THE NATIONAL COLLEGIATE FUNDING LLC,
DEPOSITOR,
and
[--------------------------],
GRANTOR TRUSTEE
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GRANTOR TRUST AGREEMENT
Dated as of [____________]
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The National Collegiate Funding LLC
NCF GRANTOR TRUST [________]
GRANTOR TRUST CERTIFICATES, SERIES [___________]
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS.....................................................................................1
ARTICLE II
CONVEYANCE OF UNDERLYING NOTES;
ORIGINAL ISSUANCE OF CERTIFICATES...............................................................5
Section 2.01 Conveyance of Underlying Notes to Grantor Trustee...................................................5
Section 2.02 Acceptance By Grantor Trustee.......................................................................6
Section 2.03 Representations and Warranties Concerning the Depositor.............................................7
ARTICLE III
ACCOUNTS........................................................................................8
Section 3.01 Payment Account.....................................................................................8
Section 3.02 Permitted Withdrawals and Transfers from the Payment Account........................................9
ARTICLE IV
CERTIFICATES....................................................................................9
Section 4.01 Certificates........................................................................................9
Section 4.02 Registration of Transfer and Exchange of Certificates..............................................11
Section 4.03 Mutilated, Destroyed, Lost or Stolen Certificates..................................................12
Section 4.04 Persons Deemed Owners..............................................................................13
Section 4.05 ERISA Restrictions.................................................................................13
ARTICLE V
PAYMENTS TO CERTIFICATEHOLDERS.................................................................14
Section 5.01 Payments On The Certificates.......................................................................14
Section 5.02 Payments...........................................................................................14
Section 5.03 Statements to Certificateholders...................................................................15
ARTICLE VI
INDEMNIFICATION................................................................................16
Section 6.01 Indemnification of the Grantor Trustee.............................................................16
ARTICLE VII
CONCERNING THE GRANTOR TRUSTEE.................................................................16
TABLE OF CONTENTS
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Section 7.01 Duties of Grantor Trustee..........................................................................16
Section 7.02 Certain Matters Affecting the Grantor Trustee. ....................................................17
Section 7.03 Grantor Trustee Not Liable for Certificates or Student Loans.......................................19
Section 7.04 Grantor Trustee May Own Certificates...............................................................19
Section 7.05 Grantor Trustee's Fees and Expenses................................................................19
Section 7.06 Eligibility Requirements for Grantor Trustee.......................................................20
Section 7.07 Insurance..........................................................................................20
Section 7.08 Resignation and Removal of the Grantor Trustee.....................................................20
Section 7.09 Successor Grantor Trustee..........................................................................21
Section 7.10 Merger or Consolidation of Grantor Trustee.........................................................22
Section 7.11 Appointment of Co-Grantor Trustee or Separate Grantor Trustee......................................22
Section 7.12 Federal Information Returns and Reports to
Certificateholders; Grantor Trust Administration..........................................23
ARTICLE VIII
TERMINATION....................................................................................24
Section 8.01 Termination........................................................................................24
ARTICLE IX
MISCELLANEOUS PROVISIONS.......................................................................25
Section 9.01 Intent of Parties..................................................................................25
Section 9.02 Action Under Underlying Documents..................................................................25
Section 9.03 Amendment..........................................................................................25
Section 9.04 Limitation on Rights of Certificateholders.........................................................26
Section 9.05 Acts of Certificateholders.........................................................................27
Section 9.06 Governing Law......................................................................................28
Section 9.07 Notices............................................................................................28
Section 9.08 Severability of Provisions.........................................................................28
Section 9.09 Successors and Assigns.............................................................................28
Section 9.10 Article and Section Headings.......................................................................28
Section 9.11 Counterparts.......................................................................................29
Section 9.12 Notice to Rating Agencies..........................................................................29
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EXHIBITS
Exhibit A-1 Form of Certificate for Certificate [___]
Exhibit A-2 Form of Certificate for Certificate [__]-IO
Exhibit B Copies of Underlying Notes
Exhibit C Underlying Operative Documents (Underlying Indenture; Class
[___] Note; Class [__]-IO Note; Administration Agreement;
Deposit and Sale Agreement; Amended and Restated Limited
Liability Company Agreement)
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GRANTOR TRUST AGREEMENT
Grantor Trust Agreement dated [___________], between THE NATIONAL
COLLEGIATE FUNDING LLC, a Delaware limited liability company, as Depositor (the
"Depositor") and [_______________], not in its individual capacity but solely as
grantor trustee (the "Grantor Trustee").
PRELIMINARY STATEMENT
On the Closing Date, the Depositor will acquire the Underlying Notes.
On the Closing Date, the Depositor will transfer the Underlying Notes to NCF
Grantor Trust [_____] and receive the Certificates evidencing the entire
beneficial ownership interest in the Trust.
The Grantor Trustee on behalf of the Trust shall make an election for
the assets constituting the Trust to be treated for federal income tax purposes
as a grantor trust.
In consideration of the mutual agreements herein contained, the
Depositor and the Grantor Trustee agree as follows:
ARTICLE I
DEFINITIONS
Whenever used in this Agreement, the following words and phrases,
unless otherwise expressly provided or unless the context otherwise requires,
shall have the meanings specified in this Article. Capitalized terms not
otherwise defined herein shall have the meanings assigned to such terms in the
Definitions attached as Appendix A to the Underlying Indenture.
Accrued Certificate Interest: As to any Certificate, and any
Distribution Date, the aggregate amount of interest accrued at the applicable
Certificate Interest Rate for the related Interest Accrual Period on the Current
Principal Amount or Current Notional Amount, as applicable, of such Certificate
for the applicable Distribution Date.
Agreement: This Grantor Trust Agreement and all amendments hereof and
supplements hereto.
Assumed Final Distribution Date: For the Class [___] Certificates
[_________], or if such day is not a Business Day, the next succeeding Business
Day; for the Class [__]-IO Certificates [___________].
Available Funds: With respect to any Distribution Date and each
Certificate, the sum of any payments received by the Grantor Trustee in respect
of the Underlying Notes.
Book-Entry Certificates: Beneficial interests in the Certificates,
ownership and transfers of which shall be made through book entries by the
Depository as described in Section 4.01 of the Grantor Trust Agreement.
Certificate: Any P&I Certificate or any Class [__]-IO Certificate.
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Certificate Interest Rate: The rate of interest payable on any
Certificate as set forth on the face thereof.
Certificate Owner: Any Person who is the beneficial owner of a
Certificate registered in the name of the Depository or its nominee.
Certificate Register: The register maintained pursuant to Section
4.02(a).
Certificateholder: A Holder of a Certificate.
Class [___] Certificates: The Class [___] Certificates issued pursuant
to this Agreement and substantially in the form attached as Exhibit A-1 hereto.
Class [__]-IO Certificates: The Class [__]-IO Certificates issued
pursuant to this Agreement and substantially in the form attached as Exhibit A-2
hereto.
Closing Date: [____________].
Code: The Internal Revenue Code of 1986, as amended.
Corporate Trust Office: The office of the Grantor Trustee at which at
any particular time its corporate trust business is administered, which office,
at the date of the execution of this Agreement, is located at
[____________________].
Current Notional Amount: With respect to any Class [__]-IO Certificate
as of any Distribution Date, the outstanding principal balance of the Class
[___] Underlying Note; provided that on the first Distribution Date following
the [________] Distribution Date and thereafter, the Current Notional Amount of
the Class [__]-IO Certificate will equal $0.
Current Principal Amount: With respect to any P&I Certificate as of any
Distribution Date, the initial principal amount of such P&I Certificate reduced
by all amounts distributed on previous Distribution Dates on such P&I
Certificate with respect to principal. With respect to the P&I Certificates in
the aggregate, the Current Principal Amount thereof will equal the sum of the
Current Principal Amounts of all P&I Certificates.
Cut-Off Date: [__________].
Depository: The Depository Trust Company, the nominee of which is Cede
& Co., or any successor thereto.
Depository Agreement: The meaning specified in Subsection 4.01(a)
hereof.
Depository Participant: A broker, dealer, bank or other financial
institution or other Person for whom from time to time the Depository effects
book-entry transfers and pledges of securities deposited with the Depository.
Designated Depository Institution: A depository institution (commercial
bank, federal savings bank, mutual savings bank or savings and loan association)
or trust
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company (which may include the Grantor Trustee), the deposits of which are fully
insured by the FDIC to the extent provided by law.
DTC Custodian: [___________________], or its successors in interest as
custodian for the Depository.
FITCH: Fitch, Inc. or its successor in interest.
Fractional Undivided Interest: With respect to any Class [___]
Certificate, the fractional undivided interest evidenced by such Class [___]
Certificate, the numerator of which is the Current Principal Amount of such
Class [___] Certificate and the denominator of which is the aggregate Current
Principal Amount of all of the Class [___] Certificates issued under this
Agreement. With respect to any Class [__]-IO Certificate, the fractional
undivided interest evidenced by such Class [__]-IO Certificate, the numerator of
which is the Current Notional Amount of such Class [__]-IO Certificate and the
denominator of which is the aggregate Notional Amount of all of the Class
[__]-IO Certificates issued under this Agreement.
Grantor Trust: The trust created by this Agreement.
Grantor Trustee: [_________________], or its successor in interest, or
any successor trustee appointed as herein provided.
Holder: The Person in whose name a Certificate is registered in the
Certificate Register, except that, solely for the purpose of giving any consent
pursuant to this Agreement, any Certificate registered in the name of the
Depositor or the Grantor Trustee or any Affiliate thereof shall be deemed not to
be outstanding and the Fractional Undivided Interest evidenced thereby shall not
be taken into account in determining whether the requisite percentage of
Fractional Undivided Interests of any class necessary to effect any such consent
has been obtained.
Indemnified Persons: The Grantor Trustee and its officers, directors,
agents and employees and any separate co-trustee and its officers, directors,
agents and employees.
Independent: When used with respect to any specified Person, this term
means that such Person (a) is in fact independent of the Depositor and of any
Affiliate of the Depositor, (b) does not have any direct financial interest or
any material indirect financial interest in the Depositor or any Affiliate of
the Depositor and (c) is not connected with the Depositor or any Affiliate as an
officer, employee, promoter, underwriter, trustee, partner, director or person
performing similar functions.
Interest Accrual Period: With respect to any Distribution Date and the
Certificates, (i) with respect to the Distribution Date in [__________], the
period commencing on and including the Closing Date and ending on and including
the day preceding the Distribution Date in [____________], and (ii) with respect
to any Distribution Date after the Distribution Date in [____________], the
period commencing on and including the immediately preceding Distribution Date
and ending on and including the day preceding that Distribution Date.
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LIBOR: LIBOR as determined by the Underlying Indenture Trustee pursuant
to the Underlying Indenture.
Majority Certificateholders: Holders of Certificates evidencing a ratio
in excess of 50% determined by the numerator equal to the aggregate of the
Current Principal Amount of all Class [___] Certificates held by Holders voting
in favor of an amendment or proposed action plus the aggregate of the Current
Notional Amount of all Class [__]-IO Certificates held by Holders voting in
favor of an amendment or proposed action and the denominator equal to the
aggregate of the Current Principal Amount of all Class [___] Certificates plus
the aggregate of the Current Notional Amount of all Class [__]-IO Certificates.
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc. or its successor in interest.
Opinion of Counsel: A written opinion of counsel who is or are
acceptable to the Grantor Trustee and who, unless required to be Independent (an
"Opinion of Independent Counsel"), may be internal counsel for the Depositor.
