[EXHIBIT 4.1]
INDENTURE
between
[TRUST 199_-_],
as Issuer
and
-----------------
not in its individual capacity, but
solely as Indenture Trustee
Dated as of _______, 199_
CROSS-REFERENCE TABLE1
TIA Indenture
SECTION SECTION
310(a)(1) .................... 6.11
(a)(2) .................... 6.11
(a)(3) .................... 6.10
(a)(4) .................... N.A.2
(a)(4) .................... 6.11
(b) .................... 6.8;
6.10; 6.11
(c) .................... N.A.
311(a) .................... 6.11
(b) .................... 6.11
(c) .................... N.A.
312(a) .................... 7.1;
7.2(a)
(b) .................... 7.2(b)
(c) .................... 7.2(c)
313(a) .................... 6.6
(b) .................... 6.6
(c) .................... 11.5
(d) .................... 6.6
314(a) .................... 3.9; 7.3
(b) .................... 3.6
(c) .................... 2.9; 4.1
11.1
(d) .................... 2.9;
11.1
(e) .................... 11.1
(f) .................... 3.9
315(a) .................... 6.1
(b) .................... 6.5
(c) .................... 6.1
(d) .................... 6.1
(e) .................... 5.13
316(a)(1)(A) .................... 5.11
(a)(1)(B) .................... 5.12
(a)(2) .................... N.A.
(b) .................... 5.7
(c) .................... 1.1
317(a) .................... 5.3
(b) .................... 3.3
318(a) .................... 11.7
--------
1 Note: This Cross-Reference Table shall not, for any purpose, be
deemed to be part of the Indenture.
2 N.A. means Not Applicable.
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND USAGE............................................. 1
SECTION 1.1. Definitions and Usage. ...................................... 1
SECTION 1.2. Incorporation by Reference of Trust
Indenture Act................................... 1
ARTICLE II THE NOTES........................................................ 2
SECTION 2.1. Form. ....................................................... 2
SECTION 2.2. Execution, Authentication and Delivery....................... 2
SECTION 2.3. Notes Issuable in Series and Classes; General
Provisions with Respect to Principal and
Interest Payments. ............................. 3
SECTION 2.4. Denominations................................................. 6
SECTION 2.5. Temporary Notes. ............................................. 6
SECTION 2.6. Registration; Registration of Transfer and
Exchange......................................... 7
SECTION 2.7. Mutilated, Destroyed, Lost or Stolen Notes. .................. 8
SECTION 2.8. Persons Deemed Owner. ........................................ 9
SECTION 2.9. Payments of Principal and Interest. .......................... 9
SECTION 2.10. Cancellation................................................. 13
SECTION 2.11. Authentication and Delivery of Notes. ....................... 13
SECTION 2.12. Release of Collateral........................................ 18
SECTION 2.13. Book-Entry Notes............................................. 18
SECTION 2.14. Notices to Clearing Agency................................... 19
SECTION 2.15. Definitive Notes............................................. 19
SECTION 2.16 Restrictions on Transfer..........................20
ARTICLE III COVENANTS...................................................... 21
SECTION 3.1. Payment to Noteholders....................................... 21
SECTION 3.2. Maintenance of Office or Agency.............................. 21
SECTION 3.3. Money for Payments To Be Held in Trust....................... 22
SECTION 3.4. Existence................................................... 23
SECTION 3.5. Protection of Indenture Trust Estate......................... 24
SECTION 3.6. Opinions as to Indenture Trust Estate........................ 24
SECTION 3.7. Performance of Obligations; Servicing
of Financed Student Loans........................ 24
SECTION 3.8. Negative Covenants........................................... 28
SECTION 3.9. Annual Statement as to Compliance............................ 29
SECTION 3.10. Issuer May Consolidate, etc.,
Only on Certain Terms........................... 29
SECTION 3.11. Successor or Transferee...................................... 31
SECTION 3.12. No Other Business............................................ 31
SECTION 3.13. No Borrowing................................................. 32
SECTION 3.14. Obligations of Servicer and Administrator.................... 32
SECTION 3.15. Guarantees, Loans, Advances and Other
Liabilities..................................... 32
SECTION 3.16. Capital Expenditures......................................... 32
SECTION 3.17. Restricted Payments.......................................... 32
SECTION 3.18. Notice of Events of Default.................................. 32
SECTION 3.19. Further Instruments and Acts................................. 33
ARTICLE IV SATISFACTION AND DISCHARGE....................................... 33
SECTION 4.1. Satisfaction and Discharge of Indenture...................... 33
SECTION 4.2. Application of Trust Money................................... 34
SECTION 4.3. Repayment of Moneys Held by Paying Agent..................... 35
ARTICLE V REMEDIES......................................................... 35
SECTION 5.1. Events of Default............................................ 35
SECTION 5.2. Acceleration of Maturity; Rescission and
Annulment....................................... 36
SECTION 5.3. Collection of Indebtedness and Suits for
Enforcement by Indenture Trustee................ 37
SECTION 5.4. Remedies; Priorities......................................... 40
SECTION 5.5. Optional Preservation of the Financed
Student Loans................................... 42
SECTION 5.6. Limitation of Suits.......................................... 42
SECTION 5.7. Unconditional Rights of Noteholders To
Receive Principal and Interest.................. 43
SECTION 5.8. Restoration of Rights and Remedies........................... 43
SECTION 5.9. Rights and Remedies Cumulative............................... 43
SECTION 5.10. Delay or Omission Not a Waiver............................... 43
SECTION 5.11. Control by Noteholders....................................... 44
SECTION 5.12. Waiver of Past Defaults...................................... 44
SECTION 5.13. Undertaking for Costs........................................ 45
SECTION 5.14. Waiver of Stay or Extension Laws............................. 45
SECTION 5.15. Action on Notes.............................................. 45
SECTION 5.16. Performance and Enforcement of Certain
Obligations..................................... 46
SECTION 5.17 Subrogation.......................................46
ARTICLE VI THE INDENTURE TRUSTEE............................................ 47
SECTION 6.1. Duties of Indenture Trustee.................................. 47
SECTION 6.2. Rights of Indenture Trustee.................................. 49
SECTION 6.3. Individual Rights of Indenture Trustee....................... 49
SECTION 6.4. Indenture Trustee's Disclaimer............................... 49
SECTION 6.5. Notice of Defaults........................................... 50
SECTION 6.6. Reports by Indenture Trustee to Noteholders.................. 50
SECTION 6.7. Compensation and Indemnity................................... 50
SECTION 6.8. Replacement of Indenture Trustee............................. 51
SECTION 6.9. Successor Indenture Trustee by Merger........................ 52
SECTION 6.10. Appointment of Co-Trustee or Separate
Trustee......................................... 53
SECTION 6.11. Eligibility; Disqualification................................ 54
SECTION 6.12. Preferential Collection of Claims Against
Issuer.......................................... 55
ARTICLE VII NOTEHOLDERS' LISTS AND REPORTS.................................. 55
SECTION 7.1. Issuer to Furnish Indenture Trustee
Names and Addresses of Noteholders.............. 55
SECTION 7.2. Preservation of Information; Communications
to Noteholders.................................. 55
SECTION 7.3. Reports by Issuer............................................ 56
ARTICLE VIII ACCOUNTS, DISBURSEMENTS AND RELEASES........................... 57
SECTION 8.1. Collection of Money.......................................... 57
SECTION 8.2. Trust Accounts............................................... 57
SECTION 8.3. General Provisions Regarding Accounts........................ 57
SECTION 8.4. Substitution and Release of Indenture Trust
Estate.......................................... 58
SECTION 8.5. Opinion of Counsel........................................... 59
ARTICLE IX SUPPLEMENTAL INDENTURES.......................................... 59
SECTION 9.1. Supplemental Indentures Without Consent of
Noteholders...................................... 59
SECTION 9.2. Supplemental Indentures with Consent of
Noteholders..................................... 62
SECTION 9.3. Execution of Supplemental Indentures......................... 64
SECTION 9.4. Effect of Supplemental Indenture............................. 64
SECTION 9.5. Conformity with Trust Indenture Act.......................... 64
SECTION 9.6. Reference in Notes to Supplemental
Indentures...................................... 64
ARTICLE X [INTENTIONALLY OMITTED]........................................... 65
ARTICLE XI MISCELLANEOUS.................................................... 65
SECTION 11.1. Compliance Certificates and Opinions, etc.................... 65
SECTION 11.2. Form of Documents Delivered to Indenture
Trustee......................................... 67
SECTION 11.3. Acts of Noteholders.......................................... 67
SECTION 11.4. Notices, etc................................................. 68
SECTION 11.5. Notices to Noteholders; Waiver............................... 69
SECTION 11.6. Alternate Payment and Notice Provisions...................... 70
SECTION 11.7. Conflict with Trust Indenture Act............................ 70
SECTION 11.8. Effect of Headings and Table of Contents..................... 70
SECTION 11.9. Successors and Assigns....................................... 70
SECTION 11.10. Separability................................................. 70
SECTION 11.11. Benefits of Indenture........................................ 70
SECTION 11.12. Legal Holidays............................................... 71
SECTION 11.13. Governing Law................................................ 71
SECTION 11.14. Counterparts................................................. 71
SECTION 11.15. Recording of Indenture....................................... 71
SECTION 11.16. Trust Obligations............................................ 71
SECTION 11.17. No Petition.................................................. 72
SECTION 11.18. Inspection................................................... 72
SECTION 11.19. Usury........................................................ 72
SECTION 11.20. Rights of Surety Provider.....................................73
APPENDIX A Definitions and Usage
EXHIBIT A Form of Series 199_-_ Notes
INDENTURE dated as of ______, 199_, between [TRUST 199_-_], a _____ trust
(the "Issuer"), and __________, a _____ banking corporation, as trustee and not
in its individual capacity (the "Indenture Trustee").
PRELIMINARY STATEMENT
The Issuer has duly authorized the execution and delivery of this Indenture
to provide for one or more series (each a "Series") of its Notes (the "Notes"),
issuable as provided in this Indenture. Each Series of such Notes will be issued
only under a separate supplement to this Indenture duly executed and delivered
by the Issuer and the Indenture Trustee and limited to the amount therein
described. All covenants and agreements made by the Issuer herein are for the
benefit and security of the holders of the Notes. The Issuer is entering into
this Indenture and the Trustee is accepting the trusts created hereby, for good
and valuable consideration; the receipt and sufficiency of which are hereby
acknowledged.
