Certificateholder
shall not be liable for any losses incurred by a Note Owner in the capacity of
an investor in the Notes.
(b) The Certificateholder shall not have any personal liability for any
liability or obligation of the Trust or by reason of any action taken by the
parties to this Agreement pursuant to any provisions of this Agreement or any
Related Document.
Section 2.8. Title to Trust Property.
(a) Legal title to all the Trust Property (other than the Financed
Student Loans) shall be vested at all times in the Co-Owner Trustee, not in its
individual capacity but solely as Co-Owner Trustee of the Trust and except where
applicable law in any jurisdiction requires legal title to any part of such
Trust Property to be vested in another trustee or trustees, in which case, after
the appropriate actions under Section 10.5 hereof shall have been taken, legal
title shall be deemed to be vested in such other co-trustee and/or separate
trustee, as the case may be. Legal title to all Trust Property consisting of the
Financed Student Loans shall be vested at all times in the Co-Owner Eligible
Lender Trustee, not in its individual capacity but solely as Co-Owner Eligible
Lender Trustee pursuant to the Co-Owner Eligible Lender Trust Agreement for the
benefit of the Trust; provided, however, that any such trustee shall be an
"eligible lender" under the Higher Education Act.
(b) The Certificateholder shall not have legal title to any part of the
Trust Property. The Certificateholder shall be entitled to receive distributions
with respect to its undivided beneficial interest therein only in accordance
with Articles V and IX of this Agreement. No transfer, by operation of law or
otherwise, of any right, title or interest by the Certificateholder of its
ownership interest in the Trust Property shall operate to terminate this
Agreement or the trusts hereunder or entitle any transferee to an accounting or
to the transfer to it of legal title to any part of the Trust Property.
Section 2.9. Situs of Trust.
The chief executive office and principal place of business of the Trust
will be located at the Corporate Trust Office of the Co-Owner Trustee. The Trust
shall at all times be administered in the State of Ohio. All bank accounts shall
be maintained by the Co-Owner Trustee and shall be located in the State of Ohio.
The Trust shall not have any employees in any state; provided, however, that
nothing herein shall restrict or prohibit the Delaware Trustee, the Co-Owner
Trustee, the Co-Owner Eligible Lender Trustee, the Depositor, the Administrator,
the Servicer or
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any agent of the Trustees from having employees within or without the State of
Delaware or the State of Ohio. Payment will be received by the Co-Owner Trustee
only in the State of Ohio, and payments will be made by the Co-Owner Trustee
only from the State of Ohio.
Section 2.10. Representations and Warranties of the Depositor.
By execution of this Agreement, the Depositor makes the following
representations and warranties on which the Delaware Trustee, the Co-Owner
Trustee and the Co-Owner Eligible Lender Trustee each relies in accepting the
Trust Property in trust and issuing the Certificate:
(a) Organization and Good Standing. It has been duly organized and is
validly existing as a limited liability company in good standing under the laws
of the State of Delaware, with power and authority to own its properties and to
conduct its business as such properties are currently owned and as such business
is currently conducted and is proposed to be conducted pursuant to this
Agreement and the Related Documents.
(b) Due Qualification. It is duly qualified to do business as a limited
liability company in good standing, and has obtained all necessary licenses and
approvals, in all jurisdictions in which the ownership or lease of its property,
the conduct of its business and the performance of its obligations under this
Agreement and the Related Documents requires such qualification.
(c) Power and Authority. It has the power and authority to execute and
deliver this Agreement and its Related Documents and to perform its obligations
pursuant thereto, and the execution, delivery and performance of this Agreement
and its Related Documents have been duly authorized by all necessary company
action.
(d) No Consent Required. No consent, license, approval or authorization
or registration or declaration with, any Person or with any governmental
authority, bureau or agency is required in connection with its execution,
delivery or performance of this Agreement and the Related Documents, except for
such as have been obtained, effected or made.
(e) No Violation. The consummation of the transactions contemplated by
this Agreement and its Related Documents and the fulfillment of its obligations
under this Agreement and its Related Documents shall 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, its certificate of
formation or limited liability company agreement, or any indenture, agreement,
mortgage, deed of trust or other instrument to which it is a party or by which
it is bound, or result in the creation or imposition of any lien upon any of its
properties pursuant to the terms of any such indenture, agreement, mortgage,
deed of trust or other instrument, or violate any law, order, rule or regulation
applicable to it of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over it or any of its properties.
(f) No Proceedings. There are no proceedings or investigations pending
or, to its knowledge, threatened against it before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality having
jurisdiction over it or its properties (i) asserting the invalidity of this
Agreement or any of the Related Documents, (ii) seeking to prevent the issuance
of the Certificate or the Exchange Offer with respect to the Notes or the
consummation of any of the transactions contemplated by this Agreement or any of
the Related
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Documents, (iii) seeking any determination or ruling that might materially and
adversely affect its performance of its obligations under, or the validity or
enforceability of, this Agreement or any of the Related Documents, or (iv)
seeking to adversely affect the federal income tax or other federal, state or
local tax attributes of the Certificate.
Section 2.11. Federal Income Tax Allocations.
Net income of the Trust for any month as determined for Federal income
tax purposes (and each item of income, gain, loss and deduction entering into
the computation thereof) shall be allocated to the Certificateholder, as of the
Record Date for such month, in an amount equal to the amount distributable for
such month to such Certificateholder.
Section 2.12. Covenants of Certificateholder.
The Certificateholder agrees:
(a) to be bound by the terms and conditions of the Certificate and of
this Agreement, including any supplements or amendments hereto and to perform
the obligations of the Certificateholder as set forth therein or herein, in all
respects as if it were a signatory hereto. This undertaking is made for the
benefit of the Delaware Trustee, the Co-Owner Trustee, the Co-Owner Eligible
Lender Trustee and any other future Certificateholder;
(b) to hereby appoint the Administrator as such Certificateholder's
agent and attorney-in-fact to sign any federal income tax information return
filed on behalf of the Certificateholder with respect to this Agreement and
that, if requested by the Co-Owner Trustee, it will sign such federal income tax
information return in its capacity as holder of an interest in the Trust. The
Certificateholder also hereby agrees that in its tax returns it will not take
any position inconsistent with those taken in any tax returns filed by the
Administrator on behalf of the Certificateholder;
(c) to notify the Delaware Trustee and the Co-Owner Trustee of any
transfer by it of the Certificate in a taxable sale or exchange, within 30 days
of the date of the transfer, provided, however, that, notwithstanding anything
to the contrary in this Agreement, the Certificateholder shall not transfer the
Certificate so long as there are any Notes outstanding unless the transfer is
related to (i) the adjudication of the Certificateholder as bankrupt or
insolvent, (ii) the reorganization or relief of the Certificateholder under any
applicable federal or state law relating to bankruptcy, (iii) the appointment of
a receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Certificateholder or a substantial part of its property or (iv)
an assignment by the Certificateholder for the benefit of its creditors; and
(d) not to, for any reason, institute proceedings for the Trust to be
adjudicated a bankrupt or insolvent, or consent to the institution of bankruptcy
or insolvency proceedings against the Trust, or file a petition seeking or
consenting to reorganization or relief under any applicable federal or state law
relating to bankruptcy, or consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Trust or a
substantial part of its property, or cause or permit the Co-Owner Trustee or the
Co-Owner Eligible Lender Trustee to make any assignment for the benefit of its
creditors, or admit in writing its inability to pay its debts generally as they
become due, or declare or effect a moratorium on its debt or take any action in
furtherance of any such action.
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ARTICLE III
THE CERTIFICATE
Section 3.1. Initial Ownership.
Upon the creation of the Trust by the contribution by the Depositor
pursuant to Section 2.5 and in the absence of the issuance of the initial
Certificate, the Depositor shall be the sole beneficiary of the Trust.
Section 3.2. The Certificate.
A single Certificate registered in the name of the Depositor and
representing the whole beneficial interest in the Trust shall be initially
issued in accordance with the provisions of Section 3.3 hereof. The Certificate
shall be substantially in the form of Exhibit A to this Agreement with such
changes as are necessary or appropriate and not inconsistent with this
Agreement. The Certificate shall be executed by the Delaware Trustee by manual
or facsimile signature of any authorized signatory of the Delaware Trustee. A
Certificate bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures were affixed, authorized to sign on behalf of
the Delaware Trustee shall be validly issued and entitled to the benefits of
this Agreement, notwithstanding that such individuals or any of them have ceased
to be so authorized prior to the authentication and delivery of such
Certificate.
Section 3.3. Authentication of Certificate.
Simultaneously with the assignment and transfer to the Trust of the
Trust Property pursuant to the Transfer and Sale Agreement and the delivery to
the Co-Owner Eligible Lender Trustee and the Co-Owner Trustee of the Financed
Student Loans and the other Trust Property, respectively, the Delaware Trustee
shall execute the Certificate and shall cause the Certificate to be
authenticated by the Authentication Agent and delivered to or upon the order of
the Depositor. No Certificate shall entitle its Holder to any benefit under this
Agreement, or shall be valid for any purpose, unless there shall appear on such
Certificate a certificate of authentication, executed by the Authentication
Agent, by manual signature; such authentication shall constitute conclusive
evidence that such Certificate shall have been duly authenticated and delivered
hereunder. The Co-Owner Trustee is hereby initially appointed Authentication
Agent. The Certificate shall be dated the date of its authentication.
Section 3.4. Registration of Transfer and Exchange of Certificate.
(a) The Certificate Registrar shall maintain, or cause to be
maintained, at the office or agency maintained pursuant to Section 3.8 hereof, a
Certificate Register in which, subject to such reasonable regulations as it may
prescribe, the Co-Owner Trustee shall provide for the registration of the
Certificate and of transfers and exchanges of the Certificate as provided in
this Agreement. The Co-Owner Trustee is hereby initially appointed Certificate
Registrar for the purpose of registering the Certificate and transfers and
exchanges of the Certificate as provided in this Agreement.
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(b) Subject to the provisions of paragraph (c) of Section 2.12 of this
Agreement and paragraph (e) of this Section 3.4, the Depositor, as the
registered Holder of the initial single Certificate, may transfer (but solely to
the extent not otherwise limited or prohibited in the Certificate or this
Agreement), or exchange for other Certificates aggregating Percentage Interests
equal to 100%, the initial Certificate upon surrender of such Certificate to be
transferred or exchanged at the office or agency of the Co-Owner Trustee
maintained pursuant to Section 3.8 hereof. Upon surrender for registration of
transfer of any Certificate at the office or agency of the Co-Owner Trustee
maintained pursuant to Section 3.8 hereof, the Co-Owner Trustee shall cause the
Delaware Trustee to execute, and the Authentication Agent shall authenticate and
deliver in the name of the designated transferee, one or more new Certificates
in an aggregate amount equal to the surrendered Certificate, each dated the date
of authentication.
(c) Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the Co-Owner Trustee and the Certificate Registrar, duly
executed by the Holder or its attorney duly authorized in writing. Each
Certificate surrendered for registration of transfer or exchange shall be
canceled and subsequently disposed of by the Co-Owner Trustee in accordance with
its customary practice.
(d) No service charge shall be made for any registration of transfer or
exchange of a Certificate, but the Co-Owner Trustee or the Certificate Registrar
(if different from the Co-Owner Trustee) may require payment of a sum sufficient
to cover any tax or governmental charge that may be imposed in connection with
any transfer or exchange of a Certificate.
(e) No Certificate may be acquired by or for the account of (i) an
employee benefit plan (as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")) that is subject to the
provisions of Title 1 of ERISA, (ii) a plan described in Section 4975(e)(1) of
the Code, or (iii) any entity whose underlying assets include plan assets by
reason of a plan's investment in the entity (each, a "Benefit Plan"). By
accepting and holding a Certificate, the Certificateholder thereof shall be
deemed to have represented and warranted that it is not a Benefit Plan.
Section 3.5. Mutilated, Destroyed, Lost or Stolen Certificate.
