EXHIBIT 10.16
ELIGIBLE LENDER TRUST AGREEMENT
This Trust Agreement (the "Trust Agreement") is entered into as of April 1,
2003 (the "Effective Date"), between EDUCATION FUNDING CAPITAL TRUST - II
("EFCT-II") and FIFTH THIRD BANK, as eligible lender trustee on behalf of
EFCT-II (the "Eligible Lender Trustee").
WHEREAS, the Eligible Lender Trustee is an "eligible lender" under the
Higher Education Act;
WHEREAS, EFCT-II is not an "eligible lender" under the Higher Education Act
and desires the Eligible Lender Trustee to hold all right, title and interest in
and to certain Eligible Loans in trust for the benefit of EFCT-II;
WHEREAS, EFCT-II may from time to time determine to finance the making,
acquisition and/or consolidation of Eligible Loans to be held in trust by the
Eligible Lender Trustee on behalf of EFCT-II; and
WHEREAS, in order to consummate the transactions contemplated by any Loan
Program or any Financing Transaction, including without limitation any Financing
Transaction Documents, any Federal Loan Program Documents, any Consumer Loan
Documents or any Student Loan Sale Purchase Agreement, the parties hereto desire
and intend to create the trusts set forth herein and the Eligible Lender Trustee
agrees to be charged with and accept this trust and duties set forth in this
Trust Agreement.
NOW, THEREFORE, for and in consideration of the mutual covenants contained
herein the parties hereto hereby agree as follows:
ARTICLE I
Creation of Trust for Benefit of EFCT-II;
Authority to Enter Into and
Execute Documents; Acceptance of Trust
Section 1.1. Purpose. The trust created by Article I of this Trust
Agreement is formed, entered into and intended by EFCT-II and the Eligible
Lender Trustee to create a trust for the purpose of (a) the Eligible Lender
Trustee to hold all right, title and interest to Eligible Loans for the benefit
of EFCT-II (b) the Eligible Lender Trustee to enter into, and comply with, the
terms of any agreement, document or certificate required under any Student Loan
Sale Purchase Agreement, any Loan Program or any Financing Transaction relating
to such Eligible Loans and (c) the Eligible Lender Trustee to comply with the
requirements of the Higher Education Act and/or the Public Health Services Act,
if applicable.
Section 1.2. Creation and Acceptance of Trust for the Benefit of EFCT-II.
EFCT-II may from time to time cause title to Eligible Loans to be conveyed to
the Eligible Lender Trustee; which Eligible Loans shall be held, administered
and pledged and the proceeds thereof distributed by the Eligible Lender Trustee
for the benefit of EFCT-II as herein set forth. At the request of EFCT-II
hereunder, the Eligible Lender Trustee hereby agrees to accept and hold title to
such Eligible Loans without liability or responsibility at acceptance for the
condition or validity of such right, title and interest, in trust, upon the
trusts hereinafter set forth for the use and benefit of EFCT-II.
Section 1.3. Authority to Enter Into and Execute Documents and Transfer and
Accept Eligible Loans.
(a) EFCT-II hereby authorizes and directs the Eligible Lender Trustee to
enter into, execute and deliver any and all agreements, documents and
certificates which may be required in connection with performing its duties and
obligations with respect to Eligible Loans held by the Eligible Lender Trustee
on behalf of EFCT-II pursuant to this Trust Agreement.
(b) EFCT-II hereby authorizes and directs the Eligible Lender Trustee to
(i) accept from time to time as directed by EFCT-II the transfer of all right,
title and interest in the Eligible Loans held by the Seller to the Eligible
Lender Trustee on behalf of EFCT-II pursuant to the terms of the applicable
Student Loan Sale Purchase Agreement, (ii) transfer all the right, title and
interest in certain Eligible Loans held by the Eligible Lender Trustee on behalf
of EFCT-II to the Seller from time to time as directed by EFCT-II because of the
repurchase of such Eligible Loans pursuant to the applicable Student Loan Sale
Purchase Agreement; and (iii) enter into, execute and deliver, from time to time
as EFCT-II may request, any and all agreements, documents or certificates which
may be required in connection with any Student Loan Sale Purchase Agreement or
any Loan Program, including without limitation Financing Transaction Documents,
Federal Loan Program Documents and Consumer Education Loan Documents, with
respect to the Eligible Loans held on behalf of EFCT-II under this Trust
Agreement.