All things necessary to make this Indenture a valid agreement of the Issuer
in accordance with its terms have been done.
ARTICLE I
DEFINITIONS AND USAGE
SECTION 1.1. DEFINITIONS AND USAGE. Except as otherwise specified herein or
as the context may otherwise require, capitalized terms used but not defined
herein are defined in Appendix A hereto (as supplemented to the extent indicated
therein, by the provisions of the Terms Supplement for a particular Series),
which Appendix A also contains rules as to usage that shall be applicable
herein.
SECTION 1.2. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. Whenever
this Indenture refers to a provision of the TIA, the provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"Commission" means the Securities and Exchange Commission.
"indenture securities" means the Notes.
"indenture security holder" means a Noteholder.
"indenture to be qualified" means, if requested in writing by the
Administrator, this Indenture.
"indenture trustee" or "institutional trustee" means the Indenture Trustee.
"obligor" on the indenture securities means the Issuer and any other
obligor on the indenture securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule have
the meaning assigned to them by such definitions.
ARTICLE II
THE NOTES
SECTION 2.1. FORM. The Notes and the Indenture Trustee's certificate of
authentication shall be in substantially the form set forth in Exhibit A, with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture or any Terms Supplement and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing such Notes, as evidenced by their execution of the Notes. Any
portion of the text of any Note may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Note.
The Definitive Notes shall be typewritten, printed, lithographed or
engraved or produced by any combination of these methods (with or without steel
engraved borders), all as determined by the officers executing such Notes, as
evidenced by their execution of such Notes.
Each Note shall be dated the date of its authentication. The terms of the
Notes set forth in Exhibit A are part of the terms of this Indenture.
SECTION 2.2. EXECUTION, AUTHENTICATION AND DELIVERY. The Notes shall be
executed on behalf of the Issuer by any of its Authorized Officers. The
signature of any such Authorized Officer on the Notes may be manual or
facsimile.
Notes bearing the manual or facsimile signature of individuals who were at
any time Authorized Officers of the Issuer shall bind the Issuer,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Notes or did not hold
such offices at the date of such Notes.
At any time and from time to time after the execution and delivery of this
Indenture, the Issuer may deliver Notes executed by the Issuer to the Trustee
for authentication; and the Trustee shall authenticate and deliver such Notes as
provided in this Indenture and not otherwise.
Each Note shall be dated as of the date specified in the related Terms
Supplement.
No Note shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose, unless there appears on such Note a certificate
of authentication substantially in the form provided for herein executed by the
Indenture Trustee by the manual signature of one of its authorized signatories,
and such certificate upon any Note shall be conclusive evidence, and the only
evidence, that such Note has been duly authenticated and delivered hereunder.
SECTION 2.3. NOTES ISSUABLE IN SERIES AND CLASSES; GENERAL PROVISIONS WITH
RESPECT TO PRINCIPAL AND INTEREST PAYMENTS. The Notes may, as provided herein,
be issued in one or more Series, each of which Series may consist of only one
Class of Notes or may be divided into two or more Classes, and shall be
designated generally as the "Asset Backed Notes" of the Issuer, with such
further particular designations added or incorporated in such title for the
Notes of any particular Series or Class as the Issuer may determine.
If a Series of Notes includes more than one Class, the Classes of Notes of
such Series shall mature sequentially unless otherwise provided in the related
Terms Supplement and their final installments of principal shall be due on such
Final Maturity Dates as shall be specified in the related Terms Supplement. The
principal of each Note shall be payable on the related Final Maturity Date
unless the unpaid principal of such Note becomes due and payable at an earlier
date by declaration of acceleration or otherwise.
Unless otherwise provided in the related Terms Supplement, no payments of
principal of any Class of Notes of a Series shall be made until payment of the
entire principal amount of all Outstanding Notes, if any, with an earlier Final
Maturity Date has been made. Payments of principal of a Class of Notes of a
Series shall be made pro rata among all Outstanding Notes of such Class, without
preference or priority of any kind.
Unless otherwise provided in the Terms Supplement, all payments made with
respect to any Note shall be applied first to the interest then due and payable
on such Note and then to the principal thereof. Unless otherwise provided in the
related Terms Supplement, all computations of interest accrued on any Note shall
be made on the basis of the actual number of days elapsed in each applicable
Interest Period divided by 360.
Interest on the unpaid principal amount of each Outstanding Note of a Class
shall be payable on each Note Distribution Date for such Class at the Class
Interest Rates applicable to such Note for the related Interest Periods.
Notwithstanding any of the foregoing provisions with respect to payments of
principal of and interest on the Notes, if the Notes of a Series have become or
been declared due and payable following an Event of Default and such
acceleration of maturity and its consequences have not been rescinded and
annulled and the provisions of Section 5.5 are not applicable to such Series,
then payments of principal of and interest on such Notes shall be made in
accordance with Section 5.4.
Each Note shall bear upon the face thereof the designation so selected for
the Series and Class to which it belongs. All Notes of the same Series and Class
shall be identical in all respects except for the denominations and dates
thereof. All Notes of all Classes within any one Series at any time Outstanding
shall be identical except for differences among the Notes of the different
Classes within such Series as specified in the applicable Terms Supplement. All
Notes of a particular Series issued under this Indenture shall be in all
respects equally and ratably entitled to the benefits hereof without preference,
priority or distinction on account of the actual time or times of authentication
and delivery, all in accordance with the terms and provisions of this Indenture.
Each Series of Notes shall be created by a Terms Supplement authorized by
the Trust Agreement and establishing the terms and provisions of such Series,
specifying the Financed Student Loans and any other property to be included in
the Indenture Trust Estate therefor and Granting such Indenture Trust Estate as
security for all previously issued and Outstanding Series of Notes and the
Series of Notes created thereby. The several Series may differ in respect of any
of the following matters:
(1) designation of the Series;
(2) dating of the Notes of the Series and Interest Period;
(3) the number of Classes and the maximum aggregate principal amount
of Notes of each such Class which may be issued;
(4) Class Interest Rate for each Class and the method for determining
such Class Interest Rate, including the applicable Interest
Period;
(5) Final Maturity Date on which the final installment of principal
of each Class is to be paid;
(6) place or places for the payment of the final installment of
principal or the manner in which Noteholders will be informed of
such place or places;
(7) denominations;
(8) whether the Notes of such Series may be au- thenticated by an
Authenticating Agent, and, if so, the Person appointed as
Authenticating Agent for such Series;
(9) Record Dates and Note Distribution Dates for each Class;
(10) the amount, if any, to be deposited at the Closing Date in each
of the Collection Account, the Pre- Funding Account, the
Capitalized Interest Account, the Expense Account, the Reserve
Account and the Capitalized Pre-Funding Account;
(11) the amount, if any, to be deposited in the Reserve Account, the
Requisite Amount of the Specified Reserve Account Requirement for
such Series, the circumstances under which withdrawals from such
Reserve Account are permitted or required to be made and whether
a Qualified Letter of Credit may be delivered to the Indenture
Trustee in lieu of a cash deposit in such Reserve Account, and,
if so, the standards applicable to such Qualified Letter of
Credit;
(12) whether any surplus funds in the Collection Account for such
Series are required to be used to restore amounts on deposit in
the Reserve Account to the minimum amount, if any, required to be
on deposit therein;
(13) any items required to be delivered to the Indenture Trustee on
the Closing Date for such Series pursuant to Section 2.11;
(14) whether or the extent to which Eligible Substitute Financed
Student Loans may be substituted for Financed Student Loans and
the conditions relating thereto including what constitutes an
Eligible Substitute Financed Student Loan;
(15) provisions with respect to terms defined in Appendix A for which
the definitions set forth therein require or permit further
specification in the related Terms Supplement;
(16) restrictions, if any, on the transferability of the Notes of such
Series; and
(17) any other provisions expressing or referring to the terms and
conditions upon which the Notes of that Series are to be issued
under this Indenture which are not in conflict with the
provisions of this Indenture.
In authorizing the issuance of any Series, the Issuer, by Issuer Order,
shall determine and specify all matters in respect of the Notes of such Series
set forth in clauses (1) to (17), inclusive, to the extent applicable, and shall
also determine and specify the forms of Notes of such Series, in compliance with
the terms of this Article II.
Each Series of Notes shall be covered by a Note Surety Bond issued by the
Surety Provider and shall not have the benefits of any other form of third-party
credit enhancement, including, without limitation, a Qualified Letter of Credit
or a Note Surety Bond issued by a surety provider other than AMBAC Indemnity
Corporation, unless the Surety Provider gives its prior written consent.
SECTION 2.4. DENOMINATIONS. The Notes shall be issuable only as registered
Notes in the denominations prescribed by the terms of the Terms Supplement
creating the particular Series.
SECTION 2.5. TEMPORARY NOTES. Pending the preparation of Definitive Notes,
the Issuer may execute, and upon receipt of an Issuer Order the Indenture
Trustee shall authenticate and deliver, temporary Notes which are printed,
lithographed, typewritten, photocopied, mimeographed or otherwise produced, of
the tenor of the Definitive Notes in lieu of which they are issued and with such
variations not inconsistent with the terms of this Indenture as the officers
executing such Notes may determine, as evidenced by their execution of such
Notes.
If temporary Notes are issued, the Issuer will cause Definitive Notes to be
prepared without unreasonable delay. After the preparation of Definitive Notes,
the temporary Notes shall be exchangeable for Definitive Notes upon surrender of
the temporary Notes at the office or agency of the Issuer to be maintained as
provided in Section 3.2, without charge to the Noteholder. Upon surrender for
cancellation of any one or more temporary Notes, the Issuer shall execute and
the Indenture Trustee shall authenticate and deliver in exchange therefor a like
principal amount of Definitive Notes of the same Series and Class and of
authorized denominations. Until so exchanged, the temporary Notes shall in all
respects be entitled to the same benefits under this Indenture as Definitive
Notes of the same Series and Class.