P&I Certificates: The Class [___] Certificates issued under this
Agreement.
Payment Account: The trust account created and maintained pursuant to
Section 3.01, which shall be denominated "[____________], as Grantor Trustee
f/b/o holders of NCF Grantor Trust [_______] Grantor Trust Certificates".
Person: Any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
Principal Shortfall: A determination by the Underlying Indenture
Trustee pursuant to the Underlying Indenture as reported on a Statement to
Underlying Noteholders, provided to the Underlying Indenture Trustee by the
Administrator, that there will not be sufficient Available Funds (as defined in
the Underlying Indenture) to reduce the outstanding principal balance of the
Class [___] Note that is part of the Underlying Notes to zero.
Distribution Date: Any Distribution Date (as defined in the Underlying
Indenture) or Final Maturity Date for each of the Underlying Notes, or any other
date on which payments are received pursuant to the Underlying Indenture on
account of the Underlying Notes.
Rating Agencies: S&P, Fitch and Moody's.
Record Date: With respect to the Certificates that are Book-Entry
Certificates and any Distribution Date, the close of business on the Business
Day immediately preceding such Distribution Date. With respect to any
Certificates that are not Book-Entry Certificates, the close of business on the
last Business Day of the calendar month preceding such Distribution Date.
Responsible Officer: Any officer assigned to the Corporate Trust Office
(or any successor thereto), including any Vice President, Assistant Vice
President, Secretary, any Assistant Secretary, or any other officer of the
Grantor Trustee customarily performing functions
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similar to those performed by any of the above designated officers and having
direct responsibility for the administration of this Agreement.
S&P: Standard and Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies,
Inc., and its successors in interest.
Statements to Underlying Noteholders: The statement provided to the
Holders of the Underlying Notes in accordance with Section 8.09 of the
Underlying Indenture.
Trust: The trust created by this Agreement and the assets deposited
herein pursuant to the Agreement.
Underlying Indenture Trustee: [________________], as indenture trustee
under the Underlying Indenture.
Underlying Interest Shortfalls: Any Noteholders' Interest Carryover
Shortfalls (as defined in the Underlying Indenture) allocated to the Underlying
Notes pursuant to the Underlying Indenture, as reported on a Statement to
Underlying Noteholders provided by the Administrator.
Underlying Notes: The Class [___] Notes and the Class [__]-IO Notes
issued pursuant to the Underlying Indenture.
Underlying Student Loans: The student loans pledged as collateral
securing the Underlying Notes pursuant to the Underlying Indenture.
Underlying Indenture: The Indenture dated as of [_______], between the
Underlying Indenture Trustee and The National Collegiate Student Loan Trust
[_______], attached hereto as Exhibit C.
Underlying Operative Documents: The Underlying Indenture; the
Underlying Notes; the Administration Agreement dated as of [__________], among
The National Collegiate Student Loan Trust [______],[__________________], the
Underlying Indenture Trustee and the Administrator; the Deposit and Sale
Agreement dated as of [__________], between the Depositor and The National
Collegiate Student Loan Trust [_____]; and the Amended and Restated Limited
Liability Company Agreement of the Depositor dated as of [__________]among GATE
Holdings, Inc., [__________] and [__________].
ARTICLE II
CONVEYANCE OF UNDERLYING NOTES;
ORIGINAL ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Underlying Notes to Grantor Trustee. The
Depositor, concurrently with the execution and delivery hereof, does hereby
transfer, deposit and assign to the Grantor Trustee, in trust, for the use and
benefit of the Certificateholders subject to this Agreement, (i) all the right,
title and interest of the Depositor in
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and to the Underlying Notes and (ii) all payments on the Underlying Notes after
the Closing Date.
In connection with each such transfer and assignment, the Depositor is
causing the delivery to the Grantor Trustee, through book entry registration in
the Grantor Trustee's name, of the Underlying Notes.
It is intended that the conveyance of the Depositor's right, title and
interest in and to the Underlying Notes and all other assets constituting the
Trust pursuant to this Agreement shall constitute, and be construed as, an
absolute sale of the Underlying Notes and the other assets constituting the
Trust by the Depositor to the Grantor Trustee for the benefit of the
Certificateholders. Furthermore, it is not intended that such conveyance be
deemed a pledge of the Underlying Notes and the other assets constituting the
Trust by the Depositor to the Grantor Trustee to secure a debt or other
obligation of the Depositor. However, in the event that, notwithstanding the
intent of the parties, the Underlying Notes and the other assets constituting
the Trust are held to be the property of the Depositor, or if for any other
reason this Agreement is held or deemed to create a security interest in the
Underlying Notes and the other assets constituting the Trust, then it is
intended as follows: (a) this Agreement shall also be deemed to be a security
agreement within the meaning of Articles 8 and 9 of the UCC; (b) the conveyance
provided for in this section shall be deemed to be a grant by the Depositor to
the Grantor Trustee of a security interest in all of the Depositor's right,
title and interest in and to the Underlying Notes, and all amounts payable to
the holders of the Underlying Notes and all proceeds of the conversion,
voluntary or involuntary, of the foregoing into cash, instruments, securities or
other property, including without limitation all amounts from time to time held
or invested in the Payment Account, whether in the form of cash, instruments,
securities or other property; (c) the book entry registration in the name of the
Grantor Trustee or its agent of the Underlying Notes and such other items of
property as constitute cash, instruments, securities or other property shall be
deemed to be "possession by the secured party" for purposes of perfecting the
security interest pursuant to section 9-313 of the UCC; and (d) notifications to
persons holding such property, and acknowledgments, receipts or confirmations
from persons holding such property, shall be deemed to be notifications to or
acknowledgments, receipts or confirmations from, financial intermediaries,
bailees or agents (as applicable) of the Grantor Trustee for the purpose of
perfecting such security interest under applicable law.
It is also intended that the Trust be classified (for federal tax
purposes) as a grantor trust under subpart E, part I of subchapter J of chapter
1 of the Code, of which the Certificateholders are owners, rather than as an
association taxable as a corporation. The powers granted and obligations
undertaken in this Agreement shall be construed so as to further such intent.
Section 2.02 Acceptance By Grantor Trustee. The Grantor Trustee hereby
acknowledges the delivery to it, through book entry registration in its name as
Grantor Trustee hereunder, of the Underlying Notes and declares that it holds
and will hold such Underlying Notes and all other assets and documents included
in the Trust, in trust, upon the trusts herein set forth, for the exclusive use
and benefit of all present and future applicable Certificateholders in
accordance with the terms of this Agreement.
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Section 2.03 Representations and Warranties Concerning the Depositor.
The Depositor hereby represents and warrants to the Grantor Trustee as follows:
(a) The Depositor (a) is a limited liability company duly
formed, validly existing and in good standing under the laws of the
State of Delaware and (b) is qualified and in good standing as a
foreign limited liability company to do business in each jurisdiction
where such qualification is necessary, except where the failure so to
qualify would not reasonably be expected to have a material adverse
effect on the Depositor's business as presently conducted or on the
Depositor's ability to enter into this Agreement and to consummate the
transactions contemplated hereby;
(b) The Depositor has full power to own its property, to carry
on its business as presently conducted and to enter into and perform
its obligations under this Agreement;
(c) The execution and delivery by the Depositor of this
Agreement have been duly authorized by all necessary company action on
the part of the Depositor; and neither the execution and delivery of
this Agreement, nor the consummation of the transactions herein
contemplated, nor compliance with the provisions hereof, will conflict
with or result in a breach of, or constitute a default under, any of
the provisions of any law, governmental rule, regulation, judgment,
decree or order binding on the Depositor or its properties or the
certificate of formation or limited liability company agreement of the
Depositor, except those conflicts, breaches or defaults which would not
reasonably be expected to have a material adverse effect on the
Depositor's ability to enter into this Agreement and to consummate the
transactions contemplated hereby;
(d) The execution, delivery and performance by the Depositor
of this Agreement and the consummation of the transactions contemplated
hereby do not require the consent or approval of, the giving of notice
to, the registration with, or the taking of any other action in respect
of, any state, federal or other governmental authority or agency,
except those consents, approvals, notices, registrations or other
actions as have already been obtained, given or made;
(e) This Agreement has been duly executed and delivered by the
Depositor and, assuming due authorization, execution and delivery by
the other parties hereto, constitutes a valid and binding obligation of
the Depositor enforceable against it in accordance with its terms
(subject to applicable bankruptcy and insolvency laws and other similar
laws affecting the enforcement of the rights of creditors generally);
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(f) There are no actions, suits or proceedings pending or, to
the knowledge of the Depositor, threatened against the Depositor,
before or by any court, administrative agency, arbitrator or
governmental body (A) with respect to any of the transactions
contemplated by this Agreement or (B) with respect to any other matter
which in the judgment of the Depositor will be determined adversely to
the Depositor and will if determined adversely to the Depositor
materially and adversely affect the Depositor's ability to enter into
this Agreement or perform its obligations under this Agreement; and the
Depositor is not in default with respect to any order of any court,
administrative agency, arbitrator or governmental body so as to
materially and adversely affect the transactions contemplated by this
Agreement;
(g) Immediately prior to the transfer and assignment to the
Grantor Trustee, each Underlying Note was not subject to an assignment
or pledge, and the Depositor had good and marketable title thereto and
was the sole owner thereof and had full right to transfer and sell such
Underlying Note to the Grantor Trustee free and clear of any
encumbrance, equity, lien, pledge, charge, claim or security interest;
and
(h) The Depositor hereby covenants and agrees that it will not
at any time institute against the Trust, or join in any institution
against the Trust of, any bankruptcy, reorganization, arrangement,
insolvency, receivership or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or
similar law in connection with any obligations relating to this
Agreement or any of the Underlying Operative Documents.
ARTICLE III
ACCOUNTS
Section 3.01 Payment Account.
(a) The Grantor Trustee shall establish and maintain in the name of the
Grantor Trustee, for the benefit of the Certificateholders, the Payment Account
as a segregated trust account. The Grantor Trustee will deposit in the Payment
Account any amounts received with respect to the Underlying Notes upon receipt
thereof.
(b) All amounts deposited to the Payment Account shall be held by the
Grantor Trustee in trust for the benefit of the Certificateholders in accordance
with the terms and provisions of this Agreement.
(c) The Payment Account shall constitute a trust account of the Trust
segregated on the books of the Grantor Trustee and held by the Grantor Trustee
in trust in its Corporate Trust Office, and the Payment Account and the funds
deposited therein shall not be subject to, and shall be protected from, all
claims, liens, and encumbrances of any creditors or depositors of the Grantor
Trustee (whether made directly, or indirectly through a liquidator or receiver
of the Grantor Trustee). The amount at any time credited to the Payment Account
shall be held uninvested.
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Section 3.02 Permitted Withdrawals and Transfers from the Payment
Account.
(a) The Grantor Trustee may clear and terminate the Payment Account
pursuant to Section 8.01 and remove amounts from time to time deposited in
error; provided that the Payment Account shall not be terminated until the
Current Principal Amount of each of the Class [___] Certificates and the Current
Notional Amount of each of the Class [__]-IO Certificates has been reduced to
zero.
(b) On each Distribution Date, the Grantor Trustee shall pay the amount
distributable to the Holders of the Certificates in accordance with Section 5.01
from the funds in the Payment Account, provided that payments on the Underlying
Notes are received by the Grantor Trustee by no later than 1:00 p.m. New York
time.
