EXHIBIT 4.5
AMENDED AND RESTATED TRUST AGREEMENT
This AMENDED AND RESTATED TRUST AGREEMENT dated as of __________, 2003
(this "Agreement"), is by and between, PHEAA Student Loan Foundation, Inc., a
Pennsylvania nonprofit corporation, as depositor (the "Depositor"), and Wachovia
Bank of Delaware, National Association, a national banking association, as owner
trustee (the "Owner Trustee").
WHEREAS, the Depositor and the Owner Trustee are parties to that certain
original trust agreement, dated as of January 15, 2003, pursuant to which PHEAA
Student Loan Trust I was created (the "Original Trust Agreement"); and
WHEREAS, the Depositor and the Owner Trustee desire to amend and restate
the Original Trust Agreement in its entirety on the terms and conditions as set
forth below.
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the Original Trust Agreement is amended and
restated to read in its entirety, and the parties hereto agree, as follows:
ARTICLE I
DEFINITIONS
Capitalized terms used herein and not defined herein shall have
the meanings assigned to such terms in Appendix A to the Indenture of Trust
dated as of __________, 2003, among PHEAA Student Loan Trust I, Manufacturers
and Traders Trust Company, as Indenture Trustee, and Manufacturers and Traders
Trust Company, as Eligible Lender Trustee (the "Indenture"), which also contains
rules of usage and construction that shall be applicable herein.
ARTICLE II
CREATION OF TRUST
2.01 General.
(a) The Trust created by the Original Trust
Agreement shall be known as PHEAA Student Loan Trust I (the "Trust"), in which
name the Owner Trustee may conduct the activities contemplated hereby, make and
execute contracts and other instruments on behalf of the Trust, and xxx and be
sued on behalf of the Trust.
(b) The Depositor and the Owner Trustee hereby
authorize and direct the Depositor, as the agent of the Trust, (i) to file with
the Commission and execute, in each case on behalf of the Trust, the
Registration Statement on Form S-3 (the "1933 Act Registration Statement"),
including any pre-effective or post-effective amendments to the 1933 Act
Registration Statement, relating to the registration under the 1933 Act of the
Trust securities; (ii) to file and execute on behalf of the Trust such
applications, reports, surety bonds, irrevocable consents, appointments of
attorney for service of process and other papers and documents as shall be
necessary or desirable to register the Trust securities under the securities or
blue sky laws of such jurisdictions as the Depositor, on behalf of the Trust,
may deem necessary or desirable; (iii) to execute on behalf of the Trust one or
more underwriting agreements relating to the Trust securities, and (iv) to take
such actions and execute all documents and instruments in connection with the
foregoing as may be necessary or desirable.
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2.02 Office. The principal office of the Trust shall be in care
of the Owner Trustee, addressed to Wachovia Bank of Delaware, National
Association, Xxx Xxxxxx Xxxxxx, Xxxxx 000, 000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000: Attention Corporate Trust Administration, or at such other address as the
Owner Trustee may designate by notice to the Depositor.
2.03 Purposes and Powers. The purpose of the Trust is to engage
in the following activities:
(i) to issue and sell from time to time the Notes
pursuant to the Indenture and any Supplemental Indenture, and to issue
the Trust Certificate, substantially in the form of Exhibit A hereof,
pursuant to this Agreement;
(ii) with the proceeds of the sale of the Notes, to
purchase from time to time pools of the Financed Student Loans to be
pledged as collateral for the Notes, to fund certain accounts for the
benefit of the Noteholders, to pay the organizational and transactional
expenses of the Trust and to pay the balances owed to the Depositor for
the purchases made pursuant to the Loan Sale and Contribution Agreement
between the Depositor and the Trust;
(iii) to enter into derivative product agreements;
(iv) to assign, pledge, and encumber the Trust Property
pursuant to the Indenture;
(v) to enter into and perform its obligations under the
Basic Documents to which it is to be a party;
(vi) to engage in those activities, including entering
into agreements, that are necessary, suitable or convenient to
accomplish the foregoing or are incidental thereto or connected
therewith; and
(vii) subject to compliance with the Basic Documents, to
engage in such other activities as may be required in connection with
conservation of the Trust Property and the making of distributions to
the Noteholders and the Owners.
The Trust shall not engage in any activity other than in
connection with the foregoing or incidental thereto or other than as required or
authorized by the terms of this Agreement or the other Basic Documents.
2.04 Appointment of the Owner Trustee. The Depositor hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein and in the
Statutory Trust Act. The Depositor hereby assigns, transfer, conveys and sets
over to the Owner Trustee, and the Owner Trustee acknowledges receipt in trust
from the Depositor, as of the date hereof, the sum of one dollar, which shall
constitute the initial Trust Property.
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2.05 Declaration of Trust. The Owner Trustee hereby declares
that it will hold the Trust Property in trust upon and subject to the conditions
set forth herein for the use and benefit of the Owners, subject to the
obligations of the Trust under the Basic Documents. It is the intention of the
parties hereto that the Trust constitute a statutory trust under Chapter 38 of
Title 12 of the Delaware Code (the "Statutory Trust Act") and that this
Agreement constitute the governing instrument of the Trust.
2.06 Situs of Trust. The Trust will be located in the State of
Delaware, and the administration of the Trust's business shall occur primarily
in Delaware and Pennsylvania. All bank accounts maintained by the Owner Trustee
on behalf of the Trust shall be located in the State of Delaware or the
Commonwealth of Pennsylvania. The Trust shall not have any employees in any
state other than in the State of Delaware. The Trust's principal office is and
will be at the office of the Owner Trustee as set forth herein. The Trust may
maintain an office in the Commonwealth of Pennsylvania.
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTEREST
3.01 Issuance of Trust Certificate.
(a) As of the date hereof, on behalf of the Trust,
the Owner Trustee shall issue and deliver to the Depositor a Trust Certificate
in the name of the Depositor evidencing ownership of 100% of the beneficial
interest in the Trust.