SECTION 2.6. REGISTRATION; REGISTRATION OF TRANSFER AND EXCHANGE. The
Issuer shall cause to be kept a register (the "Note Register") in which, subject
to such reasonable regulations as it may prescribe, the Issuer shall provide for
the registration of Notes and the registration of transfers of Notes. The
Indenture Trustee shall be "Note Registrar" for the purpose of registering Notes
and transfers of Notes as herein provided. Upon any resignation of any Note
Registrar, the Issuer shall promptly appoint a successor or, if it elects not to
make such an appointment, assume the duties of Note Registrar.
If a Person other than the Indenture Trustee is appointed by the Issuer as
Note Registrar, the Issuer will give the Indenture Trustee prompt written notice
of the appointment of such Note Registrar and of the location, and any change in
the location, of the Note Registrar, and the Indenture Trustee shall have the
right to inspect the Note Register at all reasonable times and to obtain copies
thereof, and the Indenture Trustee shall have the right to rely upon a
certificate executed on behalf of the Note Registrar by an officer thereof as to
the names and addresses of the Noteholders and the principal amounts and number
of such Notes.
Upon surrender for registration of transfer of any Note at the office or
agency of the Issuer to be maintained as provided in Section 3.2, the Issuer
shall execute, and the Indenture Trustee shall authenticate and the Noteholder
shall obtain from the Indenture Trustee, in the name of the designated
transferee or transferees, one or more new Notes in any authorized
denominations, of the same class and a like aggregate principal amount.
At the option of the Noteholder, Notes may be exchanged for other Notes of
any authorized denominations, of the same Series and Class and a like aggregate
principal amount, upon surrender of the Notes to be exchanged at such office or
agency. Whenever any Notes are so surrendered for exchange, the Issuer shall
execute, and the Indenture Trustee shall authenticate and the Noteholder shall
obtain from the Indenture Trustee, the Notes which the Noteholder making the
exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Issuer, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Restrictions on transfer, if any, of a Series or Class of Notes shall be
set forth in the related Terms Supplement.
Every Note presented or surrendered for registration of transfer or
exchange shall be duly endorsed by, or be accompanied by a written instrument of
transfer in form satisfactory to the Indenture Trustee duly executed by the
Noteholder thereof or such Noteholder's attorney duly authorized in writing,
with such signature guaranteed by an "eligible guarantor institution" meeting
the requirements of the Note Registrar, which requirements includes membership
or participation in the Securities Transfer Agent's Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the Note
Registrar in addition to, or in substitution for, STAMP, all in accordance with
the Exchange Act.
No service charge shall be made to a Noteholder for any registration of
transfer or exchange of Notes, but the Indenture Trustee may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of Notes,
other than exchanges pursuant to Section 2.3 or 9.6 not involving any transfer.
SECTION 2.7. MUTILATED, DESTROYED, LOST OR STOLEN NOTES. If (i) any
mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee
receives evidence to its satisfaction of the destruction, loss or theft of any
Note, and (ii) there is delivered to the Indenture Trustee and the Surety
Provider such security or indemnity as may be required by it to hold the Issuer
and the Indenture Trustee harmless, then, in the absence of notice to the
Issuer, the Note Registrar or the Indenture Trustee that such Note has been
acquired by a bona fide purchaser, the Issuer shall execute and upon its request
the Indenture Trustee shall authenticate and deliver, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Note, a replacement Note of the
same Series, tenor, aggregate initial principal amount and Class bearing a
number not contemporaneously outstanding; PROVIDED, HOWEVER, that if any such
destroyed, lost or stolen Note, but not a mutilated Note, shall have become or
within 15 days shall be due and payable, instead of issuing a replacement Note,
the Issuer may pay such destroyed, lost or stolen Note when so due or payable.
If, after the delivery of such replacement Note or payment of a destroyed, lost
or stolen Note pursuant to the proviso to the preceding sentence, a bona fide
purchaser of the original Note in lieu of which such replacement Note was issued
presents for payment such original Note, the Issuer and the Indenture Trustee
shall be entitled to recover such replacement Note (or such payment) from the
Person to whom it was delivered or any Person taking such replacement Note from
such Person to whom such replacement Note was delivered or any assignee of such
Person, except a bona fide purchaser, and shall be entitled to recover upon the
security or indemnity provided therefor to the extent of any loss, damage, cost
or expense incurred by the Issuer or the Indenture Trustee in connection
therewith.
Upon the issuance of any replacement Note under this Section, the Issuer
may require the payment by the Noteholder thereof of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
any other reasonable expenses (including the fees and expenses of the Indenture
Trustee) connected therewith.
Every replacement Note issued pursuant to this Section in replacement of
any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Issuer, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.8. PERSONS DEEMED OWNER. Prior to due presentment for
registration of transfer of any Note, the Issuer, the Indenture Trustee and any
agent of the Issuer or the Indenture Trustee may treat the Person in whose name
any Note is registered (as of the day of determination) as the owner of such
Note for the purpose of receiving payments of principal of, interest, if any, on
such Note and for all other purposes whatsoever, whether or not such Note be
overdue, and neither the Issuer, the Indenture Trustee nor any agent of the
Issuer or the Indenture Trustee shall be affected by notice to the contrary.
SECTION 2.9. PAYMENTS OF PRINCIPAL AND INTEREST. (a) Any installment of
interest or principal payable on any Notes of any Series which is punctually
paid or duly provided for by the Issuer on the applicable Note Distribution Date
shall be paid to the Person in whose name such Note (or one or more Predecessor
Notes) is registered at the close of business on the Record Date for such Note
Distribution Date (i) by check mailed to such Person's address as it appears in
the Note Register on such Record Date, or (ii) except that, unless Definitive
Notes have been issued pursuant to Section 2.13, with respect to Notes
registered on the Note Record Date in the name of the nominee of the Securities
Depository (initially, such nominee to be Cede & Co.,), payment will be made by
wire transfer in immediately available funds to the account designated by such
nominee; provided, however, the final installment of principal payable with
respect to such Note shall be payable as provided in subsection (b) of this
Section 2.9.
(b) All reductions in the principal amount of a Note (or one or more
Predecessor Notes) effected by payments of installments of principal made on any
Note Distribution Date shall be binding upon all Holders of such Note and of any
Note issued upon the registration of transfer thereof or in exchange therefor or
in lieu thereof, whether or not such payment is noted on such Note. The final
installment of principal of each Note shall be payable only upon presentation
and surrender thereof on or after the Note Distribution Date or therefor at the
office or agency of the Issuer maintained by it for such purpose in the Borough
of Manhattan, the City of New York, State of New York, pursuant to Section 3.2.
(c) The principal of each Class of Notes shall be payable in installments
on each Note Distribution Date as provided in the applicable Terms Supplement.
Notwithstanding the foregoing, the entire unpaid principal amount of each Class
of Notes shall be due and payable, if not previously paid, on the date on which
an Event of Default shall have occurred and be continuing, if the Surety
Provider or, with the consent of the Surety Provider, either the Indenture
Trustee or the Noteholders of the Notes representing not less than a majority of
the Outstanding Amount of the Notes have declared the Notes to be immediately
due and payable in the manner provided in Section 5.2. All principal payments on
each Class of Notes shall be made to the Noteholders of such Class entitled
thereto as provided in the applicable Terms Supplement. The Indenture Trustee
shall notify the Person in whose name a Note is registered at the close of
business on the Record Date preceding the Note Distribution Date on which the
Issuer expects that the final installment of principal of and interest on such
Note will be paid. Such notice shall be mailed or transmitted by facsimile prior
to such final Note Distribution Date and shall specify that such final
installment will be payable only upon presentation and surrender of such Note
and shall specify the place where such Note may be presented and surrendered for
payment of such installment.
(d) If the Issuer defaults in a payment of interest on any Class of Notes,
the Issuer shall pay defaulted interest (plus interest on such defaulted
interest to the extent lawful) at the applicable Class Interest Rate in any
lawful manner. The Issuer may pay such defaulted interest to the persons who are
Noteholders of such Class on a subsequent special record date, which date shall
be at least five Business Days prior to the payment date. The Issuer shall fix
or cause to be fixed any such special record date and payment date, and, at
least 15 days before any such special record date, the Issuer shall mail to each
Noteholder of such Class a notice that states the special record date and the
amount of defaulted interest to be paid.
(e) Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture, upon registration of transfer of or in exchange
for or in lieu of any other Note, shall carry the rights to unpaid principal and
interest that were carried by such other Note. Any checks mailed pursuant to
this Section 2.9 and returned undelivered shall be held in accordance with
Section 3.3.
(f) Not later than each Determination Date relating to each Note
Distribution Date for a Series of Notes, the Administrator shall prepare and
deliver to the Issuer, the Eligible Lender Trustee, the Indenture Trustee and
the Surety Provider a statement (a "Distribution Date Statement") with respect
to the following Note Distribution Date setting forth:
(i) the amount of the distribution allocable to principal of each
Class of Notes or the Certificates, as the case may be;
(ii) the amount of the distribution allocable to interest on each
Class of Notes and the Certificates (or, with respect to a Class of Accrual
Notes, the amount of interest accrued thereon), together with the interest
rates applicable with respect thereto (indicating whether such interest
rates are based on the applicable Auction Rate or LIBOR Rate, as the case
may be, or on the Net Loan Rate, with respect to each Class of Notes and
the Certificates, and specifying what each such interest rate would have
been if it had been calculated using the alternate basis);
(iii) the amount of the distribution or accrual, if any, allocable to
any Noteholders' Auction Rate Interest Carryover, any Noteholders' LIBOR
Rate Interest Carryover and any Certificateholders' Auction Rate Interest
Carryover, together with the outstanding amount, if any, of each thereof
after giving effect to any such distribution or accrual;
(iv) the Pool Balance as of the close of business on the last day of
the preceding Collection Period;
(v) the aggregate outstanding principal balance of each Class of Notes
and the Certificate Balance as of such Note Distribution Date or
Certificate Distribution Date, after giving effect to payments allocated to
principal reported under clause (i) above (and, with respect to a Class of
Accrual Notes, after giving effect to any interest accrued thereon reported
under clause (ii) above);
(vi) the amount of the Servicing Fee and any Servicing Fee Carryover
allocated to the Master Servicer, the amount of the Administration Fee
allocated to the Administrator, the amount of the Auction Agent Fee
allocated to the Auction Agent, the amount of the Indenture Trustee Fee
allocated to the Indenture Trustee, the amount of the Eligible Lender
Trustee Fee allocated to the Eligible Lender Trustee and the amount of the
Surety Provider Fee allocated to the Surety Provider, respectively, with
respect to such Collection Period, and the amount, if any, of the Servicing
Fee Carryover remaining unpaid after giving effect to any such payment;
(vii) the amount of the distribution, if any, payable to the Surety
Provider as reimbursement for any unpaid Surety Bond Payments;
(viii) the amount of the aggregate Realized Losses, if any, for such
Collection Period;
(ix) the balance of the Reserve Account, Capitalized Interest Account
and Capitalized Pre-Funding Account on such Note Distribution Date or
Certificate Distribution Date, after giving effect to changes therein on
such Note Distribution Date or Certificate Distribution Date and the then
applicable Parity Percentage;
(x) for Note Distribution Dates during each Funding Period, the
remaining Pre-Funded Amount on such Note Distribution Date, after giving
effect to changes therein during the related Collection Period; and
(xi) for the first Note Distribution Date on or following the end of
each Funding Period, the amount of any remaining Pre-Funded Amount that has
not been used to make Additional Fundings and is being paid out to
Noteholders.
