Exhibit 4.2
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[FORM OF]
TRUST AGREEMENT
among
XXXXXX XXX EDUCATION LOAN CORPORATION,
as depositor,
XXXXXX MAE FUNDING, LLC
and
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity but solely
as eligible lender trustee
for the Trust created hereby
Dated as of _____ 1, 1999
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TABLE OF CONTENTS
PAGE
ARTICLE I
Definitions and Usage
ARTICLE II
Organization
SECTION 2.01. Name............................................................................1
SECTION 2.02. Office..........................................................................1
SECTION 2.03. Purposes and Powers.............................................................1
SECTION 2.04. Appointment of Eligible Lender Trustee..........................................2
SECTION 2.05. Initial Capital Contribution of Trust Estate....................................2
SECTION 2.06. Declaration of Trust............................................................2
SECTION 2.07. [Reserved]......................................................................2
SECTION 2.08. Title to Trust Property.........................................................2
SECTION 2.09. Representations and Warranties of the Depositor and the Company.................3
SECTION 2.10. Tax Treatment...................................................................4
SECTION 2.11. Liability of Securityholders....................................................4
ARTICLE III
Certificates and Transfer of Interests
SECTION 3.01. Initial Beneficial Ownership....................................................4
SECTION 3.02. The Certificates................................................................4
SECTION 3.03. Authentication of Certificates..................................................5
SECTION 3.04. Registration of Transfer and Exchange of Certificates...........................5
SECTION 3.05. Mutilated, Destroyed, Lost or Stolen Certificates...............................6
SECTION 3.06. Persons Deemed Owners...........................................................6
SECTION 3.07. Access to List of Certificateholders' Names and Addresses.......................6
SECTION 3.08. Maintenance of Office or Agency.................................................7
SECTION 3.09. Appointment of Certificate Paying Agent.........................................7
SECTION 3.10. Book-Entry Certificates.........................................................8
SECTION 3.11. Notices to Clearing Agency......................................................8
SECTION 3.12. Definitive Certificates.........................................................9
ARTICLE IV
Actions by Eligible Lender Trustee
SECTION 4.01. Prior Notice to Certificateholders with Respect to Certain
Matters.........................................................................9
SECTION 4.02. Action by Certificateholders with Respect to Certain Matters...................11
SECTION 4.03. Action by Securityholder with Respect to Bankruptcy............................11
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SECTION 4.04. Restrictions on Certificateholders' Power......................................11
SECTION 4.05. Majority Control...............................................................12
ARTICLE V
Application of Trust Funds; Certain Duties
SECTION 5.01. Application of Trust Funds.....................................................12
SECTION 5.02. Method of Payment..............................................................12
SECTION 5.03. No Segregation of Monies; No Interest..........................................13
SECTION 5.04. Accounting and Reports to the Certificateholders, Certificate
Owners, the Internal Revenue Service and Others................................13
SECTION 5.05. Incentive Programs.............................................................14
ARTICLE VI
Authority and Duties of Eligible Lender Trustee
SECTION 6.01. General Authority..............................................................14
SECTION 6.02. General Duties.................................................................14
SECTION 6.03. Action upon Instruction........................................................15
SECTION 6.04. No Duties Except as Specified in This Agreement, the Loan Sale
Agreement, the Master Servicing Agreement, the Administration
Agreement or in Instructions...................................................16
SECTION 6.05. No Action Except Under Specified Documents or Instructions.....................16
SECTION 6.06. Restrictions...................................................................16
ARTICLE VII
Concerning the Eligible Lender Trustee
SECTION 7.01. Acceptance of Trusts and Duties................................................16
SECTION 7.02. Furnishing of Documents........................................................18
SECTION 7.03. Representations and Warranties.................................................18
SECTION 7.04. Reliance; Advice of Counsel....................................................18
SECTION 7.05. Not Acting in Individual Capacity..............................................19
SECTION 7.06. Eligible Lender Trustee Not Liable for Notes, Certificates or
Trust Loans....................................................................19
SECTION 7.07. Eligible Lender Trustee May Own Certificates and Notes.........................20
SECTION 7.08. Licenses.......................................................................20
ARTICLE VIII
Compensation of Eligible Lender Trustee
SECTION 8.01. Eligible Lender Trustee's Fees and Expenses....................................20
SECTION 8.02. Payments to the Eligible Lender Trustee........................................20
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ARTICLE VIII
A Auction of Trust Loans and Redemption of Certificates
SECTION 8.01A. Auction of Trust Loans.........................................................20
SECTION 8.02A. Redemption.....................................................................21
SECTION 8.03A. Form of Redemption Notice......................................................21
SECTION 8.04A. Certificates Payable on Redemption Date........................................22
ARTICLE IX
Termination of Trust Agreement
SECTION 9.01. Termination of Trust Agreement.................................................22
ARTICLE X
Successor Eligible Lender Trustees and
SECTION 10.01. Eligibility Requirements for Eligible Lender Trustee...........................23
SECTION 10.02. Resignation or Removal of Eligible Lender Trustee..............................23
SECTION 10.03. Successor Eligible Lender Trustee..............................................24
SECTION 10.04. Merger or Consolidation of Eligible Lender Trustee.............................25
SECTION 10.05. Appointment of Co-Eligible Lender Trustee or Separate Eligible
Lender Trustee.................................................................25
ARTICLE XI
Miscellaneous
SECTION 11.01. Supplements and Amendments.....................................................26
SECTION 11.02. No Legal Title to Trust Estate in Certificateholders...........................27
SECTION 11.03. Limitations on Rights of Others................................................28
SECTION 11.04. Notices........................................................................28
SECTION 11.05. Severability...................................................................28
SECTION 11.06. Separate Counterparts..........................................................28
SECTION 11.07. Successors and Assigns.........................................................28
SECTION 11.08. No Petition....................................................................29
SECTION 11.09. No Recourse....................................................................29
SECTION 11.10. Headings.......................................................................29
SECTION 11.11. Governing Law..................................................................29
SECTION 11.12. Responsibility to Secretary and Guarantors.....................................29
SECTION 11.13. Consents.......................................................................29
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EXHIBIT A Form of Certificate
EXHIBIT B Certificate Depository Agreement
EXHIBIT C Certificate of Trust of Xxxxxx Xxx Student Loan Trust 1999-A
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TRUST AGREEMENT dated as of _____ 1, 1999, among XXXXXX MAE
EDUCATION LOAN CORPORATION, a Delaware non-profit corporation, as depositor (the
"DEPOSITOR" or "NMELC"), XXXXXX XXX FUNDING, LLC, a Delaware limited liability
company (the "COMPANY"), and THE FIRST NATIONAL BANK OF CHICAGO, a national
banking association, not in its individual capacity but solely as eligible
lender trustee for the Trust created hereby (the "ELIGIBLE LENDER TRUSTEE").