ARTICLE IV
CERTIFICATES
Section 4.01 Certificates.
(a) The Depository, the Grantor Trust and [___________________], in its
capacity as agent, have entered into a Depository Agreement dated as of
[__________] (the "Depository Agreement"). The Certificates shall at all times
remain registered in the name of the Depository or its nominee and at all times:
(i) registration of the Certificates may not be transferred by the Grantor
Trustee except to a successor to the Depository; (ii) ownership and transfers of
registration of the Certificates on the books of the Depository shall be
governed by applicable rules established by the Depository; (iii) the Depository
may collect its usual and customary fees, charges and expenses from its
Depository Participants; (iv) the Grantor Trustee shall deal with the Depository
as representative of such Certificate Owners of the Certificates for purposes of
exercising the rights of Certificateholders under this Agreement, and requests
and directions for and votes of such representative shall not be deemed to be
inconsistent if they are made with respect to different Certificate Owners; and
(v) the Grantor Trustee may rely and shall be fully protected in relying upon
information furnished by the Depository with respect to its Depository
Participants.
All transfers by Certificate Owners of the Book-Entry Certificates
shall be made in accordance with the procedures established by the Depository
Participant or brokerage firm representing such Certificate Owners. Each
Depository Participant shall only transfer Book-Entry Certificates of
Certificate Owners it represents or of brokerage firms for which it acts as
agent in accordance with the Depository's normal procedures.
(b) If (i)(A) the Depositor advises the Grantor Trustee in writing that
the Depository is no longer willing or able to properly discharge its
responsibilities as Depository and (B) the Grantor Trustee or the Depositor is
unable to locate a qualified successor within 30 days or (ii) the Depositor at
its option and with the Grantor Trustee's consent advises the Grantor Trustee in
writing that it elects to terminate the book-entry system through the
Depository, the Grantor Trustee shall request that the Depository notify all
Certificate Owners of the occurrence of any
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such event and of the availability of definitive, fully registered Certificates
to Certificate Owners requesting the same. Upon surrender to the Grantor Trustee
of the Certificates by the Depository, accompanied by registration instructions
from the Depository for registration, the Grantor Trustee shall issue the
definitive Certificates. Neither the Depositor nor the Grantor Trustee shall be
liable for any delay in delivery of such instructions and may conclusively rely
on, and shall be protected in relying on, such instructions.
(c) The Certificates shall have the following designation, initial
principal amount or initial notional amount and initial Certificate Interest
Rate:
Initial Certificate
Designation Principal Amount Interest Rate
----------- ---------------- -------------
[___] $ [__________] LIBOR + [___]%
Initial Certificate
Designation Notional Amount Interest Rate
[__]-IO $[__________] [____]%
(d) With respect to each Distribution Date, the Certificates shall
accrue interest during the related Interest Accrual Period. With respect to each
Distribution Date and the Class [___] Certificates, interest shall be
calculated, on the basis of a 360-day year and the actual number of days in the
related Interest Accrual Period, based upon One Month LIBOR as determined on the
second Business Day prior to the commencement of such Interest Accrual Period
plus [___]%, as adjusted in a manner and at the times that the interest rate for
the Class [___] Notes is determined by the Administrator pursuant to the
Underlying Indenture, based upon the Current Principal Amount of the Class [___]
Certificates applicable to such Distribution Date (before giving effect to any
payments on the Certificates on such date). With respect to each Distribution
Date and the Class [__]-IO Certificates, interest shall be calculated, on the
basis of a 360-day year and 30-day monthly periods in the related Interest
Accrual Period, based upon the Certificate Interest Rate for such Class [__]-IO
Certificate as set forth in the table in Section 4.01(c), based upon the Current
Notional Amount of the Class [__]-IO Certificates applicable to such
Distribution Date (before giving effect to any payments on the Certificates on
such date).
(e) The Certificates shall be substantially in the form set forth in
Exhibit A-1 and Exhibit A-2, attached to this Agreement. On original issuance,
the Grantor Trustee shall sign, countersign and shall deliver the Certificates
at the written direction of the Depositor. Pending the preparation of definitive
Certificates, the Grantor Trustee may sign and countersign temporary
Certificates that are printed, lithographed or typewritten, in authorized
initial denominations, substantially of the tenor of the definitive Certificates
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers or authorized
signatories executing such Certificates may determine, as evidenced by their
execution of such Certificates. If temporary Certificates are issued, the
Depositor will cause definitive Certificates to be prepared without unreasonable
delay. After the preparation of
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definitive Certificates, the temporary Certificates shall be exchangeable for
definitive Certificates upon surrender of the temporary Certificates at the
office of the Grantor Trustee, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Certificates, the Grantor Trustee
shall sign and countersign and deliver in exchange therefor a like aggregate
initial principal amount or initial notional amount, as applicable, in
authorized initial denominations, of definitive Certificates. Until so
exchanged, such temporary Certificates shall in all respects be entitled to the
same benefits as definitive Certificates.
(f) The Book-Entry Certificates will be registered as a single
Certificate for each class of Certificates issued under this Agreement and will
be held by a nominee of the Depository or the DTC Custodian, and beneficial
interests will be held by investors through the book-entry facilities of the
Depository in minimum initial denominations of $50,000 and increments of $1,000
in excess thereof. On the Closing Date, the Grantor Trustee shall execute and
countersign a single Certificate in the entire Current Principal Amount for each
of the Class [___] Certificates Certificates and shall execute and countersign a
single Certificate in the entire Current Notional Amount for each of the Class
[__]-IO Certificates. The Grantor Trustee shall sign the Certificates by
facsimile or manual signature and countersign them by manual signature on behalf
of the Grantor Trustee by one or more authorized signatories, each of whom shall
be Responsible Officers of the Grantor Trustee or its agent. A Certificate
bearing the manual and facsimile signatures of individuals who were the
authorized signatories of the Grantor Trustee or its agent at the time of
issuance shall bind the Grantor Trustee, notwithstanding that such individuals
or any of them have ceased to hold such positions prior to the delivery of such
Certificate.
(g) No Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such Certificate
the manually executed countersignature of the Grantor Trustee or its agent, and
such countersignature upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly executed and delivered
hereunder. All Certificates issued on the Closing Date shall be dated the
Closing Date. All Certificates issued thereafter shall be dated the date of
their countersignature.
Section 4.02 Registration of Transfer and Exchange of Certificates.
(a) The Grantor Trustee shall maintain at its Corporate Trust Office a
Certificate Register in which, subject to such reasonable regulations as it may
prescribe, the Grantor Trustee shall provide for the registration of
Certificates and of transfers and exchanges of Certificates as herein provided.
(b) Subject to Subsection 4.02(e), upon surrender for registration of
transfer of any Certificate at any office or agency of the Grantor Trustee
maintained for such purpose, the Grantor Trustee shall sign, countersign and
shall deliver, in the name of the designated transferee or transferees, a new
Certificate of a like tenor, class and original principal or notional amount, as
applicable, but bearing a different number.
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(c) At the option of the Certificateholders, Certificates may be
exchanged for other Certificates of authorized denominations of a like tenor,
class and original principal or notional amount, as applicable, upon surrender
of the Certificates to be exchanged at any such office or agency; PROVIDED,
HOWEVER, that no Certificate may be exchanged for new Certificates unless the
original principal or notional amount, as applicable, represented by each such
new Certificate (i) is at least equal to the minimum authorized denomination or
(ii) is acceptable to the Depositor as indicated to the Grantor Trustee in
writing. Whenever any Certificates are so surrendered for exchange, the Grantor
Trustee shall sign and countersign and the Grantor Trustee shall deliver the
Certificates which the Certificateholder making the exchange is entitled to
receive.
(d) If the Grantor Trustee so requires, every Certificate presented or
surrendered for transfer or exchange shall be duly endorsed by, or be
accompanied by a written instrument of transfer, with a signature guarantee, in
form satisfactory to the Grantor Trustee, duly executed by the holder thereof or
his or her attorney duly authorized in writing.
(e) No service charge shall be made for any transfer or exchange of
Certificates, but the Grantor 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 Certificates.
(f) The Grantor Trustee shall cancel all Certificates surrendered for
transfer or exchange but shall either retain such Certificates in accordance
with its standard retention policy or for such further time as is required by
the record retention requirements of the Securities Exchange Act of 1934, as
amended, and thereafter may destroy such Certificates.
(g) The following legend shall be placed on the Certificates, whether
upon original issuance or upon issuance of any other Certificate in exchange
therefor or upon transfer thereof at any time:
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY
BY, OR ON BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT
ARRANGEMENT WHICH IS SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT
INCOME SECURITY ACT OF 1974, AS AMENDED, AND/OR SECTION 4975 OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED, UNLESS THE PROPOSED
TRANSFEREE IS DEEMED TO MAKE THE REPRESENTATION IN SECTION 4.05 OF THE
AGREEMENT OR UNLESS THE PROPOSED TRANSFEREE PROVIDES THE DEPOSITOR AND
THE GRANTOR TRUSTEE WITH AN OPINION OF COUNSEL SATISFACTORY TO THOSE
ENTITIES, WHICH OPINION WILL NOT BE AT THE EXPENSE OF THOSE ENTITIES,
THAT THE PURCHASE OF THE CERTIFICATES BY OR ON BEHALF OF THE PLAN
INVESTOR, IS PERMISSIBLE UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR
RESULT IN ANY NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA OR CODE
SECTION 4975 AND WILL NOT SUBJECT THE DEPOSITOR OR THE GRANTOR TRUSTEE
TO ANY OBLIGATION IN ADDITION TO THOSE UNDERTAKEN IN THE GRANTOR TRUST
AGREEMENT.
Section 4.03 MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES.
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(a) If (i) any mutilated Certificate is surrendered to the Grantor
Trustee, or the Grantor Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate, and (ii) there is delivered to
the Grantor Trustee such security or indemnity as it may require to save it
harmless, and (iii) the Grantor Trustee has not received notice that such
Certificate has been acquired by a third Person, the Grantor Trustee shall sign,
countersign and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor, class
and original principal or notional amount, as applicable, but in each case
bearing a different number. The mutilated, destroyed, lost or stolen Certificate
shall thereupon be canceled of record by the Grantor Trustee and shall be of no
further effect and evidence no rights.
(b) Upon the issuance of any new Certificate under this Section 4.03,
the Grantor 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 Grantor Trustee)
connected therewith. Any duplicate Certificate issued pursuant to this Section
4.03 shall constitute complete and indefeasible evidence of ownership in each
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Certificate shall be found at any time.
Section 4.04 Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer, the Depositor, the Grantor Trustee and
any agent of the Depositor or the Grantor Trustee may treat the Person in whose
name any Certificate is registered as the owner of such Certificate for the
purpose of receiving payments pursuant to Section 5.01 and for all other
purposes whatsoever. Neither the Depositor, the Grantor Trustee nor any agent of
the Depositor or the Grantor Trustee shall be affected by notice to the
contrary. No Certificate shall be deemed duly presented for a transfer effective
on any Record Date unless the Certificate to be transferred is presented no
later than the close of business on the third Business Day preceding such Record
Date.
Section 4.05 ERISA Restrictions. By acquiring a Certificate, each
purchaser will be deemed to represent that either (a) it is not acquiring the
Certificate with Plan Assets; or (b) (i) the acquisition and holding of the
Certificate will not give rise to a nonexempt prohibited transaction under
section 406 of ERISA or section 4975 of the Code because the transaction is
covered by an applicable exemption.
