THE NATIONAL COLLEGIATE STUDENT LOAN TRUST 2007-3 TRUST AGREEMENT Among WILMINGTON TRUST COMPANY as OWNER TRUSTEE and THE NATIONAL COLLEGIATE FUNDING LLC and THE EDUCATION RESOURCES INSTITUTE, INC. as OWNERS Dated as of September 20, 2007
EXHIBIT
99.7
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Among
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WILMINGTON
TRUST COMPANY
as
OWNER TRUSTEE
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and
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THE
NATIONAL COLLEGIATE FUNDING LLC
and
THE EDUCATION RESOURCES INSTITUTE, INC.
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as
OWNERS
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Dated
as of
September
20, 2007
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TABLE
OF CONTENTS
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ARTICLE
I
DEFINITIONS
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Section
1.01
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Capitalized
Terms
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ARTICLE
II
ORGANIZATION
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Section
2.01
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Name
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Section
2.02
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Office
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Section
2.03
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Purposes
and Powers.
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Section
2.04
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Appointment
of the Owner Trustee
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Section
2.05
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Declaration
of Trust
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Section
2.06
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No
Liability of Owners for Expenses or Obligations of
Trust
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Section
2.07
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Situs
of Trust
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ARTICLE
III
TRUST
CERTIFICATES AND TRANSFER OF INTEREST
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Section
3.01
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Issuance
of Trust Certificate.
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Section
3.02
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Registration
and Transfer of Certificates.
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Section
3.03
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Lost,
Stolen, Mutilated or Destroyed Certificates
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Section
3.04
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Limitation
on Transfer of Ownership Rights.
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Section
3.05
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Assignment
of Right to Distributions
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ARTICLE
IV
CONCERNING
THE OWNERS
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Section
4.01
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Action
by Owners with Respect to Certain Matters.
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Section
4.02
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Action
Upon Instructions.
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Section
4.03
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Super-majority
Control
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Section
4.04
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Representations
and Warranties of the Depositor
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Section
4.05
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Power
of Attorney.
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ARTICLE
V
INVESTMENT
AND APPLICATION OF TRUST FUNDS
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Section
5.01
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Investment
of Trust Funds
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Section
5.02
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Application
of Funds
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ARTICLE
VI
CAPITAL
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Section
6.01
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Tax
Characterization
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Section
6.02
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Initial
Capital Contributions of Owners
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Section
6.03
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Capital
Accounts
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Section
6.04
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Interest
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Section
6.05
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No
Additional Capital Contributions
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Section
6.06
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Investment
of Capital Contributions
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Section
6.07
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Repayment
and Return of Capital Contributions
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ARTICLE
VII
ALLOCATION
OF PROFIT AND LOSS; DISTRIBUTIONS
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Section
7.01
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Profit
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Section
7.02
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Loss
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Section
7.03
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Special
Allocations.
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Section
7.04
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Curative
Allocations
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Section
7.05
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Other
Allocation Rules.
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Section
7.06
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Distribution
of Net Cash Flow
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Section
7.07
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Distribution
Date Statement
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Section
7.08
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Allocation
of Tax Liability
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Section
7.09
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Method
of Payment
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Section
7.10
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No
Segregation of Funds; No Interest
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Section
7.11
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Interpretation
and Application of Provisions by the Administrator
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ARTICLE
VIII
AUTHORITY
AND DUTIES OF THE OWNER TRUSTEE
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Section
8.01
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General
Authority
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Section
8.02
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Specific
Authority
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Section
8.03
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General
Duties
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Section
8.04
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Accounting
and Reports to the Owners, the Internal Revenue Service and
Others
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Section
8.05
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Signature
of Returns
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Section
8.06
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Right
to Receive and Rely Upon Instructions
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Section
8.07
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No
Duties Except as Specified in this Agreement or in
Instructions
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Section
8.08
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No
Action Except Under Specified Documents or Instructions
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Section
8.09
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Restriction
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ARTICLE
IX
CONCERNING
THE OWNER TRUSTEE
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Section
9.01
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Acceptance
of Trusts and Duties
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Section
9.02
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Furnishing
of Documents
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Section
9.03
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Reliance;
Advice of Counsel.
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Section
9.04
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Not
Acting in Individual Capacity
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Section
9.05
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Representations
and Warranties of Owner Trustee
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ARTICLE
X
COMPENSATION
OF OWNER TRUSTEE
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Section
10.01
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Owner
Trustee’s Fees and Expenses
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Section
10.02
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Indemnification
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Section
10.03
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Lien
on Trust Property
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Section
10.04
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Payments
to the Owner Trustee
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ARTICLE
XI
TERMINATION
OF TRUST
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Section
11.01
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Termination
of Trust.
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Section
11.02
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Distribution
of Assets
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Section
11.03
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No
Termination by Depositor or Owners
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ARTICLE
XII
SUCCESSOR
OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
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Section
12.01
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Resignation
of Owner Trustee; Appointment of Successor.
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Section
12.02
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Appointment
of Additional Owner Trustees
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ARTICLE
XIII
TAX
MATTERS PARTNER
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Section
13.01
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Tax
Matters Partner
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Section
13.02
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Notice
of Tax Audit
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Section
13.03
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Authority
to Extend Period for Assessing Tax
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Section
13.04
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Choice
of Forum for Filing Petition for Readjustment
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Section
13.05
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Authority
to Bind Owners by Settlement Agreement
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Section
13.06
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Notices
Sent to the Internal Revenue Service
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Section
13.07
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Indemnification
of Tax Matters Partner
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Section
13.08
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Approval
of Tax Matters Partner’s Decisions
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Section
13.09
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Participation
by Owners in Internal Revenue Service Administrative
Proceedings
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ARTICLE
XIV
MISCELLANEOUS
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Section
14.01
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Supplements
and Amendments.
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Section
14.02
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No
Legal Title to Trust Property in Owner
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Section
14.03
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Pledge
of Collateral by Owner Trustee is Binding
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Section
14.04
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Limitations
on Rights of Others
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Section
14.05
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Notices
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Section
14.06
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Severability
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Section
14.07
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Separate
Counterparts
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Section
14.08
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Successors
and Assigns
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Section
14.09
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Headings
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Section
14.10
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Governing
Law
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Section
14.11
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General
Interpretive Principles
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SCHEDULE
A
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CAPITAL
CONTRIBUTIONS, INITIAL SHARING RATIOS AND PERCENTAGE
INTERESTS
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SCHEDULE
B
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LOAN
ORIGINATORS
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SCHEDULE
C
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LOAN
PURCHASE AGREEMENTS
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SCHEDULE
D
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GUARANTY
AGREEMENTS
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EXHIBIT
1
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FORM
OF TRUST CERTIFICATE
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EXHIBIT
2
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FORM
OF ACCESSION AGREEMENT
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TRUST
AGREEMENT, dated as of September 20, 2007, among The National Collegiate Funding
LLC, a Delaware limited liability company (the “Depositor”), The Education
Resources Institute, Inc., a private non-profit corporation organized under
Chapter 180 of the Massachusetts General Laws, and Wilmington Trust Company,
a
Delaware banking corporation (the “Owner Trustee”).
WHEREAS,
the parties hereto intend to amend and restate that certain Interim Trust
Agreement, dated as of September 5, 2007 (the “Interim Trust Agreement”), by and
between the Depositor and the Owner Trustee, on the terms and conditions
hereinafter set forth.
NOW
THEREFORE, in consideration of the premises and of the mutual agreements herein
contained and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto amend and
restate the Interim Trust Agreement in its entirety and further agree as
follows:
ARTICLE
I
DEFINITIONS
Section
1.01 Capitalized
Terms. For all purposes of this Agreement, the following terms
shall have the meanings set forth below:
“Administration
Agreement” means the Administration Agreement, dated as of September 20, 2007,
among the Trust, the Indenture Trustee, the Owner Trustee, the Depositor and
First Marblehead Data Services, Inc., as Administrator, as it may be amended
from time to time.
“Administrator”
means First Marblehead Data Services, Inc., a Massachusetts corporation, as
Administrator under the Administration Agreement, or any successor Administrator
as appointed pursuant to the terms of the Administration Agreement.
“Affiliate”
means, with respect to any specified Person, any other Person controlling or
controlled by or under common control with such specified Person. For the
purposes of this definition, “control” when used with respect to any specified
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities,
by
contract or otherwise; and the terms “controlling” and “controlled” have
meanings correlative to the foregoing.
“Agreement”
means this Trust Agreement, as it may be amended or restated from time to
time.
“Assignments
of Servicing Agreements” means each of the Servicer Consent Letters, dated as of
September 20, 2007, among the Trust, The First Marblehead Corporation and the
Pennsylvania Higher Education Assistance Agency, Great Lakes Educational Loan
Services, Inc., EdFinancial Services, LLC, Nelnet, Inc. and ACS Education
Services, Inc., respectively, relating to the assignment of each of the
respective Servicing Agreements to the Trust.
“Auction
Agreement” means the Auction Agreement, dated September 20, 2007, between U.S.
Bank National Association and The Bank of New York.
“Authorized
Officer” means any officer of the Owner Trustee who is authorized to act for the
Owner Trustee in matters relating to, and binding upon, the Trust and whose
name
appears on a list of such authorized officers furnished by the Owner Trustee
as
such list may be amended or supplemented from time to time.
“Back-up
Agreement” means the Back-up Administration Agreement, dated as of September 20,
2007, among the Trust, the Depositor, the Owner Trustee, the Administrator
and
U.S. Bank National Association.
“Bankruptcy
Action” has the meaning set forth in Section 4.01(b)(iv)(G).
“Beneficial
Interest” as to any Owner, means all or any part of the interest of that Owner
in the Trust, including without limitation its (a) right to a distributive
share
of the Profit and Loss of the Trust, (b) right to a distributive share of the
assets of the Trust, and (c) right to direct or consent to actions of the Owner
Trustee and otherwise participate in the management of and control the affairs
of the Trust.
“Broker-Dealer
Agreements” means each of the Broker-Dealer Agreements, dated as of September
20, 2007, between The Bank of New York and Banc of America Security LLC,
Citigroup Global Markets Inc., ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and UBS Securities LLC,
respectively.
“Business
Day” means any day that is not a Saturday, Sunday or any other day on which
commercial banking institutions in Delaware are authorized or obligated by
law
or executive order to be closed.
“Capital
Account” means the Capital Account maintained for each Owner pursuant to Article
VI of this Agreement.
“Capital
Contribution” means the amount of money contributed or deemed to have been
contributed by an Owner to the capital of the Trust, which shall be as set
forth
on Schedule A to this Agreement.
“Certificate
of Trust” means the Certificate of Trust filed with the Secretary of State by
the Owner Trustee on behalf of the Trust.
“Custodial
Agreements” means each of the Custodial Agreements, dated as of September 20,
2007, among the Trust, the Indenture Trustee and the Pennsylvania Higher
Education Assistance Agency, Great Lakes Educational Loan Services, Inc.,
EdFinancial Services, LLC, Nelnet, Inc. and ACS Education Services, Inc.,
respectively.
“Deposit
and Sale Agreement” means the Deposit and Sale Agreement, dated as of September
20, 2007, between the Depositor and the Trust.
“Deposit
and Security Agreement” means the Deposit and Security Agreement, dated as of
September 20, 2007, among the Administrator, ▇▇▇▇ and the Trust.
“Depositor”
means The National Collegiate Funding LLC, a Delaware limited liability
company.
“Distribution
Date” means the first Business Day following a day on which the Owner Trustee
obtains receipt of funds or, if instructed by the Owners, such other Business
Day as they shall specify in writing.
“Distribution
Date Statement” means the statement described as such in Section
7.07.
“Distribution”
means any money or other property distributed to an Owner with respect to its
Beneficial Interest.
“Eligible
Investments” means one or more of the following (it being acknowledged by the
parties hereto that Eligible Investments will have the meaning set forth in
the
Indenture until such time as the Notes are no longer outstanding):
(a) Obligations
of or guaranteed as to principal and interest by the United States or any agency
or instrumentality thereof when such obligations are backed by the full faith
and credit of the United States;
(b) Repurchase
agreements on obligations specified in clause (a) maturing not more than one
month from the date of acquisition thereof, provided that the unsecured
obligations of the party agreeing to repurchase such obligations are at the
time
rated by each of the Rating Agencies in its highest short-term rating
available;
(c) Federal
funds, certificates of deposit, demand deposits, time deposits and bankers’
acceptances (which shall each have an original maturity of not more than 90
days
and, in the case of bankers’ acceptances, shall in no event have an original
maturity of more than 365 days or a remaining maturity of more than 30 days)
denominated in United States dollars of any U.S. depository institution or
trust
company incorporated under the laws of the United States or any state thereof
or
of any domestic branch of a foreign depository institution or trust company;
provided that the debt obligations of such depository institution or trust
company at the date of acquisition thereof have been rated by each of the Rating
Agencies in its highest short-term rating available; and, provided further
that,
if the original maturity of such short-term obligations of a domestic branch
of
a foreign depository institution or trust company shall exceed 30 days, the
short-term rating of such institution shall have a credit rating in one of
the
two highest applicable categories from each of the Rating Agencies;
(d) Commercial
paper (having original maturities of not more than 365 days) of any corporation
incorporated under the laws of the United States or any state thereof, which,
on
the date of acquisition has been rated by each of the Rating Agencies in its
highest short-term rating available; provided that such commercial paper shall
have a remaining maturity of not more than 30 days;
(e) A
money
market fund rated by each of the Rating Agencies in its highest rating available
which may be a money market fund of the Owner Trustee; and
(f) Other
obligations or securities that are acceptable to each of the Rating Agencies
as
an Eligible Investment hereunder; provided, however, that no instrument shall
be
an Eligible Investment if it provides for either (i) the right to receive only
interest payments with respect to the underlying debt instrument or (ii) the
right to receive both principal and interest payments derived from the
obligations underlying such instrument and the principal and interest payments
with respect to such instrument provide a yield to maturity greater than 120%
of
the yield to maturity at par of such underlying obligations; and provided
further that so long as the Notes are outstanding, no instrument that is not
a
permitted investment under the Indenture shall be an Eligible Investment for
purposes of this Agreement.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as
amended.
“Fiscal
Year” means the twelve-month period ending on June 30 each year or such portion
thereof as the Trust may be in existence.
“Indemnification
Agreements” means each of the Indemnification Agreements, dated as of September
20, 2007, between the Trust, the Depositor and The First Marblehead Corporation
and Bank of America, N.A. and JPMorgan Chase Bank, N.A.,
respectively.
“Indenture”
means the Indenture between the Trust and U.S. Bank National Association, as
Indenture Trustee, dated as of September 1, 2007, as amended or supplemented
from time to time pursuant to which the Notes are to be issued.
