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TRUST AGREEMENT
between
FIRST UNION NATIONAL BANK
as Depositor
and
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity but solely
as Eligible Lender Trustee
Dated as of June 1, 1997
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TABLE OF CONTENTS
PAGE
ARTICLE I - DEFINITIONS AND USAGE
ARTICLE II - ORGANIZATION
SECTION 2.01. NAME
SECTION 2.02. OFFICE
SECTION 2.03. PURPOSES AND POWERS
SECTION 2.04. APPOINTMENT OF ELIGIBLE LENDER TRUSTEE
SECTION 2.05. INITIAL CAPITAL CONTRIBUTION OF TRUST ESTATE
SECTION 2.06. DECLARATION OF TRUST
SECTION 2.07. LIABILITY OF THE CERTIFICATEHOLDERS
SECTION 2.08. TITLE TO TRUST PROPERTY
SECTION 2.09. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR
SECTION 2.10. FEDERAL INCOME TAX ALLOCATIONS
ARTICLE III - TRUST CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.01. INITIAL BENEFICIAL OWNERSHIP
SECTION 3.02. THE TRUST CERTIFICATES
SECTION 3.03. AUTHENTICATION OF TRUST CERTIFICATES
SECTION 3.04. REGISTRATION OF TRANSFER AND EXCHANGE OF TRUST CERTIFICATES
SECTION 3.05. MUTILATED, DESTROYED, LOST OR STOLEN TRUST CERTIFICATES
SECTION 3.06. PERSONS DEEMED OWNERS
SECTION 3.07. ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES
SECTION 3.08. MAINTENANCE OF OFFICE OR AGENCY
SECTION 3.09. APPOINTMENT OF CERTIFICATE PAYING AGENT
SECTION 3.10. DISPOSITION BY DEPOSITOR
SECTION 3.12. NOTICES TO CLEARING AGENCY
SECTION 3.13. DEFINITIVE CERTIFICATES
ARTICLE IV - ACTIONS BY ELIGIBLE LENDER TRUSTEE
SECTION 4.01. PRIOR NOTICE TO CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN
MATTERS
SECTION 4.02. ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN MATTERS
SECTION 4.03. ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO BANKRUPTCY
SECTION 4.04. RESTRICTIONS ON CERTIFICATEHOLDERS' POWER
SECTION 4.05. MAJORITY CONTROL
ARTICLE V - APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.01. APPLICATION OF TRUST FUNDS
SECTION 5.02. METHOD OF PAYMENT
SECTION 5.03. NO SEGREGATION OF MONEYS; NO INTEREST
SECTION 5.04. ACCOUNTING AND REPORTS TO THE NOTEHOLDERS, CERTIFICATEHOLDERS,
THE INTERNAL REVENUE SERVICE AND OTHERS
SECTION 5.05. SIGNATURE ON RETURNS; TAX MATTERS PARTNER
SECTION 5.06. CAPITAL ACCOUNTS
ARTICLE VI - AUTHORITY AND DUTIES OF ELIGIBLE LENDER TRUSTEE
SECTION 6.01. GENERAL AUTHORITY
SECTION 6.02. GENERAL DUTIES
SECTION 6.03. ACTION UPON INSTRUCTION
SECTION 6.04. NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT, THE MASTER
SERVICING AGREEMENT, THE SALE AGREEMENT OR IN INSTRUCTIONS
SECTION 6.05. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR INSTRUCTIONS
ARTICLE VII - CONCERNING THE ELIGIBLE LENDER TRUSTEE
SECTION 7.01. ACCEPTANCE OF TRUSTS AND DUTIES
SECTION 7.02. FURNISHING OF DOCUMENTS
SECTION 7.03. REPRESENTATIONS AND WARRANTIES
SECTION 7.04. RELIANCE; ADVICE OF COUNSEL
SECTION 7.05. NOT ACTING IN INDIVIDUAL CAPACITY
SECTION 7.06. ELIGIBLE LENDER TRUSTEE NOT LIABLE FOR TRUST CERTIFICATES OR
FINANCED STUDENT LOANS
SECTION 7.07. ELIGIBLE LENDER TRUSTEE MAY OWN TRUST CERTIFICATES AND NOTES
ARTICLE VIII - COMPENSATION OF ELIGIBLE LENDER TRUSTEE
ARTICLE IX - TERMINATION OF TRUST AGREEMENT
SECTION 9.01. TERMINATION OF TRUST AGREEMENT
SECTION 9.02. DISSOLUTION UPON INSOLVENCY OF THE DEPOSITOR
ARTICLE X - SUCCESSOR ELIGIBLE LENDER TRUSTEES AND ADDITIONAL ELIGIBLE
LENDER TRUSTEES
SECTION 10.01. ELIGIBILITY REQUIREMENTS FOR ELIGIBLE LENDER TRUSTEE
SECTION 10.02. RESIGNATION OR REMOVAL OF ELIGIBLE LENDER TRUSTEE
SECTION 10.03. SUCCESSOR ELIGIBLE LENDER TRUSTEE
SECTION 10.04. MERGER OR CONSOLIDATION OF ELIGIBLE LENDER TRUSTEE
SECTION 10.05. APPOINTMENT OF CO-ELIGIBLE LENDER TRUSTEE OR SEPARATE
ELIGIBLE LENDER TRUSTEE
ARTICLE XI - MISCELLANEOUS
SECTION 11.01. SUPPLEMENTS AND AMENDMENTS
SECTION 11.02. NO LEGAL TITLE TO TRUST ESTATE IN CERTIFICATEHOLDERS
SECTION 11.03. LIMITATIONS ON RIGHTS OF OTHERS
SECTION 11.04. NOTICES
SECTION 11.05. SEVERABILITY
SECTION 11.06. SEPARATE COUNTERPARTS
SECTION 11.07. SUCCESSORS AND ASSIGNS
SECTION 11.08. NO PETITION
SECTION 11.09. NO RECOURSE
SECTION 11.10. HEADINGS
SECTION 11.11. GOVERNING LAW
EXHIBIT A - FORM OF TRUST CERTIFICATE
EXHIBIT B - FORM OF CERTIFICATE DEPOSITORY AGREEMENT
TRUST AGREEMENT dated as of June 1, 1997, between FIRST UNION NATIONAL
BANK ("First Union"), a national banking association having its main office in
Avondale, Pennsylvania, as Depositor, and THE FIRST NATIONAL BANK OF CHICAGO, a
national banking association, not in its individual capacity but solely as
Eligible Lender Trustee.
The Depositor and the Eligible Lender Trustee hereby agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
Capitalized terms used but not defined herein are defined in Appendix
A to the Indenture, which also contains rules as to construction and usage that
shall be applicable herein.
ARTICLE II
ORGANIZATION
SECTION 2.01. NAME. The Trust created hereby shall be known as "First
Union Student Loan Trust 1997-1", in which name the Eligible Lender Trustee may
conduct the business of the Trust, make and execute contracts and other
instruments on behalf of the Trust and xxx and be sued. The Trust shall
constitute a business trust within the meaning of Section 3801(a) of the
Delaware Business Trust Act for which the Trustee has filed a certificate of
trust with the Secretary of State of the State of Delaware pursuant to Section
3810(a) of the Delaware Business Trust Act.
SECTION 2.02. OFFICE. The office of the Trust shall be in care of the
Eligible Lender Trustee at its Corporate Trust Office or at such other address
as the Eligible Lender Trustee may designate by written notice to the
Certificateholders and the Depositor.
SECTION 2.03. PURPOSES AND POWERS. The purpose of the Trust is to
engage in the following activities:
(i) to issue the Notes pursuant to the Indenture and the Trust
Certificates pursuant to this Agreement and to sell the Notes and
the Trust Certificates in one or more transactions;
(ii) with the proceeds of the sale of the Notes and the Trust
Certificates, to fund the Reserve Account pursuant to Section
4.06 of the Master Servicing Agreement and to purchase the
Financed Student Loans pursuant to the Sale Agreement;
(iii)to assign, grant, transfer, pledge, mortgage and convey the
Trust Estate pursuant to the Indenture and to hold, manage and
distribute to the Certificateholders pursuant to the terms of
this Agreement and the Master Servicing Agreement any portion of
the Trust Estate released from the Lien of, and remitted to the
Trust pursuant to, the Indenture;
(iv) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(v) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to
accomplish the foregoing or are incidental thereto or connected
therewith; and
(vi) subject to compliance with the Basic Documents, to engage in such
other activities as may be required in connection with
conservation of the Trust Estate and the making of distributions
to the Certificateholders, the Noteholders and the others
specified in Section 4.05 of the Master Servicing Agreement.
The Trust shall not engage in any activity other than in connection
with the foregoing or other than as required or authorized by the terms of this
Agreement or the other Basic Documents. In no event shall the Eligible Lender
Trustee, the Master Servicer or any other person have any power to (i) vary the
investment of the Certificateholders in the Certificates or to substitute new
investments or reinvest so as to enable the Trust to take advantage of
variations in the market to improve the investment of the Certificateholders in
the Certificates or (ii) agree to any change in the terms of a Financed Student
Loan that would be a "significant modification" within the meaning of Treasury
Regulations Section 1.1001-3 (or any successor regulation), unless an opinion of
nationally recognized tax counsel, obtained at the sole expense of the party
requesting an action otherwise prohibited by clause (i) or (ii) of this sentence
and delivered to the Eligible Lender Trustee, states that such action would (a)
not cause the Certificates (including the Excess Distribution Certificate) to be
treated other than as interests in a partnership for federal and California
state tax purposes, (b) not cause the Notes to be treated other than as debt of
the Trust for federal and California state purposes and (c) not otherwise cause
additional federal or California state tax to be imposed upon the
Certificateholders (including the Depositor as holder of the Excess Distribution
Certificate), the Noteholders, the Eligible Lender Trustee or the Trust.
SECTION 2.04. APPOINTMENT OF ELIGIBLE LENDER TRUSTEE. The Depositor
hereby appoints the Eligible Lender Trustee as trustee of the Trust effective as
of the date hereof, to have all the rights, powers and duties set forth herein.
SECTION 2.05. INITIAL CAPITAL CONTRIBUTION OF TRUST ESTATE. The
Depositor hereby sells, assigns, transfers, conveys and sets over to the
Eligible Lender Trustee, as of the date hereof, the sum of $1.00. The Eligible
Lender Trustee hereby acknowledges receipt in trust from the Depositor, as of
the date hereof, of the foregoing contribution, which shall constitute the
initial Trust Estate and shall be deposited in the Collection Account. The
Depositor shall pay the organizational expenses of the Trust as they may arise
or shall, upon the request of the Eligible Lender Trustee, promptly reimburse
the Eligible Lender Trustee for any such expenses paid by the Eligible Lender
Trustee.