The Depositor, the Company 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 Administration Agreement, dated as of _____ 1, 1999, among the
Xxxxxx Mae Student Loan Trust 1999-A, as Issuer, the Depositor, as
Administrator, and State Street Bank and Trust Company, as Indenture Trustee,
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
"Xxxxxx Xxx Student Loan Trust 1999-A", 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.
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
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
Certificates pursuant to this Agreement and to sell the Notes and the
Certificates in one or more transactions;
(ii) with the proceeds of the sale of the Notes and the
Certificates, to purchase the Initial Trust Loans and to pay the
organizational, start-up and transactional expenses of the Trust and to
pay the balance to the Depositor pursuant to the Loan Sale Agreement;
(iii) to acquire and hold any Serial Loans conveyed by the
Depositor to the Trust after the Closing Date pursuant to the Loan Sale
Agreement;
(iv) to assign, grant, transfer, pledge, mortgage and convey
the Trust Estate pursuant to the Indenture;
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(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 Estate and the making of distributions to the
Securityholders and the others specified in Section 2(d) of the
Administration 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.
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 of 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
Securityholders, 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
trust under the Business Trust Statute and that this Agreement constitute the
governing instrument of such trust. It is the intention of the parties hereto
that, for income tax purposes, the Trust shall be treated as a partnership, with
the assets of the partnership being the Trust Loans, and the partners of the
partnership being the Certificateholders. The parties agree that the Trust will
file or cause to be filed annual or other necessary returns (including K-1s)
consistent with the characterization of the Trust as a partnership. Effective as
of the date hereof, the Eligible Lender Trustee shall have all rights, powers
and duties set forth herein and in the Business Trust Statute with respect to
accomplishing the purposes of the Trust. The Eligible Lender Trustee and the
Delaware Trustee shall file the Certificate of Trust with the Secretary of State
of the State of Delaware pursuant to ss. 3801 of the Business Trust Statute on
or before the Closing Date.
SECTION 2.07. [RESERVED]
SECTION 2.08. TITLE TO TRUST PROPERTY. Subject to the
Indenture, legal title to 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
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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, HOWEVER, that legal title to the Trust 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
AND THE COMPANY. (a) Each of the Company and the DEPOSITOR hereby represents and
warrants, as to itself, to the Eligible Lender Trustee that:
(i) In the case of the DEPOSITOR, it is duly organized and
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, with power and authority to own
its properties and to conduct its business as such properties are
currently owned and such business is currently conducted (subject, with
respect to the DEPOSITOR and its Student Loans, to the vesting of legal
title thereto in FNBC or another eligible lender, as trustee for the
DEPOSITOR); and in the case of the Company, it is duly organized and
validly existing as a limited liability company in good standing under
the laws of the jurisdiction of its organization, with power and
authority to own its properties and to conduct its business as such
properties are currently owned and such business is currently
conducted.
(ii) It is duly qualified to do business as a foreign
corporation in the case of the DEPOSITOR, or as a foreign company in
the case of the Company, in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions in which the
ownership or lease of property or the conduct of its business shall
require such qualifications except where failure to do so (both singly
and in the aggregate) will not have a material adverse effect on the
conduct of its business, operations or financial condition.
(iii) It has the power and authority to execute and deliver
this Agreement and to carry out its terms; and the execution, delivery
and performance of this Agreement have been duly authorized by it by
all necessary action; the DEPOSITOR has full power and authority to
transfer and assign the property to be transferred and assigned to, and
to be deposited with, the Eligible Lender Trustee; and the DEPOSITOR
has duly authorized such transfer and assignment to the Trust by all
necessary action.
(iv) This Agreement constitutes its legal, valid and binding
obligation enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization and similar laws
relating to creditors' rights generally and subject to general
principles of equity.
(v) 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, its certificate of incorporation or organization or its by-laws,
or any indenture, agreement or other instrument to which it 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
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Basic Documents); nor violate any law or, to the best of its knowledge,
any order, rule or regulation applicable to it of any court or of any
federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over it or its
properties.
(vi) There are no proceedings or investigations pending or, to
its best knowledge, threatened before any court, regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the DEPOSITOR or its properties: (A) asserting the
invalidity of this Agreement, (B) seeking to prevent the consummation
of any of the transactions contemplated by this Agreement or (C)
seeking any determination or ruling that might materially and adversely
affect the performance by it of its obligations under, or the validity
or enforceability of, this Agreement.
SECTION 2.10. TAX TREATMENT. The DEPOSITOR and the Company
have entered into this Agreement, and the Certificates will be issued to and
acquired by the Certificateholders, with the intention that, for federal, state,
foreign and local income and franchise tax and usury law purposes, the
Certificates will be partnership interests in a tax partnership. Each of the
DEPOSITOR and the Company, by entering into this Agreement, and each
Certificateholder, by the acceptance of its Certificate, agrees to treat the
Certificates for purposes of federal, state and local income and franchise taxes
and for any other tax imposed on or measured by income and usury law purposes as
partnership interests. In accordance with the foregoing, the Eligible Lender
Trustee hereby agrees to treat the Trust as a partnership, and shall file all
necessary partnership tax returns (including K-1's) and obtain an employer
identification number, all on behalf of the Trust.
SECTION 2.11. LIABILITY OF SECURITYHOLDERS. No Securityholder
shall have any personal liability or obligation to or for the Trust and the
Certificate of Trust shall be fully paid and nonassessable.
ARTICLE III
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 Certificates, the Depositor shall be the sole
beneficial owner of the Trust.
SECTION 3.02. THE CERTIFICATES. The Certificates shall be
issued in denominations of $1,000 or in integral multiples of $1,000 in excess
thereof; PROVIDED, HOWEVER, that the Certificates issued to the Company pursuant
to Section 3.10 may be issued in such denomination as to include any residual
amount. The Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of an authorized officer of the Eligible Lender Trustee.
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 validly issued by the Trust and entitled to the
benefits of this Agreement, notwithstanding that such individuals or any of them
shall have ceased to be so authorized prior
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to the authentication and delivery of such Certificates or did not hold such
offices at the date of authentication and delivery of such Certificates.
A transferee of a Certificate shall become a
Certificateholder, and shall be entitled to the rights and subject to the
obligations of a Certificateholder hereunder, upon such transferee's acceptance
of a Certificate duly registered in such transferee's name pursuant to Section
3.04.
