EXECUTION COPY
AMENDED AND RESTATED
TRUST AGREEMENT
between
KEY CONSUMER RECEIVABLES LLC
as Depositor
and
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Eligible Lender Trustee
Dated as of September 1, 2001
Page
TABLE OF CONTENTS
ARTICLE I
Definitions and Usage
ARTICLE II
Organization
SECTION 2.01. Name..........................................................1
SECTION 2.02. Office........................................................1
SECTION 2.03. Purposes and Powers...........................................2
SECTION 2.04. Appointment of Eligible Lender Trustee........................2
SECTION 2.05. Initial Capital Contribution of Trust Estate..................2
SECTION 2.06. Declaration of Trust..........................................3
SECTION 2.07. [RESERVED]....................................................3
SECTION 2.08. Title to Trust Property; Situs of Trust.......................3
SECTION 2.09. Representations and Warranties of the Depositor...............4
SECTION 2.10. Federal Income Tax Allocations................................4
ARTICLE III
Trust Certificate and Transfer of Interests
SECTION 3.01. Initial Beneficial Ownership..................................5
SECTION 3.02. The Trust Certificate.........................................5
SECTION 3.03. Authentication of Trust Certificate...........................5
SECTION 3.04. Registration of Transfer and Exchange of Trust Certificate....5
SECTION 3.05. Mutilated, Destroyed, Lost or Stolen Trust Certificate........6
SECTION 3.06. Persons Deemed Owners.........................................7
SECTION 3.07. [RESERVED] ...................................................7
SECTION 3.08. Maintenance of Office or Agency...............................7
SECTION 3.09. Appointment of Certificate Paying Agent.......................7
SECTION 3.10. Restrictions on Transfers of the Trust Certificate............8
ARTICLE IV
Actions by Eligible Lender Trustee
SECTION 4.01. Prior Notice with Respect to Certain Matters.................10
SECTION 4.02. Action by Certificateholder with
Respect to Certain Matters.................................12
SECTION 4.03. Action by Certificateholder with Respect to Bankruptcy.......12
SECTION 4.04. Restrictions on Certificateholder's Power....................13
ARTICLE V
Application of Trust Funds; Certain Duties
SECTION 5.01. Application of Trust Funds...................................13
SECTION 5.02. Method of Payment............................................14
SECTION 5.03. No Segregation of Moneys; No Interest........................14
SECTION 5.04. Accounting and Reports to the Noteholders,
Certificateholder, the Internal Revenue
Service and Others.........................................14
SECTION 5.05. Signature on Returns; Tax Matters Partner....................14
ARTICLE VI
Authority and Duties of Eligible Lender Trustee
SECTION 6.01. General Authority............................................15
SECTION 6.02. General Duties...............................................15
SECTION 6.03. Action Upon Instruction......................................16
SECTION 6.04. No Duties Except as Specified in this Trust
Agreement, the Sale and Servicing
Agreement, or in Instructions..............................17
SECTION 6.05. No Action Except Under Specified
Documents or Instructions..................................17
SECTION 6.06. Restrictions.................................................17
ARTICLE VII
Concerning the Eligible Lender Trustee
SECTION 7.01. Acceptance of Trusts and Duties..............................18
SECTION 7.02. Furnishing of Documents......................................19
SECTION 7.03. Representations and Warranties...............................19
SECTION 7.04. Reliance; Advice of Counsel..................................20
SECTION 7.05. Not Acting in Individual Capacity............................20
SECTION 7.06. Eligible Lender Trustee Not Liable for
Trust Certificate or Financed Student Loans................21
SECTION 7.07. Eligible Lender Trustee May Not Own Trust Certificate
and May Own Notes............................................21
ARTICLE VIII
Compensation of Eligible Lender Trustee
SECTION 8.01. Eligible Lender Trustee's Fees and Expenses..................21
SECTION 8.02. Payments to the Eligible Lender Trustee......................22
ARTICLE IX
Termination of Trust Agreement
SECTION 9.01. Termination of Trust Agreement...............................22
ARTICLE X
Successor Eligible Lender Trustees
and Additional Eligible Lender Trustees
SECTION 10.01. Eligibility Requirements for Eligible Lender Trustee........23
SECTION 10.02. Resignation or Removal of Eligible Lender Trustee...........23
SECTION 10.03. Successor Eligible Lender Trustee...........................24
SECTION 10.04. Merger or Consolidation of Eligible Lender Trustee..........25
SECTION 10.05. Appointment of Co-Eligible Lender Trustee
or Separate Eligible Lender Trustee.......................26
ARTICLE XI
Miscellaneous
SECTION 11.01. Supplements and Amendments..................................27
SECTION 11.02. No Legal Title to Trust Estate in Certificateholder.........28
SECTION 11.03. Limitations on Rights of Others.............................28
SECTION 11.04. Notices.....................................................28
SECTION 11.05. Severability................................................29
SECTION 11.06. Separate Counterparts.......................................29
SECTION 11.07. Successors and Assigns......................................29
SECTION 11.08. No Petition.................................................29
SECTION 11.09. No Recourse.................................................30
SECTION 11.10. Headings....................................................30
SECTION 11.11. Governing Law...............................................30
SECTION 11.12. Third Party Beneficiaries...................................30
EXHIBIT A Form of Trust Certificate
EXHIBIT B Form of Transferor Letter
EXHIBIT C-1 Form of Non-Rule 144A Transferee Letter
EXHIBIT C-2 Form of Rule 144A Transferee Letter
AMENDED AND RESTATED TRUST AGREEMENT (the "Trust Agreement") dated as
of September 1, 2001, between KEY CONSUMER RECEIVABLES LLC, a Delaware limited
liability company, as Depositor (the "Depositor"), and BANK ONE, NATIONAL
ASSOCIATION, a national banking association, not in its individual capacity but
solely as Eligible Lender Trustee (the "Eligible Lender Trustee"), amending and
restating that certain trust agreement (the "Original Trust Agreement") dated as
of August 20, 2001 between the parties hereto.
WHEREAS the Original Trust Agreement was entered into as of August 20,
2001;
WHEREAS the Original Trust Agreement is hereby amended and restated in
its entirety as of September 1, 2001 in order to make such changes and
modifications as are set forth herein; and
WHEREAS, in connection therewith, the Depositor and the Eligible
Lender Trustee agree that the terms and provisions of the Original Trust
Agreement shall no longer have any force and effect with respect to any date on
or after the date as of which this Amended and Restated Trust Agreement is being
entered into (other than Section 4 thereof to the extent applicable to the
allocation of collections, Interest Subsidy Payments and Special Allowance
Payments accruing during any period prior to the Cutoff Date).
NOW, THEREFORE, the Depositor and the Eligible Lender Trustee hereby
agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
Capitalized terms used but not defined herein are defined in Appendix
A to the Sale and Servicing Agreement, which also contains rules as to
construction and usage that shall be applicable herein.
ARTICLE II
ORGANIZATION
SECTION 2.01. NAME. The Trust created under the Original Trust
Agreement shall be known as "KeyCorp Student Loan Trust 2001-A" in which name
the Eligible Lender Trustee may conduct the business of the Trust, make and
execute contracts and other instruments on behalf of the Trust and ▇▇▇ and be
sued. The Trust shall constitute a business trust under Chapter 38 of Title 12
of the Delaware Code, 12 DEL. C.ss.ss.3801 ET --- - -- seq.(the "Business Trust
Act")
SECTION 2.02. OFFICE. The office of the Trust shall be in care of the
Eligible Lender Trustee at its Corporate Trust Office or at such other address
as the Eligible Lender Trustee may designate by written notice to the
Securities Insurer, the Swap Counterparty, the Administrator, the Depositor,
and, if different, the holder of the Trust Certificate.
SECTION 2.03. PURPOSES AND POWERS. The purpose of the Trust is to
engage in the following activities:
(i) to issue the Notes pursuant to the Indenture and the Trust
Certificate pursuant to this Trust Agreement and to sell the Notes in one
or more transactions;
(ii) with the proceeds of the sale of the Notes, to purchase the
Financed Student Loans and to fund the Pre-Funding Account pursuant to the
Sale and Servicing Agreement;
(iii) to assign, grant, transfer, pledge, mortgage and convey the
Trust Estate pursuant to the Indenture and to hold, manage and distribute
to the holder of the Trust Certificate pursuant to the terms of the Sale
and Servicing Agreement any portion of the Trust Estate released from the
Lien of, and remitted to the Trust pursuant to, the Indenture;
(iv) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(v) to engage in those activities, including entering into agreements,
that are necessary, suitable or convenient to accomplish the foregoing or
are incidental thereto or connected therewith; and
(vi) subject to compliance with the Basic Documents, to engage in such
other activities as may be required in connection with conservation of the
Trust Estate and the making of distributions to the holder of the Trust
Certificate, the holders of the Notes and the others specified in Section
5.05 of the Sale and Servicing Agreement.
The Trust shall not engage in any activity other than in connection
with the foregoing or other than as required or authorized by the terms of this
Trust Agreement or the other Basic Documents.
SECTION 2.04. APPOINTMENT OF ELIGIBLE LENDER TRUSTEE. The Depositor
hereby appoints the Eligible Lender Trustee as trustee of the Trust effective as
of the date hereof, to have all the rights, powers and duties set forth herein.
Bank One Delaware, Inc. is appointed the initial Delaware Trustee. The
Delaware Trustee shall not have any of the powers or duties of the Eligible
Lender Trustee or of a trustee generally set forth herein, except as required
under the Delaware Business Trust Act. The Delaware Trustee shall be a trustee
hereunder for the sole and limited purpose of fulfilling the requirements of
Section 3807(a) of the Delaware Business Trust Act.
SECTION 2.05. INITIAL CAPITAL CONTRIBUTION OF TRUST ESTATE. Pursuant
to the Original Trust Agreement, the Depositor has sold, assigned, transferred,
conveyed and set over to the Eligible Lender Trustee, as of the date thereof,
the sum of $10.00. The Eligible Lender Trustee hereby acknowledges receipt in
trust from the Depositor, as of the date thereof, of the foregoing contribution,
which shall constitute the initial Trust Estate and shall be deposited in the
Collection Account. The Depositor shall pay the organizational expenses of the
Trust as they may arise or shall, upon the request of the Eligible Lender
Trustee, promptly reimburse the Eligible Lender Trustee for any such expenses
paid by the Eligible Lender Trustee.
SECTION 2.06. DECLARATION OF TRUST. The Eligible Lender Trustee hereby
declares that it will hold the Trust Estate upon and subject to the conditions
set forth herein for the use and benefit of the holder of the Trust Certificate,
subject to the obligations of the Trust under the other Basic Documents. It is
the intention of the parties hereto that the Trust constitute a business trust
under the Business Trust Act and that this Trust Agreement constitute the
governing instrument of such trust. It is the intention of the parties hereto
that, solely for income and franchise tax purposes, the Trust shall be treated
as a disregarded entity, with the Trust being owned by KBUSA. The parties agree
that, unless otherwise required by appropriate tax authorities, the Trust will
file or cause to be filed annual or other necessary returns, reports and other
forms, if any, consistent with the characterization of the Trust as provided in
the preceding sentence for such tax purposes. Effective as of the date hereof,
the Eligible Lender Trustee shall have all rights, powers and duties set forth
herein and in the Business Trust Act with respect to accomplishing the purposes
of the Trust. The Eligible Lender Trustee has filed the Certificate of Trust
with the Secretary of State of the State of Delaware on August 20, 2001.
SECTION 2.07. [RESERVED]
SECTION 2.08. TITLE TO TRUST PROPERTY; SITUS OF TRUST. (a) Legal title
to all the Trust Estate shall be vested at all times in the Trust as a separate
legal entity except where applicable law in any jurisdiction requires title to
any part of the Trust Estate to be vested in a trustee or trustees, in which
case title shall be deemed to be vested in the Eligible Lender Trustee, a
co-trustee and/or a separate trustee, as the case may be; provided that, legal
title to the Financed Student Loans shall be vested at all times in the Eligible
Lender Trustee on behalf of the Trust.
(b) Neither the Depositor nor any subsequent holder of the Trust
Certificate shall have legal title to any part of the Trust Estate. No transfer
by operation of law or otherwise of any interest of the Depositor nor any
subsequent holder of the Trust Certificate shall operate to terminate this
Agreement or the trusts hereunder or entitle any transferee to an accounting or
to the transfer to it of any part of the Trust Estate.
(c) The Trust will be located in the State of Delaware. All bank
accounts maintained by the Administrator in the name of the Eligible Lender
Trustee or the Indenture Trustee, as applicable, on behalf of the Trust, shall
be located only in the States of Delaware, Ohio, Illinois or New York. The Trust
shall not have any employees; provided, however, that nothing herein shall
restrict or prohibit the Eligible Lender Trustee from having employees within
or without the State of Delaware. Payments will be received by the Trust only in
Delaware, Ohio, Illinois or New York, and payments will be made by the Trust
only from Delaware, Ohio, Illinois or New York. The principal place of business
of the Trust will be at the Corporate Trust Office of the Eligible Lender
Trustee.
SECTION 2.09. REPRESENTATIONS AND WARRANTIES OF THE DEPOSITOR. The
Depositor hereby represents and warrants to the Eligible Lender Trustee, the
Swap Counterparty and the Securities Insurer that:
(a) The Depositor is duly organized and validly existing as a Delaware
limited liability company in good standing under the laws of the State of
Delaware, with power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is
presently conducted.
(b) The Depositor has the power and authority to execute and deliver
this Trust Agreement and to carry out its terms; the Depositor has full
power and authority to sell and assign the property to be sold and assigned
to and deposited with the Trust (or with the Eligible Lender Trustee on
behalf of the Trust) and the Depositor has duly authorized such sale and
assignment and deposit to the Trust (or to the Eligible Lender Trustee on
behalf of the Trust) by all necessary limited liability company action; and
the execution, delivery and performance of this Trust Agreement has been
duly authorized by the Depositor by all necessary limited liability company
action.
