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EXHIBIT 3.3
TRUST AGREEMENT
Relating to
STUDENT LOAN FUNDING 1998-A/B TRUST
Dated as of March 1, 1999
among
STUDENT LOAN FUNDING LLC,
and
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION,
not in its individual capacity, but solely
as Delaware Trustee,
FIRSTAR BANK, NATIONAL ASSOCIATION,
not in its individual capacity, but solely
as Co-Owner Trustee
and
FIRSTAR BANK, NATIONAL ASSOCIATION,
not in its individual capacity, but solely
as Co-Owner Eligible Lender Trustee
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TABLE OF CONTENTS
INTRODUCTION...................................................................1
ARTICLE I......................................................................1
DEFINITIONS....................................................................1
Section 1.1. Definitions....................................................1
Section 1.2. Usage of Terms.................................................5
Section 1.3. Section References.............................................5
ARTICLE II.....................................................................6
CREATION OF TRUST..............................................................6
Section 2.1. Creation of Trust..............................................6
Section 2.2. Office.........................................................6
Section 2.3. Purposes and Powers............................................6
Section 2.4. Appointment of Delaware Trustee, Co-Owner Trustee
and Co-Owner Eligible Lender Trustee...........................7
Section 2.5. Initial Capital Contribution of Trust Estate...................7
Section 2.6. Declaration of Trust...........................................7
Section 2.7. Liability of a The Certificateholder...........................8
Section 2.8. Title to Trust Property........................................8
Section 2.9. Situs of Trust.................................................8
Section 2.10. Representations and Warranties of the Depositor................9
Section 2.11. Federal Income Tax Allocations................................10
Section 2.12 Covenants of The Certificateholder............................10
ARTICLE III...................................................................11
THE CERTIFICATE...............................................................11
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Section 3.1. Initial Ownership.............................................11
Section 3.2. The Certificate...............................................11
Section 3.3. Authentication of Certificate.................................11
Section 3.4. Registration of Transfer and Exchange of Certificate..........11
Section 3.5. Mutilated, Destroyed, Lost or Stolen Certificate..............12
Section 3.6. Person Deemed Certificateholder...............................13
Section 3.7. Access to Certificateholder's Name and Address................13
Section 3.8. Maintenance of Office or Agency...............................13
Section 3.9. Appointment of Paying Agent...................................14
ARTICLE IV....................................................................15
ACTIONS BY DELAWARE TRUSTEE, CO-OWNER TRUSTEE AND
CO-OWNER ELIGIBLE LENDER TRUSTEE..............................................15
Section 4.1. Restriction on Power of The Certificateholder.................15
Section 4.2. Prior Notice to Certificateholder with Respect to Certain
Matters.......................................................15
Section 4.3. Action by Certificateholder with Respect to Bankruptcy........15
Section 4.4. Restrictions on Certificateholder's Power.....................15
Section 4.5. Rights of Certificateholder...................................16
ARTICLE V.....................................................................17
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES....................................17
Section 5.1. Certificate Contribution Account; Certificate Distribution
Account.......................................................17
Section 5.2. Application of Funds in Certificate Distribution Account
and Certificate Contribution Account..........................18
Section 5.3. Method of Payment.............................................19
Section 5.4. No Segregation of Moneys; No Interest.........................19
Section 5.5. Accounting: Reports: Tax Returns..............................19
ARTICLE VI....................................................................20
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AUTHORITY AND DUTIES OF DELAWARE TRUSTEE, CO-OWNER
TRUSTEE AND CO-OWNER ELIGIBLE LENDER TRUSTEE..................................20
Section 6.1. General Authority.............................................20
Section 6.2. General Duties................................................20
Section 6.3. Action upon Instruction.......................................20
Section 6.4. No Duties Except as Specified in this Agreement or in
Instructions..................................................22
Section 6.5. No Action Except under Specified Documents or Instructions....22
Section 6.6. Restrictions..................................................22
Section 6.7. Administration Agreement......................................23
ARTICLE VII...................................................................24
CONCERNING THE DELAWARE TRUSTEE, CO-OWNER TRUSTEE AND
CO-OWNER ELIGIBLE LENDER TRUSTEE..............................................24
Section 7.1. Acceptance of Delaware Trustee, Co-Owner Trustee and
Co-Owner Eligible Lender Trustee; Duties......................24
Section 7.2. Furnishing of Documents.......................................25
Section 7.3. Representations and Warranties................................25
Section 7.4. Reliance; Advice of Counsel...................................27
Section 7.5. Not Acting in Individual Capacity.............................28
Section 7.6. Delaware Trustee Not Liable for Certificate, Notes or
Financed Student Loans........................................28
Section 7.7. Delaware Trustee, Co-Owner Trustee and Co-Owner Eligible
Lender Trustee May Own Certificate and Notes..................29
ARTICLE VIII..................................................................30
COMPENSATION OF DELAWARE TRUSTEE, CO-OWNER TRUSTEE AND
CO-OWNER ELIGIBLE LENDER TRUSTEE..............................................30
Section 8.1. Fees and Expenses of Delaware Trustee, Co-Owner Trustee and
Co-Owner Eligible Lender Trustee..............................30
Section 8.2. Indemnification...............................................30
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Section 8.3. Non-recourse Obligations......................................31
ARTICLE IX....................................................................32
TERMINATION...................................................................32
Section 9.1. Termination of the Trust......................................32
ARTICLE X.....................................................................34
SUCCESSOR DELAWARE TRUSTEES, CO-OWNER TRUSTEES
AND CO-OWNER ELIGIBLE LENDER TRUSTEES.........................................34
Section 10.1. Eligibility Requirements for Delaware Trustee, Co-Owner
Trustee and Co-Owner Eligible Lender Trustee..................34
Section 10.2. Resignation or Removal of Delaware Trustee, Co-Owner
Trustee and Co-Owner Eligible Lender Trustee..................34
Section 10.3. Successor Trustee.............................................35
Section 10.4. Merger or Consolidation of Delaware Trustee, Co-Owner
Trustee or Co-Owner Eligible Lender Trustee...................36
Section 10.5. Appointment of Additional Co-Trustee or Separate Trustee......36
ARTICLE XI....................................................................39
MISCELLANEOUS PROVISIONS......................................................39
Section 11.1. Amendment.....................................................39
Section 11.2. No Recourse...................................................40
Section 11.3. Governing Law.................................................40
Section 11.4. Severability of Provisions....................................41
Section 11.5. Certificate Nonassessable and Fully Paid......................41
Section 11.6. Third-Party Beneficiaries.....................................41
Section 11.7. Counterparts..................................................41
Section 11.8. Notices.......................................................41
SIGNATURES....................................................................43
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EXHIBIT A - FORM OF TRUST CERTIFICATE
EXHIBIT B - FORM OF PURCHASER'S LETTER
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THIS TRUST AGREEMENT, dated as of March 1, 1999, is made among STUDENT
LOAN FUNDING, LLC, a Delaware limited liability company (together with its
permitted successors and assigns, the "Depositor"), FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION, a national banking association, not in its individual
capacity, but solely as Delaware Trustee of the Trust created hereunder (in such
capacity, the "Delaware Trustee"), FIRSTAR BANK, NATIONAL ASSOCIATION, a
national banking association, not in its individual capacity, but solely as
co-owner trustee of the Trust created hereunder (in such capacity, the "Co-Owner
Trustee") and FIRSTAR BANK, NATIONAL ASSOCIATION, a national banking
association, not in its individual capacity, but solely as co-owner eligible
lender trustee for the benefit of the Co-Owner Trustee (in such capacity, the
"Co-Owner Eligible Lender Trustee").
WHEREAS, the Depositor has heretofore issued and sold certain Notes
secured under the hereinafter-defined Indenture and now desires to form a common
law (as opposed to statutory) trust under the laws of the State of Delaware (the
"Trust") and, in connection therewith, to assign all the assets pledged under
the Indenture to secure the payment of the Notes to the Co-Owner Trustee and,
but solely with respect to legal title to the Financed Student Loans, to the
Co-Owner Eligible Lender Trustee, in consideration of the assumption by the
Co-Owner Trustee of all the Depositor's obligations with respect to the Notes;
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions.
Capitalized words and phrases used as defined words and phrases and not
otherwise defined herein shall have the meanings given such words and phrases in
the Indenture. The following words and phrases, unless otherwise specified,
shall have the following meanings:
"Administration Agreement" shall mean the Administration Agreement,
to be dated as of March 15, 1999, between the Administrator and the
Co-Owner Trustee, as the same may be amended and supplemented from time to
time.
"Administrator" shall mean Student Loan Funding Resources,
Inc., an Ohio corporation, or any successor Administrator under the
Administration Agreement.
"Agreement" or "this Agreement" shall mean this Trust Agreement, all
amendments and supplements thereto and all exhibits and schedules to any
of the foregoing.
"Authentication Agent" shall mean Firstar Bank, National
Association, or its successor in interest, and any successor
authentication agent appointed as provided in this Agreement.
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"Benefit Plan" shall mean the meaning assigned in Section 3.4
hereof.
"Business Day" shall mean any day on which the Delaware Trustee,
Co-Owner Trustee and the Paying Agent, if any, at their respective
addresses set forth in or for purposes of this Agreement, are open for
commercial banking business and on which the New York Stock Exchange is
open.
"Certificate" shall mean a certificate executed by the Delaware
Trustee and authenticated by the Authentication Agent evidencing an
undivided interest, whether fractional or whole, in the Trust.
"Certificate Contribution Account" shall mean the account designated
as the Certificate Contribution Account in, and which is established and
maintained pursuant to, Section 5.1 hereof.
"Certificate Distribution Account" shall mean the account designated
as the Certificate Distribution Account in, and which is established and
maintained pursuant to, Section 5.1 hereof.
"Certificate Register" shall mean the register maintained by the
Certificate Registrar pursuant to Section 3.4 hereof.
"Certificate Registrar" shall mean the registrar appointed pursuant
to Section 3.4 hereof.
"Certificateholder" or "Holder" shall mean the Person in whose name
the Certificate is registered in the Certificate Register; provided,
however, that if no Certificate has been issued by the Delaware Trustee,
the Depositor shall be deemed to be the Certificateholder for purposes of
this Agreement.
Certificateholder's Distribution Date" shall mean the date on which
amounts in the Certificate Distribution Account are disbursed by the
Co-Owner Trustee to the Certificateholder which Date shall be the last
Business Day of each calendar month in which a deposit has been made to
the Certificate Distribution Account at least one day prior to such last
Business Day.
"Closing Date" shall mean March 4, 1999.
"Co-Owner Eligible Lender Trust Agreement" shall mean the Co-Owner
Eligible Lender Trust Agreement, dated as of March 1, 1999, by and between
the Co-Owner Trustee and the Co-Owner Eligible Lender Trustee, as
originally executed and as from time to time amended or supplemented.
"Co-Owner Eligible Lender Trustee" shall mean Firstar Bank, National
Association, not in its individual capacity, but solely as eligible lender
trustee for the benefit of the Co-Owner Trustee, and its permitted
successors and assigns.
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"Co-Owner Trustee" shall mean Firstar Bank, National Association,
not in its individual capacity, but solely as co-owner trustee of the
Trust created hereunder, and its permitted successors and assigns.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and
the regulations promulgated thereunder.
"Corporate Trust Office" shall mean (i) with respect to the Delaware
Trustee, the principal office of the Delaware Trustee at which, at any
particular time, its corporate trust business shall be administered, which
office at the Closing Date is located at One ▇▇▇▇▇▇ Square, Suite 100, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Administration; the telecopy number for the Corporate Trust Office on the
date of the execution of this Agreement is (▇▇▇) ▇▇▇-▇▇▇▇ ; (ii) with
respect to the Co-Owner Trustee, the principal office of the Co-Owner
Trustee at which, at any particular time, its corporate trust business
shall be administered, which office at the Closing Date is located at ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
Administration; the telecopy number for the Corporate Trust Office on the
date of the execution of this Agreement is (▇▇▇) ▇▇▇-▇▇▇▇ and (iii) with
respect to the Co-Owner Eligible Lender Trustee, at the principal office
of the Co-Owner Eligible Lender Trustee at which, at any particular time,
its corporate trust business shall be administered, which office at the
Closing Date is located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Administration -- Eligible Lender Trustee; the
telecopy number for the Corporate Trust Office of the Co-Owner Eligible
Lender Trustee on the date of the execution of this Agreement is (513)
632-5511.
"Delaware Trustee" shall mean First Union Trust Company, National
Association, not in its individual capacity, but solely as Delaware
trustee of the Trust created hereunder, and any successor trustee
appointed as provided in this Agreement.
"Depositor" shall mean Student Loan Funding LLC, a Delaware limited
liability company, and its permitted successors and assigns.
"Depositor Eligible Lender Trustee" shall mean Firstar Bank,
National Association (successor by merger to Star Bank, National
Association), as the eligible lender trustee under the Eligible Lender
Trust Agreement, and its lawful successors and assigns.
"Eligible Lender Trust Agreement" shall mean the Eligible Lender
Trust Agreement, dated as of June 1, 1998, by and between the Depositor
and the Depositor Eligible Lender Trustee, as originally executed and as
from time to time amended or supplemented.
"ERISA" shall mean the meaning assigned to such term in Section
3.4(e) hereof.
"Expenses" shall have the meaning assigned to such term in Section
8.2 hereof.
"Indemnified Parties" shall mean the meaning assigned to such term
in Section 8.2 hereof.
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"Indenture" shall mean, collectively, the Indenture of Trust and the
Terms Supplement to the Indenture of Trust, each dated as of December 1,
1998, among the Depositor, the Depositor Eligible Lender Trustee and the
Indenture Trustee, as amended, supplemented or
restated from time to time.
"Indenture Trustee" shall mean Firstar Bank, National Association
(successor by merger to Star Bank, National Association), or its successor
in interest, acting not individually but solely as trustee, and any
successor trustee appointed as provided in the Indenture.
"Instructing Party" shall have the meaning assigned to such term in
Section 6.3(a) hereof
"Master Servicing Agreement" shall mean the Master Servicing
Agreement, to be dated as of March 15, 1999, between the Co-Owner Trustee
and the Administrator, as the same may be amended and supplemented from
time to time.
"Notes" shall mean the Student Loan Asset-Backed Notes, Senior
Series 1998A-3, Senior Series 1998A-4, Senior Series 1998A-5, Senior
Series 1998A-6 and Subordinate Series 1998B-3, dated December 22, 1998,
issued by the Depositor under the Indenture and to be assigned by the
Depositor to, and assumed by, the Co-Owner Trustee pursuant to the
Transfer and Sale Agreement, and any notes issued in exchange therefor.
"Paying Agent" shall mean any paying agent or co-paying agent
appointed pursuant to Section 3.9 hereof, which initially shall be Firstar
Bank, National Association.
"Percentage Interest" shall mean that percentage of the total
beneficial interest in the Trust that is held by the Certificateholder,
which Percentage Interest with respect to the initially issued Certificate
shall be 100%.