(b) Each Trust Certificate shall be executed by
manual signature on behalf of the Owner Trustee by one of its Authorized
Officers. Trust Certificates bearing the manual signature of an individual who
was, at the time when such signature was affixed, authorized to sign on behalf
of the Owner Trustee shall bind the Trust, notwithstanding that such individual
has ceased to be so authorized prior to the delivery of such Trust Certificate
or does not hold such office at the date of such Trust Certificate. Each Trust
Certificate shall be dated the date of its issuance.
3.02 Registration and Transfer of Certificates.
(a) The Owner Trustee shall maintain at its office
referred to in Section 2.02 hereof, or at the office of any agent appointed by
it and approved in writing by the Owners at the time of such appointment, a
register for the registration and transfer of Trust Certificates. No transfer of
a beneficial interest in the Trust shall be made unless such transfer is made
pursuant to an effective registration statement under the 1933 Act and state
securities laws, or is exempt from the registration requirements under the 1933
Act and state securities laws.
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(b) Subject to Section 3.04 and Section 3.06 hereof,
the registered Owner of any Trust Certificate may transfer all or any portion of
the beneficial interest in the Trust evidenced by such Trust Certificate upon
surrender thereof to the Owner Trustee accompanied by the documents required by
Section 3.04 hereof. Such transfer may be made by the registered Owner in person
or by his attorney duly authorized in writing upon surrender of the Trust
Certificate to the Owner Trustee accompanied by a written instrument of transfer
and with such signature guarantees and evidence of authority of the Persons
signing the instrument of transfer as the Owner Trustee may reasonably require.
Promptly upon the receipt of such documents and receipt by the Owner Trustee of
the transferor's Trust Certificate, the Owner Trustee shall record the name of
such transferee as an Owner and its Ownership Percentage in the Trust
Certificate and shall register and issue and execute and deliver to such Owner a
Trust Certificate evidencing such Ownership Percentage. In the event a
transferor transfers only a portion of its beneficial interest in the Trust, the
Owner Trustee shall register and issue, to such transferor a new Trust
Certificate evidencing such transferor's new Ownership Percentage. Subsequent to
a transfer and upon the issuance of the new Trust Certificate or Trust
Certificates, the Owner Trustee shall cancel and destroy the Trust Certificate
surrendered to it in connection with such transfer. The Owner Trustee may treat
the Person in whose name any Trust Certificate is registered as the sole Owner
of the beneficial interest in the Trust evidenced by such Trust Certificate.
(c) As a condition precedent to any registration of
transfer, the Owner Trustee may require the payment of a sum sufficient to cover
the payment of any tax or taxes or other governmental charges required to be
paid in connection with such transfer.
3.03 Lost, Stolen, Mutilated or Destroyed Certificates. If (i)
any mutilated Trust Certificate is surrendered to the Owner Trustee, or (ii) the
Owner Trustee receives evidence to its satisfaction that any Trust Certificate
has been destroyed, lost or stolen, and upon proof of ownership satisfactory to
the Owner Trustee together with such security or indemnity as may be requested
by the Owner Trustee and the Depositor to save it harmless, the Owner Trustee
shall execute and deliver a new Trust Certificate for the same Ownership
Percentage as the Trust Certificate so mutilated, destroyed, lost or stolen, of
like tenor and bearing a different issue number, with such notations, if any, as
the Owner Trustee shall determine.
3.04 Limitation on Transfer of Ownership Rights. No transfer of
a beneficial interest in the Trust or a Trust Certificate shall be made to any
Person unless (i) such Person delivers to the Owner Trustee an accession
agreement substantially in the form of Exhibit B hereof, (ii) such Person has a
net worth as shown by its most recent audited financial statements of not less
than $10,000,000, and (iii) the Owner Trustee shall have received a written
opinion of counsel in form and substance satisfactory to the Owner Trustee
stating that such transfer is exempt from the 1933 Act and any applicable state
securities law. Further, no transfer of a beneficial interest in the Trust or
Trust Certificate or any rights or benefits with respect thereto (including the
right to receive distributions) shall be permitted unless the Owner Trustee
shall have received an opinion of counsel, to the effect that such transfer will
not cause the Trust to be treated for U.S. federal income tax purposes as an
association (or publicly-traded partnership) taxable as a corporation, and will
not adversely affect the federal income tax treatment of the Noteholders (other
than the holder of the Residual Notes) in any material respect.
3.05 Assignment of Right to Distributions. An Owner may assign
as collateral all or any part of its right to receive distributions hereunder,
but such assignment (in the absence of a permitted transfer) shall effect no
change in the ownership of the Trust.
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3.06 Transfer. Notwithstanding anything to the contrary herein,
no transfer of a beneficial interest in the Trust or in the Trust Certificate or
any rights or benefits with respect thereto (including the right to receive
distributions) shall be permitted unless the Owner Trustee shall have received,
at the expense of the transferring Owner, an opinion of counsel to the effect
that such transfer will not cause the Trust to be treated for U.S. federal
income tax purposes as an association (or publicly-traded partnership) taxable
as a corporation, and will not adversely affect the federal income tax treatment
of the Noteholders (other than the holder of the Residual Notes) in any material
respect.
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, retirement arrangements, individual retirement accounts or Xxxxx plans
subject to either Title I of the Employee Retirement Income Security Act of
1974, as amended, or Section 4975 of the Internal Revenue Code of 1986, as
amended, or (b) entities (including insurance company general accounts) whose
underlying assets include plan assets by reason of the investment by any such
plans, arrangements or accounts in such entities (a "Benefit Plan Investor").
Each transferee of a Trust Certificate shall be required to represent (a) that
it is not a Benefit Plan Investor and is not acquiring such Trust Certificate
with the assets of a Benefit Plan Investor and (b) that if such Trust
Certificate is subsequently deemed to be a plan asset it will dispose of such
Trust Certificate. Each Trust Certificate shall bear a legend referring to the
restrictions contained in this paragraph.
3.07 Federal Income Tax Allocations. In the event a Trust
Certificate is transferred in compliance with Section 3.06, net income of the
Trust for any period as determined for U.S. federal income tax purposes (and
each item of income, gain, loss and deduction entering into the computation
thereof) shall be allocated to the Owners, pro rata based upon their Ownership
Percentage.