Section 1.4. Duties of the Eligible Lender Trustee. The Eligible Lender
Trustee, by the execution hereof, covenants, represents and agrees that:
(a) it shall accept and hold as herein set forth all such right, title
and interest to the Eligible Loans that are transferred and assigned to it at
the request of EFCT-II or that are originated and made by it and in its name on
behalf of EFCT-II pursuant to this Trust Agreement;
(b) it is and shall be an "eligible lender" as defined in 20 U.S.C.
Section 1085 (d) under the Higher Education Act;
(c) it shall enter into and maintain a Contract of Guarantee with each
Guarantor where it acts on behalf of EFCT-II;
(d) if requested by EFCT-II (with respect to Eligible Loans held on
behalf of EFCT-II under this Trust Agreement) in a reasonably detailed writing
that sets forth sufficient information and instructions, it shall execute,
deliver and perform Student Loan Sale Purchase Agreements, Federal
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Loan Program Documents, Consumer Education Loan Documents, Servicing Agreements,
Financing Transaction Documents, and all other agreements, documents or
certificates required under such Student Loan Sale Purchase Agreements, any Loan
Program, Servicing Agreement or Financing Transaction, and any other agreements,
instruments, or documents relating, directly or indirectly, to the making,
financing, acquisition or consolidation of Eligible Loans or the servicing,
administration, sale, exchange, assignment or transfer of Eligible Loans,
including without limitation the acceptance of the transfer of all right, title
and interest in the Eligible Loans held by Seller to the Eligible Lender Trustee
on behalf of EFCT-II;
(e) it shall acquire, sell, exchange or otherwise deal with such Eligible
Loans in accordance with the Student Loan Sale Purchase Agreements and the
applicable Loan Program, Servicing Agreement or Financing Transaction;
(f) it shall enter into, and thereafter comply with the terms thereof,
any agreement or other document relating to any Financing Transaction, and take
such actions as are necessary and reasonably requested to convey, transfer,
assign, pledge and xxxxx x xxxx on and a security interest in all of its right,
title and interest in and to the Eligible Loans in accordance with the
applicable Financing Transaction;
(g) it shall take such actions, at the request of EFCT-II as are
necessary or appropriate in order for EFCT-II to obtain the full value and
benefits of the Eligible Loans, the Student Loan Sale Purchase Agreements and
the Loan Programs, Servicing Agreements, Financing Transactions or other
agreements, instruments or documents related thereto, with respect to the
Eligible Loans held on behalf of EFCT-II under this Trust Agreement;
(h) it shall hold all data, materials and information pertaining to the
Eligible Loans confidential, and it agrees not to use such data, materials or
information for any purpose other than for the limited purpose of performing its
obligations under this Trust Agreement; and
(i) following the discharge or other termination of any Financing
Transaction to which EFCT-II is a party, it shall (i) continue to hold all
right, title and interest in and to the Eligible Loans relating to such
Financing Transaction for the benefit of EFCT-II pursuant to the terms and
conditions of this Trust Agreement until otherwise directed by EFCT-II and (ii)
shall execute such agreements and documents as requested by EFCT-II providing
for the administration of and receipt by EFCT-II of the cash flows and other
interests in such Eligible Loans.
Section 1.5. Duties of EFCT-II. EFCT-II, by the execution hereof,
covenants, represents and agrees that:
(a) it shall accept, hold and maintain the beneficial interest in each
Eligible Loan free of any claims, liens or encumbrances, except the rights of
the Eligible Lender Trustee and any trustee or other secured party under an
indenture of trust under which the Eligible Loans have been financed;
(b) it shall promptly take all necessary actions to perform its
obligations hereunder and to support the Eligible Lender Trustee, in the prompt
and full performance of its obligations hereunder;
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(c) it shall be responsible for compliance with all applicable provisions
of the Xxxxx-Xxxxx Bliley Act of 1999; and
(d) it shall notify the Eligible Lender Trustee of any material default
under the Servicing Agreement promptly upon becoming aware of such default.