Alternatively, regardless of the rating of the Certificates, a Person
investing on behalf of or with Plan Assets of a Plan may provide the Grantor
Trustee with an Opinion of Counsel, which Opinion of Counsel will not be at the
expense of the Depositor or the Grantor Trustee, which opines that the
acquisition, holding and transfer of such Certificate or interest therein is
permissible under applicable law, will not constitute or result in a non-exempt
prohibited transaction under ERISA or section 4975 of the Code and will not
subject the Depositor or the Grantor Trustee to any obligation in addition to
those undertaken in the Underlying Indenture or this Agreement, as applicable.
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ARTICLE V
PAYMENTS TO CERTIFICATEHOLDERS
Section 5.01 Payments On The Certificates.
(a) Interest and principal on the Certificates will be distributed
monthly on each Distribution Date, commencing in [____________], in an aggregate
amount equal to the Available Funds for such Distribution Date. On each
Distribution Date, the Available Funds shall be distributed in the following
order of priority and to the extent of Available Funds:
(a) First, Accrued Certificate Interest on the Class [___]
Certificates and the Class [__]-IO Certificates shall be distributed to
the Holders of those Certificates pro rata based upon the aggregate
Accrued Certificate Interest payable for each such class of
Certificates for such Distribution Date;
(b) SECOND, any Accrued Certificate Interest on the
Certificates remaining undistributed from previous Distribution Dates,
pro rata based upon the aggregate Accrued Certificate Interest payable
for each class of Certificates for such Distribution Date; and
(c) THIRD, any remaining Available Funds received from the
Underlying Notes shall be distributed to the Holders of the Class [___]
Certificates pro rata based upon the aggregate Current Principal Amount
for each such class of Certificates for such Distribution Date (before
giving effect to any payments on the Certificates on such date), in
reduction of the Certificate Principal Amount thereof, until the
Certificate Principal Amount thereof has been reduced to zero.
(b) No Accrued Certificate Interest will be payable with respect to the
P&I Certificates after the Distribution Date on which the Certificate Principal
Amount of the P&I Certificates has been reduced to zero.
Section 5.02 Payments.
(a) On each Distribution Date, other than the final Distribution Date,
the Grantor Trustee shall distribute to each Certificateholder of record on the
directly preceding Record Date for each class of Certificates issued under this
Agreement, the Certificateholder's pro rata share (based on the aggregate
Fractional Undivided Interest represented by such Holder's Certificates with
respect to such class of Certificates) of all amounts required to be distributed
on such Distribution Date to the Class of Certificates held by such
Certificateholder, based on information provided to the Grantor Trustee by the
Underlying Indenture Trustee. The Grantor Trustee shall calculate the Available
Funds received from the Underlying Notes and the Grantor Trustee shall determine
the amount to be distributed to each Certificateholder. All of the Grantor
Trustee's calculations of payments shall be based solely on information provided
to the Grantor Trustee by the Underlying Indenture Trustee. The Grantor Trustee
shall not be required to confirm, verify or recompute any such information but
shall be entitled to rely conclusively on such information.
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(b) Payment of the above amounts to each Certificateholder shall be
made (i) by check mailed to each Certificateholder entitled thereto at the
address appearing in the Certificate Register or (ii) upon receipt by the
Grantor Trustee on or before the fifth Business Day preceding the Record Date of
written instructions from a Certificateholder by wire transfer to a United
States dollar account maintained by the payee at any United States depository
institution with appropriate facilities for receiving such a wire transfer;
PROVIDED, HOWEVER, that the final payment in respect of the Certificates will be
made only upon presentation and surrender of such respective Certificates at the
office or agency of the Grantor Trustee specified in the notice to
Certificateholders of such final payment.
Section 5.03 Statements to Certificateholders.
(a) Concurrently with each payment to Certificateholders, the Grantor
Trustee shall make available via the Grantor Trustee's internet website as set
forth below, all of the information contained in the Statement to Underlying
Noteholders and the following information, set forth separately for each class
of Certificates:
(a) The Certificate Interest Rate on the Certificates;
(b) The amount of any interest payments made to the
Certificates;
(c) The amount of any principal payments made to the
Certificates; and
(d) The Current Principal Amount or the Current Notional
Amount of the Certificates, as applicable.
The Grantor Trustee may make available each month, to any interested
party, the monthly statement to Certificateholders via the Grantor Trustee's
website initially located at [_____________________]. Certificateholders that
are unable to use the statement option described in the preceding sentence are
entitled to have a paper copy mailed to them via first class mail by written
request to the Grantor Trustee indicating such. The Grantor Trustee shall have
the right to change the way such reports are distributed in order to make such
statement more convenient and/or more accessible to the Certificateholders, and
the Grantor Trustee shall provide timely and adequate notification to all
Certificateholders regarding any such change.
(b) By [_______] of each year beginning in [_____], the Grantor Trustee
will furnish a report to each Holder of the Certificates of record at any time
during the prior calendar year as to the aggregate of amounts reported pursuant
to subclauses (a)(ii) and (a)(iii) above with respect to each class of the
Certificates, plus such other customary information as the Grantor Trustee may
determine to be necessary and/or to be required by the Internal Revenue Service
or by a federal or state law or rules or regulations to enable such Holders to
prepare their tax returns for such calendar year. Such obligations shall be
deemed to have been satisfied to the extent that substantially comparable
information shall be provided by the Grantor Trustee pursuant to the
requirements of the Code.
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ARTICLE VI
INDEMNIFICATION
Section 6.01 Indemnification of the Grantor Trustee. The Depositor
shall indemnify the Indemnified Persons for, and will hold them harmless
against, any loss, liability or expense incurred on their part, arising out of,
or in connection with, this Agreement and the Certificates, including the costs
and expenses (including reasonable legal fees and expenses) of defending
themselves against any such claim other than any loss, liability or expense
incurred by reason of such Indemnified Person's willful misfeasance, bad faith
or negligence in the performance of duties hereunder or by reason of reckless
disregard of obligations and duties hereunder. This indemnity shall survive the
resignation or removal of the Grantor Trustee and the termination of this
Agreement.
ARTICLE VII
CONCERNING THE GRANTOR TRUSTEE
Section 7.01 Duties of Grantor Trustee.
(a) The Grantor Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement as duties of the Grantor
Trustee.
(b) Upon receipt of all resolutions, certificates, statements,
opinions, reports, documents, orders or other instruments which are specifically
required to be furnished to the Grantor Trustee pursuant to any provision of
this Agreement, the Grantor Trustee shall examine them to determine whether they
are in the form required by this Agreement; PROVIDED, HOWEVER, that the Grantor
Trustee shall be not responsible for the accuracy or content of any resolution,
certificate, statement, opinion, report, document, order or other instrument
furnished by the Underlying Indenture Trustee; PROVIDED, FURTHER, that the
Grantor Trustee shall not be responsible for the accuracy or verification of any
calculation provided to it pursuant to this Agreement.
(c) On each Distribution Date, the Grantor Trustee shall make payments
from funds in the Payment Account as provided in Section 5.01 herein based on
the report of the Underlying Indenture Trustee.
(d) No provision of this Agreement shall be construed to relieve the
Grantor Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct; PROVIDED, HOWEVER, that:
(a) The duties and obligations of the Grantor Trustee shall be
determined solely by the express provisions of this Agreement, the
Grantor Trustee shall not be liable except for the performance of its
duties and obligations as are specifically set forth in this Agreement,
no implied covenants or obligations shall be read into this Agreement
against the Grantor Trustee and, in the absence of bad faith on the
part of the Grantor Trustee, the Grantor Trustee may conclusively rely,
as to the truth of the statements and the correctness of the opinions
expressed therein, upon any certificates or opinions furnished to the
Grantor Trustee, and conforming to the requirements of this Agreement;
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(b) The Grantor Trustee shall not be liable in its individual
capacity for an error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Grantor Trustee, unless it shall
be proved that the Grantor Trustee was negligent in ascertaining the
pertinent facts;
(c) The Grantor Trustee shall not be liable with respect to
any action taken, suffered or omitted to be taken by it in good faith
in accordance with the written directions of the Majority
Certificateholders, if such action or non-action relates to the time,
method and place of conducting any proceeding for any remedy available
to the Grantor Trustee, or exercising any trust or other power
conferred upon the Grantor Trustee under this Agreement; PROVIDED,
HOWEVER, that no action shall be taken, suffered or omitted to be taken
without the consent of the Holders of Certificates evidencing
Fractional Undivided Interests aggregating not less than a majority of
the Class [___] Certificates;
(d) The Grantor Trustee shall not in any way be liable by
reason of any insufficiency in the Payment Account unless it is
determined by a court of competent jurisdiction that the Grantor
Trustee's negligence or willful misconduct was the primary cause of
such insufficiency; and
(e) Anything in this Agreement to the contrary
notwithstanding, in no event shall the Grantor Trustee be liable for
special, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the
Grantor Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action.
The Grantor Trustee shall not be required to expend or risk its own
funds or otherwise incur financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or indemnity
satisfactory to the Grantor Trustee against such risk or liability is not
reasonably assured to it.
(e) All funds received by the Grantor Trustee and required to be
deposited in the Payment Account pursuant to this Agreement will be promptly so
deposited by the Grantor Trustee.
(f) Except for those actions that the Grantor Trustee is required to
take hereunder, the Grantor Trustee shall not have any obligation or liability
to take any action or to refrain from taking any action hereunder in the absence
of written direction as provided hereunder.
(g) The Grantor Trustee hereby covenants and agrees that it will not at
any time institute against the Trust, or join in any institution against the
Trust of, any bankruptcy, reorganization, arrangement, insolvency, receivership
or liquidation proceedings, or other proceedings under any United States federal
or state bankruptcy or similar law in connection with any obligations relating
to this Agreement or any of the Underlying Operative Documents.
Section 7.02 Certain Matters Affecting the Grantor Trustee. Except as
otherwise provided in Section 7.01:
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(a) The Grantor Trustee may rely and shall be protected in
acting or refraining from acting in reliance on any resolution,
certificate of the Depositor or the Underlying Indenture Trustee,
certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order,
appraisal, note or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) The Grantor Trustee may consult with counsel and any
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection with respect to any action taken
or suffered or omitted by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel;
(c) The Grantor Trustee shall not be under any obligation to
exercise any of the trusts or powers vested in it by this Agreement,
other than its obligation to give notices, make payments, register
transfers and deliver reports and statements pursuant to this
Agreement, or to institute, conduct or defend any litigation hereunder
or in relation hereto at the request, order or direction of any of the
Certificateholders pursuant to the provisions of this Agreement, unless
such Certificateholders shall have offered to the Grantor Trustee
security or indemnity satisfactory to the Grantor Trustee against the
costs, expenses and liabilities which may be incurred therein or
thereby;
(d) The Grantor Trustee shall not be liable in its individual
capacity for any action taken, suffered or omitted by it in good faith
and believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Agreement;
(e) The Grantor Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
consent, order, approval, note or other paper or document, unless
requested in writing to do so by the Majority Certificateholders and
provided that the payment within a reasonable time to the Grantor
Trustee of the costs, expenses or liabilities likely to be incurred by
it in the making of such investigation is, in the opinion of the
Grantor Trustee, reasonably assured to the Grantor Trustee. The Grantor
Trustee may require indemnity satisfactory to the Grantor Trustee
against such expense or liability as a condition to taking any such
action. The expense of every such examination shall be paid by the
Certificateholders requesting the investigation; PROVIDED, HOWEVER,
that no investigation shall be made without the consent of the Holders
of Certificates evidencing Fractional Undivided Interests aggregating
not less than a majority of the Class [___] Certificates;
(f) The Grantor Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or
through Affiliates, agents or attorneys. The Grantor Trustee shall not
be liable or responsible for the misconduct or negligence of any of the
Grantor Trustee's agents or attorneys or a custodian or paying agent
appointed hereunder by the Grantor Trustee with due care;
(g) Should the Grantor Trustee deem the nature of any action
required on its part, other than a payment or transfer under subsection
3.02 or 5.01, to be unclear, the
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Grantor Trustee may require prior to such action that it be provided by
the Depositor with reasonable further instructions;
(h) The right of the Grantor Trustee to perform any
discretionary act enumerated in this Agreement shall not be construed
as a duty, and the Grantor Trustee shall not be accountable for other
than its negligence or willful misconduct in the performance of any
such act; and
(i) The Grantor Trustee shall not be required to give any bond
or surety with respect to the execution of the trust created hereby or
the powers granted hereunder, except as provided in Section 7.07.