“Indenture
Trustee” means the bank or trust company acting as Indenture Trustee under the
Indenture.
“Interested
Noteholders” shall have the meaning set forth in the Indenture.
“Issuer
Order” means the Issuer Order to the Indenture Trustee from the Trust dated
September 20, 2007.
“Issuer
Orders to Authenticate” means the Issuer Orders to Authenticate to the Indenture
Trustee from the Trust dated September 20, 2007.
“Loan
Originators” means each of the originators of the Student Loans, as set forth on
Schedule B attached hereto, as amended or supplemented from time to
time.
“Loan
Purchase Agreements” means each of the loan purchase agreements entered into
between each of the Loan Originators and The First Marblehead Corporation,
as
set forth on Schedule C attached hereto, as amended or supplemented from time
to
time.
“Net
Cash
Flow” means, with respect to any fiscal period of the Trust, all revenues of the
Trust decreased by (a) cash expenditures for operating expenses (including
interest on indebtedness of the Trust but not including expense items which
do
not require current cash outlay), (b) reserves for contingencies and working
capital established in such amounts as the Owner Trustee, with the consent
of
the Owners, may determine, (c) repayments of principal on any Trust
indebtedness, and (d) taxes.
“1933
Act” has the meaning set forth in Section 3.02(a).
“Note
Insurer Agreements” means (a) the Financial Guaranty Insurance Policy Premium
Letter, dated as of September 20, 2007, between the Trust and Ambac Assurance
Corporation (“Ambac”) and (b) the Insurance and Indemnity Agreement (“the
Insurance Agreement”), dated as of September 20, 2007, among The First
Marblehead Corporation, First Marblehead Data Services, Inc., U.S. Bank National
Association, the Trust and Ambac.
“Notes”
mean the collateralized student loan asset backed notes to be issued by the
Trust pursuant to the Indenture.
“Noteholder”
means any holder of the Notes.
“Owner”
means each of the Depositor, ▇▇▇▇ and any other Person who becomes an owner
of a
Beneficial Interest.
“Owner
Trustee” means Wilmington Trust Company, a Delaware banking corporation with its
principal place of business in the State of Delaware, not in its individual
capacity but solely as trustee, or any successor thereto, duly appointed in
accordance with Section 12.01 hereof.
“Percentage
Interest” means the initial undivided beneficial interest in the Trust Property
of an Owner expressed as a percentage of the total initial undivided beneficial
interests in the Trust Property. References to Percentage Interests herein
shall
be solely for the purpose of certificating Owners’ interests hereunder and for
any other purpose specified in this Agreement.
“Periodic
Filings” means any filings or submissions that the Trust is required to make
with any state or Federal regulatory agency or under the Code.
“Person”
means any individual, corporation, partnership, joint venture, limited liability
company, association, trust (including any beneficiary thereof), estate,
custodian, nominee, unincorporated organization or government or any agency
or
political subdivision thereof.
“Plan”
has the meaning set forth in Section 3.04(d).
“Plan
Assets” has the meaning set forth in Section 3.04(d).
“Rating
Agencies” means ▇▇▇▇▇’▇ Investors Service, Inc., Fitch, Inc. and Standard &
Poors Rating Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc.
“Secretary
of State” means the office of the Secretary of State of the State of
Delaware.
“Servicers”
means the Pennsylvania Higher Education Assistance Agency, Great Lakes
Educational Loan Services, Inc., EdFinancial Services, LLC, Nelnet, Inc. and
ACS
Education Services, Inc. and any other loan servicer satisfying the Rating
Agency Condition.
“Servicing
Agreements” means (a) the Amended and Restated Private Student Loan Servicing
Agreement, dated as of September 28, 2006, between the Pennsylvania Higher
Education Assistance Agency and The First Marblehead Corporation, (b) the
Non-FFELP Loan Servicing Agreement, dated as of May 1, 2003, as amended, by
and
between Great Lakes Educational Loan Services, Inc. and The First Marblehead
Corporation, (c) the Alternative Servicing Agreement dated as of February 1,
2004, as supplemented, between EdFinancial Services, LLC (as successor in
interest to Educational Services of America, Inc.) and The First Marblehead
Corporation, (d) the Loan Servicing Agreement, dated as of August 1, 2001,
as
amended, between Nelnet, Inc. (as successor in interest to UNIPAC Service
Corporation) and The First Marblehead Corporation, and (e) the Alternative
Servicing Agreement, dated as of March 1, 2005, as amended, between ACS
Education Services, Inc. and The First Marblehead Corporation, all of which agreements
will be assigned to the Trust concurrent with the initial purchase of Financed
Student Loans, or any other servicing agreement between the Issuer and a
servicer under which such servicer agrees to service Financed Student Loans
included in the Indenture Trust Estate, which servicing agreement shall satisfy
the Rating Agency Condition.
“Servicer
Consent Letters” means each of the Servicer Consent Letters, dated as of
September 20, 2007, among The
First Marblehead Corporation, the Trust and the Pennsylvania Higher
Education Assistance Agency, Great Lakes Educational Loan Services, Inc.,
EdFinancial Services, LLC, Nelnet, Inc. and ACS Education Services, Inc.,
respectively.
“Sharing
Ratio” means, with respect to any Owner, the ratio (expressed as a percentage)
specified on Schedule A attached hereto.
“Statutory
Trust Statute” means the Delaware Statutory Trust Act, 12 Del. Code §3801 et
seq.
“Structuring
Advisor” means The First Marblehead Corporation.
“Structuring
Advisory Agreement” means the Structuring Advisory Agreement between the
Structuring Advisor and the Trust, dated as September 20, 2007.
“Student
Loans” means the education loans, to or for the benefit of students, originated
under one of the Student Loan Programs.
“Student
Loan Notes” means the promissory notes to be sold to the Trust by the Loan
Originators pursuant to the Loan Purchase Agreements representing education
loans, to or for the benefit of students, originated under the Student Loan
Programs.
“Student
Loan Programs” means each of the programs for the origination of the Student
Loans by each of the Loan Originators pursuant to the Loan Purchase
Agreements.
“Super-majority
Owners” shall have the meaning set forth in Section 4.03.
“▇▇▇▇”
means The Education Resources Institute, Inc., a private non-profit corporation
organized under Chapter 180 of the Massachusetts General Laws.
“▇▇▇▇
Deposit Account” means the special deposit account established by ▇▇▇▇ pursuant
to the Deposit and Security Agreement.
“▇▇▇▇
Guaranty Agreements” means each of the Guaranty Agreements entered into between
each of the Loan Originators and ▇▇▇▇ as set forth on Schedule D attached
hereto, as amended or supplemented from time to time.
“▇▇▇▇
Guaranteed Loans” means Student Loans originated under the Student Loan Programs
owned by the Trust and guaranteed by ▇▇▇▇ pursuant to the ▇▇▇▇ Guaranty
Agreements.
“Transfer”
means the sale, transfer or other assignment of all of an Owner’s right, title
and interest in all or a portion of such Owner’s Beneficial
Interest.
“Trust”
means The National Collegiate Student Loan Trust 2007-3 established by this
Agreement.
“Trust
Certificate” means a certificate evidencing the Beneficial Interest of an Owner
in substantially the form attached hereto as Exhibit 1.
“Trust
Property” means all right, title and interest of the Trust or the Owner Trustee
on behalf of the Trust in and to any property contributed to the Trust by the
Owners or otherwise acquired by the Trust, including without limitation all
distributions, payments or proceeds thereon.
“Trust
Related Agreements” means any instruments or agreements signed by the Owner
Trustee on behalf of the Trust, including without limitation, the Indenture,
the
Loan Purchase Agreements, the Administration Agreement, the Deposit and Sale
Agreement, the Deposit and Security Agreement, the Servicer Consent Letters,
the
Structuring Advisory Agreement, the Assignments of Servicing Agreements, the
Back-up Agreement, the Custodial Agreements, the Notes, the Indemnification
Agreements, the Issuer Order, the Issuer Orders to Authenticate, the Auction
Agreement, the Broker-Dealer Agreements and the Note Insurer
Agreements.
Tax
Terms:
“Adjusted
Capital Account Deficit” means, with respect to any Partner, the deficit
balance, if any, in such Partner’s Capital Account as of the end of the relevant
Fiscal Year, after giving effect to the following adjustments:
(a) Credit
to
such Capital Account the minimum gain chargeback that such Partner is deemed
to
be obligated to restore pursuant to the penultimate sentences of sections
1.704-2(g)(1) and 1.704-2(i)(5) of the Regulations and the amount of such
Partner’s share of Partner Nonrecourse Debt Minimum Gain; and
(b) Debit
to
such Capital Account the items described in sections 1.704-1(b)(2)(ii)(d)(4),
1.704-1(b)(2)(ii)(d)(5) and 1.704-1(b)(2)(ii)(d)(6) of the
Regulations.
The
foregoing definition of Adjusted Capital Account Deficit is intended to comply
with the provisions of section 1.704-1(b)(2)(ii)(d) of the Regulations and
shall
be interpreted consistently therewith.
“Code”
means the Internal Revenue Code of 1986, as amended.
“Nonrecourse
Deductions” has the meaning set forth in section 1.704-2(b)(1) of the
Regulations.
“Nonrecourse
Liability” has the meaning set forth in section 1.704-2(b)(3) of the
Regulations.
“Partner
Nonrecourse Debt” has the meaning set forth in section 1.704-2(b)(4) of the
Regulations.
“Partner
Nonrecourse Debt Minimum Gain” means an amount, with respect to each Partner
Nonrecourse Debt, equal to the Partnership Minimum Gain that would result if
such Partner Nonrecourse Debt were treated as a Nonrecourse Liability,
determined in accordance with section 1.704-2(i)(3) of the
Regulations.
“Partner
Nonrecourse Deductions” has the meaning set forth in sections 1.704-2(i)(1) and
1.704-2(i)(2) of the Regulations.
“Partners”
means the Owners.
“Partnership”
means the Trust.
“Partnership
Minimum Gain” has the meaning set forth in sections 1.704-2(b)(2) and 1.704-2(d)
of the Regulations.
“Profit
and Loss” means, for each Fiscal Year, an amount equal to the Partnership’s
taxable income or loss for such Fiscal Year, determined in accordance with
section 703(a) of the Code (for this purpose, all items of income, gain, loss,
or deduction required to be stated separately pursuant to section 703(a)(1)
of
the Code shall be included in taxable income or loss), with the following
adjustments:
(a) Any
income of the Partnership that is exempt from federal income tax and not
otherwise taken into account in computing Profit or Loss pursuant to this
definition shall be added to such taxable income or loss;
(b) Any
expenditures of the Partnership described in section 705(a)(2)(B) of the Code
or
treated as expenditures under section 705(a)(2)(B) of the Code pursuant to
section 1.704-1(b)(2)(iv)(i) of the Regulations (other than expenses in respect
of which an election is properly made under section 709 of the Code), and not
otherwise taken into account in computing Profit or Loss pursuant to this
definition, shall be subtracted from such taxable income or loss;
(c) Notwithstanding
any other provisions of this definition, any items which are specially allocated
pursuant to Section 7.03 or 7.04 shall not be taken into account in computing
Profit or Loss.
The
amounts of the items of Partnership income, gain, loss, or deduction available
to be specially allocated pursuant to Sections 7.03 and 7.04 shall be determined
by applying rules analogous to those set forth in clauses (a) and (b)
above.
“Regulations”
means the federal income tax regulations promulgated by the United States
Treasury Department under the Code as such Regulations may be amended from
time
to time.
All
references herein to a specific section of the regulations shall be deemed
also
to refer to any corresponding provision of succeeding Regulations.
“Regulatory
Allocations” has the meaning set forth in Section 7.04.
ARTICLE
II
ORGANIZATION
Section
2.01 Name. The
Trust continued hereby shall be known as The National Collegiate Student Loan
Trust 2007-3, in which name the Owner Trustee may take any action as provided
herein.
Section
2.02 Office. The
principal place of business and principal office of the Trust shall be in care
of the Owner Trustee, at the address set forth in Section 14.05. The Trust
shall
also have an office at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇.
Section
2.03 Purposes
and Powers.
(a) The
purpose of the Trust is to engage in the following activities and only these
activities:
(i) To
acquire a pool of Student Loans, to execute the Indenture and to issue the
Notes;
(ii) To
enter
into the Trust Related Agreements and to provide for the administration of
the
Trust and the servicing of the Student Loans;
(iii) To
engage
in those activities and to enter into such agreements that are necessary,
suitable or convenient to accomplish the foregoing or are incidental thereto
or
connected therewith; and
(iv) To
engage
in such other activities as may be required in connection with conservation
of
the Trust Property and Distributions to Owners. Until the Indenture is
discharged, the Trust shall not engage in any business or activities other
than
in connection with, or relating to, the foregoing and other than as required
or
authorized by the terms of this Agreement and the Indenture, except as are
incidental to and necessary to accomplish such activities, unless the Interested
Noteholders consent to the Trust engaging in other activities.
(b) Until
the
Indenture is discharged, the operations of the Trust shall be conducted in
accordance with the following standards:
(i) The
Trust
will act solely in its own name and the Owner Trustee or other agents selected
in accordance with this Agreement will act on behalf of the Trust subject to
direction by the Owners as provided herein, but such action shall not be in
violation of the terms of this Agreement;
(ii) The
Trust’s funds and assets shall at all times be maintained separately from those
of the Owners and any of their respective Affiliates;
(iii) The
Trust
shall maintain complete and correct books, minutes of the meetings and
proceedings of the Owners, and records of accounts;
(iv) The
Trust
shall conduct its business at the office of the Owner Trustee and will use
stationery and other business forms of the Trust under its own name and not
that
of the Owners or any of their respective Affiliates, and will avoid the
appearance (A) of conducting business on behalf of any Owner or any Affiliate
of
an Owner or (B) that the assets of the Trust are available to pay the creditors
of the Owner Trustee or any Owner;
(v) The
Trust’s operating expenses shall be paid out of its own funds;
(vi) The
Trust
shall not incur, guarantee or assume any debt (other than the Notes) nor hold
itself out as being liable for the debts of any entity, including any Owner
or
any Affiliates of any Owner;
(vii) For
so
long as any of the Notes are outstanding, the Trust shall not (A) merge or
consolidate with or into any other entity, (B) convey or transfer all or
substantially all of its assets to any other entity (other than to the Indenture
Trustee pursuant to the Indenture), or (C) dissolve, liquidate or terminate
in
whole or in part; and
(viii) For
so
long as any of the Notes are outstanding, the Trust shall not own or acquire
any
financial asset that requires the Trust, the Owners or the Administrator to
make
any decisions regarding such asset other than the servicing of the
asset.