If (a) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (b) there is delivered to
the Delaware Trustee, the Certificate Registrar (if different from the Co-Owner
Trustee) and the Co-Owner Trustee such security or indemnity as may be required
by them to save each of them harmless, then, in the absence of notice to the
Certificate Registrar, the Co-Owner Trustee or the Delaware Trustee that such
Certificate has been acquired by a bona fide purchaser, the Co-Owner Trustee
shall cause the Delaware Trustee to execute, and the Authentication Agent shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor and
amount. In connection with the issuance of any new Certificate under this
Section 3.5, the Co-Owner Trustee may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Co-Owner
Trustee, the Delaware Trustee and the Certificate Registrar) connected
therewith. Any duplicate Certificate issued pursuant to this Section 3.5 shall
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constitute conclusive evidence of beneficial ownership in the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 3.6. Person Deemed Certificateholder.
Prior to due presentation of a Certificate for registration of
transfer, the Co-Owner Trustee, the Certificate Registrar (if different from the
Co-Owner Trustee) and any agent of the Co-Owner Trustee or the Certificate
Registrar may treat the Person in whose name any Certificate is registered as
the holder of such Certificate for the purpose of receiving distributions
pursuant to Section 5.2 hereof and for all other purposes whatsoever, and
neither the Delaware Trustee, the Co-Owner Trustee, or the Certificate Registrar
nor any agent of the Delaware Trustee, the Co-Owner Trustee or the Certificate
Registrar shall be affected by any notice to the contrary.
Section 3.7. [Reserved]
Section 3.8. Maintenance of Office or Agency.
(a) The Co-Owner Trustee shall maintain in Cincinnati, Ohio an office
or offices or agency or agencies where a Certificate may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Co-Owner Trustee in respect of such Certificate and the Related Documents
may be served. The Co-Owner Trustee initially designates its Corporate Trust
Office for such purposes. The Co-Owner Trustee shall give prompt written notice
to the Delaware Trustee, the Depositor, the Co-Owner Eligible Lender Trustee and
the Certificateholder of any change in the location of the Certificate Register
or any such office or agency.
(b) The Delaware Trustee shall maintain in Wilmington, Delaware an
office or offices from which it shall perform its obligations under this
Agreement and at which all service of process with respect to this Agreement
shall be made. The Delaware Trustee initially designates its Corporate Trust
Office for such purposes. The Delaware Trustee shall give prompt written notice
to the Co-Owner Trustee, the Depositor, the Co-Owner Eligible Lender Trustee and
the Certificateholder of any change in the location of such office or agency.
(c) The Co-Owner Eligible Lender Trustee shall maintain in Cincinnati,
Ohio an office or offices from which it shall perform its obligations under this
Agreement and at which all service of process with respect to this Agreement
shall be made. The Co-Owner Eligible Lender Trustee initially designates its
Corporate Trust Office for such purposes. The Co-Owner Eligible Lender Trustee
shall give prompt written notice to the Delaware Trustee, the Co-Owner Trustee,
the Depositor and the Certificateholder of any change in the location of such
office or agency.
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Section 3.9. Appointment of Paying Agent.
The Paying Agent shall make distributions to the Certificateholder from
the Certificate Distribution Account pursuant to Section 5.2 hereof and shall
report the amounts of such distributions to the Delaware Trustee and Co-Owner
Trustee (if different from the Paying Agent). Any Paying Agent (if different
from the Co-Owner Trustee) shall have the revocable power to withdraw funds from
the Certificate Distribution Account for the purpose of making the distributions
referred to above. The Co-Owner Trustee (if different from the Paying Agent) may
revoke such power and remove the Paying Agent if the Co-Owner Trustee determines
in its sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. The Paying Agent shall
initially be Firstar Bank, National Association, and any co-paying agent chosen
by Firstar Bank, National Association. Firstar Bank, National Association shall
be permitted to resign as Paying Agent upon 30 days' written notice to the
Delaware Trustee. In the event that Firstar Bank, National Association shall no
longer be the Paying Agent, the Co-Owner Trustee with the written consent of the
Delaware Trustee, shall appoint a successor to act as Paying Agent (which shall
be a bank or trust company). The Co-Owner Trustee shall cause such successor
Paying Agent or any additional Paying Agent appointed by the Co-Owner Trustee to
execute and deliver to the Co-Owner Trustee an instrument in which such
successor Paying Agent or additional Paying Agent shall agree with the Co-Owner
Trustee that as Paying Agent, such successor Paying Agent or additional Paying
Agent will hold all sums, if any, held by it for payment to the
Certificateholder in trust for the benefit of the Certificateholder entitled
thereto until such sums shall be paid to such Certificateholder. The Paying
Agent (if different from the Co-Owner Trustee) shall return all unclaimed funds
to the Co-Owner Trustee and upon removal of a Paying Agent such Paying Agent
shall also return all funds in its possession to the Co-Owner Trustee (if
different from the Paying Agent). The provisions of Sections 7.1, 7.3, 7.4 and
8.2 hereof shall apply to the Co-Owner Trustee also in its role as Paying Agent,
for so long as the Co-Owner Trustee shall act as Paying Agent and, to the extent
applicable, to any other paying agent appointed hereunder. Any reference in this
Agreement to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
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ARTICLE IV
ACTIONS BY DELAWARE TRUSTEE,
CO-OWNER TRUSTEE AND CO-OWNER ELIGIBLE LENDER TRUSTEE
Section 4.1. Restriction on Power of Certificateholder.
The Certificateholder shall not have any right to vote or in any manner
otherwise control the operation and management of the Trust except as expressly
provided in this Agreement.
Section 4.2. Prior Notice to Certificateholder with Respect to Certain
Matters.
Neither the Delaware Trustee, the Co-Owner Trustee nor the Co-Owner
Eligible Lender Trustee shall take any of the following actions, unless at least
30 days before the taking of such action, the Delaware Trustee, the Co-Owner
Trustee or the Co-Owner Eligible Lender Trustee, as the case may be, shall have
notified the other Trustees and the Certificateholder in writing of the proposed
action and the Certificateholder shall not have notified the Delaware Trustee or
the Co-Owner Trustee, as the case may be, in writing prior to the 30th day after
such notice is given that such Certificateholder has withheld consent or
provided alternative direction:
(a) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required unless such
amendment would not materially adversely affect the interests of the
Certificateholder, the Delaware Trustee, the Co-Owner Trustee or the Co-Owner
Eligible Lender Trustee; or
(b) the amendment, change or modification of the Administration
Agreement, unless such amendment would not materially adversely affect the
interests of the Certificateholder, the Delaware Trustee, the Co-Owner Trustee
or the Co-Owner Eligible Lender Trustee.
Section 4.3. Action by Certificateholder with Respect to Bankruptcy.
Neither the Delaware Trustee, the Co-Owner Trustee nor the Co-Owner
Eligible Lender Trustee shall have the power to commence a voluntary proceeding
in bankruptcy relating to the Trust, if otherwise permitted by applicable law,
without the prior approval of the Certificateholder and the delivery to the
Delaware Trustee and the Co-Owner Trustee by such Certificateholder of a
certificate certifying that such Certificateholder reasonably believes that the
Trust is insolvent.
Section 4.4. Restrictions on Certificateholder's Power.
The Certificateholder shall not have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action, or
proceeding in equity or at law upon or under or with respect to this Agreement
or any Related Document, unless the Certificateholder previously shall have
given to the Delaware Trustee and the Co-Owner Trustee a written notice of
default and of the continuance thereof, as provided in this Agreement and unless
also the Certificateholder shall have made written request upon the Delaware
Trustee and the Co-Owner Trustee to institute such action, suit or proceeding in
its own respective names as Delaware
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Trustee and Co-Owner Trustee under this Agreement and shall have offered to the
Delaware Trustee and Co-Owner Trustee such reasonable indemnity as each may
require against the costs, expenses and liabilities to be incurred therein or
thereby, and the Delaware Trustee and Co-Owner Trustee, for 30 days after their
receipt of such notice, request, and offer of indemnity, shall have neglected or
refused to institute any such action, suit, or proceeding and during such 30-day
period, no request or waiver inconsistent with such written request has been
given to the Delaware Trustee and Co-Owner Trustee pursuant to and in compliance
with this Section or Section 6.3 hereof.
Section 4.5. Rights of Certificateholder.
Notwithstanding anything to the contrary in the Related Documents,
without the prior written consent of the Certificateholder, neither the Delaware
Trustee, the Co-Owner Trustee nor the Co-Owner Eligible Lender Trustee shall (i)
remove the Administrator, (ii) initiate any claim, suit or proceeding under this
Agreement or compromise any claim, suit or proceeding brought pursuant to this
Agreement or (iii) authorize the merger, conversion or consolidation of the
Trust with or into any business trust or other entity (other than in accordance
with the Indenture).
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ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.1. Certificate Contribution Account; Certificate Distribution
Account.
(a) The Co-Owner Trustee, for the benefit of the Certificateholder,
shall establish and maintain the Certificate Contribution Account, in the name
of the Co-Owner Trustee for the benefit of the Certificateholder. The
Certificate Contribution Account shall be a segregated trust account hereunder
established by the Co-Owner Trustee and maintained at the Corporate Trust Office
of the Co-Owner Trustee. The Co-Owner Trustee shall deposit in the Certificate
Contribution Account all amounts received from the Depositor pursuant to Section
2.5 hereof.
(b) The Co-Owner Trustee, for the benefit of the Certificateholder,
shall establish and maintain the Certificate Distribution Account in the name of
the Trust for the benefit of the Certificateholder. The Certificate Distribution
Account shall be a segregated trust account hereunder established and maintained
by and with the Co-Owner Trustee at its Corporate Trust Office. The Co-Owner
Trustee shall deposit in the Certificate Distribution Account all amounts
received from the Indenture Trustee as and when received.
(c) The Co-Owner Trustee shall possess all right, title and interest in
all funds on deposit from time to time in the Certificate Contribution Account
and the Certificate Distribution Account and in all proceeds of each.
(d) All amounts held in the Certificate Distribution Account shall, to
the extent permitted by applicable laws, rules and regulations, be invested, by
the Co-Owner Trustee, in Eligible Investments that mature not later than one
Business Day prior to the Certificateholder's Distribution Date to which such
amounts relate. Investments in Eligible Investments shall be made in the name of
the Co-Owner Trustee, and such investments shall not be sold or disposed of
prior to their maturity. Any investment of funds in the Certificate Distribution
Account shall be made in Eligible Investments held by a financial institution
with respect to which (a) such institution has noted the Co-Owner Trustee's
interest therein by book entry or otherwise and (b) a confirmation of the
Co-Owner Trustee's interest has been sent to the Co-Owner Trustee by such
institution, provided that such Eligible Investments are (i) specific
certificated securities, and (ii) either (A) in the possession of such
institution or (B) in the possession of a clearing corporation in New York,
registered in the name of such clearing corporation, not endorsed for collection
or surrender or any other purpose not involving transfer, not containing any
evidence of a right or interest inconsistent with the Co-Owner Trustee's
interest therein, and held by such clearing corporation in an account of such
institution. Subject to the other provisions hereof, the Co-Owner Trustee shall
have sole control over each such investment and the income thereon, and any
certificate or other instrument evidencing any such investment, if any, shall be
delivered directly to the Co-Owner Trustee or its agent, together with each
document of transfer, if any, necessary to transfer title to such investment to
the Co-Owner Trustee in a manner which complies with this Section 5.1. All
interest, gains upon sale and other income from, or earnings on investment of
funds in the Certificate Distribution Account shall be distributed on the next
Certificateholder's Distribution Date pursuant to Section 5.2 hereof.
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Section 5.2. Application of Funds in Certificate Distribution Account
and Certificate Contribution Account.
(a) On each Certificateholder's Distribution Date, the Co-Owner Trustee
shall distribute to the Certificateholder the Certificateholder's pro rata
amount of the aggregate undistributed amounts deposited in the Certificate
Distribution Account pursuant to Section 5.1 hereof.
(b) On each Certificateholder's Distribution Date, the Co-Owner Trustee
shall send to the Certificateholder any statement received from the Indenture
Trustee pursuant to the Indenture.
(c) In the event that any withholding tax is imposed on the Co-Owner
Trustee's distribution (or allocations of income) to the Certificateholder, such
tax shall reduce the amount otherwise distributable to such Certificateholder in
accordance with this Section. The Co-Owner Trustee is hereby authorized and
directed to retain from amounts otherwise distributable to such
Certificateholder sufficient funds for the payment of any tax that is legally
owed on account of the Trust (but such authorization shall not prevent the
Co-Owner Trustee from contesting any such tax in appropriate proceedings, and
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings). The amount of any withholding tax imposed with respect to
such Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by the Trust and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax is
payable with respect to a distribution (such as a distribution to a non-U.S.