"Record Date" shall mean, with respect to the Certificateholder's
Distribution Date, the close of business on the last Business Day
immediately preceding such Certificateholder's Distribution Date.
"Related Documents" shall mean the Co-Owner Eligible Lender Trust
Agreement, the Transfer and Sale Agreement, the Master Servicing
Agreement, the Indenture, the Certificate, the Notes and the
Administration Agreement. The Related Documents executed by any party are
referred to herein as "such party's Related Documents," "its Related
Documents" or by a similar expression.
"Responsible Officer" shall mean a duly appointed officer of the
Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible Lender
Trustee, having responsibility for performance of the respective
obligations of the Delaware Trustee, the Co-Owner Trustee or Co-Owner
Eligible Lender Trustee hereunder.
"Student Loan" shall have the meaning assigned to such term in
Section 1.1 of the Indenture.
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"Transfer and Sale Agreement" shall mean the Transfer and Sale
Agreement, to be dated as of March 15, 1999, among the Transferor, the
Co-Owner Trustee and the Co-Owner Eligible Lender Trustee, as the same may
be amended and supplemented from time to time.
"Transferor" shall mean, collectively, the Depositor or its
successor in interest, and the Depositor Eligible Lender Trustee or its
successor in interest, if and to the extent that the Depositor Eligible
Lender Trustee holds legal title to the Financed Student Loans on behalf
of the Depositor to be transferred in trust to the Co-Owner Eligible
Lender Trustee.
"Trust" shall mean the common law (as opposed to statutory) trust
created by this Agreement under the laws of the State of Delaware and
designated "Student Loan Funding 1998-A/B Trust", the estate of which
consists of the Trust Property.
"Trust Property" shall mean the property and proceeds of every
description conveyed to the Co-Owner Trustee and, but solely with respect
to legal title to the Financed Student Loans, the Co-Owner Eligible Lender
Trustee (i) initially pursuant to Section 2.5 hereof and (ii) hereafter
pursuant to the Transfer and Sale Agreement, together with all amounts
deposited in the Certificate Contribution Account and the Certificate
Distribution Account (including all Eligible Investments therein and all
proceeds therefrom).
"Trustee" shall mean any one of the Trustees.
"Trustees" shall mean, collectively, the Delaware Trustee, the
Co-Owner Trustee and the Co-Owner Eligible Lender Trustee.
Section 1.2 Usage of Terms.
With respect to all terms used in this Agreement, the singular includes
the plural and the plural the singular; words importing any gender include the
other genders; references to "writing" include printing, typing, lithography,
and other means of reproducing words in a visible form; references to agreements
and other contractual instruments include all subsequent amendments thereto or
changes therein entered into in accordance with their respective terms and not
prohibited by this Agreement; references to Persons include their permitted
successors and assigns; and the terms "include" or "including" mean "include
without limitation" or "including without limitation." To the extent that
definitions are contained in this Agreement, or in any such certificate or other
document, such definitions shall control.
Section 1.3 Section References.
All references to Articles, Sections, paragraphs, subsections, exhibits
and schedules shall be to such portions of this Agreement unless otherwise
specified.
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ARTICLE II
CREATION OF TRUST
Section 2.1 Creation of Trust.
There is hereby formed a common law (as opposed to statutory) trust to be
known as "Student Loan Funding 1998-A/B Trust," under which and in which name,
but solely to the extent provided in this Agreement, the Delaware Trustee, the
Co-Owner Trustee and the Co-Owner Eligible Lender Trustee may conduct business,
make and execute contracts and other instruments and ▇▇▇ and be sued. References
to the name "Student Loan Funding 1998-A/B Trust" in this Agreement, any Related
Document or any registration statement and related prospectus shall mean Firstar
Bank, National Association, not in its individual capacity, but solely as
Co-Owner Trustee of the Trust.
Section 2.2 Office.
Except as otherwise provided in this Agreement with respect to the
Delaware Trustee for purposes of performance of the duties of the Delaware
Trustee set forth herein, the office of the Trust shall be in care of the
Co-Owner Trustee at its Corporate Trust Office or at such other address in the
State of Ohio as the Co-Owner Trustee may designate by written notice to the
Delaware Trustee, the Certificateholder and the Depositor.
Section 2.3 Purposes and Powers.
(a) The purpose of the Trust is, and the Delaware Trustee, the Co-Owner
Trustee and the Co-Owner Eligible Lender Trustee on behalf of the Trust, but
each only to the extent provided in this Agreement, shall have the power and
authority, to engage in the following activities:
(i) to issue and sell the initial Certificate pursuant to this
Agreement and to pay the organizational, start-up and transactional
expenses of the Trust from amounts on deposit in the Certificate
Contribution Account;
(ii) to execute and deliver the Transfer and Sale Agreement, whereby
the Co-Owner Trustee and the Co-Owner Eligible Lender Trustee, in
consideration of the assignment and transfer by the Depositor and the
Depositor Eligible Lender Trustee of all of the assets pledged under the
Indenture, will assume all obligations of the Depositor and the Depositor
Eligible Lender Trustee under the Notes and the Indenture;
(iii) to assign, grant, transfer, pledge, mortgage and convey the
Trust Property to which it holds title, to the Indenture Trustee for the
benefit of the Noteholders and to hold, manage and distribute to the
Certificateholder pursuant to the terms hereof any portion of the Trust
Property released from the lien of, and remitted to the Co-Owner Trustee
for deposit in the Trust pursuant to, the Indenture;
(iv) to issue and exchange Exchange Notes for the outstanding Notes
pursuant to the Exchange Offer;
(v) to enter into and perform its obligations under the Related
Documents to which it is a party;
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(vi) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(vii) subject to compliance with the Related Documents, to engage in
such other activities as may be required in connection with conservation
of the Trust Property and the making of distributions to the
Certificateholder.
(b) Except as otherwise expressly provided herein with respect to the
Delaware Trustee and the Co-Owner Eligible Lender Trustee, the Co-Owner Trustee
is hereby authorized to engage in the foregoing activities. The Co-Owner Trustee
shall not engage in any activity other than in connection with the foregoing or
other than as required or expressly authorized by the terms of this Agreement or
the Related Documents.
Section 2.4 Appointment of Delaware Trustee, Co-Owner Trustee and Co-Owner
Eligible Lender Trustee.
The Depositor hereby appoints (i) the Delaware Trustee as trustee of the
Trust, (ii) the Co-Owner Trustee as co-trustee of the Trust and (iii) the
Co-Owner Eligible Lender Trustee as eligible lender trustee of the Trust,
effective as of the date hereof, to have all the respective rights, powers and
duties set forth herein. Each of the Delaware Trustee, the Co-Owner Trustee and
the Co-Owner Eligible Lender Trustee hereby accepts its respective appointment.
Section 2.5 Initial Capital Contribution of Trust Property.
The Depositor hereby assigns, transfers, conveys and sets over to the
Co-Owner Trustee, as of the date hereof, the sum of One Hundred Dollars ($100).
The Co-Owner Trustee hereby acknowledges receipt in trust from the Depositor, as
of the date hereof, of the foregoing contribution, which shall constitute the
initial Trust Property and shall be deposited in the Certificate Contribution
Account. To the extent not otherwise provided for by amounts on deposit in the
Certificate Contribution Account, the Depositor shall pay organizational
expenses of the Trust as they may arise or shall, upon the request of the
Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible Lender Trustee,
promptly reimburse the Delaware Trustee, the Co-Owner Trustee or the Co-Owner
Eligible Lender Trustee for any such expenses paid by the Delaware Trustee, the
Co-Owner Trustee or the Co-Owner Eligible Lender Trustee.
Section 2.6 Declaration of Trust.
Each of the Delaware Trustee, the Co-Owner Trustee and the Co-Owner
Eligible Lender Trustee hereby declares that it will hold the Trust Property in
trust upon and subject to the conditions set forth herein for the use and
benefit of the Certificateholder, subject to the interests and rights in the
Trust Property granted to other Persons by the Related Documents. It is the
intention and agreement of the parties hereto that the Trust constitute a common
law (as opposed to a statutory) trust under the laws of the State of Delaware
and that this Agreement constitute the governing instrument of such trust. It is
the intention and agreement of the parties hereto that, solely for income and
franchise tax purposes, the Trust, having at all times but a single
Certificateholder, shall be treated as a "disregarded entity", i.e. the Trust
will be disregarded as an entity separate from the Certificateholder. Unless
otherwise required by appropriate tax
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authorities, the Trust will file or cause to be filed all required annual or
other necessary returns, reports and other forms consistent with the
characterization of the Trust as a "disregarded entity" for such tax purposes.
Effective as of the date hereof, each of the Delaware Trustee, the Co-Owner
Trustee and the Co-Owner Eligible Lender Trustee shall have all rights, powers
and duties set forth herein and in the laws of the State of Delaware with
respect to accomplishing the purposes of the Trust.
Section 2.7 Liability of a Certificateholder.
(a) The Certificateholder shall not be liable directly to indemnify an
injured party for all losses, claims, damages, liabilities and expenses of the
Trust, to the extent not paid out of the Trust Property. The Certificateholder
shall not be liable for any losses incurred by a Note Owner in the capacity of
an investor in the Notes.
(b) The Certificateholder shall not have any personal liability for any
liability or obligation of the Trust or by reason of any action taken by the
parties to this Agreement pursuant to any provisions of this Agreement or any
Related Document.
Section 2.8 Title to Trust Property.
(a) Legal title to all the Trust Property (other than the Financed Student
Loans) shall be vested at all times in the Co-Owner Trustee, not in its
individual capacity but solely as Co-Owner Trustee of the Trust and except where
applicable law in any jurisdiction requires title to any part of such Trust
Property to be vested in another trustee or trustees, in which case title shall
be deemed to be vested in such other co-trustee and/or separate trustee, as the
case may be. Legal title to all Trust Property consisting of the Financed
Student Loans shall be vested at all times in the Co-Owner Eligible Lender
Trustee, not in its individual capacity but solely as Co-Owner Eligible Lender
Trustee of the Trust and except where applicable law in any jurisdiction
requires title to the Financed Student Loans to be vested in another trustee or
trustees, in which case title shall be deemed to be vested in such other
co-trustee and/or separate trustee, as the case may be, provided, however, that
any such trustee shall be an "eligible lender" under the Higher Education Act.
(b) The Certificateholder shall not have legal title to any part of the
Trust Property. The Certificateholder shall be entitled to receive distributions
with respect to its undivided beneficial interest therein only in accordance
with Articles V and IX of this Agreement. No transfer, by operation of law or
otherwise, of any right, title or interest by the Certificateholder of its
ownership interest in the Trust Property shall operate to terminate this
Agreement or the trusts hereunder or entitle any transferee to an accounting or
to the transfer to it of legal title to any part of the Trust Property.
Section 2.9 Situs of Trust.
The chief executive office and principal place of business of the Trust
will be located at the Corporate Trust Office of the Co-Owner Trustee. The Trust
shall at all times be administered in the State of Ohio. All bank accounts shall
be maintained by the Co-Owner Trustee and shall be located in the State of Ohio.
The Trust shall not have any employees in any state; provided, however, that
nothing herein shall restrict or prohibit the Delaware Trustee, the Co-Owner
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Trustee, the Co-Owner Eligible Lender Trustee, the Depositor, the Administrator,
the Servicer or any agent of the Trustees from having employees within or
without the State of Delaware or the State of Ohio. Payment will be received by
the Co-Owner Trustee only in the State of Ohio, and payments will be made by the
Co-Owner Trustee only from the State of Ohio.
Section 2.10 Representations and Warranties of the Depositor.
By execution of this Agreement, the Depositor makes the following
representations and warranties on which the Delaware Trustee, the Co-Owner
Trustee and the Co-Owner Eligible Lender Trustee each relies in accepting the
Trust Property in trust and issuing the Certificate:
(a) Organization and Good Standing. It has been duly organized and is
validly existing as a 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 as such business
is currently conducted and is proposed to be conducted pursuant to this
Agreement and the Related Documents.
(b) Due Qualification. It is duly qualified to do business as a limited
liability company in good standing, and has obtained all necessary licenses and
approvals, in all jurisdictions in which the ownership or lease of its property,
the conduct of its business and the performance of its obligations under this
Agreement and the Related Documents requires such qualification.
(c) Power and Authority. It has the power and authority to execute and
deliver this Agreement and its Related Documents and to perform its obligations
pursuant thereto, and the execution, delivery and performance of this Agreement
and its Related Documents have been duly authorized by all necessary company
action.
(d) No Consent Required. No consent, license, approval or authorization or
registration or declaration with, any Person or with any governmental authority,
bureau or agency is required in connection with its execution, delivery or
performance of this Agreement and the Related Documents, except for such as have
been obtained, effected or made.
(e) No Violation. The consummation of the transactions contemplated by
this Agreement and its Related Documents and the fulfillment of its obligations
under this Agreement and its Related Documents shall not conflict with, result
in any breach of any of the terms and provisions of or constitute (with or
without notice, lapse of time or both) a default under, its certificate of
formation or limited liability company agreement, or any indenture, agreement,
mortgage, deed of trust or other instrument to which it is a party or by which
it is bound, or result in the creation or imposition of any lien upon any of its
properties pursuant to the terms of any such indenture, agreement, mortgage,
deed of trust or other instrument, or violate any law, order, rule or regulation
applicable to it of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over it or any of its properties.
(f) No Proceedings. There are no proceedings or investigations pending or,
to its knowledge, threatened against it before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality having
jurisdiction over it or its properties
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(i) asserting the invalidity of this Agreement or any of the Related Documents,
(ii) seeking to prevent the issuance of the Certificate or the Exchange Offer
with respect to the Notes or the consummation of any of the transactions
contemplated by this Agreement or any of the Related Documents, (iii) seeking
any determination or ruling that might materially and adversely affect its
performance of its obligations under, or the validity or enforceability of, this
Agreement or any of the Related Documents, or (iv) seeking to adversely affect
the federal income tax or other federal, state or local tax attributes of the
Certificate.
Section 2.11 Federal Income Tax Allocations.
Net income of the Trust for any month 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 the Certificateholder, as of the
Record Date for such month, in an amount equal to the amount distributable for
such month to such Certificateholder.
Section 2.12. Covenants of Certificateholder.
The Certificateholder agrees:
(a) to be bound by the terms and conditions of the Certificate and of this
Agreement, including any supplements or amendments hereto and to perform the
obligations of the Certificateholder as set forth therein or herein, in all
respects as if it were a signatory hereto. This undertaking is made for the
benefit of the Delaware Trustee, the Co-Owner Trustee, the Co-Owner Eligible
Lender Trustee and any other future Certificateholder.
(b) to hereby appoint the Administrator as such Certificateholder's agent
and attorney-in-fact to sign any federal income tax information return filed on
behalf of the Certificateholder with respect to this Agreement and that, if
requested by the Co-Owner Trustee, it will sign such federal income tax
information return in its capacity as holder of an interest in the Trust. The
Certificateholder also hereby agrees that in its tax returns it will not take
any position inconsistent with those taken in any tax returns filed by the
Administrator on behalf of the Certificateholder.