SECTION 3.03. AUTHENTICATION OF CERTIFICATES. Concurrently
with the sale of the Initial Trust Loans to the Trust pursuant to the Loan Sale
Agreement, the Eligible Lender Trustee shall cause the Certificates in an
aggregate principal amount equal to the Initial Certificate Balance to be
executed on behalf of the Trust, duly authenticated and delivered hereunder. No
Certificate shall entitle its holder to any benefit under this Agreement, or
shall be valid for any purpose, unless there shall appear on such Certificate a
certificate of authentication substantially in the form set forth in Exhibit A,
executed by the Eligible Lender Trustee or First Chicago Trust Company of New
York, as the Eligible Lender Trustee's authenticating agent, by manual
signature; such authentication shall constitute conclusive evidence that such
Certificate shall have been duly authenticated and delivered hereunder. All
Certificates shall be dated the date of their authentication.
SECTION 3.04. REGISTRATION OF TRANSFER AND EXCHANGE OF
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 the Certificates and of
transfers and exchanges of Certificates as herein provided. The Eligible Lender
Trustee shall be the initial Certificate Registrar.
Upon surrender for registration of transfer of any Certificate
at the office or agency maintained pursuant to Section 3.08, the Eligible Lender
Trustee shall execute, authenticate and deliver (or shall cause First Chicago
Trust Company of New York as its authenticating agent to authenticate and
deliver), in the name of the designated transferee or transferees, one or more
new 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 , Certificates may be exchanged for
other Certificates of authorized denominations of a like aggregate amount upon
surrender of the Certificates to be exchanged at the office or agency maintained
pursuant to Section 3.08.
Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the Eligible Lender Trustee and 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 Securities
Transfer Agents' 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
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.
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No service charge shall be made for any registration of
transfer or exchange of 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 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 Certificates for a period
of 15 days preceding any Quarterly Payment Date with respect to the
Certificates.
The Certificates and any beneficial interest in such
Certificates may not be acquired by (a) an employee benefit plan (as defined in
Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA,
(b) a plan described in Section 4975(e)(1) of the Code or (c) any entity whose
underlying assets include plan assets by reason of a plan's investment in the
entity (each, a "BENEFIT PLAN"). By accepting and holding a Certificate or an
interest therein, the Certificateholder thereof shall be deemed to have
represented and warranted that it is not a Benefit Plan.
SECTION 3.05. MUTILATED, DESTROYED, LOST OR STOLEN
CERTIFICATES. If (a) any mutilated 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 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 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, or First Chicago Trust
Company of New York as the Eligible Lender Trustee's authenticating agent, shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor and
denomination. Any duplicate 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 Certificate shall be found
at any time.
SECTION 3.06. PERSONS DEEMED OWNERS. Prior to due presentation
of a Certificate for registration of transfer, the Eligible Lender Trustee, 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 Certificate for the purpose of receiving distributions
pursuant to Section 5.01 and for all other purposes whatsoever, and neither the
Eligible Lender Trustee nor the Certificate Registrar nor any agent of either of
them 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
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communicate with other Certificateholders with respect to their rights under
this Agreement or under the 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
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 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 Certificates and the other
Basic Documents may be served. The Eligible Lender Trustee initially designates
Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000-0000 as its
principal Corporate Trust Office. The Eligible Lender Trustee's New York office
and its authenticating agent's office are located at First Chicago Trust Company
of New York, 00 Xxxx Xxxxxx, 0xx Xxxxx, 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. For so long as any Notes remain
outstanding, the Certificate Paying Agent shall be the Indenture Trustee.
Thereafter, the Certificate Paying Agent shall be the Eligible Lender Trustee
and any co-paying agent chosen by the Eligible Lender Trustee, and acceptable to
the Administrator, and any such Certificate Paying Agent shall be permitted to
resign as Certificate Paying Agent upon 30 days' written notice to the Eligible
Lender Trustee. In the event that, after the Notes have been paid in full, 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 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
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Sections 7.01, 7.03, 7.04, 7.05 and 8.01 shall apply to the Indenture Trustee
also in its role 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. BOOK-ENTRY CERTIFICATES. The Certificates, upon
original issuance, will be issued in the form of typewritten Certificates
representing the Book-Entry Certificates, to be delivered to The Depository
Trust Company, the initial Clearing Agency, by, or on behalf of, the Trust .
Such 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 (as defined below)
representing such Certificate Owner's interest in such Book-Entry Certificate,
except as provided in Section 2.12. Unless and until definitive, fully
registered Certificates (the "DEFINITIVE CERTIFICATES") have been issued to
Certificate Owners pursuant to Section 3.12:
(i) the provisions of this Section shall be in full force and
effect;
(ii) the Certificate Registrar, the Indenture Trustee (if any
Notes remain Outstanding) and the Eligible Lender Trustee may deal with
the Clearing Agency for all purposes (including the payment of
principal of and interest return and other amounts on the Book-Entry
Certificates) as the authorized representative of 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 3.12, the initial Clearing
Agency will make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments of principal of and
interest return and other amounts on the Book-Entry Certificates to
such Clearing Agency Participants; and
(v) whenever this Trust Agreement requires or permits actions
to be taken based upon instructions or directions of Certificateholders
of Outstanding 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 Certificates and has delivered such
instructions to the Eligible Lender Trustee.
SECTION 3.11. 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 3.12, the Indenture Trustee shall give to the
Clearing Agency all such notices and communications specified herein to be given
to the Certificateholders.
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SECTION 3.12. DEFINITIVE CERTIFICATES. If (i) the
Administrator advises the Eligible Lender Trustee in writing that the Clearing
Agency is no longer willing or able to properly discharge its responsibilities
with respect to the Book-Entry 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 of the Book-Entry Certificates 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 interests of the Certificate Owners, then the Eligible Lender Trustee
will cause the Clearing Agency to notify all Certificate Owners, through the
Clearing Agency, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Eligible Lender Trustee of the typewritten Certificates
representing the Book-Entry Certificates by the Clearing Agency, accompanied by
registration instructions, the Trust shall execute and the Eligible Lender
Trustee shall authenticate the Definitive Certificates in accordance with the
instructions of the Clearing Agency. None of the Trust, the Certificate
Registrar or 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 Indenture Trustee (if any Notes remain Outstanding) and the
Eligible Lender Trustee shall recognize the holders of the Definitive
Certificates as Certificateholders.