Section
2.04 Appointment
of the Owner Trustee. The Depositor hereby appoints the Owner
Trustee as trustee of the Trust, to have all the rights, powers and duties
set
forth herein and in the Statutory Trust Statute. The Owner Trustee acknowledges
receipt in trust from the Depositor, of the sum of one dollar ($1), constituting
the initial Trust Property.
Section
2.05 Declaration
of Trust. The Owner Trustee hereby declares that it will hold the
Trust Property in trust upon and subject to the conditions set forth herein
for
the use and benefit of the Owners, subject to the obligations of the Owner
Trustee under the Trust Related Agreements. It is the intention of the parties
hereto that the Trust constitute a statutory trust under the Statutory Trust
Statute and that this Agreement constitute the governing instrument of the
Trust.
Section
2.06 No
Liability of Owners for Expenses or Obligations of Trust. No
Owner shall be liable for any liability, expense or other obligation of the
Trust.
Section
2.07 Situs
of Trust. The Trust will be located and administered in the State
of Delaware. The Trust shall not have any employees in any state other than
in
the State of Delaware and payments will be received by the Owner Trustee on
behalf of the Trust only in the State of Delaware and payments will be made
by
the Owner Trustee on behalf of the Trust only from the State of
Delaware.
ARTICLE
III
TRUST
CERTIFICATES AND TRANSFER OF INTEREST
Section
3.01 Issuance
of Trust Certificate.
(a) As
of the
date hereof, as set forth on Schedule A attached hereto, the Depositor has
been
issued a Trust Certificate evidencing a percentage of the Beneficial Interest
in
the Trust and ▇▇▇▇ has been issued a Trust Certificate evidencing a percentage
of the Beneficial Interest in the Trust.
(b) Each
Trust Certificate shall be executed by manual signature on behalf of the Owner
Trustee by one of its Authorized Officers. Trust Certificates bearing the manual
signature of an individual who was, at the time when such signature was affixed,
authorized to sign on behalf of the Owner Trustee shall bind the Trust,
notwithstanding that such individual has ceased to be so authorized prior to
the
delivery of such Trust Certificate or does not hold such office at the date
of
such Trust Certificate. Each Trust Certificate shall be dated the date of its
issuance.
Section
3.02 Registration
and Transfer of Certificates.
(a) The
Owner
Trustee shall maintain at its office referred to in Section 2.02, or at the
office of any agent appointed by it and approved in writing by the Owners at
the
time of such appointment, a register for the registration and Transfer of Trust
Certificates. No Transfer of a Beneficial Interest shall be made unless such
Transfer is made pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the “1933 Act”), and state securities laws,
or is exempt from the registration requirements under the 1933 Act and state
securities laws.
(b) The
registered Owner of any Trust Certificate may Transfer all or any portion of
the
Beneficial Interest evidenced by such Trust Certificate upon surrender thereof
to the Owner Trustee accompanied by the documents required by Section 3.04.
Such
Transfer may be made by the registered Owner in person or by its attorney duly
authorized in writing upon surrender of the Trust Certificate to the Owner
Trustee accompanied by a written instrument of Transfer and with such signature
guarantees and evidence of authority of the Persons signing the instrument
of
Transfer as the Owner Trustee may reasonably require. Promptly upon the receipt
of such documents and receipt by the Owner Trustee of the transferor’s Trust
Certificate, the Owner Trustee shall (i) record the name of such transferee
as
an Owner and its Percentage Interest in the Trust Certificate register and
(ii)
issue, execute and deliver to such Owner a Trust Certificate evidencing such
Percentage Interest. In the event a transferor Transfers only a portion of
its
Beneficial Interest, the Owner Trustee shall register and issue to such
transferor a new Trust Certificate evidencing such transferor’s new Percentage
Interest. Subsequent to a Transfer and upon the issuance of the new Trust
Certificate or Trust Certificates, the Owner Trustee shall cancel and destroy
the Trust Certificate surrendered to it in connection with such Transfer. The
Owner Trustee may treat the Person in whose name any Trust Certificate is
registered as the sole Owner of the Beneficial Interest in the Trust evidenced
by such Trust Certificate.
(c) As
a
condition precedent to any registration of Transfer, the Owner Trustee may
require the payment of a sum sufficient to cover the payment of any tax or
taxes
or other governmental charges required to be paid in connection with such
Transfer and any other reasonable expenses connected therewith.
(d) The
Trust
Certificates may not be acquired or held by or for the account of a Plan (as
defined herein), except as permitted under Section 3.04(d) herein.
Section
3.03 Lost,
Stolen, Mutilated or Destroyed Certificates. If (i) any mutilated
Trust Certificate is surrendered to the Owner Trustee, or (ii) the Owner Trustee
receives evidence to its satisfaction that any Trust Certificate has been
destroyed, lost or stolen, and upon proof of ownership satisfactory to the
Owner
Trustee together with such security or indemnity as may be requested by the
Owner Trustee to save it harmless, the Owner Trustee shall execute and deliver
a
new Trust Certificate for the same Percentage Interest as the Trust Certificate
so mutilated, destroyed, lost or stolen, of like tenor and bearing a different
issue number, with such notations, if any, as the Owner Trustee shall determine.
In connection with the issuance of any new Trust Certificate under this Section
3.03, the Owner Trustee may require the payment by the registered Owner thereof
of a sum sufficient to cover any tax or other governmental charge that may
be
imposed in relation thereto and any other expenses (including the reasonable
fees and expenses of the Owner Trustee) connected therewith. Any replacement
Trust Certificate issued pursuant to this Section 3.03 shall constitute complete
and indefeasible evidence of ownership of a Beneficial Interest, as if
originally issued, whether or not the lost, stolen or destroyed Trust
Certificate shall be found at any time.
Section
3.04 Limitation
on Transfer of Ownership Rights.
(a) No
Transfer of all or any part of a Beneficial Interest after the date hereof
shall
be made to any Person unless (i) such Person delivers to the Owner Trustee
an
accession agreement substantially in the form of Exhibit 2 hereof, (ii) the
Owner Trustee shall have received a written opinion of counsel in form and
substance satisfactory to the Owner Trustee stating that such Transfer is exempt
from the 1933 Act and any applicable state securities laws.
(b) At
any
time that there is more than one Owner, no Transfer of a Beneficial Interest
shall be valid unless the Owner making such Transfer shall have received the
prior written consent to such Transfer of the Super-majority Owners, which
consent may not be unreasonably withheld; provided, however, that
in calculating the total Beneficial Interests in the Trust the Beneficial
Interest owned by the transferor or (unless the transferor and its Affiliates
are the only Owners) any Affiliate thereof shall be excluded.
(c) Except
for the initial issuance of the Trust Certificates to the Depositor, no Transfer
shall be valid if, as a result of such Transfer, (i) any Person would have
a
Percentage Interest or a Sharing Ratio of 100%, considering for such purpose
all
interests owned by any Affiliate of such Person as owned by such Person, or
(ii)
such Transfer would result in a termination of the Trust for Federal income
tax
purposes.
(d) No
Transfer of all or any part of a Beneficial Interest shall be made to any
employee benefit plan or certain other retirement plans and arrangements,
including individual retirement accounts and annuities, ▇▇▇▇▇ plans and bank
collective investment funds and insurance company general or separate accounts
in which such plans, accounts or arrangements are invested, that are subject
to
ERISA or Section 4975 of the Code (collectively, “Plan”), nor to any Person
acting, directly or indirectly, on behalf of any such Plan or any Person
acquiring the Beneficial Interest with “plan assets” of a Plan within the
meaning of the Department of Labor regulation promulgated at 29 C.F.R. §
2510.3-101 (“Plan Assets”) unless the Owner Trustee is provided with an opinion
of counsel which establishes to the satisfaction of the Owner Trustee that
the
purchase of the Beneficial Interest is permissible under applicable law, will
not constitute or result in any prohibited transaction under ERISA or Section
4975 of the Code and will not subject the Owners, the Owner Trustee or the
Trust
to any obligation or liability (including obligations or liabilities under
ERISA
or Section 4975 of the Code) in addition to that undertaken in this Agreement,
which opinion of counsel shall not be an expense of the Owners, the Owner
Trustee or the Trust.
(e) No
Transfer of all or any part of a Beneficial Interest shall be permitted, and
no
such transfer shall be effective hereunder, if such transfer would cause the
Trust to be classified as a publicly traded partnership, taxable as a
corporation for federal income tax purposes, by causing the Trust to have more
than 100 Owners at any time during any taxable year of the Trust.
Section
3.05 Assignment
of Right to Distributions. An Owner may assign all or any part of
its right to receive distributions hereunder, but such assignment (in the
absence of a permitted Transfer) shall effect no change in the ownership of
the
Trust.
ARTICLE
IV
CONCERNING
THE OWNERS
Section
4.01 Action
by Owners with Respect to Certain Matters.
(a) The
Owner
Trustee will take such action or refrain from taking such action under this
Agreement or any Trust Related Agreement as it shall be directed pursuant to
an
express provision of this Agreement or such Trust Related Agreement or, with
respect to nonministerial matters, as it shall be directed by all the Owners
for
so long as any of the Notes are outstanding.
(b) Without
limiting the generality of the foregoing, in connection with the following
nonministerial matters, the Owner Trustee will take no action, and will not
have
authority to take any such action, unless it receives prior written approval
from all the Owners for so long as any of the Notes are
outstanding:
(i) Initiate
any claim or lawsuit by the Trust and compromise any claim or lawsuit brought
by
or against the Trust, except for claims or lawsuits initiated in the ordinary
course of business by the Trust or its agents or nominees for collection on
the
Student Loans owned by the Trust;
(ii) Amend,
change or modify this Agreement or any Trust Related Agreement;
(iii) To
the
fullest extent permitted by applicable law, file a voluntary petition in
bankruptcy for the Trust, which in no event shall the Owner Trustee be permitted
to do or be instructed to do until at least 367 days after the payment in full
of the Outstanding Notes (as defined in the Indenture) issued by the Trust;
and
(iv) To
the
fullest extent permitted by applicable law, (A) institute proceedings to have
the Trust declared or adjudicated bankrupt or insolvent, (B) consent to the
institution of bankruptcy or insolvency proceedings against the Trust, (C)
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,
(D) 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, (E) make any assignment for the benefit of the
Trust’s creditors, (F) cause the Trust to admit in writing its inability to pay
its debts generally as they become due, or (G) 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”). No Owner shall have the power to take, and no
Owner shall take, any Bankruptcy Action with respect to the Trust or direct
the
Owner Trustee to take any Bankruptcy Action with respect to the
Trust.
(c) No
Owner
shall take any action to cause the filing of an involuntary petition in
bankruptcy against the Trust.
Section
4.02 Action
Upon Instructions.
(a) The
Owner
Trustee shall take such action or actions as may be specified in this Agreement
or in any instructions delivered in accordance with this Article IV or Article
VIII; provided, however, that the Owner Trustee shall not be
required to take any such action if it shall have reasonably determined, or
shall have been advised by counsel, that such action (i) is contrary to the
terms hereof or of any document contemplated hereby to which the Trust or the
Owner Trustee is a party or is otherwise contrary to law, (ii) is likely to
result in personal liability on the part of the Owner Trustee, unless the Owners
shall have provided to the Owner Trustee indemnification or security reasonably
satisfactory to the Owner Trustee against all costs, expenses and liabilities
arising from the Owner Trustee’s taking of such action, or (iii) would adversely
affect the status of the Trust as a partnership for Federal income tax
purposes.
(b) No
Owner
shall direct the Owner Trustee to take or refrain from taking any action
contrary to this Agreement or any Trust Related Agreement, nor shall the Owner
Trustee be obligated to follow any such direction, if given.
(c) Notwithstanding
anything contained herein or in any Trust Related Agreement to the contrary,
the
Owner Trustee shall not be required to take any action in any jurisdiction
other
than in the State of Delaware if the taking of such action will (i) require
the
consent or approval or authorization or order for the giving of notice to,
or
the registration with or taking of any action in respect of, any state or other
governmental authority or agency of any jurisdiction other than the State of
Delaware; (ii) result in any fee, tax or other governmental charge under the
laws of any jurisdiction or any political subdivision thereof in existence
on
the date hereof other than the State of Delaware becoming payable by the Owner
Trustee; or (iii) subject the Owner Trustee to personal jurisdiction in any
jurisdiction other than the State of Delaware for causes of action arising
from
acts unrelated to the consummation of the transactions by the Owner Trustee
contemplated hereby.
(d) The
Owner
Trustee shall not have the power to remove the Administrator under the
Administration Agreement or appoint a successor Administrator pursuant to the
Administration Agreement without written instruction by the Owners.
Section
4.03 Super-majority
Control. Except as otherwise expressly provided in this
Agreement, any action which may be taken or consent or instructions which may
be
given by the Owners under this Agreement may be taken by the Owners holding
in
the aggregate at least 85% of both the Percentage Interests and the Sharing
Ratios in the Trust at the time of such action (the “Super-majority Owners”).
Any written notice of the Owners delivered pursuant to this Agreement shall
be
effective only if signed by the Super-majority Owners at the time of the
delivery of such notice.
Section
4.04 Representations
and Warranties of the Depositor. The Depositor hereby represents
and warrants to the Owner Trustee as follows:
(a) Upon
the
receipt of the Trust Property by the Owner Trustee under this Agreement, the
Owner Trustee on behalf of the Trust will have good title to the Trust Property
free and clear of any lien.
(b) The
Trust
is not and will not be, upon conveyance of the Trust Property to the Owner
Trustee, an “Investment Company” or under the “control” of an “Investment
Company,” as such terms are defined in the Investment Company Act of 1940, as
amended.
(c) Except
for the filing of the Certificate of Trust with the Secretary of State, no
consent, approval, authorization or order of, or filing with, any court or
regulatory, supervisory or governmental agency or body is required under current
law in connection with the execution, delivery or performance by the Depositor
of this Agreement or the consummation of the transactions contemplated hereby;
provided, however, that no representation or warranty is made
herein as to compliance with Federal securities laws or the securities or “blue
sky” laws of any state.
(d) This
Agreement has been duly and validly authorized, executed and delivered by,
and
constitutes a valid and binding agreement of, the Depositor, enforceable in
accordance with its terms.
Section
4.05 Power
of Attorney.