(c) to notify the Delaware Trustee and the Co-Owner Trustee of any
transfer by it of the Certificate in a taxable sale or exchange, within 30 days
of the date of the transfer.
(d) not to, for any reason, institute proceedings for the Trust to be
adjudicated a bankrupt or insolvent, or consent to the institution of bankruptcy
or insolvency proceedings against the Trust, or file a petition seeking or
consenting to reorganization or relief under any applicable federal or state law
relating to bankruptcy, or consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Trust or a
substantial part of its property, or cause or permit the Co-Owner Trustee or the
Co-Owner Eligible Lender Trustee to make any assignment for the benefit of its
creditors, or admit in writing its inability to pay its debts generally as they
become due, or declare or effect a moratorium on its debt or take any action in
furtherance of any such action.
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ARTICLE III
THE CERTIFICATE
Section 3.1. Initial Ownership.
Upon the creation of the Trust by the contribution by the Depositor
pursuant to Section 2.5 and in the absence of the issuance of the initial
Certificate, the Depositor shall be the sole beneficiary of the Trust.
Section 3.2. The Certificate.
A single Certificate registered in the name of the Depositor and
representing the whole beneficial interest in the Trust shall be initially
issued in accordance with the provisions of Section 3.3 hereof. The Certificate
shall be substantially in the form of Exhibit A to this Agreement with such
changes as are necessary or appropriate and not inconsistent with this
Agreement. The Certificate shall be executed by the Delaware Trustee by manual
or facsimile signature of any authorized signatory of the Delaware Trustee. A
Certificate bearing the manual or facsimile signatures of individuals who were,
at the time when such signatures were affixed, authorized to sign on behalf of
the Delaware Trustee shall be validly issued and entitled to the benefits of
this Agreement, notwithstanding that such individuals or any of them have ceased
to be so authorized prior to the authentication and delivery of such
Certificate.
Section 3.3. Authentication of Certificate.
Simultaneously with the assignment and transfer to the Trust of the Trust
Property pursuant to the Transfer and Sale Agreement and the delivery to the
Co-Owner Eligible Lender Trustee and the Co-Owner Trustee of the Financed
Student Loans and the other Trust Property, respectively, the Delaware Trustee
shall execute the Certificate and shall cause the Certificate to be
authenticated by the Authentication Agent and delivered to or upon the order of
the Depositor. No Certificate shall entitle its Holder to any benefit under this
Agreement, or shall be valid for any purpose, unless there shall appear on such
Certificate a certificate of authentication, executed by the Authentication
Agent, by manual signature; such authentication shall constitute conclusive
evidence that such Certificate shall have been duly authenticated and delivered
hereunder. The Co-Owner Trustee is hereby initially appointed Authentication
Agent. The Certificate shall be dated the date of its authentication.
Section 3.4. Registration of Transfer and Exchange of Certificate.
(a) The Certificate Registrar shall maintain, or cause to be maintained,
at the office or agency maintained pursuant to Section 3.8 hereof, a Certificate
Register in which, subject to such reasonable regulations as it may prescribe,
the Co-Owner Trustee shall provide for the registration of the Certificate and
of transfers and exchanges of the Certificate as provided in this Agreement. The
Co-Owner Trustee is hereby initially appointed Certificate Registrar for the
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purpose of registering the Certificate and transfers and exchanges of the
Certificate as provided in this Agreement.
(b) Subject to the provisions of paragraph (e) of this Section 3.4, the
Depositor, as the registered Holder of the initial single Certificate, may
transfer (but solely to the extent not otherwise limited or prohibited in the
Certificate or this Agreement), or exchange for other Certificates aggregating
Percentage Interests equal to 100%, the initial Certificate upon surrender of
such Certificate to be transferred or exchanged at the office or agency of the
Co-Owner Trustee maintained pursuant to Section 3.8 hereof. Upon surrender for
registration of transfer of any Certificate at the office or agency of the
Co-Owner Trustee maintained pursuant to Section 3.8 hereof, the Co-Owner Trustee
shall cause the Delaware Trustee to execute, and the Authentication Agent shall
authenticate and deliver in the name of the designated transferee, one or more
new Certificates in an aggregate amount equal to the surrendered Certificate,
each dated the date of authentication.
(c) Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of transfer in
form satisfactory to the Co-Owner Trustee and the Certificate Registrar, duly
executed by the Holder or its attorney duly authorized in writing. Each
Certificate surrendered for registration of transfer or exchange shall be
canceled and subsequently disposed of by the Co-Owner Trustee in accordance with
its customary practice.
(d) No service charge shall be made for any registration of transfer or
exchange of a Certificate, but the Co-Owner Trustee or the Certificate Registrar
(if different from the Co-Owner Trustee) 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 Certificate.
(e) No Certificate may be acquired by or for the account of (i) an
employee benefit plan (as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")) that is subject to the
provisions of Title 1 of ERISA, (ii) a plan described in Section 4975(e)(1) of
the Code, or (iii) any entity whose underlying assets include plan assets by
reason of a plan's investment in the entity (each, a "Benefit Plan"). By
accepting and holding a Certificate, the Certificateholder thereof shall be
deemed to have represented and warranted that it is not a Benefit Plan.
Section 3.5. Mutilated, Destroyed, Lost or Stolen Certificate.
If (a) any mutilated Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Certificate, and (b) there is delivered to
the Delaware Trustee, the Certificate Registrar (if different from the Co-Owner
Trustee) and the Co-Owner Trustee such security or indemnity as may be required
by them to save each of them harmless, then, in the absence of notice to the
Certificate Registrar, the Co-Owner Trustee or the Delaware Trustee that such
Certificate has been acquired by a bona fide purchaser, the Co-Owner Trustee
shall cause the Delaware Trustee to execute, and the Authentication Agent shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor and
amount. In connection with the issuance of any new Certificate under this
Section 3.5, the
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Co-Owner Trustee may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Co-Owner Trustee, the Delaware
Trustee and the Certificate Registrar) connected therewith. Any duplicate
Certificate issued pursuant to this Section 3.5 shall constitute conclusive
evidence of beneficial ownership in the Trust, as if originally issued, whether
or not the lost, stolen or destroyed Certificate shall be found at any time.
Section 3.6. Person Deemed Certificateholder.
Prior to due presentation of a Certificate for registration of transfer,
the Co-Owner Trustee, the Certificate Registrar (if different from the Co-Owner
Trustee) and any agent of the Co-Owner Trustee or the Certificate Registrar may
treat the Person in whose name any Certificate is registered as the holder of
such Certificate for the purpose of receiving distributions pursuant to Section
5.2 hereof and for all other purposes whatsoever, and neither the Delaware
Trustee, the Co-Owner Trustee, or the Certificate Registrar nor any agent of the
Delaware Trustee, the Co-Owner Trustee or the Certificate Registrar shall be
affected by any notice to the contrary.
Section 3.7. [Reserved]
Section 3.8. Maintenance of Office or Agency.
(a) The Co-Owner Trustee shall maintain in Cincinnati, Ohio an office or
offices or agency or agencies where a Certificate may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Co-Owner Trustee in respect of such Certificate and the Related Documents
may be served. The Co-Owner Trustee initially designates its Corporate Trust
Office for such purposes. The Co-Owner Trustee shall give prompt written notice
to the Delaware Trustee, the Depositor, the Co-Owner Eligible Lender Trustee and
the Certificateholder of any change in the location of the Certificate Register
or any such office or agency.
(b) The Delaware Trustee shall maintain in Wilmington, Delaware an office
or offices from which it shall perform its obligations under this Agreement and
at which all service of process with respect to this Agreement shall be made.
The Delaware Trustee initially designates its Corporate Trust Office for such
purposes. The Delaware Trustee shall give prompt written notice to the Co-Owner
Trustee, the Depositor, the Co-Owner Eligible Lender Trustee and the
Certificateholder of any change in the location of such office or agency.
(c) The Co-Owner Eligible Lender Trustee shall maintain in Cincinnati,
Ohio an office or offices from which it shall perform its obligations under this
Agreement and at which all service of process with respect to this Agreement
shall be made. The Co-Owner Eligible Lender Trustee initially designates its
Corporate Trust Office for such purposes. The Co-Owner Eligible Lender Trustee
shall give prompt written notice to the Delaware Trustee, the Co-Owner Trustee,
the Depositor and the Certificateholder of any change in the location of such
office or agency.
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Section 3.9. Appointment of Paying Agent.
The Paying Agent shall make distributions to the Certificateholder from
the Certificate Distribution Account pursuant to Section 5.2 hereof and shall
report the amounts of such distributions to the Delaware Trustee and Co-Owner
Trustee (if different from the Paying Agent). Any Paying Agent (if different
from the Co-Owner Trustee) shall have the revocable power to withdraw funds from
the Certificate Distribution Account for the purpose of making the distributions
referred to above. The Co-Owner Trustee (if different from the Paying Agent) may
revoke such power and remove the Paying Agent if the Co-Owner Trustee determines
in its sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect. The Paying Agent shall
initially be Firstar Bank, National Association, and any co-paying agent chosen
by Firstar Bank, National Association. Firstar Bank, National Association shall
be permitted to resign as Paying Agent upon 30 days' written notice to the
Delaware Trustee. In the event that Firstar Bank, National Association shall no
longer be the Paying Agent, the Co-Owner Trustee with the written consent of the
Delaware Trustee, shall appoint a successor to act as Paying Agent (which shall
be a bank or trust company). The Co-Owner Trustee shall cause such successor
Paying Agent or any additional Paying Agent appointed by the Co-Owner Trustee to
execute and deliver to the Co-Owner Trustee an instrument in which such
successor Paying Agent or additional Paying Agent shall agree with the Co-Owner
Trustee that as Paying Agent, such successor Paying Agent or additional Paying
Agent will hold all sums, if any, held by it for payment to the
Certificateholder in trust for the benefit of the Certificateholder entitled
thereto until such sums shall be paid to such Certificateholder. The Paying
Agent (if different from the Co-Owner Trustee) shall return all unclaimed funds
to the Co-Owner Trustee and upon removal of a Paying Agent such Paying Agent
shall also return all funds in its possession to the Co-Owner Trustee (if
different from the Paying Agent). The provisions of Sections 7.1, 7.3, 7.4 and
8.2 hereof shall apply to the Co-Owner Trustee also in its role as Paying Agent,
for so long as the Co-Owner Trustee shall act as Paying Agent and, to the extent
applicable, to any other paying agent appointed hereunder. Any reference in this
Agreement to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
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ARTICLE IV
ACTIONS BY DELAWARE TRUSTEE,
CO-OWNER TRUSTEE AND CO-OWNER ELIGIBLE LENDER TRUSTEE
Section 4.1. Restriction on Power of Certificateholder.
The Certificateholder shall not have any right to vote or in any manner
otherwise control the operation and management of the Trust except as expressly
provided in this Agreement.
Section 4.2. Prior Notice to Certificateholder with Respect to Certain
Matters.
Neither the Delaware Trustee, the Co-Owner Trustee nor the Co-Owner
Eligible Lender Trustee shall take any of the following actions, unless at least
30 days before the taking of such action, the Delaware Trustee, the Co-Owner
Trustee or the Co-Owner Eligible Lender Trustee, as the case may be, shall have
notified the other Trustees and the Certificateholder in writing of the proposed
action and the Certificateholder shall not have notified the Delaware Trustee or
the Co-Owner Trustee, as the case may be, in writing prior to the 30th day after
such notice is given that such Certificateholder has withheld consent or
provided alternative direction:
(a) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder is required unless such
amendment would not materially adversely affect the interests of the
Certificateholder, the Delaware Trustee, the Co-Owner Trustee or the Co-Owner
Eligible Lender Trustee; or
(b) the amendment, change or modification of the Administration Agreement,
unless such amendment would not materially adversely affect the interests of the
Certificateholder, the Delaware Trustee, the Co-Owner Trustee or the Co-Owner
Eligible Lender Trustee.
Section 4.3. Action by Certificateholder with Respect to Bankruptcy.
Neither the Delaware Trustee, the Co-Owner Trustee nor the Co-Owner
Eligible Lender Trustee shall have the power to commence a voluntary proceeding
in bankruptcy relating to the Trust, if otherwise permitted by applicable law,
without the prior approval of the Certificateholder and the delivery to the
Delaware Trustee and the Co-Owner Trustee by such Certificateholder of a
certificate certifying that such Certificateholder reasonably believes that the
Trust is insolvent.
Section 4.4. Restrictions on Certificateholder's Power.
The Certificateholder shall not have any right by virtue or by availing
itself of any provisions of this Agreement to institute any suit, action, or
proceeding in equity or at law upon or under or with respect to this Agreement
or any Related Document, unless the Certificateholder previously shall have
given to the Delaware Trustee and the Co-Owner Trustee a written notice of
default and of the continuance thereof, as provided in this Agreement and unless
also the
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Certificateholder shall have made written request upon the Delaware Trustee and
the Co-Owner Trustee to institute such action, suit or proceeding in its own
respective names as Delaware Trustee and Co-Owner Trustee under this Agreement
and shall have offered to the Delaware Trustee and Co-Owner Trustee such
reasonable indemnity as each may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Delaware Trustee and
Co-Owner Trustee, for 30 days after their receipt of such notice, request, and
offer of indemnity, shall have neglected or refused to institute any such
action, suit, or proceeding and during such 30-day period, no request or waiver
inconsistent with such written request has been given to the Delaware Trustee
and Co-Owner Trustee pursuant to and in compliance with this Section or Section
6.3 hereof.
Section 4.5. Rights of Certificateholder.
Notwithstanding anything to the contrary in the Related Documents, without
the prior written consent of the Certificateholder, neither the Delaware
Trustee, the Co-Owner Trustee nor the Co-Owner Eligible Lender Trustee shall (i)
remove the Administrator, (ii) initiate any claim, suit or proceeding under this
Agreement or compromise any claim, suit or proceeding brought pursuant to this
Agreement or (iii) authorize the merger, conversion or consolidation of the
Trust with or into any business trust or other entity (other than in accordance
with the Indenture).
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ARTICLE V
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.1. Certificate Contribution Account; Certificate Distribution
Account.
(a) The Co-Owner Trustee, for the benefit of the Certificateholder, shall
establish and maintain the Certificate Contribution Account, in the name of the
Co-Owner Trustee for the benefit of the Certificateholder. The Certificate
Contribution Account shall be a segregated trust account hereunder established
by the Co-Owner Trustee and maintained at the Corporate Trust Office of the
Co-Owner Trustee. The Co-Owner Trustee shall deposit in the Certificate
Contribution Account all amounts received from the Depositor pursuant to Section
2.5 hereof.