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, neither the Eligible
Lender Trustee nor the Delaware Trustee shall take any action unless at least 30
days before the taking of such action, the Eligible Lender Trustee or the
Delaware 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 has
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 Trust 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
Trust Loans);
(b) the election by the Trust to file an amendment to the
Certificate of Trust;
(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
Certificateholders;
(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
Certificateholders;
(f) 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;
(g) the consent to the calling or waiver of any default under
any Basic Document;
(h) the consent to the assignment by the Indenture Trustee or
the Master Servicer of their respective obligations under any Basic
Document;
(i) except as provided in Article IX hereof, dissolution,
termination or liquidation of the Trust in whole or in part;
(j) merger or consolidation of the Trust with or into any
other entity, or conveyance or transfer all or substantially all of the
Trust's assets to any other entity;
(k) causing the Trust to incur, assume or guaranty any
indebtedness other than as set forth in this Agreement or the other
Basic Documents;
(l) doing any act that conflicts with any other Basic
Document;
(m) doing any act which would make it impossible to carry on
the ordinary business of the Trust as described in Section 2.03 hereof;
(n) confession of a judgment against the Trust;
(o) possession of Trust assets, or assignment of the Trust's
right to property, for other than a Trust purpose;
(p) causing the Trust to lend any funds to any entity; or
(q) changing the Trust's purpose and powers from those set
forth in this Agreement.
In addition the Trust shall not commingle its assets with
those of any other entity. The Trust shall maintain its financial and accounting
books and records separate from those of any other entity. Except as expressly
set forth herein, the Trust shall pay its indebtedness,
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operating expenses and liabilities from its own funds, and the Trust shall not
pay the indebtedness, operating expenses and liabilities of any other entity.
The Trust shall maintain appropriate minutes or other records of all appropriate
actions and shall maintain its office separate from the offices of the
DEPOSITOR, the Company and the Master Servicer.
Neither the Eligible Lender Trustee nor the Delaware Trustee
shall have the power, except upon the direction of the Certificateholders, and
to the extent otherwise consistent with the Basic Documents, to (i) remove or
replace the Master Servicer or the Indenture Trustee, (ii) institute proceedings
to have the Trust declared or adjudicated a bankrupt or insolvent, (iii) consent
to the institution of bankruptcy or insolvency proceedings against the Trust,
(iv) file a petition or consent to a petition seeking reorganization or relief
on behalf of the Trust under any applicable federal or state law relating to
bankruptcy, (v) consent to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or any similar official) of the Trust or a substantial
portion of the property of the Trust, (vi) make any assignment for the benefit
of the Trust's creditors, (vii) cause the Trust to admit in writing its
inability to pay its debts generally as they become due, or (viii) take any
action, or cause the Trust to take any action, in furtherance of any of the
foregoing (any of the above, a "BANKRUPTCY ACTION"). So long as any Securities
remain Outstanding, the Company shall not have the power to take, and shall not
take, any Bankruptcy Action with respect to the Trust or direct the Eligible
Lender Trustee to take any Bankruptcy Action with respect to the Trust.
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 Administrator
under the Administration Agreement pursuant to Section 12 thereof, (b) appoint a
successor Administrator pursuant to Section 13 of the Administration Agreement,
(c) remove the Master Servicer under the Master Servicing Agreement pursuant to
Section 6.01 thereof, (d) appoint a successor Master Servicer pursuant to
Section 6.02 of the Master Servicing Agreement or (e) except as expressly
provided in the Basic Documents, sell the Trust 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 SECURITYHOLDER 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 Securityholders and the delivery to the Eligible Lender
Trustee by each Securityholder of a certificate certifying that such
Securityholder 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
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Certificateholders under this Agreement may be taken by the Certificateholders
of 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 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
Quarterly Payment Date, the Eligible Lender Trustee will distribute or cause the
Certificate Paying Agent to distribute to Certificateholders, on a pro rata
basis, amounts received from the Indenture Trustee for distribution to the
Certificateholders pursuant to Sections 2(d) and 2(e) of the Administration
Agreement on such Quarterly Payment Date.
(b) On each Quarterly Payment Date, the Eligible Lender
Trustee shall send to each Certificateholder the statement provided to the
Eligible Lender Trustee by the Administrator pursuant to Section 2(g) of the
Administration Agreement on such Quarterly Payment 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 (and 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 Section 5.01(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 Quarterly Payment
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 Quarterly Payment Date and such
Certificateholder's Certificates in the aggregate evidence a denomination of not
less than $1,000,000, or, if not, by check mailed to
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such Certificateholder at the address of such Certificateholder appearing in the
Certificate Register; PROVIDED, HOWEVER, that with respect to Certificates
registered on such Record Date in the name of the nominee of the Clearing Agency
(initially, such nominee to be Cede & Co.), unless Definitive Certificates have
been issued, payments 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 Certificate (whether on the Certificate
Final Distribution Date or otherwise) will be payable only upon presentation and
surrender of such 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 MONIES; NO INTEREST. Subject
to Section 5.01, monies received by the Eligible Lender Trustee hereunder need
not be segregated in any manner except to the extent required by law or the
Basic Documents 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 CERTIFICATEHOLDER,
CERTIFICATE OWNERS, THE INTERNAL REVENUE SERVICE AND OTHERS. The Eligible Lender
Trustee shall deliver or cause to be delivered to each Certificateholder, as may
be required by the Code and applicable Treasury Regulations, or as may be
requested by such Certificateholder, such information, reports or statements as
may be necessary to enable each Certificateholder and Certificate Owner to
prepare its federal and state income tax returns. Consistent with the Trust's
characterization for tax purposes as a security arrangement for the issuance of
non-recourse debt so long as the Depositor or any other Person is the sole
Certificateholder, no federal income tax return shall be filed on behalf of the
Trust unless either (i) the Eligible Lender Trustee shall receive an Opinion of
Counsel that, based on a change in applicable law occurring after the date
hereof, or as a result of a transfer by the Depositor permitted by Section 3.04,
the Code requires such a filing or (ii) the Internal Revenue Service shall
determine that the Trust is required to file such a return. In the event that
there shall be two or more Certificateholders of the Trust, (x) the Eligible
Lender Trustee shall prepare or shall cause to be prepared federal and, if
applicable, state or local partnership tax returns required to be filed by the
Trust and shall remit such returns to the Depositor (or if the Depositor no
longer owns any Certificates, the Certificateholder designated for such purpose
by the Depositor to the Eligible Lender Trustee in writing) at least five (5)
days before such returns are due to be filed and (y) capital accounts shall be
maintained for each Certificateholder in accordance with the Treasury
Regulations under Section 704(b) of the Code reflecting each such
Certificateholder's pro rata share of the income, gains, deductions and losses
of the Trust and contributions to and distributions from, the Trust. The
Depositor (or such designee Certificateholder, as applicable) shall promptly
sign such returns and deliver such returns after signature to the Eligible
Lender Trustee and such returns shall be filed or cause to be filed by the
Eligible Lender Trustee with the appropriate tax authorities. In the event that
a "tax matters partner" (within the meaning of Code Section 6231(a)(7) is
required to be appointed with respect to the Trust, the Depositor is hereby
designated as tax matters partner or, if the Depositor is not a
Certificateholder, the Certificateholder selected by Certificate Owners holding
a majority of the then Outstanding Certificate Balance shall be designated as
tax matters partner. In no event shall the Eligible Lender Trustee or the
Depositor (or such designee Certificateholder, as applicable) be liable for any
liabilities, costs or expenses of the Trust or the Noteholders arising out of
the application of any tax law, including federal, state, foreign or local
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income or excise taxes or any other tax imposed on or measured by income (or any
interest, penalty or addition with respect thereto or arising from a failure to
comply therewith) except for any such liability, cost or expense attributable to
any act or omission by the Eligible Lender Trustee or the Depositor (or such
designee Certificateholder, as applicable), as the case may be, in breach of
their obligations under this Agreement.