(a) General. Each
Owner hereby irrevocably constitutes and appoints the Administrator, with full
power of substitution, such Owner’s true and lawful attorney-in-fact, in such
Owner’s name, place and stead, with full power to act jointly and severally, to
make, execute, sign, acknowledge, swear to, verify, deliver, file, record and
publish the following documents:
(i) Any
certificate, instrument or document to be filed by the Owners under the laws
of
any state, or with any governmental agency in connection with this
Agreement;
(ii) Any
certificate, instrument or document which may be required to effect the
continuation or the termination of the Trust, including any amendments to this
Agreement; provided such continuation or termination is in accordance with
the
terms of this Agreement; and
(iii) Any
written notice, instruction, instrument or document under Article XII of this
Agreement.
(b) Duration
of Power of Attorney. It is expressly intended by each of the
Owners that the Power of Attorney granted under this Section 4.05 is coupled
with an interest, and it is agreed that such Power of Attorney shall survive
(i)
the dissolution, death or incompetency of any Owner and (ii) the assignment
by
any Owner of the whole or any portion of such Owner’s Beneficial
Interest.
ARTICLE
V
INVESTMENT
AND APPLICATION OF TRUST FUNDS
Section
5.01 Investment
of Trust Funds. Unless otherwise directed in writing by the
Owners, income with respect to and proceeds of the Trust Property which are
received by the Owner Trustee more than one day prior to a Distribution Date
shall be invested and reinvested by the Owner Trustee in Eligible Investments.
Interest earned from such investment and reinvestment shall be credited to
the
Trust Property.
Section
5.02 Application
of Funds. Income with respect to and proceeds of Trust Property
held by the Owner Trustee on a Distribution Date shall be remitted directly
to
the Indenture Trustee for application in accordance with the Indenture for
so
long as any of the Notes is outstanding, and thereafter shall be applied by
the
Owner Trustee on such Distribution Date in the following order:
(i) First,
to pay any amounts due to the Owner Trustee under this Agreement;
(ii) Second,
to pay any amounts due to the Administrator under the Administration Agreement
and to the Structuring Advisor under the Structuring Advisory
Agreement;
(iii) Third,
to pay any amounts then due to any Person under the Trust Related
Agreements;
(iv) Fourth,
to pay any other expenses of the Trust; and
(v) Fifth,
to the Owners in accordance with Section 7.06.
All
payments to be made under this Agreement by the Owner Trustee shall be made
only
from the income and proceeds of the Trust Property and only to the extent that
the Owner Trustee has received such income or proceeds.
ARTICLE
VI
CAPITAL
Section
6.01 Tax
Characterization. It is intended that the Trust be characterized
and treated as a partnership for federal income tax purposes. To the extent
the
Trust is characterized and treated as anything other than a partnership for
federal, state or local income tax purposes, the Owners shall jointly and
severally be liable for, and hereby agree to indemnify the Trust for, any tax
liability arising out of such characterization. All references to a “Partner,”
the “Partners” and to the “Partnership” in this Agreement and in the provisions
of the Code and Regulations cited in this Agreement shall be deemed to refer
to
an Owner, the Owners and the Trust, respectively. The Tax Matters Partner of
the
Trust shall be as set forth in Article XIII.
Section
6.02 Initial
Capital Contributions of Owners. The Depositor shall make an
initial Capital Contribution in the amount of one dollar ($1) upon execution
of
this Agreement. Upon their accession to this Agreement as Owners and the
issuance of Trust Certificates to them in accordance with Section 3.01(a),
the
Owners will be deemed to have made initial Capital Contributions in the amounts
set forth on Schedule A attached hereto.
Section
6.03 Capital
Accounts. A capital account shall be maintained for each Owner
throughout the term of the Trust in accordance with the rules of section
1.704-1(b)(2)(iv) of the Regulations as in effect from time to time, and, to
the
extent not inconsistent therewith, to which the following provisions
apply:
(a) To
each
Owner’s Capital Account there shall be credited (i) the amount of money
contributed by such Owner to the Trust (including each Owner’s share of any
liabilities of the Trust assumed by such Owner as provided in section
1.704-1(b)(2)(iv)(c) of the Regulations), (ii) the fair market value of any
property contributed to the Trust by such Owner (net of liabilities secured
by
such contributed property that the Trust is considered to assume or take subject
to under section 752 of the Code), and (iii) such Owner’s share of Profit and
items of income and gain that are specially allocated pursuant to Sections
7.03
and 7.04 (other than any income or gain allocated to such Owner pursuant to
Section 7.03(f) in accordance with section 704(c) of the Code). The initial
Capital Contributions of each Owner are set forth on Schedule A attached
hereto.
(b) To
each
Owner’s Capital Account there shall be debited (i) the amount of money
distributed to such Owner by the Trust (including any liabilities of such Owner
assumed by the Trust as provided in section 1.704-1(b)(2)(iv)(c) of the
Regulations) other than amounts that are in repayment of debt obligations of
the
Trust to such Owner, (ii) the fair market value of property distributed to
such
Owner (net of liabilities secured by such distributed property that such Owner
is considered to assume or take subject to), and (iii) such Owner’s share of
Loss and items of loss or deduction that are specially allocated pursuant to
Sections 7.03 and 7.04 (other than any deduction or loss allocated to such
Owner
pursuant to Section 7.03(f) in accordance with section 704(c) of the
Code).
(c) The
Capital Account of a transferee Owner shall include the appropriate portion
of
the Capital Account of the Owner from whom the transferee Owner’s interest was
obtained.
(d) In
determining the amount of any liability, there shall be taken into account
section 752(c) of the Code and any other applicable provisions of the Code
and
Regulations.
The
foregoing provisions and the other provisions of this Agreement relating to
the
maintenance of Capital Accounts are intended to comply with section 1.704-1(b)
of the Regulations, and shall be interpreted and applied in a manner consistent
with such Regulations.
Section
6.04 Interest. No
Owner shall be entitled to interest on its Capital Contribution or on any Profit
retained by the Trust.
Section
6.05 No
Additional Capital Contributions. No Owner shall make an
additional Capital Contribution to the Trust, or receive a distribution from
the
Trust, of property unless this Agreement shall have first been amended to the
extent necessary to comply with the requirements of sections 704(b) and (c)
of
the Code regarding the distributive shares of, and the allocation of income,
gain, loss, deduction and credit among, partners of a partnership.
Section
6.06 Investment
of Capital Contributions. The cash Capital Contributions of the
Owners shall be invested by the Owner Trustee in accordance with Section
5.01.
Section
6.07 Repayment
and Return of Capital Contributions. The Owner Trustee shall have
no personal liability for the repayment of any Capital Contributions of the
Owners.
ARTICLE
VII
ALLOCATION
OF PROFIT AND LOSS; DISTRIBUTIONS
Section
7.01 Profit. After
giving effect to special allocations set forth in Section 7.03 and Section
7.04,
Profit for any Fiscal Year shall be allocated to the Owners in proportion to
their respective Sharing Ratios.
Section
7.02 Loss. After
giving effect to the special allocations set forth in Sections 7.03 and 7.04,
Loss for any Fiscal Year shall be allocated as follows:
(a) Special
Allocation of Loss Attributable to Note Defaults on ▇▇▇▇ Guaranteed
Loans. To the extent of any positive balance in TERI’s Capital
Account as an Owner, ▇▇▇▇ shall be specially allocated all Losses for such
Fiscal Year resulting from defaults, as determined pursuant to the ▇▇▇▇ Guaranty
Agreements, on the ▇▇▇▇ Guaranteed Loans owned by the Trust to the extent that
the Trust is not reimbursed for such Losses by ▇▇▇▇ as a guaranty payment
pursuant to the ▇▇▇▇ Guaranty Agreements.
(b) Other
Loss. All Loss not allocated pursuant to Section 7.02(a) shall be
allocated to the Owners in proportion to their Sharing Ratios.
(c) Effect
of Adjusted Capital Account Deficit. The Loss allocated pursuant
to Section 7.02(a) and (b) shall not exceed the maximum amount of Loss that
can
be so allocated without causing any Owner to have an Adjusted Capital Account
Deficit at the end of any Fiscal Year. In the event some but not all of the
Owners would have Adjusted Capital Account Deficits as a consequence of an
allocation of Loss pursuant to Section 7.02(a) and (b), the limitation set
forth
in this Section 7.02(c) shall be applied on an Owner by Owner basis so as to
allocate the maximum permissible Loss to each Owner under section
1.704-1(b)(2)(ii)(d) of the Regulations.
(d) Remaining
Loss. In the event that there is any remaining Loss in excess of
the limitation set forth in Section 7.02(c), such remaining Loss shall be
allocated among the Owners in proportion to their respective Sharing
Ratios.
Section
7.03 Special
Allocations.
(a) Minimum
Gain Chargeback. Except as otherwise provided in section
1.704-2(f) of the Regulations, notwithstanding any other provision of this
Section 7.03, if there is a net decrease in Partnership Minimum Gain during
any
Fiscal Year, each Owner shall be specially allocated items of Trust income
and
gain for such Fiscal Year (and, if necessary, subsequent Fiscal Years) in an
amount equal to such Owner’s share of the net decrease in Partnership Minimum
Gain, determined in accordance with section 1.704-2(g) of the Regulations.
Allocations pursuant to the previous sentence shall be made in proportion to
the
respective amounts required to be allocated to each Owner pursuant thereto.
The
items to be so allocated shall be determined in accordance with sections
1.704-2(f)(6) and 1.704-2(j)(2) of the Regulations. This Section 7.03(a) is
intended to comply with the minimum gain chargeback requirement in section
1.704-2(f) of the Regulations and shall be interpreted consistently
therewith.
(b) Owner
Minimum Gain Chargeback. Except as otherwise provided in section
1.704-2(i)(4) of the Regulations, notwithstanding any other provision of this
Section 7.03, if there is a net decrease in Partner Nonrecourse Debt Minimum
Gain attributable to a Partner Nonrecourse Debt during any Fiscal Year, each
Owner who has a share of the Partner Nonrecourse Debt Minimum Gain attributable
to such Partner Nonrecourse Debt, determined in accordance with section
1.704-2(i)(5) of the Regulations, shall be specially allocated items of
Partnership income and gain for such Fiscal Year (and, if necessary, subsequent
Fiscal Years) in an amount equal to such Partner’s share of the net decrease in
Partner Nonrecourse Debt Minimum Gain attributable to such Partner Nonrecourse
Debt, determined in accordance with section 1.704-2(i)(4) of the Regulations.
Allocations pursuant to the previous sentence shall be made in proportion to
the
respective amounts required to be allocated to each Partner pursuant thereto.
The items to be so allocated shall be determined in accordance with sections
1.704- 2(i)(4) and 1.704-2(j)(2) of the Regulations. This Section 7.03(b) is
intended to comply with the minimum gain chargeback requirement in section
1.704-2(i)(4) of the Regulations and shall be interpreted consistently
therewith.
(c) Qualified
Income Offset. In the event any Owner unexpectedly receives any
adjustments, allocations, or distributions described in section
1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5) or 1.704-1(b)(2)(ii)(d)(6)
of
the Regulations, items of Trust income and gain shall be specially allocated
to
the Owner in an amount and manner sufficient to eliminate, to the extent
required by the Regulations, the Adjusted Capital Account Deficit of the Owner
as quickly as possible, provided that an allocation pursuant to this Section
7.03(c) shall be made only if and to the extent that the Owner would have an
Adjusted Capital Account Deficit after all other allocations provided for in
this Article VII have been tentatively made as if this Section 7.03(c) were
not in this Agreement.
(d) Nonrecourse
Deductions. Nonrecourse Deductions for any Fiscal Year shall be
specially allocated among the Owners in proportion to their Sharing
Ratios.
(e) Partner
Nonrecourse Deductions. Any Partner Nonrecourse Deductions for
any Fiscal Year shall be specially allocated to the Owner who bears the economic
risk of loss with respect to the Partner Nonrecourse Debt to which such Partner
Nonrecourse Deductions are attributable in accordance with section 1.704-2(i)(1)
of the Regulations.
(f) Mandatory
Allocations Under Section 704(c) of the Code. Notwithstanding the
foregoing provisions of this Section 7.03, in the event section 704(c) of the
Code or section 704(c) of the Code principles applicable under section
1.704-1(b)(2)(iv) of the Regulations require allocations of income, gain,
deduction or loss in a manner different than that set forth above, the
provisions of section 704(c) of the Code and the Regulations thereunder shall
control such allocations. Any item of Trust income, gain, loss and deduction
with respect to any property (other than cash) that has been contributed by
a
Partner to the capital of the Trust or which has been revalued for Capital
Account purposes pursuant to section 1.744-1(b)(2)(iv) of the Regulations and
which is required to be allocated to such Partner for income tax purposes under
section 704(c) of the Code so as to take into account the variation between
the
tax basis of such property and its fair market value at the time of its
contribution shall be allocated solely for income tax purposes in the manner
required or permitted under section 704(c) of the Code using the “traditional
method” described in section 1.704-3(b) of the Regulations, provided,
however, that curative allocations consisting of the special allocation
of gain or loss upon the sale or other disposition of the contributed property
shall be made in accordance with section 1.704-3(c) of the Regulations to the
extent necessary to eliminate any disparity, to the extent possible, between
the
Partners’ book and tax Capital Accounts attributable to such property; further
provided, however, that any other method allowable under
applicable Regulations may be used for any contribution of property as to which
there is agreement between the contributing Partner and the
Administrator.
(g) Gross
Income Allocation. In the event any Owner has an Adjusted Capital
Account Deficit, such Owner shall be specially allocated items of Trust income
and gain in the amount of such excess as quickly as possible, provided that
an
allocation pursuant to this Section 7.03(g) shall be made only if and to the
extent that such Owner would have an Adjusted Capital Account Deficit after
all
other allocations provided for in this Section 7.03 have been made as if
Sections 7.03(c) and 7.03(g) were not in this Agreement.
Section
7.04 Curative
Allocations. The allocations set forth in Sections 7.02 and
7.03(a) through (e) (the “Regulatory Allocations”) are intended to comply with
certain requirements of the Regulations. It is the intent of the Owners that,
to
the extent possible, all Regulatory Allocations shall be offset either with
other Regulatory Allocations or with special allocations of other items of
Trust
income, gain, loss, or deduction. Therefore, notwithstanding any other provision
of this Article VII (other than the Regulatory Allocations), offsetting special
allocations of Trust income, gain, loss, or deduction shall be made so that,
after such offsetting allocations are made, each Owner’s Capital Account balance
is, to the extent possible, equal to the Capital Account balance such Owner
would have had if the Regulatory Allocations were not part of this Agreement
and
all Trust items were allocated pursuant to Sections 7.01 and 7.02. In making
such offsetting allocations, there shall be taken into account future Regulatory
Allocations under Section 7.03(a) and (b) that, although not yet made, are
likely to offset other Regulatory Allocations previously made under Section
7.03(d) and (e).
Section
7.05 Other
Allocation Rules.