(b) The Co-Owner Trustee, for the benefit of the Certificateholder, shall
establish and maintain the Certificate Distribution Account in the name of the
Trust for the benefit of the Certificateholder. The Certificate Distribution
Account shall be a segregated trust account hereunder established and maintained
by and with the Co-Owner Trustee at its Corporate Trust Office. The Co-Owner
Trustee shall deposit in the Certificate Distribution Account all amounts
received from the Indenture Trustee as and when received.
(c) The Co-Owner Trustee shall possess all right, title and interest in
all funds on deposit from time to time in the Certificate Contribution Account
and the Certificate Distribution Account and in all proceeds of each.
(d) All amounts held in the Certificate Distribution Account shall, to the
extent permitted by applicable laws, rules and regulations, be invested, by the
Co-Owner Trustee, in Eligible Investments that mature not later than one
Business Day prior to the Certificateholder's Distribution Date to which such
amounts relate. Investments in Eligible Investments shall be made in the name of
the Co-Owner Trustee, and such investments shall not be sold or disposed of
prior to their maturity. Any investment of funds in the Certificate Distribution
Account shall be made in Eligible Investments held by a financial institution
with respect to which (a) such institution has noted the Co-Owner Trustee's
interest therein by book entry or otherwise and (b) a confirmation of the
Co-Owner Trustee's interest has been sent to the Co-Owner Trustee by such
institution, provided that such Eligible Investments are (i) specific
certificated securities, and (ii) either (A) in the possession of such
institution or (B) in the possession of a clearing corporation in New York,
registered in the name of such clearing corporation, not endorsed for collection
or surrender or any other purpose not involving transfer, not containing any
evidence of a right or interest inconsistent with the Co-Owner Trustee's
interest therein, and held by such clearing corporation in an account of such
institution. Subject to the other provisions hereof, the Co-Owner Trustee shall
have sole control over each such investment and the income thereon, and any
certificate or other instrument evidencing any such investment, if any, shall be
delivered directly to the Co-Owner Trustee or its agent, together with each
document of transfer, if any, necessary to transfer title to such investment to
the Co-Owner Trustee in a manner which complies with this Section 5.1. All
interest, gains upon sale and other income from, or earnings
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on investment of funds in the Certificate Distribution Account shall be
distributed on the next Certificateholder's Distribution Date pursuant to
Section 5.2 hereof.
Section 5.2. Application of Funds in Certificate Distribution Account and
Certificate Contribution Account.
(a) On each Certificateholder's Distribution Date, the Co-Owner Trustee
shall distribute to the Certificateholder the Certificateholder's pro rata
amount of the aggregate undistributed amounts deposited in the Certificate
Distribution Account pursuant to Section 5.1 hereof.
(b) On each Certificateholder's Distribution Date, the Co-Owner Trustee
shall send to the Certificateholder any statement received from the Indenture
Trustee pursuant to the Indenture.
(c) In the event that any withholding tax is imposed on the Co-Owner
Trustee's distribution (or allocations of income) to the Certificateholder, such
tax shall reduce the amount otherwise distributable to such Certificateholder in
accordance with this Section. The Co-Owner Trustee is hereby authorized and
directed to retain from amounts otherwise distributable to such
Certificateholder sufficient funds for the payment of any tax that is legally
owed on account of the Trust (but such authorization shall not prevent the
Co-Owner Trustee from contesting any such tax in appropriate proceedings, and
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings). The amount of any withholding tax imposed with respect to
such Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by the Trust and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax is
payable with respect to a distribution (such as a distribution to a non-U.S.
Certificateholder), the Co-Owner Trustee may, in its sole discretion, withhold
such amounts in accordance with this paragraph (c). In the event that such
Certificateholder wishes to apply for a refund of any such withholding tax, the
Co-Owner Trustee shall reasonably cooperate with such Certificateholder in
making such claim so long as such Certificateholder agrees to reimburse the
Co-Owner Trustee for any out-of-pocket expenses incurred.
(d) On any Business Day on which there are due and payable organizational,
start-up and transactional expenses pursuant to this Agreement, the Co-Owner
Trustee shall, to the extent of available amounts in the Certificate
Contribution Account, pay such expenses from the Certificate Contribution
Account; provided, however, that if an insufficiency in the Certificate
Contribution Account exists or would exist upon payment of such expenses, the
Co-Owner Trustee shall notify the Depositor in writing of such insufficiency and
the Depositor shall immediately pay to the Co-Owner Trustee an amount at least
equal to such insufficiency. To the extent that there are amounts on deposit in
the Certificate Distribution Account pending distribution on any such Business
Day, the Co-Owner Trustee, with the consent of the Certificateholder, may
transfer a portion or all of such amounts from the Certificate Distribution
Account to the Certificate Contribution Account and such amounts shall be
applied to the payment of the expenses payable from amounts in the Certificate
Contribution Account.
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Section 5.3. Method of Payment.
Subject to Section 9.1(c) hereof, distributions required to be made to the
Certificateholder on any Certificateholder's Distribution Date shall be made to
such Certificateholder 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
Certificateholder shall have provided to the Certificate Registrar appropriate
written instructions at least five Business Days prior to such Distribution Date
and the amount of such distribution is not less than $50,000 or, if not, by
check mailed to such Certificateholder at the address of such Holder appearing
in the Certificate Register.
Section 5.4. No Segregation of Moneys; No Interest.
Subject to Sections 5.1 and 5.2, moneys received by the Co-Owner Trustee
hereunder need not be segregated in any manner except to the extent required by
law and may be deposited under such general conditions as may be prescribed by
law, and the Co-Owner Trustee shall not be liable for any interest thereon.
Section 5.5. Accounting; Reports; Tax Returns.
(a) The Administrator has agreed pursuant to the Administration Agreement
that the Administrator shall (i) maintain (or cause to be maintained) the books
of the Trust on a fiscal year basis on the accrual method of accounting (such
fiscal year initially being the fiscal year of the Depositor), (ii) deliver to
the Certificateholder, as may be required by the Code and applicable Treasury
Regulations, such information as may be required to enable such
Certificateholder to prepare its Federal and state income tax returns, (iii)
file or cause to be filed such tax returns, if any, relating to the Trust, and
direct the Co-Owner Trustee to make such elections as may from time to time be
required or appropriate under any applicable state or Federal statute or rule or
regulation thereunder so as to maintain the Trust's characterization as a
"disregarded entity" (or, if applicable, a partnership for Federal income tax
purposes), (iv) collect or cause to be collected any withholding tax as
described in and in accordance with Section 5.2(c) with respect to income or
distributions to the Certificateholder and (v) file or cause to be filed all
documents required to be filed by the Co-Owner Trustee with the Commission and
otherwise take or cause to be taken all such actions as are required for the
Trust's compliance with all applicable provisions of state and federal
securities laws.
(b) The Co-Owner Trustee shall make all elections pursuant to this Section
5.5 as directed in writing by the Certificateholder.
(c) The Co-Owner Trustee shall sign any tax returns relating to the Trust,
unless applicable law requires the Certificateholder to sign such documents, in
which case such documents shall be signed by the Certificateholder qualified to
sign such return, or such Certificateholder's law agent or attorney-in-fact. In
signing any such tax return, the Co-Owner Trustee shall rely entirely upon, and
shall have no liability for, information or calculations provided by the
Administrator.
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ARTICLE VI
AUTHORITY AND DUTIES OF DELAWARE TRUSTEE,
CO-OWNER TRUSTEE AND CO-OWNER ELIGIBLE LENDER TRUSTEE
Section 6.1. General Authority.
The Co-Owner Trustee is authorized and directed to execute, not in its
individual capacity but solely as trustee of the Trust, and deliver, and the
Co-Owner Eligible Lender Trustee is authorized and directed to execute, not in
its individual capacity but solely as eligible lender trustee for the benefit of
the Co-Owner Trustee, and deliver, the Related Documents to which it is to be a
party and each certificate or other document attached as an exhibit to, or
contemplated by, the Related Documents to which the Trust is to be a party and
any amendment thereto. In addition to the foregoing, the Co-Owner Trustee is
authorized, but shall not be obligated, to take all actions required of the
Trust pursuant to the Related Documents. The Co-Owner Trustee is further
authorized hereunder to enter into the Administration Agreement, to appoint,
with the prior written consent of the Depositor, a successor Administrator and
to take from time to time such action as the Administrator recommends with
respect to the Related Documents so long as such actions are consistent with the
terms of the Related Documents.
Section 6.2. General Duties.
It shall be the duty of the Co-Owner Trustee (and not the Delaware
Trustee) to discharge (or cause to be discharged through the Administrator or
such agents as shall be appointed by the Administrator) all of its
responsibilities pursuant to the terms of this Agreement and the Related
Documents and to administer the Trust in the interest of the Certificateholder,
subject to the Related Documents and in accordance with the provisions of this
Agreement. Notwithstanding the foregoing, the Co-Owner Trustee shall be deemed
to have discharged its duties and responsibilities hereunder and under the
Related Documents to the extent the Administrator has agreed in the
Administration Agreement, or the Co-Owner Eligible Lender Trustee has agreed in
the Co-Owner Eligible Lender Trust Agreement, to perform any act or to discharge
any duty of the Co-Owner Trustee hereunder or under any Related Document, and
the Co-Owner Trustee shall not be liable for the default or failure of the
Administrator or the Co-Owner Eligible Lender Trustee, as the case may be, to
carry out its obligations under the Administration Agreement or Co-Owner
Eligible Lender Trust Agreement, respectively.
Section 6.3. Action upon Instruction.
(a) Subject to Article IV of this Agreement, the Administrator (the
"Instructing Party") shall have the exclusive right to direct the actions of the
Co-Owner Trustee in the management of the Trust, so long as such instructions
are not inconsistent with the express terms set forth herein or in any Related
Document. The Instructing Party shall not instruct the Co-Owner Trustee in a
manner inconsistent with this Agreement or the Related Documents.
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(b) Neither the Delaware Trustee, the Co-Owner Trustee nor the Co-Owner
Eligible Lender Trustee shall be required to take any action hereunder or under
any Related Document if they, or any one of them, shall have reasonably
determined, or shall have been advised by counsel, that such action is contrary
to the terms hereof or of any Related Document or is otherwise contrary to law.
(c) Whenever the Delaware Trustee, the Co-Owner Trustee or the Co-Owner
Eligible Lender Trustee is unable to decide between alternative courses of
action permitted or required by the terms of this Agreement or any Related
Document, the Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible
Lender Trustee, as the case may be, shall promptly give notice (in such form as
shall be appropriate under the circumstances) to the Instructing Party
requesting instruction as to the course of action to be adopted, and to the
extent the Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible
Lender acts in good faith in accordance with any written instruction received
from the Instructing Party, neither the Delaware Trustee, the Co-Owner Trustee
nor the Co-Owner Eligible Lender Trustee, as the case may be, shall be liable on
account of such action to any Person. If the Delaware Trustee, the Co-Owner
Trustee or the Co-Owner Eligible Lender Trustee shall not have received
appropriate instruction within ten days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary
under the circumstances), it may, but shall be under no duty to, take or refrain
from taking such action, not inconsistent with this Agreement or the Related
Documents, as it shall deem to be in the best interests of the
Certificateholder, and shall have no liability to any Person for such action or
inaction.
(d) In the event that the Delaware Trustee, the Co-Owner Trustee or the
Co-Owner Eligible Lender Trustee is unsure as to the application of any
provision of this Agreement or any Related Document or any such provision is
ambiguous as to its application, or is, or appears to be, in conflict with any
other applicable provision, or in the event that this Agreement permits any
determination by the Delaware Trustee, the Co-Owner Trustee or the Co-Owner
Eligible Lender Trustee or is silent or is incomplete as to the course of action
that the Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible Lender
Trustee is required to take with respect to a particular set of facts, the
Delaware Trustee, the Co-Owner Trustee, or the Co-Owner Eligible Lender Trustee
may give notice (in such form as shall be appropriate under the circumstances)
to the Instructing Party requesting instruction and, to the extent that the
Delaware Trustee, the Co-Owner Trustee and/or the Co-Owner Eligible Lender
Trustee acts or refrains from acting in good faith in accordance with any such
instruction received, neither the Delaware Trustee, the Co-Owner Trustee nor the
Co-Owner Eligible Lender Trustee shall be liable on account of such action or
inaction to any Person. If the Delaware Trustee, the Co-Owner Trustee or the
Co-Owner Eligible Lender Trustee shall not have received appropriate instruction
within 10 days of such notice (or within such shorter period of time as
reasonably may be specified in such notice or may be necessary under the
circumstances) it may, but shall be under no duty to, take or refrain from
taking such action, not inconsistent with this Agreement or the Related
Documents, as it shall deem to be in the best interests of the
Certificateholder, and shall have no liability to any Person for such action or
inaction.
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Section 6.4. No Duties Except as Specified in this Agreement or in
Instructions.
Neither the Delaware Trustee, the Co-Owner Trustee nor the Co-Owner
Eligible Lender Trustee shall have any duty or obligation to manage, make any
payment with respect to, register, record, sell, dispose of or otherwise deal
with the Trust Property, or to otherwise take or refrain from taking any action
under, or in connection with, any document contemplated hereby to which any one
of them is a party, except as expressly provided by the terms of this Agreement
(including as provided in Section 6.2 hereof) or in any written instruction
received by the Co-Owner Trustee or Co-Owner Eligible Lender Trustee pursuant to
Section 6.3 hereof; and no implied duties or obligations shall be read into this
Agreement or any Related Document against the Delaware Trustee, the Co-Owner
Trustee or the Co-Owner Eligible Lender Trustee. Neither the Delaware Trustee,
the Co-Owner Trustee nor the Co-Owner Eligible Lender Trustee shall have any
responsibility for preparing, monitoring or filing any financing or continuation
statements in any public office at any time or otherwise to perfect or maintain
the perfection of any security interest or lien granted to it hereunder or to
record this Agreement or any Related Document; provided, however, the Co-Owner
Trustee and the Co-Owner Eligible Lender Trustee shall, from time to time,
execute and deliver such financing or continuation statements as are prepared by
the Administrator or the Indenture Trustee and are delivered to the Co-Owner
Trustee or the Co-Owner Eligible Lender Trustee for execution for the purpose of
perfecting or maintaining the perfection of such a security interest or lien or
effecting such a recording. Each of the Delaware Trustee, the Co-Owner Trustee
and the Co-Owner Eligible Lender Trustee, nevertheless, agrees that it will, at
its own cost and expense (and not at the expense of the Trust), promptly take
all action as may be necessary to discharge any liens on any part of the Trust
Property that are attributable to claims against the Delaware Trustee, the
Co-Owner Trustee or the Co-Owner Eligible Lender Trustee in its individual
capacity, respectively, that are not related to the ownership or the
administration of the Trust Property.
Section 6.5. No Action Except under Specified Documents or Instructions.