SECTION 5.05. INCENTIVE PROGRAMS. Subject to compliance by the
Administrator with Section 2(i) of the Administration Agreement, the Trust shall
offer the Incentive Program to eligible Borrowers except any Incentive Program
which the Administrator terminates pursuant to Section 2(i) of the
Administration Agreement. Upon the effective date specified in the notice of
termination required by Section 2(i) of the Administration Agreement, the Trust
shall cease offering the terminated Incentive Program to Borrowers affected by
the termination.
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 Class
A-1 Notes in the aggregate principal amount of $__________ and Class A-2 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 Trust 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 Master Servicer 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 Trust Loans.
In addition to the foregoing, the Eligible Lender Trustee is
authorized 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
interests 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 bankruptcy proceeding involving the Depositor.
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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 Trust Loans or to
maintain, monitor or otherwise supervise the administration, servicing or
collection of the Trust Loans.
SECTION 6.03. ACTION UPON INSTRUCTION. (a) Subject to Article
IV, 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 IV.
(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 from
the Certificateholders 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
15
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 LOAN SALE AGREEMENT, THE MASTER SERVICING AGREEMENT, THE ADMINISTRATION
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 Loan
Sale Agreement, the Master Servicing Agreement, the Administration 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
16
this Agreement. The Eligible Lender Trustee also agrees to disburse all monies
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
Securities;
(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 or the
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
DEPOSITOR, 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 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
17
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 of 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.
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 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 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 Trust Loans as contemplated by this Agreement and
the other Basic Documents, has obtained a lender identification number
with respect to the Trust from the Department, has in effect a
Guarantee Agreement with each of the Initial Guarantors with respect to
the related Initial Trust Loans and will have the requisite power and
authority to enter into Guarantee Agreements with Additional
Guarantors, if any.
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
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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 NOTES,
CERTIFICATES OR TRUST LOANS. The recitals contained herein and in the
Certificates (other than the signature and countersignature of the Eligible
Lender Trustee on the Certificates and its representations and warranties in
Section 7.03) 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 Certificates (other than the signature and
countersignature of the Eligible Lender Trustee on the Certificates) or any
other Basic Document or the Notes, or of any Trust 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, Interest
Subsidy Payments or Special Allowance Payments, as applicable, of any Trust
Loan, or for or with respect to the sufficiency of the Trust Estate or its
ability to generate the payments to be distributed to the Noteholders under the
Indenture or to the Certificateholders under this Agreement, including: the
existence and contents of any computer or other record of any Trust Loan; the
validity of the assignment of any Trust Loan to the Trust; the completeness of
any Trust Loan; the performance or enforcement (except as expressly set forth in
any Basic Document) of any Trust 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,
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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 CERTIFICATES AND
NOTES. The Eligible Lender Trustee in its individual or any other capacity may
become the owner or pledgee of Certificates and 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 the
Eligible Lender Trustee.
SECTION 7.08. LICENSES. The Eligible Lender Trustee shall
cause the Trust to use its best efforts to obtain and maintain the effectiveness
of any licenses required in connection with this Agreement and the other Basic
Documents and the transactions contemplated hereby and thereby until such time
as the Trust shall terminate in accordance with the terms hereof. The Eligible
Lender Trustee shall receive from the Administrator the information necessary to
comply with this Section.
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 for its other reasonable expenses
hereunder, including the reasonable compensation, expenses and disbursements of
such agents, representatives, experts and counsel as the Eligible Lender Trustee
may employ in connection with the exercise and performance of its rights and
duties hereunder. The Eligible Lender Trustee shall have no recourse to the
Issuer for its fees and 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 Loan Sale Agreement or pursuant to Section 24 of
the Administration Agreement shall be deemed not to be a part of the Trust
Estate immediately after such payment.
ARTICLE VIII A
AUCTION OF TRUST LOANS AND REDEMPTION OF CERTIFICATES
SECTION 8.01A. AUCTION OF TRUST LOANS. The Eligible Lender
Trustee shall offer the Trust Loans for sale as of the last day of the
Collection Period that ends in ______ 20__ and shall accept bids on behalf of
the Issuer for such purpose, provided that as of such date the Notes are no
longer Outstanding. If with respect to the last date of such Collection Period,
the Eligible Lender Trustee receives no bid to purchase the Trust Loans, or no
bid that it may, as specified below, accept, the Eligible Lender Trustee may at
its discretion, but shall not be obligated to, offer the Trust Loans for sale as
of the last day of each, or any, of the succeeding
20
Collection Periods until a bid is received that may, as specified below, be
accepted by the Eligible Lender Trustee. With respect to any attempt to arrange
for the purchase of the highest bid submitted so long as (i) at least two bids
(one of which is from a Person that is not the DEPOSITOR or an Affiliate of the
DEPOSITOR) to purchase the Trust Loans as of the last day of the applicable
Collection Period are received and (ii) the highest such bid is at least equal
to the Minimum Purchase Price as of the last day of the applicable Collection
Period. Any attempt to arrange for the purchase of the Trust Loans and the
consummation of any such sale shall be conducted by the Eligible Lender Trustee
in a commercially reasonable manner. The Eligible Lender Trustee shall provide
notice of any such attempt at least 60 days prior to the last day of the related
Collection Period to the Depositor, NMF, the Master Servicer, the Eligible
Lender Trustee, the Rating Agencies and each Certificateholder, and any such
Person or their respective Affiliates or any other Person may submit a timely
bid for the purchase of the Trust Loans.