Certificateholder), the Co-Owner Trustee may, in its sole discretion, withhold
such amounts in accordance with this paragraph (c). In the event that such
Certificateholder wishes to apply for a refund of any such withholding tax, the
Co-Owner Trustee shall reasonably cooperate with such Certificateholder in
making such claim so long as such Certificateholder agrees to reimburse the
Co-Owner Trustee for any out-of-pocket expenses incurred.
(d) On any Business Day on which there are due and payable
organizational, start-up and transactional expenses pursuant to this Agreement,
the Co-Owner Trustee shall, to the extent of available amounts in the
Certificate Contribution Account, pay such expenses from the Certificate
Contribution Account; provided, however, that if an insufficiency in the
Certificate Contribution Account exists or would exist upon payment of such
expenses, the Co-Owner Trustee shall notify the Depositor in writing of such
insufficiency and the Depositor shall immediately pay to the Co-Owner Trustee an
amount at least equal to such insufficiency. To the extent that there are
amounts on deposit in the Certificate Distribution Account pending distribution
on any such Business Day, the Co-Owner Trustee, with the consent of the
Certificateholder, may transfer a portion or all of such amounts from the
Certificate Distribution Account to the Certificate Contribution Account and
such amounts shall be applied to the payment of the expenses payable from
amounts in the Certificate Contribution Account.
Section 5.3. Method of Payment.
Subject to Section 9.1(c) hereof, distributions required to be made to
the Certificateholder on any Certificateholder's Distribution Date shall be made
to such Certificateholder of record on the preceding Record Date either by wire
transfer, in immediately available funds, to the account of such Holder at a
bank or other entity having appropriate facilities therefor, if such
Certificateholder shall have provided to the Certificate Registrar appropriate
written instructions
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at least five Business Days prior to such Distribution Date and the amount of
such distribution is not less than $50,000 or, if not, by check mailed to such
Certificateholder at the address of such Holder appearing in the Certificate
Register.
Section 5.4. No Segregation of Moneys; No Interest.
Subject to Sections 5.1 and 5.2, moneys received by the Co-Owner
Trustee hereunder need not be segregated in any manner except to the extent
required by law and may be deposited under such general conditions as may be
prescribed by law, and the Co-Owner Trustee shall not be liable for any interest
thereon.
Section 5.5. Accounting; Reports; Tax Returns.
(a) The Administrator has agreed pursuant to the Administration
Agreement that the Administrator shall (i) maintain (or cause to be maintained)
the books of the Trust on a fiscal year basis on the accrual method of
accounting (such fiscal year initially being the fiscal year of the Depositor),
(ii) deliver to the Certificateholder, as may be required by the Code and
applicable Treasury Regulations, such information as may be required to enable
such Certificateholder to prepare its Federal and state income tax returns,
(iii) file or cause to be filed such tax returns, if any, relating to the Trust,
and direct the Co-Owner Trustee to make such elections as may from time to time
be required or appropriate under any applicable state or Federal statute or rule
or regulation thereunder so as to maintain the Trust's characterization as a
"disregarded entity" (or, if applicable, a partnership for Federal income tax
purposes), (iv) collect or cause to be collected any withholding tax as
described in and in accordance with Section 5.2(c) with respect to income or
distributions to the Certificateholder and (v) file or cause to be filed all
documents required to be filed by the Co-Owner Trustee with the Commission and
otherwise take or cause to be taken all such actions as are required for the
Trust's compliance with all applicable provisions of state and federal
securities laws.
(b) The Co-Owner Trustee shall make all elections pursuant to this
Section 5.5 as directed in writing by the Certificateholder.
(c) The Co-Owner Trustee shall sign any tax returns relating to the
Trust, unless applicable law requires the Certificateholder to sign such
documents, in which case such documents shall be signed by the Certificateholder
qualified to sign such return, or such Certificateholder's law agent or
attorney-in-fact. In signing any such tax return, the Co-Owner Trustee shall
rely entirely upon, and shall have no liability for, information or calculations
provided by the Administrator.
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ARTICLE VI
AUTHORITY AND DUTIES OF DELAWARE TRUSTEE,
CO-OWNER TRUSTEE AND CO-OWNER ELIGIBLE LENDER TRUSTEE
Section 6.1. General Authority.
The Co-Owner Trustee is authorized and directed to execute, not in its
individual capacity but solely as trustee of the Trust, and deliver, and the
Co-Owner Trustee authorizes and directs the Co-Owner Eligible Lender Trustee to
execute, not in its individual capacity but solely as eligible lender trustee
for the benefit of the Co-Owner Trustee, and deliver, the Related Documents to
which it is to be a party and each certificate or other document attached as an
exhibit to, or contemplated by, the Related Documents to which the Trust is to
be a party and any amendment thereto. In addition to the foregoing, the Co-Owner
Trustee is authorized, but shall not be obligated, to take all actions required
of the Trust pursuant to the Related Documents. The Co-Owner Trustee is further
authorized hereunder to enter into the Administration Agreement, to appoint,
with the prior written consent of the Depositor, a successor Administrator and
to take from time to time such action as the Administrator recommends with
respect to the Related Documents so long as such actions are consistent with the
terms of the Related Documents.
Section 6.2. General Duties.
It shall be the duty of the Co-Owner Trustee (and not the Delaware
Trustee) to discharge (or cause to be discharged through the Administrator or
such agents as shall be appointed by the Administrator) all of its
responsibilities pursuant to the terms of this Agreement and the Related
Documents and to administer the Trust in the interest of the Certificateholder,
subject to the Related Documents and in accordance with the provisions of this
Agreement. Notwithstanding the foregoing, the Co-Owner Trustee shall be deemed
to have discharged its duties and responsibilities hereunder and under the
Related Documents to the extent the Administrator has agreed in the
Administration Agreement, or the Co-Owner Eligible Lender Trustee has agreed in
the Co-Owner Eligible Lender Trust Agreement, to perform any act or to discharge
any duty of the Co-Owner Trustee hereunder or under any Related Document, and
the Co-Owner Trustee shall not be liable for the default or failure of the
Administrator or the Co-Owner Eligible Lender Trustee, as the case may be, to
carry out its obligations under the Administration Agreement or Co-Owner
Eligible Lender Trust Agreement, respectively.
Section 6.3. Action upon Instruction.
(a) Subject to Article IV of this Agreement, the Administrator (the
"Instructing Party") shall have the exclusive right to direct the actions of the
Co-Owner Trustee in the management of the Trust, so long as such instructions
are not inconsistent with the express terms set forth herein or in any Related
Document. The Instructing Party shall not instruct the Co-Owner Trustee in a
manner inconsistent with this Agreement or the Related Documents.
(b) Neither the Delaware Trustee, the Co-Owner Trustee nor the Co-Owner
Eligible Lender Trustee shall be required to take any action hereunder or under
any Related Document if
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they, or any one of them, shall have reasonably determined, or shall have been
advised by counsel, that such action is contrary to the terms hereof or of any
Related Document or is otherwise contrary to law.
(c) Whenever the Delaware Trustee, the Co-Owner Trustee or the Co-Owner
Eligible Lender Trustee is unable to decide between alternative courses of
action permitted or required by the terms of this Agreement or any Related
Document, the Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible
Lender Trustee, as the case may be, shall promptly give notice (in such form as
shall be appropriate under the circumstances) to the Instructing Party
requesting instruction as to the course of action to be adopted, and to the
extent the Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible
Lender acts in good faith in accordance with any written instruction received
from the Instructing Party, neither the Delaware Trustee, the Co-Owner Trustee
nor the Co-Owner Eligible Lender Trustee, as the case may be, shall be liable on
account of such action to any Person. If the Delaware Trustee, the Co-Owner
Trustee or the Co-Owner Eligible Lender Trustee shall not have received
appropriate instruction within ten days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary
under the circumstances), it may, but shall be under no duty to, take or refrain
from taking such action, not inconsistent with this Agreement or the Related
Documents, as it shall deem to be in the best interests of the
Certificateholder, and shall have no liability to any Person for such action or
inaction.
(d) In the event that the Delaware Trustee, the Co-Owner Trustee or the
Co-Owner Eligible Lender Trustee is unsure as to the application of any
provision of this Agreement or any Related Document or any such provision is
ambiguous as to its application, or is, or appears to be, in conflict with any
other applicable provision, or in the event that this Agreement permits any
determination by the Delaware Trustee, the Co-Owner Trustee or the Co-Owner
Eligible Lender Trustee or is silent or is incomplete as to the course of action
that the Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible Lender
Trustee is required to take with respect to a particular set of facts, the
Delaware Trustee, the Co-Owner Trustee, or the Co-Owner Eligible Lender Trustee
may give notice (in such form as shall be appropriate under the circumstances)
to the Instructing Party requesting instruction and, to the extent that the
Delaware Trustee, the Co-Owner Trustee and/or the Co-Owner Eligible Lender
Trustee acts or refrains from acting in good faith in accordance with any such
instruction received, neither the Delaware Trustee, the Co-Owner Trustee nor the
Co-Owner Eligible Lender Trustee shall be liable on account of such action or
inaction to any Person. If the Delaware Trustee, the Co-Owner Trustee or the
Co-Owner Eligible Lender Trustee shall not have received appropriate instruction
within 10 days of such notice (or within such shorter period of time as
reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action, not inconsistent with this Agreement or the Related
Documents, as it shall deem to be in the best interests of the
Certificateholder, and shall have no liability to any Person for such action or
inaction.
Section 6.4. No Duties Except as Specified in this Agreement or in
Instructions.
Neither the Delaware Trustee, the Co-Owner Trustee nor the Co-Owner
Eligible Lender Trustee shall have any duty or obligation to manage, make any
payment with respect to, register, record, sell, dispose of or otherwise deal
with the Trust Property, or to otherwise take or refrain from taking any action
under, or in connection with, any document contemplated hereby to which any one
of them is a party, except as expressly provided by the terms of this Agreement
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(including as provided in Section 6.2 hereof), in any Related Document or in any
written instruction received by the Co-Owner Trustee or Co-Owner Eligible Lender
Trustee pursuant to Section 6.3 hereof; and no implied duties or obligations
shall be read into this Agreement or any Related Document against the Delaware
Trustee, the Co-Owner Trustee or the Co-Owner Eligible Lender Trustee. Neither
the Delaware Trustee, the Co-Owner Trustee nor the Co-Owner Eligible Lender
Trustee shall have any responsibility for preparing, monitoring or filing any
financing or continuation statements in any public office at any time or
otherwise to perfect or maintain the perfection of any security interest or lien
granted to it hereunder or to record this Agreement or any Related Document;
provided, however, the Co-Owner Trustee and the Co-Owner Eligible Lender Trustee
shall, from time to time, execute and deliver such financing or continuation
statements as are prepared by the Administrator or the Indenture Trustee and are
delivered to the Co-Owner Trustee or the Co-Owner Eligible Lender Trustee for
execution for the purpose of perfecting or maintaining the perfection of such a
security interest or lien or effecting such a recording. Each of the Delaware
Trustee, the Co-Owner Trustee and the Co-Owner Eligible Lender Trustee,
nevertheless, agrees that it will, at its own cost and expense (and not at the
expense of the Trust), promptly take all action as may be necessary to discharge
any liens on any part of the Trust Property that are attributable to claims
against the Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible
Lender Trustee in its individual capacity, respectively, that are not related to
the ownership or the administration of the Trust Property.
Section 6.5. No Action Except under Specified Documents or
Instructions.
Neither the Delaware Trustee, the Co-Owner Trustee nor the Co-Owner
Eligible Lender Trustee shall manage, control, use, sell, dispose of or
otherwise deal with any part of, the Trust Property except (i) in accordance
with the powers granted to and the authority conferred upon the Delaware
Trustee, the Co-Owner Trustee or the Co-Owner Eligible Lender Trustee,
respectively, pursuant to this Agreement, or, in the case of the Co-Owner
Eligible Lender Trustee, the Co-Owner Eligible Lender Trust Agreement, (ii) in
accordance with the Related Documents and (iii) in accordance with any document
or instruction delivered to the Delaware Trustee, the Co-Owner Trustee or the
Co-Owner Eligible Lender Trustee, respectively, pursuant to Section 6.3 or
Section 6.4 hereof.