Neither the Delaware Trustee, the Co-Owner Trustee nor the Co-Owner
Eligible Lender Trustee shall manage, control, use, sell, dispose of or
otherwise deal with any part of, the Trust Property except (i) in accordance
with the powers granted to and the authority conferred upon the Delaware
Trustee, the Co-Owner Trustee or the Co-Owner Eligible Lender Trustee,
respectively, pursuant to this Agreement, (ii) in accordance with the Related
Documents and (iii) in accordance with any document or instruction delivered to
the Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible Lender
Trustee, respectively, pursuant to Section 6.3 or Section 6.4 hereof.
Section 6.6. Restrictions.
Neither the Delaware Trustee, the Co-Owner Trustee nor the Co-Owner
Eligible Lender Trustee shall take any action (i) that is inconsistent with the
purposes of the Trust set forth in Section 2.3 hereof or (ii) that, to the
actual knowledge of the Delaware Trustee, the Co-Owner Trustee or the Co-Owner
Eligible Lender Trustee would result in the Trust's becoming taxable as a
corporation for Federal income tax purposes. The Certificateholder shall not
direct the Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible
Lender Trustee to take action that would violate the provisions of this Section.
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Section 6.7. Administration Agreement.
(a) The Administrator is authorized to execute on behalf of Co-Owner
Trustee as trustee of the Trust all documents, reports, filings, instruments,
certificates and opinions as it shall be the duty of the Co-Owner Trustee to
prepare, file or deliver pursuant to the Related Documents. Upon written
request, the Co-Owner Trustee shall execute and deliver to the Administrator a
power of attorney appointing the Administrator its agent and attorney-in-fact to
execute all such documents, reports, filings, instruments, certificates and
opinions.
(b) If the Administrator shall resign or be removed pursuant to the terms
of the Administration Agreement, the Co-Owner Trustee may, and is hereby
authorized and empowered to, subject to obtaining the prior written consent of
the Depositor, appoint or consent to the appointment of a successor
Administrator pursuant to the Administration Agreement.
(c) If the Administration Agreement is terminated, the Co-Owner Trustee
may, and is hereby authorized and empowered to, subject to obtaining the prior
written consent of the Depositor, appoint or consent to the appointment of a
Person to perform substantially the same duties as are assigned to the
Administrator in the Administration Agreement pursuant to an agreement
containing substantially the same provisions as are contained in the
Administration Agreement.
(d) The Co-Owner Trustee shall promptly notify the Certificateholder of
any default by or misconduct of the Administrator under the Administration
Agreement of which the Co-Owner Trustee has received written notice or of which
a Responsible Officer has actual knowledge.
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ARTICLE VII
CONCERNING THE DELAWARE TRUSTEE,
THE CO-OWNER TRUSTEE AND THE CO-OWNER ELIGIBLE LENDER TRUSTEE
Section 7.1. Acceptance of Delaware Trustee, Co-Owner Trustee and
Co-Owner Eligible Lender Trustee; Duties.
Each of the Delaware Trustee, the Co-Owner Trustee and the Co-Owner
Eligible Lender Trustee accepts the trusts hereby created and agrees to perform
its respective duties hereunder with respect to such trusts but only upon the
terms of this Agreement. The Co-Owner Trustee also agrees to disburse all moneys
actually received by it constituting part of the Trust Property upon the terms
of the Related Documents and this Agreement. Neither the Delaware Trustee, the
Co-Owner Trustee nor the Co-Owner Eligible Lender Trustee shall be answerable or
accountable hereunder or under any Related Document under any circumstances,
except that the Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible
Lender Trustee, as applicable, shall be answerable or accountable hereunder (i)
for its own willful misconduct or negligence, (ii) in the case of the inaccuracy
of any representation or warranty given by it contained in Section 7.3 hereof,
(iii) for liabilities arising from its failure to perform obligations expressly
undertaken by it in the last sentence of Section 6.4 hereof, (iv) for any
investments issued by it or any branch or affiliate thereof in its commercial
capacity and (v) for taxes, fees or other charges on, based on or measured by,
any fees, commissions or compensation received by it in connection with any of
the transactions contemplated by this Agreement or any Related Document. In
particular, but not by way of limitation (and subject to the exceptions set
forth in the preceding sentence):
(a) neither the Delaware Trustee, the Co-Owner Trustee nor the Co-Owner
Eligible Lender Trustee shall be liable for any error of judgment made in good
faith by an authorized officer of the Delaware Trustee, the Co-Owner Trustee or
the Co-Owner Eligible Lender Trustee, respectively;
(b) neither the Delaware Trustee, the Co-Owner Trustee nor the Co-Owner
Eligible Lender Trustee shall be liable with respect to any action taken or
omitted to be taken by either in good faith in accordance with the instructions
of the Instructing Party;
(c) no provision of this Agreement or any Related Document shall require
the Delaware Trustee, the Co-Owner Trustee and/or the Co-Owner Eligible Lender
Trustee to expend or risk funds or otherwise incur any financial liability in
the performance of its rights or powers hereunder or under any Related Document
if they 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 them;
(d) under no circumstances shall the Delaware Trustee, the Co-Owner
Trustee or the Co-Owner Eligible Lender Trustee be liable for indebtedness
evidenced by or arising under this Agreement or any of the Related Documents,
including the principal of and interest and any Carryover Interest on the Notes;
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(e) neither the Delaware Trustee, the Co-Owner Trustee nor the Co-Owner
Eligible Lender Trustee shall be responsible for or in respect of the validity
or sufficiency of this Agreement or for the due execution hereof by the
Depositor or each other hereunder or for the form, character, genuineness,
sufficiency, value or validity of any of the Trust Property or for or in respect
of the validity or sufficiency of the Related Documents, other than (i) with
respect to the Delaware Trustee, the execution by the Delaware Trustee of each
Certificate and (ii) with respect to the Co-Owner Trustee, the certificate of
authentication on a Certificate, and neither the Delaware Trustee, the Co-Owner
Trustee nor the Co-Owner Eligible Lender Trustee shall in any event assume or
incur any liability, duty, or obligation to each other, the Administrator, the
Indenture Trustee, any Noteholder or to any Certificateholder, other than as
expressly provided for herein and in the Related Documents;
(f) neither the Delaware Trustee, the Co-Owner Trustee nor the Co-Owner
Eligible Lender Trustee shall be liable for the default or misconduct of each
other, the Administrator, the Indenture Trustee or the Depositor under any of
the Related Documents or otherwise and neither the Delaware Trustee, the
Co-Owner Trustee nor the Co-Owner Eligible Lender Trustee shall have any
obligation or liability to perform the obligations under this Agreement or the
Related Documents that are required to be performed by the Administrator under
the Administration Agreement, by the Indenture Trustee under the Indenture or by
the Master Servicer under the Master Servicing Agreement; and
(g) neither the Delaware Trustee, the Co-Owner Trustee nor the Co-Owner
Eligible Lender Trustee shall be under any obligation to exercise any of the
rights or powers vested in it by this Agreement, or to institute, conduct or
defend any litigation under this Agreement or otherwise or in relation to this
Agreement or any Related Document, at the request, order or direction of the
Instructing Party, unless such Instructing Party has offered to it security or
indemnity satisfactory to it against the costs, expenses and liabilities that
may be incurred by it therein or thereby. The right of the Delaware Trustee, the
Co-Owner Trustee or the Co-Owner Eligible Lender Trustee to perform any
discretionary act enumerated in this Agreement or in any Related Document shall
not be construed as a duty, and neither the Delaware Trustee, the Co-Owner
Trustee nor the Co-Owner Eligible Lender Trustee shall be answerable for other
than its own negligence or willful misconduct in the performance of any such
act.
Section 7.2. Furnishing of Documents.
The Co-Owner Trustee shall furnish to the Certificateholder 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 it under the Related Documents unless such
Certificateholder has previously received such items.
Section 7.3. Representations and Warranties.
(a) The Delaware Trustee hereby represents and warrants to the
Depositor and the Certificateholder that:
(i) It is a national banking association duly organized and
validly existing in good standing under the laws of the United States
of America. It has all requisite
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corporate power and authority and all franchises, grants,
authorizations, consents, orders and approvals from all governmental
authorities necessary to execute, deliver and perform its obligations
under this Agreement and each Related Document to which it, not in its
individual capacity but solely as trustee of the Trust, is a party.
(ii) It has taken all corporate action necessary to authorize
the execution and delivery by it, not in its individual capacity but
solely as trustee of the Trust, of this Agreement and the Certificate,
and this Agreement has been executed and delivered by one of its
officers who is duly authorized to execute and deliver this Agreement
on its behalf.
(iii) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof
will contravene any federal or Delaware law, governmental rule or
regulation governing the banking or trust powers of the Delaware
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 or result in the creation
or imposition of any lien, charge or encumbrance on the Trust Property
resulting from actions by or claims against the Delaware Trustee
individually which are unrelated to this Agreement or the Related
Documents.
(b) The Co-Owner Trustee hereby represents and warrants to the
Depositor and the Certificateholder that:
(i) It is a national banking association duly organized and
validly existing in good standing under the laws of the United States
of America. It has all requisite corporate power and authority and all
franchises, grants, authorizations, consents, orders and approvals from
all governmental authorities necessary to execute, deliver and perform
its obligations under this Agreement and each Related Document to which
it, not in its individual capacity but solely as trustee of the Trust,
is a party.
(ii) It has taken all corporate action necessary to authorize
the execution and delivery by it of this Agreement and each Related
Document to which it, not in its individual capacity but solely as
trustee of the Trust, is a party, and this Agreement and each Related
Document will be executed and delivered by one of its officers who is
duly authorized to execute and deliver this Agreement and each Related
Document on its behalf.
(iii) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof
will contravene any federal or Ohio law, governmental rule or
regulation governing the banking or trust powers of the Co-Owner
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 or result in the creation
or imposition of any lien, charge or encumbrance on the Trust Property
resulting from
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actions by or claims against the Co-Owner Trustee individually which
are unrelated to this Agreement or the Related Documents.
(c) The Co-Owner Eligible Lender Trustee hereby represents and warrants
to the Depositor and the Certificateholder that:
(i) It is a national banking association duly organized and
validly existing in good standing under the laws of the United States
of America. It has all requisite corporate power and authority and all
franchises, grants, authorizations, consents, orders and approvals from
all governmental authorities necessary to execute, deliver and perform
its obligations under this Agreement and each Related Document to which
it, not in its individual capacity but solely as eligible lender
trustee for the benefit of the Co-Owner Trustee, is a party.
(ii) It has taken all corporate action necessary to authorize
the execution and delivery by it of this Agreement and each Related
Document to which it, not in its individual capacity but solely as
trustee of the Trust, is a party, and this Agreement and each Related
Document will be executed and delivered by one of its officers who is
duly authorized to execute and deliver this Agreement and each Related
Document on its behalf.
(iii) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof
will contravene any federal or Ohio law, governmental rule or
regulation governing the banking or trust powers of the Co-Owner
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 or result in the
creation or imposition of any lien, charge or encumbrance on the Trust
Property resulting from actions by or claims against the Co-Owner
Eligible Lender Trustee individually which are unrelated to this
Agreement or the Related Documents.
(iv) It is and will use its best efforts to remain an
"eligible lender" under the Higher Education Act.
Section 7.4. Reliance; Advice of Counsel.
(a) Neither the Delaware Trustee, the Co-Owner Trustee nor the Co-Owner
Eligible Lender Trustee shall incur any liability to anyone in acting upon any
signature, instrument, notice, resolution, request, consent, order, certificate,
report, opinion, bond, or other document or paper believed by it to be genuine
and believed by it to be signed by the proper party or parties. The Delaware
Trustee, the Co-Owner Trustee and the Co-Owner 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 Delaware Trustee, the Co-Owner Trustee
and the Co-Owner Eligible Lender Trustee may for all purposes hereof rely
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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 Delaware
Trustee, the Co-Owner Trustee and Co-Owner Eligible Lender Trustee,
respectively, 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 the
performance of its respective duties and obligations under this Agreement or the
Related Documents, each of the Delaware Trustee, the Co-Owner Trustee and the
Co-Owner Eligible Lender Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with it, and neither the Delaware
Trustee, the Co-Owner Trustee nor the Co-Owner Eligible Lender Trustee shall be
liable for the conduct or misconduct of such agents or attorneys if such agents
or attorneys shall have been selected by it with reasonable care, and (ii) may
consult with counsel, accountants and other skilled persons to be selected with
reasonable care and employed by it. Neither the Delaware Trustee, the Co-Owner
Trustee nor the Co-Owner Eligible Lender Trustee shall be liable for anything
done, suffered or omitted in good faith by it in accordance with the written
opinion or advice of any such counsel, accountants or other such persons and not
contrary to this Agreement or any Related Document.
Section 7.5. Not Acting in Individual Capacity.
(a) Except as provided in this Article VII, in accepting the trusts
hereby created First Union Trust Company, National Association acts solely as
Delaware Trustee hereunder and not in its individual capacity and all Persons
having any claim against the Delaware Trustee by reason of the transactions
contemplated by this Agreement or any Related Document shall look only to the
Trust Property for payment or satisfaction thereof.
(b) Except as provided in this Article VII, in accepting the trusts
hereby created Firstar Bank, National Association acts solely as Co-Owner
Trustee hereunder and not in its individual capacity and all Persons having any
claim against the Co-Owner Trustee by reason of the transactions contemplated by
this Agreement or any Related Document shall look only to the Trust Property for
payment or satisfaction thereof.
(c) Except as provided in this Article VII, in accepting the trusts
hereby created Firstar Bank, National Association acts solely as Co-Owner
Eligible Lender Trustee hereunder and not in its individual capacity and all
Persons having any claim against the Co-Owner Eligible Lender Trustee by reason
of the transactions contemplated by this Agreement or any Related Document shall
look only to the Trust Property for payment or satisfaction thereof.
Section 7.6. Delaware Trustee Not Liable for Certificate, Notes or
Financed Student Loans.
The recitals contained herein and in each Certificate (other than the
signature of the Delaware Trustee and the signature of the Co-Owner Trustee, as
Authentication Agent, on each Certificate) shall be taken as the statements of
the Depositor, and neither the Delaware Trustee, the Co-Owner Trustee nor the
Co-Owner Eligible Lender Trustee assumes any responsibility for the correctness
thereof. Neither the Delaware Trustee, the Co-Owner Trustee nor the Co-Owner
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Eligible Lender Trustee makes any representations as to the validity or
sufficiency of this Agreement, of any Related Document or of the Certificate
(other than representations of the Delaware Trustee regarding the signature of
the Delaware Trustee on the Certificate and representations of the Co-Owner
Trustee, as Authentication Agent, regarding its signature on the certificate of
authentication on the Certificate) or the Notes, or of any Financed Student Loan
or related documents. Neither the Delaware Trustee, the Co-Owner Trustee nor the
Co-Owner Eligible Lender Trustee shall at any time have any responsibility or
liability for or with respect to the legality, validity and enforceability of
any Financed Student Loan, or the perfection and priority of any security
interest created under the Indenture in any Financed Student Loan or the
maintenance of any such perfection and priority of any such security interest or
the maintenance of any such perfection and priority, or for or with respect to
the sufficiency of the Trust Property or its ability to generate the payments to
be distributed to the Certificateholder under this Agreement or the Noteholders
under the Indenture, including, without limitation: the existence, status and
ownership of any Financed Student Loan; the existence and enforceability of any
insurance or guarantee thereon; the existence and status of any Financed Student
Loan on any computer or other record thereof; the validity of the sale or
assignment of any Financed Student Loan to the Co-Owner Eligible Lender Trustee
or of any intervening sale or assignment; the validity or sufficiency of any
Guarantee; the completeness of any Financed Student Loan; the performance or
enforcement of any Financed Student Loan; the compliance by the Administrator or
the Master Servicer with any warranty or representation made under any Related
Document or in any other related document or the accuracy of any such warranty
or representation or any action of the Indenture Trustee, the Administrator or
the Master Servicer taken in the name of the Delaware Trustee, the Co-Owner
Trustee or the Co-Owner Eligible Lender Trustee.