Section 1.6. Acceptance of Duties. The Eligible Lender Trustee accepts the
trusts hereby created and agrees to perform the duties and only the duties
specifically set forth in this Trust Agreement, and no implied covenants or
obligations shall be read into the trust created hereby against the Eligible
Lender Trustee. The Eligible Lender Trustee shall not be answerable or
accountable under any circumstances except for its gross negligence or willful
misconduct.
Section 1.7. Reliance on Certain Documents, Other Persons. The Eligible
Lender Trustee shall not incur any liability 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. In the
administration of its duties hereunder, the Eligible Lender Trustee may execute
any of the trusts or powers hereof and perform its powers and duties hereunder
directly or through other agents or attorneys and may, at the expense of EFCT-II
seek advice of counsel, accountants and other skilled persons to be selected and
employed by it, and the Eligible Lender 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.
Section 1.8. Security for Action. No provision hereof shall require the
Eligible Lender Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
Section 1.9. Capacity. In accepting the trusts hereby created, the Eligible
Lender Trustee acts solely as trustee hereunder and not in its individual
capacity.
Section 1.10. Compensation. EFCT-II shall pay to the Eligible Lender
Trustee from time to time reasonable compensation for all services rendered by
it hereunder with respect to Eligible Loans held on behalf of EFCT-II under this
Trust Agreement, and also all of its reasonable expenses, charges, and other
disbursements and those of its attorneys, agents, and employees incurred in and
about the administration and execution of the trust hereby created with respect
to Eligible Loans held on behalf of EFCT-II under this Trust Agreement.
Section 1.11. Qualification. The Eligible Lender Trustee, including any
successor, shall at all times (a) be a trust company or bank having the powers
of a trust company within the state in which it is located, (b) be an "eligible
lender" as defined in 20 U.S.C. Section 1085(d) under the Higher Education Act
of 1965, as amended, (c) subject to obtaining the required authorization from
the
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Secretary of Health and Human Services, qualify as a lender under the HEAL
Program and (d) have entered into, and maintain in force, a Contract of
Guarantee with each Guarantor.
Section 1.12. Successors. (a) The Eligible Lender Trustee or any successor
thereto may resign at any time without cause by giving at least ninety (90) days
prior written notice, such resignation to be effective upon the acceptance of
the trusts created by Article I hereunder by any successor Eligible Lender
Trustee meeting the requirements of Section 1.11 hereof and payment in full of
all amounts due the Eligible Lender Trustee. In addition, EFCT-II may at any
time remove the Eligible Lender Trustee with or without cause by an instrument
in writing delivered to the Eligible Lender Trustee, such removal to be
effective upon the acceptance of the trusts hereunder by a successor Eligible
Lender Trustee meeting the requirements of Section 1.11 hereof and payment in
full of all amounts due the Eligible Lender Trustee. If no successor Eligible
Lender Trustee has been appointed within ninety (90) days after notice of
resignation or removal, as the case may be, the Eligible Lender Trustee may
request a court of competent jurisdiction to (i) require EFCT-II to appoint a
qualified successor Eligible Lender Trustee meeting the requirements of Section
1.11 hereof within three (3) days of the receipt of citation or notice by the
court, or (ii) appoint a successor Eligible Lender Trustee meeting the
requirements of Section 1.11 hereof;
(b) Any successor Eligible Lender Trustee shall execute and deliver to the
predecessor Eligible Lender Trustee an instrument accepting such appointment
and, in cooperation with the predecessor Eligible Lender Trustee, shall take
such further actions to ensure (i) that title to the Eligible Loans has been
assigned to such successor Eligible Lender Trustee and (ii) that the beneficial
interest of EFCT-II in the Eligible Loans is maintained; thereupon such
successor Eligible Lender Trustee, without further act, shall become vested with