ARTICLE IV
CONCERNING THE OWNERS
4.01 Action by Owners with Respect to Certain Matters.
With respect to the following matters, the Owner Trustee shall
not have the power to take any action without the prior written consent of the
Owners:
(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 or in connection with breaches of the
Basic Documents) 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 or in connection
with breaches of the Basic Documents);
(b) the election by the Trust to file an amendment
to the Trust Certificate;
(c) the amendment of the Indenture by a Supplemental
Indenture in circumstances where the consent of any Noteholder is required;
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(d) 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 interests of the
Noteholders;
(e) 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 Noteholders;
(f) the appointment pursuant to the Indenture of a
successor Indenture Trustee, or the consent to the assignment by the Indenture
Trustee of its obligations under the Indenture;
(g) the consent to the assignment by the Indenture
Trustee or the Servicer of their respective obligations under any of the Basic
Documents;
(h) except as provided in Article IX hereof,
dissolve, terminate or liquidate the Trust in whole or in part to the fullest
extent provided by applicable law;
(i) merge or consolidate the Trust with or into any
other entity, or convey or transfer all or substantially all of the Trust's
assets to any other entity;
(j) cause the Trust to incur, assume or guaranty any
indebtedness other than as set forth in this Agreement or the other Basic
Documents;
(k) do any act that conflicts with any other Basic
Documents;
(l) do any act that would make it impossible to
carry on the ordinary business of the Trust as described in Section 2.03 hereof;
(m) confess a judgment against the Trust;
(n) possess Trust assets, or assign the Trust's
right to property, for other than a Trust purpose;
(o) cause the Trust to lend any funds to any entity;
or
(p) change the Trust's purpose and powers from those
set forth in this Agreement.
4.02 Tax Treatment, Tax Elections and Other Tax Matters. It is
the intention of the parties hereto that the Trust shall not be treated for U.S.
federal income tax purposes as an association (or publicly-traded partnership)
taxable as a corporation. Neither the Depositor nor the Owner Trustee shall
cause the Trust to be treated as an association taxable as a corporation for
U.S. federal income tax purposes. It is the intention of the parties hereto that
the Trust shall be treated as a grantor trust or a disregarded entity for U.S.
federal income tax purposes. All provisions of this Agreement shall be construed
and the affairs of the Trust shall be conducted to achieve the aforementioned
treatment for U.S. federal income tax purposes, and the Noteholders shall agree
that all transactions contemplated by this Agreement will be reported on all
applicable tax returns consistently with the aforementioned treatment.
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4.03 Representations and Warranties of the Depositor. The
Depositor hereby represents and warrants to the Owner Trustee as follows:
(a) Upon the receipt of the Trust Property by the
Owner Trustee on behalf of the Trust, the Trust will have good title to the
Trust Property free and clear of any lien.
(b) The Trust is not, and will not be upon
conveyance of the Trust Property to the Owner Trustee on behalf of the Trust, an
"Investment Company" or under the "control" of an "Investment Company," as such
terms are defined in the Investment Company Act of 1940, as amended.
(c) This Agreement has been duly and validly
authorized, executed and delivered by, and constitutes a valid and binding
agreement of, the Depositor, enforceable in accordance with its terms.
ARTICLE V
INVESTMENT AND APPLICATION OF TRUST FUNDS
5.01 Investment of Trust Funds. Unless otherwise directed in
writing by the Owners, income with respect to and proceeds of the Trust Property
that are received by the Owner Trustee more than one day prior to a distribution
date shall be invested and reinvested by the Owner Trustee in Eligible
Investments. All such investments shall have a maturity date no later than the
Business Day preceding the next distribution date unless they are redeemable at
the option of the Owner Trustee prior to maturity. Interest earned from such
investment and reinvestment shall be credited to the Trust Property.
5.02 Application of Funds.
(a) Income with respect to and proceeds of Trust
Property held by the Owner Trustee on a distribution date and not pledged to the
Indenture Trustee shall be applied by the Owner Trustee on such distribution
date in the following order:
(i) first, pay any amounts due to the Owner
Trustee under this Agreement;
(ii) second, to pay any amounts then due to
any Person under the Basic Documents; and
(iii) third, to pay any other expenses of the
Trust.
(b) Income and proceeds with respect to the Trust
Property held by the Owner Trustee on a distribution date after the application
of funds pursuant to Section 5.02(a) shall be distributed on such distribution
date to the Owners, in proportion to their respective Ownership Percentages,
determined as of the close of business on the Business Day immediately preceding
such distribution date. All payments to be made under this Agreement by the
Owner Trustee shall be made only from the income and proceeds of the Trust
Property and only to the extent that the Owner Trustee has received such income
or proceeds free and clear from the lien of the Indenture.
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(c) With each distribution to an Owner pursuant to
Section 5.02(b) above, the Owner Trustee shall deliver a distribution date
statement setting forth, for the period since the preceding distribution date:
(i) income and proceeds received by the
Owner Trustee with respect to the Trust Property;
(ii) amounts paid to the Owner Trustee;
(iii) amounts paid by the Owner Trustee to any
Person pursuant to the Basic Documents; and
(iv) amounts paid for other expenses of the
Trust.
(d) In the event that any tax is imposed on the
Trust, such tax shall be charged against amounts otherwise distributable to the
Owners on a pro rata basis. The Owner Trustee is hereby authorized to retain
from amounts otherwise distributable to the Owners sufficient funds to pay or
provide for the payment of, and to actually pay, such taxes as are legally owed
by the Trust (but such authorization shall not prevent the Owner Trustee from
contesting any such tax in appropriate proceedings, and withholding payment of
such tax, if permitted by law, pending the outcome of such proceedings).
5.03 Method of Payment. All amounts payable to the Owners
pursuant to this Agreement shall be paid by the Owner Trustee to such Owner or a
nominee therefor by check payable to such Owner, mailed first class to the
address of such Owner appearing on the register maintained pursuant to Section
3.02 hereof, or by crediting the amount to be distributed to such Owner to an
account maintained with the Owner Trustee or by transferring such amount by wire
transfer in immediately available funds to a banking institution with bank wire
transfer facilities for the account of such Owner, as instructed in writing from
time to time by such Owner. The Owner Trustee may require an Owner to pay any
wire transfer fees incurred in connection with any wire transfer made to such
Owner.