Section 7.03 Grantor Trustee Not Liable for Certificates or Student
Loans. The recitals contained herein and in the Certificates (other than the
signature and countersignature of the Grantor Trustee on the Certificates) shall
be taken as the statements of the Depositor, and the Grantor Trustee shall not
have any responsibility for their correctness. The Grantor Trustee does not make
any representation as to the validity or sufficiency of the Certificates (other
than the signature and countersignature of the Grantor Trustee on the
Certificates). The Grantor Trustee's signature and countersignature (or
countersignature of its agent) on the Certificates shall be solely in its
capacity as Grantor Trustee and shall not constitute the Certificates an
obligation of the Grantor Trustee in any other capacity. The Grantor Trustee
shall not be accountable for the use or application by the Depositor of any of
the Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to the Depositor with respect to the Underlying
Notes. The Grantor Trustee shall not be responsible for the legality or validity
of this Agreement or any document or instrument relating to this Agreement, the
validity of the execution of this Agreement or of any supplement hereto or
instrument of further assurance, or the validity, priority, perfection or
sufficiency of the security for the Certificates issued hereunder or intended to
be issued hereunder. The Grantor Trustee shall not at any time have any
responsibility or liability for or with respect to the legality, validity and
enforceability of any Student Loan, or for or with respect to the sufficiency of
the Trust or its ability to generate the payments to be distributed to
Certificateholders, under this Agreement. The Grantor Trustee shall not have any
responsibility for filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the perfection of any
security interest or lien granted to it hereunder or to record this Agreement.
Section 7.04 Grantor Trustee May Own Certificates. The Grantor Trustee
in its individual capacity or in any capacity other than as Grantor Trustee
hereunder may become the owner or pledgee of any Certificates with the same
rights it would have if it were not Grantor Trustee, and may otherwise deal with
the parties hereto.
Section 7.05 Grantor Trustee's Fees and Expenses. The fees of the
Grantor Trustee shall be paid in accordance with the provisions of a separate
fee letter agreement entered into between the Grantor Trustee and the Depositor.
In addition, the Grantor Trustee will be entitled to recover from the Depositor
all reasonable out-of-pocket expenses, disbursements and advances of the Grantor
Trustee in connection with any breach of this Agreement or any claim or legal
action (including any pending or threatened claim or legal action) incurred or
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made by the Grantor Trustee in the administration of the trusts hereunder
(including the reasonable compensation, expenses and disbursements of its
counsel) except any such expense, disbursement or advance as may arise from its
negligence or willful misconduct or which is the responsibility of the
Certificateholders. Such compensation and reimbursement obligation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust.
Section 7.06 Eligibility Requirements for Grantor Trustee. The Grantor
Trustee and any successor Grantor Trustee shall during the entire duration of
this Agreement be a state bank or trust company or a national banking
association organized and doing business under the laws of such state or the
United States of America, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus and undivided profits of at least
$40,000,000 or, in the case of a successor Grantor Trustee, $50,000,000, subject
to supervision or examination by federal or state authority and rated "BBB" or
higher by Standard & Poor's and "Baa2" or higher by Moody's with respect to any
outstanding long-term unsecured unsubordinated debt, and, in the case of a
successor Grantor Trustee other than pursuant to Section 7.10, rated in one of
the two highest long-term debt categories of, or otherwise acceptable to, each
of the Rating Agencies. If the Grantor Trustee publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section 7.06
the combined capital and surplus of such corporation shall be deemed to be its
total equity capital (combined capital and surplus) as set forth in its most
recent report of condition so published. In case at any time the Grantor Trustee
shall cease to be eligible in accordance with the provisions of this Section
7.06, the Grantor Trustee shall resign immediately in the manner and with the
effect specified in Section 7.08.
Section 7.07 Insurance. The Grantor Trustee, at its own expense, shall
at all times maintain and keep in full force and effect: (a) fidelity insurance,
(b) theft of documents insurance and (c) forgery insurance (which may be
collectively satisfied by a "Financial Institution Bond" and/or a "Bankers'
Blanket Bond"). All such insurance shall be in amounts, with standard coverage
and subject to deductibles, as are customary for insurance typically maintained
by banks or their affiliates which act as custodians for investor-owned mortgage
pools. A certificate of an officer of the Grantor Trustee as to the Grantor
Trustee's compliance with this Section 7.07 shall be furnished to any
Certificateholder upon reasonable written request.
Section 7.08 Resignation and Removal of the Grantor Trustee.
(a) The Grantor Trustee may at any time resign and be discharged from
the Trust hereby created by giving written notice thereof to the Depositor, with
a copy to the Rating Agencies. Upon receiving such notice of resignation, the
Depositor shall promptly appoint a successor Grantor Trustee by written
instrument, in triplicate, one copy of which instrument shall be delivered to
each of the resigning Grantor Trustee and the successor Grantor Trustee. If no
successor Grantor Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation, the
resigning Grantor Trustee may petition any court of competent jurisdiction for
the appointment of a successor Grantor Trustee. The Grantor Trustee may not
resign from the Trust created hereby without also resigning as Underlying
Indenture Trustee under the Underlying Indenture.
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(b) If at any time the Grantor Trustee shall cease to be eligible in
accordance with the provisions of Section 7.06 and shall fail to resign after
written request therefor by the Depositor or if at any time the Grantor Trustee
shall become incapable of acting, or shall be adjudged a bankrupt or insolvent,
or a receiver of the Grantor Trustee or of its property shall be appointed, or
any public officer shall take charge or control of the Grantor Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Depositor shall promptly remove the Grantor Trustee and
appoint a successor Grantor Trustee by written instrument, in triplicate, one
copy of which instrument shall be delivered to the Grantor Trustee so removed
and the successor Grantor Trustee.
(c) The Majority Certificateholders may at any time remove the Grantor
Trustee and appoint a successor Grantor Trustee by written instrument or
instruments, in quadruplicate, signed by such Holders or their attorneys-in-fact
duly authorized, one complete set of which instruments shall be delivered to the
Depositor and the Grantor Trustee so removed and the successor so appointed;
PROVIDED, HOWEVER, that no removal or appointment shall occur without the
consent of the Holders of Certificates evidencing Fractional Undivided Interests
aggregating not less than a majority of the Class [___] Certificates.
(d) No resignation or removal of the Grantor Trustee and appointment of
a successor Grantor Trustee pursuant to any of the provisions of this Section
7.08 shall become effective except upon appointment of and acceptance of such
appointment by the successor Grantor Trustee as provided in Section 7.09.
Section 7.09 Successor Grantor Trustee.
(a) Any successor Grantor Trustee appointed as provided in Section 7.08
shall execute, acknowledge and deliver to the Depositor and to its predecessor
Grantor Trustee an instrument accepting such appointment hereunder. The
resignation or removal of the predecessor Grantor Trustee shall then become
effective and such successor Grantor Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with like effect as if originally
named as Grantor Trustee herein. The predecessor Grantor Trustee shall after
payment of its outstanding fees and expenses promptly deliver to the successor
Grantor Trustee all assets and records of each Trust held by it hereunder, and
the Depositor and the predecessor Grantor Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for more
fully and certainly vesting and confirming in the successor Grantor Trustee all
such rights, powers, duties and obligations.
(b) No successor Grantor Trustee shall accept appointment as provided
in this Section 7.09 unless at the time of such acceptance such successor
Grantor Trustee shall be eligible under the provisions of Section 7.06.
(c) Upon acceptance of appointment by a successor Grantor Trustee as
provided in this Section 7.09, the successor Grantor Trustee shall mail notice
of the succession of such Grantor Trustee hereunder to all Certificateholders at
their addresses as shown in the Certificate Register and to the Rating Agencies.
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Section 7.10 Merger or Consolidation of Grantor Trustee. Any state bank
or trust company or national banking association into which the Grantor Trustee
may be merged or converted or with which it may be consolidated or any state
bank or trust company or national banking association resulting from any merger,
conversion or consolidation to which the Grantor Trustee shall be a party, or
any state bank or trust company or national banking association succeeding to
all or substantially all of the corporate trust business of the Grantor Trustee
shall be the successor of the Grantor Trustee hereunder, provided such state
bank or trust company or national banking association shall be eligible under
the provisions of Section 7.06. Such succession shall be valid without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
Section 7.11 Appointment of Co-Grantor Trustee or Separate Grantor
Trustee.
(a) Notwithstanding any other provisions hereof, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust or property constituting the same may at the time be located, the
Depositor and the Grantor Trustee acting jointly shall have the power and shall
execute and deliver all instruments to appoint one or more Persons at the
expense of the Depositor approved by the Grantor Trustee and the Depositor to
act as co-trustee or co-trustees, jointly with the Grantor Trustee, or separate
trustee or separate trustees, of all or any part of the Trust, and to vest in
such Person or Persons, in such capacity, such title to the Trust, or any part
thereof, and, subject to the other provisions of this Section 7.11, such powers,
duties, obligations, rights and trusts as the Depositor and the Grantor Trustee
may consider necessary or desirable.
(b) If the Depositor shall not have joined in such appointment within
15 days after the receipt by it of a written request so to do, the Grantor
Trustee shall have the power to make such appointment without the Depositor at
the expense of the Depositor.
(c) No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor Grantor Trustee under Section 7.06
hereunder and no notice to Certificateholders of the appointment of
co-trustee(s) or separate trustee(s) shall be required under Section 7.08
hereof.
(d) In the case of any appointment of a co-trustee or separate trustee
pursuant to this Section 7.11, all rights, powers, duties and obligations
conferred or imposed upon the Grantor Trustee and required to be conferred on
such co-trustee shall be conferred or imposed upon and exercised or performed by
the Grantor Trustee and such separate trustee or co-trustee jointly, except to
the extent that under any law of any jurisdiction in which any particular act or
acts are to be performed, the Grantor Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the Trust or any
portion thereof in any such jurisdiction) shall be exercised and performed by
such separate trustee or co-trustee at the direction of the Grantor Trustee.
(e) Any notice, request or other writing given to the Grantor Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this
22
Agreement and the conditions of this Article VII. 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 Grantor Trustee or separately, as may be provided therein,
subject to all the provisions of this Agreement, specifically including every
provision of this Agreement relating to the conduct of, affecting the liability
of, or affording protection to, the Grantor Trustee. Every such instrument shall
be filed with the Grantor Trustee.