SECTION 8.02A. REDEMPTION. (a) In the event that the Trust
Loans are sold pursuant to Section 4.04 of the Indenture or Section 8.01A
hereof, the Redemption Price for the Certificates on deposit in the Trust
Accounts shall be paid to the Certificateholders. If amounts are to be paid to
Certificateholders pursuant to this Section 8.02A, the Administrator or the
Trust shall, to the extent practicable, furnish notice of such Event to the
Eligible Lender Trustee not later than 25 days prior to the Redemption Date
whereupon all such amounts shall be payable on the Redemption Date.
(b) The Certificates are subject to redemption in whole, but
not in part, on any Quarterly Payment Date on which the Company exercises its
option to purchase the Trust Estate pursuant to Section 5.01(a) of the Loan Sale
Agreement. If the Certificates are to be redeemed pursuant to this Section
8.02A, the Company shall furnish notice of such election to the Indenture
Trustee (if any Notes remain Outstanding) or to the Eligible Lender Trustee
(after the Notes have been paid in full) not later than 20 days prior to the
Redemption Date and the Trust shall deposit by 10:00 a.m. New York time on the
Redemption Date in the Collection Account the Redemption Price for the
Certificates, whereupon the Certificates shall be due and payable on the
Redemption Date upon furnishing a notice complying with Section 8.03A to each
Certificateholder.
SECTION 8.03A. FORM OF REDEMPTION NOTICE. Notice of redemption
under Section 8.02A shall be given by the Eligible Lender Trustee by first-class
mail, postage prepaid, or by facsimile, mailed or transmitted on or prior to the
applicable Redemption Date to each Certificateholder, as of the close of
business on the Record Date preceding the Redemption Date, at such
Certificateholder's address or facsimile number appearing in the Certificate
Register.
All notices of redemption shall state:
(i) the Redemption Date,
(ii) the Redemption Price and
(iii) the place where such Certificates are to be surrendered
for payment of the Redemption Price (which shall be the office or
agency of the Trust to be maintained as provided in Section 2.02).
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Notice of redemption of the Certificates shall be given by the
Eligible Lender Trustee in the name and at the expense of the Trust. Failure to
give notice of redemption, or any defect therein, to any Certificateholder of
Certificate shall not impair or affect the validity of the redemption of any
other Certificate.
SECTION 8.04A. CERTIFICATES PAYABLE ON REDEMPTION DATE. The
Certificates to be redeemed shall on the Redemption Date become due and payable
at the Redemption Price for the Certificates and (unless the Trust shall default
in the payment of such Redemption Price) no interest shall accrue on the
Redemption Price for any period after the date to which accrued interest is
calculated for purposes of calculating the Redemption Price.
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 earliest of (i) the final distribution by the
Eligible Lender Trustee of all monies or other property or proceeds of the Trust
Estate in accordance with the terms of the Basic Documents, (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. James's,
living on the date hereof, and (iii) the time provided in Section 9.02. The
bankruptcy, liquidation dissolution, death or incapacity of any
Certificateholder shall not (x) operate to terminate this Agreement or the
Trust, or (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 or (z)
otherwise affect the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 9.01(a), none of the
Depositor, the Company or any Certificateholder shall be entitled to revoke or
terminate the Trust.
(c) Notice of any termination of the Trust, specifying the
Quarterly Payment Date upon which the Certificateholders shall surrender their
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 2(b) (vii) of the Administration Agreement, stating (i) the Quarterly
Payment Date upon which final payment of the Certificates shall be made upon
presentation and surrender of the 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 Quarterly Payment Date
is not applicable, payments being made only upon presentation and surrender of
the 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 Certificates, the Certificate Paying Agent shall cause to
be
22
distributed to Certificateholders amounts distributable on such Quarterly
Payment Date pursuant to Section 5.01.
In the event that all the Certificateholders shall not
surrender their Certificateholders 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 Certificates for cancellation and receive the final
distribution with respect thereto. If within one year after the second notice
all the Certificates shall not have been surrendered for cancellation, the
Eligible Lender Trustee may take appropriate steps to contact the remaining
Certificateholders concerning surrender of their 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.
(d) Upon the winding up of the Trust and its termination, the
Eligible Lender Trustee shall cause the Certificate of Trust to be canceled by
filing a certificate of cancellation with the Secretary of State of the State of
Delaware in accordance with the provisions of Section 3810 of the Business Trust
Statute.
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 Trust 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 Trust Loans; (iii)
having in effect Guarantee Agreements with the Initial Guarantors and any
Additional Guarantors; (iv) having a combined capital and surplus of at least
$50,000,000 and being subject to supervision or examination by federal or state
authorities; and (v) having (or having a parent which has) a rating of at least
"Baa3" by Xxxxx'x, "BBB" by Standard & Poor's and "BBB" by Fitch, if rated by
Fitch. 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. In addition, at all times the Eligible Lender
Trustee or a co-trustee shall be a Person that satisfies the requirements of
Section 3807(a) of the Business Trust Statute (the "DELAWARE TRUSTEE").
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
23
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
the Eligible Lender Trustee shall be legally unable to act, or 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 all
fees owed to the outgoing Eligible Lender Trustee shall be paid.
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 its
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, monies 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.
24
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
successor 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, HOWEVER, 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 10 Business Days prior to the
closing date of such merger or consolidation.
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, which, except in the case of
any Delaware Trustee, shall meet 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. Pursuant to the
Co-Trustee Agreement, dated as of _____ 1, 1999 between The First National Bank
of Chicago and First Chicago Delaware Inc., the Eligible Lender Trustee shall
appoint First Chicago Delaware Inc. as a co-trustee hereunder for the purpose of
its acting as Delaware Trustee and such agreement is hereby incorporated herein
by reference. If the Delaware Trustee shall become incapable of acting, resign
or be removed, unless the Trustee is qualified to act as Delaware Trustee, a
successor co-trustee shall promptly be appointed in the manner specified in this
Section 10.05 to act as Delaware Trustee. 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.
25
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, except as otherwise
provided in this Section 10.05 in regard to the Delaware Trustee.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. SUPPLEMENTS AND AMENDMENTS. This Agreement may
be amended by the Depositor, the Company and the Eligible Lender Trustee, with
prior written notice to the Rating Agencies, without the consent of any of the
Noteholders or the
26
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
of 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, the Company and the Eligible Lender Trustee, with prior written
notice to the Rating Agencies, with the consent of (i) the Noteholders of Notes
evidencing not less than a majority of the Outstanding Amount of the Notes and
(ii) 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 the Trust 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 of the Certificates required to consent to any such
amendment, without the consent of all the outstanding Noteholders and
Certificateholders.