5.04 No Segregation of Moneys; No Interest. Subject to Section
5.01, moneys received by the Owner Trustee hereunder need not be segregated in
any manner except to the extent required by law and may be deposited under such
general conditions as may be prescribed by law, and the Owner Trustee shall not
be liable for any interest thereon.
ARTICLE VI
ARTICLE VI AUTHORITY AND DUTIES OF THE TRUSTEE
6.01 General Authority. The Owner Trustee is authorized to take
all actions required or permitted to be taken by it pursuant to the terms of
this Agreement and the Basic Documents.
6.02 Specific Authority. The Owner Trustee is hereby authorized
and directed to execute and deliver, on behalf of the Trust, the Basic Documents
and each certificate or other document attached as an exhibit to or contemplated
by the Basic Documents.
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6.03 General Duties. It shall be the duty of the Owner Trustee
to discharge (or cause to be discharged) all of its responsibilities pursuant to
the terms of this Agreement and to administer the Trust in the interest of the
Owners.
6.04 Accounting and Reports to the Owners, the Internal Revenue
Service and Others. The fiscal year of the Trust shall end on each June 30. The
Depositor shall cause the Administrator to (i) maintain or cause to be
maintained the books of the Trust on a fiscal year basis on the accrual method
of accounting, (ii) deliver to each Owner, within 90 days after the end of each
Fiscal Year, or more often, as may be required by the Code and the regulations
thereunder, a copy of the annual financial statement of the Trust for such
Fiscal Year and a statement in such form and containing such information as may
be required by such regulations, and as is necessary and appropriate to enable
each Owner to prepare its federal and state income tax returns, (iii) prepare
(or cause to be prepared), and shall be solely responsible for the preparation
of, all federal, state and local tax and information returns and reports
required to be filed by or in respect of the Trust, (iv) sign such returns, or
any other information, statements or schedules in the manner required by law,
(v) file, on a timely basis, such returns and such of the above information, or
any other information, statements or schedules, as may be required under
applicable tax laws, and (vi) cause to be mailed to each Owner copies of all
such reports and tax returns of the Trust.
6.05 Signing of Returns and Periodic Filings. The Depositor
shall cause the Administrator to sign on behalf of the Trust the tax returns,
unless applicable law requires an Owner to sign such documents, in which case,
so long as the Depositor is an Owner and applicable law allows the Depositor to
sign any such document, the Depositor shall sign such document. At any time that
the Depositor is not an Owner, or is otherwise not allowed by law to sign any
such document, then the Owner required by law to sign such document shall sign.
The Depositor shall cause the Servicer to sign and file as and when due any
Periodic Filings required to be filed by the Trust.
6.06 Right to Receive Instructions. In the event that the Owner
Trustee is unable to decide between alternative courses of action, or is unsure
as to the application of any provision of this Agreement or any Basic Document,
or 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 or any Basic Document permits any determination by the Owner Trustee
or is silent or is incomplete as to the course of action that the Owner Trustee
is required to take with respect to a particular set of facts, the Owner Trustee
may give notice (in such form as shall be appropriate under the circumstances)
to the Depositor requesting instructions and, to the extent that the Owner
Trustee shall have acted or refrained from acting in good faith in accordance
with any instructions received from the Owners, the Owner Trustee shall not be
liable on account of such action or inaction to any Person. If the Owner Trustee
shall not have received appropriate instructions within ten days of such notice
(or within such shorter period of time as may be specified in such notice) the
Owner Trustee may, but shall be under no duty to, take or refrain from taking
such action, not inconsistent with this Agreement or the Basic Documents, as the
Owner Trustee shall deem to be in the best interests of the Owners, and the
Owner Trustee shall have no liability to any Person for such action or inaction.
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6.07 No Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or obligation to manage,
make any payment in respect of, register, record, sell, dispose of or otherwise
deal with the Trust Property, prepare or file any tax returns, reports, or other
tax filings, qualification to do business or securities law filings or reports,
or to otherwise take or refrain from taking any action under, or in connection
with, any document contemplated hereby to which the Owner Trustee is a party,
except as expressly provided by the terms of this Agreement and no implied
duties or obligations shall be read into this Agreement against the Owner
Trustee. The Owner 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 Property that result from claims against the Owner Trustee
personally that are not related to the ownership or the administration of the
Trust Property or the transactions contemplated by the Basic Documents.
6.08 No Action Except Under Specified Documents or Instructions.
The Owner Trustee shall not manage, control, use, sell, dispose of or otherwise
deal with any part of the Trust Property except (i) in accordance with the
powers granted to and the authority conferred upon the Owner Trustee pursuant to
this Agreement, and (ii) in accordance with instructions delivered to the Owner
Trustee pursuant to Section 6.06 hereof.
ARTICLE VII
ARTICLE VII CONCERNING THE TRUSTEE
7.01 Acceptance of Trusts and Duties. The Owner Trustee accepts
the trusts hereby created and agrees to perform its duties hereunder with
respect to the same but only upon the terms of this Agreement. The Owner Trustee
shall not be personally liable under any circumstances, except (i) for its own
willful misconduct or gross negligence, (ii) for liabilities arising from the
failure by the Owner Trustee to perform obligations expressly undertaken by it
in the last sentence of Section 6.07 hereof, or (iii) for taxes, fees or other
charges on, based on or measured by any fees, commissions or compensation
received by the Owner Trustee in connection with any of the transactions
contemplated by this Agreement or the Basic Documents. In particular, but not by
way of limitation:
(a) The Owner Trustee shall not be personally liable
for any error of judgment made in good faith by an Authorized Officer of the
Owner Trustee;
(b) The Owner Trustee shall not be personally liable
with respect to any action taken or omitted to be taken by the Owner Trustee in
good faith in accordance with the instructions of the Owner;
(c) No provision of this Agreement shall require the
Owner Trustee to expend or risk its personal funds or otherwise incur any
financial liability in the performance of any of its rights or powers hereunder,
if the Owner 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 circumstance shall the Owner Trustee be
personally liable for any indebtedness of the Trust under any of the Basic
Documents; and
(e) The Owner Trustee shall not be personally
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 Collateral, or for or in
respect of the validity or sufficiency of the Basic Documents.