SECTION 2.10. CANCELLATION. All Notes surrendered for payment, registration
of transfer or exchange shall, if surrendered to any Person other than the
Indenture Trustee, be delivered to the Indenture Trustee and shall be promptly
cancelled by the Indenture Trustee. The Issuer may at any time deliver to the
Indenture Trustee for cancellation any Notes previously authenticated and
delivered hereunder which the Issuer may have acquired in any manner whatsoever,
and all Notes so delivered shall be promptly cancelled by the Indenture Trustee.
No Notes shall be authenticated in lieu of or in exchange for any Notes
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Notes may be held or disposed of by the Indenture
Trustee in accordance with its standard retention or disposal policy as in
effect at the time, unless the Issuer shall direct by an Issuer Order that they
be returned to it and so long as such Issuer Order is timely and the Notes have
not been previously disposed of by the Indenture Trustee.
SECTION 2.11. AUTHENTICATION AND DELIVERY OF NOTES. Notes of any one or
more Series may from time to time be executed by the Issuer and delivered to the
Indenture Trustee for authentication, and thereupon the same shall be
authenticated and delivered by the Indenture Trustee, upon Issuer Request and
upon receipt by the Indenture Trustee of the following:
(a) an Issuer Order authorizing the execution, authentication and
delivery of such Notes by the Issuer and specifying the Series, the Classes
within such Series, the Final Maturity Date of each Class, the principal
amount and the Class Interest Rate and the method of determining such Class
Interest Rate, of each Class of such Notes to be authenticated and
delivered;
(b) in case the Notes to be authenticated and delivered are of any
Series not theretofore created, an appropriate Terms Supplement,
accompanied by (i) the written consent of the Surety Provider as to the
issuance of such Series and the form of such Terms Supplement, and (ii) an
Issuer Order authorizing such Terms Supplement (and, in the case of the
first Series to be authenticated and delivered hereunder, authorizing this
Indenture), designating the new Series to be created and prescribing,
consistent with the applicable provisions of this Indenture, the terms and
provisions relating to the Notes of such Series;
(c) Opinions of Counsel addressed to the Indenture Trustee and the
Surety Provider, and to the effect that:
(i) all instruments furnished to the Indenture Trustee in
connection with such Notes conform to the requirements of this
Indenture and constitute all the documents required to be delivered
hereunder for the Indenture Trustee to authenticate and deliver the
Notes then applied for;
(ii) all conditions precedent provided for in this Indenture
relating to the authentication and delivery of the Notes applied for
have been complied with;
(iii) the Eligible Lender Trustee is an "eligible lender" under
the terms of the Higher Education Act, has corporate power to execute
and deliver the Trust Agreement, the Trust Agreement authorizes the
Issuer to execute and deliver the Terms Supplement relating to such
Notes (and, in the case of the first Series to be authenticated and
delivered hereunder, this Indenture), and to issue such Notes, and the
Issuer has duly taken all necessary action under the Trust Agreement
for those purposes;
(iv) the Issuer is a __________ business trust and the issuance
of the Notes then applied for is in conformity with the terms of and
duly authorized by the Trust Agreement;
(v) assuming due execution and delivery thereof by the Indenture
Trustee, this Indenture and the related Terms Supplement, as executed
and delivered by the Issuer, are the valid, legal and binding
obligations of the Issuer, enforceable in accordance with their terms,
subject to the effect of bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other similar laws relating to
or affecting creditors' rights generally and court decisions with
respect thereto, and such counsel need express no opinion with respect
to the availability of equitable remedies, and the execution of such
Terms Supplement is authorized or permitted by Section 9.1 of this
Indenture;
(vi) the Notes then applied for, when issued, delivered,
authenticated and paid for, will be the valid, legal and binding
obligations of the Issuer, entitled to the benefits of this Indenture
and the related Terms Supplement, equally and ratably with all other
Notes of such Series, if any, theretofore issued, authenticated,
delivered and paid for and then Outstanding hereunder, and enforceable
in accordance with their terms, subject to the effect of bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and
other similar laws relating to or affecting creditors' rights
generally and court decisions with respect thereto, and such counsel
need express no opinion with respect to the availability of equitable
remedies;
(vii) the Issuer has Granted to the Indenture Trustee a lien and
first perfected security interest in all of its right, title and
interest in each such Financed Student Loan;
(viii) the Trust Agreement authorizes the Issuer to Grant the
Indenture Trust Estate to the Indenture Trustee as security for the
Notes of such Series and all previously issued and Outstanding Series
and the Issuer has taken all necessary action under the Trust
Agreement to Grant the Indenture Trust Estate to the Indenture
Trustee;
(ix) the Terms Supplement delivered to the Indenture Trustee with
such Opinion of Counsel subjects the Financed Student Loans securing
such Series and all previously issued and Outstanding Series and all
proceeds therefrom and the Pledged Accounts or Funds for such Series
and all previously issued and Outstanding Series to the lien and
security interest of this Indenture;
(x) such action has been taken with respect to delivery of
possession of the Indenture Trust Estate and with respect to the
recording and filing of this Indenture, the Terms Supplement for such
Series, any other indentures supplemental hereto and any other
requisite documents and with respect to the execution and filing of
any financing statements as is necessary to perfect a first priority
security interest in the Indenture Trust Estate for such Series and
all previously issued and Outstanding Series, with either the details
of such action being recited therein, or the absence of any such
action being necessary to make such lien and security interest
effective being stated therein; and, with any recording, filing,
re-recording and re-filing of this Indenture, the Terms Supplement for
such Series, any other indentures supplemental hereto and any other
requisite documents and any execution and filing of any financing
statements and continuation statements that will, in the opinion of
such counsel, be required to maintain the lien and security interest
created by this Indenture and the related Terms Supplements in the
Indenture Trust Estate for such Series and all previously issued and
Outstanding Series until March 15 of the year in which the first
Opinion of Counsel with respect to such Series is required to be
delivered under Section 3.6 being described therein;
(xi) this Indenture and the Terms Supplement for such Series have
been duly qualified under the TIA, or that no qualification of such
Terms Supplement under the TIA is necessary; the execution of the
Terms Supplement for such Series requires the requalification of this
Indenture under the TIA, or that no requalification of the Indenture
under the TIA is necessary by virtue of the execution of such Terms
Supplement; and
(xii) no authorization, approval or consent of any governmental
body having jurisdiction over the Issuer which has not been obtained
by the Issuer is required for the valid issuance and delivery of the
Notes.
(d) an Officer's Certificate of the Administrator on behalf of the
Issuer stating that:
(i) the Issuer is not in Default under this Indenture or the
Insurance Agreement and the issuance of the Notes applied for will not
result in any breach of any of the terms, conditions or provisions of,
or constitute a default under, the Trust Agreement, the Insurance
Agreement, any indenture, mortgage, deed of trust or other agreement
or instrument to which the Issuer is a party or by which it is bound,
or any order of any court or administrative agency entered in any
proceeding to which the Issuer is a party or by which it may be bound
or to which it may be subject, and that all conditions precedent
provided in this Indenture relating to the authentication and delivery
of the Notes applied for have been complied with;
(ii) the Issuer is the owner of each Financed Student Loan
securing such Series and any previously issued Series, has not
assigned any interest or participation in any such Financed Student
Loan (or, if any such interest or participation has been assigned, it
has been released) and has the right to Grant each such Financed
Student Loan to the Indenture Trustee;
(iii) the Issuer has Granted to the Indenture Trustee a lien and
first perfected security interest in all of its right, title, and
interest in each such Financed Student Loan;
(iv) attached thereto are true and correct copies of letters
signed by each Rating Agency confirming that the Notes of such new
Series have been rated in the highest rating categories by such Rating
Agency.
(e) Unless any of the requirements set forth herein shall be deleted
by the related Terms Supplement, an Officer's Certificate of the
Administrator on behalf of the Issuer stating that all of the Financed
Student Loans and any other assets securing such Series and all previously
issued and Outstanding Series:
(i) satisfy each of the requirements established for such
Financed Student Loans in the related Terms Supplement and the
Insurance Agreement; and
(ii) have been endorsed as provided in the Sale and Servicing
Agreement;
(f) Cash in the amount, if any, required by the terms of the related
Terms Supplement to be deposited in the Collection Account and held by the
Indenture Trustee and applied in accordance with the terms hereof or as
otherwise provided in the related Series Supplement;
(g) Cash, Eligible Investments or (if permitted by the related Terms
Supplement) a Qualified Letter of Credit or any other assets specified in
or permitted by the related Terms Supplement in the respective amounts, if
any, required by the terms of the related Terms Supplement to be maintained
in the Reserve Account and held by the Indenture Trustee;
(h) If such Series is directly insured, guaranteed or otherwise
backed, the Note Surety Bond for such Series;
(i) An executed counterpart of the Terms Supplement; and
(j) Such other documents, certificates, instruments or opinions as may
be required by the terms of the Terms Supplement creating such Series of
Notes.
SECTION 2.12. RELEASE OF COLLATERAL. Subject to Section 11.1 and the terms
of the Basic Documents, the Indenture Trustee shall release property from the
lien of this Indenture and the related Terms Supplement only upon receipt of an
Issuer Request accompanied by an Officer's Certificate of the Issuer, an Opinion
of Counsel and Independent Certificates in accordance with TIA ▇▇.▇▇. 314(c) and
314(d)(1) or an Opinion of Counsel in lieu of such Independent Certificates to
the effect that the TIA does not require any such Independent Certificates.