(c) This Trust Agreement constitutes a legal, valid and binding
obligation of the Depositor enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization and similar
laws relating to creditors' rights generally or the rights of creditors of
banks the deposit accounts of which are insured by the FDIC and subject to
general principles of equity.
(d) The consummation of the transactions contemplated by this Trust
Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time or both) a default under, the
limited liability company agreement and the other organizational documents
of the Depositor, or any indenture, agreement or other instrument to which
the Depositor is a party or by which it is bound; nor result in the
creation or imposition of any Lien upon any of its properties pursuant to
the terms of any such indenture, agreement or other instrument (other than
pursuant to the Basic Documents); nor violate any law or, to the
Depositor's knowledge, any order, rule or regulation applicable to the
Depositor of any court or of any Federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties.
SECTION 2.10. FEDERAL INCOME TAX ALLOCATIONS. Net income of the Trust
for any Collection Period as determined for Federal income tax purposes (and
each item of income, gain, loss and deduction entering into the computation
thereof) shall be allocated to KBUSA.
ARTICLE III
TRUST CERTIFICATE AND TRANSFER OF INTERESTS
SECTION 3.01. INITIAL BENEFICIAL OWNERSHIP. Upon the formation of the
Trust by the contribution by the Depositor pursuant to Section 2.05 and until
the issuance of the Trust Certificate, the Depositor shall be the sole
beneficial owner of the Trust.
SECTION 3.02. THE TRUST CERTIFICATE. The Trust Certificate shall be
issued as a single, physical, full registered certificate, substantially in the
form of Exhibit A hereto and shall be executed on behalf of the Trust by manual
or facsimile signature of an authorized officer of the Eligible Lender Trustee,
upon the order of the Depositor to the Eligible Lender Trustee concurrently with
the initial sale and assignment to the Trust of the Financed Student Loans. The
Trust Certificate shall represent the entire beneficial ownership interest in
the assets of the Trust, subject to the debt represented by the Notes. The
initial Trust Certificate and each Trust Certificate issued in exchange or upon
transfer therefor shall be manually executed by an Authorized Officer of the
Eligible Lender Trustee. Any Trust Certificate bearing the manual or facsimile
signatures of individuals who were, at the time when such signatures shall have
been affixed, authorized to sign on behalf of the Trust, shall be valid and
binding obligations of the Trust, notwithstanding that such individuals or any
of them shall have ceased to be so authorized prior to the authentication and
delivery of such Trust Certificate or did not hold such offices at the date of
authentication and delivery of such Trust Certificate. The initial holder of the
Trust Certificate shall be the Depositor.
A transferee of the Trust Certificate shall be the "holder of the
Trust Certificate" for all purposes hereunder, and shall be entitled to the
rights and be subject to the obligations of the holder of the Trust Certificate
hereunder, upon such transferee's acceptance of the Trust Certificate duly
registered in such transferee's name pursuant to Section 3.04 below.
SECTION 3.03. AUTHENTICATION OF TRUST CERTIFICATE. Concurrently with
the initial sale of the Financed Student Loans to the Trust pursuant to the Sale
and Servicing Agreement, the Eligible Lender Trustee shall cause the Trust
Certificate to be executed on behalf of the Trust, authenticated and delivered
to or upon the written order of the Depositor, signed by its chairman of the
board, its president or any vice president, without further action by the
Depositor. No Trust Certificate shall entitle its holder to any benefit under
this Trust Agreement, or shall be valid for any purpose, unless there shall
appear on such Trust Certificate a certificate of authentication substantially
in the form set forth in Exhibit A, executed by the Eligible Lender Trustee or
First Chicago Trust Company of New York, as the Eligible Lender Trustee's
authenticating agent, by manual signature; such authentication shall constitute
conclusive evidence that such Trust Certificate shall have been duly
authenticated and delivered hereunder. Each Trust Certificate shall be dated the
date of its authentication. No further Trust Certificate shall be issued except
pursuant to Section 3.04, 3.05 or 3.10 hereunder.
SECTION 3.04. REGISTRATION OF TRANSFER AND EXCHANGE OF TRUST
CERTIFICATE. The Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 3.08, a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, the Eligible
Lender Trustee shall provide for the registration of the Trust Certificate and
of transfers and exchanges of the Trust Certificate as herein provided. The
Eligible Lender Trustee shall be the initial Certificate Registrar.
Upon surrender for registration of transfer of any Trust Certificate
at the office or agency maintained pursuant to Section 3.08, the Eligible Lender
Trustee shall execute, authenticate and deliver (or shall cause First Chicago
Trust Company of New York as its authenticating agent to authenticate and
deliver), in the name of the designated transferee or transferees, a new Trust
Certificate dated the date of authentication by the Eligible Lender Trustee or
any authenticating agent. At any one time, only one Trust Certificate,
representing 100% of all the Trust Certificates, shall be issued and
outstanding, and there shall be only a single beneficial owner of such Trust
Certificate, who also shall be the holder of such Trust Certificate.
Every Trust Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the Eligible Lender Trustee and the Certificate Registrar
duly executed by the holder of the Trust Certificate or his attorney duly
authorized in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Certificate Registrar, which
requirements include membership or participation in Security Transfer Agent's
Medallion Program ("STAMP") or such other "signature guarantee program" as may
be determined by the Certificate Registrar in addition to, or in substitution
for, STAMP, all in accordance with the Exchange Act. Each Trust Certificate
surrendered for registration of transfer or exchange shall be cancelled and
subsequently disposed of by the Eligible Lender Trustee in accordance with its
customary practice.
No service charge shall be made for any registration of transfer or
exchange of a Trust Certificate, but the Eligible Lender Trustee or the
Certificate Registrar may require payment of a sum sufficient to cover any tax
or governmental charge that may be imposed in connection with any transfer or
exchange of a Trust Certificate.
The preceding provisions of this Section notwithstanding, the Eligible
Lender Trustee shall not be required to make and the Certificate Registrar need
not register transfers or exchanges of a Trust Certificate for a period of five
Business Days preceding any Distribution Date with respect to such Trust
Certificate.
SECTION 3.05. MUTILATED, DESTROYED, LOST OR STOLEN TRUST CERTIFICATE.
If (a) any mutilated Trust Certificate shall be surrendered to the Certificate
Registrar, or if the Certificate Registrar shall receive evidence to its
satisfaction of the destruction, loss or theft of any Trust Certificate, and (b)
there shall be delivered to the Certificate Registrar and the Eligible Lender
Trustee such security or indemnity as may be required by them to save each of
them harmless, then in the absence of notice that such Trust Certificate shall
have been acquired by a bona fide purchaser, the Eligible Lender Trustee on
behalf of the Trust shall execute and the Eligible Lender Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Trust Certificate, a new Trust Certificate of the same
class. In connection with the issuance of any new Trust Certificate under this
Section, the Eligible Lender Trustee and the Certificate Registrar may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in connection therewith. Any duplicate Trust Certificate
issued pursuant to this Section shall constitute conclusive evidence of
ownership in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Trust Certificate shall be found at any time.
SECTION 3.06. PERSONS DEEMED OWNERS. Prior to due presentation of a
Trust Certificate for registration of transfer, the Eligible Lender Trustee or
the Certificate Registrar and any agent of any thereof may treat the Person in
whose name any Trust Certificate shall be registered in the Certificate Register
as the owner of such Trust Certificate for the purpose of receiving
distributions pursuant to Section 5.01 and for all other purposes whatsoever,
and neither the Eligible Lender Trustee, the Certificate Registrar nor any agent
of any thereof shall be bound by any notice to the contrary. Initially, the
Certificate Registrar shall register the Depositor as the sole holder of the
Trust Certificate in the Certificate Register.
SECTION 3.07. [RESERVED].
SECTION 3.08. MAINTENANCE OF OFFICE OR AGENCY. The Eligible Lender
Trustee shall maintain in the Borough of Manhattan, The City of New York, an
office or offices or agency or agencies where Trust Certificate may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Eligible Lender Trustee in respect of the Trust
Certificate and the other Basic Documents may be served. The Eligible Lender
Trustee initially designates 1 Bank ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, as its principal Corporate Trust Office. The Eligible Lender Trustee
hereby designates First Chicago Trust Company of New York as the initial
authenticating agent (the "Authenticating Agent") to act on its behalf. The
Eligible Lender Trustee's New York office and the Authenticating Agent's office
are located at First Chicago Trust Company of New York, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administration. The
Eligible Lender Trustee shall give prompt written notice to the Securities
Insurer, the Swap Counterparty, the Administrator, the Depositor and to the
holder of the Trust Certificate (if different) of any change in the location of
the Certificate Register or any such office or agency.
SECTION 3.09. APPOINTMENT OF CERTIFICATE PAYING AGENT. The Certificate
Paying Agent shall make distributions to the holder of the Trust Certificate
from the amounts received from the Indenture Trustee out of the Trust Accounts
pursuant to Section 5.01 and shall report the amounts of such distributions to
the Eligible Lender Trustee. Any Certificate Paying Agent shall have the
revocable power to receive such funds from the Indenture Trustee for the purpose
of making the distributions referred to above. The Eligible Lender Trustee may
revoke such power and remove the Certificate Paying Agent, if the Eligible
Lender Trustee determines in its sole discretion that the Certificate Paying
Agent shall have failed to perform its obligations under this Trust Agreement in
any material respect. The Certificate Paying Agent shall initially be the
Eligible Lender Trustee, and any co-paying agent chosen by the Eligible Lender
Trustee, and acceptable to each of the Administrator and the Securities Insurer
(which consent shall not be unreasonably withheld). The Eligible Lender Trustee
shall be permitted to resign as Certificate Paying Agent upon 30 days' written
notice to the Administrator. In the event that the Eligible Lender Trustee shall
no longer be the Certificate Paying Agent, the Eligible Lender Trustee, shall
appoint a successor to act as Certificate Paying Agent (which shall be a bank or
trust company). The Eligible Lender Trustee shall cause such successor
Certificate Paying Agent or any additional Certificate Paying Agent appointed by
the Eligible Lender Trustee to execute and deliver to the Eligible Lender
Trustee an instrument in which such successor Certificate Paying Agent or
additional Certificate Paying Agent shall agree with the Eligible Lender Trustee
that as Certificate Paying Agent, such successor Certificate Paying Agent or
additional Certificate Paying Agent will hold all sums, if any, held by it for
payment to the holder of the Trust Certificate in trust for the benefit of the
holder of the Trust Certificate entitled thereto until such sums shall be paid
to such holder of the Trust Certificate. The Certificate Paying Agent shall
return all unclaimed funds to the Eligible Lender Trustee and upon removal of a
Certificate Paying Agent such Certificate Paying Agent shall also return all
funds in its possession to the Eligible Lender Trustee. The provisions of
Sections 7.01, 7.03, 7.04, 7.05 and 8.01 shall apply to the Eligible Lender
Trustee also in its role as Certificate Paying Agent, for so long as the
Eligible Lender Trustee shall act as Certificate Paying Agent and, to the extent
applicable, to any other paying agent appointed hereunder. Any reference in this
Trust Agreement to the Certificate Paying Agent shall include any co-paying
agent unless the context requires otherwise.
SECTION 3.10. RESTRICTIONS ON TRANSFERS OF THE TRUST CERTIFICATE. (a)
The Trust Certificate may be transferred by the Depositor to any Affiliate of
the Depositor, without any requirement to provide any officer's certificates or
legal opinions that would otherwise be required if such proposed transfer was
being made to a Person who is not an Affiliate of the Depositor.
(a) Except as provided above, the Trust Certificate shall not be sold,
pledged, transferred or assigned except as provided below.
(i) The Trust Certificate has not been registered or qualified under
the Securities Act of 1933, as amended (the "Securities Act") or any state
securities law. No transfer, sale, pledge or other disposition of the Trust
Certificate or any interest therein shall be made unless such transfer is made
pursuant to an effective registration statement under the Securities Act and
effective registration or qualification under applicable state securities laws,
or is made in a transaction which does not require such registration or
qualification. In the event that a transfer is to be made without registration
or qualification, the Eligible Lender Trustee shall require, in order to assure
compliance with such laws, that the prospective transferor and transferee each
certify to the Eligible Lender Trustee, the Certificate Registrar, the
Administrator, and, if it not the proposed transferor, the Depositor, in writing
the facts surrounding the transfer. Such certifications shall be substantially
in the forms of Exhibits B and C-1 or C-2 hereto, respectively. In the event
that such a transfer is to be made within two years from the date of the initial
issuance of the Trust Certificate pursuant hereto (other than a transfer as to
which the proposed transferee has provided a certificate in the form of Exhibit
C-2), the Eligible Lender Trustee in its sole discretion, may require that there
shall also be delivered to the Eligible Lender Trustee, the Certificate
Registrar, the Administrator, and, if it not the proposed transferor, the
Depositor, at the expense of the transferor, an opinion of counsel that such
transfer may be made pursuant to an exemption from the Securities Act and such
state securities laws. Any such opinion of counsel shall not be an expense of
the Eligible Lender Trustee, the Certificate Registrar, the Administrator, and,
if it not the proposed transferor, the Depositor. None of the Depositor, the
Administrator nor the Eligible Lender Trustee is obligated to register or
qualify the Trust Certificate under the Securities Act or any other securities
law or to take any action not otherwise required under this Agreement to permit
the transfer of the Trust Certificate without registration or qualification. Any
such holder of the Trust Certificate desiring to effect such transfer shall, and
does hereby agree to, indemnify the Eligible Lender Trustee, the Certificate
Registrar, the Administrator, and, if it not the proposed transferor, the
Depositor, against any liability that may result if the transfer is not so
exempt or is not made in accordance with such applicable federal and state laws
(ii) No transfer of the Trust Certificate will be registered by the
Eligible Lender Trustee or the Certificate Registrar unless the Eligible Lender
Trustee, the Certificate Registrar, the Administrator, and, if it not the
proposed transferor, the Depositor receives a representation from the proposed
transferee of the Trust Certificate, substantially in the form of Exhibit C-1 or
C-2, as the case may be, that such transferee is not acquiring the Trust
Certificate directly or indirectly for, on behalf of or with the assets of, an
employee benefit plan or other retirement arrangement subject to Title I of
ERISA and/or Section 4975 of the Code (a "Plan"). If any proposed transferee
shall become a holder of the Trust Certificate in violation of these provisions,
then the last preceding permitted transferee shall be restored, to the extent
permitted by law, to all rights as holder of the Trust Certificate, retroactive
to the date of registration of such transfer of the Trust Certificate. Neither
the Eligible Lender Trustee nor the Certificate Registrar shall not have any
liability to any person for any registration or transfer of the Trust
Certificate that is not permitted or for making any payments due on the Trust
Certificate to the holder or taking any other action with respect to such holder
under this Agreement. Any proposed transferee who becomes a holder of the Trust
Certificate shall agree to indemnify the Eligible Lender Trustee, the
Certificate Registrar, the Securities Insurer, the Swap Counterparty, the
Administrator, and, if it not the proposed transferor, the Depositor against any
loss, damage or penalty incurred as a result of the transfer of the Trust
Certificate to such purposed transferee in violation of such restrictions.