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7.02 Furnishing of Documents. The Owner Trustee shall furnish to
the Owners, promptly upon receipt thereof, duplicates or copies of all material
reports, notices, requests, demands, certificates, financial statements and any
other instruments furnished to the Owner Trustee hereunder (other than documents
originated by or otherwise furnished to the Owners).
7.03 Reliance; Advice of Counsel.
(a) The Owner Trustee shall incur no liability to
anyone in acting upon any signature, instrument, notice, resolution, request,
consent, order, certificate, report, opinion, bond or other document or paper
believed by it to be genuine and believed by it to be signed by the proper party
or parties. The Owner 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 manner of
ascertainment of which is not specifically prescribed herein, the Owner Trustee
may for all purposes hereof rely on a certificate, signed by the president or
any vice president or by the treasurer or any assistant treasurer or the
secretary or any assistant secretary of the relevant party, as to such fact or
matter, and such certificate shall constitute full protection to the Owner
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 any of the
Basic Documents, the Owner Trustee (i) may act directly or, at the expense of
the Trust, through agents or attorneys pursuant to agreements entered into with
any of them, and the Owner Trustee shall not be liable for the default or
misconduct of such agents or attorneys if such agents or attorneys shall have
been selected by the Owner Trustee with reasonable care; and (ii) may, at the
expense of the Trust, consult with counsel, accountants and other skilled
persons to be selected with reasonable care and employed by it, and the Owner
Trustee shall not be liable for anything done, suffered or omitted in good faith
by it in accordance with the advice or opinion of any such counsel, accountants
or other skilled persons.
7.04 Not Acting in Individual Capacity. Except as
expressly provided in this Article VII, in accepting the trusts hereby created
the Owner Trustee acts solely as trustee hereunder and not in its individual
capacity, and all Persons having any claim against the Owner Trustee by reason
of the transactions contemplated by this Agreement or the Basic Documents shall
look only to the Trust Property for payment or satisfaction thereof.
ARTICLE VIII COMPENSATION OF TRUSTEE
8.01 Owner Trustee's Fees and Expenses. The Owner Trustee shall
receive compensation from the Owners for its services hereunder as set forth in
a separate fee arrangement between the Owner Trustee and the Depositor. The
Owner Trustee shall be entitled to be reimbursed by the Owners for its
reasonable expenses hereunder, including, without limitation, the reasonable
compensation, expenses and disbursements of such agents, representatives,
experts and counsel as the Owner Trustee may employ in connection with the
exercise and performance of its rights and duties under this Agreement and the
Basic Documents.
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8.02 Indemnification. To the fullest extent permitted by
applicable law, the Owners shall be jointly and severally liable for, and hereby
agree to indemnify the Owner Trustee (in its individual and trustee capacities)
and its successors, assigns, agents and servants (collectively, the "Indemnified
Persons") from and against, any and all liabilities, obligations, losses,
damages, taxes (other than taxes incurred as the result of the payment of fees
and expenses pursuant to Section 8.01 hereof), claims, actions, suits, costs,
expenses and disbursements (including reasonable legal fees and expenses) of any
kind and nature whatsoever (collectively, "Expenses") that may be imposed on,
incurred by or asserted at any time against the Indemnified Persons (whether or
not indemnified against by other parties) in any way relating to or arising out
of this Agreement, any Basic Document, the administration of the Trust Property
or the action or inaction of the Owner Trustee hereunder, except only that the
Owners shall not be required to indemnify the Owner Trustee for Expenses arising
or resulting from any of the matters described in the second sentence of Section
7.01. To the fullest extent permitted by law, Expenses to be incurred by an
Indemnified Person shall, from time to time, be advanced by, or on behalf of,
the Owners prior to the final disposition of any matter upon receipt by the
Owners of an undertaking by, or on behalf of, such Indemnified Person to repay
such amount if it shall be determined that the Indemnified Person is not
entitled to be indemnified under this Agreement. The obligations of the Owners
pursuant to this Section 8.02 shall be borne (as between the Owners inter se) in
proportion to their respective Ownership Percentages. The indemnities contained
in this Section 8.02 shall survive the resignation or removal of the Owner
Trustee or the termination of this Agreement. The indemnities contained in this
Section 8.02 extend only to the Owner Trustee in its individual capacity and
shall not be construed as indemnities of the Trust Property.
8.03 Payments to the Owner Trustee. Any amounts paid to the
Owner Trustee from the Trust Property pursuant to this Article VIII shall be
deemed not to be part of the Trust Property immediately after such payment.
ARTICLE IX
ARTICLE IX TERMINATION OF TRUST
9.01 Termination of Trust.
(a) The Trust shall dissolve and the Trust Property
shall, subject to compliance with Section 3808 of the Statutory Trust Act, be
distributed to the Owners in accordance with their respective Ownership
Percentages upon the sale or other final disposition by the Owner Trustee of the
Trust Property and the final distribution by the Owner Trustee of all moneys or
other property or proceeds of the Trust Property in accordance with the terms of
this Agreement and the Basic Documents. Upon the dissolution of the Trust, after
paying or making reasonable provision for the payment of all liabilities of the
Trust in accordance with applicable law, the Owner Trustee shall file a
certificate of cancellation with the Delaware Secretary of State and, thereupon,
the Trust shall terminate and this Agreement (other than Article VIII) shall be
of no further force or effect.
12
(b) The bankruptcy, death or incapacity of any Owner
shall not operate to terminate this Agreement, nor entitle such Owner'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 the Trust Property, nor
otherwise affect the rights, obligations and liabilities of the parties hereto.
9.02 No Termination by Depositor or Owners. Except as provided
in Section 9.01 hereof, neither the Depositor nor the Owners shall be entitled
to terminate or revoke the Trust established hereunder.