Section 7.7. Delaware Trustee, Co-Owner Trustee and Co-Owner Eligible
Lender Trustee May Own Certificate and Notes.
The Delaware Trustee in its individual or any other capacity, the
Co-Owner Trustee in its individual or any other capacity, and the Co-Owner
Eligible Lender Trustee in its individual or any other capacity, or any one of
them, may become the owner or pledgee of a Certificate or Notes and may deal
with the Depositor, the Indenture Trustee, any Guarantee Agency and the Master
Servicer in banking or other transactions with the same rights as it would have
if it were not Delaware Trustee, Co-Owner Trustee or Co-Owner Eligible Lender
Trustee, respectively.
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ARTICLE VIII
COMPENSATION OF Delaware Trustee,
THE CO-OWNER TRUSTEE AND CO-OWNER ELIGIBLE LENDER TRUSTEE
Section 8.1. Fees and Expenses of Delaware Trustee, Co-Owner Trustee
and Co-Owner Eligible Lender Trustee.
(a) The Delaware Trustee shall receive as compensation for its services
hereunder such fees as have been separately agreed upon before the date hereof
between the Depositor and the Delaware Trustee, and the Delaware Trustee shall
be entitled to be reimbursed by the Depositor for its other reasonable expenses
hereunder, including the reasonable compensation, expenses and disbursements of
such agents, representatives, experts and counsel as the Delaware Trustee may
reasonably determine are necessary to employ in connection with the exercise and
performance of its rights and its duties hereunder.
(b) The Co-Owner Trustee shall receive as compensation for its services
hereunder such fees as have been separately agreed upon before the date hereof
between the Depositor and the Co-Owner Trustee, and the Co-Owner Trustee shall
be entitled to be reimbursed by the Depositor for its other reasonable expenses
hereunder, including the reasonable compensation, expenses and disbursements of
such agents, representatives, experts and counsel as the Co-Owner Trustee may
reasonably determine are necessary to employ in connection with the exercise and
performance of its rights and its duties hereunder.
(c) The Co-Owner Eligible Lender Trustee shall receive as compensation
for its services hereunder such fees as have been separately agreed upon before
the date hereof between the Depositor and the Co-Owner Eligible Lender Trustee,
and the Co-Owner Eligible Lender Trustee shall be entitled to be reimbursed by
the Depositor for its other reasonable expenses hereunder, including the
reasonable compensation, expenses and disbursements of such agents,
representatives, experts and counsel as the Co-Owner Eligible Lender Trustee may
reasonably determine are necessary to employ in connection with the exercise and
performance of its rights and its duties hereunder.
Section 8.2. Indemnification.
The Depositor shall be liable as primary obligor for, and shall
indemnify each of the Delaware Trustee in its individual capacity and its
successors, assigns, agents and servants, the Co-Owner Trustee in its individual
capacity and its successors, assigns, agents and servants and any other
co-trustee and the Co-Owner Eligible Lender Trustee in its individual capacity
and its successors, assigns, agents and servants and any other co-trustee
(collectively, the "Indemnified Parties") from and against, any and all
liabilities, obligations, losses, damages, taxes, claims, actions and suits, and
any and all reasonable costs, expenses and disbursements (including reasonable
legal fees and expenses) of any kind and nature whatsoever (collectively,
"Expenses") which may, at any time, be imposed on, incurred by, or asserted
against the
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Delaware Trustee, the Co-Owner Trustee, the Co-Owner Eligible Lender Trustee or
any other Indemnified Party in any way relating to or arising out of this
Agreement, the Related Documents, the Trust Property, the administration of the
Trust Property or the action or inaction of the Delaware Trustee, the Co-Owner
Trustee or the Co-Owner Eligible Lender Trustee hereunder; provided, however,
that the Depositor shall not be liable for or required to indemnify the Delaware
Trustee, the Co-Owner Trustee or the Co-Owner Eligible Lender Trustee from and
against Expenses arising or resulting from any of the matters described in the
third sentence of Section 7.1 hereof; and, provided further that,
notwithstanding anything in this Agreement to the contrary, the indemnification
provided herein shall be payable solely from the Trust Property. The
indemnification contained in this Section shall survive the resignation or
termination of the Delaware Trustee, the Co-Owner Trustee or the Co-Owner
Eligible Lender Trustee, or any of them, or the termination of this Agreement.
Section 8.3. Non-recourse Obligations.
Notwithstanding anything in this Agreement or any Related Document to
the contrary, each of the Delaware Trustee, the Co-Owner Trustee and the
Co-Owner Eligible Lender Trustee agrees in its individual capacity and in its
respective capacity as Delaware Trustee, Co-Owner Trustee or Co-Owner Eligible
Lender Trustee of the Trust that all obligations under this Agreement to the
Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible Lender Trustee,
individually or as Trustees, respectively, of the Trust shall be recourse to the
Trust Property only and specifically shall not be recourse to the assets of the
Certificateholder.
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ARTICLE IX
TERMINATION
Section 9.1. Termination of the Trust.
(a) Subject to distribution to the Certificateholder by the Co-Owner
Trustee of any amounts deposited or to be deposited in the Certificate
Distribution Account, the respective obligations and responsibilities of the
Depositor, the Delaware Trustee, the Co-Owner Trustee and the Co-Owner Eligible
Lender Trustee created by this Agreement and the Trust created by this Agreement
shall terminate upon the earlier to occur of (i) the maturity or other
liquidation of the last Financed Student Loan (including the auction sale by the
Indenture Trustee of the remaining Financed Student Loans in the Trust as
described in Section 3.02 of the Terms Supplement and the subsequent
distribution of amounts in respect of such auction sale as provided in the
Indenture and the other Related Documents) and (ii) the payment to the
Noteholders of all amounts payable pursuant to the Indenture. In any case, there
shall be delivered to the Delaware Trustee, the Co-Owner Trustee, the Co-Owner
Eligible Lender Trustee and the Indenture Trustee an Opinion of Counsel that all
applicable preference periods under federal, state and local bankruptcy,
insolvency and similar laws have expired with respect to the payments pursuant
to the immediately preceding clause (ii); provided, however, that in no event
shall the trust created by this Agreement continue beyond the defeasance of the
Indenture in accordance with the provisions of Article X thereof; and provided,
further, that the rights to indemnification under Section 8.2 shall survive the
termination of the Trust. The bankruptcy, liquidation, dissolution, termination,
resignation, expulsion, withdrawal, death or incapacity of any
Certificateholder, shall not (x) operate to terminate this Agreement or the
Trust, nor (y) entitle such Certificateholder's legal representatives or heirs
to claim an accounting or to take any action or proceeding in any court for a
partition or winding up of all or any part of the Trust or Trust Property nor
(z) otherwise affect the rights, obligations and liabilities of the parties
hereto.
(b) Neither the Depositor nor the Certificateholder shall be entitled
to revoke or terminate the Trust.
(c) Within five Business Days of receipt by the Co-Owner Trustee of
notice from the Indenture Trustee given pursuant to Section 5.9 of the Indenture
of final distribution to the Co-Owner Trustee of amounts held under the
Indenture, the Co-Owner Trustee shall mail written notice to the
Certificateholder, specifying (i) the Certificateholder's Distribution Date upon
which final distribution of amounts received hereunder shall be made upon
presentation and surrender of such Certificateholder's Certificate at the office
of the Paying Agent therein specified, (ii) the amount of any such final
payment, and (iii) that the Record Date otherwise applicable to such
Certificateholder's Distribution Date is not applicable, payments being made
only upon presentation and surrender of such Certificate at the office of the
Paying Agent therein specified. The Co-Owner Trustee shall give such notice to
the Certificate Registrar (if different from the Co-Owner Trustee) at the time
such notice is given to such Certificateholder. In the
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event such notice is given, the Co-Owner Trustee shall make deposits into the
Certificate Distribution Account in accordance with Section 5.1(a) hereof. Upon
presentation and surrender of the Certificate, the Paying Agent shall cause to
be distributed to such Certificateholder the amount distributable on such
Certificateholder's Distribution Date pursuant to Section 5.2 hereof.
(d) In the event that the Certificateholder shall not surrender its
Certificate for cancellation within six months after the date specified in the
above-mentioned written notice, the Co-Owner Trustee shall give a second written
notice to such Certificateholder to surrender its Certificate for cancellation
and receive the final distribution with respect thereto. If within one year
after the second notice the Certificate shall not have been surrendered for
cancellation, the Co-Owner Trustee may take appropriate steps, or may appoint an
agent to take appropriate steps, to contact such Certificateholder concerning
surrender of its Certificate, and the cost thereof shall be paid out of the
funds and other assets that remain subject to this Agreement. Any funds which
are payable to the Certificateholder remaining in the Trust after exhaustion of
such remedies shall, to the fullest extent permitted by law, be distributed by
the Co-Owner Trustee to the Certificateholder (but only upon termination of this
Agreement), and such Certificateholder, by acceptance of its Certificate, hereby
waives any rights with respect to such funds.
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ARTICLE X
SUCCESSOR DELAWARE TRUSTEES,
CO-OWNER TRUSTEES AND CO-OWNER ELIGIBLE LENDER TRUSTEES
Section 10.1. Eligibility Requirements for Delaware Trustee, Co-Owner
Trustee and Co-Owner Eligible Lender Trustee.
(a) The Delaware Trustee shall at all times be a banking or trust
corporation (i) having its Corporate Trust Office in the State of Delaware, (ii)
authorized to exercise corporate trust powers in the State of Delaware; (iii)
having a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or State authorities; and (iv) having (or
having a parent which has) a rating of at least Baa3 by ▇▇▇▇▇'▇ or A-1 by
Standard & Poor's. If such corporation 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 such corporation 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 Delaware Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Delaware Trustee
shall resign immediately in the manner and with the effect specified in Section
10.2 hereof.
(b) Each of the Co-Owner Trustee and the Co-Owner Eligible Lender
Trustee shall at all times be a trust company or bank having the powers of a
trust company within the state in which the principal office of the
Administrator is located, organized and doing business under the laws of the
United States of America, any state thereof or the District of Columbia and have
a combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or State authorities. In addition, the
Co-Owner Eligible Lender Trustee shall at all times be an "eligible lender"
under the Higher Education Act.
Section 10.2. Resignation or Removal of Delaware Trustee, Co-Owner
Trustee and Co-Owner Eligible Lender Trustee.
(a) The Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible
Lender Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the other two Trustees hereunder,
the Certificateholder, the Depositor (if different from the Certificateholder)
and the Indenture Trustee at least 30 days before the date specified in such
instrument. Upon receiving such notice of resignation, the Certificateholder,
with the consent of the non-resigning Trustee hereunder, shall promptly appoint
a successor Delaware Trustee, Co-Owner Trustee or Co-Owner Eligible Lender
Trustee, as applicable (any successor appointed under any provision of this
Section 10.2, solely for purposes of this Section 10.2 and Section 10.3 hereof,
a "Successor Trustee"), meeting the qualifications set forth in Section 10.1(a)
or (b), as applicable, by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
Successor Trustee, provided that the Depositor shall have received written
confirmation from each of the Rating
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Agencies that the proposed appointment will not adversely affect the ratings of
such Rating Agencies on any Outstanding Notes. If no Successor Trustee shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Trustee, either of the
non-resigning Trustees or the Indenture Trustee may petition any court of
competent jurisdiction for the appointment of a Successor Trustee.
(b) If (i) at any time the Delaware Trustee, the Co-Owner Trustee
and/or the Co-Owner Eligible Lender Trustee shall cease to be eligible in
accordance with the provisions of Section 10.1(a) or (b), as applicable, and
shall fail to resign after written request therefor by either of the other
Trustees, the Certificateholder or the Indenture Trustee, (ii) at any time the
Delaware Trustee, the Co-Owner Trustee and/or the Co-Owner Eligible Lender
Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Delaware Trustee, the Co-Owner Trustee and/or
the Co-Owner Eligible Lender Trustee, or of the respective property of any of
them, shall be appointed, or any public officer shall take charge or control of
the Delaware Trustee, the Co-Owner Trustee and/or the Co-Owner Eligible Lender
Trustee, or of the respective property or affairs of any one or all of them, for
the purpose of rehabilitation, conservation or liquidation or (iii) the
Certificateholder elects in its sole discretion to remove the Delaware Trustee,
the Co-Owner Trustee or the Co-Owner Eligible Lender Trustee for any reason (in
each case such Trustee for the purposes of this paragraph is hereafter referred
to as a "Disqualified Trustee" and a Trustee not meeting the description of a
Disqualified Trustee, a "Qualified Trustee" ), then either of the Qualified
Trustees, if any, or the Certificateholder may remove such Disqualified Trustee.
If either of the Qualified Trustees or the Certificateholder shall remove the
Disqualified Trustee under the authority of the immediately preceding sentence,
the Certificateholder shall promptly appoint a Successor Trustee meeting the
qualification requirements of Section 10.1 by written instrument, in triplicate,
one copy of which instrument shall be delivered to the Disqualified Trustee so
removed and one copy to the Successor Trustee and Qualified Trustees, if any,
and shall make payment of all fees owed to the outgoing Disqualified Trustee.
(c) Any resignation or removal of the Delaware Trustee, the Co-Owner
Trustee and/or the Co-Owner Eligible Lender Trustee and appointment of a
Successor Trustee pursuant to any of the provisions of this Section shall not
become effective until all fees and expenses, including any indemnity payments,
due to the outgoing Trustee have been paid and until acceptance of appointment
by the Successor Trustee pursuant to Section 10.3.
Section 10.3. Successor Trustee.