(iii) The prospective transferee shall be aware that the Trust
Certificate shall bear legends referring to the restrictions contained in
sub-clauses (i) and (ii) above and by its acceptance of the Trust Certificate
agrees to abide by such restrictions.
(iv) The prospective transferee shall deliver an opinion of counsel
addressed to the Eligible Lender Trustee, the Securities Insurer, the Swap
Counterparty, the Administrator, and, if it not the proposed transferor, the
Depositor, to the effect that, (A) as a matter of Federal income tax law, such
prospective transferee is permitted to accept the transfer of the Trust
Certificate, (B) such transfer or pledge would not jeopardize the tax treatment
of the Trust, (C) such transfer or pledge would not subject the Trust to an
entity-level tax, (D) such transfer or pledge would not jeopardize the status of
the Notes as debt for all purposes, and (D) such pledge or transfer would not
cause the Trust to be treated, for federal income tax purposes, as an
association or a publicly traded partnership taxable as a corporation.
(v) No pledge or transfer of the Trust Certificate shall be effective
unless such purchase or transfer is to a single beneficial owner who shall be
the registered holder of the Trust Certificate.
ARTICLE IV
ACTIONS BY ELIGIBLE LENDER TRUSTEE
SECTION 4.01. PRIOR NOTICE WITH RESPECT TO CERTAIN MATTERS. With
respect to the following matters, the Eligible Lender Trustee shall not take
action and neither the holder of the Trust Certificate nor the Securities
Insurer shall direct the Eligible Lender Trustee to take any action, unless (i)
(with respect to any action affecting the Group II Notes and so long as no
Securities Insurer Default has occurred and is continuing) the Securities
Insurer (except with respect to those actions set forth in paragraph (e) below)
has provided its written consent, and (ii) at least 30 days before the taking of
such action, the Eligible Lender Trustee shall have notified the holder of the
Trust Certificate and the Securities Insurer in writing of the proposed action
and neither the holder of the Trust Certificate nor (except with respect to
those actions set forth in paragraph (e) below) the Securities Insurer (with
respect to any action affecting the Group II Notes) shall have notified the
Eligible Lender Trustee in writing prior to the 30th day after such notice is
given that the Securities Insurer (with respect to any action affecting the
Group II Notes) or the holder of the Trust Certificate has withheld consent or
provided alternative direction:
(a) the initiation of any material claim or lawsuit by the Trust
(except claims or lawsuits brought in connection with the collection of the
Financed Student Loans) and the compromise of any material action, claim or
lawsuit brought by or against the Trust (except with respect to the
aforementioned claims or lawsuits for collection of Financed Student
Loans);
(b) the election by the Trust to file an amendment to the Certificate
of Trust;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any holder of the Group I or Group II
Notes or the Securities Insurer is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any holder of the Notes or the
Securities Insurer is not required and such amendment materially adversely
affects the interest of the holder of the Trust Certificate;
(e) the amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or supplement any
provision in a manner or add any provision that would not materially
adversely affect the interests of the holder of the Trust Certificate;
(f) the appointment pursuant to this Trust Agreement of a successor
Certificate Registrar, or the consent to the assignment by the Certificate
Paying Agent or Certificate Registrar of its obligations under this Trust
Agreement;
(g) the appointment pursuant to the Indenture of a successor Note
Registrar, Paying Agent or Indenture Trustee, or the consent to the
assignment by the Note Registrar, Paying Agent or Indenture Trustee of its
obligations under the Indenture;
(h) the consent to the calling or waiver of any default of any Basic
Document;
(i) the consent to the assignment by the Indenture Trustee, the Master
Servicer, the Administrator or the Seller of their respective obligations
under any Basic Document;
(j) except as provided in Article IX hereof, the dissolution,
termination or liquidation of the Trust, in whole or in part;
(k) the merger or consolidation of the Trust with or into any other
entity, or, except as contemplated by the Sale and Servicing Agreement and
the Indenture, the conveyance or transfer of all or substantially all of
the Trust's assets to any other entity;
(l) the causing of the Trust to incur, assume or guaranty any
indebtedness other than the Notes, as set forth in this Agreement;
(m) doing any act that conflicts with any other Basic Document;
(n) doing any act which would make it impossible to carry on the
ordinary business of the Trust;
(o) confessing a judgment against the Trust;
(p) possessing Trust assets, or assigning the Trust's right to
property, for other than a Trust purpose;
(q) changing the Trust's purpose and powers from those set forth in
this Agreement; or
(r) cause the Trust to lend any funds to any entity, unless permitted
in this Trust Agreement or the Basic Documents.
In addition, the Trust shall not commingle its assets with those of
the Depositor and shall maintain its financial and accounting books and records
separate from those of any other entity. Except as expressly set forth herein,
the Trust shall pay its indebtedness, operating expenses from its own funds, and
the Trust shall not pay the indebtedness, operating expenses and liabilities of
any other Person. The Trust shall maintain appropriate minutes or other records
of all appropriate actions and shall maintain its office separate from the
offices of the Depositor and any of its Affiliates. This Agreement and the Basic
Documents shall be the only agreements among the parties hereto with respect to
the creation, operation and termination of the Trust. For accounting purposes,
the Trust shall be treated as an entity separate and distinct from the
Depositor. The pricing and other material terms of all transactions and
agreements to which the Trust is a party shall be intrinsically fair to all
parties thereto.
The Eligible Lender Trustee shall not have the power, except upon the
direction of the holder of the Trust Certificate and, to the extent permitted by
applicable law (with respect to any action affecting the Group II Notes and so
long as no Securities Insurer Default has occurred and is continuing) with the
consent of the Securities Insurer (which consent shall not be unreasonably
withheld), and to the extent otherwise consistent with the Basic Documents, to
(i) remove or replace the Master Servicer, the Administrator or the Indenture
Trustee, (ii) institute proceedings to have the Trust declared or adjudicated a
bankrupt or insolvent, (iii) consent to the institution of bankruptcy or
insolvency proceedings against the Trust, (iv) file a petition or consent to a
petition seeking reorganization or relief on behalf of the Trust under any
applicable federal or state law relating to bankruptcy, (v) consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or any
similar official) of the Trust or a substantial portion of the property of the
Trust, (vi) make any assignment for the benefit of the Trust's creditors, (vii)
cause the Trust to admit in writing its inability to pay its debts generally as
they become due, or (viii) take any action, or cause the Trust to take any
action, in furtherance of any of the foregoing (any (ii) through (viii) above, a
"Bankruptcy Action"). So long as the Indenture remains in effect, neither the
Depositor, nor, if different, holder of the Trust Certificate shall have the
power to take, and shall not take, any Bankruptcy Action with respect to the
Trust or direct the Eligible Lender Trustee to take any Bankruptcy Action with
respect to the Trust.
In considering whether to take any Bankruptcy Action relating to the
Trust, the Eligible Lender Trustee shall consider the interests of the
Noteholders, the Swap Counterparty and the Securities Insurer in addition to the
interests of the Trust and whether the Trust is insolvent. The Eligible Lender
Trustee shall have no duty to take any Bankruptcy Action relating to the Trust
if the Eligible Lender Trustee shall not have been furnished (at the expense of
the Person that requested that such letter be furnished to the Eligible Lender
Trustee) a letter from an independent accounting firm of national reputation
stating that in the opinion of such firm the Trust is then insolvent. The
Eligible Lender Trustee shall not be personally liable to any holder of the
Trust Certificate on account of the Eligible Lender Trustee's good faith
reliance on the provisions of this Section and no holder of the Trust
Certificate shall have claim for breach of fiduciary duty or otherwise against
the Eligible Lender Trustee for determining not to take any such Bankruptcy
Action.
The provisions of this Section do not constitute an acknowledgment or
admission by the Trust, the Eligible Lender Trustee, any holder of the Trust
Certificate or any creditor of the Trust that the Trust is eligible to be a
debtor under the United States Bankruptcy Code, 11 U.S.C. ▇▇.▇▇. 101 et seq., as
amended.
SECTION 4.02. ACTION BY CERTIFICATEHOLDER WITH RESPECT TO CERTAIN
MATTERS. The Eligible Lender Trustee shall not have the power, except upon the
direction of the holder of the Trust Certificate, and (with respect to any
action affecting the Group II Notes and provided that no Securities Insurer
Default has occurred and is continuing) with the consent of the Securities
Insurer, to (a) remove the Master Servicer or the Administrator under the Sale
and Servicing Agreement pursuant to Section 8.01 thereof or (b) except as
expressly provided in the Basic Documents, sell the Financed Student Loans after
the termination of the Indenture. The Eligible Lender Trustee shall take the
actions referred to in the preceding sentence only upon written instructions
signed by the holder of the Trust Certificate, and (with respect to any action
affecting the Group II Notes and provided that no Securities Insurer Default has
occurred and is continuing) with the written consent of the Securities Insurer.
SECTION 4.03. ACTION BY CERTIFICATEHOLDER WITH RESPECT TO BANKRUPTCY.
The Eligible Lender Trustee shall not have the power to commence a voluntary
proceeding in bankruptcy relating to the Trust without the prior consent and
approval of the holder of the Trust Certificate, the Indenture Trustee and (with
respect to any action affecting the Group II Notes and provided that no
Securities Insurer Default has occurred and is continuing) the Securities
Insurer, and the delivery to the Eligible Lender Trustee by the holder of the
Trust Certificate of a certificate certifying that such holder of the Trust
Certificate reasonably believes that the Trust is insolvent.
SECTION 4.04. RESTRICTIONS ON CERTIFICATEHOLDER'S POWER. The holder of
the Trust Certificate or (with respect to any action affecting the Group II
Notes and provided that no Securities Insurer Default has occurred and is
continuing) the Securities Insurer shall not direct the Eligible Lender Trustee
to take or refrain from taking any action if such action or inaction would be
contrary to any obligations of the Trust or the Eligible Lender Trustee under
the Higher Education Act or this Trust Agreement or any of the other Basic
Documents or would be contrary to Section 2.03 nor shall the Eligible Lender
Trustee be permitted to follow any such direction, if given.
ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
SECTION 5.01. APPLICATION OF TRUST FUNDS. (a) On each Distribution
Date, the Eligible Lender Trustee will distribute to the holder of the Trust
Certificate, amounts received from the Indenture Trustee pursuant to Sections
5.05 of the Sale and Servicing Agreement, or Sections 5.04(b) or 5.04(c) of the
Indenture, as applicable, on such Distribution Date.
(b) On each Distribution Date, the Eligible Lender Trustee shall send
to the holder of the Trust Certificate a copy of the statement sent to the
Noteholders and provided to the Eligible Lender Trustee by the Administrator
pursuant to Section 5.07 of the Sale and Servicing Agreement on such
Distribution Date.
(c) In the event that any withholding tax is imposed on the Trust's
payment (or allocations of income) to a holder of the Trust Certificate, such
tax shall reduce the amount otherwise distributable to such holder in accordance
with this Section. The Eligible Lender Trustee is hereby authorized and directed
to retain from amounts otherwise distributable to the holder of the Trust
Certificate sufficient funds for the payment of any tax that is legally owed by
the Trust (but such authorization shall not prevent the Eligible Lender Trustee
from contesting any such tax in appropriate proceedings, and withholding payment
of such tax, if permitted by law, pending the outcome of such proceedings). The
amount of any withholding tax imposed with respect to a holder of the Trust
Certificate shall be treated as cash distributed to such holder of the Trust
Certificate at the time it is withheld by the Trust to be remitted to the
appropriate taxing authority. If there is a possibility that withholding tax is
payable with respect to a distribution (such as a distribution to a non-U.S.
holder of the Trust Certificate), the Eligible Lender Trustee in its sole
discretion may (but unless otherwise required by law shall be obligated to)
withhold such amounts in accordance with this paragraph (c). In the event that a
holder of the Trust Certificate wishes to apply for a refund of any such
withholding tax, the Eligible Lender Trustee shall reasonably cooperate with
such holder in making such claim so long as such holder of the Trust Certificate
agrees to reimburse the Eligible Lender Trustee for any out-of-pocket expenses
incurred.
SECTION 5.02. METHOD OF PAYMENT. Subject to Section 9.01(c),
distributions required to be made to the holder of the Trust Certificate on any
Distribution Date shall be made to each such holder of record on the preceding
Record Date either by wire transfer, in immediately available funds, to the
account of such holder at a bank or other entity having appropriate facilities
therefor, if such holder shall have provided to the Certificate Registrar
appropriate written instructions signed by two authorized officers, if any, at
least five Business Days prior to such Distribution Date or, if not, by check
mailed to such holder at the address of such holder appearing in the Certificate
Register. Notwithstanding the foregoing, the final distribution in respect of
any Trust Certificate will be payable only upon presentation and surrender of
such Trust Certificate at the Corporate Trust Office of the Eligible Lender
Trustee or such other location specified in writing to the holder thereof.