ARTICLE X
ARTICLE X SUCCESSOR TRUSTEES AND ADDITIONAL TRUSTEES
10.01 Resignation of Owner Trustee; Appointment of Successor.
(a) The Owner Trustee may resign at any time without
cause by giving at least 60 days' prior written notice to the Owners, such
resignation to be effective upon the acceptance of appointment by a successor
owner trustee under Section 10.01(b) below. In addition, the Owners may at any
time remove the Owner Trustee without cause by an instrument in writing
delivered to the Owner Trustee, such removal to be effective upon the acceptance
of appointment by a successor owner trustee under Section 10.01(b) below. In
case of the resignation or removal of the Owner Trustee, the Owners may appoint
a successor owner trustee by an instrument signed by the Owners. If a successor
owner trustee shall not have been appointed within 30 days after the giving of
written notice of such resignation or the delivery of the written instrument
with respect to such removal, the Owner Trustee or the Owners may apply to any
court of competent jurisdiction to appoint a successor owner trustee to act
until such time, if any, as a successor owner trustee shall have been appointed
as provided above. Any successor owner trustee so appointed by such court shall
immediately and without further act be superseded by any successor owner trustee
appointed as above provided within one year from the date of the appointment by
such court.
(b) Any successor owner trustee, however appointed,
shall execute and deliver to the predecessor Owner Trustee an instrument
accepting such appointment, and thereupon such successor owner trustee, without
further act, shall become vested with all the estates, properties, rights,
powers, duties and trust of the predecessor Owner Trustee in the trusts
hereunder with like effect as if originally named the Owner Trustee herein; but
nevertheless, upon the written request of such successor owner trustee and
payment of all amounts due and owing to it, such predecessor Owner Trustee shall
execute and deliver an instrument transferring to such successor owner trustee,
upon the trusts herein expressed, all the estates, properties, rights, powers,
duties and trusts of such predecessor Owner Trustee, and such predecessor Owner
Trustee shall duly assign, transfer, deliver and pay over to such successor
owner trustee all moneys or other property then held or subsequently received by
such predecessor Owner Trustee upon the trusts herein expressed.
13
(c) The Owner Trustee shall at all times be a
corporation or association (i) meeting the requirements of Section 3807(a) of
the Delaware Statutory Trust Act; (ii) being subject to supervision or
examination by federal or state authorities; (iii) having a combined capital and
surplus of at least $100,000,000, and (iv) having (or having a parent which has)
a rating of at least investment grade by the Rating Agencies. If the Owner
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 Owner
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 Owner
Trustee shall cease to be eligible in accordance with the provisions of this
Section, the Owner Trustee shall resign immediately in the manner and with the
effect specified in this Section.
(d) Any person into which the Owner Trustee may be
merged or converted or with which it may be consolidated, or any person
resulting from any merger, conversion or consolidation to which the Owner
Trustee shall be a party, or any person to which substantially all the corporate
trust business of the Owner Trustee may be transferred, shall, subject to the
terms of Section 10.01(c) hereof, be the Owner Trustee under this Agreement
without further act.
10.02 Appointment of Additional Owner Trustees. At any time or
times for the purpose of meeting any legal requirements of any jurisdiction in
which any part of the Trust Property may at the time be located, the Owner
Trustee, by an instrument in writing, may appoint one or more individuals or
corporations to act as separate trustee or separate trustees of all or any part
of the Trust Property to the full extent that local law makes it necessary or
appropriate for such separate trustee or separate trustees to act alone.
ARTICLE XI
ARTICLE XI MISCELLANEOUS
11.01 Supplements and Amendments.
(a) Subject to (b) and (c) below, this Agreement may
be amended only by a written instrument signed by the Owner Trustee and all of
the Owners at the time of such amendment; provided, however, that if, in the
opinion of the Owner Trustee, any instrument required to be so executed
adversely affects any right, duty or liability of, or immunity or indemnity in
favor of, the Owner Trustee under this Agreement or any of the documents
contemplated hereby to which the Owner Trustee is a party, or would cause or
result in any conflict with or breach of any terms, conditions or provisions of,
or default under, the charter documents or by-laws of the Owner Trustee or any
document contemplated hereby to which the Owner Trustee is a party, the Owner
Trustee may in its sole discretion decline to execute such instrument.
(b) This Agreement may be amended by the Depositor
and the Owner Trustee without the consent of any of the Noteholders or the
Owners, 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 Owners; 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 Owners.
14
(c) This Agreement may also be amended from time to
time by the Depositor and the Owner Trustee (i) with the consent of the
Noteholders owning Notes evidencing not less than a majority of the aggregate
outstanding principal balance of the Notes and (ii) with the consent of the
Owners of Certificates evidencing not less than a majority of the aggregate
Ownership Percentage, 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 Owners; 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 Owners or (b) reduce the aforesaid
percentage of the aggregate outstanding amount of the Notes and the Ownership
Percentage of Certificates required to consent to any such amendment, without
the consent of all the outstanding Noteholders and Owners.
(d) Promptly after the execution of any such
amendment or consent, the Owner Trustee shall furnish written notification of
the substance of such amendment or consent to each Owner and the Indenture
Trustee.
(e) It shall not be necessary for the consent of the
Owners or the Noteholders, as the case may be, 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 Owners provided for in this
Agreement or in any other Basic Document) and of evidencing the authorization of
the execution thereof by Owners shall be subject to such reasonable requirements
as the Owner Trustee may prescribe.
(f) Prior to the execution of any amendment to this
Agreement, the Owner 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 Owner Trustee may, but shall not be obligated
to, enter into any such amendment which affects the Owner Trustee's own rights,
duties or immunities under this Agreement or otherwise.
11.02 No Legal Title to Trust Property in Owner. The Owners
shall not have legal title to any part of the Trust Property and shall only have
an undivided beneficial interest therein. No transfer, by operation of law or
otherwise, of any right, title and interest of the Owners in and to their
undivided beneficial interest in the Trust Property hereunder shall operate to
terminate this Agreement or the trusts hereunder or entitle any successor
transferee to an accounting or to the transfer to it of legal title to any part
of the Trust Property.