Section 6.6. Restrictions.
Neither the Delaware Trustee, the Co-Owner Trustee nor the Co-Owner
Eligible Lender Trustee shall take any action (i) that is inconsistent with the
purposes of the Trust set forth in Section 2.3 hereof or (ii) that, to the
actual knowledge of the Delaware Trustee, the Co-Owner Trustee or the Co-Owner
Eligible Lender Trustee would result in the Trust's becoming taxable as a
corporation for Federal income tax purposes. The Certificateholder shall not
direct the Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible
Lender Trustee to take action that would violate the provisions of this Section.
Section 6.7. Administration Agreement.
(a) The Administrator is authorized to execute on behalf of Co-Owner
Trustee as trustee of the Trust all documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the Co-Owner Trustee to
prepare, file or deliver pursuant to the Related Documents. Upon written
request, the Co-Owner Trustee shall execute and deliver to the
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Administrator a power of attorney appointing the Administrator its agent and
attorney-in-fact to execute all such documents, reports, filings, instruments,
certificates and opinions.
(b) If the Administrator shall resign or be removed pursuant to the
terms of the Administration Agreement, the Co-Owner Trustee may, and is hereby
authorized and empowered to, subject to obtaining the prior written consent of
the Depositor, appoint or consent to the appointment of a successor
Administrator pursuant to the Administration Agreement.
(c) If the Administration Agreement is terminated, the Co-Owner Trustee
may, and is hereby authorized and empowered to, subject to obtaining the prior
written consent of the Depositor, appoint or consent to the appointment of a
Person to perform substantially the same duties as are assigned to the
Administrator in the Administration Agreement pursuant to an agreement
containing substantially the same provisions as are contained in the
Administration Agreement.
(d) The Co-Owner Trustee shall promptly notify the Certificateholder of
any default by or misconduct of the Administrator under the Administration
Agreement of which the Co-Owner Trustee has received written notice or of which
a Responsible Officer has actual knowledge.
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ARTICLE VII
CONCERNING THE DELAWARE TRUSTEE
THE CO-OWNER TRUSTEE AND THE CO-OWNER ELIGIBLE LENDER TRUSTEE
Section 7.1. Acceptance of Delaware Trustee and Co-Owner Trustee;
Duties.
Each of the Delaware Trustee and the Co-Owner Trustee accepts the
trusts hereby created and agrees to perform its respective duties hereunder with
respect to such trusts but only upon the terms of this Agreement. The Co-Owner
Trustee also agrees to disburse all moneys actually received by it constituting
part of the Trust Property upon the terms of the Related Documents and this
Agreement. Neither the Delaware Trustee nor the Co-Owner Trustee shall be
answerable or accountable hereunder or under any Related Document under any
circumstances, except that the Delaware Trustee or the Co-Owner Trustee, as
applicable, shall be answerable or accountable hereunder (i) for its own willful
misconduct or negligence, (ii) in the case of the inaccuracy of any
representation or warranty given by it contained in Section 7.3 hereof, (iii)
for liabilities arising from its failure to perform obligations expressly
undertaken by it in the last sentence of Section 6.4 hereof, (iv) for any
investments issued by it or any branch or affiliate thereof in its commercial
capacity and (v) for taxes, fees or other charges on, based on or measured by,
any fees, commissions or compensation received by it in connection with any of
the transactions contemplated by this Agreement or any Related Document. In
particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
(a) neither the Delaware Trustee nor the Co-Owner Trustee shall be
liable for any error of judgment made in good faith by an authorized officer of
the Delaware Trustee or the Co-Owner Trustee, respectively;
(b) neither the Delaware Trustee nor the Co-Owner Trustee shall be
liable with respect to any action taken or omitted to be taken by either in good
faith in accordance with the instructions of the Instructing Party;
(c) no provision of this Agreement or any Related Document shall
require the Delaware Trustee, the Co-Owner Trustee and/or the Co-Owner Eligible
Lender Trustee to expend or risk funds or otherwise incur any financial
liability in the performance of its rights or powers hereunder or under any
Related Document if they shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured or provided to them;
(d) under no circumstances shall the Delaware Trustee, the Co-Owner
Trustee or the Co-Owner Eligible Lender Trustee be liable for indebtedness
evidenced by or arising under this Agreement or any of the Related Documents,
including the principal of and interest and any Carryover Interest on the Notes;
(e) neither the Delaware Trustee, the Co-Owner Trustee nor the Co-Owner
Eligible Lender Trustee shall be responsible for or in respect of the validity
or sufficiency of this Agreement or for the due execution hereof by the
Depositor or each other hereunder or for the form, character, genuineness,
sufficiency, value or validity of any of the Trust Property or for or in respect
of the validity or sufficiency of the Related Documents, other than (i) with
respect to
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the Delaware Trustee, the execution by the Delaware Trustee of each Certificate
and (ii) with respect to the Co-Owner Trustee, the certificate of authentication
on a Certificate, and neither the Delaware Trustee, the Co-Owner Trustee nor the
Co-Owner Eligible Lender Trustee shall in any event assume or incur any
liability, duty, or obligation to each other, the Administrator, the Indenture
Trustee, any Noteholder or to any Certificateholder, other than as expressly
provided for herein and in the Related Documents;
(f) neither the Delaware Trustee, the Co-Owner Trustee nor the Co-Owner
Eligible Lender Trustee shall be liable for the default or misconduct of each
other, the Administrator, the Indenture Trustee or the Depositor under any of
the Related Documents or otherwise and neither the Delaware Trustee, the
Co-Owner Trustee nor the Co-Owner Eligible Lender Trustee shall have any
obligation or liability to perform the obligations under this Agreement or the
Related Documents that are required to be performed by the Administrator under
the Administration Agreement, by the Indenture Trustee under the Indenture or by
the Master Servicer under the Master Servicing Agreement; and
(g) neither the Delaware Trustee, the Co-Owner Trustee nor the Co-Owner
Eligible Lender Trustee shall be under any obligation to exercise any of the
rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation under this Agreement or otherwise or in relation to this
Agreement or any Related Document, at the request, order or direction of the
Instructing Party, unless such Instructing Party has offered to it security or
indemnity satisfactory to it against the costs, expenses and liabilities that
may be incurred by it therein or thereby. The right of the Delaware Trustee, the
Co-Owner Trustee or the Co-Owner Eligible Lender Trustee to perform any
discretionary act enumerated in this Agreement or in any Related Document shall
not be construed as a duty, and neither the Delaware Trustee, the Co-Owner
Trustee nor the Co-Owner Eligible Lender Trustee shall be answerable for other
than its own negligence or willful misconduct in the performance of any such
act.
Section 7.2. Furnishing of Documents.
The Co-Owner Trustee shall furnish to the Certificateholder promptly
upon receipt of a written request therefor, duplicates or copies of all reports,
notices, requests, demands, certificates, financial statements and any other
instruments furnished to it under the Related Documents unless such
Certificateholder has previously received such items.
Section 7.3. Representations and Warranties.
(a) The Delaware Trustee hereby represents and warrants to the
Depositor and the Certificateholder that:
(i) It is a national banking association duly organized and
validly existing in good standing under the laws of the United States
of America. It has all requisite corporate power and authority and all
franchises, grants, authorizations, consents, orders and approvals from
all governmental authorities necessary to execute, deliver and perform
its obligations under this Agreement and each Related Document to which
it, not in its individual capacity but solely as trustee of the Trust,
is a party.
(ii) It has taken all corporate action necessary to authorize
the execution and delivery by it, not in its individual capacity but
solely as trustee of the Trust, of this Agreement and the Certificate,
and this Agreement has been executed and delivered by
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one of its officers who is duly authorized to execute and deliver this
Agreement on its behalf.
(iii) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof
will contravene any federal or Delaware law, governmental rule or
regulation governing the banking or trust powers of the Delaware
Trustee or any judgment or order binding on it, or constitute any
default under its charter documents or by-laws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or
by which any of its properties may be bound or result in the creation
or imposition of any lien, charge or encumbrance on the Trust Property
resulting from actions by or claims against the Delaware Trustee
individually which are unrelated to this Agreement or the Related
Documents.
(b) The Co-Owner Trustee hereby represents and warrants to the
Depositor and the Certificateholder that:
(i) It is a national banking association duly organized and
validly existing in good standing under the laws of the United States
of America. It has all requisite corporate power and authority and all
franchises, grants, authorizations, consents, orders and approvals from
all governmental authorities necessary to execute, deliver and perform
its obligations under this Agreement and each Related Document to which
it, not in its individual capacity but solely as trustee of the Trust,
is a party.
(ii) It has taken all corporate action necessary to authorize
the execution and delivery by it of this Agreement and each Related
Document to which it, not in its individual capacity but solely as
trustee of the Trust, is a party, and this Agreement and each Related
Document will be executed and delivered by one of its officers who is
duly authorized to execute and deliver this Agreement and each Related
Document on its behalf.
(iii) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof
will contravene any federal or Ohio law, governmental rule or
regulation governing the banking or trust powers of the Co-Owner
Trustee or any judgment or order binding on it, or constitute any
default under its charter documents or by-laws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or
by which any of its properties may be bound or result in the creation
or imposition of any lien, charge or encumbrance on the Trust Property
resulting from actions by or claims against the Co-Owner Trustee
individually which are unrelated to this Agreement or the Related
Documents.
(c) The Co-Owner Eligible Lender Trustee hereby represents and warrants
to the Depositor, the Co-Owner Trustee and the Certificateholder that:
(i) It is a national banking association duly organized and
validly existing in good standing under the laws of the United States
of America. It has all requisite corporate power and authority and all
franchises, grants, authorizations, consents, orders and approvals from
all governmental authorities necessary to execute, deliver and
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perform its obligations under this Agreement and each Related Document
to which it, not in its individual capacity but solely as eligible
lender trustee for the benefit of the Co-Owner Trustee, is a party.
(ii) It has taken all corporate action necessary to authorize
the execution and delivery by it of this Agreement and each Related
Document to which it, not in its individual capacity but solely as
trustee of the Trust, is a party, and this Agreement and each Related
Document will be executed and delivered by one of its officers who is
duly authorized to execute and deliver this Agreement and each Related
Document on its behalf.
(iii) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof
will contravene any federal or Ohio law, governmental rule or
regulation governing the banking or trust powers of the Co-Owner
Eligible Lender Trustee or any judgment or order binding on it, or
constitute any default under its charter documents or by-laws or any
indenture, mortgage, contract, agreement or instrument to which it is a
party or by which any of its properties may be bound or result in the
creation or imposition of any lien, charge or encumbrance on the Trust
Property resulting from actions by or claims against the Co-Owner
Eligible Lender Trustee individually which are unrelated to this
Agreement or the Related Documents.
(iv) It is and will use its best efforts to remain an
"eligible lender" under the Higher Education Act.
Section 7.4. Reliance; Advice of Counsel.
(a) Neither the Delaware Trustee, the Co-Owner Trustee nor the Co-Owner
Eligible Lender Trustee shall incur any liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent, order, certificate,
report, opinion, bond, or other document or paper believed by it to be genuine
and believed by it to be signed by the proper party or parties. The Delaware
Trustee, the Co-Owner Trustee and the Co-Owner Eligible Lender Trustee may
accept a certified copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full force
and effect. As to any fact or matter the method of the determination of which is
not specifically prescribed herein, the Delaware Trustee, the Co-Owner Trustee
and the Co-Owner Eligible Lender Trustee may for all purposes hereof rely on a
certificate, signed by the president or any vice president or by the treasurer
or other authorized officers of the relevant party, as to such fact or matter,
and such certificate shall constitute full protection to the Delaware Trustee,
the Co-Owner Trustee and Co-Owner Eligible Lender Trustee, respectively, for any
action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and the
performance of its respective duties and obligations under this Agreement or the
Related Documents, each of the Delaware Trustee, the Co-Owner Trustee and the
Co-Owner Eligible Lender Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with it, and neither the Delaware
Trustee, the Co-Owner Trustee nor the Co-Owner Eligible Lender Trustee shall be
liable for the conduct or misconduct of such agents or attorneys if such agents
or attorneys shall
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have been selected by it with reasonable care, and (ii) may consult with
counsel, accountants and other skilled persons to be selected with reasonable
care and employed by it. Neither the Delaware Trustee, the Co-Owner Trustee nor
the Co-Owner Eligible Lender Trustee shall be liable for anything done, suffered
or omitted in good faith by it in accordance with the written opinion or advice
of any such counsel, accountants or other such persons and not contrary to this
Agreement or any Related Document.