The Eligible Lender Trustee shall furnish 10 Business Days'
prior written notification of the substance of any 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 the Noteholders,
the Certificateholders 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.
Promptly after the execution of any amendment to the
Certificate of Trust, the Eligible Lender Trustee shall cause the filing of such
amendment with the Secretary of State of the State of Delaware. The Eligible
Lender Trustee shall furnish the Rating Agencies with ten Business Days' prior
written notice of any amendment to the Certificate of Trust.
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 Company 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
27
therein only in accordance with Articles V and IX hereof. 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 Company, the Certificateholders, the
Administrator and, to the extent expressly provided herein, the Indenture
Trustee and the Noteholders, and nothing in this Agreement, 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 (or
in the form of facsimile notice, followed by written notice) and shall be deemed
given upon receipt by the intended recipient, if to the Eligible Lender Trustee,
addressed to its Corporate Trust Office; if to the Depositor, addressed to
Xxxxxx Xxx Education Loan Corporation, 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx
Xxxxxx 00000, Attention: Secretary (telephone: 000-000-0000, facsimile:
781-380-3915); and if to the Company, addressed to Xxxxxx Xxx Funding LLC,
[address] (telephone: __________; facsimile: ________); 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, the Company, the Eligible Lender Trustee and their respective
successors and permitted assigns and each Certificateholder and its successor
and assigns, all as herein provided.
28
SECTION 11.08. NO PETITION. (a) The Depositor will not at any
time institute against the Trust or the Company any bankruptcy proceedings under
any United States federal or state bankruptcy or similar law in connection with
any obligations relating to the Certificates, the Notes, this Agreement or any
of the other Basic Documents.
(b) The Eligible Lender Trustee by entering into this
Agreement, each Certificateholder by accepting a 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, the Company or the Trust, or join in any institution against the
Depositor, the Company 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 Certificates, the Notes, this
Agreement or any of the other Basic Documents.
(c) The Company will not at any time institute against the
Trust or the Depositor any bankruptcy proceedings under any United States
federal or state bankruptcy or similar law in connection with any obligations
relating to the Certificates, the Notes, this Agreement or any of the other
Basic Documents.
SECTION 11.09. NO RECOURSE. Each Certificateholder by
accepting a Certificate acknowledges that such Certificateholder's Certificates
represent beneficial interests in the Trust only and does not represent an
interest in or obligation of the Depositor, the Master Servicer, the Depositor,
the Company, 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
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 New York, 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.
SECTION 11.12. RESPONSIBILITY TO SECRETARY AND GUARANTORS.
Notwithstanding any other provision in this Agreement or the other Basic
Documents, nothing in this Agreement or the other Basic Documents shall be
construed to limit the legal responsibility of the Eligible Lender Trustee in
its capacity as Eligible Lender Trustee to the U.S. Secretary of Education or a
Guarantor for any violations of statutory or regulatory requirements that may
occur with respect to loans held in the Trust, pursuant to 34 CFR 682.203(b) or
any successor provision thereto.
SECTION 11.13. CONSENTS. With respect to any action to be
taken hereunder that requires the consent of a party hereto or of the Indenture
Trustee, such consent shall not be unreasonably withheld, delayed or
conditioned.
29
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:
XXXXXX MAE EDUCATION CORPORATION,
as Depositor
By:
------------------------------------
Name:
Title:
XXXXXX XXX FUNDING, LLC
By:
------------------------------------
Name:
Title:
30
EXHIBIT A
TO THE TRUST AGREEMENT
[FORM OF CERTIFICATE]
SEE REVERSE FOR CERTAIN DEFINITIONS
Unless this 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 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.
REGISTERED $
--------------------------------
NO. R- CUSIP NO.
------------------------
XXXXXX MAE STUDENT LOAN TRUST 1999-A
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 Xxxxxx Xxx Education Loan Corporation.
(This Certificate does not represent an interest in or obligation of
Xxxxxx Mae Education Loan Corporation, the Company (as defined below),
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.)
A-1
THIS CERTIFIES THAT is the registered owner of dollars
non-assessable, fully-paid, fractional undivided interest in the Xxxxxx Xxx
Student Loan Trust 1999-A (the "Trust"), a trust formed under the laws of the
State of Delaware by Xxxxxx Mae Education Loan Corporation, a Delaware
corporation ("NMELC"). The Trust was created pursuant to a Trust Agreement dated
as of ________ __, 1999 (the "Trust Agreement"), among NMELC, as depositor (the
"Depositor"), Xxxxxx Xxx Funding, LLC, a Delaware limited liability company (the
"Company"), 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 Administration Agreement (the
"Administration Agreement") dated as of _______ __, 1999, among the Trust,
NMELC, as Administrator, and State Street Bank and Trust Company, as Indenture
Trustee; 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 "Certificates").
Issued under the Indenture dated as of _______ __, 1999, between the Trust and
State Street Bank and Trust Company, a Massachusetts banking corporation, as
Indenture Trustee, are Notes designated as "Floating Rate Asset-Backed Notes"
(the "Notes"). This 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 Certificate by virtue of the acceptance hereof assents and by
which such holder is bound. The property of the Trust includes a pool of student
loans (the "Trust Loans"), all moneys received thereunder on or after the Cutoff
Date, certain bank accounts and the proceeds thereof and certain other rights
under the Trust Agreement, the Loan Sale Agreement and the Master Servicing
Agreement and all proceeds of the foregoing. The rights of the holders of the
Certificates to the assets of the Trust are subordinated to the rights of the
holders of the Notes, as set forth in the Administration Agreement, the
Indenture and the other Basic Documents.
Under the Trust Agreement, there will be distributed on the __th day of
each [January, April, July and October] or, if any such date is not a Business
Day, on the next succeeding Business Day (each a "Quarterly Payment Date"),
commencing on ______ __, 1999, to the Person in whose name this Certificate is
registered at the close of business on the __th day of the calendar month in
which such Quarterly Payment Date occurs (the "Record Date") such
Certificateholder's fractional undivided interest in the amount to be
distributed to Certificateholders on such Quarterly Payment Date pursuant to the
Administration Agreement.
Each holder of this Certificate acknowledges and agrees that its rights
to receive distributions in respect of this Certificate from Available Funds and
amounts on deposit in the Reserve Account are subordinated to the rights of the
Noteholders as described in the Administration Agreement, the Indenture and the
other Basic Documents.
It is the intent of the Depositor, the Master Servicer, the Company,
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 security device only. The
Certificateholders by acceptance of a Certificate (and the Certificate Owners by
A-2
acceptance of a beneficial interest in a Certificate) agree to treat, and to
take no action inconsistent with the treatment of, the Certificates for such tax
purposes as indebtedness of the Company secured by the Trust Estate.