SECTION 2.06. DECLARATION OF TRUST. The Eligible Lender Trustee hereby
declares that it will hold the Trust Estate in trust upon and subject to the
conditions set forth herein for the use and benefit of the Certificateholders,
subject to the obligations of the Trust under the other Basic Documents. It is
the intention of the parties hereto that the Trust constitute a business trust
under Delaware law and that this Agreement constitute the governing instrument
of such trust. It is the intention of the parties hereto that, solely for income
and franchise tax purposes, the Trust shall be treated as a partnership, with
the assets of the partnership being the Financed Student Loans and other assets
held by the Trust, the partners of the partnership being the Certificateholders
(including the Depositor in its capacity as recipient of distributions from the
Reserve Account pursuant to the Excess Distribution Certificate), and the Notes
being debt of the partnership. The parties agree that, unless otherwise required
by appropriate tax authorities, 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 partnership for such tax purposes. Effective
as of the date hereof, the Eligible Lender Trustee shall have all rights, powers
and duties set forth herein with respect to accomplishing the purposes of the
Trust.
SECTION 2.07. LIABILITY OF THE CERTIFICATEHOLDERS. (a) The Depositor
shall be liable directly to and will indemnify the injured party for all losses,
claims, damages, liabilities and expenses of the Trust (including Expenses, to
the extent not paid out of the Trust Estate) to the extent that the Depositor
would be liable if the Trust were a partnership under the Delaware Revised
Uniform Limited Partnership Act in which the Depositor were a general partner;
PROVIDED, HOWEVER, that the Depositor shall not be liable for any losses
incurred by a Certificateholder or a Certificate Owner in the capacity of an
investor in the Trust Certificates or a Noteholder or a Note Owner in the
capacity of an investor in the Notes. In addition, any third party creditors of
the Trust (other than in connection with the obligations described in the
preceding sentence for which the Depositor shall not be liable) shall be deemed
third party beneficiaries of this paragraph. The obligations of the Depositor
under this paragraph shall be evidenced by the Excess Distribution Certificate
described in Section 3.10, which shall be deemed to be a separate class of
certificates from all other Trust Certificates issued by the Trust.
(b) No Certificateholder, other than to the extent set forth in
paragraph (a), shall have any personal liability for any liability or obligation
of the Trust.
(c) Any or all of Section 2.07(a) or 3.10(b) hereof (the "Partnership
Qualification Provisions") shall no longer be applicable or part of this
Agreement in the event an Opinion of Counsel is delivered to the Eligible Lender
Trustee to the effect that the deletion of the Partnership Qualification
Provisions will not cause the Trust to be classified as an association or other
entity taxable as a corporation for relevant state income and franchise tax
purposes.
SECTION 2.08. TITLE TO TRUST PROPERTY. Legal title to all the Trust
Estate shall be vested at all times in the Trust as a separate legal entity
except where applicable law in any jurisdiction requires title to any part of
the Trust Estate to be vested in a trustee or trustees, in which case title
shall be deemed to be vested in the Eligible Lender Trustee, a co-trustee and/or
a separate trustee, as the case may be; provided that legal title to the
Financed Student Loans shall be vested at all times in the Eligible Lender
Trustee on behalf of the Trust.
SECTION 2.09. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR. The
Depositor hereby represents and warrants to the Eligible Lender Trustee that:
(a) The Depositor is duly organized and validly existing as a national
banking association in good standing under the laws of the United States of
America, with power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is presently
conducted.
(b) The Depositor has the corporate power and authority to execute and
deliver this Agreement and to carry out its terms; the Depositor has full
corporate power and authority to sell and assign the property to be sold and
assigned to and deposited with the Trust (or with the Eligible Lender Trustee on
behalf of the Trust) and the Depositor has duly authorized such sale and
assignment and deposit to the Trust (or to the Eligible Lender Trustee on behalf
of the Trust) by all necessary corporate action; and the execution, delivery and
performance of this Agreement has been duly authorized by the Depositor by all
necessary corporate action.
(c) This Agreement constitutes a legal, valid and binding obligation
of the Depositor enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization and similar laws relating to creditors'
rights generally or the rights of creditors of banks the deposit accounts of
which are insured by the FDIC and subject to general principles of equity.
(d) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict with, result
in any breach of any of the terms and provisions of, or constitute (with or
without notice or lapse of time or both) a default under, the articles of
association or by-laws of the Depositor, or any indenture, agreement or other
instrument to which the Depositor is a party or by which it is bound; nor result
in the creation or imposition of any Lien upon any of its properties pursuant to
the terms of any such indenture, agreement or other instrument (other than
pursuant to the Basic Documents); nor violate any law or, to the Depositor's
knowledge, any order, rule or regulation applicable to the Depositor of any
court or of any Federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Depositor or its
properties.
SECTION 2.10. FEDERAL INCOME TAX ALLOCATIONS
(a) Income and Loss Allocations. After giving effect to the special
allocations set forth in subparagraph (b) of this Section 2.10 and for purposes
of maintaining Capital Accounts under Section 5.06, gross income items of the
Trust for any Interest Period as determined for Federal income tax purposes
shall be allocated as follows:
(1) first, among the Certificateholders as of the close of business on
the last day of such Interest Period, in proportion to the Certificate Balance
of the Certificates owned by them on such date, an amount of gross income up to
the sum of (i) the portion of the Certificateholders' Interest Distribution
Amount and the Certificateholders' Interest Index Carryover, if any, for the
related Distribution Date allocable to such Interest Period, (ii) return on the
excess, if any, of the Certificateholders' Interest Distribution Amount for the
preceding Distribution Date over the amount in respect of return on the
Certificates that is actually distributed to Certificateholders on such
preceding Distribution Date, to the extent permitted by law, at the Certificate
Rate for such Interest Period and (iii) the portion of the market discount on
the Financed Student Loans accrued during such Interest Period that is allocable
to the excess, if any, of the initial aggregate principal amount of the
Certificates over their initial aggregate issue price; and
(2) the balance of Profits, if any, to the Depositor.
If the items of gross income of the Trust for any month are
insufficient for the allocations described in clause (1) above, subsequent items
of gross income shall first be allocated to make up such shortfall before
Profits are allocated as provided in clause (b). Loss of the Trust for any
Interest Period shall be allocated to the Depositor to the extent the Depositor
is reasonably expected to bear the economic burden of such Loss, and any
remaining Loss shall be allocated among the Certificateholders as of the close
of business on the last day of such Interest Period in proportion to the
Certificate Balance of Trust Certificates owned by them on such date. If any
items of loss or deduction are allocated to Certificateholders and the Depositor
subsequently determines that the economic loss to Certificateholders will be
less than was expected at the time such allocations were made, additional items
of gross income will be allocated to Certificateholders in subsequent periods to
offset the excess allocations of losses and deductions to Certificateholders
before any Profits are allocated to the Depositor as provided in clause (2)
above.
(b) Special Allocations.
(1) In the event any Certificateholder unexpectedly received any
adjustments, allocations or distributions described in Treasury Regulation
Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of Trust income and gain
shall be specially allocated to such Certificateholder in an amount and manner
sufficient to eliminate, to the extent required by the Treasury Regulations, the
deficit, if any, in the balance of the Capital Account of such Certificateholder
as quickly as possible. This Section 2.10(b) is intended to comply with the
qualified income offset provision in Section 1.704-1(b)(2)(ii)(d) of the
Treasury Regulations.
(2) In the event the initial issue price of Certificates differs from
their initial Certificate Balance, there shall be specially allocated to the
Certificateholders the portion, if any, of the offset for premium (in the case
the issue price of the Certificates exceeds the Certificate Balance) on the
Financed Student Loans accruing for a calendar month that is attributable to
such difference.
(c) Liquidating Profit or Loss. Liquidating Profit or Loss shall be
allocated, after all other adjustments are made to the Capital Accounts
(including adjustments to reflect the Liquidating Distribution), as follows:
(1) First, among the Certificateholders in proportion to their
ownership of the principal amount of Certificates, in an amount that would cause
their Capital Account balances to equal zero (in the case of the Depositor,
taking into account the Capital Account balance of the Depositor only to the
extent it relates to Certificates owned by the Depositor); and
(2) Any balance, to the Depositor.
(d) Tax Allocations. For Federal income tax purposes, each item of income,
gain, loss and deduction of the Trust shall be allocated among the
Certificateholders and the Depositor in a manner consistent with the allocations
set forth in this Section 2.10, subject to the provisions of Section 704(c) of
the Code. Notwithstanding anything to contrary set forth in this Agreement, the
Depositor is authorized to modify the allocation of this Section 2.10(d) and
Sections 2.10(a), (b) and (c) if necessary or appropriate, in the Depositor's
sole discretion, for the allocations to fairly reflect the economic gain, income
or loss to the Depositor or the Certificateholders, or as otherwise required by
the Code or the Treasury Regulations.
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.01. INITIAL BENEFICIAL OWNERSHIP. Upon the formation of the
Trust by the contribution by the Depositor pursuant to Section 2.05 and until
the issuance of the Trust Certificates, the Depositor shall be the sole
beneficial owner of the Trust.
SECTION 3.02. THE TRUST CERTIFICATES. The Trust Certificates shall be
issued in denominations of $1,000 or in integral multiples of $1,000 in excess
thereof; PROVIDED, HOWEVER, that the Excess Distribution Certificate issued to
the Depositor shall be issued in such denomination as to include any residual
amount of the Initial Certificate Balance. The Trust Certificates shall be
executed on behalf of the Trust by manual or facsimile signature of an
authorized officer of the Eligible Lender Trustee. Trust Certificates bearing
the manual or facsimile signatures of individuals who were, at the time when
such signatures shall have been affixed, authorized to sign on behalf of the
Trust, shall be valid and binding obligations of the Trust, notwithstanding that
such individuals or any of them shall have ceased to be so authorized prior to
the authentication and delivery of such Trust Certificates or did not hold such
offices at the date of authentication and delivery of such Trust Certificates.
SECTION 3.03. AUTHENTICATION OF TRUST CERTIFICATES. Concurrently with
the initial sale of the Financed Student Loans to the Trust pursuant to the Sale
Agreement, the Eligible Lender Trustee shall cause the Trust Certificates in an
aggregate principal amount equal to the Initial Certificate Balance to be
executed on behalf of the Trust, authenticated and delivered to or upon the
written order of the Depositor, signed by its chairman of the board, its
president or any vice president, without further action by the Depositor, in
authorized denominations. No Trust Certificate shall entitle its holder to any
benefit under this Agreement, or shall be valid for any purpose, unless there
shall appear on such Trust Certificate a certificate of authentication
substantially in the form set forth in Exhibit A, executed by the Eligible
Lender Trustee by manual signature; such authentication shall constitute
conclusive evidence that such Trust Certificate shall have been duly
authenticated and delivered hereunder. All Trust Certificates shall be dated the
date of their authentication. No further Trust Certificates shall be issued
except pursuant to Section 3.04, 3.05 or 3.13 hereunder.
SECTION 3.04. REGISTRATION OF TRANSFER AND EXCHANGE OF TRUST
CERTIFICATES. The Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 3.08, a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, the Eligible
Lender Trustee shall provide for the registration of Trust Certificates and of
transfers and exchanges of Trust Certificates as herein provided. The Eligible
Lender Trustee shall be the initial Certificate Registrar.
Upon surrender for registration of transfer of any Trust Certificate
at the office or agency maintained pursuant to Section 3.08, the Eligible Lender
Trustee shall execute, authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Trust Certificates in authorized
denominations of a like aggregate amount dated the date of authentication by the
Eligible Lender Trustee or any authenticating agent. At the option of a
Certificateholder, Trust Certificates may be exchanged for other Trust
Certificates of authorized denominations of a like aggregate amount upon
surrender of the Trust Certificates to be exchanged at the office or agency
maintained pursuant to Section 3.08.