(a) For
purposes of determining the Profit, Loss, or any other items allocable to any
period, Profit, Loss, and any such other items shall be determined on a daily,
monthly, or other basis, as determined by the Owner Trustee, under the direction
of the Super-majority Owners, using any method permissible under section 706
of
the Code and the Regulations thereunder.
(b) The
Owners are aware of the income tax consequences of the allocations made by
this
Article VII and hereby agree to be bound by the provisions of this Article
VII
in reporting their shares of Trust income and loss for income tax
purposes.
(c) Solely
for purposes of determining an Owner’s proportionate share of the “excess
nonrecourse liabilities” of the Trust within the meaning of section
1.752-3(a)(3) of the Regulations, the Owners’ interests in Trust profits are in
proportion to their Sharing Ratios.
(d) To
the
extent permitted by section 1.704-2(h)(3) of the Regulations, the Owner Trustee
shall endeavor to treat distributions of Net Cash Flow as having been made
from
the proceeds of a Nonrecourse Liability or a Partner Nonrecourse Debt only
to
the extent that such distributions would cause or increase an Adjusted Capital
Account Deficit for any Owner.
Section
7.06 Distribution
of Net Cash Flow. Except to the extent prohibited by any other
agreement to which the Trust is a party or is otherwise bound, Net Cash Flow
on
each Distribution Date shall be distributed on such Distribution Date to each
Owner in an amount equal to (i) the Profit allocated to such Owner under this
Article VII and not previously distributed to such Owner less (ii) the amount
of
Losses allocated to such Owner to the extent such Losses were not applied in
reduction of the amount of any previous distribution of Net Cash Flow to such
Owner. All payments to be made under this Agreement by the Owner Trustee shall
be made only from the income and proceeds of the Trust Property and only to
the
extent the Owner Trustee has received such income or proceeds.
Section
7.07 Distribution
Date Statement. With each distribution to an Owner pursuant to
Section 7.06, the Owner Trustee shall deliver a Distribution Date Statement
setting forth, for the period since the preceding Distribution
Date:
(a) Income
and proceeds received by the Owner Trustee with respect to the Trust
Property;
(b) Amounts
paid to the Owner Trustee;
(c) Amounts
paid to any Person pursuant to a Trust Related Agreement; and
(d) Amounts
paid for other expenses of the Trust.
Section
7.08 Allocation
of Tax Liability. In the event that any tax is imposed on the
Trust, such tax shall be charged against amounts otherwise distributable to
the
Owners in proportion to their respective Sharing Ratios. The Owner Trustee
is
hereby authorized to retain from amounts otherwise distributable to the Owners
sufficient funds to pay or provide for the payment of, and then to pay, such
tax
as is legally owed by the Trust (but such authorization shall not prevent the
Owner Trustee from contesting any such tax in appropriate proceedings, and
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings).
Section
7.09 Method
of Payment. All amounts payable to an Owner pursuant to this
Agreement shall be paid by the Owner Trustee to such Owner or a nominee therefor
by check payable to such Owner, mailed first class to the address of such Owner
appearing on the register maintained pursuant to Section 3.02, or by crediting
the amount to be distributed to such Owner to an account maintained by such
Owner with the Owner Trustee or by transferring such amount by wire transfer
in
immediately available funds to a banking institution with bank wire transfer
facilities for the account of such Owner, as instructed in writing from time
to
time by such Owner. The Owner Trustee may require an Owner to pay any wire
transfer fees incurred in connection with any wire transfer made to such
Owner.
Section
7.10 No
Segregation of Funds; No Interest. Subject to Sections
2.03(b)(ii) and 5.01, funds received by the Owner Trustee hereunder need not
be
segregated in any manner except to the extent required by law and may be
deposited under such general conditions as may be prescribed by law, and the
Owner Trustee shall not be liable for any interest thereon.
Section
7.11 Interpretation
and Application of Provisions by the Administrator. The Owner
Trustee shall appoint and authorize the Administrator to interpret and apply
the
provisions set forth in Articles V, VI, VII and XI regarding application of
funds, allocations of Profit and Loss and Distributions of Net Cash Flow, to
resolve any ambiguities that may result from such application and to provide
the
Owner Trustee and the Owners with clarification of any provision as may be
necessary or appropriate. The determinations of the Administrator shall be
binding upon the Owners.
ARTICLE
VIII
AUTHORITY
AND DUTIES OF THE OWNER TRUSTEE
Section
8.01 General
Authority. The Owner Trustee is authorized to take all actions
required or permitted to be taken by it pursuant to the terms of this Agreement,
the Trust Related Agreements and the Statutory Trust Statute. The Owner Trustee
is further authorized from time to time to take such action as the Administrator
directs with respect to the Trust Related Agreements.
Section
8.02 Specific
Authority. The Owner Trustee is hereby authorized and directed to
take the following actions:
(a) Execute
the Certificate of Trust;
(b) Execute
and deliver the Administration Agreement and the Back-up Agreement and on behalf
of the Trust, as well as the Trust Related Agreements, including without
limitation, the Trust Certificates and any other document contemplated by the
foregoing, in each case in such form as the Administrator shall approve, as
evidenced conclusively by the Owner Trustee’s execution thereof;
and
(c) Execute
and deliver on behalf of the Trust any documents necessary or appropriate,
in
such form as the Administrator shall approve, as evidenced conclusively by
the
Owner Trustee’s execution thereof, to cause the repurchase by ▇▇▇▇ or the Trust,
as the case may be, of any Student Loan Note required to be repurchased in
accordance with the ▇▇▇▇ Guaranty Agreements.
Section
8.03 General
Duties. It shall be the duty of the Owner Trustee to discharge
(or cause to be discharged) all of its responsibilities pursuant to the terms
of
this Agreement and to administer the Trust in the interest of the Owners.
Notwithstanding the foregoing, the Owner Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the Trust Related
Agreements to the extent the Administrator has agreed in the Administration
Agreement to perform such acts or to discharge such duties of the Owner Trustee
hereunder or under any Trust Related Agreement, and the Owner Trustee shall
not
be held liable for the default or failure of the Administrator to carry out
its
obligations under the Administration Agreement.
Section
8.04 Accounting
and Reports to the Owners, the Internal Revenue Service and
Others. The Administrator shall (a) maintain or cause to be
maintained the books of the Trust on a fiscal year basis using the accrual
method of accounting, (b) deliver to each Owner, within 60 days of the end
of
each Fiscal Year, or more often, as may be required by the Code and the
Regulations thereunder, a copy of the annual financial statement of the Trust
for such Fiscal Year and a statement in such form and containing such
information as may be required by such Regulations, and as is necessary and
appropriate to enable each Owner to prepare its federal and state income tax
returns, (c) file such tax returns and reports relating to the Trust, and make
such elections, including an election for the first taxable year of the Trust,
as may be necessary for the Trust to qualify as a partnership, or as may from
time to time be required under any applicable state or federal statute or rule
or regulation thereunder, (d) cause such tax returns to be signed in the manner
required by law, (e) collect or cause to be collected any withholding tax
required by the Code to be withheld by the Owner Trustee with respect to
distributions to Owners who are nonresident aliens or foreign corporations,
and
(f) cause to be mailed to each Owner copies of all such reports and tax returns
of the Trust.
Section
8.05 Signature
of Returns. The Owner Trustee shall sign on behalf of the Trust
the tax returns and other Periodic Filings of the Trust, unless applicable
law
requires an Owner to sign such documents, in which case, so long as the
Depositor is an Owner and applicable law allows the Depositor to sign any such
document, the Depositor shall sign such document. At any time that the Depositor
is not an Owner, or is otherwise not allowed by law to sign any such document,
then the Owner required by law to sign such document shall sign.
Section
8.06 Right
to Receive and Rely Upon Instructions. In the event that the
Owner Trustee is unable to decide between alternative courses of action, or
is
unsure as to the application of any provision of this Agreement or any Trust
Related Agreement, or such provision is ambiguous as to its application, or
is
or appears to be in conflict with any other applicable provision, or in the
event that this Agreement or any Trust Related Agreement permits any
determination by the Owner Trustee or is silent or is incomplete as to the
course of action which the Owner Trustee is required to take with respect to
a
particular set of facts, the Owner Trustee may give notice (in such form as
shall be appropriate under the circumstances) to the Owners requesting
instructions and, to the extent that the Owner Trustee shall have acted or
refrained from acting in good faith in accordance with any instructions received
from the Owners, the Owner Trustee shall not be liable to any Person on account
of such action or inaction. If the Owner Trustee shall not have received
appropriate instructions within ten days of such notice (or within such shorter
period of time as may be specified in such notice) the Owner Trustee may, but
shall be under no duty to, take or refrain from taking such action, not
inconsistent with this Agreement or the Trust Related Agreements, as the Owner
Trustee shall deem to be in the best interests of the Owners, and the Owner
Trustee shall have no liability to any Person for such action or
inaction.
Section
8.07 No
Duties Except as Specified in this Agreement or in
Instructions. The Owner Trustee shall not have any duty or
obligation to manage, make any payment in respect of, register, record, sell,
dispose of or otherwise deal with the Trust Property, or to otherwise take
or
refrain from taking any action under, or in connection with, any document
contemplated hereby to which the Owner Trustee or the Trust is a party, except
as expressly provided by the terms of this Agreement, and no implied duties
or
obligations shall be read into this Agreement against the Owner Trustee. The
Owner Trustee nevertheless agrees that it will, at its own cost and expense,
promptly take all action as may be necessary to discharge any liens on any
part
of the Trust Property which result from claims against the Owner Trustee
personally that are not related to the ownership or the administration of the
Trust Property or the transactions contemplated by the Trust Related
Agreements.
Section
8.08 No
Action Except Under Specified Documents or Instructions. The
Owner Trustee shall not manage, control, use, sell, dispose of or otherwise
deal
with any part of the Trust Property except (a) in accordance with the powers
granted to and the authority conferred upon the Owner Trustee pursuant to this
Agreement, and (b) in accordance with instructions delivered to the Owner
Trustee pursuant to Section 8.06 and Article IV hereof.
Section
8.09 Restriction. Notwithstanding
anything herein to the contrary, the Owner Trustee shall not take any action
(a)
that is inconsistent with the purposes of the Trust or (b) that would result
in
the Trust being treated as an association taxable as a corporation for Federal
income tax purposes.
ARTICLE
IX
CONCERNING
THE OWNER TRUSTEE
Section
9.01 Acceptance
of Trusts and Duties. The Owner Trustee accepts the trusts hereby
created and agrees to perform its duties hereunder with respect to the same
but
only upon the terms of this Agreement. The Owner Trustee shall not be personally
liable under any circumstances, except (a) for its own willful misconduct,
bad
faith or gross negligence, (b) for liabilities arising from the failure by
the
Owner Trustee to perform obligations expressly undertaken by it in the last
sentence of Section 8.07, (c) for the inaccuracy of the representations and
warranties of the Owner Trustee contained in Section 9.05, or (d) for taxes,
fees or other charges on, based on or measured by any fees, commissions or
compensation received by the Owner Trustee in connection with any of
the transactions contemplated by this Agreement or the Trust Related Agreements.
In particular, but not by way of limitation:
(i) The
Owner
Trustee shall not be personally liable for any error of judgment made in good
faith by an Authorized Officer of the Owner Trustee;
(ii) The
Owner
Trustee shall not be personally liable with respect to any action taken or
omitted to be taken by the Owner Trustee in good faith in accordance with the
written instructions of the Administrator or the Owners;
(iii) No
provision of this Agreement shall require the Owner Trustee to expend or risk
its personal funds or otherwise incur any financial liability in the performance
of any of its rights or powers hereunder if the Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or provided
to it;
(iv) Under
no
circumstance shall the Owner Trustee be personally liable for any indebtedness
of the Trust under any Trust Related Agreement;
(v) The
Owner
Trustee shall not be personally responsible for or in respect of the validity
or
sufficiency of this Agreement or for the due execution hereof by the Depositor,
or for the form, character, genuineness, sufficiency, value or validity of
any
Student Loan or Trust Certificate (other than with respect to the due execution
thereby by an Authorized Officer), or for or in respect of the validity or
sufficiency of the Administration Agreement or the Trust Related Agreements;
and
(vi) The
Owner
Trustee shall not be liable for the default or misconduct of the Administrator
under any of the Trust Related Agreements or otherwise and the Owner Trustee
shall have no obligation or liability to perform the obligations of the Trust
hereunder or under any Trust Related Agreement that are required to be performed
by the Administrator under the Administration Agreement.
Section
9.02 Furnishing
of Documents. The Owner Trustee shall furnish to the Owners,
promptly upon receipt thereof, duplicates or copies of all material reports,
notices, requests, demands, certificates, financial statements and any other
instruments furnished to the Owner Trustee hereunder (other than documents
originated by or otherwise furnished to such Owners).
Section
9.03 Reliance;
Advice of Counsel.
(a) The
Owner
Trustee shall incur no liability to anyone in acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report,
opinion, note or other document or paper believed by it to be genuine and
believed by it to be signed by the proper party or parties. The Owner Trustee
may accept a certified copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full
force
and effect. As to any fact or matter the manner of ascertainment of which is
not
specifically prescribed herein, the Owner Trustee may for all purposes hereof
rely on a certificate, signed by the president or any vice president or by
the
treasurer or any assistant treasurer or the secretary of the relevant party,
as
to such fact or matter, and such certificate shall constitute full protection
to
the Owner Trustee for any action taken or omitted to be taken by it in good
faith in reliance thereon.
(b) In
the
exercise or administration of the trusts hereunder and in the performance of
its
duties and obligations under any of the Trust Related Agreements, the Owner
Trustee (i) may act directly or, at the expense of the Trust, through agents
or
attorneys pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the default or misconduct of such agents or
attorneys if such agents or attorneys shall have been selected by the Owner
Trustee with reasonable care; and (ii) may, at the expense of the Trust, consult
with counsel, accountants and other skilled persons to be selected with
reasonable care and employed by it, and the Owner Trustee shall not be liable
for anything done, suffered or omitted in good faith by it in accordance with
the advice or opinion of any such counsel, accountants or other skilled
persons.
Section
9.04 Not
Acting in Individual Capacity. Except as expressly provided in
this Article IX, in accepting the trusts hereby created, the Owner Trustee
acts
solely as trustee hereunder and not in its individual capacity, and all Persons
having any claim against the Owner Trustee by reason of the transactions
contemplated by this Agreement or the Trust Related Agreements shall look only
to the Trust Property for payment or satisfaction thereof.