SECTION 5.03. NO SEGREGATION OF MONEYS; NO INTEREST. Subject to
Section 5.01, moneys received by the Eligible Lender Trustee hereunder need not
be segregated in any manner, except to the extent required by law or the Sale
and Servicing Agreement and may be deposited under such general conditions as
may be prescribed by law, and the Eligible Lender Trustee shall not be liable
for any interest thereon.
SECTION 5.04. ACCOUNTING AND REPORTS TO THE NOTEHOLDERS,
CERTIFICATEHOLDER, THE INTERNAL REVENUE SERVICE AND OTHERS. The Eligible Lender
Trustee shall deliver to the holder of the Trust Certificate such information,
reports or statements as may be required by the Code and applicable Treasury
Regulations and as may be required to enable the holder of the Trust Certificate
to prepare its Federal and state income tax returns. Consistent with the
Trust's characterization for tax purposes as a disregarded entity, no Federal
income tax return shall be filed on behalf of the Trust unless either (a) the
Trust, the Administrator, the Swap Counterparty, the Securities Insurer, the
Eligible Lender Trustee, KBUSA, the Depositor and, if different, the holder of
the Trust Certificate receives an opinion of counsel based on a change in
applicable law occurring after the date hereof that the Code requires such a
filing, or (b) the Internal Revenue Service shall determine that the Trust is
required to file such a return. In the event that the Trust is required to file
tax returns, the Eligible Lender Trustee shall elect under Section 1278 of the
Code to include in income currently any market discount that accrues with
respect to the Financed Student Loans. The Eligible Lender Trustee shall prepare
or shall cause to be prepared any tax returns required to be filed by the Trust
and shall remit such returns to holder of the Trust Certificate at least five
days before such returns are due to be filed. The holder of the Trust
Certificate, or any other such party required by law, shall promptly sign such
returns and deliver such returns after signature to the Eligible Lender Trustee
and such returns shall be filed by, or at the direction of, the Eligible Lender
Trustee with the appropriate tax authorities. In no event shall the holder of
the Trust Certificate or KBUSA be liable for any liabilities, costs or expenses
of the Trust arising out of the application of any tax law, including federal,
state, foreign or local income or excise taxes or any other tax imposed on or
measured by income (or any interest, penalty or addition with respect thereto or
arising from a failure to comply therewith), except for any such liability, cost
or expense attributable to the holder of the Trust Certificate's or KBUSA's
breach of its obligations under this Agreement.
SECTION 5.05. SIGNATURE ON RETURNS; TAX MATTERS PARTNER. The Eligible
Lender Trustee shall sign on behalf of the Trust the tax returns of the Trust,
unless applicable law requires the holder of the Trust Certificate or KBUSA to
sign such documents, in which case such documents shall be signed by the holder
of the Trust Certificate or KBUSA.
ARTICLE VI
AUTHORITY AND DUTIES OF ELIGIBLE LENDER TRUSTEE
SECTION 6.01. GENERAL AUTHORITY. The Eligible Lender Trustee is
authorized and directed to execute and deliver the Basic Documents to which the
Trust is to be a party and each certificate or other document attached as an
exhibit to or contemplated by the Basic Documents to which the Trust is to be a
party, in each case, in such form as the Depositor shall approve as evidenced
conclusively by the Eligible Lender Trustee's execution thereof, and, on behalf
of the Trust, to direct the Indenture Trustee to authenticate and deliver Notes
in the aggregate principal amount of $800,000,000. The Eligible Lender Trustee
is also authorized and directed on behalf of the Trust (i) to acquire and hold
legal title to the Financed Student Loans from the Depositor and (ii) to take
all actions required pursuant to Section 4.02(c) of the Sale and Servicing
Agreement, and otherwise follow the direction of and cooperate with the
Administrator in submitting, pursuing and collecting any claims to and with the
Department with respect to any Interest Subsidy Payments and Special Allowance
Payments relating to the Financed Federal Loans.
In addition to the foregoing, the Eligible Lender Trustee is
authorized, but shall not be obligated, to take all actions required of the
Trust pursuant to the Basic Documents. The Eligible Lender Trustee is further
authorized from time to time to take such action as the Administrator directs or
instructs with respect to the Basic Documents and is directed to take such
action to the extent that the Administrator is expressly required pursuant to
the Basic Documents to cause the Eligible Lender Trustee to act.
SECTION 6.02. GENERAL DUTIES. It shall be the duty of the Eligible
Lender Trustee to discharge (or cause to be discharged) all its responsibilities
pursuant to the terms of this Trust Agreement and the other Basic Documents to
which the Trust is a party and to administer the Trust in the interest of the
holder of the Trust Certificate, subject to and in accordance with the
provisions of this Trust Agreement and the other Basic Documents. Without
limiting the foregoing, the Eligible Lender Trustee shall on behalf of the Trust
file and prove any claim or claims that may exist on behalf of the Trust against
the Depositor in connection with any claims paying procedure as part of an
insolvency or a receivership proceeding involving the Depositor. Notwithstanding
the foregoing, the Eligible Lender Trustee shall be deemed to have discharged
its duties and responsibilities hereunder and under the other Basic Documents to
the extent the Administrator has agreed in the Administration Agreement to
perform any act or to discharge any duty of the Eligible Lender Trustee
hereunder or under any other Basic Document, and the Eligible Lender Trustee
shall not be held liable for the default or failure of the Administrator to
carry out its obligations under the Administration Agreement. Except as
expressly provided in the Basic Documents, the Eligible Lender Trustee shall
have no obligation to administer, service or collect the Financed Student Loans
or to maintain, monitor or otherwise supervise the administration, servicing or
collection of the Financed Student Loans.
SECTION 6.03. ACTION UPON INSTRUCTION. (a) Subject to Article IV,
Section 7.01 and in accordance with the terms of the Basic Documents, the holder
of the Trust Certificate may by written instruction direct the Eligible Lender
Trustee in the management of the Trust (and with respect to any action affecting
the Group II Notes and provided that for so long as no Securities Insurer
Default has occurred and is continuing, the consent of the Securities Insurer
will be required in connection with each such instruction). Such direction may
be exercised at any time by written instruction of the holder of the Trust
Certificate pursuant to Article IV.
(a) The Eligible Lender Trustee shall not be required to take any
action hereunder or under any other Basic Document if the Eligible Lender
Trustee shall have reasonably determined, or shall have been advised by counsel,
that such action is likely to result in liability on the part of the Eligible
Lender Trustee or is contrary to the terms hereof or of any other Basic Document
or is otherwise contrary to law.
(b) Whenever the Eligible Lender Trustee is unable to determine the
appropriate course of action between alternative courses of action permitted or
required by the terms of this Trust Agreement or under any other Basic Document,
the Eligible Lender Trustee shall promptly give notice (in such form as shall be
appropriate under the circumstances) to the holder of the Trust Certificate and
(with respect to any action affecting the Group II Notes and so long as no
Securities Insurer Default has occurred and is continuing) to the Securities
Insurer requesting instruction as to the course of action to be adopted, and to
the extent the Eligible Lender Trustee acts in good faith in accordance with any
written instruction received from the holder of the Trust Certificate and (with
respect to any action affecting the Group II Notes and so long as no Securities
Insurer Default has occurred and is continuing) as consented to by the
Securities Insurer, the Eligible Lender Trustee shall not be liable on account
of such action to any Person. If the Eligible Lender Trustee shall not have
received appropriate instruction within 10 days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or may be
necessary under the circumstances) it may, but shall be under no duty to, take
or refrain from taking such action, not inconsistent with this Trust Agreement
or the other Basic Documents, as it shall deem to be in the best interests of
the holder of the Trust Certificate, and shall have no liability to any Person
for such action or inaction.
(c) In the event that the Eligible Lender Trustee is unsure as to the
application of any provision of this Trust Agreement or any other Basic Document
or any such provision is ambiguous as to its application, or is, or appears to
be, in conflict with any other applicable provision, or in the event that this
Trust Agreement permits any determination by the Eligible Lender Trustee or is
silent or is incomplete as to the course of action that the Eligible Lender
Trustee is required to take with respect to a particular set of facts, the
Eligible Lender Trustee may give notice (in such form as shall be appropriate
under the circumstances) to the holder of the Trust Certificate and (with
respect to any action affecting the Group II Notes and so long as no Securities
Insurer Default has occurred and is continuing) the Securities Insurer
requesting instruction and, to the extent that the Eligible Lender Trustee acts
or refrains from acting in good faith in accordance with any such instruction
received from the holder of the Trust Certificate, and (with respect to any
action affecting the Group II Notes and so long as no Securities Insurer Default
has occurred and is continuing) as consented to by the Securities Insurer, the
Eligible Lender Trustee shall not be liable, on account of such action or
inaction, to any Person. If the Eligible Lender Trustee shall not have received
appropriate instruction within 10 days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action, not inconsistent with this Trust Agreement or the other
Basic Documents, as it shall deem to be in the best interests of the holder of
the Trust Certificate, and shall have no liability to any Person for such action
or inaction.
SECTION 6.04. NO DUTIES EXCEPT AS SPECIFIED IN THIS TRUST AGREEMENT,
THE SALE AND SERVICING AGREEMENT, OR IN INSTRUCTIONS. The Eligible Lender
Trustee shall not have any duty or obligation to manage, make any payment with
respect to, register, record, sell, service, dispose of or otherwise deal with
the Trust Estate, or to otherwise take or refrain from taking any action under,
or in connection with, any document contemplated hereby to which the Eligible
Lender Trustee is a party, except as expressly provided by the terms of this
Trust Agreement, the Sale and Servicing Agreement, or in any document or written
instruction received by the Eligible Lender Trustee pursuant to Section 6.03;
and no implied duties or obligations shall be read into this Trust Agreement or
any other Basic Document against the Eligible Lender Trustee. The Eligible
Lender Trustee shall have no responsibility for filing any financing or
continuation statement in any public office at any time or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder or to prepare or file any Commission filing for the Trust or to
record this Trust Agreement or any other Basic Document. The Eligible Lender
Trustee and the Delaware Trustee each severally and not jointly, nevertheless
agrees that it will, at its own cost and expense, promptly take all action as
may be necessary to discharge any liens on any part of the Trust Estate that
result from actions by, or claims against, Bank One, National Association, in
its individual capacity or as the Eligible Lender Trustee or against Bank One
Delaware, Inc., in its individual capacity or as Delaware Trustee, as
applicable, that are not related to the ownership or the administration of the
Trust Estate.
SECTION 6.05. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR
INSTRUCTIONS. The Eligible Lender Trustee shall not manage, control, use, sell,
service, dispose of or otherwise deal with any part of the Trust Estate except
(i) in accordance with the powers granted to and the authority conferred upon
the Eligible Lender Trustee pursuant to this Trust Agreement, (ii) in accordance
with the other Basic Documents to which it is a party and (iii) in accordance
with any document or instruction delivered to the Eligible Lender Trustee
pursuant to Section 6.03.
SECTION 6.06. RESTRICTIONS. The Eligible Lender Trustee and the
Delaware Trustee shall not take any action (a) that is inconsistent with the
purposes of the Trust set forth in Section 2.03 or (b) that, to the actual
knowledge of the Eligible Lender Trustee or the Delaware Trustee, would result
in the Trust's becoming taxable as a corporation for Federal income tax
purposes. The holder of the Trust Certificate shall not direct the Eligible
Lender Trustee or the Delaware Trustee to take action that would violate the
provisions of this Section.
ARTICLE VII
CONCERNING THE ELIGIBLE LENDER TRUSTEE
SECTION 7.01. ACCEPTANCE OF TRUSTS AND DUTIES. The Eligible Lender
Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this Trust
Agreement. The Eligible Lender Trustee also agrees to disburse all moneys
actually received by it constituting part of the Trust Estate upon the terms of
this Trust Agreement and the other Basic Documents. The Eligible Lender Trustee
shall not be answerable or accountable hereunder or under any other Basic
Document under any circumstances, except (i) for its own willful misconduct or
negligence or (ii) in the case of the inaccuracy of any representation or
warranty contained in Section 7.03 expressly made by the Eligible Lender
Trustee. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
(a) the Eligible Lender Trustee shall not be liable for any error of
judgment made by a responsible officer of the Eligible Lender Trustee;
(b) the Eligible Lender Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in accordance with the
direction or instructions of the Administrator, or from any holder of the
Trust Certificate and (with respect to any action affecting the Group II
Notes and so long as no Securities Insurer Default has occurred and is
continuing) as consented to by the Securities Insurer;
(c) subject to Section 7.07 hereof, no provision of this Trust
Agreement or any other Basic Document shall require the Eligible Lender
Trustee to expend or risk funds or otherwise incur any financial liability
in the performance of any of its rights or powers hereunder or under any
other Basic Document, if the Eligible Lender Trustee shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Eligible Lender Trustee be liable
for indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes;
(e) the Eligible Lender Trustee shall not be responsible for or in
respect of the validity or sufficiency of this Trust Agreement or for the
due execution hereof by the Depositor or for the form, character,
genuineness, sufficiency, value or validity of any of the Trust Estate or
for or in respect of the validity or sufficiency of the Basic Documents,
other than the certificate of authentication on the Trust Certificate, and
the Eligible Lender Trustee shall in no event assume or incur any
liability, duty, or obligation to any holder of the Notes or to any holder
of the Trust Certificate, other than as expressly provided for herein and
in the other Basic Documents;
(f) subject to Section 7.07 hereof, the Eligible Lender Trustee shall
not be liable for the action or inaction, default or misconduct of the
Administrator, the Seller, the Swap Counterparty, the Securities Insurer,
the Cap Provider, the Indenture Trustee or the Master Servicer under any of
the other Basic Documents or otherwise and the Eligible Lender Trustee
shall have no obligation or liability to perform the obligations of the
Trust under this Trust Agreement, or the other Basic Documents that are
required to be performed by the Administrator under the Sale and Servicing
Agreement, or the Administration Agreement, the Indenture Trustee under the
Indenture, the Swap Counterparty under the Interest Rate Swap, the
Securities Insurer under the Securities Guaranty Insurance Policy, the
Master Servicer under the Sale and Servicing Agreement, or the Cap Provider
under the Cap Agreement; and
(g) the Eligible Lender Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Trust Agreement,
or to institute, conduct or defend any litigation under this Trust
Agreement or otherwise or in relation to this Trust Agreement or any other
Basic Document, at the request, order or direction of any of the holder of
the Trust Certificate, unless such holder have offered to the Eligible
Lender Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities that may be incurred by the Eligible Lender
Trustee therein or thereby. The right of the Eligible Lender Trustee to
perform any discretionary act enumerated in this Trust Agreement or in any
other Basic Document shall not be construed as a duty, and the Eligible
Lender Trustee shall not be answerable for other than its negligence or
willful misconduct in the performance of any such act.