Every Trust Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the Eligible Lender Trustee and the Certificate Registrar
duly executed by the Certificateholder or his attorney duly authorized in
writing, with such signature guaranteed by an "eligible guarantor institution"
meeting the requirements of the Certificate Registrar, which requirements
include membership or participation in Security Transfer Agent's Medallion
Program ("STAMP") or such other "signature guarantee program" as may be
determined by the Certificate Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Exchange Act. Each Trust Certificate
surrendered for registration of transfer or exchange shall be canceled and
subsequently disposed of by the Eligible Lender Trustee in accordance with its
customary practice.
No service charge shall be made for any registration of transfer or
exchange of Trust Certificates, but the Eligible Lender Trustee or the
Certificate Registrar 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 Trust Certificates.
The preceding provisions of this Section notwithstanding, the Eligible
Lender Trustee shall not be required to make and the Certificate Registrar need
not register transfers or exchanges of Trust Certificates for a period of 15
days preceding any Distribution Date with respect to the Trust Certificates.
The Trust Certificates and any beneficial interest in such Trust
Certificates may not be acquired by or with the assets of (a) employee benefit
plans (as defined in Section 3(3) of ERISA) subject to Title I of ERISA, (b)
plans described in Section 4975(e)(1) of the Code, including individual
retirement accounts and Xxxxx Plans, (c) governmental plans (as defined in
Section 3(32) of ERISA) subject to any federal, state, or local law which is, to
a material extent, similar to the foregoing provisions of ERISA or the Code, and
(d) entities whose underlying assets include plan assets (as defined in U.S.
Department of Labor Regulation ss. 2510.3-101) by reason of plan investment in
such entities (each of (a), (b), (c) and (d), a "Benefit Plan Investor"). Each
transferee of a Definitive Certificate shall be required to represent, and each
transferee of a beneficial interest in a Book-Entry Certificate shall be deemed
to represent, (a) that it is not a Benefit Plan Investor and is not acquiring
such Trust Certificate or interest with the assets of a Benefit Plan Investor
and (b) that if such Trust Certificate or interest is subsequently deemed to be
a plan asset, it will dispose of such Trust Certificate or interest. Each Trust
Certificate shall bear a legend referring to the restrictions contained in this
paragraph.
SECTION 3.05. MUTILATED, DESTROYED, LOST OR STOLEN TRUST CERTIFICATES.
If (a) any mutilated Trust Certificate shall be surrendered to the Certificate
Registrar, or if the Certificate Registrar shall receive evidence to its
satisfaction of the destruction, loss or theft of any Trust Certificate, and (b)
there shall be delivered to the Certificate Registrar and the Eligible Lender
Trustee such security or indemnity as may be required by them to save each of
them harmless, then in the absence of notice that such Trust Certificate shall
have been acquired by a bona fide purchaser, the Eligible Lender Trustee on
behalf of the Trust shall execute and the Eligible Lender Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Trust Certificate, a new Trust Certificate of like
tenor and denomination. In connection with the issuance of any new Trust
Certificate under this Section, the Eligible Lender Trustee and the Certificate
Registrar may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith. Any duplicate
Trust Certificate issued pursuant to this Section shall constitute conclusive
evidence of ownership in the Trust, as if originally issued, whether or not the
lost, stolen or destroyed Trust Certificate shall be found at any time.
SECTION 3.06. PERSONS DEEMED OWNERS. Prior to due presentation of a
Trust Certificate for registration of transfer, the Eligible Lender Trustee or
the Certificate Registrar and any agent of any thereof may treat the Person in
whose name any Trust Certificate shall be registered in the Certificate Register
as the owner of such Trust Certificate for the purpose of receiving
distributions pursuant to Section 5.01 and for all other purposes whatsoever,
and neither the Eligible Lender Trustee, the Certificate Registrar nor any agent
of any thereof shall be bound by any notice to the contrary.
SECTION 3.07. ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND
ADDRESSES. The Eligible Lender Trustee shall furnish or cause to be furnished to
the Depositor, within 15 days after receipt by the Eligible Lender Trustee of a
request therefor from the Depositor in writing, a list, in such form as the
Depositor may reasonably require, of the names and addresses of the
Certificateholders as of the most recent Record Date. If three or more
Certificateholders or one or more Certificateholders evidencing not less than
25% of the Certificate Balance apply in writing to the Eligible Lender Trustee,
and such application states that the applicants desire to communicate with other
Certificateholders with respect to their rights under this Agreement or under
the Trust Certificates and such application is accompanied by a copy of the
communication that such applicants propose to transmit, then the Eligible Lender
Trustee shall, within five Business Days after the receipt of such application,
afford such applicants access during normal business hours to the current list
of Certificateholders. Upon receipt of any such application, the Eligible Lender
Trustee will promptly notify the Depositor by providing a copy of such
application and a copy of the list of Certificateholders produced in response
thereto. Each Certificateholder, by receiving and holding a Trust Certificate,
shall be deemed to have agreed not to hold any of the Depositor, the Certificate
Registrar or the Eligible Lender Trustee accountable by reason of the disclosure
of its name and address, regardless of the source from which such information
was derived.
SECTION 3.08. MAINTENANCE OF OFFICE OR AGENCY. The Eligible Lender
Trustee shall maintain in the Borough of Manhattan, The City of New York, an
office or offices or agency or agencies where Trust Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Eligible Lender Trustee in respect of the Trust
Certificates and the other Basic Documents may be served. The Eligible Lender
Trustee initially designates Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, as the location of its principal Corporate Trust Office. The
Eligible Lender Trustee's New York office is located at 00 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust Administration. The Eligible
Lender Trustee shall give prompt written notice to the Depositor and to the
Certificateholders of any change in the location of the Certificate Register or
any such office or agency.
SECTION 3.09. APPOINTMENT OF CERTIFICATE PAYING AGENT. The Certificate
Paying Agent shall make distributions to Certificateholders from the amounts
received from the Indenture Trustee out of the Trust Accounts pursuant to
Section 5.01 and shall report the amounts of such distributions to the Eligible
Lender Trustee. Any Certificate Paying Agent shall have the revocable power to
receive such funds from the Indenture Trustee for the purpose of making the
distributions referred to above. The Eligible Lender Trustee may revoke such
power and remove the Certificate Paying Agent if the Eligible Lender Trustee
determines in its sole discretion that the Certificate Paying Agent shall have
failed to perform its obligations under this Agreement in any material respect.
The Certificate Paying Agent shall initially be the Eligible Lender Trustee, and
any co-paying agent chosen by the Eligible Lender Trustee, and acceptable to the
Administrator (which consent shall not be unreasonably withheld). The Eligible
Lender Trustee shall be permitted to resign as Certificate Paying Agent upon 30
days' written notice to the Administrator. In the event that the Eligible Lender
Trustee shall no longer be the Certificate Paying Agent, the Eligible Lender
Trustee, shall appoint a successor to act as Certificate Paying Agent (which
shall be a bank or trust company). The Eligible Lender Trustee shall cause such
successor Certificate Paying Agent or any additional Certificate Paying Agent
appointed by the Eligible Lender Trustee to execute and deliver to the Eligible
Lender Trustee an instrument in which such successor Certificate Paying Agent or
additional Certificate Paying Agent shall agree with the Eligible Lender Trustee
that as Certificate Paying Agent, such successor Certificate Paying Agent or
additional Certificate Paying Agent will hold all sums, if any, held by it for
payment to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders. The Certificate Paying Agent shall return all unclaimed
funds to the Eligible Lender Trustee and upon removal of a Certificate Paying
Agent such Certificate Paying Agent shall also return all funds in its
possession to the Eligible Lender Trustee. The provisions of Sections 7.01,
7.03, 7.04, 7.05 and 8.01 shall apply to the Eligible Lender Trustee also in its
role as Certificate Paying Agent, for so long as the Eligible Lender Trustee
shall act as Certificate Paying Agent and, to the extent applicable, to any
other paying agent appointed hereunder. Any reference in this Agreement to the
Certificate Paying Agent shall include any co-paying agent unless the context
requires otherwise.
SECTION 3.10. DISPOSITION BY DEPOSITOR. (a) The Excess Distribution
Certificate shall evidence the Depositor's entitlement to excess amounts on
deposit in the Reserve Account, subject to certain limitations, to the extent
that the amount on deposit in the Reserve Account exceeds the Specified Reserve
Account Balance pursuant to Section 4.06(e) of the Master Servicing Agreement
and otherwise pursuant to Section 4.06(g) of the Master Servicing Agreement.
(b) Any attempted transfer of the Excess Distribution Certificate
shall be void. The Eligible Lender Trustee shall cause the Excess Distribution
Certificate issued to the Depositor on the Closing Date to contain a legend
stating "THIS CERTIFICATE IS NONTRANSFERABLE".
SECTION 3.11. BOOK-ENTRY CERTIFICATES. The Trust Certificates (other
than the Excess Distribution Certificate), upon original issuance, will be
issued in the form of a typewritten Trust Certificate or Trust Certificates
representing Book-Entry Certificates, to be delivered to The Depository Trust
Company, the initial Clearing Agency, by, or on behalf of, the Trust; PROVIDED,
HOWEVER, that one Definitive Certificate (as defined below) shall be issued to
the Depositor pursuant to Section 3.10. Such Book-Entry Certificate or
Book-Entry Certificates shall initially be registered on the Certificate
Register in the name of Cede & Co., the nominee of the initial Clearing Agency,
and no Certificate Owner will receive a Definitive Certificate representing such
Certificate Owner's interest in such Trust Certificate, except as provided in
Section 3.13. Unless and until definitive, fully registered Trust Certificates
(the "Definitive Certificates") have been issued to Certificate Owners pursuant
to Section 3.13:
(i) the provisions of this Section shall be in full force and effect;
(ii) the Certificate Registrar and the Eligible Lender Trustee shall
be entitled to deal with the Clearing Agency for all purposes of
this Agreement (including the payment of principal of and
interest on the Trust Certificates and the giving of instructions
or directions hereunder) as the sole Certificateholder and shall
have no obligation to the Certificate Owners;
(iii)to the extent that the provisions of this Section conflict with
any other provisions of this Agreement, the provisions of this
Section shall control;
(iv) the rights of Certificate Owners shall be exercised only through
the Clearing Agency and shall be limited to those established by
law and agreements between such Certificate Owners and the
Clearing Agency and/or the Clearing Agency Participants. Pursuant
to the Certificate Depository Agreement, unless and until
Definitive Certificates are issued pursuant to Section 3.13, the
initial Clearing Agency will make book-entry transfers among the
Clearing Agency Participants and receive and transmit payments of
principal and interest on the Trust Certificates to such Clearing
Agency Participants; and
(v) whenever this Agreement requires or permits actions to be taken
based upon instructions or directions of Certificateholders of
Trust Certificates evidencing a specified percentage of the
Certificate Balance, the Clearing Agency shall be deemed to
represent such percentage only to the extent that it has received
instructions to such effect from Certificate Owners and/or
Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest
in the Trust Certificates and has delivered such instructions to
the Eligible Lender Trustee.