all the estates, properties, rights, powers, duties and trusts of the
predecessor Eligible Lender Trustee in the trusts hereunder with like effect as
if originally named as the Eligible Lender Trustee herein;
(c) Any bank, corporation or other entity into which the Eligible Lender
Trustee may be merged or converted or with which it may be consolidated, or any
bank, corporation or other entity resulting from any merger, conversion or
consolidation to which the Eligible Lender Trustee shall be a party, or any
bank, corporation or other entity to which substantially all the corporate trust
business of the Eligible Lender Trustee may be transferred, shall be the
Eligible Lender Trustee under this Trust Agreement without any further act,
provided the resulting bank, corporation, or other entity meets the
qualification requirements of Section 1.11 hereof;
(d) Any successor Eligible Lender Trustee shall take such actions as are
necessary, appropriate and reasonably requested by EFCT-II so that the Eligible
Lender Trustee is properly substituted, succeeds or otherwise takes the place of
the predecessor Eligible Lender Trustee in all necessary and appropriate
documents, instruments and agreements relating to any Student Loan Sale Purchase
Agreement, any applicable Loan Program and any applicable Financing Transaction.
Section 1.13. Servicing of Eligible Loans. EFCT-II hereby acknowledges that
it has selected, or will select, Servicers to originate and service the Eligible
Loans held by the Eligible Lender Trustee on behalf of EFCT-II pursuant to a
Servicing Agreement that complies with and requires compliance with all federal,
state and local laws and regulations. EFCT-II acknowledges
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that the Eligible Lender Trustee is not required to monitor the actions taken by
the Servicers. EFCT-II shall deliver to the Eligible Lender Trustee (i) promptly
after receipt thereof from the Servicers, copies of any annual audited financial
statements of the Servicers, certified by an independent certified accounting
firm received by EFCT-II; (ii) on an annual basis within ten (10) days after
receipt thereof, copies of SAS 70 reports for each Servicer, of if not available
the annual compliance audit for each Servicer required by Section 428(b)(1)(4)
of the Higher Education Act, as amended, and (iii) on an annual basis, each
Servicer's reject and cure rates demonstrating the Servicer's compliance under
applicable regulations.
Section 1.14. Indemnification by EFCT-II of the Eligible Lender Trustee.
EFCT-II hereby agrees and does hereby indemnify and hold harmless the Eligible
Lender Trustee from and against any and all liabilities, obligations, losses,
damages, penalties, claims, actions, suits, costs, expenses or disbursements
(including legal fees and expenses) of any kind and nature whatsoever which may
be imposed on, incurred by or asserted against the Eligible Lender Trustee in
any way relating to or arising out of this Trust Agreement or any document, or
the performance or enforcement of any of the terms of any provision thereof, or
in any way relating to or arising out of the administration of the trust estate
or the action or inaction of the Eligible Lender Trustee hereunder, except only
in the case of willful misconduct or gross negligence on the part of the
Eligible Lender Trustee in the performance of its duties hereunder; provided,
however, that EFCT-II's indemnification with respect to each Eligible Loan shall
be limited to the period of time that the Eligible Lender Trustee holds such
Eligible Loans in trust on behalf of EFCT-II.
Section 1.15. Termination. This Trust Agreement and the trusts created
hereby shall terminate with respect to EFCT-II, upon the sale, transfer, final
disposition, maturity, final payment or assignment of all Eligible Loans held by
the Eligible Lender Trustee on behalf of EFCT-II.
ARTICLE II
Miscellaneous
Section 2.1. Definitions. Capitalized terms used herein shall have the same
meaning given below:
"Consolidation Loans" means Eligible Loans authorized under Section 428C of
the Higher Education Act of 1965, as amended, or any successor provision.
"Consumer Education Loan" means an education loan made to a student or
parent of a dependent student that is not granted under the FFEL Program or the
HEAL Program, but which is otherwise an Eligible Loan.