Section 7.5. Not Acting in Individual Capacity.
(a) Except as provided in this Article VII, in accepting the trusts
hereby created First Union Trust Company, National Association acts solely as
Delaware Trustee hereunder and not in its individual capacity and all Persons
having any claim against the Delaware Trustee by reason of the transactions
contemplated by this Agreement or any Related Document shall look only to the
Trust Property for payment or satisfaction thereof.
(b) Except as provided in this Article VII, in accepting the trusts
hereby created Firstar Bank, National Association acts solely as Co-Owner
Trustee hereunder and not in its individual capacity and all Persons having any
claim against the Co-Owner Trustee by reason of the transactions contemplated by
this Agreement or any Related Document shall look only to the Trust Property for
payment or satisfaction thereof.
(c) Except as provided in this Article VII, all Persons having any
claim against the Co-Owner Eligible Lender Trustee by reason of the transactions
contemplated by this Agreement or any Related Document shall look only to the
Trust Property for payment or satisfaction thereof.
Section 7.6. Delaware Trustee Not Liable for Certificate, Notes or
Financed Student Loans.
The recitals contained herein and in each Certificate (other than the
signature of the Delaware Trustee and the signature of the Co-Owner Trustee, as
Authentication Agent, on each Certificate) shall be taken as the statements of
the Depositor, and neither the Delaware Trustee, the Co-Owner Trustee nor the
Co-Owner Eligible Lender Trustee assumes any responsibility for the correctness
thereof. Neither the Delaware Trustee, the Co-Owner Trustee nor the Co-Owner
Eligible Lender Trustee makes any representations as to the validity or
sufficiency of this Agreement, of any Related Document or of the Certificate
(other than representations of the Delaware Trustee regarding the signature of
the Delaware Trustee on the Certificate and representations of the Co-Owner
Trustee, as Authentication Agent, regarding its signature on the certificate of
authentication on the Certificate) or the Notes, or of any Financed Student Loan
or related documents. Neither the Delaware Trustee, the Co-Owner Trustee nor the
Co-Owner Eligible Lender Trustee shall at any time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
any Financed Student Loan, or the perfection and priority of any security
interest created under the Indenture in any Financed Student Loan or the
maintenance of any such perfection and priority of any such security interest or
the maintenance of any such perfection and priority, or for or with respect to
the sufficiency of the Trust Property or its ability to generate the payments to
be distributed to the Certificateholder under this Agreement or the Noteholders
under the Indenture, including, without limitation: the existence, status and
ownership of any Financed Student Loan; the existence and enforceability of any
insurance or guarantee thereon; the existence and status of any Financed Student
Loan on any
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computer or other record thereof; the validity of the sale or assignment of any
Financed Student Loan to the Co-Owner Eligible Lender Trustee or of any
intervening sale or assignment; the validity or sufficiency of any Guarantee;
the completeness of any Financed Student Loan; the performance or enforcement of
any Financed Student Loan; the compliance by the Administrator or the Master
Servicer with any warranty or representation made under any Related Document or
in any other related document or the accuracy of any such warranty or
representation or any action of the Indenture Trustee, the Administrator or the
Master Servicer taken in the name of the Delaware Trustee, the Co-Owner Trustee
or the Co-Owner Eligible Lender Trustee.
Section 7.7. Delaware Trustee, Co-Owner Trustee and Co-Owner Eligible
Lender Trustee May Own Certificate and Notes.
The Delaware Trustee in its individual or any other capacity, the
Co-Owner Trustee in its individual or any other capacity, and the Co-Owner
Eligible Lender Trustee in its individual or any other capacity, or any one of
them, may become the owner or pledgee of a Certificate or Notes and may deal
with the Depositor, the Indenture Trustee, any Guarantee Agency and the Master
Servicer in banking or other transactions with the same rights as it would have
if it were not Delaware Trustee, Co-Owner Trustee or Co-Owner Eligible Lender
Trustee, respectively.
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ARTICLE VIII
COMPENSATION OF DELAWARE TRUSTEE,
THE CO-OWNER TRUSTEE AND CO-OWNER ELIGIBLE LENDER TRUSTEE
Section 8.1. Fees and Expenses of Delaware Trustee, Co-Owner Trustee
and Co-Owner Eligible Lender Trustee.
(a) The Delaware Trustee shall receive as compensation for its services
hereunder such fees as have been separately agreed upon before the date hereof
between the Depositor and the Delaware Trustee, and the Delaware Trustee shall
be entitled to be reimbursed by the Depositor for its other reasonable expenses
hereunder, including the reasonable compensation, expenses and disbursements of
such agents, representatives, experts and counsel as the Delaware Trustee may
reasonably determine are necessary to employ in connection with the exercise and
performance of its rights and its duties hereunder.
(b) The Co-Owner Trustee shall receive as compensation for its services
hereunder such fees as have been separately agreed upon before the date hereof
between the Depositor and the Co-Owner Trustee, and the Co-Owner Trustee shall
be entitled to be reimbursed by the Depositor for its other reasonable expenses
hereunder, including the reasonable compensation, expenses and disbursements of
such agents, representatives, experts and counsel as the Co-Owner Trustee may
reasonably determine are necessary to employ in connection with the exercise and
performance of its rights and its duties hereunder.
(c) The Co-Owner Eligible Lender Trustee shall receive as compensation
for its services hereunder such fees as have been separately agreed upon before
the date hereof between the Depositor and the Co-Owner Eligible Lender Trustee,
and the Co-Owner Eligible Lender Trustee shall be entitled to be reimbursed by
the Depositor for its other reasonable expenses hereunder, including the
reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Co-Owner Eligible Lender Trustee may
reasonably determine are necessary to employ in connection with the exercise and
performance of its rights and its duties hereunder.
Section 8.2. Indemnification.
The Depositor shall be liable as primary obligor for, and shall
indemnify each of the Delaware Trustee in its individual capacity and its
successors, assigns, agents and servants, the Co-Owner Trustee in its individual
capacity and its successors, assigns, agents and servants and any other
co-trustee and the Co-Owner Eligible Lender Trustee in its individual capacity
and its successors, assigns, agents and servants and any other co-trustee
(collectively, the "Indemnified Parties") from and against, any and all
liabilities, obligations, losses, damages, taxes, claims, actions and suits, and
any and all reasonable costs, expenses and disbursements (including reasonable
legal fees and expenses) of any kind and nature whatsoever (collectively,
"Expenses") which may, at any time, be imposed on, incurred by, or asserted
against the Delaware Trustee, the Co-Owner Trustee, the Co-Owner Eligible Lender
Trustee or any other Indemnified Party in any way relating to or arising out of
this Agreement, the Related
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Documents, the Trust Property, the administration of the Trust Property or the
action or inaction of the Delaware Trustee, the Co-Owner Trustee or the Co-Owner
Eligible Lender Trustee hereunder; provided, however, that the Depositor shall
not be liable for or required to indemnify the Delaware Trustee, the Co-Owner
Trustee or the Co-Owner Eligible Lender Trustee from and against Expenses
arising or resulting from any of the matters described in the third sentence of
Section 7.1 hereof; and, provided further that, notwithstanding anything in this
Agreement to the contrary, the indemnification provided herein shall be payable
solely from the Trust Property. The indemnification contained in this Section
shall survive the resignation or termination of the Delaware Trustee, the
Co-Owner Trustee or the Co-Owner Eligible Lender Trustee, or any of them, or the
termination of this Agreement.
Section 8.3. Non-recourse Obligations.
Notwithstanding anything in this Agreement or any Related Document to
the contrary, each of the Delaware Trustee, the Co-Owner Trustee and the
Co-Owner Eligible Lender Trustee agrees in its individual capacity and in its
respective capacity as Delaware Trustee, Co-Owner Trustee or Co-Owner Eligible
Lender Trustee of the Trust that all obligations under this Agreement to the
Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible Lender Trustee,
individually or as Trustees, respectively, of the Trust shall be recourse to the
Trust Property only and specifically shall not be recourse to the assets of the
Certificateholder.
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ARTICLE IX
TERMINATION
Section 9.1. Termination of the Trust.
(a) Subject to distribution to the Certificateholder by the Co-Owner
Trustee of any amounts deposited or to be deposited in the Certificate
Distribution Account, the respective obligations and responsibilities of the
Depositor, the Delaware Trustee, the Co-Owner Trustee and the Co-Owner Eligible
Lender Trustee created by this Agreement and the Trust created by this Agreement
shall terminate upon the earlier to occur of (i) the maturity or other
liquidation of the last Financed Student Loan (including the auction sale by the
Indenture Trustee of the remaining Financed Student Loans in the Trust as
described in Section 3.02 of the Terms Supplement and the subsequent
distribution of amounts in respect of such auction sale as provided in the
Indenture and the other Related Documents) and (ii) the payment to the
Noteholders of all amounts payable pursuant to the Indenture. In any case, there
shall be delivered to the Delaware Trustee, the Co-Owner Trustee, the Co-Owner
Eligible Lender Trustee and the Indenture Trustee an Opinion of Counsel that all
applicable preference periods under federal, state and local bankruptcy,
insolvency and similar laws have expired with respect to the payments pursuant
to the immediately preceding clause (ii); provided, however, that in no event
shall the trust created by this Agreement continue beyond the defeasance of the
Indenture in accordance with the provisions of Article X thereof; and provided,
further, that the rights to indemnification under Section 8.2 shall survive the
termination of the Trust. The bankruptcy, liquidation, dissolution, termination,
resignation, expulsion, withdrawal, death or incapacity of any
Certificateholder, shall not (x) operate to terminate this Agreement or the
Trust, nor (y) entitle such Certificateholder's legal representatives or heirs
to claim an accounting or to take any action or proceeding in any court for a
partition or winding up of all or any part of the Trust or Trust Property nor
(z) otherwise affect the rights, obligations and liabilities of the parties
hereto.
(b) Neither the Depositor nor the Certificateholder shall be entitled
to revoke or terminate the Trust.
(c) Within five Business Days of receipt by the Co-Owner Trustee of
notice from the Indenture Trustee given pursuant to Section 5.9 of the Indenture
of final distribution to the Co-Owner Trustee of amounts held under the
Indenture, the Co-Owner Trustee shall mail written notice to the
Certificateholder, specifying (i) the Certificateholder's Distribution Date upon
which final distribution of amounts received hereunder shall be made upon
presentation and surrender of such Certificateholder's Certificate at the office
of the Paying Agent therein specified, (ii) the amount of any such final
payment, and (iii) that the Record Date otherwise applicable to such
Certificateholder's Distribution Date is not applicable, payments being made
only upon presentation and surrender of such Certificate at the office of the
Paying Agent therein specified. The Co-Owner Trustee shall give such notice to
the Certificate Registrar (if different from the Co-Owner Trustee) at the time
such notice is given to such Certificateholder. In the event such notice is
given, the Co-Owner Trustee shall make deposits into the Certificate
Distribution Account in accordance with Section 5.1(a) hereof. Upon presentation
and surrender
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of the Certificate, the Paying Agent shall cause to be distributed to such
Certificateholder the amount distributable on such Certificateholder's
Distribution Date pursuant to Section 5.2 hereof.
(d) In the event that the Certificateholder shall not surrender its
Certificate for cancellation within six months after the date specified in the
above-mentioned written notice, the Co-Owner Trustee shall give a second written
notice to such Certificateholder to surrender its Certificate for cancellation
and receive the final distribution with respect thereto. If within one year
after the second notice the Certificate shall not have been surrendered for
cancellation, the Co-Owner Trustee may take appropriate steps, or may appoint an
agent to take appropriate steps, to contact such Certificateholder concerning
surrender of its Certificate, and the cost thereof shall be paid out of the
funds and other assets that remain subject to this Agreement. Any funds which
are payable to the Certificateholder remaining in the Trust after exhaustion of
such remedies shall, to the fullest extent permitted by law, be distributed by
the Co-Owner Trustee to the Certificateholder (but only upon termination of this
Agreement), and such Certificateholder, by acceptance of its Certificate, hereby
waives any rights with respect to such funds.