SECTION 7.02. FURNISHING OF DOCUMENTS. The Eligible Lender Trustee
shall furnish to the holder of the Trust Certificate, the Swap Counterparty or
the Securities Insurer promptly upon receipt of a written request therefor,
duplicates or copies of all reports, notices, requests, demands, certificates,
financial statements and any other instruments furnished to the Eligible Lender
Trustee under the Basic Documents.
SECTION 7.03. REPRESENTATIONS AND WARRANTIES. The Eligible Lender
Trustee hereby represents and warrants to the Depositor, for the benefit of the
holder of the Trust Certificate, the Securities Insurer and the Swap
Counterparty, that:
(a) It is a national banking association duly organized and validly
existing in good standing under the laws of the United States and having an
office located within the State of New York. It has all requisite corporate
power and authority to execute, deliver and perform its obligations under
this Trust Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Trust Agreement, and this Trust
Agreement will be executed and delivered by one of its officers who is duly
authorized to execute and deliver this Trust Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this Trust
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof will
contravene any Federal or Delaware state law, governmental rule or
regulation governing the banking or trust powers of the Eligible Lender
Trustee or any judgment or order binding on it, or constitute any default
under its charter documents or by-laws or any indenture, mortgage,
contract, agreement or instrument to which it is a party or by which any of
its properties may be bound. (d) It is an "eligible lender" as such term is
defined in Section 435(d) of the Higher Education Act, for purposes of
holding legal title to the Financed Student Loans as contemplated by this
Trust Agreement and the other Basic Documents, has obtained a lender
identification number with respect to the Trust from the Department and has
in effect a Guarantee Agreement with each of the Guarantors with respect to
the Financed Student Loans.
SECTION 7.04. RELIANCE; ADVICE OF COUNSEL. (a) The Eligible Lender
Trustee shall incur no liability to anyone in acting upon any signature,
instrument, direction, notice, resolution, request, consent, order, certificate,
report, opinion, bond, or other document or paper believed by it to be genuine
and believed by it to be signed by the proper party or parties. The Eligible
Lender Trustee may accept a certified copy of a resolution of the board of
directors or other governing body of any corporate party as conclusive evidence
that such resolution has been duly adopted by such body and that the same is in
full force and effect. As to any fact or matter the method of the determination
of which is not specifically prescribed herein, the Eligible Lender Trustee may
for all purposes hereof rely on a certificate, signed by the president or any
vice president or by the treasurer or other authorized officers of the relevant
party, as to such fact or matter and such certificate shall constitute full
protection to the Eligible Lender Trustee for any action taken or omitted to be
taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Trust Agreement or the
other Basic Documents, the Eligible Lender Trustee (i) may act directly or
through its agents or attorneys pursuant to agreements entered into with any of
them, and the Eligible Lender Trustee shall not be liable for the conduct or
misconduct of such agents or attorneys if such agents or attorneys shall have
been selected by the Eligible Lender Trustee with reasonable care, and (ii) may
consult with counsel, accountants and other skilled persons to be selected with
reasonable care and employed by it. The Eligible Lender Trustee shall not be
liable for anything done, suffered or omitted in good faith by it in accordance
with the written opinion or advice of any such counsel, accountants or other
such persons and not contrary to this Trust Agreement or any other Basic
Document.
SECTION 7.05. NOT ACTING IN INDIVIDUAL CAPACITY. Except as provided in
this Article VII, in accepting the trusts hereby created BANK ONE, NATIONAL
ASSOCIATION, acts solely as Eligible Lender Trustee hereunder and not in its
individual capacity and all Persons having any claim against the Eligible Lender
Trustee by reason of the transactions contemplated by this Trust Agreement or
any other Basic Document shall look only to the Trust Estate for payment or
satisfaction thereof.
Notwithstanding any other provision in this Trust Agreement or the
other Basic Documents, nothing in this Trust Agreement or the other Basic
Documents shall be construed to limit the legal responsibility of the Eligible
Lender Trustee or the Indenture Trustee to the U.S. Secretary of Education or a
Guarantor for any violations of statutory or regulatory requirements that may
occur with respect to loans held by the Eligible Lender Trustee or the Indenture
Trustee, pursuant to or to otherwise comply with their obligations under the
Higher Education Act or implementing regulations.
SECTION 7.06. ELIGIBLE LENDER TRUSTEE NOT LIABLE FOR TRUST CERTIFICATE
OR FINANCED STUDENT LOANS. The recitals contained herein and in the Trust
Certificate (other than the signature and countersignature of the Eligible
Lender Trustee on the Trust Certificate) shall be taken as the statements of the
Depositor and the Eligible Lender Trustee assumes no responsibility for the
correctness thereof. The Eligible Lender Trustee makes no representations as to
the validity or sufficiency of this Trust Agreement, the Trust Certificate or
any other Basic Document (other than the signature and countersignature of the
Eligible Lender Trustee on the Trust Certificate) or the Notes, or of any
Financed Student Loan or related documents. Subject to Section 7.07 hereof, the
Eligible Lender Trustee shall at no time have any responsibility (or liability
except for willfully or negligently terminating or allowing to be terminated any
of the Guarantee Agreements, in a case where the Eligible Lender Trustee knows
of any facts or circumstances which will or could reasonably be expected to
result in any such termination) for or with respect to the legality, validity,
enforceability and eligibility for Guarantee Payments, federal reinsurance,
Interest Subsidy Payments or Special Allowance Payments, as applicable, of any
Financed Student Loan, or for or with respect to the sufficiency of the Trust
Estate or its ability to generate the payments to be distributed to the holder
of the Trust Certificate under this Trust Agreement or the holders of the Notes
under the Indenture, including: the existence and contents of any computer or
other record of any Financed Student Loan; the validity of the assignment of any
Financed Student Loan to the Eligible Lender Trustee on behalf of the Trust; the
completeness of any Financed Student Loan; the performance or enforcement
(except as expressly set forth in any Basic Document) of any Financed Student
Loan; the compliance by the Depositor or the Master Servicer with any warranty
or representation made under any Basic Document or in any related document or
the accuracy of any such warranty or representation or any action or inaction of
the Administrator, the Indenture Trustee, the Swap Counterparty, the Securities
Insurer, the Cap Provider or the Master Servicer or any Sub-Servicer taken in
the name of the Eligible Lender Trustee.
SECTION 7.07. ELIGIBLE LENDER TRUSTEE MAY NOT OWN TRUST CERTIFICATE
AND MAY OWN NOTES. The Eligible Lender Trustee in its individual or any other
capacity may become the owner or pledgee of the Notes and may deal with the
Depositor, the Administrator, the Indenture Trustee, the Swap Counterparty, the
Securities Insurer, the Cap Provider and the Master Servicer in banking
transactions with the same rights as it would have if it were not Eligible
Lender Trustee. The Eligible Lender Trustee may not become the holder of the
Trust Certificate.
ARTICLE VIII
COMPENSATION OF ELIGIBLE LENDER TRUSTEE
SECTION 8.01. ELIGIBLE LENDER TRUSTEE'S FEES AND EXPENSES. The
Eligible Lender Trustee shall receive from the Administrator (on behalf of the
Depositor) as compensation for its services hereunder, such fees as have been
separately agreed upon before the date hereof among the Depositor, the
Administrator and the Eligible Lender Trustee, and the Eligible Lender Trustee
shall be entitled to be reimbursed by the Administrator (on behalf of the
Depositor), to the extent provided in such separate agreement, for its other
reasonable expenses hereunder.
SECTION 8.02. PAYMENTS TO THE ELIGIBLE LENDER TRUSTEE. Any amounts
paid to the Eligible Lender Trustee pursuant to Section 8.01 hereof or pursuant
to Section 6.03 or 6.04 of the Sale and Servicing Agreement shall be deemed not
to be a part of the Trust Estate immediately after such payment.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
SECTION 9.01. TERMINATION OF TRUST AGREEMENT. (a) This Trust Agreement
(other than Article VIII) and the Trust shall terminate and be of no further
force or effect upon the final distribution by the Eligible Lender Trustee of
all moneys or other property or proceeds of the Trust Estate in accordance with
the terms of the Indenture, the Sale and Servicing Agreement and Article V. The
bankruptcy, liquidation, dissolution, death or incapacity of the holder of the
Trust Certificate shall not (x) operate to terminate this Trust Agreement or the
Trust, nor (y) entitle such holder's legal representatives or heirs to claim an
accounting or to take any action or proceeding in any court for a partition or
winding up of all or any part of the Trust or Trust Estate nor (z) otherwise
affect the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 9.01(a), neither the Depositor nor
any holder of the Trust Certificate shall be entitled to revoke or terminate the
Trust.
(c) Notice of any termination of the Trust, specifying the
Distribution Date upon which the holder of the Trust Certificate shall surrender
its Trust Certificate to the Certificate Paying Agent for payment of the final
distribution and cancellation, shall be given promptly by the Eligible Lender
Trustee by letter to the holder of the Trust Certificate mailed within five
Business Days of receipt of notice of such termination from the Administrator
given pursuant to Section 9.01(d) of the Sale and Servicing Agreement, stating
(i) the Distribution Date upon which final payment of the Trust Certificate
shall be made upon presentation and surrender of the Trust Certificate at the
office of the Certificate Paying Agent therein designated, (ii) the amount of
any such final payment and (iii) that the Record Date otherwise applicable to
such Distribution Date is not applicable, payments being made only upon
presentation and surrender of the Trust Certificate at the office of the
Certificate Paying Agent therein specified. The Eligible Lender Trustee shall
give such notice to the Certificate Registrar (if other than the Eligible Lender
Trustee) and the Certificate Paying Agent at the time such notice is given to
the holder of the Trust Certificate. Upon presentation and surrender of the
Trust Certificate, the Certificate Paying Agent shall cause to be distributed to
the holder of the Trust Certificate amounts distributable to such holder on such
Distribution Date pursuant to Section 5.01.
In the event that the holder of the Trust Certificate shall not
surrender its Trust Certificate for cancellation within six months after the
date specified in the above-mentioned written notice, the Eligible Lender
Trustee shall give a second written notice to the holder of the Trust
Certificate to surrender its Trust Certificate for cancellation and receive the
final distribution with respect thereto. If within one year after the second
notice the Trust Certificate shall not have been surrendered for cancellation,
the Eligible Lender Trustee may take appropriate steps, or may appoint an agent
to take other reasonable and appropriate steps, to contact the holder of the
Trust Certificate concerning surrender of its Trust Certificate, and the cost
thereof shall be paid out of the funds and other assets that shall remain
subject to this Trust Agreement. Any funds remaining in the Trust after
exhaustion of such remedies and no later than five years after the first such
notice shall be distributed by the Eligible Lender Trustee to the Depositor.
ARTICLE X
SUCCESSOR ELIGIBLE LENDER TRUSTEES AND
ADDITIONAL ELIGIBLE LENDER TRUSTEES
SECTION 10.01. ELIGIBILITY REQUIREMENTS FOR ELIGIBLE LENDER TRUSTEE.
The Eligible Lender Trustee shall at all times be a corporation or association
(i) qualifying as an "eligible lender" as such term is defined in Section 435(d)
of the Higher Education Act for purposes of holding legal title to the Financed
Student Loans on behalf of the Trust, with a valid lender identification number
with respect to the Trust from the Department; (ii) being authorized to exercise
corporate trust powers and hold legal title to the Financed Student Loans; (iii)
having in effect Guarantee Agreements with each of the Guarantors; (iv) having a
combined capital and surplus of at least $50,000,000 and being subject to
supervision or examination by Federal or state authorities; (v) incorporated or
authorized to do business in the State of New York or which is a national bank
having an office located within the State of New York; and (vi) having (or
having a parent which has) a rating of at least Baa3 by ▇▇▇▇▇'▇, at least BBB by
Fitch (if rated by Fitch) and at least BBB by S&P and (vii) (so long as no
Securities Insurer Default has occurred and is continuing) is acceptable to the
Securities Insurer. If the Eligible Lender Trustee shall publish reports of
condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purpose of this
Section, the combined capital and surplus of the Eligible Lender Trustee shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Eligible Lender
Trustee or the Delaware Trustee, as the case may be, shall cease to be eligible
in accordance with the provisions of this Section, in the case of the Eligible
Lender Trustee, or Section 3807(a) of the Delaware Business Trust Act, in the
case of the Delaware Trustee, the Eligible Lender Trustee or the Delaware
Trustee, as the case may be, shall resign immediately in the manner and with the
effect specified in Section 10.02.