"Consumer Education Loan Documents" means any agreement, document or
certificate necessary or advisable with respect to the originating, servicing or
ownership of a Consumer Education Loan.
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"Contract of Guarantee" means a contract with a Guarantor providing for, or
a certificate or other evidence of, the guarantee of Eligible Loans.
"Eligible Loans" means Student Loans which become subject to this Trust
Agreement.
"Federal Loan" means any FFEL Loan and/or HEAL Loan, as applicable.
"Federal Loan Program" means a Loan Program for Federal Loans.
"Federal Loan Program Documents" means any agreement, document or
certificate relating to the terms and conditions of the Federal Loans under a
particular Federal Loan Program, including but not limited to any Contract of
Guarantee, and any amendments or supplements thereto.
"FFEL Loans" means SLS Loans, Xxxxxxxx Loans, PLUS Loans or Consolidation
Loans.
"FFEL Program" means the Federal Family Education Loan Program authorized
under the Higher Education Act, including Federal Xxxxxxxx Loans authorized
under Sections 427 and 428 thereof, Federal Supplemental Loans for Students
authorized under Sections 428A hereof, Federal PLUS Loans authorized under
Section 428B thereof, Federal Consolidation Loans authorized under Section 428C
thereof and Unsubsidized Xxxxxxxx Loans authorized under Section 428H thereof.
"Financing Transaction" means a transaction through which EFCT-II finances
the making, acquisition and/or consolidation of Eligible Loans including (i) the
issuance, from time to time, of certain bonds, notes or other indebtedness (in
various series) or (ii) borrowing of funds pursuant to a line of credit, credit
facility or other source.
"Financing Transaction Documents" means any agreement, document, instrument
or certificate relating to the terms and conditions of a particular Financing
Transaction, including but not limited to an indenture of trust, loan agreement,
credit agreement, line of credit agreement, security agreement, bailment
agreement, UCC financing statements, secured demand note, collateral agreement,
or other related documents and any amendments or supplements thereto.
"Guarantee" or "Guaranteed" means, with respect to (i) a FFEL Loan, the
guarantee by the applicable Guarantor of the principal of and accrued interest
on such FFEL Loan and the coverage of such FFEL Loan by a federal reinsurance
agreement providing, among other things, for reimbursement to the Guarantor for
losses incurred by it on defaulted FFEL Loans guaranteed by the Guarantor as
provided by the Higher Education Act from time to time and (ii) a Consumer
Education Loan, the guarantee by the applicable Guarantor (or insurer) of such
Consumer Education Loan.
"Guarantor" means any guarantee agency as is agreed to in writing by
EFCT-II and the Eligible Lender Trustee with respect to Eligible Loans held in
trust by the Eligible Lender Trustee.
"HEAL Loan" means an education loan made to an "eligible graduate student"
as defined in and pursuant to the Public Health Services Act.
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"HEAL Program" means the HEAL Program authorized under the Public Health
Services Act, which established the program to provide insured HEAL Loans to
"eligible graduate students" in schools of medicine, osteopathy, chiropractic
medicine or in programs in health administration, clinical psychology or allied
health.
"Higher Education Act" means the Higher Education Act of 1965, as amended
from time to time, and all regulations and directives promulgated thereunder
from time to time.
"Loan Program" shall mean the terms and conditions of a program that makes
moneys available for Eligible Loans, thereby assisting students in obtaining
higher education, including without limitation, all applicable Federal Loan
Program Documents and Consumer Education Loan Documents, and with respect to the
Federal Loan Program and the HEAL Program, the Higher Education Act and the
Public Health Services Act, respectively.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, limited liability company, trust,
unincorporated association, joint venture, government or any agency or political
subdivision thereof or any other entity.
"PLUS Loans" means Eligible Loans authorized under Section 428B of the
Higher Education Act of 1965, as amended, or any successor provision.
"Public Health Services Act" means the Public Health Services Act of 1975,
as amended or supplemented from time to time, or any successor federal act,
together with any rules, regulations and interpretations promulgated thereunder.