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ARTICLE X
SUCCESSOR DELAWARE TRUSTEES,
CO-OWNER TRUSTEES AND CO-OWNER ELIGIBLE LENDER TRUSTEES
Section 10.1. Eligibility Requirements for Delaware Trustee, Co-Owner
Trustee and Co-Owner Eligible Lender Trustee.
(a) The Delaware Trustee shall at all times be a banking or trust
corporation (i) having its Corporate Trust Office in the State of Delaware, (ii)
authorized to exercise corporate trust powers in the State of Delaware; (iii)
having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or State authorities; and (iv) having (or
having a parent which has) a rating of at least Baa3 by Xxxxx'x or A-1 by
Standard & Poor's. If such corporation shall publish reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. In case at any time the Delaware Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Delaware Trustee
shall resign immediately in the manner and with the effect specified in Section
10.2 hereof.
(b) Each of the Co-Owner Trustee and the Co-Owner Eligible Lender
Trustee shall at all times be a trust company or bank having the powers of a
trust company within the state in which the principal office of the
Administrator is located, organized and doing business under the laws of the
United States of America, any state thereof or the District of Columbia and have
a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or State authorities. In addition, the
Co-Owner Eligible Lender Trustee shall at all times be an "eligible lender"
under the Higher Education Act.
Section 10.2. Resignation or Removal of Delaware Trustee, Co-Owner
Trustee or Co-Owner Eligible Lender Trustee.
(a) The Delaware Trustee or the Co-Owner Trustee may at any time resign
and be discharged from the trusts hereby created by giving written notice
thereof to the other two Trustees hereunder, the Certificateholder, the
Depositor (if different from the Certificateholder) and the Indenture Trustee at
least 30 days before the date specified in such instrument. If the Co-Owner
Eligible Lender Trustee resigns or is discharged from the trusts created by the
Co-Owner Eligible Lender Trust Agreement, the Co-Owner Eligible Lender Trustee
(i) shall give written notice thereof to the other two Trustees hereunder, the
Certificateholder, the Depositor (if different from the Certificateholder) and
the Indenture Trustee at least 30 days before the effective date of such
resignation and (ii) shall be deemed to have resigned from its obligations
hereunder and shall be replaced by a Successor Trustee appointed pursuant to
this Section 10.2; provided, however, that the Successor Trustee to be appointed
shall have executed and delivered an eligible lender trust agreement with the
Co-Owner Trustee. Upon receiving such notice of resignation, the
Certificateholder, with the consent of the non-resigning Trustee of the Trust,
shall promptly appoint a successor Delaware Trustee, Co-Owner Trustee or
Co-Owner
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Eligible Lender Trustee, as applicable (any successor appointed under any
provision of this Section 10.2, solely for purposes of this Section 10.2 and
Section 10.3 hereof, a "Successor Trustee"), meeting the qualifications set
forth in Section 10.1(a) or (b), as applicable, by written instrument, in
duplicate, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the Successor Trustee, provided that the Depositor shall
have received written confirmation from each of the Rating Agencies that the
proposed appointment will not adversely affect the ratings of such Rating
Agencies on any Outstanding Notes. If no Successor Trustee shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Trustee, either of the non-resigning
Trustees or the Indenture Trustee may petition any court of competent
jurisdiction for the appointment of a Successor Trustee.
(b) If (i) at any time the Delaware Trustee, the Co-Owner Trustee
and/or the Co-Owner Eligible Lender Trustee shall cease to be eligible in
accordance with the provisions of Section 10.1(a) or (b), as applicable, and
shall fail to resign after written request therefor by either of the other
Trustees, the Certificateholder or the Indenture Trustee, (ii) at any time the
Delaware Trustee, the Co-Owner Trustee and/or the Co-Owner Eligible Lender
Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Delaware Trustee, the Co-Owner Trustee and/or
the Co-Owner Eligible Lender Trustee, or of the respective property of any of
them, shall be appointed, or any public officer shall take charge or control of
the Delaware Trustee, the Co-Owner Trustee and/or the Co-Owner Eligible Lender
Trustee, or of the respective property or affairs of any one or all of them, for
the purpose of rehabilitation, conservation or liquidation or (iii) the
Certificateholder elects in its sole discretion to remove the Delaware Trustee,
the Co-Owner Trustee or the Co-Owner Eligible Lender Trustee for any reason (in
each case such Trustee for the purposes of this paragraph is hereafter referred
to as a "Disqualified Trustee" and a Trustee not meeting the description of a
Disqualified Trustee, a "Qualified Trustee" ), then either of the Qualified
Trustees, if any, or the Certificateholder may remove such Disqualified Trustee.
If either of the Qualified Trustees or the Certificateholder shall remove the
Disqualified Trustee under the authority of the immediately preceding sentence,
the Certificateholder shall promptly appoint a Successor Trustee meeting the
qualification requirements of Section 10.1 by written instrument, in triplicate,
one copy of which instrument shall be delivered to the Disqualified Trustee so
removed and one copy to the Successor Trustee and Qualified Trustees, if any,
and shall make payment of all fees owed to the outgoing Disqualified Trustee.
(c) Any resignation or removal of the Delaware Trustee, the Co-Owner
Trustee and/or the Co-Owner Eligible Lender Trustee and appointment of a
Successor Trustee pursuant to any of the provisions of this Section shall not
become effective until all fees and expenses, including any indemnity payments,
due to the outgoing Trustee have been paid and until acceptance of appointment
by the Successor Trustee pursuant to Section 10.3.
Section 10.3. Successor Trustee.
(a) Any Successor Trustee appointed pursuant to Section 10.2 hereof
shall execute, acknowledge and deliver to the remaining Trustees, if any, to the
Certificateholder and to its predecessor (solely for purposes of this Section
10.3, the "Predecessor Trustee") an instrument accepting such appointment under
this Agreement and, if the Successor Trustee is the Co-Owner Eligible Lender
Trustee, an eligible lender trust agreement between itself and the Co-Owner
Trustee, and thereupon the resignation or removal of the Predecessor Trustee
shall become
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effective and such Successor Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties, and
obligations of its Predecessor Trustee under this Agreement, with like effect as
if originally named as Delaware Trustee, Co-Owner Trustee or Co-Owner Eligible
Lender Trustee, as applicable. The Predecessor Trustee shall deliver to the
Successor Trustee all documents and statements and moneys, if any, held by it
under this Agreement; and the Certificateholder, the remaining Trustee and the
Predecessor Trustee shall execute and deliver such instruments and do such other
things as may reasonably be required for fully and certainly vesting and
confirming in the Successor Trustee all such rights, powers, duties and
obligations.
(b) No Successor Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such Successor Trustee shall be
eligible to become the Delaware Trustee, the Co-Owner Trustee or the Co-Owner
Eligible Lender Trustee, as applicable, pursuant to Section 10.1 hereof.
(c) Upon acceptance of appointment by a Successor Trustee pursuant to
this Section, the Certificateholder shall give notice by first class mail of the
name and address and telecopy number of the Successor Trustee to the Indenture
Trustee, the Noteholders and the Rating Agencies. If the Certificateholder shall
fail to mail such notice within 10 days after acceptance of appointment by the
Successor Trustee, the Successor Trustee shall cause such notice to be mailed at
the expense of the Certificateholder.
Section 10.4. Merger or Consolidation of Delaware Trustee, Co-Owner
Trustee or Co-Owner Eligible Lender Trustee.
Any corporation into which the Delaware Trustee, the Co-Owner Trustee
or the Co-Owner Eligible Lender Trustee, as the case may be, may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Delaware Trustee, the
Co-Owner Trustee or the Co-Owner Eligible Lender Trustee, as the case may be,
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of the Delaware Trustee, the Co-Owner Trustee or
the Co-Owner Eligible Lender Trustee, as the case may be, shall be the successor
of the Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible Lender
Trustee, as the case may be, hereunder, provided such corporation shall be
eligible pursuant to the applicable provisions of Section 10.1 hereof, without
the execution or filing of any instrument or any further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding, and
provided further that the Delaware Trustee, the Co-Owner Trustee or the Co-Owner
Eligible Lender Trustee, as the case may be, shall mail notice of such merger or
consolidation to the Rating Agencies.
Section 10.5. Appointment of Additional Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Agreement, at any
time, for the purpose of meeting any legal requirements of any jurisdiction in
which any part of the Trust Property, including, without limitation, any
Financed Student Loan, may at the time be located, the Administrator and the
Co-Owner Trustee acting jointly shall have the power and shall execute and
deliver all instruments to appoint one or more Persons to act as co-trustee,
jointly with the Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible
Lender Trustee, as the case may be, or separate trustee or separate trustees, of
all or any part of the Trust Property, and to vest
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in such Person, in such capacity, such title to the Trust Property, or any part
thereof, and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Administrator and the Co-Owner
Trustee may consider necessary or desirable. If the Administrator shall not have
joined in such appointment within 15 days after the receipt by it of a request
so to do, the Co-Owner Trustee shall have the power to make such appointment. No
co-trustee or separate trustee under this Agreement shall be required to meet
the terms of eligibility as a successor trustee pursuant to Section 10.1 hereof
and no notice of the appointment of any co-trustee or separate trustee shall be
required pursuant to Section 10.1 hereof; provided, however, that such
co-trustee with or separate trustee from the Co-Owner Eligible Lender Trustee
shall be an "eligible lender" under the Higher Education Act.
(b) Each separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties, and obligations conferred or
imposed upon the Delaware Trustee, the Co-Owner Trustee or the Co-Owner
Eligible Lender Trustee, as applicable, shall be conferred upon and
exercised or performed by the Delaware Trustee, the Co-Owner Trustee or
the Co-Owner Eligible Lender Trustee, as applicable, and such separate
trustee or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without the
Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible Lender
Trustee, as applicable, joining in such act), except to the extent that
under any law of any jurisdiction in which any particular act or acts
are to be performed, the Delaware Trustee, the Co-Owner Trustee or the
Co-Owner Eligible Lender Trustee, as applicable, shall be incompetent
or unqualified to perform such act or acts, in which event such rights,
powers, duties, and obligations (including the holding of title to the
Trust Property or any portion thereof in any such jurisdiction) shall
be exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Delaware Trustee, the
Co-Owner Trustee or the Co-Owner Eligible Lender Trustee, as
applicable;
(ii) no Trustee under this Agreement shall be personally
liable by reason of any act or omission of any other Trustee under this
Agreement; and
(iii) the Administrator and the Delaware Trustee, the Co-Owner
Trustee or the Co-Owner Eligible Lender Trustee, as applicable, acting
jointly may at any time accept the resignation of or remove any
separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Delaware Trustee,
the Co-Owner Trustee or the Co-Owner Eligible Lender Trustee, as applicable,
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall, refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Delaware
Trustee, the Co-Owner Trustee or the Co-Owner Eligible Lender Trustee, as
applicable, or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Delaware Trustee, the Co-Owner Trustee
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or the Co-Owner Eligible Lender Trustee, as applicable. Each such instrument
shall be filed with the Delaware Trustee, the Co-Owner Trustee or the Co-Owner
Eligible Lender Trustee, as applicable, and a copy thereof given to the
Administrator and the Certificateholder.
(d) Any separate trustee or co-trustee may at any time appoint the
Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible Lender Trustee,
as applicable, its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible
Lender Trustee, as applicable, to the extent permitted by law, without the
appointment of a new or successor trustee.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.1. Amendment.
(a) This Agreement may be amended by the Certificateholder, the
Delaware Trustee, the Co-Owner Trustee and the Co-Owner Eligible Lender Trustee,
without the consent of the Depositor (if other than the Certificateholder) or
Noteholders, (i) to cure any ambiguity or (ii) to correct, supplement or modify
any provisions in this Agreement; provided, however, that such action shall not,
as evidenced by an Opinion of Counsel, adversely affect in any material respect
the interests of the Certificateholder or any Noteholder.