SECTION 2.13. BOOK-ENTRY NOTES. Unless otherwise provided in the related
Terms Supplement, the Notes, upon original issuance, will be issued in the form
of typewritten Notes representing the Book- Entry Notes, to be delivered to The
Depository Trust Company, the initial Clearing Agency, by, or on behalf of, the
Issuer. Such Notes shall initially be registered on the Note Register in the
name of Cede & Co., the nominee of the initial Clearing Agency, and no Note
Owner will receive a Definitive Note (as defined below) representing such Note
Owner's interest in such Note, except as provided in Section 2.15. Unless and
until definitive, fully registered Notes (the "Definitive Notes") have been
issued to Note Owners pursuant to Section 2.15:
(i) the provisions of this Section shall be in full force and effect;
(ii) the Note Registrar and the Indenture Trustee may deal with the
Clearing Agency for all purposes (including the payment of principal of and
interest and other amounts on the Notes) as the authorized representative
of the Note Owners;
(iii) to the extent that the provisions of this Section conflict with
any other provisions of this Indenture, the provisions of this Section
shall control;
(iv) the rights of Note Owners shall be exercised only through the
Clearing Agency and shall be limited to those established by law and
agreements between such Note Owners and the Clearing Agency and/or the
Clearing Agency Participants pursuant to the Note Depository Agreements.
Unless and until Definitive Notes are issued pursuant to Section 2.15, the
initial Clearing Agency will make book-entry transfers among the Clearing
Agency participants and receive and transmit payments of principal of and
interest and other amounts on the Notes to such Clearing Agency
Participants; and
(v) whenever this Indenture requires or permits actions to be taken
based upon instructions or directions of Noteholders of Notes evidencing a
specified percentage of the Outstanding Amount of the Notes, the Clearing
Agency shall be deemed to represent such percentage only to the extent that
it has received instructions to such effect from Note Owners and/or
Clearing Agency Participants owning or representing, respectively, such
required percentage of the beneficial interest in the Notes and has
delivered such instructions to the Indenture Trustee.
SECTION 2.14. NOTICES TO CLEARING AGENCY. Whenever a notice or other
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes shall have been issued to Note Owners pursuant to Section
2.15, the Indenture Trustee shall give all such notices and communications
specified herein to be given to Noteholders to the Clearing Agency.
SECTION 2.15. DEFINITIVE NOTES. If (i) the Administrator advises the
Indenture Trustee in writing that the Clearing Agency is no longer willing or
able to properly discharge its responsibilities with respect to the Notes, and
the Administrator is unable to locate a qualified successor, or (ii) the
Administrator at its option advises the Indenture Trustee in writing that it
elects to terminate the book-entry system through the Clearing Agency or (iii)
after the occurrence of an Event of Default, a Servicer Default or an
Administrator Default, Note Owners representing beneficial interests aggregating
at least a majority of the Outstanding Amount of the Notes advise the Clearing
Agency (which shall then notify the Indenture Trustee) in writing that the
continuation of a book-entry system through the Clearing Agency is no longer in
the best interests of the Note Owners, then the Indenture Trustee will cause the
Clearing Agency to notify all Note Owners, through the Clearing Agency, of the
occurrence of any such event and of the availability of Definitive Notes to Note
Owners requesting the same. Upon surrender to the Indenture Trustee of the
typewritten Notes representing the Book-Entry Notes by the Clearing Agency,
accompanied by registration instructions, the Issuer shall execute and the
Indenture Trustee shall authenticate the Definitive Notes in accordance with the
instructions of the Clearing Agency. None of the Issuer, the Note Registrar or
the Indenture Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Notes, the Indenture Trustee
shall recognize the holders of the Definitive Notes as Noteholders.
SECTION 2.16. RESTRICTIONS ON TRANSFER. THE PROVISIONS OF THIS SECTION
SHALL APPLY ONLY TO A CLASS OF NOTES ISSUED IN A TRANSACTION NOT REGISTERED
UNDER THE SECURITIES ACT (the "Non- Registered Notes"). Except as otherwise set
forth in a Terms Supplement, the Non-Registered Notes may not be offered or
sold, after their initial issuance, except to Qualified Institutional Buyers in
reliance on the exemption from the registration requirements of the Securities
Act provided by Rule 144A thereunder.
Except as otherwise set forth in a Terms Supplement, each purchaser of any
Class of Non-Registered Notes will be deemed to have represented and agreed as
follows:
(i) It is a Qualified Institutional Buyer as defined in Rule 144A
promulgated under the Securities Act and is acquiring the Notes for its own
institutional account or for the account of a Qualified Institutional
Buyer.
(ii) It understands that the Non-Registered Notes will be offered in a
transaction not involving any public offering within the meaning of the
Securities Act, and that, if in the future it decides to resell, pledge or
otherwise transfer any Non-Registered Notes, such Non-Registered Notes may
be resold, pledged or transferred only (a) to a person who the seller
reasonably believes is a Qualified Institutional Buyer that purchases for
its own account or for the account of a Qualified Institutional Buyer to
whom notice is given that the resale, pledge or transfer is being made in
reliance on Rule 144A or (b) pursuant to an effective registration
statement under the Securities Act.
(iii) It understands that each Non-Registered Note will bear a legend
substantially to the following effect:
"UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER (AS DEFINED BELOW)
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT") OR ANY STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS
NOTE, AGREES THAT THIS NOTE MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES LAWS AND (1) TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WHICH
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, OR (2) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT.
THIS NOTE IS NOT GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY."
ARTICLE III
COVENANTS
SECTION 3.1. PAYMENT TO NOTEHOLDERS. The Issuer will pay or
cause to be duly and punctually paid, from the property of the Issuer, the
principal of and interest on the Notes of each Series in accordance with the
terms of such Notes, this Indenture and the related Terms Supplement and Sale
and Servicing Agreement. Amounts properly withheld under the Code by any Person
from a payment to any Noteholder of interest (including any Noteholders' Auction
Rate Interest Carryover) and/or principal shall be considered as having been
paid by the Issuer to such Noteholder for all purposes of this Indenture.
SECTION 3.2. MAINTENANCE OF OFFICE OR AGENCY. The Issuer will
maintain in the Borough of Manhattan, the City of New York, the State of New
York, an office or agency where Notes may be surrendered for registration of
transfer or exchange, and where notices and demands to or upon the Issuer in
respect of the Notes and this Indenture may be served. The Issuer hereby
initially appoints the Indenture Trustee to serve as its agent for the foregoing
purposes. The Issuer will give prompt written notice to the Indenture Trustee
and the Surety Provider of the location, and of any change in the location, of
any such office or agency. If at any time the Issuer shall fail to maintain any
such office or agency or shall fail to furnish the Indenture Trustee with the
address thereof, such surrenders, notices and demands may be made or served at
the Corporate Trust Office, and the Issuer hereby appoints the Indenture Trustee
as its agent to receive all such surrenders, notices and demands.
The Issuer may also from time to time designate one or more
other offices or agencies (in or outside the City of New York) where the Notes
may be presented or surrendered for any or all such purposes and may from time
to time rescind such designations; provided, however, that (i) no such
designation or rescission shall in any manner relieve the Issuer of its
obligation to maintain an office or agency in the Borough of Manhattan, the City
of New York, the State of New York for the purposes set forth in the preceding
paragraph, (ii) presentations or surrenders of Notes for payment may be made
only in the City of New York, the State of New York and (iii) any designation of
an office or agency for payment of Notes shall be subject to Section 3.3. The
Issuer will give prompt written notice to the Indenture Trustee and the Surety
Provider of any such designation or rescission and of any change in the location
of any such other office or agency.
SECTION 3.3. MONEY FOR PAYMENTS TO BE HELD IN TRUST. As
provided in Section 8.2(a) and (b), all payments of amounts due and payable
with respect to any Notes that are to be made from amounts distributed from the
Collection Account or any other Trust Account pursuant to Section 8.2(c) shall
be made on behalf of the Issuer by the Indenture Trustee or by another Paying
Agent, and no amounts so distributed from the Collection Account for payments of
Notes shall be paid over to the Issuer except as provided in this Section.
The Issuer will cause each Paying Agent other than the
Indenture Trustee to execute and deliver to the Indenture Trustee an instrument
in which such Paying Agent shall agree with the Indenture Trustee (and if the
Indenture Trustee acts as Paying Agent, it hereby so agrees), subject to the
provisions of this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of
amounts due with respect to the Notes in trust for the benefit
of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided
and pay such sums to such Persons as herein provided;
(ii) give the Indenture Trustee and the Surety Provider
notice of any default by the Issuer of which it has actual
knowledge (or any other obligor upon the Notes) in the making
of any payment required to be made with respect to the Notes;
(iii) at any time during the continuance of any such
default, upon the written request of the Indenture Trustee,
forthwith pay to the Indenture Trustee all sums so held in
trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith
pay to the Indenture Trustee all sums held by it in trust for
the payment of Notes if at any time its ceases to meet the
standards required to be met by a Paying Agent at the time of
its appointment; and
(v) comply with all requirements of the Code with respect
to the withholding from any payments made by it on any Notes
of any applicable withholding taxes imposed thereon and with
respect to any applicable reporting requirements in connection
therewith.