SECTION 3.12. NOTICES TO CLEARING AGENCY. Whenever a notice or other
communication to the Certificateholders is required under this Agreement, unless
and until Definitive Certificates shall have been issued to Certificate Owners
pursuant to Section 3.13, the Eligible Lender Trustee shall give all such
notices and communications specified herein to be given to Certificateholders to
the Clearing Agency, and shall have no obligations to the Certificate Owners.
SECTION 3.13. DEFINITIVE CERTIFICATES. If (i) the Administrator
advises the Eligible Lender Trustee in writing that the Clearing Agency is no
longer willing or able to discharge properly its responsibilities with respect
to the Trust Certificates, and the Administrator is unable to locate a qualified
successor, (ii) the Administrator at its option advises the Eligible Lender
Trustee in writing that it elects to terminate the book-entry system through the
Clearing Agency or (iii) after the occurrence of an Event of Default, a Master
Servicer Default or an Administrator Default, Certificate Owners representing
beneficial interests aggregating at least a majority of the Certificate Balance
advise the Clearing Agency (which shall then notify the Eligible Lender Trustee)
in writing that the continuation of a book-entry system through the Clearing
Agency is no longer in the best interest of the Certificate Owners, then the
Eligible Lender Trustee shall cause the Clearing Agency to notify all
Certificate Owners of the occurrence of any such event and of the availability
of the Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Eligible Lender Trustee of the typewritten Trust Certificate or
Trust Certificates representing the Book-Entry Certificates by the Clearing
Agency, accompanied by registration instructions, the Eligible Lender Trustee
shall execute and authenticate the Definitive Certificates in accordance with
the instructions of the Clearing Agency. Neither the Certificate Registrar nor
the Eligible Lender Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates, the Eligible
Lender Trustee shall recognize the registered holders of the Definitive
Certificates as Certificateholders. The Definitive Certificates shall, at the
expense of the Depositor, be printed, lithographed or engraved or may be
produced in any other manner as is reasonably acceptable to the Eligible Lender
Trustee, as evidenced by its execution thereof.
ARTICLE IV
ACTIONS BY ELIGIBLE LENDER TRUSTEE
SECTION 4.01. PRIOR NOTICE TO CERTIFICATEHOLDERS WITH RESPECT TO
CERTAIN MATTERS. With respect to the following matters, the Eligible Lender
Trustee shall not take action unless at least 30 days before the taking of such
action, the Eligible Lender Trustee shall have notified the Certificateholders
and the Rating Agencies in writing of the proposed action and the
Certificateholders shall not have notified the Eligible Lender Trustee in
writing prior to the 30th day after such notice is given that such
Certificateholders have withheld consent or provided alternative direction:
(a) the initiation of any material claim or lawsuit by the Trust
(except claims or lawsuits brought in connection with the collection of the
Financed Student Loans) and the compromise of any material action, claim or
lawsuit brought by or against the Trust (except with respect to the
aforementioned claims or lawsuits for collection of Financed Student Loans);
(b) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is not required and such
amendment materially adversely affects the interest of the Certificateholders;
(d) the amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or supplement any provision
in a manner or add any provision that would not materially adversely affect the
interests of the Certificateholders; or
(e) the appointment pursuant to the Indenture of a successor Note
Registrar, Certificate Paying Agent or Indenture Trustee or pursuant to this
Agreement of a successor Certificate Registrar, or the consent to the assignment
by the Note Registrar, Certificate Paying Agent or Indenture Trustee or
Certificate Registrar of its obligations under the Indenture or this Agreement,
as applicable.
SECTION 4.02. ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO CERTAIN
MATTERS. The Eligible Lender Trustee shall not have the power, except upon the
direction of the Certificateholders, to (a) remove the Master Servicer or the
Administrator under the Master Servicing Agreement pursuant to Section 7.01
thereof or (b) except as expressly provided in the Basic Documents, sell the
Financed Student Loans after the termination of the Indenture. The Eligible
Lender Trustee shall take the actions referred to in the preceding sentence only
upon written instructions signed by the Certificateholders.
SECTION 4.03. ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO BANKRUPTCY.
The Eligible Lender Trustee shall not have the power to commence a voluntary
proceeding in bankruptcy relating to the Trust without the unanimous prior
approval of all Certificateholders and the delivery to the Eligible Lender
Trustee by each such Certificateholder of a certificate certifying that such
Certificateholder reasonably believes that the Trust is insolvent.
SECTION 4.04. RESTRICTIONS ON CERTIFICATEHOLDERS' POWER. The
Certificateholders shall not direct the Eligible Lender Trustee to take or
refrain from taking any action if such action or inaction would be contrary to
any obligation of the Trust or the Eligible Lender Trustee under this Agreement
or any of the other Basic Documents or would be contrary to Section 2.03 nor
shall the Eligible Lender Trustee be permitted to follow any such direction, if
given.
SECTION 4.05. MAJORITY CONTROL. Except as expressly provided herein,
any action that may be taken by the Certificateholders under this Agreement may
be taken by the Certificateholders of Trust Certificates evidencing not less
than a majority of the Certificate Balance. Except as expressly provided herein,
any written notice of the Certificateholders delivered pursuant to this
Agreement shall be effective if signed by Certificateholders of Trust
Certificates evidencing not less than a majority of the Certificate Balance at
the time of the delivery of such notice.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.01. APPLICATION OF TRUST FUNDS.
(a) On each Distribution Date, the Eligible Lender Trustee shall
distribute to Certificateholders (i) the Certificateholders' Interest
Distribution Amount for such Distribution Date on a pro rata basis according to
amounts payable in respect of the Certificateholders' Interest Distribution
Amount, (ii) the Certificateholders' Principal Distribution Amount for such
Distribution Date, if any, on a pro rata basis according to amounts payable in
respect of the Certificateholders' Principal Distribution Amount, and (iii) the
Certificateholders' Interest Index Carryover for such Distribution Date, if any,
on a pro rata basis according to amounts payable in respect of
Certificateholders' Interest Index Carryover, as received from the Indenture
Trustee pursuant to Section 4.05 of the Master Servicing Agreement on such
Distribution Date.
(b) On each Distribution Date, the Eligible Lender Trustee shall send
to each Certificateholder the statement provided to the Eligible Lender Trustee
by the Administrator pursuant to Section 4.07 of the Master Servicing Agreement
on such Distribution Date.
(c) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to a Certificateholder, such tax shall reduce
the amount otherwise distributable to the Certificateholder in accordance with
this Section. The Eligible Lender Trustee is hereby authorized and directed to
retain from amounts otherwise distributable to the Certificateholders sufficient
funds for the payment of any tax that is legally owed by the Trust (but such
authorization shall not prevent the Eligible Lender 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 a Certificateholder shall be treated as
cash distributed to such Certificateholder at the time it is withheld by the
Trust to be 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 Eligible Lender Trustee
in its sole discretion may (but unless otherwise required by law shall not be
obligated to) withhold such amounts in accordance with this paragraph (c). In
the event that a Certificateholder wishes to apply for a refund of any such
withholding tax, the Eligible Lender Trustee shall reasonably cooperate with
such Certificateholder in making such claim so long as such Certificateholder
agrees to reimburse the Eligible Lender Trustee for any out-of-pocket expenses
incurred.
SECTION 5.02. METHOD OF PAYMENT. Subject to Section 9.01(c),
distributions required to be made to Certificateholders on any Distribution Date
shall be made to each Certificateholder of record on the preceding Record Date
either by wire transfer, in immediately available funds, to the account of such
Certificateholder at a bank or other entity having appropriate facilities
therefor, if such Certificateholder shall have provided to the Certificate
Registrar appropriate written instructions signed by two authorized officers, if
any, at least five Business Days prior to such Distribution Date and such
Certificateholder's Trust Certificates in the aggregate evidence a denomination
of not less than $1,000,000, or, if not, by check mailed to such
Certificateholder at the address of such Certificateholder appearing in the
Certificate Register; PROVIDED, HOWEVER, that, unless Definitive Certificates
have been issued pursuant to Section 3.13, with respect to Trust Certificates
registered on the Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), distributions will be made by wire
transfer in immediately available funds to the account designated by such
nominee. Notwithstanding the foregoing, the final distribution in respect of any
Trust Certificate (whether on the Certificate Final Maturity Date or otherwise)
will be payable only upon presentation and surrender of such Trust Certificate
at the Corporate Trust Office of the Eligible Lender Trustee or such other
location specified in writing to the Certificateholder thereof.
SECTION 5.03. NO SEGREGATION OF MONEYS; NO INTEREST. Subject to
Section 5.01, moneys received by the Eligible Lender Trustee hereunder need not
be segregated in any manner except to the extent required by law or the Master
Servicing Agreement and may be deposited under such general conditions as may be
prescribed by law, and the Eligible Lender Trustee shall not be liable for any
interest thereon.
SECTION 5.04. ACCOUNTING AND REPORTS TO THE NOTEHOLDERS,
CERTIFICATEHOLDERS, THE INTERNAL REVENUE SERVICE AND OTHERS. The Eligible Lender
Trustee shall (a) maintain (or cause to be maintained) the books of the Trust on
a calendar year basis on the accrual method of accounting, (b) deliver to each
Certificateholder (and to each Person who was a Certificateholder at any time
during the applicable calendar year), as may be required by the Code and
applicable Treasury Regulations, such information as may be required (including
Schedule K-1) to enable each such Certificateholder to prepare its Federal and
state income tax returns, (c) file such tax returns relating to the Trust
(including a partnership information return, Internal Revenue Service Form
1065), and 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 partnership for
Federal income tax purposes, (d) cause such tax returns to be signed in the
manner required by law and (e) collect or cause to be collected any withholding
tax as described in and in accordance with Section 5.01(c) with respect to
income or distributions to Certificateholders. The Eligible Lender Trustee shall
elect under Section 1278 of the Code to include in income currently any market
discount that accrues with respect to the Financed Student Loans. The Eligible
Lender Trustee shall not make the election provided under Section 754 of the
Code. The Eligible Lender Trustee shall be entitled to hire an independent
accounting firm to perform the functions described in this Section 5.04, the
reasonable fees and expenses of which shall be paid by the Depositor.
SECTION 5.05. SIGNATURE ON RETURNS; TAX MATTERS PARTNER. (a) The
Eligible Lender Trustee shall sign on behalf of the Trust the tax returns of the
Trust, unless applicable law requires a Certificateholder to sign such
documents, in which case such documents shall be signed by the Depositor.
(b) The Depositor shall be designated the "tax matters partner" of the
Trust pursuant to Section 6231(a)(7)(A) of the Code and applicable Treasury
Regulations.
SECTION 5.06. CAPITAL ACCOUNTS. The Trust shall maintain accounts
("Capital Accounts") with respect to each Certificateholder (including the
Depositor) in accordance with the following provisions:
(a) Each Certificateholder's Capital Account shall be increased by the
Capital Contributions (as defined below) of such Certificateholder, such
Certificateholder's distributive share of gross income (and any Liquidating
Profits) and any items in the nature of income or gain which are specifically
allocated to such Certificateholder pursuant to Section 2.10(b) of this
Agreement.