"Seller" means the seller under any Student Loan Sale Purchase Agreement or
the eligible lender trustee acting on its behalf, as applicable.
"Servicer" means a servicing entity as agreed to in writing by EFCT-II and
the Eligible Lender Trustee to provide servicing of Eligible Loans, including
but not limited to application review, disbursement, collection, due diligence
and claims services.
"Servicing Agreement" means an agreement with a Servicer for the servicing
of Eligible Loans.
"SLS Loans" means a loan made to an Eligible Borrower designated as such
that it is made under the Supplemental Loans for Students Programs in accordance
with the Higher Education Act.
"Xxxxxxxx Loans" means Eligible Loans authorized under Section 427 and 428
of the Higher Education Act of 1965, as amended, or any successor provision,
including Unsubsidized Xxxxxxxx Loans, but not including PLUS Loans.
"Student Loan" means a FFEL Loan, a HEAL Loan or a Consumer Loan.
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"Student Loan Sale Purchase Agreement" means a student loan sale purchase
agreement between a Seller and EFCT-II as amended or restated from time to time
pursuant to which EFCT-II purchases Eligible Loans.
"Unsubsidized Xxxxxxxx Loans" means student loans authorized under Section
428H of the Higher Education Act of 1965, as amended, or any successor
provision.
Section 2.2. Notices. All notices shall be in writing, mailed by regular
mail, postage prepaid, (i) if to the Eligible Lender Trustee, addressed to Fifth
Third Bank, Corporate Trust Administration, 00 Xxxxxxxx Xxxxxx Xxxxx, XX 00XX00
Xxxxxxxxxx, Xxxx 00000, Attention: Xxxxx Xxxxxxx or to such other address as may
have been filed in writing with EFCT-II; and (ii) if to EFCT-II, addressed to
Education Funding Capital Trust - II, c/o Fifth Third Bank, 00 Xxxxxxxx Xxxxxx
Xxxxx, XX 00XX00 Xxxxxxxxxx, Xxxx 00000, Attention: Corporate Trust
Administration or to such other address as may have been filed by EFCT-II in
writing.
Section 2.3. Lender Identification Number. The parties acknowledge and
agree that Lender Identification Number 834042 shall be used in connection with
the Student Loans that become subject to this Trust Agreement. The parties
further agree that such Lender Identification Number may be used in connection
with other Student Loans in which EFCT-II or an affiliate of EFCT-II (meaning
any corporation or limited liability company that controls, or any corporation,
limited liability company or trust controlled by or under common control with
EFCT-II) has a beneficial interest.
Section 2.4. Partial Invalidity. Any provisions of this Trust Agreement
that are 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 2.5. Amendment. No term or provision of this Trust Agreement may be
changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the party or other person against whom enforcement of the
change, waiver, discharge or termination is sought; and any waiver of the terms
hereof shall be effective only in the specific instance and for the specific
purpose given.
Section 2.6. Counterparts. This Trust 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 2.7. Trust Binding Upon Successors and Assigns. All covenants and
agreements contained herein shall be binding upon, and inure to the benefit of,
EFCT-II and its successors and assigns and the Eligible Lender Trustee and its
successors and assigns.
Section 2.8. 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.
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Section 2.9. Governing Law and Place of Enforcement. This Trust Agreement
shall be governed by, and construed in accordance with, the laws of the State of
Ohio without regard to the choice of law principles thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be executed by a duly authorized officer as of the date first above written.
FIFTH THIRD BANK EDUCATION FUNDING CAPITAL TRUST - II,
as the Eligible Lender a Delaware statutory trust acting by and
Trustee through Fifth Third Bank, not in its
individual capacity, but solely as Co-Owner
Trustee on behalf of the Trust
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxx
-------------------------- ----------------------------------------
Name: Xxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxxx
------------------------ --------------------------------------
Title: AVP & SR. TRUST OFFICER Title: AVP & SR. TRUST OFFICER
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