Section
9.05 Representations
and Warranties of Owner Trustee. The Owner Trustee represents and
warrants to the Depositor that (a) the Owner Trustee meets the requirements
of
(i) Rule 3(a)(7) promulgated under the Investment Company Act of 1940, as
amended, and (ii) section 3807 of the Statutory Trust Statute and (b) the
Owner Trustee or the Owner Trustee’s parent entity has a combined capital and
surplus of at least $50,000,000.
ARTICLE
X
COMPENSATION
OF OWNER TRUSTEE
Section
10.01 Owner
Trustee’s Fees and Expenses. The Owner Trustee shall be entitled
to compensation for its services hereunder from the Trust pursuant to the
Indenture and, to the extent not paid by the Administrator on behalf of the
Trust, the Owner Trustee shall receive such compensation from The First
Marblehead Corporation, as set forth in a separate fee agreement between The
First Marblehead Corporation, the Depositor and the Owner Trustee. The Owner
Trustee shall be entitled to be reimbursed by the Trust for its reasonable
expenses hereunder pursuant to the Indenture and, to the extent not paid by
the
Administrator on behalf of the Trust, the Owner Trustee shall receive such
reimbursement from The First Marblehead Corporation, including the reasonable
compensation, expenses and disbursements of such agents, representatives,
experts and counsel as the Owner Trustee may employ in connection with the
exercise and performance of its rights and duties under this Agreement and
the
Trust Related Agreements.
Section
10.02 Indemnification. The
National Collegiate Funding LLC and The Education Resources Institute, Inc.
shall be jointly and severally liable for, and hereby agree to, indemnify
Wilmington Trust Company, individually and as Owner Trustee, and its successors,
assigns, agents and servants, from and against any and all liabilities,
obligations, losses, damages, taxes (other than taxes incurred as the result
of
the payment of fees and expenses pursuant to Section 10.01), claims, actions,
suits, costs, expenses and disbursements (including legal fees and expenses)
of
any kind and nature whatsoever which may be imposed on, incurred by or asserted
at any time against the Owner Trustee (whether or not indemnified against by
other parties) in any way relating to or arising out of this Agreement, any
Trust Related Agreement, the administration of the Trust Property or the action
or inaction of the Owner Trustee hereunder, except only that the Owners shall
not be required to indemnify the Owner Trustee for expenses arising or resulting
from any of the matters described in the second sentence of Section 9.01. The
indemnities contained in this Section 10.02 shall survive the termination of
this Agreement. The obligations of The National Collegiate Funding LLC and
The
Education Resources Institute, Inc. pursuant to this Section 10.02 shall be
borne in proportion to their respective Percentage Interests.
Section
10.03 Lien
on Trust Property. Following the retirement of the Notes, the
Owner Trustee shall have a lien on the Trust Property for any compensation
or
expenses and indemnity due hereunder which lien shall be prior to all other
liens.
Section
10.04 Payments
to the Owner Trustee. Any amounts paid to the Owner Trustee from
the Trust Property pursuant to this Article X shall be deemed not to be part
of
the Trust Property immediately after such payment.
ARTICLE
XI
TERMINATION
OF TRUST
Section
11.01 Termination
of Trust.
(a) The
trust
created hereby shall dissolve and terminate and, except as otherwise provided
in
this Article XI, this Agreement shall be of no further force or effect, upon
the
earlier of (i) if the Notes are no longer outstanding, the unanimous consent
of
the Owners, (ii) if the Notes are no longer outstanding, the sale or other
final
disposition by the Owner Trustee of the Trust Property and the final
distribution by the Owner Trustee of all funds or other property or proceeds
of
the Trust Property in accordance with the terms of this Agreement and the Trust
Related Agreements, and (iii) 21 years less one day after the death of the
survivor of the descendants living on the date of this Agreement of ▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇, the late Ambassador of the United States to the Court of St.
▇▇▇▇▇.
(b) The
bankruptcy, death, incapacity, dissolution or termination of any Owner shall
not
operate to dissolve or terminate this Agreement, nor entitle such Owner’s legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of the Trust Property,
nor
otherwise affect the rights, obligations and liabilities of the parties
hereto.
(c) Upon
the
termination of the Trust pursuant to this Article XI, the Owner Trustee shall
cause a Certificate of Termination to be filed with the Secretary of
State.
Section
11.02 Distribution
of Assets. Upon dissolution and termination of the Trust, the
Owner Trustee shall take full account of the Trust assets and liabilities,
shall
liquidate the assets as promptly as is consistent with obtaining the fair value
thereof, and shall apply and distribute the proceeds therefrom in the following
order:
(a) To
the
payment of the expenses of liquidation and the debts and liabilities of the
Trust;
(b) To
the
setting up of reserves which the Owner Trustee may deem necessary or appropriate
for anticipated obligations or contingencies of the Trust arising out of or
in
connection with the operation of the Trust. Such reserves may be paid over
by
the Owner Trustee to an escrow agent or trustee selected by the Owner Trustee
to
be disbursed by such escrow agent or trustee in payment of any of such
obligations or contingencies and, if any balance remains at the expiration
of
such period as the Owner Trustee shall deem advisable, to be distributed by
such
escrow agent or trustee in the manner hereinafter provided;
(c) To
each
of the Owners, other than ▇▇▇▇, in accordance with the positive balances in
each
such Owner’s Capital Account to the extent of the aggregate unreturned Capital
Contributions of such Owner credited therein; and
(d) To
the
Owners, the balance of any proceeds in accordance with the positive balances
in
their respective Capital Accounts; provided that with respect to any
distribution to ▇▇▇▇, such distribution shall be reduced by the amount of money
paid to ▇▇▇▇ by the Trust in accordance with paragraph 4 of the Section 2.05
Supplement to Master Loan Guaranty Agreement between ▇▇▇▇ and The First
Marblehead Corporation dated April 30, 2001 less the amount by which aggregate
Distributions to ▇▇▇▇ of Net Cash Flow pursuant to Section 7.06 hereof have
been
reduced by the application of subsection (iii) thereof, and any such reduction
shall be distributed to the Owners other than ▇▇▇▇ in accordance with the
positive balances in their respective Capital Accounts.
If,
at
the time of liquidation, the Owner Trustee shall determine that an immediate
sale of some or all of the assets would cause undue loss to the Owners, the
Owner Trustee may, in order to avoid such loss and with the consent of the
Owners, defer liquidation.
Section
11.03 No
Termination by Depositor or Owners. Except as provided in
Section 11.01, neither the Depositor nor the Owners shall be entitled to
terminate or revoke the Trust established hereunder.
ARTICLE
XII
SUCCESSOR
OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section
12.01 Resignation
of Owner Trustee; Appointment of Successor.
(a) The
Owner
Trustee may resign at any time without cause by giving at least 60 days’ prior
written notice to the Administrator and the Owners, such resignation to be
effective upon the acceptance of appointment by a successor Owner Trustee under
Section 12.01(b). In addition, the Super-majority Owners may at any time remove
the Owner Trustee without cause by an instrument in writing delivered to the
Owner Trustee and the Administrator, such removal to be effective upon the
acceptance of appointment by a successor Owner Trustee under Section 12.01(b).
In case of the resignation or removal of the Owner Trustee, the Owners may
appoint a successor Owner Trustee by an instrument signed by the Owners. If
a
successor Owner Trustee shall not have been appointed within 30 days after
the
giving of written notice of such resignation or the delivery of the written
instrument with respect to such removal, the Owner Trustee or the Owners may
apply to any court of competent jurisdiction to appoint a successor Owner
Trustee to act until such time, if any, as a successor Owner Trustee shall
have
been appointed as provided above. Any successor Owner Trustee so appointed
by
such court shall immediately and without further act be superseded by any
successor Owner Trustee appointed as above provided within one year from the
date of the appointment by such court.
(b) Any
successor Owner Trustee, however appointed, shall execute and deliver to the
predecessor Owner Trustee an instrument accepting such appointment, and
thereupon such successor Owner Trustee, without further act (except for the
filing required under clause (e) below), shall become vested with all the
estates, properties, rights, powers, duties and trust of the predecessor Owner
Trustee in the trusts hereunder with like effect as if originally named the
Owner Trustee herein; but nevertheless, upon the written request of such
successor Owner Trustee and the payment of all fees and indemnities due the
predecessor Owner Trustee, such predecessor Owner Trustee shall execute and
deliver an instrument transferring to such successor Owner Trustee, upon the
trusts herein expressed, all the estates, properties, rights, powers, duties
and
trusts of such predecessor Owner Trustee, and such predecessor Owner Trustee
shall duly assign, transfer, deliver and pay over to such successor Owner
Trustee all funds or other property then held or subsequently received by such
predecessor Owner Trustee upon the trusts herein expressed.
(c) Any
successor Owner Trustee, however appointed, shall be a bank or trust company
(i)
that meets the requirements of (A) Rule 3(a)(7) promulgated under the Investment
Company Act of 1940, as amended, and (B) section 3807 of the Statutory Trust
Statute and (ii) whose parent entity has a combined capital and surplus of
at
least $50,000,000, if there be such an institution willing, able and legally
qualified to perform the duties of the Owner Trustee hereunder upon reasonable
or customary terms.
(d) Any
corporation into which the Owner 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 Owner Trustee shall be a party, or
any
corporation to which substantially all the corporate trust business of the
Owner
Trustee may be transferred, shall, subject to the terms of Section 12.01(c),
be
the Owner Trustee under this Agreement without further act.
(e) Any
successor Owner Trustee appointed pursuant to this Article XII shall file an
amendment to the Certificate of Trust with the Secretary of State reflecting
the
name and principal place of business of such successor Owner
Trustee.
Section
12.02 Appointment
of Additional Owner Trustees. At any time or times for the
purpose of meeting any legal requirements of any jurisdiction in which any
part
of the Trust Property may at the time be located, the Owner Trustee and the
Administrator, acting jointly, by an instrument in writing, may appoint one
or
more individuals or corporations approved by the Administrator and the Owner
Trustee to act as separate trustee or separate trustees of all or any part
of
the Trust Property to the full extent that local law makes it necessary or
appropriate for such separate trustee or separate trustees to act alone. If
the
Administrator shall not have joined in such appointment within fifteen days
after the receipt of such request, the Owner Trustee, acting alone, shall have
the power to make such appointment.
ARTICLE
XIII
TAX
MATTERS PARTNER
Section
13.01 Tax
Matters Partner. The tax matters partner (within the
meaning of section 6231(a)(7) of the Code and applicable Regulations) of the
Trust for all federal income tax purposes set forth in the Code shall be The
National Collegiate Funding LLC. Subject to Section 13.08, the tax matters
partner shall have the authority to represent the Trust and perform the duties
imposed on the tax matters partner under the Code, and as set forth in this
Article XIII.
Section
13.02 Notice
of Tax Audit. The tax matters partner shall give prompt notice to
the Owners upon receipt of advice that the Internal Revenue Service intends
to
examine Trust income tax returns for any year.
Section
13.03 Authority
to Extend Period for Assessing Tax. Subject to Section 13.08, the
tax matters partner shall have the authority to extend the period for assessing
any tax imposed on any Owner under the Code by any agreement as provided for
under section 6229(b)(1)(B) of the Code.
Section
13.04 Choice
of Forum for Filing Petition for Readjustment. Any petition for
readjustment may, but is not required to, be filed by the tax matters partner
in
accordance with section 6226(a) of the Code in the United States District Court
for the district in which the Trust’s principal place of business is located, or
the United States Claims Court.
Section
13.05 Authority
to Bind Owners by Settlement Agreement. Subject to
Section 13.08, the tax matters partner shall enter into a settlement
agreement in accordance with section 6224(c)(3) of the Code as directed by
the
Owners.
Section
13.06 Notices
Sent to the Internal Revenue Service. The tax matters partner
shall use its best efforts to furnish to the Internal Revenue Service the name,
address, profits interest and taxpayer identification number of each Owner
and
any additional information it receives from each Owner regarding any change
in
that Owner’s name, address, profits interest and taxpayer identification number.
In no event shall the tax matters partner be liable, responsible or accountable
in damages or otherwise to the Owner for any loss in connection with furnishing
such information to the Internal Revenue Service if the tax matters partner
acts
in good faith and is not guilty of fraud or gross negligence.
Section
13.07 Indemnification
of Tax Matters Partner. The Trust shall indemnify and save
harmless the tax matters partner against any loss, damage, cost or expense
(including attorneys’ fees) incurred by it as a result of any act performed or
omitted on behalf of the Trust or any Owner or in furtherance of the Trust’s
interests or the interests of the Owner, in its capacity as tax matters partner,
without, however, relieving the tax matters partner of liability for bad faith,
fraud or gross negligence.
Section
13.08 Approval
of Tax Matters Partner’s Decisions. The tax matters partner shall
call a meeting of the Owners at any time in order to discuss any decisions
the
tax matters partner may propose to make, notice of which shall be included
in
the notice of such meeting. The tax matters partner shall make no decision
and
take no action with respect to the determination, assessment or collection
of
any tax imposed by the Code on the Owners unless and until such decision has
been approved by the Owners.
Section
13.09 Participation
by Owners in Internal Revenue Service Administrative
Proceedings. Nothing contained in this Article XIII shall be
construed to take away from any Owner any right granted to such person by the
Code to participate in any manner in administrative proceedings of the Internal
Revenue Service.
ARTICLE
XIV
MISCELLANEOUS
Section
14.01 Supplements
and Amendments.
(a) This
Agreement may be amended only by a written instrument signed by the Owner
Trustee and all of the Owners at the time of such amendment and upon
satisfaction of the Rating Agency Condition (as defined in the Indenture) and,
so long as any of the Notes are outstanding or any amounts are owed to the
Note
Insurer, the consent of the Note Insurer; provided, however, that if, in the
opinion of the Owner Trustee, any instrument required to be so executed
adversely affects any right, duty or liability of, or immunity or indemnity
in
favor of, the Owner Trustee under this Agreement or any of the documents
contemplated hereby to which the Owner Trustee or the Trust is a party, or
would
cause or result in any conflict with or breach of any terms, conditions or
provisions of, or default under, the charter documents or by-laws of the Owner
Trustee or any document contemplated hereby to which the Owner Trustee is a
party, the Owner Trustee may in its sole discretion decline to execute such
instrument. The Certificate of Trust shall be amended (except as required by
the
Statutory Trust Statute) only upon satisfaction of the Rating Agency Condition
(as defined in the Indenture) and, so long as any of the Notes are outstanding
or any amounts are owed to the Note Insurer, the consent of the Note Insurer.
The Owner Trustee shall be fully protected in relying upon a certificate of
the
Administrator in determining if the Rating Agency Condition (as defined in
the
Indenture) has been satisfied.
(b) The
Trust
shall not change its jurisdiction of formation without first satisfying the
Rating Agency Condition (as defined in the Indenture) and, so long as any of
the
Notes are outstanding or any amounts are owed to the Note Insurer, obtaining
the
consent of the Note Insurer.