(b) Each Certificateholder's Capital Account shall be reduced by any
amount distributed to such Certificateholder (including, in the case of the
Depositor, any amount released or otherwise distributed to the Depositor from
the Reserve Account under Section 4.06 of the Master Servicing Agreement) and
such Certificateholder's distributive share of Losses and deductions ( and any
Liquidating Loss), including any special allocation pursuant to Section 2.10(b).
(c) In the event all or a portion of a Certificate is transferred in
accordance with the terms of this Agreement, the transferee shall succeed to the
Capital Account of the transferor to the extent it related to such Certificate
or a portion thereof.
(d) Notwithstanding the above, the Capital Accounts shall be adjusted
in accordance with the provisions governing the economic rights of the
Certificateholders, as set forth herein and in the Basic Documents.
"Capital Contribution" means the amount of any cash and the fair
market value of any property contributed to the Trust by a Certificateholder
(including any amounts deemed to be contributed in connection with the original
issuance of the Certificates), including, in the case of the Depositor, the fair
market value of the Financed Student Loans deemed to be contributed by the
Depositor to the Trust, taking into account the provisions of Section
707(a)(2)(B) of the Code and the Treasury Regulations thereunder. The foregoing
provisions and the other provisions of this Agreement relating to the
maintenance of Capital Accounts are intended to comply with Section 1.704-1(b)
of the Treasury Regulations and shall be interpreted in a manner consistent
therewith.
ARTICLE VI
AUTHORITY AND DUTIES OF ELIGIBLE LENDER TRUSTEE
SECTION 6.01. GENERAL AUTHORITY. The Eligible Lender Trustee is
authorized and directed to execute and deliver the Basic Documents to which the
Trust is to be a party and each certificate or other document attached as an
exhibit to or contemplated by the Basic Documents to which the Trust is to be a
party, in each case, in such form as the Depositor shall approve as evidenced
conclusively by the Eligible Lender Trustee's execution thereof, and, on behalf
of the Trust, to direct the Indenture Trustee to authenticate and deliver Notes
in the aggregate principal amount of $[ ]. The Eligible Lender Trustee is also
authorized and directed on behalf of the Trust (i) to acquire and hold legal
title to the Financed Student Loans from the Depositor and (ii) to take all
actions required pursuant to Section 3.02(c) of the Master Servicing Agreement,
and otherwise follow the direction of and cooperate with the Administrator in
submitting, pursuing and collecting any claims to and with the Department with
respect to any Interest Subsidy Payments and Special Allowance Payments relating
to the Financed Student Loans.
In addition to the foregoing, the Eligible Lender Trustee is
authorized, but shall not be obligated, to take all actions required of the
Trust pursuant to the Basic Documents. The Eligible Lender Trustee is further
authorized from time to time to take such action as the Administrator directs or
instructs with respect to the Basic Documents and is directed to take such
action to the extent that the Administrator is expressly required pursuant to
the Basic Documents to cause the Eligible Lender Trustee to act.
SECTION 6.02. GENERAL DUTIES. It shall be the duty of the Eligible
Lender Trustee to discharge (or cause to be discharged) all its responsibilities
pursuant to the terms of this Agreement and the other Basic Documents to which
the Trust is a party and to administer the Trust in the interest of the
Certificateholders, subject to and in accordance with the provisions of this
Agreement and the other Basic Documents. Without limiting the foregoing, the
Eligible Lender Trustee shall on behalf of the Trust file and prove any claim or
claims that may exist on behalf of the Trust against the Depositor in connection
with any claims paying procedure as part of an insolvency or a receivership
proceeding involving the Depositor. Notwithstanding the foregoing, the Eligible
Lender Trustee shall be deemed to have discharged its duties and
responsibilities hereunder and under the other Basic Documents to the extent the
Administrator has agreed in the Administration Agreement to perform any act or
to discharge any duty of the Eligible Lender Trustee hereunder or under any
other Basic Document, and the Eligible Lender Trustee shall not be held liable
for the default or failure of the Administrator to carry out its obligations
under the Administration Agreement. Except as expressly provided in the Basic
Documents, the Eligible Lender Trustee shall have no obligation to administer,
service or collect the Financed Student Loans or to maintain, monitor or
otherwise supervise the administration, servicing or collection of the Financed
Student Loans.
SECTION 6.03. ACTION UPON INSTRUCTION. (a) Subject to Article VII,
Section 7.01 and in accordance with the terms of the Basic Documents, the
Certificateholders may by written instruction direct the Eligible Lender Trustee
in the management of the Trust. Such direction may be exercised at any time by
written instruction of the Certificateholders pursuant to Article VII.
(b) The Eligible Lender Trustee shall not be required to take any
action hereunder or under any other Basic Document if the Eligible Lender
Trustee shall have reasonably determined, or shall have been advised by counsel,
that such action is likely to result in liability on the part of the Eligible
Lender Trustee or is contrary to the terms hereof or of any other Basic Document
or is otherwise contrary to law.
(c) Whenever the Eligible Lender Trustee is unable to determine the
appropriate course of action between alternative courses of action permitted or
required by the terms of this Agreement or under any other Basic Document, the
Eligible Lender Trustee shall promptly give notice (in such form as shall be
appropriate under the circumstances) to the Certificateholders requesting
instruction as to the course of action to be adopted, and to the extent the
Eligible Lender Trustee acts in good faith in accordance with any written
instruction of the Certificateholders received, the Eligible Lender Trustee
shall not be liable on account of such action to any Person. If the 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 other Basic Documents, as it shall deem
to be in the best interests of the Certificateholders, and shall have no
liability to any Person for such action or inaction.
(d) In the event that the Eligible Lender Trustee is unsure as to the
application of any provision of this Agreement or any other Basic Document or
any such provision is ambiguous as to its application, or is, or appears to be,
in conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Eligible Lender Trustee or is silent
or is incomplete as to the course of action that the Eligible Lender Trustee is
required to take with respect to a particular set of facts, the Eligible Lender
Trustee may give notice (in such form as shall be appropriate under the
circumstances) to the Certificateholders requesting instruction and, to the
extent that the Eligible Lender Trustee acts or refrains from acting in good
faith in accordance with any such instruction received, the Eligible Lender
Trustee shall not be liable, on account of such action or inaction, to any
Person. If the 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 other Basic
Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall have no liability to any Person for such action or
inaction.
SECTION 6.04. NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT, THE
MASTER SERVICING AGREEMENT, THE SALE AGREEMENT OR IN INSTRUCTIONS. The Eligible
Lender Trustee shall not have any duty or obligation to manage, make any payment
with respect to, register, record, sell, service, dispose of or otherwise deal
with the Trust Estate, or to otherwise take or refrain from taking any action
under, or in connection with, any document contemplated hereby to which the
Eligible Lender Trustee is a party, except as expressly provided by the terms of
this Agreement, the Master Servicing Agreement, the Sale Agreement or in any
document or written instruction received by the Eligible Lender Trustee pursuant
to Section 6.03; and no implied duties or obligations shall be read into this
Agreement or any other Basic Document against the Eligible Lender Trustee. The
Eligible Lender Trustee shall have no responsibility for filing any financing or
continuation statement in any public office at any time or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder or to prepare or file any Commission filing for the Trust or to record
this Agreement or any other Basic Document. The Eligible Lender Trustee
nevertheless agrees that it will, at its own cost and expense, promptly take all
action as may be necessary to discharge any liens on any part of the Trust
Estate that result from actions by, or claims against, The First National Bank
of Chicago, in its individual capacity or as the Eligible Lender Trustee that
are not related to the ownership or the administration of the Trust Estate.
SECTION 6.05. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR
INSTRUCTIONS. The Eligible Lender Trustee shall not manage, control, use, sell,
service, dispose of or otherwise deal with any part of the Trust Estate except
(i) in accordance with the powers granted to and the authority conferred upon
the Eligible Lender Trustee pursuant to this Agreement, (ii) in accordance with
the other Basic Documents to which it is a party and (iii) in accordance with
any document or instruction delivered to the Eligible Lender Trustee pursuant to
Section 6.03.
SECTION 6.06. RESTRICTIONS. The Eligible Lender Trustee shall not take
any action (a) that is inconsistent with the purposes of the Trust set forth in
Section 2.03 or (b) that, to the actual knowledge of the Eligible Lender
Trustee, would result in the Trust's becoming taxable as a corporation for
Federal income tax purposes. The Certificateholders shall not direct the
Eligible Lender Trustee to take action that would violate the provisions of this
Section.
ARTICLE VII
CONCERNING THE ELIGIBLE LENDER TRUSTEE
SECTION 7.01. ACCEPTANCE OF TRUSTS AND DUTIES. The Eligible Lender
Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this Agreement.
The Eligible Lender Trustee also agrees to disburse all moneys actually received
by it constituting part of the Trust Estate upon the terms of this Agreement and
the other Basic Documents. The Eligible Lender Trustee shall not be answerable
or accountable hereunder or under any other Basic Document under any
circumstances, except (i) for its own willful misconduct or negligence or (ii)
in the case of the inaccuracy of any representation or warranty contained in
Section 7.03 expressly made by the Eligible Lender Trustee. In particular, but
not by way of limitation (and subject to the exceptions set forth in the
preceding sentence):
(a) the Eligible Lender Trustee shall not be liable for any error of
judgment made by a responsible officer of the Eligible Lender Trustee;
(b) the Eligible Lender Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in accordance with the direction
or instructions of the Administrator or any Certificateholder;
(c) no provision of this Agreement or any other Basic Document shall
require the Eligible Lender Trustee to expend or risk funds or otherwise incur
any financial liability in the performance of any of its rights or powers
hereunder or under any other Basic Document, if the Eligible Lender Trustee
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured or
provided to it;
(d) under no circumstances shall the Eligible Lender Trustee be liable
for indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes;
(e) the Eligible Lender Trustee shall not be responsible for or in
respect of the validity or sufficiency of this Agreement or for the due
execution hereof by the Depositor or for the form, character, genuineness,
sufficiency, value or validity of any of the Trust Estate or for or in respect
of the validity or sufficiency of the Basic Documents, other than the
certificate of authentication on the Trust Certificates, and the Eligible Lender
Trustee shall in no event assume or incur any liability, duty, or obligation to
any Noteholder or to any Certificateholder, other than as expressly provided for
herein and in the other Basic Documents;
(f) the Eligible Lender Trustee shall not be liable for the action or
inaction, default or misconduct of the Administrator, the Seller, the Indenture
Trustee or the Master Servicer under any of the other Basic Documents or
otherwise and the Eligible Lender Trustee shall have no obligation or liability
to perform the obligations of the Trust under this Agreement or the other Basic
Documents that are required to be performed by the Administrator under the
Administration Agreement, the Indenture Trustee under the Indenture or the
Master Servicer under the Master Servicing Agreement; and
(g) the Eligible Lender Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or to
institute, conduct or defend any litigation under this Agreement or otherwise or
in relation to this Agreement or any other Basic Document, at the request, order
or direction of any of the Certificateholders, unless such Certificateholders
have offered to the Eligible Lender Trustee security or indemnity satisfactory
to it against the costs, expenses and liabilities that may be incurred by the
Eligible Lender Trustee therein or thereby. The right of the Eligible Lender
Trustee to perform any discretionary act enumerated in this Agreement or in any
other Basic Document shall not be construed as a duty, and the Eligible Lender
Trustee shall not be answerable for other than its negligence or willful
misconduct in the performance of any such act.