Each Certificateholder or Certificate Owner, by its acceptance of a
Certificate or, in the case of a Certificate Owner, a beneficial interest in a
Certificate, covenants and agrees that such Certificateholder or Certificate
Owner, as the case may be, will not at any time institute against the Depositor,
the Company or the Trust, or join in any institution against the Depositor, the
Company 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 Certificates, the Notes, the Indenture, the
Trust Agreement or any of the other Basic Documents.
Distributions on this 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 Certificate or the making of any notation
hereon, except that with respect to Certificates registered on the Record Date
in the name of the nominee of the Clearing Agency (initially, such nominee to be
Cede & Co.), unless Definitive Certificates have been issued, 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 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 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 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 Certificate shall not entitle
the holder hereof to any benefit under the Trust Agreement, the Loan Sale
Agreement, the Master Servicing Agreement or the Administration Agreement or be
valid for any purpose.
A-3
IN WITNESS WHEREOF, the Eligible Lender Trustee on behalf of the Trust
and not in its individual capacity has caused this Certificate to be duly
executed as of the date set forth below.
XXXXXX MAE STUDENT LOAN TRUST 1999-A
By: THE FIRST NATIONAL BANK OF CHICAGO, not in its
individual capacity but solely as Eligible Lender
Trustee,
By:
-------------------------------------------
Authorized Signatory
Date: _______ __, 1999
A-4
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 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
OR
THE FIRST NATIONAL BANK OF CHICAGO, not
in its individual capacity but
solely as Eligible Lender
Trustee
By: FIRST CHICAGO TRUST COMPANY OF
NEW YORK, as Authenticating Agent
By:
------------------------------
Authorized Signatory
Date: _________________ __, 1999
A-5
[Reverse of Certificate]
The Certificates do not represent an obligation of, or an interest in,
the Depositor, the Master Servicer, the Company, 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 Certificate is not guaranteed by any governmental agency or
instrumentality and is limited in right of payment to certain collections with
respect to the Trust Loans (and certain other amounts), all as more specifically
set forth in the Master Servicing Agreement and the Administration Agreement. A
copy of each of the Master Servicing Agreement, the Administration Agreement,
the Loan Sale 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 Company and the rights of the Certificateholders under the
Trust Agreement at any time by the Depositor, the Company and the Eligible
Lender Trustee with the consent of the holders of the Notes and the Certificates
each voting as a class evidencing not less than a majority of the Outstanding
Amount of the Notes and of the Certificate Balance of the Certificates. Any such
consent by the holder of this Certificate shall be conclusive and binding on
such holder and on all future holders of this Certificate and of any 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 Certificate. The Trust
Agreement also permits the amendment thereof, in certain limited circumstances,
without the consent of the holders of any of the 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 Certificates of authorized denominations evidencing
the same aggregate interest in the Trust will be issued to the designated
transferee.
The Certificates are issuable only as registered Certificates without
coupons in denominations of $1,000 or in integral multiples of $1,000 in excess
thereof; PROVIDED, HOWEVER, that the Certificates issued to the Company may be
issued in such denominations as to include any residual amount of the
Certificate Balance. As provided in the Trust Agreement and subject to certain
limitations therein set forth, Certificates are exchangeable for new
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.
A-6
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 Certificate is registered as the owner hereof for all purposes,
and neither the Eligible Lender Trustee nor the Certificate Registrar or any
such agent shall be affected by any notice to the contrary.
The Certificates (including any beneficial interests therein) may not
be acquired by or for the account of (i) an employee benefit plan (as defined in
Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA,
(ii) a plan described in Section 4975(e)(1) of the Internal Revenue Code of
1986, as amended, or (iii) any entity whose underlying assets include plan
assets by reason of a plan's investment in the entity (a "Benefit Plan"). By
accepting and holding this Certificate, the Certificateholder and Certificate
Owner hereof shall be deemed to have represented and warranted that it is not a
Benefit Plan.
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, the
Administration 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 Loan Sale
Agreement, and such purchase of the Trust Loans and other property of the Trust
will effect early retirement of the Certificates; however, such right of
purchase is exercisable only as of any Quarterly Payment Date on or after which
the Pool Balance is equal to 10% or less of the Initial Pool Balance. In
addition, the Trust Loans remaining in the Trust as of the end of the Collection
Period immediately preceding the Trust Auction Date will be offered for sale by
the Indenture Trustee if any Notes are then Outstanding, or by the Eligible
Lender Trustee if the Notes have been paid in full, by auction in accordance
with the procedure described in the Indenture or the Trust Agreement, as the
case may be, and the proceeds of any such auction will be applied to effect
early retirement of the Notes and the Certificates. No assurance can be given as
to whether the Trust Loans will be sold successfully in an auction on the Trust
Auction Date or any subsequent date.
This Certificate shall be construed in accordance with the laws of the
State of Delaware, without reference to its conflict of law provisions, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
A-7
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
--------------------------------------------------------------------------------
(Please print or type name and address, including postal ZIP code, of assignee)
--------------------------------------------------------------------------------
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
Attorney
-----------------------------------------------------------------
to transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated
*
----------------------------------------
Signature Guaranteed:
*
----------------------------------------
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
A-8
EXHIBIT B
TO THE TRUST AGREEMENT
CERTIFICATE DEPOSITORY AGREEMENT
B-1
EXHIBIT C
TO THE TRUST AGREEMENT
CERTIFICATE OF TRUST OF
XXXXXX XXX STUDENT LOAN TRUST 1999-A
THIS Certificate of Trust of Xxxxxx Mae Student Loan Trust 1999-A (the
"Trust"), dated as of ________ __, 1999, is being duly executed and filed by The
First National Bank of Chicago, a national banking association, and First
Chicago Delaware Inc., a Delaware banking corporation, as trustees, to form a
business trust under the Delaware Business Trust Act (12 DEL. CODE,
Section 3801 ET Seq.).
1. NAME. The name of the business trust formed hereby is Xxxxxx Xxx
Student Loan Trust 1999-A.
2. DELAWARE TRUSTEE. The name and business address of the trustee of
the Trust resident in the State of Delaware is First Chicago Delaware Inc., c/o
FCC National Bank, 000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
3. This Certificate of Trust will be effective _____ __, 1999.
C-1
IN WITNESS WHEREOF, the undersigned, being the sole trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity but solely
as trustee of the Trust
By:
---------------------------------
Name:
Title:
FIRST CHICAGO DELAWARE INC.,
not in its individual capacity but solely as
trustee
By:
---------------------------------
Name:
Title:
C-2