Section
14.02 No
Legal Title to Trust Property in Owner. Legal title to all Trust
Property shall be vested at all times in the Trust as a separate legal entity,
except where the laws of any jurisdiction require title to be vested in a
trustee in which case legal title shall be vested in the Owner Trustee on behalf
of the Trust. If any portion of the Trust Property is deemed vested in the
Owner
Trustee, the Owner Trustee, upon an Authorized Officer having actual knowledge
thereof, will immediately notify the Indenture Trustee and the Administrator,
and the Administrator will cause to be filed such UCC financing statements
and
related filing documents or writings as are necessary to maintain the Indenture
Trustee’s security interest in the Trust Property. The Owner Trustee
shall have no duty or obligation to independently investigate whether legal
title to any Trust Property is deemed vested in the Owner
Trustee. The Owners shall not have legal title to any part of the
Trust Property and shall only have an undivided beneficial interest therein.
No
transfer, by operation of law or otherwise, of any right, title and interest
of
the Owners in and to their undivided Beneficial Interests in the Trust Property
hereunder shall operate to terminate this Agreement or the trusts hereunder
or
entitle any successor transferee to an accounting or to the transfer to it
of
legal title to any part of the Trust Property.
Section
14.03 Pledge
of Collateral by Owner Trustee is Binding. The pledge of any
Trust Property to any Person by the Owner Trustee made under any Trust Related
Agreement and pursuant to the terms of this Agreement shall bind the Owners
and
shall be effective to transfer or convey the rights of the Owner Trustee and
the
Owners in and to such Trust Property to the extent set forth in such Trust
Related Agreement. No purchaser or other grantee shall be required to inquire
as
to the authorization, necessity, expediency or regularity of such pledge or
as
to the application of any proceeds with respect thereto by the Owner
Trustee.
Section
14.04 Limitations
on Rights of Others. Nothing in this Agreement, whether express
or implied, shall be construed to give to any Person other than the Owner
Trustee, the Administrator and the Owners any legal or equitable right, remedy
or claim in the Trust Property or under or in respect of this Agreement or
any
covenants, conditions or provisions contained herein provided,
however, that for so long as any of the Notes are outstanding or any
amounts are owed to the Indenture Trustee or the Note Insurer, the Noteholders
and the Note Insurer are third party beneficiaries hereof.
Section
14.05 Notices. Unless
otherwise expressly specified or permitted by the terms hereof, all notices
shall be in writing and delivered by hand or mailed by certified mail, postage
prepaid, if to the Owner Trustee, addressed to: Wilmington Trust Company, ▇▇▇▇▇▇
Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, Attention:
Corporate Trust Administration, or to such other address as the Owner Trustee
may have set forth in a written notice to the Owners; and if to an Owner,
addressed to it at the address set forth for such Owner in the register
maintained by the Owner Trustee. Whenever any notice in writing is required
to
be given by the Owner Trustee hereunder, such notice shall be deemed given
and
such requirement satisfied 72 hours after such notice is mailed by certified
mail, postage prepaid, addressed as provided above; any notice given by an
Owner
to the Owner Trustee shall be effective upon receipt by an Authorized Officer
of
the Owner Trustee. A copy of any notice delivered to the Owner Trustee shall
also be delivered to the Administrator, addressed to: The First Marblehead
Data
Services, Inc., The Prudential Tower, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, with a copy to First
Marblehead Corporation, The Prudential Tower, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Administration, or to such
other addresses as the Administrator may have set forth in a written notice
to
the Owner Trustee.
Section
14.06 Severability. Any
provision of this Agreement which 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
14.07 Separate
Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
Section
14.08 Successors
and Assigns. All covenants and agreements contained herein shall
be binding upon, and inure to the benefit of, the Owner Trustee and its
successors and assigns and each Owner and its successors and permitted assigns,
all as herein provided. Any request, notice, direction, consent, waiver or
other
instrument or action by an Owner shall bind the successors and assigns of such
Owner.
Section
14.09 Headings. The
headings of the various Articles and Sections herein are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
Section
14.10 Governing
Law. This Agreement shall in all respects be governed by, and
construed in accordance with, the laws of the State of Delaware (excluding
conflict of law rules), including all matters of construction, validity and
performance.
Section
14.11 General
Interpretive Principles. For purposes of this Agreement, except
as otherwise expressly provided or unless the context otherwise
requires:
(a) The
defined terms in this Agreement include the plural as well as the singular,
and
the use of any gender herein shall be deemed to include any other
gender;
(b) Accounting
terms not otherwise defined herein have the meanings assigned to them in
accordance with generally accepted accounting principles as in effect on the
date hereof;
(c) References
herein to “Articles,” “Sections,” “paragraphs” and other subdivisions without
reference to a document are to designated Articles, Sections, paragraphs and
other subdivisions of this Agreement;
(d) A
reference to a paragraph without further reference to a Section is a reference
to such paragraph as contained in the same Section in which the reference
appears, and this rule shall also apply to subparagraphs and other
subdivisions;
(e) The
words
“herein,” “hereof,” “hereunder” and other words of similar import refer to this
Agreement as a whole and not to any particular provision; and
(f) The
term
“include” or “including” shall mean without limitation by reason of
enumeration.
IN
WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to the
duly
executed by their respective officers hereunto duly authorized, as of the day
and year first above written.
|
WILMINGTON
TRUST COMPANY, not in its individual capacity except as expressly
provided
herein, but solely as Owner Trustee
|
|||||
|
By:
|
/s/
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
|
||||
|
Name:
|
▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
|
||||
|
Title:
|
Vice
President
|
||||
|
THE
NATIONAL COLLEGIATE FUNDING, LLC, as Depositor and
Owner
|
|||||
|
By: GATE
Holdings, Inc., Member
|
|||||
|
By:
|
/s/
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
||||
|
Name:
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
|
||||
|
Title:
|
Vice
President
|
||||
|
THE
EDUCATION RESOURCES INSTITUTE, INC., as Owner
|
|||||
|
By:
|
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
|
||||
|
Name:
|
▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ III
|
||||
|
Title:
|
President
and Chief Executive Officer
|
||||
|
ACKNOWLEDGED
WITH RESPECT
TO
THE POWER ATTORNEY
GRANTED
IN SECTION 4.05
|
|||
|
FIRST
MARBLEHEAD DATA SERVICES, INC.
|
|||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
|
||
|
Name:
|
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
|
||
|
Title:
|
President
|
||
Trust
Agreement (NCSLT 2007-3)
SCHEDULE
A
|
Owners
|
Capital
Contributions
($)
|
Sharing
Ratio
(%)
|
Percentage
Interest
(%)
|
|||
|
The
National Collegiate Funding LLC
|
$1.00
|
79.2522%
|
|
79.2522%
|
||
|
The
Education Resources Institute, Inc.
|
None
|
20.7478%
|
20.7478%
|
|||
SCHEDULE
B
Loan
Originators
|
·
|
Bank
of America, N.A.
|
|
·
|
Charter
One Bank, N.A.
|
|
·
|
Citizens
Bank of Rhode Island
|
|
·
|
Comerica
Bank
|
|
·
|
First
National Bank Northeast
|
|
·
|
HSBC
Bank USA, National Association
|
|
·
|
The
Huntington National Bank
|
|
·
|
InsurBanc
|
|
·
|
JPMorgan
Chase Bank, N.A.
|
|
·
|
KeyBank
National Association
|
|
·
|
Manufacturers
and Traders Trust Company
|
|
·
|
National
City Bank
|
|
·
|
PNC
Bank, N.A.
|
|
·
|
Sovereign
Bank
|
|
·
|
SunTrust
Bank
|
|
·
|
Union
Federal Savings Bank
|
|
·
|
U.S.
Bank National Association
|
SCHEDULE
C
Note
Purchase Agreements
Each
of
the Note Purchase Agreements, as amended or supplemented, was entered into
by
and between The First Marblehead Corporation and:
|
·
|
Bank
of America, N.A., dated April 30, 2001, for loans that were originated
under Bank of America’s Private Loan Program, ▇▇▇▇ School Channel Loan
Program and ISLP Loan Program.
|
|
·
|
Bank
of America, N.A., dated June 30, 2006, for loans that were originated
under Bank of America’s Private Loan Program, ▇▇▇▇ School Channel Loan
Program and ISLP Loan Program.
|
|
·
|
Bank
of America, N.A., dated April 1, 2006, for loans that were originated
under Bank of America’s Direct to Consumer Loan
Program.
|
|
·
|
Charter
One Bank, N.A., dated as of December 29, 2003 for loans that were
originated under Charter One’s AAA Southern New England Bank Loan
Program.
|
|
·
|
Charter
One Bank, N.A., dated October 31, 2003, for loans that were originated
under Charter One’s AES EducationGAIN Loan
Program.
|
|
·
|
Charter
One Bank, N.A., dated June 30, 2003, for loans that were originated
under
Charter One’s Citibank Education Assistance Loan
Program.
|
|
·
|
Charter
One Bank, N.A., dated July 1, 2002, for loans that were originated
under
Charter One’s College Loan Corporation Loan
Program.
|
|
·
|
Charter
One Bank, N.A., dated May 10, 2004, for loans that were originated
under
Charter One’s EdFinancial Loan
Program.
|
|
·
|
Charter
One Bank, N.A., dated September 15, 2003, for loans that were originated
under Charter One’s Extra Credit II Loan Program (North Texas Higher
Education).
|
|
·
|
Charter
One Bank, N.A., dated September 20, 2003, for loans that were originated
under Charter One’s M&I Alternative Loan
Program.
|
|
·
|
Charter
One Bank, N.A., dated November 17, 2003, for loans that were originated
under Charter One’s National Education Loan
Program.
|
|
·
|
Charter
One Bank, N.A., dated May 15, 2002, for loans that were originated
under
Charter One’s NextStudent Alternative Loan
Program.
|
|
·
|
Charter
One Bank, N.A., dated March 25, 2004, for loans that were originated
under
Charter One’s Astrive and AstriveAlliance Education (f/k/a START) Loan
Programs.
|
|
·
|
Charter
One Bank, N.A., dated February 15, 2005, for loans that were originated
under Charter One’s Referral Loan Program (including loans in the Charter
One Bank Alternative Loan Program, E-Loan Private Loan Program, UPromise
Alternative Loan Program, Collegiate Solutions Alternative Loan Program,
College Board Alternative Loan Program, Axiom Alternative Loan Program,
American Student Loan Services Private Loan Program, nBuy Private
Loan
Program, and ThinkFinancial Alternative Loan
Program).
|
|
·
|
Citizens
Bank of Rhode Island, dated April 30, 2004, for loans that were originated
under Citizens Bank of Rhode Island’s Alternative Loan Program, ISLP Loan
Program, Compass Bank Loan Program, FinanSure Alternative Loan Program,
Navy Federal Alternative Loan Program, and Xanthus Alternative Loan
Program.
|
|
·
|
Citizens
Bank of Rhode Island, dated October 1, 2002, for loans that were
originated under Citizens Bank of Rhode Island’s Penn State Undergraduate
Loan Program.
|
|
·
|
Comerica
Bank, dated June 30, 2006, for loans that were originated under Comerica
Bank’s Private Loan Program.
|
|
·
|
First
National Bank Northeast, dated August 1, 2001, for loans that were
originated under First National Bank Northeast’s Nelnet Undergraduate
Alternative Loan Program.
|
|
·
|
HSBC
Bank USA, National Association, dated April 17, 2002, as amended
on June
2, 2003 and August 1, 2003, for loans that were originated under
the HSBC
Loan Program.
|
|
·
|
The
Huntington National Bank, dated May 20, 2003, for loans that were
originated under the Huntington Education Loan
Program.
|
|
·
|
InsurBanc,
dated July 1, 2006, for loans that were originated under the InsurBanc
Loan Program.
|
|
·
|
JPMorgan
Chase Bank, N.A,, (successor to Bank One, N.A.), dated May 1, 2002,
for
loans that were originated under Bank One’s CORPORATE ADVANTAGE Loan
Program, EDUCATION ONE Loan Program, and Campus One Loan
Program.
|
|
·
|
KeyBank
National Association, dated May 12, 2006, for loans that were originated
under KeyBank’s Private Education Loan
Program.
|
|
·
|
Manufacturers
and Traders Trust Company, dated April 29, 2004, for loans that were
originated under the M&T Alternative Loan
Program.
|
|
·
|
National
City Bank, dated November 13, 2002, for loans that were originated
under
the National City Loan Program.
|
|
·
|
National
City Bank, dated July 21, 2006, for loans that were originated under
the
National City Referral Loan Program, including the Astute Private
Loan
Program.
|
|
·
|
PNC
Bank, N.A., dated April 22, 2004, for loans that were originated
under PNC
Bank’s Alternative Loan Program, Brazos Alternative Loan Program, Edvisors
Alternative Loan Program, Fondo Futuro Loan Program, GE Money Bank
Student
Loan Program, Old National Bank Private Loan Program, and Regions
Bank
Private Loan Program.
|
|
·
|
Sovereign
Bank, dated April 30, 2004, for loans that were originated under
Sovereign
Bank’s Alternative Student Loan
Program.
|
|
·
|
SunTrust
Bank, dated March 1, 2002, for loans that were originated under the
SunTrust Loan Program.
|
|
·
|
Union
Federal Savings Bank, dated March 26, 2007, for loans that were originated
under the UFSB Astrive Loan
Program.
|
|
·
|
U.S.