SECTION 7.02. FURNISHING OF DOCUMENTS. The Eligible Lender Trustee
shall furnish to the Certificateholders promptly upon receipt of a written
request therefor, duplicates or copies of all reports, notices, requests,
demands, certificates, financial statements and any other instruments furnished
to the Eligible Lender Trustee under the Basic Documents.
SECTION 7.03. REPRESENTATIONS AND WARRANTIES. The Eligible Lender
Trustee hereby represents and warrants to the Depositor, for the benefit of the
Certificateholders, that:
(a) It is a national banking association duly organized and validly
existing in good standing under the laws of the United States and having an
office located within the State of New York. It has all requisite corporate
power and authority to execute, deliver and perform its obligations under this
Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to execute
and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will contravene any
Federal or Delaware state law, governmental rule or regulation governing the
banking or trust powers of the 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.
(d) It is and will maintain its status as an "eligible lender" (as
such term is defined in Section 435(d) of the Higher Education Act) for purposes
of holding legal title to the Financed Student Loans as contemplated by this
Agreement and the other Basic Documents, has obtained a lender identification
number with respect to the Financed Student Loans from the Department and has
and will maintain in effect a Guarantee Agreement with each of the Guarantors
with respect to the Financed Student Loans.
SECTION 7.04. RELIANCE; ADVICE OF COUNSEL. (a) The Eligible Lender
Trustee shall incur no liability to anyone in acting upon any signature,
instrument, direction, notice, resolution, request, consent, order, certificate,
report, opinion, bond, or other document or paper believed by it to be genuine
and believed by it to be signed by the proper party or parties. The 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 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 Eligible Lender Trustee 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 in
the performance of its duties and obligations under this Agreement or the other
Basic Documents, the Eligible Lender Trustee (i) may act directly or through its
agents or attorneys pursuant to agreements entered into with any of them, and
the Eligible Lender Trustee shall not be liable for the conduct or misconduct of
such agents or attorneys if such agents or attorneys shall have been selected by
the Eligible Lender Trustee with reasonable care, and (ii) may consult with
counsel, accountants and other skilled persons to be selected with reasonable
care and employed by it. The Eligible Lender Trustee shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the
written opinion or advice of any such counsel, accountants or other such persons
and not contrary to this Agreement or any other Basic Document.
SECTION 7.05. NOT ACTING IN INDIVIDUAL CAPACITY. Except as provided in
this Article VII, in accepting the trusts hereby created, The First National
Bank of Chicago acts solely as Eligible Lender Trustee hereunder and not in its
individual capacity and all Persons having any claim against the Eligible Lender
Trustee by reason of the transactions contemplated by this Agreement or any
other Basic Document shall look only to the Trust Estate for payment or
satisfaction thereof.
SECTION 7.06. ELIGIBLE LENDER TRUSTEE NOT LIABLE FOR TRUST
CERTIFICATES OR FINANCED STUDENT LOANS. The recitals contained herein and in the
Trust Certificates (other than the signature and countersignature of the
Eligible Lender Trustee on the Trust Certificates) shall be taken as the
statements of the Depositor and the Eligible Lender Trustee assumes no
responsibility for the correctness thereof. The Eligible Lender Trustee makes no
representations as to the validity or sufficiency of this Agreement, the Trust
Certificates or any other Basic Document (other than the signature and
countersignature of the Eligible Lender Trustee on the Trust Certificates) or
the Notes, or of any Financed Student Loan or related documents. The Eligible
Lender Trustee shall at no time have any responsibility (or liability except for
willfully or negligently terminating or allowing to be terminated any of the
Guarantee Agreements, in a case where the Eligible Lender Trustee knows of any
facts or circumstances which will or could reasonably be expected to result in
any such termination) for or with respect to the legality, validity,
enforceability and eligibility for Guarantee Payments, federal reinsurance,
Interest Subsidy Payments or Special Allowance Payments, as applicable, in
respect of any Financed Student Loan, or for or with respect to the sufficiency
of the Trust Estate or its ability to generate the payments to be distributed to
Certificateholders under this Agreement or the Noteholders under the Indenture,
including the existence and contents of any computer or other record of any
Financed Student Loan; the validity of the assignment of any Financed Student
Loan to the Eligible Lender Trustee on behalf of the Trust; the completeness of
any Financed Student Loan; the performance or enforcement (except as expressly
set forth in any Basic Document) of any Financed Student Loan; the compliance by
the Depositor or the Master Servicer with any warranty or representation made
under any Basic Document or in any related document or the accuracy of any such
warranty or representation or any action or inaction of the Administrator, the
Indenture Trustee or the Master Servicer or any subservicer taken in the name of
the Eligible Lender Trustee.
SECTION 7.07. ELIGIBLE LENDER TRUSTEE MAY OWN TRUST CERTIFICATES AND
NOTES. The Eligible Lender Trustee in its individual or any other capacity may
become the owner or pledgee of Trust Certificates or Notes and may deal with the
Depositor, the Administrator, the Indenture Trustee and the Master Servicer in
banking transactions with the same rights as it would have if it were not
Eligible Lender Trustee.
ARTICLE VIII
COMPENSATION OF ELIGIBLE LENDER TRUSTEE
SECTION 8.01. ELIGIBLE LENDER TRUSTEE'S FEES AND EXPENSES. The
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 Eligible Lender Trustee, and the Eligible Lender Trustee shall
be entitled to be reimbursed by the Depositor, to the extent provided in such
separate agreement, for its other reasonable expenses hereunder.
SECTION 8.02. PAYMENTS TO THE ELIGIBLE LENDER TRUSTEE. Any amounts
paid to the Eligible Lender Trustee pursuant to Section 8.01 hereof or pursuant
to Section 4.03 of the Sale Agreement or Section 5.03 of the Master Servicing
Agreement shall be deemed not to be a part of the Trust Estate immediately after
such payment.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.01. TERMINATION OF TRUST AGREEMENT. (a) This Agreement
(other than Article VIII) and the Trust shall terminate and be of no further
force or effect upon the earlier of (i) the final distribution by the Eligible
Lender Trustee of all moneys or other property or proceeds of the Trust Estate
in accordance with the terms of the Indenture, the Master Servicing Agreement
and Article V of this Agreement and (ii) the expiration of 21 years from the
death of the last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late
Ambassador of the United States to the Court of St. Xxxxx, living on the date
hereof. The bankruptcy, liquidation, dissolution, 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 Estate nor (z)
otherwise affect the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 9.01(a), neither the Depositor nor
any Certificateholder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the
Distribution Date upon which the Certificateholders shall surrender their Trust
Certificates to the Certificate Paying Agent for payment of the final
distribution and cancellation, shall be given promptly by the Eligible Lender
Trustee by letter to Certificateholders mailed within five Business Days of
receipt of notice of such termination from the Administrator given pursuant to
Section 8.01 of the Master Agreement, stating (i) the Distribution Date upon
which final payment of the Trust Certificates shall be made upon presentation
and surrender of the Trust Certificates at the office of the Certificate Paying
Agent therein designated, (ii) the amount of any such final payment and (iii)
that the Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Trust Certificates at the office of the Certificate Paying Agent therein
specified. The Eligible Lender Trustee shall give such notice to the Certificate
Registrar (if other than the Eligible Lender Trustee) and the Certificate Paying
Agent at the time such notice is given to Certificateholders. Upon presentation
and surrender of the Trust Certificates, the Certificate Paying Agent shall
cause to be distributed to Certificateholders amounts distributable on such
Distribution Date pursuant to Section 5.01.
In the event that all the Certificateholders shall not surrender their
Trust Certificates for cancellation within six months after the date specified
in the above-mentioned written notice, the Eligible Lender Trustee shall give a
second written notice to the remaining Certificateholders to surrender their
Trust Certificates for cancellation and receive the final distribution with
respect thereto. If within one year after the second notice all the Trust
Certificates shall not have been surrendered for cancellation, the Eligible
Lender Trustee may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Trust Certificates, and the cost thereof shall be paid out of
the funds and other assets that shall remain subject to this Agreement. Any
funds remaining in the Trust after exhaustion of such remedies and no later than
five years after the first such notice shall be distributed by the Eligible
Lender Trustee to the Depositor.
ARTICLE X
SUCCESSOR ELIGIBLE LENDER TRUSTEES AND ADDITIONAL
ELIGIBLE LENDER TRUSTEES
SECTION 10.01. ELIGIBILITY REQUIREMENTS FOR ELIGIBLE LENDER TRUSTEE.
The Eligible Lender Trustee shall at all times be a corporation or association
(i) qualifying as an "eligible lender" as such term is defined in Section 435(d)
of the Higher Education Act for purposes of holding legal title to the Financed
Student Loans on behalf of the Trust, with a valid lender identification number
with respect to the Trust from the Department; (ii) being authorized to exercise
corporate trust powers and hold legal title to the Financed Student Loans; (iii)
having in effect Guarantee Agreements with each of the Guarantors; (iv) being
subject to supervision or examination by Federal or state authorities; (v) being
incorporated or authorized to do business in the State of Delaware or which is a
national bank having an office located within the State of Delaware and
otherwise complying with Section 3807 of the Delaware Business Trust Act; and
(vi) having (or having a parent which has) a rating of at least investment grade
by the Rating Agencies. If the Eligible Lender Trustee shall publish reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section, the combined capital and surplus of the Eligible Lender Trustee shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Eligible Lender
Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Eligible Lender Trustee shall resign immediately in the manner and
with the effect specified in Section 10.02.
SECTION 10.02. RESIGNATION OR REMOVAL OF ELIGIBLE LENDER TRUSTEE. The
Eligible Lender Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Administrator. Upon
receiving such notice of resignation, the Administrator shall promptly appoint a
successor Eligible Lender Trustee meeting the eligibility requirements of
Section 10.01 by written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning Eligible Lender Trustee and one copy to the
successor Eligible Lender Trustee. If no successor Eligible Lender Trustee shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Eligible Lender Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Eligible Lender Trustee; PROVIDED, HOWEVER, that such right to appoint or to
petition for the appointment of any such successor shall in no event relieve the
resigning Eligible Lender Trustee from any obligations otherwise imposed on it
under the Basic Documents until such successor has in fact assumed such
appointment.
If at any time the Eligible Lender Trustee shall cease to be eligible
in accordance with the provisions of Section 10.01 and shall fail to resign
after written request therefor by the Administrator, or if at any time an
Insolvency Event with respect to the Eligible Lender Trustee shall have occurred
and be continuing, then the Administrator may remove the Eligible Lender
Trustee. If the Administrator shall remove the Eligible Lender Trustee under the
authority of the immediately preceding sentence, the Administrator shall
promptly appoint a successor Eligible Lender Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the outgoing
Eligible Lender Trustee so removed and one copy to the successor Eligible Lender
Trustee and shall remit payment of all fees owed to the outgoing Eligible Lender
Trustee.
Any resignation or removal of the Eligible Lender Trustee and
appointment of a successor Eligible Lender Trustee pursuant to any of the
provisions of this Section shall not become effective until acceptance of
appointment by the successor Eligible Lender Trustee pursuant to Section 10.03
and payment of all fees and expenses owed to the outgoing Eligible Lender
Trustee. The Administrator shall provide notice of such resignation or removal
of the Eligible Lender Trustee to each of the Rating Agencies.