(a) Any Successor Trustee appointed pursuant to Section 10.2 hereof
shall execute, acknowledge and deliver to the remaining Trustees, if any, to the
Certificateholder and to its predecessor (solely for purposes of this Section
10.3, the "Predecessor Trustee") an instrument accepting such appointment under
this Agreement and, if the Successor Trustee is the Co-Owner Eligible Lender
Trustee, an eligible lender trust agreement between itself and the Co-Owner
Trustee, and thereupon the resignation or removal of the Predecessor Trustee
shall become effective and such Successor Trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties,
and obligations of its Predecessor Trustee under this Agreement, with like
effect as if originally named as Delaware Trustee, Co-Owner Trustee or Co-Owner
Eligible Lender Trustee, as applicable. The Predecessor Trustee shall deliver to
the
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Successor Trustee all documents and statements and moneys, if any, held by it
under this Agreement; and the Certificateholder, the remaining Trustee and the
Predecessor Trustee shall execute and deliver such instruments and do such other
things as may reasonably be required for fully and certainly vesting and
confirming in the Successor Trustee all such rights, powers, duties and
obligations.
(b) No Successor Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such Successor Trustee shall be
eligible to become the Delaware Trustee, the Co-Owner Trustee or the Co-Owner
Eligible Lender Trustee, as applicable, pursuant to Section 10.1 hereof.
(c) Upon acceptance of appointment by a Successor Trustee pursuant to
this Section, the Certificateholder shall give notice by first class mail of the
name and address and telecopy number of the Successor Trustee to the Indenture
Trustee, the Noteholders and the Rating Agencies. If the Certificateholder shall
fail to mail such notice within 10 days after acceptance of appointment by the
Successor Trustee, the Successor Trustee shall cause such notice to be mailed at
the expense of the Certificateholder.
Section 10.4. Merger or Consolidation of Delaware Trustee, Co-Owner
Trustee or Co-Owner Eligible Lender Trustee.
Any corporation into which the Delaware Trustee, the Co-Owner Trustee
or the Co-Owner Eligible Lender 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 Delaware Trustee, the
Co-Owner Trustee or the Co-Owner Eligible Lender Trustee, as the case may be,
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of the Delaware Trustee, the Co-Owner Trustee or
the Co-Owner Eligible Lender Trustee, as the case may be, shall be the successor
of the Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible Lender
Trustee, as the case may be, hereunder, provided such corporation shall be
eligible pursuant to the applicable provisions of Section 10.1 hereof, 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, and
provided further that the Delaware Trustee, the Co-Owner Trustee or the Co-Owner
Eligible Lender Trustee, as the case may be, shall mail notice of such merger or
consolidation to the Rating Agencies.
Section 10.5. Appointment of Additional Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Agreement, at any
time, for the purpose of meeting any legal requirements of any jurisdiction in
which any part of the Trust Property, including, without limitation, any
Financed Student Loan, may at the time be located, the Administrator and the
Co-Owner Trustee acting jointly shall have the power and shall execute and
deliver all instruments to appoint one or more Persons to act as co-trustee,
jointly with the Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible
Lender Trustee, as the case may be, or separate trustee or separate trustees, of
all or any part of the Trust Property, and to vest in such Person, in such
capacity, such title to the Trust Property, or any part thereof, and, subject to
the other provisions of this Section, such powers, duties, obligations, rights
and trusts as the
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Administrator and the Co-Owner Trustee may consider necessary or desirable. If
the Administrator shall not have joined in such appointment within 15 days after
the receipt by it of a request so to do, the Co-Owner Trustee shall have the
power to make such appointment. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a successor
trustee pursuant to Section 10.1 hereof and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 10.1
hereof; provided, however, that such co-trustee with or separate trustee from
the Co-Owner Eligible Lender Trustee shall be an "eligible lender" under the
Higher Education Act.
(b) 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 Delaware Trustee, the Co-Owner Trustee or the Co-Owner
Eligible Lender Trustee, as applicable, shall be conferred upon and
exercised or performed by the Delaware Trustee, the Co-Owner Trustee or
the Co-Owner Eligible Lender Trustee, as applicable, 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
Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible Lender
Trustee, as applicable, 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 Delaware Trustee, the Co-Owner Trustee or the
Co-Owner Eligible Lender Trustee, as applicable, 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 Property or any portion thereof in any such jurisdiction) shall
be exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Delaware Trustee, the
Co-Owner Trustee or the Co-Owner Eligible Lender Trustee, as
applicable;
(ii) no Trustee under this Agreement shall be personally
liable by reason of any act or omission of any other trustee under this
Agreement; and
(iii)the Administrator and the Delaware Trustee, the Co-Owner
Trustee or the Co-Owner Eligible Lender Trustee, as applicable, acting
jointly may at any time accept the resignation of or remove any
separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Delaware Trustee,
the Co-Owner Trustee or the Co-Owner Eligible Lender Trustee, as applicable,
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall, refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Delaware
Trustee, the Co-Owner Trustee or the Co-Owner Eligible Lender Trustee, as
applicable, or separately, as may be provided therein, subject to all the
provisions of this Agreement, specifically including every provision of this
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Delaware Trustee, the Co-Owner Trustee
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or the Co-Owner Eligible Lender Trustee, as applicable. Each such instrument
shall be filed with the Delaware Trustee, the Co-Owner Trustee or the Co-Owner
Eligible Lender Trustee, as applicable, and a copy thereof given to the
Administrator and the Certificateholder.
(d) Any separate trustee or co-trustee may at any time appoint the
Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible Lender Trustee,
as applicable, its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect of
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Delaware Trustee, the Co-Owner Trustee or the Co-Owner Eligible
Lender Trustee, as applicable, to the extent permitted by law, without the
appointment of a new or successor trustee.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.1. Amendment.
(a) This Agreement may be amended by the Certificateholder, the
Delaware Trustee, the Co-Owner Trustee and the Co-Owner Eligible Lender Trustee,
without the consent of the Depositor (if other than the Certificateholder) or
Noteholders, (i) to cure any ambiguity or (ii) to correct, supplement or modify
any provisions in this Agreement; provided, however, that such action shall not,
as evidenced by an Opinion of Counsel, adversely affect in any material respect
the interests of the Certificateholder or any Noteholder.
(b) This Agreement may also be amended from time to time by the
Certificateholder without the consent of the Depositor (if other than the
Certificateholder), the Delaware Trustee, the Co-Owner Trustee and the Co-Owner
Eligible Lender Trustee and, if such amendment materially and adversely affects
the interests of Noteholders, the consent of a majority of the Directing Notes
(which consent of any Noteholder given pursuant to this Section or pursuant to
any other provision of this Agreement shall be conclusive and binding on such
holders and on any holder of any Certificate or Note issued upon the transfer
thereof or in exchange therefor or in lieu thereof whether or not notation of
such consent is made upon the Certificate or Note) for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement, or of modifying in any manner the rights of the
Certificateholder or holder of a Note; provided, however, that no such amendment
shall (i) increase or reduce in any manner the amount of, or accelerate or delay
the timing of, collections of payments on the Financed Student Loans or
distributions that shall be required to be made on any Note or (ii) reduce the
aforesaid percentage required to consent to any such amendment or any waiver
hereunder, without the consent of the holders of all the Notes then outstanding.
(c) Prior to the execution of any such amendment or consent, the
Certificateholder shall furnish written notification of the substance of such
amendment or consent to each Rating Agency.
(d) Promptly after the execution of any such amendment or consent, the
Co-Owner Trustee shall furnish written notification of the substance of such
amendment or consent to the Indenture Trustee unless such party has previously
received such notification.
(e) It shall not be necessary for the consent of the Noteholders
pursuant to Section 11.1(b) hereof 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 Noteholders provided for in this Agreement) and of
evidencing the authorization of the execution thereof by the Certificateholder
shall be subject to such reasonable requirements as the Co-Owner Trustee may
prescribe, including the establishment of record dates.
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(f) Prior to the execution of any amendment to this Agreement, the
Delaware Trustee, the Co-Owner Trustee and the Co-Owner Eligible Lender Trustee
shall be entitled to receive and rely upon an Opinion of Counsel stating that
the execution of such amendment is authorized or permitted by this Agreement and
that all conditions precedent to the execution and delivery of such amendment
have been satisfied. The Delaware Trustee, the Co-Owner Trustee and the Co-Owner
Eligible Lender Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Delaware Trustee's, the Co-Owner Trustee's or the
Co-Owner Eligible Lender Trustee's own rights, duties or immunities under this
Agreement or otherwise.
Section 11.2. No Recourse.
The Certificateholder by accepting a Certificate acknowledges that such
Certificateholder's Certificate represents such Certificateholder's beneficial
interest in the Trust only and does not represent interests in or obligations of
the Depositor, the Administrator, the Master Servicer, the Delaware Trustee, the
Co-Owner Trustee, the Co-Owner Eligible Lender Trustee, the Indenture Trustee or
any affiliate of any of the foregoing and no recourse may be had against such
parties or their assets, except as may be expressly set forth or contemplated in
this Agreement, in each Certificate or in the Related Documents.
Section 11.3. Governing Law.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware without regard to the principles of
conflicts of laws thereof and the obligations, rights and remedies of the
parties under this Agreement shall be determined in accordance with such laws;
provided, however, that the parties hereto intend that the provisions hereof
shall control over any contrary or limiting statutory or common law of the State
of Delaware and that, to the maximum extent permitted by applicable law, there
shall not be applicable to the Trust, the Trustees or this Agreement any
provisions of the laws (statutory or common) of the State of Delaware pertaining
to trusts that relate to or regulate in a manner inconsistent with the terms
hereof: (i) the filing with any court or governmental body or agency of trustee
accounts or schedules of trustee fees and charges, (ii) affirmative requirements
to post bonds for trustees, officers, agents or employees of a trust, (iii) the
necessity for obtaining court or other governmental approval concerning the
acquisition, holding or disposition of real or personal property, (iv) fees or
other sums payable to trustees, officers, agents or employees of a trust, (v)
the allocation of receipts and expenditures between income and principal, (vi)
restrictions or limitations on the permissible nature, amount or concentration
of trust investments or requirements relating to the titling, storage or other
manner of holding of trust assets, or (vii) the establishment of fiduciary or
other standards or responsibilities or limitations on the acts or powers of
trustees that are inconsistent with the limitations on liability or authorities
and powers of the Trustees set forth or referenced in this Agreement. Section
3540 of Title 12 of the Delaware Code shall not apply to the Trust.
(b) Each of the parties hereto agrees (i) that this Agreement involves
at least $100,000, and (ii) this Agreement has been entered into by the parties
hereto in express reliance upon 6 Del. C. Section 2708.
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(c) Each party hereto unconditionally agrees (i) to be subject to the
jurisdiction of the courts of the State of Delaware and of the federal courts
sitting in the State of Delaware and (ii)(A) to the extent that such party is
not otherwise subject to service of process in the State of Delaware, to appoint
and maintain an agent in the State of Delaware as such party's agent for
acceptance of legal process and (B) that service of process may also be made on
such party by prepaid certified mail with a proof of mailing receipt validated
by the United States Postal Service constituting evidence of valid service, and
that service made pursuant to (ii)(A) or (B) above shall have the same legal
force effect as if served upon such party personally within the State of
Delaware. For purposes of implementing the party's agreement to appoint and
maintain an agent for service of process in the State of Delaware, each of the
Co-Owner Trustee and the Co-Owner Eligible Lender Trustee does hereby appoint
the Delaware Trustee as such agent, and the Delaware Trustee hereby accepts such
appointment.
Section 11.4. Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be for any reason whatsoever held invalid, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement or of any Certificate or the rights of the Holder thereof.
Section 11.5. Certificate Nonassessable and Fully Paid.
The Certificateholder shall not be personally liable for obligations of
the Trust, the undivided beneficial interest in the assets of the Trust, whether
fractional or whole, represented by a Certificate shall be nonassessable for any
losses or expenses of the Trust or for any reason whatsoever, and each
Certificate upon execution thereof by the Delaware Trustee and authentication
thereof by the Authentication Agent, in each case pursuant to Section 3.3
hereof, are and shall be deemed fully paid and nonassessable.
Section 11.6. Third-Party Beneficiaries.
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns. Except as
otherwise provided in this Agreement, no other Person shall have any right or
obligation hereunder.
Section 11.7. Counterparts.
For the purpose of facilitating its execution and for other purposes,
this Agreement may be executed simultaneously in any number of counterparts,
each of which counterparts shall be deemed to be an original, and all of which
counterparts shall constitute but one and the same instrument.
Section 11.8. Notices.
All demands, notices and communications under this Agreement shall be
in writing, personally delivered or mailed by certified mail-return receipt
requested, and shall be deemed to have been duly given upon receipt (a) in the
case of the Depositor, at the following address: One
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▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: Chief
Financial Officer, (b) in the case of the Delaware Trustee, the Co-Owner Trustee
and the Co-Owner Eligible Lender Trustee, at their respective Corporate Trust
Office and (c) in the case of the Administrator, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇, Attention: Chief Financial Officer, or at such other
address as shall be designated by any such party in a written notice to the
other parties. Notwithstanding the foregoing, any notice required or permitted
to be mailed to the Certificateholder shall be given by first class mail,
postage prepaid, at the address of such Holder as shown in the Certificate
Register.
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed by their respective officers as of the day and year first
above written.
STUDENT LOAN FUNDING LLC,
("Depositor" and sole initial "Certificateholder")
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
_________________________________________________
▇▇▇▇▇ ▇. ▇▇▇▇, Senior Vice President and Manager
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION,
not in its individual capacity, but solely as
trustee under this Trust Agreement ("Delaware
Trustee")
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
_________________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Senior Trust Officer
FIRSTAR BANK, NATIONAL ASSOCIATION,
not in its individual capacity, but solely as
trustee under this Trust Agreement ("Co-Owner
Trustee")
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
_________________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Trust Officer
FIRSTAR BANK, NATIONAL ASSOCIATION,
not in its individual capacity, but solely as
eligible lender trustee under this Trust Agreement
("Co-Owner Eligible Lender Trustee")
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
_________________________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Trust Officer
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EXHIBIT A
FORM OF CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "ACT"), OR ANY STATE SECURITIES LAWS. THE HOLDER HEREOF,
BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY IN ACCORDANCE WITH ANY APPLICABLE STATE
SECURITIES LAWS AND (1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS AN
INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(A)(1)-(3) UNDER
THE ACT THAT PURCHASES FOR ITS OWN ACCOUNT, OR (2) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT.
THIS CERTIFICATE MAY NOT BE TRANSFERRED DIRECTLY OR INDIRECTLY TO (I)
AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA")) THAT IS SUBJECT TO THE
PROVISIONS OF TITLE 1 OF ERISA, (II) A PLAN DESCRIBED IN SECTION 4975(e)(1) OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR (III) ANY ENTITY
WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF A PLAN'S INVESTMENT IN
THE ENTITY. FURTHER, THIS CERTIFICATE MAY BE TRANSFERRED ONLY TO A UNITED STATES
PERSON WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE.
THIS CERTIFICATE IS NOT GUARANTEED OR INSURED BY ANY GOVERNMENTAL
AGENCY.