(f) To the extent not prohibited by law, any separate trustee or
co-trustee may, at any time, request the Grantor Trustee, its agent or
attorney-in-fact, with full power and authority, to do any lawful act under or
with respect to 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, property rights, remedies and trusts shall vest in
and be exercised by the Grantor Trustee, to the extent permitted by law, without
the appointment of a new or successor Grantor Trustee.
(g) No trustee under this Agreement shall be liable by reason of any
act or omission of another trustee under this Agreement. The Depositor and the
Grantor Trustee acting jointly may at any time accept the resignation of or
remove any separate trustee or co-trustee.
Section 7.12 Federal Information Returns and Reports to
Certificateholders; Grantor Trust Administration.
(a) The Grantor Trustee covenants and agrees that it shall perform its
obligations hereunder in a manner so as to maintain the status of the Trust as a
grantor trust under subpart E, part I of subchapter J of chapter 1 of the Code
and not as an association taxable as a corporation, as a taxable mortgage pool,
or as a partnership and to prevent the imposition of any federal, state or local
income or other tax on the Trust.
(b) The Depositor shall furnish or cause to be furnished to holders of
Certificates and shall file or cause to be filed with the Internal Revenue
Service, together with Form 1041 or such other form as may be applicable, such
information with respect to the income and deductions of the Trust at the time
or times and in the manner required by the Code, including such other customary
factual information as is available to the Depositor to enable
Certificateholders to prepare their tax returns, including information required
with respect to computing the accrual of original issue and market discount.
(c) Notwithstanding any other provisions of this Agreement, the Grantor
Trustee shall comply with all federal withholding requirements with respect to
payments to Certificateholders. The consent of Certificateholders shall not be
required for any such withholding. In the event the Grantor Trustee withholds
any amount from any Certificateholder pursuant to federal withholdings
requirements, the Grantor Trustee shall indicate to such Certificateholder the
amount so withheld.
23
ARTICLE VIII
TERMINATION
Section 8.01 Termination.
(a) The respective obligations and responsibilities of the Depositor
and the Grantor Trustee created hereby with respect to the Trust, other than the
obligation of the Grantor Trustee to make payments to the Certificateholders as
hereinafter set forth, shall terminate upon the later of the making of the final
payment or other liquidation, or any advance with respect thereto, of the last
Underlying Note remaining in the Trust; provided that the Trust shall not be
terminated until the Current Principal Amount of each of the Class [___]
Certificates and the Current Notional Amount of each of the Class [__]-IO
Certificates has been reduced to zero.
(b) In no event, however, shall the Trust created hereby continue
beyond the expiration of 21 years from the death of the last survivor of the
descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of the United States to
the Court of St. James's, living on the date of this Agreement.
(c) The Grantor Trustee shall give notice of any termination of the
Grantor Trust to the Certificateholders, with a copy to the Rating Agencies,
upon which the Certificateholders shall surrender their Certificates to the
Grantor Trustee for payment of the final payment and cancellation. Such notice
shall be given by letter, mailed not earlier than the 15th day and not later
than the 25th day of the month next preceding the month of such final payment,
and shall specify (i) the Distribution Date upon which final payment of the
Certificates will be made upon presentation and surrender of the Certificates at
the office of the Grantor Trustee therein designated, (ii) the amount of any
such final payment and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Certificates at the office of the Grantor Trustee therein
specified.
(d) Upon the presentation and surrender of the Certificates, the
Grantor Trustee shall distribute to the remaining Certificateholders, in
accordance with their respective interests, all distributable amounts remaining
in the Payment Account in accordance with Section 5.02.
(e) If not all of the Certificateholders shall surrender their
Certificates for cancellation within six months after the time specified in the
above-mentioned written notice, the Grantor Trustee shall give a second written
notice to the remaining Certificateholders to surrender their Certificates for
cancellation and receive the final payment with respect thereto. If within six
months after the second notice, not all the Certificates shall have been
surrendered for cancellation, the Grantor Trustee may take appropriate steps, or
appoint any agent to take appropriate steps, to contact the remaining
Certificateholders concerning surrender of their Certificates, and the cost
thereof shall be paid out of the funds and other assets which remain subject to
this Agreement.
24
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01 Intent of Parties. The parties intend that the Trust shall
be treated as a grantor trust for federal income tax purposes and that the
provisions of this Agreement should be construed in furtherance of this intent.
Section 9.02 Action Under Underlying Documents. In the event that there
are any matters arising under the Underlying Operative Documents related to the
Underlying Notes which require the vote or direction of holders of the
Underlying Notes thereunder, the Grantor Trustee, as holder of each Underlying
Note will vote such Underlying Note in accordance with the written instructions
received from holders of the Certificates as follows: Voting the Class [___]
Note that is part of the Underlying Notes shall be directed by the Holders of
Certificates evidencing Fractional Undivided Interests aggregating not less than
a majority of the Class [___] Certificates. Voting the Class [__]-IO Note that
is part of the Underlying Notes shall be directed by the Holders of Certificates
evidencing Fractional Undivided Interests aggregating not less than a majority
of the Class [__]-IO Certificates. In the absence of any such instructions, the
Grantor Trustee will not vote the Underlying Note.
The Grantor Trustee will forward to each Certificateholder copies of
any communications received regarding matters arising that require action by
holders of the Underlying Notes.
Section 9.03 Amendment.
(a) This Agreement may be amended from time to time by the Depositor
and the Grantor Trustee with the consent of the Majority Certificateholders;
PROVIDED, HOWEVER, that no such amendment shall (i) reduce in any manner the
amount of, or delay the timing of, payments required to be distributed on any
Certificate without the consent of the Holder of such Certificate, (ii) reduce
the aforesaid percentage of Certificates the Holders of which are required to
consent to any such amendment, without the consent of the Holders of all
Certificates then outstanding, (iii) have a material adverse effect on a class
of Certificates without the consent of the Holders of Certificates evidencing
Fractional Undivided Interests aggregating not less than a majority of the class
so affected or (iv) result in the imposition of a tax on the Trust or cause the
Trust to fail to be classified as a grantor trust under subpart E, part I of
subchapter J of chapter 1 of the Code, as evidenced by an Opinion of Independent
Counsel which shall be provided to the Grantor Trustee other than at the Grantor
Trustee's expense; and PROVIDED FURTHER, HOWEVER, that so long as the Class
[___] Current Principal Balance has not been reduced to zero, the Agreement may
not be amended without the consent of the Holders of Certificates evidencing
Fractional Undivided Interests aggregating not less than a majority of the Class
[___] Certificates. Notwithstanding any other provision of this Agreement, for
purposes of the giving or withholding of consents pursuant to this Section
9.03(a), Certificates registered in the name of or held for the benefit of the
Depositor or the Grantor Trustee or any Affiliate thereof shall be entitled to
vote their Fractional Undivided Interests with respect to matters affecting such
Certificates.
25
(b) Promptly after the execution of any such amendment, the Grantor
Trustee shall furnish a copy of such amendment or written notification of the
substance of such amendment to each Certificateholder, with a copy to the Rating
Agencies.
(c) In the case of an amendment under Section 9.03(a) above, it shall
not be necessary for the Certificateholders to approve the particular form of
such an amendment. Rather, it shall be sufficient if the Certificateholders
approve the substance of the amendment. The manner of obtaining such consents
and of evidencing the authorization of the execution thereof by
Certificateholders shall be subject to such reasonable regulations as the
Grantor Trustee may prescribe.
(d) Prior to the execution of any amendment to this Agreement, the
Grantor Trustee shall be entitled to receive and rely upon an Opinion of Counsel
stating that the execution of such amendment is authorized or permitted by this
Agreement. The Grantor Trustee may, but shall not be obligated to, enter into
any such amendment which affects the Grantor Trustee's rights, duties or
immunities under this Agreement.
Section 9.04 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
terminate this Agreement or the Trust, nor 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 the Trust, nor
otherwise affect the rights, obligations and liabilities of the parties hereto
or any of them.
(b) Except as expressly provided in this Agreement, no
Certificateholders shall have any right to vote or in any manner otherwise
control the operation and management of the Trust, or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Certificates, be construed so as to establish the Certificateholders from
time to time as partners or members of an association; nor shall any
Certificateholders be under any liability to any third Person by reason of any
action taken by the parties to this Agreement pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of any
provision of this Agreement to institute any suit, action or proceeding in
equity or at law upon, under or with respect to this Agreement against the
Depositor or any successor to any such parties unless (i) such Certificateholder
previously shall have given to the Grantor Trustee a written notice of a
continuing default, as herein provided, (ii) the Majority Certificateholders
shall have made written request upon the Grantor Trustee to institute such
action, suit or proceeding in its own name as Grantor Trustee hereunder and
shall have offered to the Grantor Trustee such indemnity satisfactory to the
Grantor Trustee against the costs and expenses and liabilities to be incurred
therein or thereby, and (iii) the Grantor Trustee, for 60 days after its receipt
of such notice, request and offer of indemnity, shall have neglected or refused
to institute any such action, suit or proceeding.
(d) Except to the extent expressly provided by this Agreement, no one
or more Certificateholders shall have any right by virtue of any provision of
this Agreement to affect the
26
rights of any other Certificateholders or to obtain or seek to obtain priority
or preference over any other such Certificateholder, or to enforce any right
under this Agreement, except in the manner herein provided and for the equal,
ratable and common benefit of all Certificateholders. For the protection and
enforcement of the provisions of this Section 9.04, each and every
Certificateholder and the Grantor Trustee shall be entitled to such relief as
can be given either at law or in equity.
Section 9.05 Acts of Certificateholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Agreement to be given or taken by
Certificateholders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Certificateholders in person or by
an agent duly appointed in writing. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Grantor Trustee and, where it is expressly required, to the
Depositor. Proof of execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Agreement and
conclusive in favor of the Grantor Trustee and the Depositor, if made in the
manner provided in this Section 9.05.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his or her individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his or her authority. The fact and date of the execution of any such
instrument or writing, or the authority of the individual executing the same,
may also be proved in any other manner which the Grantor Trustee deems
sufficient.
(c) The ownership of Certificates (notwithstanding any notation of
ownership or other writing on such Certificates, except an endorsement in
accordance with Section 4.02 made on a Certificate presented in accordance with
Section 4.02) shall be proved by the Certificate Register, and neither the
Grantor Trustee, the Depositor nor any successor to any such parties shall be
affected by any notice to the contrary.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other action of the holder of any Certificate shall bind every future
holder of the same Certificate and the holder of every Certificate issued upon
the registration of transfer or exchange thereof, if applicable, or in lieu
thereof with respect to anything done, omitted or suffered to be done by the
Grantor Trustee, the Depositor or any successor to any such party in reliance
thereon, whether or not notation of such action is made upon such Certificates.
(e) In determining whether the Holders of the requisite percentage of
Certificates evidencing Fractional Undivided Interests have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Certificates owned by the Grantor Trustee, the Depositor or any Affiliate
thereof shall be disregarded, except as otherwise provided in Section 9.03(a)
and except that, in determining whether the Grantor Trustee shall be protected
in relying
27
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Certificates which the Grantor Trustee knows to be so owned shall
be so disregarded. Certificates which have been pledged in good faith to the
Grantor Trustee, the Depositor or any Affiliate thereof may be regarded as
outstanding if the pledgor establishes to the satisfaction of the Grantor
Trustee the pledgor's right to act with respect to such Certificates and that
the pledgor is not an Affiliate of the Grantor Trustee or the Depositor, as the
case may be.