SECTION 10.02. RESIGNATION OR REMOVAL OF ELIGIBLE LENDER TRUSTEE. The
Eligible Lender Trustee and the Delaware Trustee may at any time resign and be
discharged from the trusts hereby created by giving written notice thereof to
the Administrator and the Securities Insurer. Upon receiving such notice of
resignation, the Administrator shall promptly appoint a successor Eligible
Lender Trustee or Delaware Trustee, as the case may be, and (so long as no
Securities Insurer Default has occurred and is continuing) with the consent of
the Securities Insurer (such consent not to be unreasonably withheld), meeting
the eligibility requirements of Section 10.01 (or in the case of the Delaware
Trustee, meeting the requirements of Section 3807(a) of the Delaware Business
Trust Act) by written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning Eligible Lender Trustee or the Delaware
Trustee, as the case may be, and one copy to the successor Eligible Lender
Trustee or the Delaware Trustee, as the case may be. If no successor Eligible
Lender Trustee or Delaware Trustee, as the case may be, shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Eligible Lender Trustee or Delaware
Trustee, as the case may be, may petition any court of competent jurisdiction
for the appointment of a successor Eligible Lender Trustee or Delaware Trustee,
as the case may be; PROVIDED, HOWEVER, that such right to appoint or to petition
for the appointment of any such successor shall in no event relieve the
resigning Eligible Lender Trustee or Delaware Trustee, as the case may be, from
any obligations otherwise imposed on it under the Basic Documents until such
successor has in fact assumed such appointment.
If at any time the Eligible Lender Trustee or the Delaware Trustee, as
the case may be, shall cease to be eligible in accordance with the provisions of
Section 10.01 (or the Delaware Trustee shall cease to satisfy the requirements
of Section 3807(a) of the Delaware Business Trust Act) and shall fail to resign
after written request therefor by the Administrator, or if at any time an
Insolvency Event with respect to the Eligible Lender Trustee or the Delaware
Trustee, as the case may be, shall have occurred and be continuing, then the
Administrator may, with the consent of the Securities Insurer (so long as no
Securities Insurer Default has occurred and is continuing), or shall (so long as
no Securities Insurer Default has occurred and is continuing) at the direction
of the Securities Insurer, remove the Eligible Lender Trustee or the Delaware
Trustee, as the case may be. If the Administrator shall remove the Eligible
Lender Trustee or the Delaware Trustee, as the case may be, under the authority
of the immediately preceding sentence, the Administrator shall promptly appoint
a successor Eligible Lender Trustee or Delaware Trustee, as the case may be, and
(so long as no Securities Insurer Default has occurred and is continuing)
acceptable to the Securities Insurer, by written instrument, in duplicate, one
copy of which instrument shall be delivered to the outgoing Eligible Lender
Trustee or Delaware Trustee, as the case may be, so removed and one copy to the
successor Eligible Lender Trustee or Delaware Trustee, as the case may be, and
payment of all fees owed to the outgoing Eligible Lender Trustee or Delaware
Trustee, as the case may be.
Any resignation or removal of the Eligible Lender Trustee or the
Delaware Trustee, as the case may be, and appointment of a successor Eligible
Lender Trustee or Delaware Trustee, as the case may be, pursuant to any of the
provisions of this Section shall not become effective until acceptance of
appointment by the successor Eligible Lender Trustee or Delaware Trustee, as the
case may be, pursuant to Section 10.03 and payment of all fees and expenses owed
to the outgoing Eligible Lender Trustee or Delaware Trustee, as the case may be.
The Administrator shall provide notice of such resignation or removal of the
Eligible Lender Trustee or Delaware Trustee, as the case may be, to each of the
Rating Agencies, the Swap Counterparty and the Securities Insurer.
SECTION 10.03. SUCCESSOR ELIGIBLE LENDER TRUSTEE. Any successor
Eligible Lender Trustee or Delaware Trustee, appointed pursuant to Section 10.02
shall execute, acknowledge and deliver to the Administrator, the Securities
Insurer and to its predecessor Eligible Lender Trustee or Delaware Trustee, as
the case may be, an instrument accepting such appointment under this Trust
Agreement, and thereupon the resignation or removal of the predecessor Eligible
Lender Trustee or Delaware Trustee, as the case may be, shall become effective
and such successor Eligible Lender Trustee or Delaware Trustee, as the case may
be, without any further act, deed or conveyance, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor under this
Trust Agreement, with like effect as if originally named as Eligible Lender
Trustee or Delaware Trustee, as the case may be. The predecessor Eligible Lender
Trustee or Delaware Trustee, as the case may be, shall upon payment of its fees
and expenses deliver to the successor Eligible Lender Trustee or Delaware
Trustee, as the case may be, all documents, statements, moneys and properties
held by it under this Trust Agreement and shall assign, if permissible, to the
successor Eligible Lender Trustee or Delaware Trustee, as the case may be, the
lender identification number obtained from the Department on behalf of the
Trust; and the Administrator and the predecessor Eligible Lender Trustee or
Delaware Trustee, as the case may be, shall execute and deliver such instruments
and do such other things as may reasonably be required for fully and certainly
vesting and confirming in the successor Eligible Lender Trustee or Delaware
Trustee, as the case may be, all such rights, powers, duties and obligations.
No successor Eligible Lender Trustee or Delaware Trustee, as the case
may be, shall accept appointment as provided in this Section unless at the time
of such acceptance such successor Eligible Lender Trustee or Delaware Trustee,
as the case may be, shall be eligible pursuant to Section 10.01 (or in the case
of the Delaware Trustee, satisfy the requirements of Section 3807(a) of the
Delaware Business Trust Act).
Upon acceptance of appointment by a successor Eligible Lender Trustee
or Delaware Trustee, as the case may be, pursuant to this Section, the
Administrator shall mail notice of the successor of such Eligible Lender Trustee
or Delaware Trustee, as the case may be, to the holder of the Trust Certificate,
the Securities Insurer, the Swap Counterparty, the Indenture Trustee, all
holders of the Notes and the Rating Agencies. If the Administrator shall fail to
mail such notice within 10 days after acceptance of appointment by the successor
Eligible Lender Trustee or Delaware Trustee, as the case may be, the successor
Eligible Lender Trustee or Delaware Trustee, as the case may be, shall cause
such notice to be mailed at the expense of the Administrator.
SECTION 10.04. MERGER OR CONSOLIDATION OF ELIGIBLE LENDER TRUSTEE. Any
corporation into which the Eligible Lender Trustee or Delaware Trustee, as the
case may be, may be merged or converted or with which it may be consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
the Eligible Lender Trustee or Delaware Trustee, as the case may be, shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Eligible Lender Trustee or Delaware Trustee, as the case
may be, shall, without the execution or filing of any instrument or any further
act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding, be the successor of the Eligible Lender Trustee or Delaware
Trustee, as the case may be, hereunder; PROVIDED that such corporation shall be
eligible pursuant to Section 10.01 (or in the case of the Delaware Trustee,
satisfy the requirements of Section 3807(a) of the Delaware Business Trust Act);
PROVIDED FURTHER that the Eligible Lender Trustee or Delaware Trustee, as the
case may be, shall mail notice of such merger or consolidation to the Rating
Agencies, the Administrator, the Swap Counterparty and the Securities Insurer.
SECTION 10.05. APPOINTMENT OF CO-ELIGIBLE LENDER TRUSTEE OR SEPARATE
ELIGIBLE LENDER Trustee. Notwithstanding any other provisions of this Trust
Agreement, at any time, for the purpose of meeting any legal requirements of any
jurisdiction in which any part of the Trust may at the time be located, the
Administrator and the Eligible Lender Trustee acting jointly, (and if no
Securities Insurer Default has occurred and is continuing) with the consent of
the Securities Insurer, shall have the power and shall execute and deliver all
instruments to appoint one or more Persons approved by the Eligible Lender
Trustee, meeting the eligibility requirements of clauses (i) through (iii) of
Section 10.01, to act as co-trustee, jointly with the Eligible Lender Trustee,
or separate trustee or separate trustees, of all or any part of the Trust
Estate, and to vest in such Person, in such capacity, such title to the Trust
Estate, or any part thereof, and, subject to the other provisions of this
Section, such powers, duties, obligations, rights and trusts as the
Administrator and the Eligible Lender Trustee, and (if no Securities Insurer
Default has occurred and is continuing) with the consent of the Securities
Insurer), may consider necessary or desirable. If the Administrator shall not
have joined in such appointment within 15 days after the receipt by it of a
request so to do, the Eligible Lender Trustee alone shall have the power to make
such appointment, and (if no Securities Insurer Default has occurred and is
continuing) with the consent of the Securities Insurer. No co-trustee or
separate trustee under this Trust Agreement shall be required to meet the terms
of eligibility as a successor trustee pursuant to clauses (iv) and (v) of
Section 10.01 and no notice of the appointment of any co-trustee or separate
trustee shall be required pursuant to Section 10.03.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties, and obligations conferred or imposed
upon the Eligible Lender Trustee shall be conferred upon and exercised or
performed by the Eligible Lender Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Eligible Lender
Trustee joining in such act), except to the extent that under any law of
any jurisdiction in which any particular act or acts are to be performed,
the Eligible Lender Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties, and
obligations (including the holding of title to the Trust or any portion
thereof in any such jurisdiction) shall be exercised and performed singly
by such separate trustee or co-trustee, solely at the direction of the
Eligible Lender Trustee;
(ii) no trustee under this Trust Agreement shall be personally liable
by reason of any act or omission of any other trustee under this Trust
Agreement; and
(iii) the Administrator and the Eligible Lender Trustee acting
jointly, and (if no Securities Insurer Default has occurred and is
continuing) with the consent of the Securities Insurer, may at any time
accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Eligible Lender
Trustee shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Trust
Agreement and the conditions of this Article. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Eligible Lender Trustee or separately, as may be provided
therein, subject to all the provisions of this Trust Agreement, specifically
including every provision of this Trust Agreement relating to the conduct of,
affecting the liability of, or affording protection to, the Eligible Lender
Trustee. Each such instrument shall be filed with the Eligible Lender Trustee
and a copy thereof given to the Administrator and the Securities Insurer.
Any separate trustee or co-trustee may at any time appoint the
Eligible Lender Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Trust Agreement on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be
removed, all its estates, properties, rights, remedies and trusts shall vest in
and be exercised by the Eligible Lender Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. SUPPLEMENTS AND AMENDMENTS. This Trust Agreement may be
amended by the Depositor and the Eligible Lender Trustee, with prior written
notice to the Rating Agencies, without the consent of any of the holder of the
Notes or the holder of the Trust Certificate, but (unless any such proposed
amendment does not affect the Group II Notes (as evidenced in an Opinion of
Counsel of the Depositor (who shall not be an employee of KBUSA or any of its
Affiliates) regarding the lack of changes to any legal rights and remedies of
the Group II Noteholders or the Securities Insurer, and a confirmation from each
Rating Agency that such amendment will not result in a downgrading of the then
current ratings of any of the Group II Notes (without regard to the Group II
Notes Guaranty Insurance Policy) and so long as no Securities Insurer Default
has occurred and is continuing) with the consent of the Securities Insurer
(which consent will not be unreasonably withheld), to cure any ambiguity, to
correct or supplement any provisions in this Trust Agreement or for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions in this Trust Agreement or of modifying in any manner the rights of
the holders of the Notes or the holder of the Trust Certificate; PROVIDED,
HOWEVER, that such action shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of any holder of any
Class of Notes or holder of the Trust Certificate, the Securities Insurer or the
Swap Counterparty.
This Trust Agreement may also be amended from time to time by the
Depositor and the Eligible Lender Trustee, with prior written notice to the
Rating Agencies, (i) with the consent of the holder of the Trust Certificate,
(ii) with the consent of a majority in interest of the Group I Controlling
Parties (unless any such amendment does not affect the Group I Notes or Group I
Student Loans (as evidenced in an Opinion of Counsel) of the Depositor (who
shall not be an employee of KBUSA or any of its Affiliates) regarding the lack
of changes to any legal rights and remedies of the Group I Noteholders, and a
confirmation from each Rating Agency that such amendment will not result in a
downgrading of the then current ratings of the Group I Notes), , and (iii) with
the consent of a majority in interest of the Group II Controlling Parties
(unless any such amendment does not affect the Group II Notes or Group II
Student Loans (as evidenced in an Opinion of Counsel of the Depositor (who shall
not be an employee of KBUSA or any of its Affiliates) regarding the lack of
changes to any legal rights and remedies of the Group II Noteholders or the
Securities Insurer, and a confirmation from each Rating Agency that such
amendment will not result in a downgrading of the Group II Notes (without regard
to the Group II Notes Guaranty Insurance Policy), for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Trust Agreement or of modifying in any manner the rights of the holders of
any Class of Notes or the holder of the Trust Certificate; PROVIDED, HOWEVER,
that no such amendment shall (a) increase or reduce in any manner the amount of,
or accelerate or delay the timing of, collections of payments with respect to
Group I or Group II Student Loans or distributions that shall be required to be
made for the benefit of the holders of the Group I or Group II Notes or (b)
amend aforesaid percentage of the Outstanding Amount of the related Class or
Classes of Notes, which are required to consent to any such amendment, without
the consent of all outstanding holders of all Classes of Notes affected by such
amendment and holder of the Trust Certificate. Notwithstanding anything to the
contrary contained in the Indenture, such rights of consent granted to the
holders of the Notes contained in clauses (a) and (b) of this proviso shall not
be exercisable by the Group I Controlling Parties on behalf of all of the Group
I Noteholders or by the Securities Insurer on behalf of all of the Group II
Noteholders.
Promptly after the execution of any such amendment or consent, the
Eligible Lender Trustee shall furnish written notification of the substance of
such amendment or consent to the holder of the Trust Certificate, the Indenture
Trustee, the Securities Insurer, the Swap Counterparty and each of the Rating
Agencies.
It shall not be necessary for the consent of the holder of the Trust
Certificate, the holder of any class of Notes, the Securities Insurer or the
Indenture Trustee pursuant to this Section to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and any
other consents of the holder of the Trust Certificate and the Securities Insurer
provided for in this Trust Agreement or in any other Basic Document) and of
evidencing the authorization of the execution thereof by holder of the Trust
Certificate shall be subject to such reasonable requirements as the Eligible
Lender Trustee may prescribe.