Bank National Association, dated May 1, 2005, for loans that were
originated under the U.S Bank Alternative Loan
Program.
|
SCHEDULE
D
Guaranty
Agreements
Each
of
the following Guaranty Agreements, as amended or supplemented, was entered
into
by and between The Education Resources Institute, Inc. and:
|
·
|
Bank
of America, N.A., dated April 30, 2001, for loans that were originated
under Bank of America’s Private Loan Program, ▇▇▇▇ (School Channel) Loan
Program and ▇▇▇▇ ISLP Loan Program.
|
|
·
|
Bank
of America, N.A., dated June 30, 2006, for loans that were originated
under Bank of America’s Private Loan Program, ▇▇▇▇ (School Channel) Loan
Program and ▇▇▇▇ ISLP Loan Program.
|
|
·
|
Bank
of America, N.A., dated June 30, 2003, for loans that were originated
under Bank of America’s Direct to Consumer Loan
Program.
|
|
·
|
Charter
One Bank, N.A., dated as of December 29, 2003 for loans that were
originated under Charter One’s AAA Southern New England Bank Loan
Program.
|
|
·
|
Charter
One Bank, N.A., dated October 31, 2003, for loans that were originated
under Charter One’s AES EducationGAIN Loan
Program.
|
|
·
|
Charter
One Bank, N.A., dated June 30, 2003, for loans that were originated
under
Charter One’s Citibank Education Assistance Loan
Program.
|
|
·
|
Charter
One Bank, N.A., dated July 1, 2002, for loans that were originated
under
Charter One’s College Loan Corporation Loan
Program.
|
|
·
|
Charter
One Bank, N.A., dated May 10, 2004, for loans that were originated
under
Charter One’s Edfinancial Loan
Program.
|
|
·
|
Charter
One Bank, N.A., dated September 15, 2003, for loans that were originated
under Charter One’s Extra Credit II Loan Program (North Texas Higher
Education).
|
|
·
|
Charter
One Bank, N.A., dated September 20, 2003, for loans that were originated
under Charter One’s M&I Alternative Loan
Program.
|
|
·
|
Charter
One Bank, N.A., dated November 17, 2003, for loans that were originated
under Charter One’s National Education Loan
Program.
|
|
·
|
Charter
One Bank, N.A., dated May 15, 2002, for loans that were originated
under
Charter One’s NextStudent Alternative Loan
Program.
|
|
·
|
Charter
One Bank, N.A., dated March 25, 2004, for loans that were originated
under
Charter One’s Astrive and AstriveAlliance Education (f/k/a START) Loan
Program.
|
|
·
|
Charter
One Bank, N.A., dated February 15, 2005, for loans that were originated
under Charter One’s Referral Loan Program (including loans in the Charter
One Bank Alternative Loan Program, E-Loan Private Loan Program, UPromise
Alternative Loan Program, Collegiate Solutions Alternative Loan Program,
College Board Alternative Loan Program, Axiom Alternative Loan Program,
American Student Loan Services Private Loan Program, nBuy Private
Loan
Program, and ThinkFinancial Alternative Loan
Program).
|
|
·
|
Citizens
Bank of Rhode Island, dated April 30, 2004, for loans that were originated
under Citizens Bank of Rhode Island’s Alternative Loan Program, ISLP Loan
Program, Compass Bank Alternative Loan Program, FinanSure Alternative
Loan
Program, Navy Federal Alternative Loan Program, and Xanthus Alternative
Loan Program.
|
|
·
|
Citizens
Bank of Rhode Island, dated October 1, 2002, for loans that were
originated under Citizens Bank of Rhode Island’s Penn State Undergraduate
Loan Program.
|
|
·
|
Comerica
Bank, dated June 30, 2006, for loans that were originated under Comerica
Bank’s Private Loan Program.
|
|
·
|
First
National Bank Northeast, dated August 1, 2001, for loans that were
originated under First National Bank Northeast’s Nelnet Undergraduate
Alternative Loan Program.
|
|
·
|
HSBC
Bank USA, National Association, dated April 17, 2002, for loans that
were
originated under the HSBC Loan
Program.
|
|
·
|
The
Huntington National Bank, dated May 20, 2003, for loans that were
originated under the Huntington Education Loan
Program.
|
|
·
|
InsurBanc,
dated July 1, 2006, for loans that were originated under the InsurBanc
Loan Program.
|
|
·
|
JPMorgan
Chase Bank, N.A., (successor to Bank One, N.A.,) dated May 13, 2002,
for
loans that were originated under Bank One’s CORPORATE ADVANTAGE Loan
Program, EDUCATION ONE Loan Program, and Campus One Loan
Program.
|
|
·
|
KeyBank
National Association, dated May 12, 2006, for loans that were originated
under KeyBank’s Private Education Loan
Program.
|
|
·
|
Manufacturers
and Traders Trust Company, dated April 29, 2004, for loans that were
originated under the M&T Alternative Loan
Program.
|
|
·
|
National
City Bank, dated July 26, 2002, for loans that were originated under
the
National City Loan Program.
|
|
·
|
National
City Bank, dated July 21, 2006, for loans that were originated under
the
National City Referral Loan Program, including the Astute Private
Loan
Program.
|
|
·
|
PNC
Bank, N.A., dated April 22, 2004, for loans that were originated
under PNC
Bank’s Alternative Loan Program, Brazos Alternative Loan Program, Edvisors
Alternative Loan Program, Fondo Futuro Loan Program, GE Money Bank
Student
Loan Program, Old National Bank Private Loan Program, and Regions
Bank
Private Loan Program
|
|
·
|
Sovereign
Bank, dated April 30, 2004, for loans that were originated under
Sovereign
Bank’s Alternative Student Loan
Program.
|
|
·
|
SunTrust
Bank, dated March 1, 2002, for loans that were originated under the
SunTrust Loan Program.
|
|
·
|
Union
Federal Savings Bank, dated March 26, 2007, for loans that were originated
under the USFB Astrive Loan
Program.
|
|
·
|
U.S.
Bank National Association, dated May 1, 2005, for loans that were
originated under the U.S Bank Alternative Loan
Program.
|
EXHIBIT
1
FORM
OF TRUST CERTIFICATE
TRUST
CERTIFICATE
THE
BENEFICIAL INTEREST IN THE TRUST REPRESENTED BY THIS TRUST CERTIFICATE HAS
NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY
STATE SECURITIES LAW, AND MAY NOT BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD
OR
OTHERWISE DISPOSED OF (INCLUDING PLEDGED) BY THE HOLDER HEREOF UNLESS IN THE
OPINION OF COUNSEL SATISFACTORY TO THE OWNER TRUSTEE, SUCH TRANSACTION IS EXEMPT
FROM REGISTRATION UNDER THE ACT AND STATE SECURITIES LAWS. THE TRANSFER OF
THIS
TRUST CERTIFICATE WILL NOT BE EFFECTIVE UNLESS THE TRANSFEREE HAS DELIVERED
TO
THE OWNER TRUSTEE A LETTER IN THE FORM REQUIRED BY SECTION 3.04(a) OF THE TRUST
AGREEMENT AND THE TRANSFEREE PROVIDES THE OWNER TRUSTEE WITH EVIDENCE
SATISFACTORY TO THE OWNER TRUSTEE DEMONSTRATING THE TRANSFEROR’S COMPLIANCE WITH
SECTION 3.04(b) OF THE TRUST AGREEMENT.
NO
TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PLAN SUBJECT TO ERISA OR SECTION
4975 OF THE CODE OR ANY PERSON ACTING ON BEHALF OF SUCH A PLAN EXCEPT IN
ACCORDANCE WITH SECTION 3.04(d) OF THE TRUST AGREEMENT.
TRUST
CERTIFICATE
UNDER
THE TRUST AGREEMENT, DATED
as
of September 20, 2007
Certificate
No. ______
Wilmington
Trust Company, not in its individual capacity, but solely as owner trustee
(the
“Owner Trustee”) under the Trust Agreement, dated as of September 20, 2007, with
The National Collegiate Funding LLC and The Education Resources Institute,
Inc.,
on behalf of the holders from time to time (each an “Owner”) of beneficial
interests in the trust created thereby (the “Trust Agreement”), hereby certifies
that ______________ is the owner of an undivided beneficial interest equal
to
the percentage listed on Schedule A to the Trust Agreement in the Trust Property
provided for and created by the Trust Agreement. This Trust Certificate is
issued pursuant to and is entitled to the benefits of the Trust Agreement,
and
each Owner by acceptance hereof shall be bound by the terms of the Trust
Agreement. Reference is hereby made to the Trust Agreement for a statement
of
the rights and obligations of the Owner hereof. The Owner Trustee may treat
the
person shown on the register maintained by the Owner Trustee pursuant to Section
3.02 of the Trust Agreement as the absolute Owner hereof for all
purposes.
Capitalized
terms used herein without definition have the meanings ascribed to them in
or by
reference in the Trust Agreement.
Transfer
of this Trust Certificate is subject to certain restrictions and limitations
set
forth in the Trust Agreement, including the requirement that any transfer
requires the prior consent of owners of at least 85% of the Percentage Interests
in the Trust. In the manner more fully set forth in, and as limited by, the
Trust Agreement, this Trust Certificate may be transferred upon the books of
the
Owner Trustee by the registered Owner in person or by his attorney duly
authorized in writing upon surrender of this Trust Certificate to the Owner
Trustee accompanied by a written instrument of transfer and with such signature
guarantees and evidence of authority of the Persons signing the instrument
of
transfer as the Owner Trustee may reasonably require, whereupon the Owner
Trustee shall issue in the name of the transferee a Trust Certificate or Trust
Certificates evidencing the amount and extent of interest of the
transferee.
The
Owner
hereof, by its acceptance of this Trust Certificate, warrants and represents
to
the Owner Trustee and to the Owners of the other Trust Certificates issued
under
the Trust Agreement and agrees not to transfer this Trust Certificate except
in
accordance with the Trust Agreement.
This
Trust Certificate may not be acquired or held by a Plan. By accepting
and holding this Trust Certificate, the Owner hereof shall be deemed to have
represented and warranted that it is not a Plan, unless it has provided the
opinion of counsel described in Section 3.04(d) of the Trust
Agreement.
This
Trust Certificate and the Trust Agreement shall in all respects be governed
by,
and construed in accordance with, the laws of the State of Delaware (excluding
conflict of law rules), including all matters of construction, validity and
performance.
IN
WITNESS WHEREOF, the Owner Trustee, pursuant to the Trust Agreement, has caused
this Trust Certificate to be issued as of the date hereof.
|
WILMINGTON
TRUST COMPANY, not in its individual capacity , but solely as Owner
Trustee
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
Dated: _______________
EXHIBIT
2
FORM
OF ACCESSION AGREEMENT
___________________,
___________
Wilmington
Trust Company
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Dear
Sirs:
We
refer
to the Trust Agreement, dated as of September 20, 2007 (the “Trust Agreement”),
among The National Collegiate Funding LLC (the “Company”), The Education
Resources Institute, Inc. and Wilmington Trust Company, a Delaware banking
corporation (in its capacity as trustee thereunder, the “Owner Trustee”). We
propose to purchase a beneficial interest in The National Collegiate Student
Loan Trust 2007-3, a Delaware statutory trust (the “Trust”) formed pursuant to
the Trust Agreement. Capitalized terms used herein without definition have
the
meanings given them in the Trust Agreement.
|
1.
|
We
understand that our Trust Certificate is not being registered under
the
Securities Act of 1933, as amended (the “1933 Act”), or any state
securities or “Blue Sky” law and is being sold to us in a transaction that
is exempt from the registration requirements of the 1933 Act and
any
applicable state laws.
|
|
2.
|
We
have knowledge and experience in financial and business matters as
to be
capable of evaluating the merits and risks of an investment in the
Trust,
we are able to bear the economic risk of investment in the Trust
and we
are an “accredited investor” as defined in Regulation D under the 1933
Act.
|
|
3.
|
We
acknowledge that none of the Trust, the Company or the Owner Trustee
has
advised us concerning the federal or state income tax consequences
of
owning a beneficial interest in the Trust, including the tax status
of the
Trust or the likelihood that distributions from the Trust would be
characterized as “unrelated business income” for federal tax purposes, and
we have consulted with our own tax advisor with respect to such
matters.
|
|
4.
|
We
are acquiring our Trust Certificate for our own account and not for
the
benefit of any other person and not with a view to any distribution
of our
beneficial interest in the Trust subject, nevertheless, to the
understanding that disposition of our property shall at all times
be and
remain within our control.
|
|
5.
|
We
agree that our beneficial interest in the Trust must be held indefinitely
by us unless subsequently registered under the 1933 Act and any applicable
state securities or “Blue Sky” law or unless exemptions from the
registration requirements of the 1933 Act and applicable state laws
are
available.
|
|
6.
|
We
agree that in the event that at some future time we wish to dispose
of or
exchange any of our beneficial interest in the Trust, we will not
transfer
or exchange any of our beneficial interest in the Trust unless we
have
obtained the prior written consent to such transfer or exchange pursuant
to Section 3.04 of the Trust Agreement, and
either:
|
|
(A)
|
(1)
the transfer or exchange is made to an Eligible Purchaser (as defined
below), (2) a letter to substantially the same effect as this letter
is
executed promptly by such Eligible Purchaser, and (3) all offers
or
solicitations in connection with the sale (if a sale), whether made
directly or through any agent acting on our behalf, are limited only
to
Eligible Purchasers and are not made by means of any form of general
solicitation or general advertising whatsoever;
or
|
|
(B)
|
our
beneficial interest in the Trust is sold in a transaction that does
not
require registration under the 1933 Act and any applicable State
“Blue
Sky” law.
|
“Eligible
Purchaser” means a corporation, partnership or other entity which we have
reasonable grounds to believe and do believe can make representations with
respect to itself to substantially the same effect as the representations set
forth herein.
|
7.
|
We
understand that our Trust Certificate bears a legend to substantially
the
following effect:
|
THE
BENEFICIAL INTEREST IN THE TRUST REPRESENTED BY THIS TRUST CERTIFICATE HAS
NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR ANY
STATE SECURITIES LAW, AND MAY NOT BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD
OR
OTHERWISE DISPOSED OF (INCLUDING PLEDGED) BY THE HOLDER HEREOF UNLESS IN THE
OPINION OF COUNSEL SATISFACTORY TO THE OWNER TRUSTEE SUCH TRANSACTION IS EXEMPT
FROM REGISTRATION UNDER THE ACT AND STATE SECURITIES LAWS. THE TRANSFER OF
THIS
TRUST CERTIFICATE WILL NOT BE EFFECTIVE UNLESS THE TRANSFEREE HAS DELIVERED
TO
THE OWNER TRUSTEE A LETTER IN THE FORM REQUIRED BY SECTION 3.04(a) OF THE TRUST
AGREEMENT AND THE TRANSFEREE PROVIDES THE OWNER TRUSTEE WITH EVIDENCE
SATISFACTORY TO THE OWNER TRUSTEE DEMONSTRATING THE TRANSFEROR’S COMPLIANCE WITH
SECTION 3.04(b) OF THE TRUST AGREEMENT.
NO
TRANSFER OF THIS CERTIFICATE MAY BE MADE TO ANY PLAN SUBJECT TO ERISA OR SECTION
4975 OF THE CODE OR ANY PERSON ACTING ON BEHALF OF SUCH A PLAN EXCEPT IN
ACCORDANCE WITH SECTION 3.04(d) OF THE TRUST AGREEMENT.
|
8.
|
We
agree to be bound by all terms and conditions of our Trust Certificate
and
the Trust Agreement.
|
|
Very
truly yours,
|
|||
|
Name
of Purchaser
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
Accepted
and Acknowledged this _____th
day of
____________________, ____.
|
|||
|
WILMINGTON
TRUST COMPANY, not in its individual capacity, but solely as Owner
Trustee
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||