SECTION 10.03. SUCCESSOR ELIGIBLE LENDER TRUSTEE. Any successor
Eligible Lender Trustee appointed pursuant to Section 10.02 shall execute,
acknowledge and deliver to the Administrator and to its predecessor Eligible
Lender Trustee an instrument accepting such appointment under this Agreement,
and thereupon the resignation or removal of the predecessor Eligible Lender
Trustee shall become effective and such successor Eligible Lender Trustee,
without any further act, deed or conveyance, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor under this
Agreement, with like effect as if originally named as Eligible Lender Trustee.
The predecessor Eligible Lender Trustee shall upon payment of its fees and
expenses deliver to the successor Eligible Lender Trustee all documents,
statements, moneys and properties held by it under this Agreement and shall
assign, if permissible, to the successor Eligible Lender Trustee the lender
identification number obtained from the Department on behalf of the Trust; and
the Administrator and the predecessor Eligible Lender 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 Eligible Lender
Trustee all such rights, powers, duties and obligations.
No successor Eligible Lender Trustee shall accept appointment as
provided in this Section unless at the time of such acceptance such successor
Eligible Lender Trustee shall be eligible pursuant to Section 10.01.
Upon acceptance of appointment by a successor Eligible Lender Trustee
pursuant to this Section, the Administrator shall mail notice of the succession
of such Eligible Lender Trustee to all Certificateholders, the Indenture
Trustee, the Noteholders and the Rating Agencies. If the Administrator shall
fail to mail such notice within 10 days after acceptance of appointment by the
successor Eligible Lender Trustee, the successor Eligible Lender Trustee shall
cause such notice to be mailed at the expense of the Administrator.
SECTION 10.04. MERGER OR CONSOLIDATION OF ELIGIBLE LENDER TRUSTEE. Any
corporation into which the Eligible Lender Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Eligible Lender Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Eligible Lender Trustee, shall, without the execution or
filing of any instrument or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding, be the successor of the
Eligible Lender Trustee hereunder; PROVIDED that such corporation shall be
eligible pursuant to Section 10.01; and PROVIDED FURTHER that the Eligible
Lender Trustee shall mail notice of such merger or consolidation to the Rating
Agencies not less than 15 days prior to the effective date thereof.
SECTION 10.05. APPOINTMENT OF CO-ELIGIBLE LENDER TRUSTEE OR SEPARATE
ELIGIBLE LENDER TRUSTEE. Notwithstanding any other provisions of this Agreement,
at any time, for the purpose of meeting any legal requirements of any
jurisdiction in which any part of the Trust may at the time be located, the
Administrator and the Eligible Lender Trustee acting jointly shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Eligible Lender Trustee, meeting the eligibility
requirements of clauses (i) through (iii) of Section 10.01, to act as
co-trustee, jointly with the Eligible Lender Trustee, or separate trustee or
separate trustees, of all or any part of the Trust Estate, and to vest in such
Person, in such capacity, such title to the Trust Estate, or any part thereof,
and, subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Administrator and the Eligible Lender
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 Eligible Lender Trustee alone shall have the power to make such
appointment. No co-trustee or separate trustee under this Agreement shall be
required to meet the terms of eligibility as a successor trustee pursuant to
clauses (iv) and (v) of Section 10.01 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 10.03.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties, and obligations conferred or imposed
upon the Eligible Lender Trustee shall be conferred upon and
exercised or performed by the Eligible Lender Trustee and such
separate trustee or co-trustee jointly (it being understood that
such separate trustee or co-trustee is not authorized to act
separately without the Eligible Lender Trustee joining in such
act), except to the extent that under any law of any jurisdiction
in which any particular act or acts are to be performed, the
Eligible Lender Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers,
duties, and obligations (including the holding of title to the
Trust or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or
co-trustee, solely at the direction of the Eligible Lender
Trustee;
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this
Agreement; and
(iii)the Administrator and the Eligible Lender Trustee acting jointly
may at any time accept the resignation of or remove any separate
trustee or co-trustee.
Any notice, request or other writing given to the Eligible Lender
Trustee shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Eligible
Lender Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Eligible Lender Trustee. Each such instrument shall be filed
with the Eligible Lender Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the
Eligible Lender Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Eligible Lender Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. SUPPLEMENTS AND AMENDMENTS. This Agreement may be
amended by the Depositor and the Eligible Lender Trustee, with prior written
notice to the Rating Agencies, without the consent of any of the Noteholders or
the Certificateholders, to cure any ambiguity, to correct or supplement any
provisions in this Agreement or for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions in this Agreement or
modifying in any manner the rights of the Noteholders or the Certificateholders;
PROVIDED, HOWEVER, that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of any
Noteholder or Certificateholder.
This Agreement may also be amended from time to time by the Depositor
and the Eligible Lender Trustee, upon the satisfaction of the Rating Agency
Condition, (i) with the consent of the Noteholders of Notes evidencing not less
than a majority of the Outstanding Amount of the Notes and (ii) with the consent
of the Certificateholders of Certificates evidencing not less than a majority of
the Certificate Balance, for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Noteholders or the Certificateholders;
PROVIDED, HOWEVER, that no such amendment shall (a) increase or reduce in any
manner the amount of, or accelerate or delay the timing of, collections of
payments on Financed Student Loans or distributions that shall be required to be
made for the benefit of the Noteholders or the Certificateholders or (b) reduce
the aforesaid percentage of the Outstanding Amount of the Notes and the
Certificate Balance required to consent to any such amendment, without the
consent of all the outstanding Noteholders and Certificateholders.
Promptly after the execution of any such amendment or consent, the
Eligible Lender Trustee shall furnish written notification of the substance of
such amendment or consent to each Certificateholder, the Indenture Trustee and
each of the Rating Agencies.
It shall not be necessary for the consent of Certificateholders, the
Noteholders or the Indenture Trustee pursuant to this Section to approve the
particular form of any proposed amendment or consent, but it shall be sufficient
if such consent shall approve the substance thereof. The manner of obtaining
such consents (and any other consents of Certificateholders provided for in this
Agreement or in any other Basic Document) and of evidencing the authorization of
the execution thereof by Certificateholders shall be subject to such reasonable
requirements as the Eligible Lender Trustee may prescribe.
Prior to the execution of any amendment to this Agreement, the
Eligible Lender Trustee shall be entitled to receive and rely upon an Opinion of
Counsel stating that the execution of such amendment is authorized or permitted
by this Agreement. The Eligible Lender Trustee may, but shall not be obligated
to, enter into any such amendment which affects the Eligible Lender Trustee's
own rights, duties or immunities under this Agreement or otherwise.
SECTION 11.02. NO LEGAL TITLE TO TRUST ESTATE IN CERTIFICATEHOLDERS.
The Certificateholders shall not have legal title to any part of the Trust
Estate. The Certificateholders shall be entitled to receive distributions with
respect to their undivided beneficial ownership interest therein only in
accordance with Articles V and IX. No transfer, by operation of law or
otherwise, of any right, title, or interest of the Certificateholders to and in
their beneficial ownership interest in the Trust Estate shall operate to
terminate this Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the Trust
Estate.
SECTION 11.03. LIMITATIONS ON RIGHTS OF OTHERS. Except for Section
2.07, the provisions of this Agreement are solely for the benefit of the
Eligible Lender Trustee, the Depositor, the Certificateholders, the
Administrator and, to the extent expressly provided herein, the Indenture
Trustee and the Noteholders, and nothing in this Agreement (other than Section
2.07), whether express or implied, shall be construed to give to any other
Person any legal or equitable right, remedy or claim in the Trust Estate or
under or in respect of this Agreement or any covenants, conditions or provisions
contained herein.
SECTION 11.04. NOTICES. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt by the intended recipient or three Business Days after
mailing if mailed by certified mail, postage prepaid (except that notice to the
Eligible Lender Trustee shall be deemed given only upon actual receipt by the
Eligible Lender Trustee), if to the Eligible Lender Trustee, addressed to its
Corporate Trust Office; if to the Depositor, addressed to First Union National
Bank, [ ] Attention: [ ], or, as to each party, at such other address as shall
be designated by such party in a written notice to each other party.
(b) Any notice required or permitted to be given to a
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of such Certificateholder as shown in the Certificate Register. Any
notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
SECTION 11.05. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 11.06. SEPARATE COUNTERPARTS. This Agreement may be executed
by the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.07. SUCCESSORS AND ASSIGNS. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Depositor and its successors, the Eligible Lender Trustee and its successors,
each Certificateholder and its successors and permitted assigns, all as herein
provided. Any request, notice, direction, consent, waiver or other instrument or
action by a Certificateholder shall bind the successors and assigns of such
Certificateholder.
SECTION 11.08. NO PETITION. (a) The Depositor will not at any time
institute against the Trust any bankruptcy proceedings under any United States
Federal or state bankruptcy or similar law in connection with any obligations
relating to the Trust Certificates, the Notes, this Agreement or any of the
other Basic Documents.
(b) The Eligible Lender Trustee (not in its individual capacity but
solely as Eligible Lender Trustee), by entering into this Agreement, each
Certificateholder, by accepting a Trust Certificate, and the Indenture Trustee
and each Noteholder by accepting the benefits of this Agreement, hereby covenant
and agree that they will not at any time institute against the Depositor or the
Trust, or join in any institution against the Depositor or the Trust of, any
bankruptcy, reorganization, arrangement, insolvency, receivership or liquidation
proceedings, or other proceedings under any United States Federal or state
bankruptcy or similar law in connection with any obligations relating to the
Trust Certificates, the Notes, this Agreement or any of the other Basic
Documents.
SECTION 11.09. NO RECOURSE. Each Certificateholder by accepting a
Trust Certificate acknowledges that such Certificateholder's Trust Certificates
represent beneficial interests in the Trust only and do not represent interests
in or obligations of the Depositor, the Master Servicer, the Administrator, the
Eligible Lender Trustee, the Indenture Trustee or any Affiliate thereof or any
officer, director or employee of any thereof and no recourse may be had against
such parties or their assets, except as may be expressly set forth or
contemplated in this Agreement, the Trust Certificates or the other Basic
Documents.
SECTION 11.10. HEADINGS. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 11.11. GOVERNING LAW. This Agreement shall be 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.
IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity but
solely as Eligible Lender Trustee,
By: ______________________________________
Name:
Title:
FIRST UNION NATIONAL BANK, Depositor,
By:_______________________________________
Name:
Title:
A-8
EXHIBIT A TO THE TRUST AGREEMENT
[FORM OF TRUST CERTIFICATE]
SEE REVERSE FOR CERTAIN DEFINITIONS
Unless this Trust Certificate is presented by an authorized
representative of The Depository Trust Company, a New York Corporation ("DTC"),
to the Issuer (as defined below) or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
THIS TRUST CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF A
BENEFIT PLAN (AS DEFINED BELOW). THIS CERTIFICATE IS NOT GUARANTEED OR INSURED
BY ANY GOVERNMENTAL AGENCY.
NUMBER $_________________________
R- CUSIP NO.