(b) This Agreement may also be amended from time to time by the
Certificateholder without the consent of the Depositor (if other than the
Certificateholder), the Delaware Trustee, the Co-Owner Trustee and the Co-Owner
Eligible Lender Trustee and, if such amendment materially and adversely affects
the interests of Noteholders, the consent of a majority of the Directing Notes
(which consent of any Noteholder given pursuant to this Section or pursuant to
any other provision of this Agreement shall be conclusive and binding on such
holders and on any holder of any Certificate or Note issued upon the transfer
thereof or in exchange therefor or in lieu thereof whether or not notation of
such consent is made upon the Certificate or Note) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement, or of modifying in any manner the rights of the
Certificateholder or holder of a Note; provided, however, that no such amendment
shall (i) increase or reduce in any manner the amount of, or accelerate or delay
the timing of, collections of payments on the Financed Student Loans or
distributions that shall be required to be made on any Note or (ii) reduce the
aforesaid percentage required to consent to any such amendment or any waiver
hereunder, without the consent of the holders of all the Notes then outstanding.
(c) Prior to the execution of any such amendment or consent, the
Certificateholder shall furnish written notification of the substance of such
amendment or consent to each Rating Agency.
(d) Promptly after the execution of any such amendment or consent, the
Co-Owner Trustee shall furnish written notification of the substance of such
amendment or consent to the Indenture Trustee unless such party has previously
received such notification.
(e) It shall not be necessary for the consent of the Noteholders
pursuant to Section 11.1(b) hereof to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and any
other consents of the Noteholders provided for in this Agreement) and of
evidencing the authorization of the execution thereof by the Certificateholder
shall be subject to such reasonable requirements as the Co-Owner Trustee may
prescribe, including the establishment of record dates.
(f) Prior to the execution of any amendment to this Agreement, the
Delaware Trustee, the Co-Owner Trustee and the Co-Owner Eligible Lender Trustee
shall be entitled to
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receive and rely upon an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Agreement and that all conditions
precedent to the execution and delivery of such amendment have been satisfied.
The Delaware Trustee, the Co-Owner Trustee and the Co-Owner Eligible Lender
Trustee may, but shall not be obligated to, enter into any such amendment which
affects the Delaware Trustee's, the Co-Owner Trustee's or the Co-Owner Eligible
Lender Trustee's own rights, duties or immunities under this Agreement or
otherwise.
Section 11.2. No Recourse.
The Certificateholder by accepting a Certificate acknowledges that such
Certificateholder's Certificate represents such Certificateholder's beneficial
interest in the Trust only and does not represent interests in or obligations of
the Depositor, the Administrator, the Master Servicer, the Delaware Trustee, the
Co-Owner Trustee, the Co-Owner Eligible Lender Trustee, the Indenture Trustee or
any affiliate of any of the foregoing and no recourse may be had against such
parties or their assets, except as may be expressly set forth or contemplated in
this Agreement, in each Certificate or in the Related Documents.
Section 11.3. Governing Law.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware without regard to the principles of
conflicts of laws thereof and the obligations, rights and remedies of the
parties under this Agreement shall be determined in accordance with such laws;
provided, however, that the parties hereto intend that the provisions hereof
shall control over any contrary or limiting statutory or common law of the State
of Delaware and that, to the maximum extent permitted by applicable law, there
shall not be applicable to the Trust, the Trustees or this Agreement any
provisions of the laws (statutory or common) of the State of Delaware pertaining
to trusts that relate to or regulate in a manner inconsistent with the terms
hereof: (i) the filing with any court or governmental body or agency of trustee
accounts or schedules of trustee fees and charges, (ii) affirmative requirements
to post bonds for trustees, officers, agents or employees of a trust, (iii) the
necessity for obtaining court or other governmental approval concerning the
acquisition, holding or disposition of real or personal property, (iv) fees or
other sums payable to trustees, officers, agents or employees of a trust, (v)
the allocation of receipts and expenditures between income and principal, (vi)
restrictions or limitations on the permissible nature, amount or concentration
of trust investments or requirements relating to the titling, storage or other
manner of holding of trust assets, or (vii) the establishment of fiduciary or
other standards or responsibilities or limitations on the acts or powers of
trustees that are inconsistent with the limitations on liability or authorities
and powers of the Trustees set forth or referenced in this Agreement. Section
3540 of Title 12 of the Delaware Code shall not apply to the Trust.
(b) Each of the parties hereto agrees (i) that this Agreement involves
at least $100,000, and (ii) this Agreement has been entered into by the parties
hereto in express reliance upon 6 Del. C. Section 2708.
(c) Each party hereto unconditionally agrees (i) to be subject to the
jurisdiction of the courts of the State of Delaware and of the federal courts
sitting in the State of Delaware and (ii)(A) to the extent that such party is
not otherwise subject to service of process in the State of Delaware, to appoint
and maintain an agent in the State of Delaware as such party's agent for
acceptance of legal process and (B) that service of process may also be made on
such party by
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prepaid certified mail with a proof of mailing receipt validated by the United
States Postal Service constituting evidence of valid service, and that service
made pursuant to (ii)(A) or (B) above shall have the same legal force effect as
if served upon such party personally within the State of Delaware. For purposes
of implementing the party's agreement to appoint and maintain an agent for
service of process in the State of Delaware, each of the Co-Owner Trustee and
the Co-Owner Eligible Lender Trustee does hereby appoint the Delaware Trustee as
such agent, and the Delaware Trustee hereby accepts such appointment.
Section 11.4. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of any Certificate or the rights of the Holder thereof.
Section 11.5. Certificate Nonassessable and Fully Paid.
The Certificateholder shall not be personally liable for obligations of
the Trust, the undivided beneficial interest in the assets of the Trust, whether
fractional or whole, represented by a Certificate shall be nonassessable for any
losses or expenses of the Trust or for any reason whatsoever, and each
Certificate upon execution thereof by the Delaware Trustee and authentication
thereof by the Authentication Agent, in each case pursuant to Section 3.3
hereof, are and shall be deemed fully paid and nonassessable.
Section 11.6. Third-Party Beneficiaries.
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns. Except as
otherwise provided in this Agreement, no other Person shall have any right or
obligation hereunder.
Section 11.7. Counterparts.
For the purpose of facilitating its execution and for other purposes,
this Agreement may be executed simultaneously in any number of counterparts,
each of which counterparts shall be deemed to be an original, and all of which
counterparts shall constitute but one and the same instrument.
Section 11.8. Notices.
All demands, notices and communications under this Agreement shall be
in writing, personally delivered or mailed by certified mail-return receipt
requested, and shall be deemed to have been duly given upon receipt (a) in the
case of the Depositor, at the following address: Xxx Xxxx Xxxxxx Xxxxxx, Xxxxx
000, Xxxxxxxxxx, Xxxx 00000, Attention: Chief Financial Officer, (b) in the case
of the Delaware Trustee, the Co-Owner Trustee and the Co-Owner Eligible Lender
Trustee, at their respective Corporate Trust Office and (c) in the case of the
Administrator, Xxx Xxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxx, Attention:
Chief Financial Officer, or at such other address as shall be designated by any
such party in a written notice to the other parties. Notwithstanding the
foregoing, any notice required or permitted to be mailed to the
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Certificateholder shall be given by first class mail, postage prepaid, at the
address of such Holder as shown in the Certificate Register.
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed by their respective officers as of the day and year first
above written.
STUDENT LOAN FUNDING LLC,
("Depositor" and sole initial "Certificateholder")
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
-------------------------------
Title: Senior Vice President & Manager
-------------------------------
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION,
not in its individual capacity, but solely as
trustee under this Trust Agreement ("Delaware Trustee")
By: /s/ Xxxxxx X. Xxxxxx, Xx.
---------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
--------------------------------
Title: Vice President
--------------------------------
FIRSTAR BANK, NATIONAL ASSOCIATION,
not in its individual capacity, but solely as trustee
under this Trust Agreement ("Co-Owner Trustee")
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxx X. Xxxxxxx
-------------------------------
Title: Vice President & Trust Officer
-------------------------------
ACKNOWLEDGED AND AGREED TO:
FIRSTAR BANK, NATIONAL ASSOCIATION,
not in its individual capacity, but solely
as eligible lender trustee under the
Co-Owner Eligible Lender Trust Agreement
for the benefit of the Trust
("Co-Owner Eligible Lender Trustee")
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Title: Xxxxx X. Xxxxxxx
---------------------------------
Vice President & Trust Officer
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EXHIBIT A
FORM OF CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS. THE HOLDER HEREOF,
BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY IN ACCORDANCE WITH ANY APPLICABLE STATE
SECURITIES LAWS AND (1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS AN
INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(A)(1)-(3) UNDER
THE ACT THAT PURCHASES FOR ITS OWN ACCOUNT, OR (2) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT.
THIS CERTIFICATE MAY NOT BE TRANSFERRED DIRECTLY OR INDIRECTLY TO (I)
AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA")) THAT IS SUBJECT TO THE
PROVISIONS OF TITLE 1 OF ERISA, (II) A PLAN DESCRIBED IN SECTION 4975(E)(1) OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR (III) ANY ENTITY
WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN'S INVESTMENT IN
THE ENTITY. FURTHER, THIS CERTIFICATE MAY BE TRANSFERRED ONLY TO A UNITED STATES
PERSON WITHIN THE MEANING OF SECTION 7701(A)(30) OF THE CODE.
THIS CERTIFICATE IS NOT GUARANTEED OR INSURED BY ANY GOVERNMENTAL
AGENCY.
Percentage Interest: 100%
STUDENT LOAN FUNDING 1998-A/B TRUST
STUDENT LOAN ASSET-BACKED TRUST CERTIFICATE
evidencing the undivided beneficial Percentage
Interest set forth above in the Trust, as defined
below, the property of which includes a pool of
student loans transferred to and deposited in the Trust by
Student Loan Funding LLC and Firstar Bank, National
Association, as eligible lender trustee on behalf of
Student Loan Funding LLC
THIS CERTIFIES THAT STUDENT LOAN FUNDING LLC is the registered owner of
the Percentage Interest set forth above in the Student Loan Funding 1998-A/B
Trust (the "Trust"), a common law (as opposed to statutory) trust formed under
the laws of the State of Delaware by Student Loan Funding LLC, (the
"Depositor"). The Trust was created pursuant to a Trust Agreement, dated as of
March 1, 1999 (as amended from time to time, the "Trust Agreement"), among the
Depositor, First Union Trust Company, National Association, Wilmington,
Delaware, not in its individual capacity, but solely in its capacity as owner
trustee under the Trust Agreement (the "Delaware Trustee"), and Firstar Bank,
National Association, Cincinnati, Ohio, not in its individual capacity, but
solely in its capacity as co-owner trustee under the Trust Agreement (the
"Co-Owner Trustee" and collectively with the Delaware Trustee, the "Trustees").
A summary of certain of the pertinent provisions of the Trust Agreement is set
forth below. To the extent not otherwise defined herein, the capitalized terms
used herein shall have the meanings assigned to them in the Trust Agreement. The
rules as to usage set forth in the Trust Agreement shall also be applicable to
this Certificate.
This Certificate is the sole, initial duly authorized Certificate,
designated "Student Loan Funding 1998-A/B Trust - Student Loan Asset-Backed
Trust Certificate" (herein called "this Certificate" or, collectively, with
other Certificates that may be issued upon transfer or exchange of this
Certificate for such other Certificates, whose aggregate Percentage Interest
shall be 100%, the "Certificates") issued under the Trust Agreement, to which
Trust Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is
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bound. The Trust Property includes an initial deposit by the Depositor to the
Certificate Contribution Account, and all property and proceeds thereof of every
description conveyed pursuant to the Transfer and Sale Agreement and
simultaneously with the issuance of this Certificate, including, without
limitation, a pool of student loans (the "Financed Student Loans") and any all
amounts deposited from time to time in the Certificate Distribution Account. The
rights of the Holder of this Certificate to the assets of the Trust are subject
to the rights of the Holders of certain notes (the "Notes") issued under the
Indenture of Trust, as supplemented by the Terms Supplement to the Indenture of
Trust, each dated as of December 1, 1998, as amended and restated by the First
Amended and Restated Indenture of Trust, dated as of ________ 1, 1999, among the
Co-Owner Trustee, Firstar Bank, National Association, not in its individual
capacity but solely in its capacity as eligible lender trustee on behalf of the
Co-Owner Trustee (the "Co-Owner Eligible Lender Trustee") and Firstar Bank,
National Association, not in its individual capacity but solely in its capacity
as Indenture Trustee (the "Indenture Trustee"), as supplemented by the First
Amended and Restated Terms Supplement to the First Amended and Restated
Indenture of Trust, dated as of ________ 1, 1999 (collectively, as amended from
time to time, the "Indenture").