Prior to the execution of any amendment to this Trust Agreement, the
Eligible Lender Trustee shall be entitled to receive and rely upon an Opinion of
Counsel stating that the execution of such amendment is authorized or permitted
by this Trust Agreement. The Eligible Lender Trustee may, but shall not be
obligated to, enter into any such amendment which affects the Eligible Lender
Trustee's own rights, duties or immunities under this Trust Agreement or
otherwise.
SECTION 11.02. NO LEGAL TITLE TO TRUST ESTATE IN CERTIFICATEHOLDER.
The holder of the Trust Certificate shall not have legal title to any part of
the Trust Estate. The holder of the Trust Certificate shall be entitled to
receive distributions with respect to its beneficial ownership interest therein
only in accordance with Articles V and IX. No transfer, by operation of law or
otherwise, of any right, title, or interest of the holder of the Trust
Certificate to and in their beneficial ownership interest in the Trust Estate
shall operate to terminate this Trust Agreement or the trusts hereunder or
entitle any transferee to an accounting or to the transfer to it of legal title
to any part of the Trust Estate.
SECTION 11.03. LIMITATIONS ON RIGHTS OF OTHERS. The provisions of this
Trust Agreement are solely for the benefit of the Eligible Lender Trustee, the
Depositor, the holder of the Trust Certificate, the Administrator, the
Securities Insurer, the Swap Counterparty and, to the extent expressly provided
herein, the Indenture Trustee and the holder of the Notes, and nothing in this
Trust Agreement, whether express or implied, shall be construed to give to any
other Person any legal or equitable right, remedy or claim in the Trust Estate
or under or in respect of this Trust Agreement or any covenants, conditions or
provisions contained herein.
SECTION 11.04. NOTICES. (a) Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing and shall be
deemed given upon receipt by the intended recipient or three Business Days after
mailing if mailed by certified mail, postage prepaid (except that notice to the
Eligible Lender Trustee shall be deemed given only upon actual receipt by the
Eligible Lender Trustee), if to the Eligible Lender Trustee, addressed to its
Corporate Trust Office; if to the Depositor, addressed to Key Consumer
Receivables LLC, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇ ▇. ▇▇▇▇▇; if to the Securities Insurer, addressed to MBIA Insurance
Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Insured
Portfolio Management--SF; or, as to each party, at such other address as shall
be designated by such party in a written notice to each other party.
(b) Any notice required or permitted to be given to a holder of the
Trust Certificate shall be given by first-class mail, postage prepaid, at the
address of such holder as shown in the Certificate Register. Any notice so
mailed within the time prescribed in this Trust Agreement shall be conclusively
presumed to have been duly given, whether or not such holder receives such
notice.
SECTION 11.05. SEVERABILITY. Any provision of this Trust Agreement
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 11.06. SEPARATE COUNTERPARTS. This Trust Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION 11.07. SUCCESSORS AND ASSIGNS. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Depositor and its successors, the Eligible Lender Trustee and its successors,
each holder of the Trust Certificate and its successors and permitted assigns,
all as herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by a holder of the Trust Certificate shall bind the
successors and assigns of such holder.
SECTION 11.08. NO PETITION. (a) The Depositor (nor any Affiliate of
the Depositor if such Affiliate is the holder of the Trust Certificate) will not
at any time institute against the Trust any bankruptcy proceedings under any
United States Federal or state bankruptcy or similar law in connection with any
obligations relating to the Trust Certificate, the Notes, this Trust Agreement
or any of the other Basic Documents.
(b) The Eligible Lender Trustee (not in its individual capacity but
solely as Eligible Lender Trustee), by entering into this Trust Agreement, each
holder of the Trust Certificate, by accepting a Trust Certificate, and the
Indenture Trustee and each holder of the Notes by accepting the benefits of this
Trust Agreement, hereby covenant and agree that they will not at any time
institute against the Depositor or the Trust, or join in any institution against
the Depositor or the Trust of, any bankruptcy, reorganization, arrangement,
insolvency, receivership or liquidation proceedings, or other proceedings under
any United States Federal or state bankruptcy or similar law in connection with
any obligations relating to the Trust Certificate, the Notes, this Trust
Agreement or any of the other Basic Documents, until such time as thirteen
months after payment in full of the Notes and the repayment in full of amounts
owed the Securities Insurer and the Swap Counterparty has passed.
SECTION 11.09. NO RECOURSE. Each holder of the Trust Certificate by
accepting a Trust Certificate acknowledges that such holder's Trust Certificate
represent beneficial interests in the Trust only and do not represent interests
in or obligations of the Seller, the Master Servicer, the Administrator, the
Eligible Lender Trustee, the Cap Provider, the Indenture Trustee, the Swap
Counterparty, the Securities Insurer or any Affiliate thereof or any officer,
director or employee of any thereof and no recourse may be had against such
parties or their assets, except as may be expressly set forth or contemplated in
this Trust Agreement, the Trust Certificate or the other Basic Documents.
SECTION 11.10. HEADINGS. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 11.11. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.12. THIRD PARTY BENEFICIARIES. The parties hereto
acknowledge that the Securities Insurer and the Swap Counterparty are express
third party beneficiaries hereof entitled to enforce the provisions hereof as if
each were actually a party hereto. Notwithstanding the foregoing, nothing in
this Section 11.12 shall be construed to mitigate, in any way, the fiduciary
responsibilities of the Eligible Lender Trustee to the Depositor and, if
different, to the holder of the Trust Certificate.
IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Trust Agreement to be duly executed by their respective officers
hereunto duly authorized, as of the day and year first above written.
BANK ONE, NATIONAL ASSOCIATION, not in
its individual capacity but solely as
Eligible Lender Trustee,
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Authorized Officer
KEY CONSUMER RECEIVABLES LLC, Depositor,
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
Acknowledged, accepted, and with
respect to Sections 8.01,
agreed to, as of the day and year
first above written:
KEY BANK USA, NATIONAL
ASSOCIATION, as Administrator
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
Acknowledged and accepted as of the day
and year first above written:
BANK ONE DELAWARE , INC.,
as Delaware Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Authorized Officer
EXHIBIT A
TO THE TRUST AGREEMENT
[FORM OF TRUST CERTIFICATE]
SEE REVERSE FOR CERTAIN DEFINITIONS
THIS TRUST CERTIFICATE DOES NOT EVIDENCE AN OBLIGATION OF, OR AN INTEREST IN,
AND IS NOT GUARANTEED BY THE DEPOSITOR, THE ELIGIBLE LENDER TRUSTEE, THE SWAP
COUNTERPARTY, THE SECURITIES INSURER, THE ADMINISTRATOR OR ANY OF THEIR
RESPECTIVE AFFILIATES. THIS TRUST CERTIFICATE IS NOT INSURED OR GUARANTEED BY
ANY GOVERNMENTAL AGENCY OR INSTRUMENTALITY OR BY ANY PRIVATE INSURER.
THIS TRUST CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS
CERTIFICATE, AGREES FOR THE BENEFIT OF THE TRUST THAT THIS CERTIFICATE MAY BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (I) TO A PERSON WHOM THE
TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR (II) TO A PERSON WHOM
THE TRANSFEROR REASONABLY BELIEVES IS AN INSTITUTIONAL ACCREDITED INVESTOR TO
WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR TRANSFER IN BEING MADE IN
RELIANCE ON REGULATION D, AND IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR OTHER JURISDICTIONS, OR (III) TO A PERSON
IN A TRANSACTION THAT IS REGISTERED UNDER THE SECURITIES ACT OR THAT IS
OTHERWISE EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
ANY APPLICABLE STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS
TRUST CERTIFICATE, REPRESENTS AND AGREES FOR THE BENEFIT OF THE DEPOSITOR, THE
ADMINISTRATOR, THE ELIGIBLE LENDER TRUSTEE, THE SWAP COUNTERPARTY AND THE
SECURITIES INSURER THAT: IT IS EITHER A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A, OR AN INSTITUTIONAL ACCREDITED INVESTOR (AS DEFINED IN
RULE 501(A)(1)-(3) AND (7) OF REGULATION D UNDER THE SECURITIES ACT) OR AN
ENTITY IN WHICH ALL THE EQUITY OWNERS COME WITHIN SUCH PARAGRAPHS, OR THAT ITS
PURCHASE OF THIS TRUST CERTIFICATE IS OTHERWISE EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAWS, AND
THAT IT IS HOLDING THIS TRUST CERTIFICATE FOR INVESTMENT PURPOSES AND NOT FOR
DISTRIBUTION.
NO TRANSFER OF THIS TRUST CERTIFICATE WILL BE REGISTERED UNLESS THERE IS
PROVIDED A REPRESENTATION SATISFACTORY TO THE ELIGIBLE LENDER TRUSTEE THAT THIS
TRUST CERTIFICATE IS NOT BEING ACQUIRED DIRECTLY OR INDIRECTLY FOR, ON BEHALF OF
OR WITH THE ASSETS OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA") AND/OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (EACH A "PLAN").
NUMBER: _____
KEYCORP STUDENT LOAN TRUST 2001-A
ASSET BACKED TRUST CERTIFICATE
evidencing a 100% ownership interest in the Trust, as defined below, the
property of which includes a pool of undergraduate and graduate school student
loans sold to the Trust by Key Consumer Receivables LLC . (This Trust
Certificate does not represent an interest in or obligation of Key Consumer
Receivables LLC, Key Bank USA, National Association, the Eligible Lender Trustee
(as defined below), the Delaware Trustee (as defined below) or any of their
respective affiliates, except to the extent described below.)
THIS CERTIFIES THAT is the registered owner of a 100% nonassessable,
fully-paid, ownership interest in the KeyCorp Student Loan Trust 2001-A (the
"Trust"), a statutory business trust formed under the laws of the State of
Delaware by Key Consumer Receivables LLC. The Trust was created pursuant to a
Trust Agreement dated as of August 20, 2001, as amended and restated as of
September 1, 2001 (the "Trust Agreement"), between Key Consumer Receivables LLC,
a Delaware limited liability company (the "Depositor") and Bank One, National
Association, a national banking association, not in its individual capacity but
solely as eligible lender trustee on behalf of the Trust (the "Eligible Lender
Trustee") and pursuant to which Bank One Delaware, Inc. serves as Delaware
Trustee (the "Delaware Trustee"), a summary of certain of the pertinent
provisions of which is set forth below. To the extent not otherwise defined
herein, the capitalized terms used herein have the meanings assigned to them in
Appendix A to the Sale and Servicing Agreement (the "Sale and Servicing
Agreement") dated as of September 1, 2001, among the Trust, the Eligible Lender
Trustee, the Depositor, Key Bank USA, National Association, as master servicer
(the "Master Servicer"), and Key Bank USA, National Association, as
administrator (the "Administrator"); such Appendix A also contains rules as to
usage that shall be applicable herein.
This Trust Certificate is the duly authorized Trust Certificate issued
pursuant to the Trust Agreement (herein called the "Trust Certificate"). Also
issued under the Indenture dated as of September 1, 2001, between the Trust and
The Chase Manhattan Bank, as Indenture Trustee, are five classes of Notes, in
the initial aggregate principal amount of $800,000,000, designated as "Floating
Rate Asset Backed Notes" (the "Notes"). This Trust Certificate is issued under
and is subject to the terms, provisions and conditions of the Trust Agreement,
to which Trust Agreement the holder of this Trust Certificate by virtue of the
acceptance hereof assents and by which such holder is bound. The property of the
Trust includes a two pools of undergraduate and graduate school student loans
(the "Financed Student Loans") the first pool consisting of Financed Federal
Loans (the "Group I Loans") and the second pool consisting of Financed Private
Loans (the "Group II Loans"), all moneys paid thereunder (except with respect to
the Group II Student Loans, certain proceeds on any Guarantee Payments made by
▇▇▇▇) on or after September 1, 2001 (or, in the case of Financed Student Loans
that constitute Additional Student Loans, on or after the respective Subsequent
Cutoff Dates), rights of the Trust to payments under the two Interest Rate
Swaps, rights of the Trust to payments under the two Cap Agreements, the rights
of the Trust to sell the Group I and Group II Student Loans to the Put Option
Provider pursuant to the terms of the Group I and Group II Put Option
Agreements, respectively, certain bank accounts and the proceeds thereof,
certain other rights under the Trust Agreement and the Sale and Servicing
Agreement, the rights of the Depositor under the two Student Loan Transfer
Agreements, and all proceeds of the foregoing. The rights of the holder of the
Trust Certificate to the assets of the Trust are subordinated to the rights of
the holders of the Notes, the Swap Counterparty, the Cap Provider and the
Securities Insurer, as set forth in the Sale and Servicing Agreement and the
Indenture.
Under the Trust Agreement, all amounts then owed to the holder of the
Trust Certificate be distributed on the twenty-seventh day of March, June,
September and December (or, if such twenty-seventh day is not a Business Day,
the next succeeding Business Day) (each a "Distribution Date"), commencing on
December 27, 2001 to the person in whose name this Trust Certificate is
registered at the close of business on the twenty-fourth day of the calendar
month in which such Distribution Date occurs (the "Record Date"), pursuant to
the Sale and Servicing Agreement.
Each holder of this Trust Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Trust Certificate from
Available Funds are subordinated to the rights of the Group I and Group II
Noteholders, the Swap Counterparty, the Cap Provider and the Securities Insurer
as described in the Sale and Servicing Agreement and the Indenture.
Each holder of a Trust Certificate by its acceptance of a Trust
Certificate covenants and agrees that such holder will not at any time institute
against the Depositor or the Trust, or join in any institution against the
Depositor or the Trust of, any bankruptcy, reorganization, arrangement,
insolvency, receivership or liquidation proceedings, or other proceedings under
any United States Federal or state bankruptcy or similar law in connection with
any obligations relating to the Trust Certificate, the Notes, the Trust
Agreement or any of the other Basic Documents, until such time as thirteen
months after payment in full of the Notes and the repayment in full of amounts
owed the Securities Insurer and the Swap Counterparty has passed.