The Issuer may at any time, and, at the direction of the
Surety Provider, shall, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, by Issuer Order direct any
Paying Agent to pay to the Indenture Trustee all sums held in trust by such
Paying Agent, such sums to be held by the Indenture Trustee upon the same trusts
as those upon which the sums were held by such Paying Agent; and upon such
payment by any Paying Agent to the Indenture Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Subject to applicable laws with respect to escheat of funds,
any money held by the Indenture Trustee or any Paying Agent in trust for the
payment of any amount due with respect to any Note and remaining unclaimed for
two years after such amount has become due and payable shall be discharged from
such trust and be paid to the Surety Provider to the extent of any unreimbursed
claims of the Surety Provider, including interest thereon from the date any such
claim was first made, and if all such claims of the Surety Provider have been
satisfied, to the Issuer on Issuer Request; and the Noteholder thereof shall
thereafter, as an unsecured general creditor, look only to the Issuer for
payment thereof (but only to the extent of the amounts so paid to the Issuer),
and all liability of the Indenture Trustee or such Paying Agent with respect to
such trust money shall thereupon cease; PROVIDED, HOWEVER, that the Indenture
Trustee or such Paying Agent, before being required to make any such repayment,
shall at the expense and direction of the Issuer cause to be published once, in
a newspaper published in the English language, customarily published on each
Business Day and of general circulation in The City of New York, notice that
such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Issuer. The Indenture
Trustee shall also adopt and employ, at the expense of the Issuer, any other
reasonable means of notification of such repayment (including mailing notice of
such repayment to Noteholders whose right to or interest in moneys due and
payable but not claimed is determinable from the records of the Indenture
Trustee or of any Paying Agent, at the last address of record for each such
Noteholder).
SECTION 3.4. EXISTENCE. The Issuer will keep in full effect
its existence and rights as a trust under the laws of the Commonwealth of
Pennsylvania (unless it becomes, or any successor Issuer hereunder is or
becomes, organized under the laws of any other State or of the United States of
America, in which case the Issuer will keep in full effect its existence and
rights under the laws of such other jurisdiction) and will obtain and preserve
its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Indenture, the Notes, the Collateral and each other
instrument or agreement included in the Indenture Trust Estate.
SECTION 3.5. PROTECTION OF INDENTURE TRUST ESTATE. The Issuer
will from time to time execute and deliver all such supplements and amendments
hereto and all such financing statements, continuation statements, instruments
of further assurance and other instruments, and will take such other action
necessary or advisable to:
(i) maintain or preserve the lien and security
interests (and the priority thereof) of this Indenture or
carry out more effectively the purposes hereof;
(ii) perfect, publish notice of or protect the validity
of any Grant made or to be made by this Indenture or any
Terms Supplement;
(iii) enforce any of the Collateral; or
(iv) preserve and defend title to the Indenture Trust
Estate and the rights of the Indenture Trustee and the
Noteholders in such Indenture Trust Estate against the claims
of all persons and parties.
The Issuer hereby designates the Indenture Trustee its agent and
attorney-in-fact to execute any financing statement, continuation statement or
other instrument required to be executed pursuant to this Section.
SECTION 3.6. OPINIONS AS TO INDENTURE TRUST ESTATE. On or
before April 30 in each calendar year, beginning with the first calendar year
commencing more than three months after the Closing Date for a Series, the
Administrator, on behalf of the Issuer, shall furnish to the Indenture Trustee
and the Surety Provider an Opinion of Counsel either stating that, in the
opinion of such counsel, such action has been taken with respect to the
recording, filing, rerecording and refiling of this Indenture, any indentures
supplemental hereto and any other requisite documents and with respect to the
execution and filing of any financing statements and continuation statements as
is necessary to maintain the lien and security interest created by this
Indenture and reciting the details of such action or stating that in the opinion
of such counsel no such action is necessary to maintain such lien and security
interest. Such Opinion of Counsel shall also describe the recording, filing,
re-recording and refiling of this Indenture, any indentures supplemental hereto
and any other requisite documents and the execution and filing of any financing
statements and continuation statements that will, in the opinion of such
counsel, be required to maintain the lien and security interest of this
Indenture until April 30 in the following calendar year.
SECTION 3.7. PERFORMANCE OF OBLIGATIONS; SERVICING OF FINANCED
STUDENT LOANS. (a) The Issuer will not take any action and will use its best
efforts not to permit any action to be taken by others that would release any
Person from any of such Person's material covenants or obligations under any
instrument or agreement included in the Indenture Trust Estate or that would
result in the amendment, hypothecation, subordination, termination or discharge
of, or impair the validity or effectiveness of, any such instrument or
agreement, except as expressly provided in this Indenture, the related Terms
Supplement or Sale and Servicing Agreement, the Supplemental Sale and Servicing
Agreement or such other instrument or agreement.
(b) With the written consent of the Surety Provider, the
Issuer may contract with other Persons to assist it in performing its duties
under this Indenture, and any performance of such duties by a Person identified
to the Indenture Trustee in an Officer's Certificate of the Issuer shall be
deemed to be action taken by the Issuer. Initially, the Issuer has contracted
with the Servicer and the Administrator to assist the Issuer in performing its
duties under this Indenture.
(c) The Issuer will punctually perform and observe all its
obligations and agreements contained in this Indenture, the other Basic
Documents and in the instruments and agreements included in the Indenture Trust
Estate, including filing or causing to be filed all UCC financing statements and
continuation statements required to be filed by the terms of this Indenture and
the related Terms Supplement and Sale and Servicing Agreement in accordance with
and within the time periods provided for herein and therein. Except as otherwise
expressly provided therein, the Issuer shall not waive, amend, modify,
supplement or terminate any Basic Document or any provision thereof without the
consent of the Surety Provider and either the Indenture Trustee or the
Noteholders of at least a majority of the Outstanding Amount of the Notes of
each Series then Outstanding.
(d) If the Issuer shall have knowledge of the occurrence of a
Servicer Default or an Administrator Default under the Sale and Servicing
Agreement, the Issuer shall promptly notify in writing the Indenture Trustee,
the Surety Provider and the Rating Agencies thereof, and shall specify in such
notice the action, if any, the Issuer is taking with respect to such default. If
a Servicer Default shall arise from the failure of the Servicer to perform any
of its duties or obligations under the Sale and Servicing Agreement or any
Supplemental Sale and Servicing Agreement, or an Administrator Default shall
arise from the failure of the Administrator to perform any of its duties or
obligations under the Sale and Servicing Agreement, any Supplemental Sale and
Servicing Agreement or the Administration Agreement, as the case may be, with
respect to the Financed Student Loans, the Issuer shall take all reasonable
steps available to it to enforce its rights under the Basic Documents in respect
of such failure and shall act in accordance with all directions of the Surety
Provider.
(e) As promptly as possible after the giving of notice of
termination to the Servicer of the Servicer's rights and powers, or to the
Administrator of the Administrator's rights and powers, pursuant to Section 8.1
of the related Sale and Servicing Agreement, the Issuer shall appoint a
successor servicer (the "Successor Servicer"), or a successor administrator (the
"Successor Administrator"), and such Successor Servicer or Administrator, as the
case may be, shall accept its appointment by a written assumption in a form
acceptable to the Indenture Trustee; PROVIDED, HOWEVER, that the Issuer shall
not appoint a Successor Servicer or Successor Administrator without obtaining
the prior written consent of the Surety Provider. In the event that a Successor
Servicer or Administrator has not been appointed and accepted its appointment at
the time when the Servicer or Administrator, as the case may be, ceases to act
as Servicer or Administrator, as the case may be, the Indenture Trustee without
further action shall automatically be appointed the Successor Servicer or
Administrator, as the case may be. The Indenture Trustee may resign as the
Servicer or the Administrator by giving written notice of such resignation to
the Issuer and the Surety Provider and in such event will be released from such
duties and obligations, such release not to be effective until the date a new
servicer or a new administrator enters into an agreement with the Issuer as
provided below. Upon delivery of any such notice to the Issuer, the Issuer
shall, with the written consent of the Surety Provider, obtain a new servicer or
a new administrator as the Successor Servicer or Administrator under the Sale
and Servicing Agreement. Any Successor Servicer or Administrator, as the case
may be, other than the Indenture Trustee shall (i) be an established institution
whose regular business includes the servicing or administration of student loans
and (ii) enter into a servicing agreement or an administration agreement with
the Issuer having substantially the same provisions as the provisions of the
Sale and Servicing Agreement and any Supplemental Sale and Servicing Agreement
applicable to the Servicer or the provisions of the Sale and Servicing
Agreement, any Supplemental Sale and Servicing Agreement and the Administration
Agreement applicable to the Administrator. If within 30 days after the delivery
of the notice referred to above, the Issuer shall not have obtained such a new
servicer or administrator, as the case may be, the Indenture Trustee may
appoint, or may petition a court of competent jurisdiction to appoint, a
Successor Servicer or Administrator; PROVIDED, HOWEVER, that such right to
appoint or to petition for the appointment of any such successor shall in no
event relieve the Indenture Trustee from any obligations otherwise imposed on it
under the Basic Documents until such successor has in fact assumed such
appointment. In connection with any such appointment, the Indenture Trustee may
make such arrangements for the compensation of such successor as it and such
successor shall agree, subject to the limitations set forth below and in the
Sale and Servicing Agreement, and in accordance with Section 8.2 of the Sale and
Servicing Agreement, the Issuer shall enter into an agreement with such
successor for the servicing or administration of the Financed Student Loans
(such Agreement to be in form and substance satisfactory to the Indenture
Trustee and the Surety Provider). If the Indenture Trustee shall succeed as
provided herein to the Servicer's duties as servicer with respect to the
Financed Student Loans, or the Administrator's duties with respect to the Issuer
and the Financed Student Loans, as the case may be, it shall do so in its
individual capacity and not in its capacity as Indenture Trustee and,
accordingly, the provisions of Article VI hereof shall be inapplicable to the
Indenture Trustee in its duties as the successor to the Servicer or the
Administrator, as the case may be, and the servicing or administration of the
Financed Student Loans. In case the Indenture Trustee shall become successor to
the Servicer or the Administrator, as the case may be, under the related Sale
and Servicing Agreement, the Indenture Trustee shall be entitled to appoint as
Servicer or as Administrator, as the case may be, any one of its affiliates or
an agent, provided that it shall be fully liable for the actions and omissions
of such affiliate or agent in such capacity as Successor Servicer or
Administrator.
(f) Upon any termination of the Servicer's rights and powers
pursuant to the related Sale and Servicing Agreement, or any termination of the
Administrator's rights and powers pursuant to the related Sale and Servicing
Agreement, as the case may be, the Issuer shall promptly notify the Indenture
Trustee and the Surety Provider. As soon as a Successor Servicer or a Successor
Administrator is appointed, the Issuer shall notify the Indenture Trustee and
the Surety Provider of such appointment, specifying in such notice the name and
address of such Successor Servicer or such Successor Administrator.