11.03 Pledge of Collateral by Owner Trustee is Binding. The
pledge of any Trust Property to any Person by the Owner Trustee made under any
Basic Document and pursuant to the terms of this Agreement shall bind the Owners
and shall be effective to transfer or convey the rights of the Owner Trustee and
the Owners in and to such Trust Property to the extent set forth in such Basic
Document. No purchaser or other grantee shall be required to inquire as to the
authorization, necessity, expediency or regularity of such pledge or as to the
application of any proceeds with respect thereto by the Owner Trustee.
15
11.04 Limitations on Rights of Others. Nothing in this
Agreement, whether express or implied, shall be construed to give to any Person
other than the Owner Trustee and the Owners any legal or equitable right, remedy
or claim in the Trust Property or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
11.05 Notices. Unless otherwise expressly specified or permitted
by the terms hereof, all notices shall be in writing and delivered by hand or
mailed by certified mail, postage prepaid, if to the Owner Trustee, addressed to
Wachovia Bank of Delaware, National Association, Xxx Xxxxxx Xxxxxx, Xxxxx 000,
000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 or to such other address as the
Owner Trustee may have set forth in a written notice to the Owners; and if to an
Owner, addressed to it at the address set forth for such Owner in the register
maintained by the Owner Trustee. Whenever any notice in writing is required to
be given by the Owner Trustee hereunder, such notice shall be deemed given and
such requirement satisfied 72 hours after such notice is mailed by certified
mail, postage prepaid, addressed as provided above; any notice given by an Owner
to the Owner Trustee shall be effective upon receipt by an Authorized Officer of
the Owner Trustee.
11.06 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.
11.07 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.
11.08 Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the Owner
Trustee and its successors and assigns and each Owner and its successors and
permitted assigns, all as herein provided. Any request, notice, direction,
consent, waiver or other instrument or action by an Owner shall bind the
successors and assigns of such Owner.
11.09 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.
11.10 Governing Law. This Agreement shall in all respects be
governed by, and construed in accordance with, the laws of the State of Delaware
(excluding conflict of law rules), including all matters of construction,
validity and performance. Sections 3540 and 3561 of Title 12 of the Delaware
Code shall not apply to the Trust.
11.11 No Petition. The Depositor will not, prior to the date
which is one year and one day after the termination of the Indenture, institute
against the Trust any bankruptcy proceedings under any U.S. 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.
16
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.
PHEAA STUDENT LOAN FOUNDATION, INC.,
as Depositor
By:
--------------------------------
Name:
Title:
Wachovia Bank of Delaware, National Association,
as Owner Trustee
By:
--------------------------------
Name:
Title:
17
EXHIBIT A
FORM OF TRUST CERTIFICATE
THE BENEFICIAL INTEREST IN THE TRUST REPRESENTED BY THIS TRUST
CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR ANY STATE SECURITIES LAW, AND MAY NOT BE DIRECTLY OR INDIRECTLY
OFFERED OR SOLD OR OTHERWISE DISPOSED OF (INCLUDING PLEDGED) BY THE HOLDER
HEREOF UNLESS IN THE OPINION OF COUNSEL SATISFACTORY TO THE TRUSTEE, SUCH
TRANSACTION IS EXEMPT FROM REGISTRATION UNDER THE ACT AND STATE SECURITIES LAWS.
THE TRANSFER OF THIS TRUST CERTIFICATE WILL NOT BE EFFECTIVE UNLESS THE
TRANSFEREE HAS DELIVERED TO THE TRUSTEE A LETTER IN THE FORM REQUIRED BY SECTION
3.04 OF THE TRUST AGREEMENT AND THE TRANSFEREE PROVIDES THE TRUSTEE WITH
EVIDENCE SATISFACTORY TO THE TRUSTEE DEMONSTRATING THE TRANSFEREE'S COMPLIANCE
WITH THE NET WORTH REQUIREMENTS OF SECTION 3.04 OF THE TRUST AGREEMENT.
TRUST CERTIFICATE
UNDER TRUST AGREEMENT DATED
AS OF ___________________
Certificate No._________________
Wachovia Bank of Delaware, National Association, as owner
trustee (the "Trustee") under a trust agreement dated as of January 15, 2003,
with PHEAA Student Loan Foundation, Inc. (the "Depositor"), on behalf of the
holders from time to time (each an "Owner") of beneficial interests in the trust
created thereby (the "Trust Agreement"), hereby certifies that
_____________________ is the owner of a ____% undivided beneficial interest in
the Trust Property provided for and created by the Trust Agreement. This Trust
Certificate is issued pursuant to and is entitled to the benefits of the Trust
Agreement, and each Owner by acceptance hereof shall be bound by the terms of
the Trust Agreement. Reference is hereby made to the Trust Agreement for a
statement of the rights and obligations of the Owner hereof. The Trustee may
treat the person shown on the register maintained by the Trustee pursuant to
Section 3.02 of the Trust Agreement as the absolute Owner hereof for all
purposes.
Capitalized terms used herein without definition have the
meanings ascribed to them in or by reference in the Trust Agreement.
Transfer of this Trust Certificate is subject to certain
restrictions and limitations set forth in the Trust Agreement. In the manner
more fully set forth in, and as limited by, the Trust Agreement, this Trust
Certificate may be transferred upon the books of the Trustee by the registered
Owner in person or by his attorney duly authorized in writing upon surrender of
this Trust Certificate to the Trustee accompanied by a written instrument of
transfer and with such signature guarantees and evidence of authority of the
Persons signing the instrument of transfer as the Trustee may reasonably
require, whereupon the Trustee shall issue in the name of the transferee a Trust
Certificate or Trust Certificates evidencing the amount and extent of interest
of the transferee.
A-1
The Owner hereof, by its acceptance of this Trust Certificate,
warrants and represents to the Trustee and to the Owners of the other Trust
Certificates issued under the Trust Agreement and agrees not to transfer this
Trust Certificate except in accordance with the Trust Agreement.
This Trust Certificate and the Trust Agreement shall in all
respects be governed by, and construed in accordance with, the laws of the State
of Delaware (excluding conflict of law rules).
IN WITNESS WHEREOF, the Trustee, pursuant to the Trust
Agreement, has caused this Trust Certificate to be issued as of the date hereof.