Section 9.06 GOVERNING LAW. THIS AGREEMENT AND THE CERTIFICATES SHALL
BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO ITS CONFLICT OF LAWS RULES AND THE OBLIGATIONS, RIGHTS AND REMEDIES
OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 9.07 Notices. All demands and notices hereunder shall be in
writing and shall be deemed given when delivered at (including delivery by
facsimile) or mailed by registered mail, return receipt requested, postage
prepaid, or by recognized overnight courier, to (i) in the case of the
Depositor, The National Collegiate Funding LLC, The Prudential Tower, ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Controller, with
a copy to First Marblehead Corporation, The Prudential Tower, ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: [___________], or to such
other address as may hereafter be furnished to the other parties hereto in
writing; (ii) in the case of the Grantor Trustee, at its Corporate Trust Office,
or such other address as may hereafter be furnished to the other parties hereto
in writing; or (iii) in the case of the Rating Agencies, ▇▇▇▇▇'▇ Investors
Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; Fitch,
Inc. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇; and Standard & Poor's, a
division of the ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇. Any notice delivered to the Depositor or the Grantor
Trustee under this Agreement shall be effective only upon receipt. Any notice
required or permitted to be mailed to a Certificateholder, unless otherwise
provided herein, shall be given by first-class mail, postage prepaid, at the
address of such Certificateholder as shown in the Certificate Register. Any
notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given when mailed, whether or not the
Certificateholder receives such notice.
Section 9.08 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 severed 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 the Certificates
or the rights of the holders thereof.
Section 9.09 Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the respective successors and
assigns of the parties hereto.
Section 9.10 Article and Section Headings. The article and section
headings herein are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof.
28
Section 9.11 Counterparts. This Agreement may be executed in two or
more counterparts each of which when so executed and delivered shall be an
original but all of which together shall constitute one and the same instrument.
Section 9.12 Notice to Rating Agencies. The article and section
headings herein are for convenience of reference only, and shall not limited or
otherwise affect the meaning hereof. The Grantor Trustee shall promptly provide
notice to each Rating Agency with respect to each of the following of which it
has actual knowledge:
(a) Any material change or amendment to this Agreement or any of the
Certificates;
(b) The resignation or termination of the Grantor Trustee under this
Agreement;
(c) The final payment to Certificateholders; and
(d) Any change in the location of the Payment Account.
29
IN WITNESS WHEREOF, the Depositor and the Grantor Trustee have caused
their names to be signed hereto by their respective officers thereunto duly
authorized as of the day and year first above written.
The National Collegiate Funding LLC,
as Depositor
By: GATE Holdings, Inc., Member
By:
----------------------------------
Name:
Title:
[----------------------------------],
not in its individual capacity
but solely as Grantor Trustee,
By:
----------------------------------
Name:
Title:
EXHIBIT A-1
FORM OF CLASS [___] CERTIFICATE
THE CURRENT PRINCIPAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED BY
THE PRINCIPAL PAYMENTS HERETO AND REALIZED LOSSES ALLOCABLE HERETO. ACCORDINGLY,
FOLLOWING THE INITIAL ISSUANCE OF THE CERTIFICATES, THE CURRENT PRINCIPAL AMOUNT
OF THIS CERTIFICATE WILL BE DIFFERENT FROM THE DENOMINATION SHOWN BELOW. ANYONE
ACQUIRING THIS CERTIFICATE MAY ASCERTAIN ITS CURRENT PRINCIPAL AMOUNT BY INQUIRY
OF THE GRANTOR TRUSTEE NAMED HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON
BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), AND/OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), UNLESS THE PROPOSED TRANSFEREE IS DEEMED TO MAKE THE
REPRESENTATION IN SECTION 4.05 OF THE AGREEMENT OR UNLESS THE PROPOSED
TRANSFEREE PROVIDES THE DEPOSITOR AND THE GRANTOR TRUSTEE WITH AN OPINION OF
COUNSEL SATISFACTORY TO THOSE ENTITIES, WHICH OPINION WILL NOT BE AT THE EXPENSE
OF THOSE ENTITIES, THAT THE PURCHASE OF THE CERTIFICATES BY OR ON BEHALF OF THE
PLAN INVESTOR IS PERMITTED UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT
IN ANY NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE
AND WILL NOT SUBJECT THE DEPOSITOR OR THE GRANTOR TRUSTEE TO ANY OBLIGATION IN
ADDITION TO THOSE UNDERTAKEN IN THE GRANTOR TRUST AGREEMENT.
A-1
LIBOR + [___]% Certificate Interest Rate
Date of Grantor Trust Aggregate Initial Current Principal
Agreement: [___________] Amount of this Certificate as of the
Cut-off Date: $[___________]
Cut-off Date: [___________]
First Distribution Date: Initial Current Principal Amount of this
[___________] Certificate as of the Cut-off Date:
$[-----------]
Assumed Final Distribution Date: CUSIP: [___________]
[-----------]
NCF GRANTOR TRUST [_______]
CLASS [___] CERTIFICATE
GRANTOR TRUST CERTIFICATES, SERIES [________]
evidencing a fractional undivided interest in the payments
allocable to the Class [___] Certificates with respect to the
Trust consisting primarily of the Underlying Notes deposited
by The National Collegiate Funding LLC, as depositor
This Certificate is payable solely from the assets of the Trust and
does not represent an obligation of or interest in The National Collegiate
Funding LLC or the Grantor Trustee referred to below or any of their Affiliates
or any other person. Neither this Certificate nor the Underlying Notes are
guaranteed or insured by any governmental entity or by The National Collegiate
Funding LLC, the Grantor Trustee or any of its Affiliates or any other person.
This certifies that Cede & Co. is the registered owner of the
Fractional Undivided Interest evidenced hereby in the beneficial ownership
interest of Certificates of the same Class as this Certificate in a trust (the
"Trust") consisting primarily of notes (collectively, the "Underlying Notes")
deposited by The National Collegiate Funding LLC. The Trust was created pursuant
to the Grantor Trust Agreement dated as of the Cut-off Date specified above (the
"Agreement"), between The National Collegiate Funding LLC, as seller (the
"Depositor"), and [___________________], as grantor trustee (the "Grantor
Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
shall have the meaning ascribed to them in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
A-2
With respect to each Distribution Date and the Class [___]
Certificates, interest shall be calculated, on the basis of a 360-day year and
the actual number of days in the Interest Accrual Period, based upon One Month
LIBOR as determined on the second Business Day prior to the commencement of such
Interest Accrual Period plus [___]%, as adjusted in a manner and at the times
that the interest rate for the Class [___] Notes is determined pursuant to the
Underlying Indenture, based upon the Current Principal Amount of the Class [___]
Certificates applicable to such Distribution Date (before giving effect to any
payments on the Certificates on such date). The Grantor Trustee will distribute
on each Distribution Date commencing on the First Distribution Date specified
above, to the Person in whose name this Certificate is registered at the close
of business on the last Business Day (or if such last day is not a Business Day,
the Business Day immediately preceding such last day) of the calendar month
preceding the month of such Distribution Date, an amount equal to the product of
the Fractional Undivided Interest evidenced by this Certificate and the amount
(of interest and principal, if any) required to be distributed to the Holders of
Certificates of the same Class as this Certificate. The Assumed Final
Distribution Date is the Distribution Date immediately following the latest
scheduled maturity date of the Class [___] Notes that are part of the Underlying
Notes.
Payments on this Certificate will be made by the Grantor Trustee by
check mailed to the address of the Person entitled thereto as such name and
address shall appear on the Certificate Register or, if such Person so requests
by notifying the Grantor Trustee in writing as specified in the Agreement, by
wire transfer. Notwithstanding the above, the final payment on this Certificate
will be made after due notice by the Grantor Trustee of the pendency of such
payment and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Grantor Trustee for that purpose and
designated in such notice. The Initial Current Principal Amount of this
Certificate is set forth above. The Current Principal Amount hereof will be
reduced to the extent of payments allocable to principal hereon.
This Certificate is one of a duly authorized issue of the Class [___]
Certificates designated as set forth on the face hereof issued in one Class. The
Class [___] Certificates are one of two classes of Certificates that together
constitute the GRANTOR TRUST CERTIFICATES, SERIES [________] (the
"Certificates") issued by the NCF Grantor Trust [_______]. The Certificates, in
the aggregate, evidence the entire beneficial ownership interest in the Trust
formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the Trust for payment hereunder and that the Grantor
Trustee is not liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Grantor Trustee.
The Agreement permits the amendment thereof from time to time by the
Depositor and the Grantor Trustee with the consent of the Majority
Certificateholders; PROVIDED, HOWEVER, that no such amendment shall (i) reduce
in any manner the amount of, or delay the timing of, payments required to be
distributed on any Certificate without the consent of the Holder of such
A-3
Certificate, (ii) reduce the aforesaid percentage of Certificates the Holders of
which are required to consent to any such amendment, without the consent of the
Holders of all Certificates then outstanding, (iii) have a material adverse
effect on a class of Certificates without the consent of the Holders of
Certificates evidencing Fractional Undivided Interests aggregating not less than
a majority of the class so affected or (iv) result in the imposition of a tax on
the Trust or cause the Trust to fail to be classified as a grantor trust under
subpart E, part I of subchapter J of chapter 1 of the Code, as evidenced by an
Opinion of Independent Counsel which shall be provided to the Grantor Trustee
other than at the Grantor Trustee's expense; and PROVIDED FURTHER, HOWEVER, that
so long as the Class [___] Current Principal Balance has not been reduced to
zero, the Agreement may not be amended without the consent of the Holders of
Certificates evidencing Fractional Undivided Interests aggregating not less than
a majority of the Class [___] Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable with the Grantor
Trustee upon surrender of this Certificate for registration of transfer at the
offices or agencies maintained by the Grantor Trustee for such purposes, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Grantor Trustee duly executed by the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates in authorized denominations representing a like tenor, class and
original principal, but bearing a different number, will be issued to the
designated transferee. The Certificates are issuable only as registered
Certificates without coupons in the Classes and denominations specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, this Certificate is exchangeable for one or more new
Certificates evidencing the same Class and in the same aggregate initial
principal amount, as requested by the Holder surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Grantor Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Grantor Trustee and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of Depositor, the Grantor Trustee or any such
agent shall be affected by notice to the contrary. The obligations created by
the Agreement and the Trust created thereby (other than the obligations to make
payments to Certificateholders with respect to the termination of the Agreement)
shall terminate upon the last payment made with respect to the Underlying Notes.
In no event, however, will the Trust created by the Agreement continue beyond
the expiration of 21 years after the death of certain persons identified in the
Agreement.
Unless this Certificate has been countersigned by an authorized
signatory of the Grantor Trustee by manual signature, this Certificate shall not
be entitled to any benefit under the Agreement, or be valid for any purpose.
A-4
IN WITNESS WHEREOF, the Grantor Trustee has caused this Certificate to
be duly executed.
Dated: [___________] [___________________],
not in its individual capacity
but solely as Grantor Trustee
By:
---------------------------------
Name:
Title:
A-5
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
[-------------------],
as Authenticating Agent
By:
-----------------------
Name:
Title:
A-6
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ____________________________________ (please print or typewrite
name and address including postal zip code of assignee) a Fractional Undivided
Interest evidenced by the attached Trust Certificate and hereby authorizes the
transfer of registration of such interest to assignee on the Certificate
Register of Trust.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated: ______________________________________
Signature by or on behalf of assignor
______________________________________
Signature Guaranteed
PAYMENT INSTRUCTIONS
The assignee should include the following for purposes of payment:
Payments shall be made, by wire transfer or otherwise, in immediately available
funds to _________________________________________________________________ for
the account of _______________________________ account number __________, or, if
mailed by check, to _________________________________________. Applicable
statements should be mailed to ________________________________________________.