(g) Without derogating from the absolute nature of the
assignment Granted to the Indenture Trustee under any Terms Supplement or the
rights of the Indenture Trustee hereunder, the Issuer agrees that it will not,
without the prior written consent of the Surety Provider and either the
Indenture Trustee or the Noteholders of at least a majority in Outstanding
Amount of the Notes of each Series then outstanding, amend, modify, waive,
supplement, terminate or surrender, or agree to any amendment, modification,
supplement, termination, waiver or surrender of, the terms of (i) any portion of
the Trust Estate, or, as applicable, (ii) the Basic Documents, except to the
extent otherwise provided in the related Sale and Servicing Agreement, or waive
timely performance or observance by the Servicer, the Administrator, the Seller,
the Issuer or the Eligible Lender Trustee under the related Sale and Servicing
Agreement and the Supplemental Sale and Servicing Agreement; PROVIDED, HOWEVER,
that no such amendment shall (i) increase or reduce in any manner the amount of,
or accelerate or delay the timing of, distributions that are required to be made
for the benefit of the Noteholders, or (ii) reduce the aforesaid percentage of
the Notes which are required to consent to any such amendment, without the
consent of the Noteholders of all the Outstanding Notes. If any such amendment,
modification, supplement or waiver should be so consented to by the Indenture
Trustee or such Noteholders, the Issuer agrees, promptly following a request by
the Indenture Trustee to do so, to execute and deliver, in its own name and at
its own expense, such agreements, instruments, consents and other documents as
the Indenture Trustee may deem necessary or appropriate in the circumstances.
SECTION 3.8. NEGATIVE COVENANTS. So long as any Notes are
Outstanding, the Issuer shall not:
(i) except as expressly permitted by this Indenture
or any other Basic Documents, sell, transfer, exchange or
otherwise dispose of any of the properties or assets of the
Issuer, including those included in the Indenture Trust
Estate, unless directed to do so by the Indenture Trustee and
the Surety Provider has approved of such action;
(ii) claim any credit on, or make any deduction from
the principal of or interest on (including any Noteholders'
Auction Rate Interest Carryover) any of the Notes (other than
amounts properly withheld from such payments under the Code or
applicable state law) or assert any claim against any present
or former Noteholder by reason of the payment of the taxes
levied or assessed upon any part of the Indenture Trust
Estate;
(iii) except as contemplated by the Basic Documents,
dissolve or liquidate in whole or in part; or
(iv) (A) permit the validity or effectiveness of this
Indenture or any Terms Supplement to be impaired, or permit
the lien of this Indenture and any Terms Supplement to be
amended, hypothecated, subordinated, terminated or discharged,
or permit any Person to be released from any covenants or
obligations with respect to the Notes under this Indenture
except as may be expressly permitted hereby, (B) permit any
lien, charge, excise, claim, security interest, mortgage or
other encumbrance (other than the lien of this Indenture and
any Terms Supplement) to be created on or extend to or
otherwise arise upon or burden the Indenture Trust Estate or
any part thereof or any interest therein or the proceeds
thereof (other than tax liens and other liens that arise by
operation of law, in each case arising solely as a result of
an action or omission of the related Obligor, and other than
as expressly permitted by the Basic Documents) or (C) permit
the lien of this Indenture and any Terms Supplement not to
constitute a valid first priority (other than with respect to
any such tax or other lien) security interest in the Indenture
Trust Estate.
SECTION 3.9. ANNUAL STATEMENT AS TO COMPLIANCE. The
Administrator, on behalf of the Issuer, will deliver to the Indenture Trustee
and the Surety Provider, within 120 days after the first fiscal year of the
Issuer that ends more than three months after the Closing Date for a Series, and
each fiscal year thereafter, an Officer's Certificate of the Issuer stating
that:
(i) a review of the activities of the Issuer during
such year and of performance under this Indenture has been
made under such Authorized Officers' supervision; and
(ii) to the best of such Authorized Officers' knowledge,
based on such review, the Issuer has complied with all
conditions and covenants under this Indenture throughout such
year, or, if there has been a default in the compliance of any
such condition or covenant, specifying each such default known
to such Authorized Officers and the nature and status thereof.
SECTION 3.10. ISSUER MAY CONSOLIDATE, ETC., ONLY ON
CERTAIN TERMS. (a) The Issuer shall not consolidate or merge with or into
any other Person, unless:
(i) the Person (if other than the Issuer) formed by
or surviving such consolidation or merger shall be a Person
organized and existing under the laws of the United States of
America or any State and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the
Indenture Trustee, in form satisfactory to the Indenture
Trustee, the due and punctual payment of the principal of and
interest on and any Noteholders' Auction Rate Interest
Carryover, if any, with respect to all Notes and the
performance or observance of every agreement and covenant of
this Indenture and any Terms Supplement on the part of the
Issuer to be performed or observed, all as provided herein or
therein;
(ii) immediately after giving effect to such
transaction, no Default shall have occurred and be
continuing;
(iii) the Rating Agency Condition shall have been
satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel
(and shall have delivered copies thereof to the Indenture
Trustee) to the effect that such transaction will not have any
material adverse Federal or Pennsylvania state tax consequence
to the Issuer, any Noteholder or any Certificateholder;
(v) any action as is necessary to maintain the lien
and security interest created by this Indenture shall have
been taken;
(vi) the Surety Provider shall have furnished its
written consent to such transaction; and
(vii) the Issuer shall have delivered to the Indenture
Trustee an Officer's Certificate of the Issuer and an Opinion
of Counsel each stating that such consolidation or merger and
such supplemental indenture comply with this Article III and
that all conditions precedent herein provided for relating to
such transaction have been complied with (including any filing
required by the Exchange Act).
(b) The Issuer shall not convey or transfer all or
substantially all its properties or assets, including those included in the
Indenture Trust Estate, to any Person, unless:
(i) the Person that acquires by conveyance or
transfer the properties and assets of the Issuer the
conveyance or transfer of which is hereby restricted shall (A)
be a United States citizen or a Person organized and existing
under the laws of the United States of America or any State,
(B) expressly assumes, by an indenture supplemental hereto,
executed and delivered to the Indenture Trustee, in form
satisfactory to the Indenture Trustee, the due and punctual
payment of the principal of and interest on and Noteholders'
Auction Rate Interest Carryover, if any, with respect to all
Notes and the performance or observance of every agreement and
covenant of this Indenture on the part of the Issuer to be
performed or observed, all as provided herein, (C) expressly
agrees by means of such supplemental indenture that all right,
title and interest so conveyed or transferred shall be subject
and subordinate to the rights of Noteholders, (D) unless
otherwise provided in such supplemental indenture, expressly
agrees to indemnify, defend and hold harmless the Issuer
against and from any loss, liability or expense arising under
or related to this Indenture and the Notes and (E) expressly
agrees by means of such supplemental indenture that such
Person (or if a group of Persons, then one specified Person)
shall make all filings with the Commission (and any other
appropriate Person) required by the Exchange Act in connection
with the Notes;
(ii) immediately after giving effect to such
transaction, no Default shall have occurred and be
continuing;
(iii) the Rating Agency Condition shall have been
satisfied with respect to such transaction;
(iv) the Issuer shall have received an Opinion of Counsel
(and shall have delivered copies thereof to the Indenture
Trustee) to the effect that such transaction will not have any
material adverse Federal or Pennsylvania state tax consequence
to the Issuer, any Noteholder or any Certificateholder;
(v) any action as is necessary to maintain the lien
and security interest created by this Indenture shall have
been taken;
(vi) the Surety Provider shall have furnished its
written consent to such transaction; and
(vii) the Issuer shall have delivered to the Indenture
Trustee an Officer's Certificate of the Issuer and an Opinion
of Counsel each stating that such conveyance or transfer and
such supplemental indenture comply with this Article III and
that all conditions precedent herein provided for relating to
such transaction have been complied with (including any filing
required by the Exchange Act).
SECTION 3.11. SUCCESSOR OR TRANSFEREE. (a) Upon any
consolidation or merger of the Issuer in accordance with Section 3.10(a), the
Person formed by or surviving such consolidation or merger (if other than the
Issuer) shall succeed to, and be substituted for, and may exercise every right
and power of, the Issuer under this Indenture and any Terms Supplement with the
same effect as if such Person had been named as the Issuer herein.
(b) Upon a conveyance or transfer of all the assets and
properties of the Issuer pursuant to Section 3.10(b), [Trust 199_-_]
will be released from every covenant and agreement of this Indenture to
be observed or performed on the part of the Issuer with respect to the Notes
immediately upon the delivery by the Issuer of written notice to the Indenture
Trustee stating that [Trust 199_-_] is to be so released.
SECTION 3.12. NO OTHER BUSINESS. The Issuer shall not engage
in any business other than financing, purchasing, owning, selling, servicing and
managing Financed Student Loans and making Additional Fundings in the manner
contemplated by this Indenture and the other Basic Documents and activities
incidental thereto. After each Funding Period, the Issuer shall not fund the
purchase of any Additional Student Loans or make any other Additional Fundings
with respect to the related Series of Notes.
SECTION 3.13. NO BORROWING. The Issuer shall not issue, incur,
assume, guarantee or otherwise become liable, directly or indirectly, for any
indebtedness except for the Notes and such other obligations as are authorized
under the Basic Documents.
SECTION 3.14. OBLIGATIONS OF MASTER SERVICER AND
ADMINISTRATOR. The Issuer shall cause the Master Servicer to comply with
Sections 4.8(a) and (b), 4.9, 4.10, 4.11, 5.5 and 5.6 of the Sale and Servicing
Agreement and the Administrator to comply with Sections 4.7, 4.8(a), 4.8(c),
4.9, 5.6 and 5.7 thereof.
SECTION 3.15. GUARANTEES, LOANS, ADVANCES AND OTHER
LIABILITIES. Except as contemplated by the Sale and Servicing Agreement, any
Supplemental Sale and Servicing Agreement this Indenture or any Terms
Supplement, the Issuer shall not make any loan or advance or credit to, or
guarantee (directly or indirectly or by an instrument having the effect of
assuring another's payment or performance on any obligation or capability of so
doing or otherwise), endorse or otherwise become contingently liable, directly
or indirectly, in connection with the obligations, stocks or dividends of, or
own, purchase, repurchase or acquire (or agree contingently to do so) any stock,
obligations, assets or securities of, or any other interest in, or make any
capital contribution to, any other Person.