The Trust Certificate does not represent an obligation of, or an
interest in, the Depositor, the Master Servicer, the Administrator, the Swap
Counterparty, the Securities Insurer, the Eligible Lender Trustee or any
affiliates of any of them, and no recourse may be had against such parties or
their assets, except as may be expressly set forth or contemplated herein, in
the Trust Agreement or in the other Basic Documents. In addition, this Trust
Certificate is not guaranteed by any governmental agency or instrumentality and
is limited in right of payment to certain collections with respect to the
Financed Student Loans, all as more specifically set forth in the Sale and
Servicing Agreement. A copy of each of the Sale and Servicing Agreement and the
Trust Agreement may be examined during normal business hours at the principal
office of the Depositor, and at such other places, if any, designated by the
Depositor, by any holder of the Trust Certificate upon request.
THIS TRUST CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS,
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Eligible Lender Trustee or its
authenticating agent, by manual signature, this Trust Certificate shall not
entitle the holder hereof to any benefit under the Trust Agreement or the Sale
and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Eligible Lender Trustee on behalf of the Trust
and not in its individual capacity has caused this Trust Certificate to be duly
executed as of the date set forth below.
KEYCORP STUDENT LOAN TRUST 2001-A
By: BANK ONE, NATIONAL ASSOCIATION,
not in its individual
capacity but solely as Eligible
Lender Trustee,
By:
--------------------------------
Authorized Signatory
Date: September 14, 2001
TRUSTEE'S CERTIFICATE OF AUTHENTICATION This is the Trust Certificate
referred to in the within-mentioned Trust Agreement.
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Eligible Lender Trustee,
By:
Authorized Signatory
OR
BANK ONE, NATIONAL ASSOCIATION, not
in its individual capacity but
solely as Eligible Lender Trustee,
By: FIRST CHICAGO TRUST COMPANY
OF NEW YORK, as
Authenticating Agent,
By:
Authorized Signatory
Date: September 14, 2001
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
-------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
-------------------------------------------------------------------------------
the within Trust Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
----------------------------------------- Attorney to transfer said Trust
Certificate on the books of the Certificate Registrar, with full power of
substitution in the premises.
Dated:
*
---------------------------------------------
Signature Guaranteed:
*
---------------------------------------------
Signature Guaranteed:
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Trust Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.
EXHIBIT B
[FORM OF TRANSFEROR LETTER]
[Date]
Key Bank USA, National Association,
as Administrator
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Bank One, National Association,
as Eligible Lender Trustee and Certificate Registrar
1 Bank ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: KeyCorp Student Loan Trust 2001-A,
Asset Backed Trust Certificate (The "Certificate")
Ladies and Gentlemen:
In connection with our disposition of the above Certificate we certify that (a)
we understand that the Certificate has not been registered under the Securities
Act of 1933, as amended (the "Securities Act"), and are being disposed by us in
a transaction that is exempt from the registration requirements of the
Securities Act, and (b) we have not offered or sold the Certificate to, or
solicited offers to buy the Certificate from, any person, or otherwise
approached or negotiated with any person with respect thereto, in a manner that
would be deemed, or taken any other action would result in, a violation of
Section 5 of the Securities Act.
Very truly yours,
----------------------------------------
[Print Name of Transferor]
----------------------------------------
By: Authorized Officer
EXHIBIT C-1
[FORM OF TRANSFEREE LETTER (NON-RULE 144A)]
[Date]
Key Bank USA, National Association,
as Administrator
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Bank One, National Association,
as Eligible Lender Trustee and Certificate Registrar
1 Bank ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: KeyCorp Student Loan Trust 2001-A,
Asset Backed Trust Certificate (The "Certificate")
Ladies and Gentlemen:
In connection with our acquisition of the above Certificate we certify
that (a) we understand that the Certificate is not being registered under the
Securities Act of 1933, as amended (the "Securities Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Securities Act and any such laws, (b)
we are an institutional "accredited investor," as defined in Rule 501 (a) (1),
(2), (3) or (7) of Regulation D under the Securities Act or an entity in which
all of the equity owners come within such paragraphs , and have such knowledge
and experience in financial and business matters that we are capable of
evaluating the merits and risks of investments in the Certificate, (c) we have
had the opportunity to ask questions of and receive answers from the Depositor
concerning the purchase of the Certificate and all matters relating thereto or
any additional information deemed necessary to our decision to purchase the
Certificate, (d) we are not acquiring the Certificate for, on behalf of or with
the assets of, an employee benefit plan or other retirement arrangement (a
"Plan") which is subject to Title I of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), and/or Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code"), (e) we are acquiring the Certificate for
investment for our own account and not with a view to any distribution of the
Certificate (but without prejudice to our right at all times to sell or
otherwise dispose of the Certificate in accordance with clause (g) below), (f)
we have not offered or sold the Certificate to, or solicited offers to buy the
Certificate from, any person, or otherwise approached or negotiated with any
person with respect thereto, or taken any other action which would result in a
violation of Section 5 of the Securities Act, and (g) we will not sell, transfer
or otherwise dispose of the Certificate unless (1) such sale, transfer or other
disposition is made pursuant to an effective registration statement under the
Securities Act or is exempt from such registration requirements, and if
requested, we will at our expense provide an opinion of counsel satisfactory to
the addressees of this Letter that such sale, transfer or other disposition may
be made pursuant to an exemption from the Securities Act, (2) the purchaser or
transferee of such Certificate has executed and delivered to you a certificate
to substantially the same effect as this certificate and (3) the purchaser or
transferee has otherwise complied with any conditions for transfer set forth in
the Trust Agreement relating to the Certificate.
Very truly yours,
----------------------------------------
[Print Name of Transferee]
By:
---------------------------------------
Authorized Officer
EXHIBIT C-2
[FORM OF TRANSFEREE LETTER (RULE 144A)]
[Date]
Key Bank USA, National Association,
as Administrator
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Bank One, National Association,
as Eligible Lender Trustee and Certificate Registrar
1 Bank ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: KeyCorp Student Loan Trust 2001-A,
Asset Backed Trust Certificate (The "Certificate")
Ladies and Gentlemen:
In connection with our acquisition of the above Certificate we certify
that (a) we understand that the Certificate is not being registered under the
Securities Act of 1933, as amended (the "Securities Act"), or any state
securities laws and are being transferred to us in a transaction that is exempt
from the registration requirements of the Securities Act and any such laws, (b)
we have such knowledge and experience in financial and business matters that we
are capable of evaluating the merits and risks of investments in the
Certificate, (c) we have had the opportunity to ask questions of and receive
answers from the Depositor concerning the purchase of the Certificate and all
matters relating thereto or any additional information deemed necessary to our
decision to purchase the Certificate, (d) we are not acquiring the Certificate
for, on behalf of or with the assets of, an employee benefit plan or other
retirement arrangement (a "Plan") which is subject to Title I of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), and/or Section
4975 of the Internal Revenue Code of 1986, as amended (the "Code"), (e) we have
not, nor has anyone acting on our behalf offered, transferred, pledged, sold or
otherwise disposed of the Certificate, any interest in the Certificate or any
other similar security to, or solicited any offer to buy or accept a transfer,
pledge or other disposition of the Certificate, any interest in the Certificate
or any other similar security from, or otherwise approached or negotiated with
respect to the Certificate, any interest in the Certificate or any other similar
security with, any person in any manner, or made any general solicitation by
means of general advertising or in any other manner, or taken any other action,
that would constitute a distribution of the Certificate under the Securities Act
or that would render the disposition of the Certificate a violation of Section 5
of the Securities Act or require registration pursuant thereto, nor will act,
nor has authorized or will authorize any person to act, in such manner with
respect to the Certificate, (f) we are a "qualified institutional buyer" as that
term is defined in Rule 144A under the Securities Act ("Rule 144A") and have
completed either of the forms of certification to that effect attached hereto as
Annex 1 or Annex 2. We are aware that the sale to us is being made in reliance
on Rule 144A. We are acquiring the Certificate for our own account or for resale
pursuant to Rule 144A and further understand that the Certificate may be resold,
pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the Securities Act.
Very truly yours,
----------------------------------------
[Print Name of Transferee]
By:
---------------------------------------
Authorized Officer
ANNEX 1
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificate described therein:
1. As indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the
Buyer.
2. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because (i) the Buyer
owned and/or invested on a discretionary basis $____________1 in
securities (except for the excluded securities referred to below) as
of the end of the Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A and (ii) the Buyer satisfies
the criteria in the category marked below.
-- Corporation, etc. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
charitable organization described in Section 501(c) (3) of the
Internal Revenue Code of 1986, as amended.
-- BANK. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District
of Columbia, the business of which is substantially confined to
banking and is supervised by the State or territorial banking
commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, A COPY OF WHICH IS ATTACHED HERETO.
-- SAVINGS AND LOAN. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision
over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an audited net
worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, A COPY OF WHICH IS ATTACHED HERETO.
--------
1 Buyer must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Buyer is a dealer, and, in that case,
Buyer must own and/or invest on a discretionary basis at least
$10,000,000 in securities.
-- BROKER-DEALER. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
-- INSURANCE COMPANY. The Buyer is an insurance company whose
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State,
territory or the District of Columbia.
-- STATE OR LOCAL PLAN. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any agency
or instrumentality of the State or its political subdivisions,
for the benefit of its employees.
-- ERISA PLAN. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act
of 1974.
-- INVESTMENT ADVISOR. The Buyer is an investment advisor registered
under the Investment Advisors Act of 1940.
-- SMALL BUSINESS INVESTMENT COMPANY. The Buyer is a small business
investment company licensed by the U.S. Small Business
Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958.
-- BUSINESS DEVELOPMENT COMPANY. The Buyer is a business development
company as defined in Section 202(a) (22) of the Investment
Advisors Act of 1940.
-- QUALIFIED INSTITUTIONAL BUYERS. The Buyer owned and/or invested
on a discretionary basis less than $100,000,000, but it is an
entity in which all of the equity owners are qualified
institutional buyers.
3. The term "SECURITIES" as used herein DOES NOT INCLUDE (i) securities
of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if
the Buyer is a dealer, (iii) securities issued or guaranteed by the
U.S. or any instrumentality thereof, (iv) bank deposit notes and
certificates of deposit, (v) loan participations, (vi) repurchase
agreements, (vii) securities owned but subject to a repurchase
agreement and (viii) currency, interest rate and commodity swaps.
4. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer used
the cost of such securities to the Buyer and did not include any of
the securities referred to in the preceding paragraph, except (i)
where the Buyer reports its securities holdings in its financial
statements on the basis of their market value, and (ii) no current
information with respect to the cost of those securities has been
published. If clause (ii) in the preceding sentence applies, the
securities may be valued at market. Further, in determining such
aggregate amount, the Buyer may have included securities owned by
subsidiaries of the Buyer, but only if such subsidiaries are
consolidated with the Buyer in its financial statements prepared in
accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Buyer's
direction. However, such securities were not included if the Buyer is
a majority-owned, consolidated subsidiary of another enterprise and
the Buyer is not itself a reporting company under the Securities
Exchange Act of 1934, as amended.
5. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the
Certificate are relying and will continue to rely on the statements
made herein because one or more sales to the Buyer may be in reliance
on Rule 144A.
6. Until the date of purchase of the Rule 144A Securities, the Buyer will
notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice
is given, the Buyer's purchase of the Certificate will constitute a
reaffirmation of this certification as of the date of such purchase.
In addition, if the Buyer is a bank or savings and loan is provided
above, the Buyer agrees that it will furnish to such parties updated
annual financial statements promptly after they become available.
---------------------------------------------
[Print Name of Transferee]
By: ------------------------------------------
Name:
Title:
Date: ----------------------------------
ANNEX 2
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Certificate to which this
certification relates with respect to the Certificate described therein:
1. As indicated below, the undersigned is the President, Chief Financial
Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A
under the Securities Act of 1933, as amended ("Rule 144A") because
Buyer is part of a Family of Investment Companies (as defined below),
is such an officer of the Adviser.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer
is an investment company registered under the Investment Company Act
of 1940, as amended and (ii) as marked below, the Buyer alone, or the
Buyer's Family of Investment Companies, owned at least $100,000,000 in
securities (other than the excluded securities referred to below) as
of the end of the Buyer's most recent fiscal year. For purposes of
determining the amount of securities owned by the Buyer or the Buyer's
Family of Investment Companies, the cost of such securities was used,
except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements
on the basis of their market value, and (ii) no current information
with respect to the cost of those securities has been published. If
clause (ii) in the preceding sentence applies, the securities may be
valued at market.
-- The Buyer owned $_________________ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
-- The Buyer is part of a Family of Investment Companies which owned
in the aggregate $_______ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance
with Rule 144A).
3. The term "FAMILY OF INVESTMENT COMPANIES" as used herein means two or
more registered investment companies (or series thereof) that have the
same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or
because one investment adviser is a majority owned subsidiary of the
other).
4. The term "SECURITIES" as used herein does not include (i) securities
of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or
guaranteed by the U.S. or any instrumentality thereof, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations,
(v) repurchase agreements, (vi) securities owned but subject to a
repurchase agreement and (vii) currency, interest rate and commodity
swaps.
5. The Buyer is familiar with Rule 144A and understands that the parties
listed in the Rule 144A Transferee Certificate to which this
certification relates are relying and will continue to rely on the
statements made herein because one or more sales to the Buyer will be
in reliance on Rule 144A. In addition, the Buyer will only purchase
for the Buyer's own account.
6. Until the date of purchase of the Certificate, the undersigned will
notify the parties listed in the Rule 144A Transferee Certificate to
which this certification relates of any changes in the information and
conclusions herein. Until such notice is given, the Buyer's purchase
of the Certificate will constitute a reaffirmation of this
certification by the undersigned as of the date of such purchase.
----------------------------------
Print Name of Buyer or Adviser
By:
--------------------------------
Name:
Title:
[IF AN ADVISER:]
--------------------------------
Print Name of Buyer
Date: -------------------------