FIRST UNION STUDENT LOAN TRUST 1997-1
FLOATING RATE ASSET BACKED CERTIFICATE evidencing a fractional
undivided interest in the Trust, as defined below, the property of which
includes a pool of student loans sold to the Trust by First Union National Bank,
a national banking association having its main office in Avondale, Pennsylvania.
(This Trust Certificate does not represent an interest in or obligation of First
Union National Bank, the Master Servicer (as defined below), the Eligible Lender
Trustee (as defined below) or any of their respective affiliates, except to the
extent described below.)
THIS CERTIFIES THAT Cede & Co. is the registered owner of
______________________________________ dollars nonassessable, fully-paid,
fractional undivided interest in the First Union Student Loan Trust 1997-1 (the
"Trust"), a trust formed under the laws of the State of Delaware by First Union
National Bank, a national banking association (the "Depositor"). The Trust was
created pursuant to a Trust Agreement dated as of June 1, 1997 (the "Trust
Agreement"), between the Depositor and The First National Bank of Chicago, a
national banking association, not in its individual capacity but solely as
eligible lender trustee on behalf of the Trust (the "Eligible Lender Trustee"),
a summary of certain of the pertinent provisions of which is set forth below. To
the extent not otherwise defined herein, the capitalized terms used herein have
the meanings assigned to them in Appendix A to the Trust Agreement; such
Appendix A also contains rules as to usage that shall be applicable herein.
This Certificate is one of the duly authorized Certificates designated
as "Floating Rate Asset Backed Certificates" (herein called the "Trust
Certificates"). Issued under the Indenture dated as of June 1, 1997, between the
Trust and Bankers Trust Company, as Indenture Trustee, are Notes designated as
"Floating Rate Asset Backed Notes" (the "Notes"). This Trust Certificate is
issued under and is subject to the terms, provisions and conditions of the Trust
Agreement, to which Trust Agreement the holder of this Trust Certificate by
virtue of the acceptance hereof assents and by which such holder is bound. The
property of the Trust includes a pool of guaranteed student loans (the "Financed
Student Loans"), all moneys paid thereunder on or after June 1, 1997, certain
bank accounts and the proceeds thereof and certain other rights under the Trust
Agreement and the Master Servicing Agreement and all proceeds of the foregoing.
The rights of the holders of the Trust Certificates to the assets of the Trust
are subordinated to the rights of the holders of the Notes, as set forth in the
Basic Documents.
Under the Trust Agreement, to the extent of funds available therefor,
interest on the Certificate Balance of this Trust Certificate at the Certificate
Rate, and principal and certain other amounts will be distributed on the [ ] day
of each March, June, September and December (or, if such [ ] day is not a
Business Day, the next succeeding Business Day) (each a "Distribution Date"),
commencing on September __, 1997, to the person in whose name this Trust
Certificate is registered at the close of business on the [ ] day of the
calendar month in which such Distribution Date occurs (the "Record Date"), in
each case to the extent of such Certificateholder's fractional undivided
interest in the amount or amounts to be distributed to Certificateholders on
such Distribution Date pursuant to the Master Servicing Agreement.
The Certificate Rate for each Interest Period shall be equal to the
lesser of (a) the T-Xxxx Rate for such Interest Period plus ____% and (b) the
Student Loan Rate for such Interest Period. The "Student Loan Rate" for any
Accrual Period shall equal the product of (a) the quotient obtained by dividing
(i) 365 (or 366 in a leap year) by (ii) the actual number of days elapsed in
such Interest Period and (b) the percentage equivalent of a fraction, (i) the
numerator of which is equal to Expected Interest Collections for the related
Collection Period relating to such Interest Period less the Trust Fees payable
on the related Distribution Date and any Servicing Fees paid on the two
preceding monthly Servicing Payment Dates during the related Collection Period
and (ii) the denominator of which is the outstanding principal balance of the
Securities as of the first day of such Interest Period.
Each holder of this Trust Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Trust Certificate from
Available Funds and amounts on deposit in the Reserve Account are subordinated
to the rights of the Noteholders as described in the Master Servicing Agreement
and the Indenture.
It is the intent of the Depositor, the Master Servicer, the
Administrator, the Certificateholders and the Certificate Owners that, for
purposes of Federal income, state and local income and franchise and any other
income taxes, the Trust will be treated as a partnership and the
Certificateholders (including the Depositor in its capacity as recipient of
distributions from the Reserve Account) will be treated as partners in that
partnership. The Certificateholders by acceptance of a Trust Certificate (and
the Certificate Owners by acceptance of a beneficial interest in a Trust
Certificate), agree to treat, and to take no action inconsistent with the
treatment of, the Trust Certificates for such tax purposes as partnership
interests in the Trust.
Each Certificateholder or Certificate Owner, by its acceptance of a
Trust Certificate or, in the case of a Certificate Owner, a beneficial interest
in a Trust Certificate, covenants and agrees that such Certificateholder or
Certificate Owner, as the case may be, will not at any time institute against
the Seller or the Trust, or join in any institution against the Seller or the
Trust of, any bankruptcy, reorganization, arrangement, insolvency, receivership
or liquidation proceedings, or other proceedings under any United States Federal
or state bankruptcy or similar law in connection with any obligations relating
to the Trust Certificates, the Notes, the Trust Agreement or any of the other
Basic Documents.
Distributions on this Trust Certificate will be made as provided in
the Trust Agreement by the Eligible Lender Trustee by wire transfer or by check
mailed to the Certificateholder of record in the Certificate Register without
the presentation or surrender of this Trust Certificate or the making of any
notation hereon, except that with respect to Trust Certificates registered on
the Record Date in the name of the nominee of the Clearing Agency, unless
Definitive Certificates have been issued (initially, such nominee to be Cede &
Co.), payments will be made by wire transfer in immediately available funds to
the account designated by such nominee. Except as otherwise provided in the
Trust Agreement and notwithstanding the above, the final distribution on this
Trust Certificate will be made after due notice by the Eligible Lender Trustee
of the pendency of such distribution and only upon presentation and surrender of
this Trust Certificate at the office or agency maintained for the purpose by the
Eligible Lender Trustee in the Borough of Manhattan, The City of New York.
Reference is hereby made to the further provisions of this Trust
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Eligible Lender Trustee or its
authenticating agent, by manual signature, this Trust Certificate shall not
entitle the holder hereof to any benefit under the Trust Agreement or the Master
Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Eligible Lender Trustee on behalf of the Trust
and not in its individual capacity has caused this Trust Certificate to be duly
executed as of the date set forth below
FIRST UNION STUDENT LOAN TRUST 1997-1,
By: THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity but solely as
Eligible Lender Trustee.
By: ________________________________________
Authorized Signatory
Date: _________, 1997
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Certificates referred to in the
within-mentioned Trust Agreement.
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity but
solely as Eligible Lender Trustee
By:_____________________________________
Authorized Signatory
Date: _________, 1997
[REVERSE OF TRUST CERTIFICATE]
The Trust Certificates do not represent an obligation of, or an
interest in, the Depositor, the Master, the Administrator, the Eligible Lender
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 or
contemplated herein, in the Trust Agreement or in the other Basic Documents. In
addition, this Trust Certificate is not guaranteed by any governmental agency or
instrumentality and is limited in right of payment to certain collections with
respect to the Financed Student Loans, all as more specifically set forth in the
Master Servicing Agreement. A copy of each of the Master Servicing Agreement 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, by any Certificateholder upon request.
The Trust Agreement permits, with certain exceptions therein provided,
the amendment thereof and the modification of the rights and obligations of the
Depositor and the rights of the Certificateholders under the Trust Agreement at
any time by the Depositor and the Eligible Lender Trustee with the consent of
the holders of the Notes and the Trust Certificates each voting as a class
evidencing not less than a majority of the outstanding principal balance of the
Notes and the Certificate Balance. Any such consent by the holder of this Trust
Certificate shall be conclusive and binding on such holder and on all future
holders of this Trust Certificate and of any Trust Certificate issued upon the
transfer hereof or in exchange herefor or in lieu hereof whether or not notation
of such consent is made upon this Trust Certificate. The Trust Agreement also
permits the amendment thereof, in certain limited circumstances, without the
consent of the holders of any of the Trust Certificates.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Trust Certificate is registerable in the
Certificate Register upon surrender of this Certificate for registration of
transfer at the offices or agencies maintained by The First National Bank of
Chicago, in its capacity as Certificate Registrar, or by any successor
Certificate Registrar, in the Borough of Manhattan, The City of New York,
accompanied by a written instrument of transfer in form satisfactory to the
Eligible Lender 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 Trust Certificates of authorized denominations
evidencing the same aggregate interest in the Trust will be issued to the
designated transferee.
The Trust Certificates are issuable only as registered Trust
Certificates without coupons in denominations of $1,000 or in integral multiples
of $1,000 in excess thereof; PROVIDED, HOWEVER, that the Excess Distribution
Certificate issued to the Depositor shall be issued in such denomination as to
include any residual amount of the Initial Certificate Balance. As provided in
the Trust Agreement and subject to certain limitations therein set forth, Trust
Certificates are exchangeable for new Trust Certificates of authorized
denominations evidencing the same aggregate denomination, as requested by the
holder surrendering the same. No service charge will be made for any such
registration of transfer or exchange, but the Eligible Lender Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge payable in connection therewith.
The Eligible Lender Trustee, the Certificate Registrar and any agent
of the Eligible Lender Trustee or the Certificate Registrar may treat the person
in whose name this Trust Certificate is registered as the owner hereof for all
purposes, and none of the Eligible Lender Trustee or the Certificate Registrar
or any such agent shall be affected by any notice to the contrary.
This Trust Certificates and any beneficial interest herein may not be
acquired by or with the assets of a Benefit Plan Investor. Each transferee of a
this Certificate shall be required to represent (or, in the case of a transferee
of a beneficial interest in a Book Entry Certificate, shall be deemed to
represent) (a) that it is not a Benefit Plan Investor and is not acquiring this
Certificate with the assets of a Benefit Plan Investor and (b) that if this
Trust Certificate is subsequently deemed to be a plan asset, it will dispose of
this Trust Certificate. Any transfer of this Trust Certificate or any beneficial
interest herein in violation of the foregoing restrictions shall be null and
void and shall vest no rights in the transferee.
The obligations and responsibilities created by the Trust Agreement
and the Trust created thereby shall terminate upon the payment to
Certificateholders of all amounts required to be paid to them pursuant to the
Trust Agreement and the Master Servicing Agreement and the disposition of all
property held as part of the Trust. The Depositor may at its option purchase the
corpus of the Trust at a price specified in the Master Servicing Agreement, and
such purchase of the Financed Student Loans and other property of the Trust will
effect early retirement of the Trust Certificates; however, such right of
purchase is exercisable only on any Distribution Date on or after the date on
which the Pool Balance is less than or equal to 5% of the Initial Pool Balance.
This Trust 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.
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
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(Please print or type name and address, including postal zip code, of assignee)
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the within Trust Certificate, and all rights thereunder, hereby
irrevocably constituting and appointing
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Attorney to transfer said Trust 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 Trust Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must be
guaranteed by an "eligible guarantor institution" meeting the requirements of
the Certificate Registrar, which requirements include membership or
participation in Security Transfer Agent's Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Certificate
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Securities Exchange Act of 1934, as amended.