Under the Trust Agreement, distributions will be made on the
Certificate on each Certificateholder's Distribution Date in the manner set
forth in the Trust Agreement.
The Holder of this Certificate acknowledges and agrees that its rights
to receive distributions in respect of this Certificate from amounts deposited
in the Excess Surplus Account under the Indenture pending their transfer to the
Certificate Distribution Account are subject to the rights of the Noteholders as
described in the Indenture.
The Certificateholder, by its acceptance of this Certificate, covenants
and agrees that such Certificateholder will not at any time institute against
the Depositor or the Trustees, or join in any institution against the Depositor
or the Trustees, any bankruptcy, reorganization, arrangement, insolvency,
receivership or liquidation proceedings, or other proceedings under any United
States federal or state bankruptcy or similar law in connection with any
obligations relating to this Certificate, the Notes, the Trust Agreement or any
of the other Related Documents.
The Holder of this Certificate, by its acceptance of this Certificate,
(i) agrees, for federal, state and local income and franchise tax purposes, to
treat the Trust as a "disregarded entity" (i.e. the Trust will be disregarded as
an entity separate from the Certificateholder), with the assets of the Trust
being the Financed Student Loans and other assets held by the Co-Owner Trustee,
the Notes for such purposes being debt of the Certificateholder which has
elected to disregard the Trust as an entity separate from itself for tax
purposes, and (ii) acknowledges that the Trust will file or cause to be filed
annual or other necessary returns, reports and other forms consistent with the
characterization of the Trust as a "disregarded entity" for federal, state and
local and franchise tax purposes and that the Depositor will not make, or cause
to be made, an election under the provisions of Treasury Regulation Section
301.7701.3 to classify the Trust as an association.
Distributions on this Certificate will be made from the Certificate
Distribution Account as provided in the Trust Agreement by the Co-Owner Trustee
by wire transfer or by check mailed to the Certificateholder of record in the
Certificate Register without the presentation or surrender of this Certificate
or the making of any notation hereon.
This Certificate does not represent an obligation of, or an interest
in, the Depositor, the Master Servicer, the Administrator, the Trustees or the
Indenture Trustee or any affiliates of any of them, and no recourse may be had
against such parties or their assets, except as may be expressly set forth
herein, in the Trust Agreement or in the other Related Documents. In addition,
this Certificate is not guaranteed by any governmental agency or instrumentality
and is limited in right of payment to certain excess collections respecting the
Financed Student Loans, all as more specifically set forth in the Indenture. A
copy of each of the Indenture and the Trust Agreement may be examined during
normal business hours at the principal office of the Depositor, and at such
other places, if any, designated by the Depositor upon request.
The Trust Agreement permits the amendment thereof without the consent
of the Certificateholder or any Noteholders, (i) to cure any ambiguity or (ii)
to correct, supplement or modify any provisions in the Trust Agreement;
provided, however, that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of the
Certificateholder or any Noteholder. The Trust Agreement permits, with certain
exceptions therein provided, but only with the consent of the Certificateholder
and, if such amendment
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materially and adversely affects the interests of Noteholders, with the consent
of a majority of the Directing Notes (as defined in the Indenture) (which
consent of the Certificateholder and Noteholders, if any, given pursuant to the
Trust Agreement shall be conclusive and binding on such holders and on all
future holders of the Certificate or Notes and of any Certificate or Notes
issued upon the transfer thereof or in exchange therefor or in lieu thereof
whether or not notation of such consent is made upon the Certificate or Notes)
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Trust Agreement, or of modifying in any
manner the rights of the Certificateholder or any Noteholder.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer, to the extent permitted herein, of this
Certificate is registrable in the Certificate Register upon surrender of this
Certificate for registration of transfer at the office or agency maintained by
Firstar Bank, National Association, in its capacity as Certificate Registrar, or
by any successor Certificate Registrar, accompanied by a written instrument of
transfer in form satisfactory to the Co-Owner Trustee and the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of authorized
denominations evidencing the same aggregate interest in the Trust will be issued
to the designated transferee.
This Certificate is issuable only as a Certificate registered in the
name of the Depositor as the initial Certificateholder and in the Percentage
Interest of 100%. As provided in the Trust Agreement and subject to the
provisions of the next succeeding paragraph [and provided that there are no
Notes Outstanding (as defined in the Indenture)](1), the Depositor, as the
initial registered Holder, may transfer, or exchange for other Certificates
aggregating in Percentage Interests 100%, this Certificate upon the surrender of
this Certificate. No service charge will be made for any such registration of
transfer or exchange, but the Co-Owner Trustee or the Certificate Registrar (if
different from the Co-Owner Trustee) may require payment of a sum sufficient to
cover any tax or governmental charge payable in connection therewith.
This Certificate may not be transferred directly or indirectly to (i)
an employee benefit plan (as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")) that is subject to the
provisions of Title 1 of ERISA, (ii) a plan described in Section 4975(e)(1) of
the Internal Revenue Code of 1986, as amended (the "Code"), or (iii) any entity
whose underlying assets include plan assets by reason of a plan's investment in
the entity (each, a "Benefit Plan"). By accepting and holding this Certificate,
the Certificateholder thereof shall he deemed to have represented and warranted
that it is not a Benefit Plan.
The Certificate Registrar and any agent of the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Delaware Trustee, the Co-Owner Trustee
or the Certificate Registrar or any such agent shall be affected by any notice
to the contrary.
This Certificate may not be transferred to any person who is not a U.S.
Person, as such term is defined in Section 7701(a)(30) of the Code.
Each transferee of this Certificate, or any portion thereof, shall be
required, prior to purchasing a Certificate, to execute the Purchaser's
Representation and Warranty Letter in the form attached to the Trust Agreement
as Exhibit B.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate upon the earlier to occur of (i) the
maturity or other liquidation of the last Financed Student Loan (including the
auction sale by the Indenture Trustee of the remaining Financed Student Loans in
the Trust as described in Section 3.02 of the Terms Supplement and the
subsequent distribution of amounts in respect of such auction sale as provided
in the Indenture and the other Related Documents) and (ii) the payment to the
Noteholders of all amounts payable pursuant to the Indenture.
-------------------
(1) To be included only upon direction of the Depositor at the time of issuance
of this Certificate.
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This Certificate shall be construed in accordance with the laws of the
State of Delaware, without reference to its conflict of law provisions, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
Unless the certificate of authentication hereon shall have been
executed by an authorized representative of the Authentication Agent, by manual
signature, this Certificate shall not entitle the Holder hereof to any benefit
under the Trust Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Delaware Trustee, not in its individual
capacity but solely as trustee of the Student Loan Funding 1998-A/B Trust, has
caused this Certificate to be duly executed as of the date set forth below.
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION,
"Delaware Trustee", not in its individual
capacity but solely as trustee of the Student
Loan Funding 1998-A/B Trust
By: _________________________________
Authorized Signatory
Date: _______________, 1999
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Trust
Agreement.
FIRSTAR BANK, NATIONAL ASSOCIATION,
Co-Owner Trustee,
not in its individual capacity but solely as Authentication Agent
of the Student Loan Funding 1998-A/B Trust
By:_________________________________
Authorized Representative
Date: ________________, 1999
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ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
[PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE]
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
_____________________________________________________________________ Attorney
to transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:________________ __________________________________________*
Signature Guaranteed:
---------------------------------
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by an approved eligible guarantor institution, an institution which
is a participant in a Securities Transfer Association recognized signature
guarantee program.
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EXHIBIT B
Form of Purchaser's Representation and Warranty Letter
Student Loan Funding LLC
Xxx Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Firstar Bank, National Association,
as Certificate Registrar
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
RE: STUDENT LOAN FUNDING 1998-A/B TRUST - STUDENT LOAN ASSET BACKED
TRUST CERTIFICATE
Ladies and Gentlemen:
In connection with the proposed purchase by the undersigned of the
Student Loan Asset-Backed Trust Certificate (the "Certificate") issued under the
Trust Agreement related to the Student Loan Funding 1998-A/B Trust, dated as of
March 1, 1999 (the "Agreement"), among Student Loan Funding LLC, as Depositor
(the "Depositor"), First Union Trust Company, National Association, as Delaware
trustee, and Firstar Bank, National Association, in its separate capacities as
co-owner trustee and co-owner eligible lender trustee, the undersigned (the
"Purchaser") represents, warrants and agrees that:
1. It is an institutional "accredited investor" as defined in Rule
501(a)(1)-(3) under the Securities Act of 1933 (the "Securities Act")
or a "qualified institutional buyer" as defined in Rule 144A(a)(1) of
the Securities Act and is acquiring the Certificate for its own
institutional account or for the account of an institutional accredited
investor or qualified institutional buyer.
2. It is not (i) an employee benefit plan (as defined in Section 3(3) of
the Employee Retirement Income Security Act of 1974, as amended
("ERISA")) that is subject to the provisions of Title 1 of ERISA, (ii)
a plan described in Section 4975(e)(1) of the Internal Revenue Code of
1986, as amended (the "Code"), or (iii) any entity whose underlying
assets include plan assets by reason of a plan's investment in the
entity.
3. It is a U.S. Person as defined in Section 7701(a)(30) of the Code.
4. It has such knowledge and experience in evaluating business and
financial matters so that it is capable of evaluating the merits and
risks of an investment in the Certificate. It understands the full
nature and risks of an investment in the Certificate and based upon its
present and projected net income and net worth, it believes that it can
bear the economic risk of an immediate or future loss of its entire
investment in the Certificate.
5. It understands that the Certificate will be offered in a transaction
not involving any public offering within the meaning of the Securities
Act, and that, if in the future it decides to resell, pledge or
otherwise transfer the Certificate, such Certificate may be resold,
pledged or transferred only (a) to a person who the seller reasonably
believes is an institutional "accredited investor" as defined in Rule
501(a)(1)-(3) under the Securities Act that purchases for its own
account or for the account of another institutional accredited investor
or (b) pursuant to an effective registration statement under the
Securities Act.
6. It understands that the Certificate will bear a legend substantially to
the following effect:
"THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT") OR STATE SECURITIES LAWS.
THE HOLDER
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HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS
CERTIFICATE MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
ONLY IN ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES LAWS
AND (1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS AN
INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE
501(A)(1)-(3) UNDER THE ACT THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF AN INSTITUTIONAL ACCREDITED INVESTOR, OR
(2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
ACT.
THIS CERTIFICATE MAY NOT BE TRANSFERRED DIRECTLY OR INDIRECTLY
TO (I) AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA")) THAT IS SUBJECT TO THE PROVISIONS OF TITLE
1 OF ERISA, (II) A PLAN DESCRIBED IN SECTION 4975(E)(1) OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(III) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS
BY REASON OF A PLAN'S INVESTMENT IN THE ENTITY. FURTHER, THIS
CERTIFICATE MAY BE TRANSFERRED ONLY TO A UNITED STATES PERSON
WITHIN THE MEANING OF SECTION 7701(A)(30) OF THE CODE.
THIS CERTIFICATE IS NOT GUARANTEED OR INSURED BY ANY
GOVERNMENTAL AGENCY."
7. It is acquiring the Certificate for its own account and not with a view
to the public offering thereof in violation of the Securities Act
(subject, nevertheless, to the understanding that disposition of its
property shall at all times be and remain within its control).
8. It has been furnished with all information regarding the Trust and the
Certificate which it has requested from the Trust and the Depositor.
9. Neither it nor anyone acting on its behalf has offered, transferred,
pledged, sold or otherwise disposed of the Certificate, any interest in
the Certificate or any other similar security to, or solicited any
offer to buy or accept a transfer, pledge or other disposition of the
Certificate, any interest in the Certificate or any other similar
security from, or otherwise approached or negotiated with respect to
the Certificate, any interest in the Certificate or any other similar
security with, any person in any manner or made any general
solicitation by means of general advertising or in any other manner,
which would constitute a distribution of the Certificate under the
Securities Act or which would require registration pursuant to the
Securities Act nor will it act, nor has it authorized or will authorize
any person to act, in such manner with respect to the Certificate.
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10. It is not an "affiliate" (within the meaning of Rule 144 under the
Securities Act) of the Depositor.
Dated:_____________
Very truly yours,
__________________________________
[Name of Purchaser]
By:_______________________________
Name:_____________________________
Title:____________________________
NOTE: To be executed by an executive officer
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