This information is provided by _______________________________________, the
assignee named above, or ____________________________, as its agent.
▇-▇
▇▇▇▇▇▇▇ ▇-▇
FORM OF CLASS [__]-IO CERTIFICATE
THE CURRENT NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE DECREASED AS
THE PRINCIPAL AMOUNT ON THE CLASS [___] UNDERLYING NOTES IS DECREASED; PROVIDED
HOWEVER AFTER THE DISTRIBUTION DATE OCCURRING IN [___________], SUCH NOTIONAL
AMOUNT SHALL EQUAL ZERO. ACCORDINGLY, FOLLOWING THE INITIAL ISSUANCE OF THE
CERTIFICATES, THE CURRENT NOTIONAL AMOUNT OF THIS CERTIFICATE WILL BE DIFFERENT
FROM THE DENOMINATION SHOWN BELOW. ANYONE ACQUIRING THIS CERTIFICATE MAY
ASCERTAIN ITS CURRENT NOTIONAL AMOUNT BY INQUIRY OF THE GRANTOR TRUSTEE NAMED
HEREIN.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
THIS CERTIFICATE MAY NOT BE ACQUIRED DIRECTLY OR INDIRECTLY BY, OR ON
BEHALF OF, AN EMPLOYEE BENEFIT PLAN OR OTHER RETIREMENT ARRANGEMENT WHICH IS
SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS
AMENDED ("ERISA"), AND/OR SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE"), UNLESS THE PROPOSED TRANSFEREE IS DEEMED TO MAKE THE
REPRESENTATION IN SECTION 4.05 OF THE AGREEMENT OR UNLESS THE PROPOSED
TRANSFEREE PROVIDES THE DEPOSITOR AND THE GRANTOR TRUSTEE WITH AN OPINION OF
COUNSEL SATISFACTORY TO THOSE ENTITIES, WHICH OPINION WILL NOT BE AT THE EXPENSE
OF THOSE ENTITIES, THAT THE PURCHASE OF THE CERTIFICATES BY OR ON BEHALF OF THE
PLAN INVESTOR IS PERMITTED UNDER APPLICABLE LAW, WILL NOT CONSTITUTE OR RESULT
IN ANY NON-EXEMPT PROHIBITED TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE
AND WILL NOT SUBJECT THE DEPOSITOR OR THE GRANTOR TRUSTEE TO ANY OBLIGATION IN
ADDITION TO THOSE UNDERTAKEN IN THE GRANTOR TRUST AGREEMENT.
A-8
[____]% Certificate Interest Rate
Date of Grantor Trust Aggregate Initial Current Notional
Agreement: [____________] Amount of this Certificate as of the
Cut-off Date: $[____________]
Cut-off Date: [____________]
First Distribution Date: Initial Current Notional Amount of this
[____________] Certificate as of the Cut-off Date:
$[------------]
Assumed Final Distribution Date: CUSIP: [____________]
[------------]
NCF GRANTOR TRUST [______]
CLASS [__]-IO CERTIFICATE
GRANTOR TRUST CERTIFICATES, SERIES [_______]
evidencing a fractional undivided interest in the payments
allocable to the Class [__]-IO Certificates with respect to
the Trust consisting primarily of the Underlying Notes
deposited by The National Collegiate Funding LLC, as depositor
This Certificate is payable solely from the assets of the Trust and
does not represent an obligation of or interest in The National Collegiate
Funding LLC or the Grantor Trustee referred to below or any of their Affiliates
or any other person. Neither this Certificate nor the Underlying Notes are
guaranteed or insured by any governmental entity or by The National Collegiate
Funding LLC, the Grantor Trustee or any of its Affiliates or any other person.
This certifies that Cede & Co. is the registered owner of the
Fractional Undivided Interest evidenced hereby in the beneficial ownership
interest of Certificates of the same Class as this Certificate in a trust (the
"Trust") consisting primarily of notes (collectively, the "Underlying Notes")
deposited by The National Collegiate Funding LLC. The Trust was created pursuant
to the Grantor Trust Agreement dated as of the Cut-off Date specified above (the
"Agreement"), between The National Collegiate Funding LLC, as seller (the
"Depositor"), and [_________________], as grantor trustee (the "Grantor
Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereafter. To the extent not defined herein, capitalized terms used herein
shall have the meaning ascribed to them in the Agreement. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Agreement, to which Agreement the Holder of this Certificate by virtue of its
acceptance hereof assents and by which such Holder is bound.
With respect to each Distribution Date and the Class [__]-IO
Certificates, interest shall be calculated, on the basis of a 360-day year and
30-day monthly periods in the Interest Accrual
A-9
Period, based upon the Certificate Interest Rate of [____]% and the Current
Notional Amount of the Class [__]-IO Certificates applicable to such
Distribution Date (before giving effect to any payments on the Certificates on
such date). The Grantor Trustee will distribute on each Distribution Date
commencing on the First Distribution Date specified above, to the Person in
whose name this Certificate is registered at the close of business on the last
Business Day (or if such last day is not a Business Day, the Business Day
immediately preceding such last day) of the calendar month preceding the month
of such Distribution Date, an amount equal to the product of the Fractional
Undivided Interest evidenced by this Certificate and the amount of interest, if
any, required to be distributed to the Holders of Certificates of the same Class
as this Certificate. The Assumed Final Distribution Date is maturity date of
[__________], or if such day is not a Business Day, the next succeeding Business
Day.
Payments on this Certificate will be made by the Grantor Trustee by
check mailed to the address of the Person entitled thereto as such name and
address shall appear on the Certificate Register or, if such Person so requests
by notifying the Grantor Trustee in writing as specified in the Agreement, by
wire transfer. Notwithstanding the above, the final payment on this Certificate
will be made after due notice by the Grantor Trustee of the pendency of such
payment and only upon presentation and surrender of this Certificate at the
office or agency appointed by the Grantor Trustee for that purpose and
designated in such notice. The Initial Current Notional Amount of this
Certificate is set forth above. The Current Notional Amount hereof will equal
the outstanding principal balance of the Class [___] Underlying Note; PROVIDED,
HOWEVER after the Distribution Date occurring in [________], the Notional Amount
of the Class [__]-IO Notes shall equal $0.
This Certificate is one of a duly authorized issue of the Class [__]-IO
Certificates designated as set forth on the face hereof issued in one Class. The
Class [__]-IO Certificates are one of two classes of Certificates that together
constitute the GRANTOR TRUST CERTIFICATES, SERIES [________] (the
"Certificates") issued by the NCF Grantor Trust [______]. The Certificates, in
the aggregate, evidence the entire beneficial ownership interest in the Trust
formed pursuant to the Agreement.
The Certificateholder, by its acceptance of this Certificate, agrees
that it will look solely to the Trust for payment hereunder and that the Grantor
Trustee is not liable to the Certificateholders for any amount payable under
this Certificate or the Agreement or, except as expressly provided in the
Agreement, subject to any liability under the Agreement.
This Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for the interests, rights and limitations of
rights, benefits, obligations and duties evidenced hereby, and the rights,
duties and immunities of the Grantor Trustee.
The Agreement permits the amendment thereof from time to time by the
Depositor and the Grantor Trustee with the consent of the Majority
Certificateholders; PROVIDED, HOWEVER, that no such amendment shall (i) reduce
in any manner the amount of, or delay the timing of, payments required to be
distributed on any Certificate without the consent of the Holder of such
Certificate, (ii) reduce the aforesaid percentage of Certificates the Holders of
which are required to consent to any such amendment, without the consent of the
Holders of all Certificates then outstanding, (iii) have a material adverse
effect on a class of Certificates without the consent of
A-10
the Holders of Certificates evidencing Fractional Undivided Interests
aggregating not less than a majority of the class so affected or (iv) result in
the imposition of a tax on the Trust or cause the Trust to fail to be classified
as a grantor trust under subpart E, part I of subchapter J of chapter 1 of the
Code, as evidenced by an Opinion of Independent Counsel which shall be provided
to the Grantor Trustee other than at the Grantor Trustee's expense; and PROVIDED
FURTHER, HOWEVER, that so long as the Class [___] Current Principal Balance has
not been reduced to zero, the Agreement may not be amended without the consent
of the Holders of Certificates evidencing Fractional Undivided Interests
aggregating not less than a majority of the Class [___] Certificates.
As provided in the Agreement and subject to certain limitations therein
set forth, the transfer of this Certificate is registrable with the Grantor
Trustee upon surrender of this Certificate for registration of transfer at the
offices or agencies maintained by the Grantor Trustee for such purposes, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Grantor Trustee duly executed by the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon one or more new
Certificates in authorized denominations representing a like tenor, class and
original notional amount, but bearing a different number, will be issued to the
designated transferee. The Certificates are issuable only as registered
Certificates without coupons in the Classes and denominations specified in the
Agreement. As provided in the Agreement and subject to certain limitations
therein set forth, this Certificate is exchangeable for one or more new
Certificates evidencing the same Class and in the same aggregate initial
notional amount, as requested by the Holder surrendering the same.
No service charge will be made to the Certificateholders for any such
registration of transfer, but the Grantor Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The Depositor, the Grantor Trustee and any agent of any of them may
treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of Depositor, the Grantor Trustee or any such
agent shall be affected by notice to the contrary. The obligations created by
the Agreement and the Trust created thereby (other than the obligations to make
payments to Certificateholders with respect to the termination of the Agreement)
shall terminate upon the last payment made with respect to the Underlying Notes.
In no event, however, will the Trust created by the Agreement continue beyond
the expiration of 21 years after the death of certain persons identified in the
Agreement.
Unless this Certificate has been countersigned by an authorized
signatory of the Grantor Trustee by manual signature, this Certificate shall not
be entitled to any benefit under the Agreement, or be valid for any purpose.
A-11
IN WITNESS WHEREOF, the Grantor Trustee has caused this Certificate to
be duly executed.
Dated: [____________] [___________________],
not in its individual capacity
but solely as Grantor Trustee
By:
---------------------------------
Name:
Title:
A-12
CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned
Agreement.
[-------------------],
as Authenticating Agent
By:
---------------------------------
Name:
Title:
A-13
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto ____________________________________ (please print or typewrite
name and address including postal zip code of assignee) a Fractional Undivided
Interest evidenced by the attached Trust Certificate and hereby authorizes the
transfer of registration of such interest to assignee on the Certificate
Register of Trust.
I (We) further direct the Certificate Registrar to issue a new
Certificate of a like denomination and Class, to the above named assignee and
deliver such Certificate to the following address:
Dated: _____________________________________
Signature by or on behalf of assignor
_____________________________________
Signature Guaranteed
PAYMENT INSTRUCTIONS
The assignee should include the following for purposes of payment:
Payments shall be made, by wire transfer or otherwise, in immediately
available funds to _____________________________________________________________
for the account of _______________________________ account number __________,
or, if mailed by check, to _________________________________________. Applicable
statements should be mailed to ________________________________________________.
This information is provided by _______________________________________, the
assignee named above, or ____________________________, as its agent.
A-14
EXHIBIT B
Copies of Underlying Notes
B-1
EXHIBIT C
Underlying Operative Documents
C-1