Percentage Interest: 100%
STUDENT LOAN FUNDING 1998-A/B TRUST
STUDENT LOAN ASSET-BACKED TRUST CERTIFICATE
evidencing the undivided beneficial Percentage Interest
set forth above in the Trust, as defined below, the
property of which includes a pool of
student loans transferred to and deposited in the Trust by
Student Loan Funding LLC and Firstar Bank, National
Association, as eligible lender trustee on behalf of
Student Loan Funding LLC
THIS CERTIFIES THAT STUDENT LOAN FUNDING LLC is the registered owner of
the Percentage Interest set forth above in the Student Loan Funding 1998-A/B
Trust (the "Trust"), a common law (as opposed to statutory) trust formed under
the laws of the State of Delaware by Student Loan Funding LLC, (the
"Depositor"). The Trust was created pursuant to a Trust Agreement, dated as of
March 1, 1999 (as amended from time to time, the "Trust Agreement"), among the
Depositor, First Union Trust Company, National Association, Wilmington,
Delaware, not in its individual capacity, but solely in its capacity as owner
trustee under the Trust Agreement (the "Delaware Trustee"), and Firstar Bank,
National Association, Cincinnati, Ohio, not in its individual capacity, but
solely in its capacity as co-owner trustee under the Trust Agreement (the
"Co-Owner Trustee" and collectively with the Delaware Trustee, the "Trustees").
A summary of certain of the pertinent provisions of the Trust Agreement is set
forth below. To the extent not otherwise defined herein, the capitalized terms
used herein shall have the meanings assigned to them in the Trust Agreement. The
rules as to usage set forth in the Trust Agreement shall also be applicable to
this Certificate.
This Certificate is the sole, initial duly authorized Certificate,
designated "Student Loan Funding 1998-A/B Trust - Student Loan Asset-Backed
Trust Certificate" (herein called "this Certificate" or, collectively, with
other Certificates that may be issued upon transfer or exchange of this
Certificate for such other Certificates, whose aggregate Percentage Interest
shall be 100%, the "Certificates") issued under the Trust Agreement, to which
Trust Agreement the Holder of this Certificate by virtue of the acceptance
hereof assents and by which such Holder is
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bound. The Trust Property includes an initial deposit by the Depositor to the
Certificate Contribution Account, and all property and proceeds thereof of every
description conveyed pursuant to the Transfer and Sale Agreement and
simultaneously with the issuance of this Certificate, including, without
limitation, a pool of student loans (the "Financed Student Loans") and any all
amounts deposited from time to time in the Certificate Distribution Account. The
rights of the Holder of this Certificate to the assets of the Trust are subject
to the rights of the Holders of certain notes (the "Notes") issued under the
Indenture of Trust, as supplemented by the Terms Supplement to the Indenture of
Trust, each dated as of December 1, 1998, as amended and restated by the First
Amended and Restated Indenture of Trust, dated as of ________ 1, 1999, among the
Co-Owner Trustee, Firstar Bank, National Association, not in its individual
capacity but solely in its capacity as eligible lender trustee on behalf of the
Co-Owner Trustee (the "Co-Owner Eligible Lender Trustee") and Firstar Bank,
National Association, not in its individual capacity but solely in its capacity
as Indenture Trustee (the "Indenture Trustee"), as supplemented by the First
Amended and Restated Terms Supplement to the First Amended and Restated
Indenture of Trust, dated as of ________ 1, 1999 (collectively, as amended from
time to time, the "Indenture").
Under the Trust Agreement, distributions will be made on the
Certificate on each Certificateholder's Distribution Date in the manner set
forth in the Trust Agreement.
The Holder of this Certificate acknowledges and agrees that its rights
to receive distributions in respect of this Certificate from amounts deposited
in the Excess Surplus Account under the Indenture pending their transfer to the
Certificate Distribution Account are subject to the rights of the Noteholders as
described in the Indenture.
The Certificateholder, by its acceptance of this Certificate, covenants
and agrees that such Certificateholder will not at any time institute against
the Depositor or the Trustees, or join in any institution against the Depositor
or the Trustees, 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 this Certificate, the Notes, the Trust Agreement or any
of the other Related Documents.
The Holder of this Certificate, by its acceptance of this Certificate,
(i) agrees, for federal, state and local income and franchise tax purposes, to
treat the Trust as a "disregarded entity" (i.e. the Trust will be disregarded as
an entity separate from the Certificateholder), with the assets of the Trust
being the Financed Student Loans and other assets held by the Co-Owner Trustee,
the Notes for such purposes being debt of the Certificateholder which has
elected to disregard the Trust as an entity separate from itself for tax
purposes, and (ii) acknowledges that the Trust will file or cause to be filed
annual or other necessary returns, reports and other forms consistent with the
characterization of the Trust as a "disregarded entity" for federal, state and
local and franchise tax purposes and that the Depositor will not make, or cause
to be made, an election under the provisions of Treasury Regulation Section
301.7701.3 to classify the Trust as an association.
Distributions on this Certificate will be made from the Certificate
Distribution Account as provided in the Trust Agreement by the Co-Owner Trustee
by wire transfer or by check mailed to the Certificateholder of record in the
Certificate Register without the presentation or surrender of this Certificate
or the making of any notation hereon.
This Certificate does not represent an obligation of, or an interest
in, the Depositor, the Master Servicer, the Administrator, the Trustees or the
Indenture 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
herein, in the Trust Agreement or in the other Related Documents. In addition,
this Certificate is not guaranteed by any governmental agency or instrumentality
and is limited in right of payment to certain excess collections respecting the
Financed Student Loans, all as more specifically set forth in the Indenture. A
copy of each of the Indenture 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 upon request.
The Trust Agreement permits the amendment thereof without the consent
of the Certificateholder or any Noteholders, (i) to cure any ambiguity or (ii)
to correct, supplement or modify any provisions in the Trust Agreement;
provided, however, that such action shall not, as evidenced by an Opinion of
Counsel, adversely affect in any material respect the interests of the
Certificateholder or any Noteholder. The Trust Agreement permits, with certain
exceptions therein provided, but only with the consent of the Certificateholder
and, if such amendment
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materially and adversely affects the interests of Noteholders, with the consent
of a majority of the Directing Notes (as defined in the Indenture) (which
consent of the Certificateholder and Noteholders, if any, given pursuant to the
Trust Agreement shall be conclusive and binding on such holders and on all
future holders of the Certificate or Notes and of any Certificate or Notes
issued upon the transfer thereof or in exchange therefor or in lieu thereof
whether or not notation of such consent is made upon the Certificate or Notes)
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Trust Agreement, or of modifying in any
manner the rights of the Certificateholder or any Noteholder.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer, to the extent permitted herein, of this
Certificate is registrable in the Certificate Register upon surrender of this
Certificate for registration of transfer at the office or agency maintained by
Firstar Bank, National Association, in its capacity as Certificate Registrar, or
by any successor Certificate Registrar, accompanied by a written instrument of
transfer in form satisfactory to the Co-Owner Trustee and the Certificate
Registrar duly executed by the Holder hereof or such Holder's attorney duly
authorized in writing, and thereupon one or more new Certificates of authorized
denominations evidencing the same aggregate interest in the Trust will be issued
to the designated transferee.
This Certificate is issuable only as a Certificate registered in the
name of the Depositor as the initial Certificateholder and in the Percentage
Interest of 100%. As provided in the Trust Agreement and subject to the
provisions of the next succeeding paragraph [and provided that there are no
Notes Outstanding (as defined in the Indenture)](1), the Depositor, as the
initial registered Holder, may transfer, or exchange for other Certificates
aggregating in Percentage Interests 100%, this Certificate upon the surrender of
this Certificate. No service charge will be made for any such registration of
transfer or exchange, but the Co-Owner Trustee or the Certificate Registrar (if
different from the Co-Owner Trustee) may require payment of a sum sufficient to
cover any tax or governmental charge payable in connection therewith.
This Certificate may not be transferred directly or indirectly to (i)
an employee benefit plan (as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")) that is subject to the
provisions of Title 1 of ERISA, (ii) a plan described in Section 4975(e)(1) of
the Internal Revenue Code of 1986, as amended (the "Code"), or (iii) any entity
whose underlying assets include plan assets by reason of a plan's investment in
the entity (each, a "Benefit Plan"). By accepting and holding this Certificate,
the Certificateholder thereof shall he deemed to have represented and warranted
that it is not a Benefit Plan.
The Certificate Registrar and any agent of the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Delaware Trustee, the Co-Owner Trustee
or the Certificate Registrar or any such agent shall be affected by any notice
to the contrary.
This Certificate may not be transferred to any person who is not a U.S.
Person, as such term is defined in Section 7701(a)(30) of the Code.
Each transferee of this Certificate, or any portion thereof, shall be
required, prior to purchasing a Certificate, to execute the Purchaser's
Representation and Warranty Letter in the form attached to the Trust Agreement
as Exhibit B.
The obligations and responsibilities created by the Trust Agreement and
the Trust created thereby shall terminate upon the earlier to occur of (i) the
maturity or other liquidation of the last Financed Student Loan (including the
auction sale by the Indenture Trustee of the remaining Financed Student Loans in
the Trust as described in Section 3.02 of the Terms Supplement and the
subsequent distribution of amounts in respect of such auction sale as provided
in the Indenture and the other Related Documents) and (ii) the payment to the
Noteholders of all amounts payable pursuant to the Indenture.
1 To be included only upon direction of the Depositor at the time of issuance of
this Certificate.
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This Certificate shall be construed in accordance with the laws of the
State of Delaware, without reference to its conflict of law provisions, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
Unless the certificate of authentication hereon shall have been
executed by an authorized representative of the Authentication Agent, by manual
signature, this Certificate shall not entitle the Holder hereof to any benefit
under the Trust Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Delaware Trustee, not in its individual
capacity but solely as trustee of the Student Loan Funding 1998-A/B Trust, has
caused this Certificate to be duly executed as of the date set forth below.
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION,
"Delaware Trustee", not in its individual
capacity but solely as trustee of the Student
Loan Funding 1998-A/B Trust
By: _____________________________________________
Authorized Signatory
Date: _______________, 1999
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Trust
Agreement.
FIRSTAR BANK, NATIONAL ASSOCIATION,
Co-Owner Trustee,
not in its individual capacity but solely as Authentication Agent
of the Student Loan Funding 1998-A/B Trust
By:_________________________________________________
Authorized Representative
Date: ________________, 1999
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ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
________________________________________________________________________________
(Please print or type name and address, including postal zip code, of assignee)
[PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE]
the within Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
_____________________________________________________________________ Attorney
to transfer said Certificate on the books of the Certificate Registrar, with
full power of substitution in the premises.
Dated:________________ _____________________________________*
Signature Guaranteed:
_____________________________________
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Certificate in every particular, without
alteration, enlargement or any change whatever. Such signature must be
guaranteed by an approved eligible guarantor institution, an institution which
is a participant in a Securities Transfer Association recognized signature
guarantee program.
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EXHIBIT B
Form of Purchaser's Representation and Warranty Letter
Student Loan Funding LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Firstar Bank, National Association,
as Certificate Registrar
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
RE: STUDENT LOAN FUNDING 1998-A/B TRUST - STUDENT LOAN ASSET
BACKED TRUST CERTIFICATE
Ladies and Gentlemen:
In connection with the proposed purchase by the undersigned of the
Student Loan Asset-Backed Trust Certificate (the "Certificate") issued under the
Trust Agreement related to the Student Loan Funding 1998-A/B Trust, dated as of
March 1, 1999 (the "Agreement"), among Student Loan Funding LLC, as Depositor
(the "Depositor"), First Union Trust Company, National Association, as Delaware
trustee, and Firstar Bank, National Association, in its separate capacities as
co-owner trustee and co-owner eligible lender trustee, the undersigned (the
"Purchaser") represents, warrants and agrees that:
1. It is an institutional "accredited investor" as defined in Rule
501(a)(1)-(3) under the Securities Act of 1933 (the "Securities Act") or a
"qualified institutional buyer" as defined in Rule 144A(a)(1) of the
Securities Act and is acquiring the Certificate for its own institutional
account or for the account of an institutional accredited investor or
qualified institutional buyer.
2. It is not (i) an employee benefit plan (as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA")) that
is subject to the provisions of Title 1 of ERISA, (ii) a plan described in
Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (the
"Code"), or (iii) any entity whose underlying assets include plan assets by
reason of a plan's investment in the entity.
3. It is a U.S. Person as defined in Section 7701(a)(30) of the Code.
4. It has such knowledge and experience in evaluating business and financial
matters so that it is capable of evaluating the merits and risks of an
investment in the Certificate. It understands the full nature and risks of
an investment in the Certificate and based upon its present and projected
net income and net worth, it believes that it can bear the economic risk of
an immediate or future loss of its entire investment in the Certificate.
5. It understands that the Certificate will be offered in a transaction not
involving any public offering within the meaning of the Securities Act, and
that, if in the future it decides to resell, pledge or otherwise transfer
the Certificate, such Certificate may be resold, pledged or transferred
only (a) to a person who the seller reasonably believes is an institutional
"accredited investor" as defined in Rule 501(a)(1)-(3) under the Securities
Act that purchases for its own account or for the account of another
institutional accredited investor or (b) pursuant to an effective
registration statement under the Securities Act.
6. It understands that the Certificate will bear a legend substantially to the
following effect:
"THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT") OR STATE SECURITIES LAWS.
THE HOLDER
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HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT THIS
CERTIFICATE MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
ONLY IN ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES LAWS
AND (1) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS AN
INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE
501(A)(1)-(3) UNDER THE ACT THAT PURCHASES FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF AN INSTITUTIONAL ACCREDITED INVESTOR, OR
(2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
ACT.
THIS CERTIFICATE MAY NOT BE TRANSFERRED DIRECTLY OR INDIRECTLY
TO (I) AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF
THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA")) THAT IS SUBJECT TO THE PROVISIONS OF TITLE
1 OF ERISA, (II) A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"), OR
(III) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS
BY REASON OF A PLAN'S INVESTMENT IN THE ENTITY. FURTHER, THIS
CERTIFICATE MAY BE TRANSFERRED ONLY TO A UNITED STATES PERSON
WITHIN THE MEANING OF SECTION 7701(a)(30) OF THE CODE.
THIS CERTIFICATE IS NOT GUARANTEED OR INSURED BY ANY
GOVERNMENTAL AGENCY."
7. It is acquiring the Certificate for its own account and not with a view to
the public offering thereof in violation of the Securities Act (subject,
nevertheless, to the understanding that disposition of its property shall
at all times be and remain within its control).
8. It has been furnished with all information regarding the Trust and the
Certificate which it has requested from the Trust and the Depositor.
9. Neither it nor anyone acting on its behalf has 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,
which would constitute a distribution of the Certificate under the
Securities Act or which would require registration pursuant to the
Securities Act nor will it act, nor has it authorized or will authorize
any person to act, in such manner with respect to the Certificate.
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10. It is not an "affiliate" (within the meaning of Rule 144 under the
Securities Act) of the Depositor.
Dated:_____________
Very truly yours,
__________________________________
[Name of Purchaser]
By:_______________________________
Name:_____________________________
Title:____________________________
NOTE: To be executed by an executive officer
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