Wachovia Bank of Delaware, National Association,
as Owner Trustee
By:
--------------------------------
Name
--------------------------
Title
--------------------------
A-2
EXHIBIT B
Certificate of Trust
FORM OF ACCESSION AGREEMENT
_______________, 20__
[Name and Address
of Trustee]
Dear Sirs:
We refer to the Trust Agreement, dated as of January 15, 2003
(the "Agreement"), between PHEAA Student Loan Foundation, Inc. (the "Company"),
and Wachovia Bank of Delaware, National Association, a Delaware banking
corporation (in its capacity as trustee thereunder, the "Trustee"). We propose
to purchase a beneficial interest in PHEAA Student Loan Trust I, a Delaware
trust (the "Trust") formed pursuant to the Trust Agreement. Capitalized terms
used herein without definition have the meanings given them in the Trust
Agreement.
1. We hereby confirm that at the date hereof our net worth
exceeds the minimum set forth in Section 3.04 of the Trust Agreement.
2. We hereby further agree, as provided and to the extent
specified in Section 2.06 of the Trust Agreement, to be jointly and severally
liable with any other holders of trust certificates with respect to the Trust
for all fees, expenses, taxes, indemnity payments and other liabilities of the
Trust in accordance with the terms of the Trust Agreement, including (except as
otherwise provided in the Trust Agreement) those incurred by Wachovia Bank of
Delaware in its capacity as Trustee in the administration of the Trust
thereunder, to the extent such fees, expenses, taxes, indemnity payments and
other liabilities of the Trust or the Trustee, as the case may be, with respect
to the Trust, are not paid out of the Trust Property; provided, however, that we
will be liable only for obligations of the Trust arising on and after the date
hereof.
3. We understand that our Trust Certificate is not being
registered under the Securities Act of 1933, as amended (the "1933 Act"), or any
state securities or "blue sky" law and is being sold to us in a transaction that
is exempt from the registration requirements of the 1933 Act and any applicable
state laws.
4. We have sufficient knowledge and experience in financial
and business matters as to be capable of evaluating the merits and risks of an
investment in the Trust, we are able to bear the economic risk of investment in
the Trust and we are an accredited investor as defined in Regulation D under the
1933 Act.
5. We are acquiring our Trust Certificate for our own
account and not for the benefit of any other person and not with a view to any
distribution of our beneficial interest in the Trust subject, nevertheless, to
the understanding that disposition of our property shall at all times be and
remain within our control.
B-1
6. We agree that our beneficial interest in the Trust must
be held indefinitely by us unless subsequently registered under the 1933 Act and
any applicable state securities or "blue sky" law or unless exemptions from the
registration requirements of the 1933 Act and applicable state laws are
available.
7. We agree that in the event that at some future time we
wish to dispose of or exchange any of our beneficial interest in the Trust, we
will not transfer or exchange any of our beneficial interest in the Trust
unless: (A) (1) if such transfer or exchange is a sale, the sale price is at
least $250,000, (2) the transfer or exchange is made to an Eligible Purchaser
(as defined below), (3) a letter to substantially the same effect as this letter
is executed promptly by such Eligible Purchaser or by an Eligible Dealer (as
defined below) on behalf of such Eligible Purchaser, (4) all offers or
solicitations in connection with the sale (if a sale), whether made directly or
through any agent acting on our behalf, are limited only to Eligible Purchasers
and are not made by means of any form of general solicitation or general
advertising whatsoever, and (5) the Trustee has received an opinion of counsel
to the effect that such transfer will not cause the Trust to be treated for U.S.
federal income tax purposes as an association (or publicly traded partnership)
taxable as a corporation, and will not adversely affect the federal income tax
treatment of the Noteholders in any material respect; or
(B) our beneficial interest in the Trust is sold in
a transaction that does not require registration under the 1933 Act and any
applicable State "blue sky" law. "Eligible Purchaser" means an Eligible Dealer
or a corporation, partnership or other entity which we have reasonable grounds
to believe and do believe can make representations with respect to itself to
substantially the same effect as the representations set forth herein. "Eligible
Dealer" means any corporation or other entity having as a principal business
acting as a broker or dealer in securities.
8. We understand that our Trust Certificate bears a legend
to substantially the following effect: THE BENEFICIAL INTEREST IN THE TRUST
REPRESENTED BY THIS TRUST CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAW, AND
MAY NOT BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR OTHERWISE DISPOSED OF
(INCLUDING PLEDGED) BY THE HOLDER HEREOF UNLESS IN THE OPINION OF COUNSEL
SATISFACTORY TO THE TRUSTEE SUCH TRANSACTION IS EXEMPT FROM REGISTRATION UNDER
THE ACT AND STATE SECURITIES LAWS. THE TRANSFER OF THIS TRUST CERTIFICATE WILL
NOT BE EFFECTIVE UNLESS THE TRANSFEREE HAS DELIVERED TO THE TRUSTEE A LETTER IN
THE FORM REQUIRED BY SECTION 3.04 OF THE TRUST AGREEMENT AND THE TRANSFEREE
PROVIDES THE TRUSTEE WITH EVIDENCE SATISFACTORY TO THE TRUSTEE DEMONSTRATING THE
TRANSFEREE'S COMPLIANCE WITH THE NET WORTH REQUIREMENTS OF SECTION 3.04 OF THE
TRUST AGREEMENT.
9. We are not (i) an employee benefit plan, retirement
arrangement, individual retirement account or Xxxxx plan subject to either Title
I of the Employee Retirement Income Security Act of 1974, as amended, of Section
4975 of the Code, or (ii) an entity (including an insurance company general
account) whose underlying assets include plan assets by reason of the investment
by such plans, arrangements or accounts in any such entity.
B-2
10. We are a U.S. Person as defined in Section 7701(a)(30)
of the Code.
11. We agree to be bound by all the terms and conditions of
our Trust Certificate and the Trust Agreement.
Very truly yours,
------------------------------------
[Name of Purchaser]
By:
--------------------------------
Name
---------------------------
Title
---------------------------
Accepted and Acknowledged this ___ day of ____________, 200_.
[________________________________]
as Trustee
By:
-------------------------------
Name
--------------------------
Title
--------------------------
B-3