SECTION 3.16. CAPITAL EXPENDITURES. The Issuer shall not
make any expenditure (by long-term or operating lease or otherwise)
for capital assets (either realty or personalty).
SECTION 3.17. RESTRICTED PAYMENTS. The Issuer shall not,
directly or indirectly, (i) pay any dividend or make any distribution (by
reduction of capital or otherwise), whether in cash, property, securities or a
combination thereof, to the Eligible Lender Trustee or any owner of a beneficial
interest in the Issuer or otherwise with respect to any ownership or equity
interest or security in or of the Issuer or to the Servicer or the
Administrator, (ii) redeem, purchase, retire or otherwise acquire for value any
such ownership or equity interest or security or (iii) set aside or otherwise
segregate any amounts for any such purpose; PROVIDED, HOWEVER, that the Issuer
may make, or cause to be made, distributions to the Servicer, the Eligible
Lender Trustee, the Indenture Trustee, the Certificateholders, the Noteholders,
the Surety Provider, the Administrator, the Auction Agent and the Seller as
contemplated by, and to the extent funds are available for such purpose under,
the Sale and Servicing Agreement.
SECTION 3.18. NOTICE OF EVENTS OF DEFAULT. The Issuer shall
give the Indenture Trustee, the Surety Provider and the Rating Agencies prompt
written notice of each Event of Default hereunder and each default on the part
of the Seller of its obligations under the Sale and Servicing Agreement or any
Supplemental Sale and Servicing Agreement, the Servicer of its obligations under
the Sale and Servicing Agreement or any Supplemental Sale and Servicing
Agreement or the Administrator of its obligations under the Sale and Servicing
agreement, any Supplemental Sale and Servicing Agreement or the Administration
Agreement. In addition, the Issuer shall deliver to the Indenture Trustee and
the Surety Provider, within five days after the occurrence thereof, written
notice in the form of an Officer's Certificate of the Issuer of any event which
with the giving of notice and the lapse of time would become an Event of Default
under Section 5.1(iii), its status and what action the Issuer is taking or
proposes to take with respect thereto.
SECTION 3.19. FURTHER INSTRUMENTS AND ACTS. Upon request of
the Indenture Trustee, the Issuer will execute and deliver such further
instruments and do such further acts as may be reasonably necessary or proper to
carry out more effectively the purpose of this Indenture.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1. SATISFACTION AND DISCHARGE OF INDENTURE. This
Indenture shall cease to be of further effect with respect to a Series of Notes
except as to (i) rights of registration of transfer and exchange, (ii)
substitution of mutilated, destroyed, lost or stolen Notes of such Series, (iii)
rights of Noteholders to receive payments of principal thereof and interest
(including Noteholders' Auction Rate Interest Carryover) thereon, (iv) Sections
3.3, 3.4, 3.5, 3.8, 3.10, 3.12, 3.13 and 3.15 of this Agreement, (v) the rights,
obligations and immunities of the Indenture Trustee hereunder (including the
rights of the Indenture Trustee under Section 6.7 and the obligations of the
Indenture Trustee under Section 4.2), and (vi) the rights of Noteholders as
beneficiaries hereof with respect to the property so deposited with the
Indenture Trustee payable to all or any of them, and the Indenture Trustee, on
demand of and at the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to the
Notes, when:
(A) either
(1) all Notes of such Series theretofore
authenticated and delivered (other than (i) Notes that have
been destroyed, lost or stolen and that have been replaced or
paid as provided in Section 2.7 and (ii) Notes for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Issuer and thereafter
repaid to the Issuer or discharged from such trust, as
provided in Section 3.3) have been delivered to the Indenture
Trustee for cancellation; or
(2) all Notes of such Series not theretofore
delivered to the Indenture Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable within one year,
and the Issuer, in the case of (i) or (ii) above, has
irrevocably deposited or caused to be irrevocably deposited
with the Indenture Trustee cash or direct obligations of or
obligations guaranteed by the United States of America (which
will mature prior to the date such amounts are payable), in
trust for such purpose, in an amount sufficient to pay and
discharge the entire indebtedness on such Series of Notes not
theretofore delivered to the Indenture Trustee for
cancellation when due to the applicable Final Maturity Date;
(B) the Issuer has paid or caused to be paid all
other sums payable hereunder by the Issuer with respect to
such Series;
(C) the Surety Provider has received all premiums due
under the Insurance Agreement and has been reimbursed for all
claims paid and interest thereon since the date any such claim
was made pursuant to the Sale and Servicing Agreement; and
(D) the Issuer has delivered to the Indenture Trustee
and the Surety Provider an Officer's Certificate of the
Issuer, an Opinion of Counsel and (if required by the TIA or
either the Indenture Trustee or the Surety Provider) an
Independent Certificate from a firm of certified public
accountants, each meeting the applicable requirements of
Section 11.1(a) and, subject to Section 11.2, each stating
that all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture with respect
to such Series have been complied with.
SECTION 4.2. APPLICATION OF TRUST MONEY. All moneys deposited
with the Indenture Trustee pursuant to Section 4.1 hereof shall be held in trust
and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent, as the
Indenture Trustee may determine, to the Noteholders of the particular Notes for
the payment of which such moneys have been deposited with the Indenture Trustee,
of all sums due and to become due thereon for principal and interest (including
Noteholders' Auction Rate Interest Carryover); but such moneys need not be
segregated from other funds except to the extent required herein or in the Sale
and Servicing Agreement or required by law.
SECTION 4.3. REPAYMENT OF MONEYS HELD BY PAYING AGENT. In
connection with the satisfaction and discharge of this Indenture with
respect to a Series of Notes, all moneys then held by any Paying Agent other
than the Indenture Trustee under the provisions of this Indenture with respect
to such Series of Notes shall, upon demand of the Issuer, be paid to the
Indenture Trustee to be held and applied according to Section 3.3 and thereupon
such Paying Agent shall be released from all further liability with respect to
such moneys.
ARTICLE V
REMEDIES
SECTION 5.1. EVENTS OF DEFAULT. "Event of Default," wherever
used herein, means, with respect to all Outstanding Notes issued hereunder, any
one of the following events (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(i) default in the payment of any interest on any
Note of any Series (other than Noteholders' Auction Rate
Interest Carryover) when the same becomes due and payable, and
such default shall continue for a period of two Business Days;
or
(ii) default in the payment of the principal of any Note
of any Series when the same becomes due and payable, and such
default shall continue for a period of two Business Days; or
(iii) default in the observance or performance of any
covenant or agreement of the Issuer made in this Indenture,
the Insurance Agreement or the Sale and Servicing Agreement
(other than a covenant or agreement, a default in the
observance or performance of which is specifically dealt with
elsewhere in this Section), or any representation or warranty
of the Issuer made in this Indenture or in any certificate or
other writing delivered pursuant hereto or in connection
herewith proving to have been incorrect in any material
respect as of the time when the same shall have been made, and
such default shall continue or not be cured, or the
circumstance or condition in respect of which such
misrepresentation or warranty was incorrect shall not have
been eliminated or otherwise cured, for a period of 30 days
after there shall have been given, by registered or certified
mail, to the Issuer by the Indenture Trustee or the Surety
Provider or to the Issuer, the Indenture Trustee and the
Surety Provider by the Noteholders of at least 25% of the
Outstanding Amount of the Outstanding Notes, a written notice
specifying such default or incorrect representation or
warranty and requiring it to be remedied and stating that such
notice is a notice of Default hereunder; or
(iv) the filing of a decree or order for relief by a court
having jurisdiction in the premises in respect of the Issuer
or any substantial part of the Indenture Trust Estate in an
involuntary case under any applicable Federal or state
bankruptcy, insolvency or other similar law now or hereafter
in effect, or appointing a receive, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the
Issuer or for any substantial part of the Indenture Trust
Estate, or ordering the winding-up or liquidation of the
Issuer's affairs, and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(v) the commencement by the Issuer of a voluntary
case under any applicable Federal or state bankruptcy,
insolvency or other similar law now or hereafter in effect, or
the consent by the Issuer to the entry of an order for relief
in an involuntary case under any such law, or the consent by
the Issuer to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of the Issuer or for any
substantial part of the Indenture Trust Estate, or the making
by the Issuer of any general assignment for the benefit of
creditors, or the failure by the Issuer generally to pay its
debt as such debts become due, or the taking of action by the
Issuer in furtherance of any of the foregoing.
SECTION 5.2. ACCELERATION OF MATURITY; RESCISSION AND
ANNULMENT. If an Event of Default should occur and be continuing with respect to
any Series of Notes, then and in every such case the Surety Provider may, or the
Indenture Trustee or Noteholders of Notes representing no less than a majority
of the Outstanding Amount of the Outstanding Notes may, after obtaining the
written consent of the Surety Provider, declare all the Outstanding Notes to be
immediately due and payable, by a notice in writing to the Issuer (and to the
Indenture Trustee and the Surety Provider if given by Noteholders), and upon any
such declaration the unpaid principal amount of all the Outstanding Notes,
together with accrued and unpaid interest thereon and any outstanding
Noteholders' Auction Rate Interest Carryover through the date of acceleration,
shall become immediately due and payable.
At any time after such a declaration of acceleration of
maturity of the Outstanding Notes has been made and before a judgment or decree
for payment of the money due has been obtained by the Indenture Trustee as
hereinafter in this Article V provided, the Surety Provider or, after obtaining
the written consent of the Surety Provider, the Noteholders of Notes
representing a majority of the Outstanding Amount of the Outstanding Notes, by
written notice to the Issuer and the Indenture Trustee, may, rescind and annul
such declaration and its consequences if:
(i) the Issuer has paid or deposited with the
Indenture Trustee a sum sufficient to pay
(A) all payments of principal of and
interest on all Outstanding Notes and all other
amounts that would then be due hereunder or upon such
Notes if the Event of Default giving rise to such
acceleration had not occurred; and
(B) all sums paid or advanced by the
Indenture Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of
the Indenture Trustee and its agents and counsel; and
(ii) all Events of Default, other than the nonpayment of
the principal of the Outstanding Notes that has become due
solely by such acceleration, have been cured or waived as
provided in Section 5.12.
No such rescission shall affect any subsequent default or
impair any right consequent thereto.
SECTION 5.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY INDENTURE TRUSTEE. (a) The Issuer covenants that if (i) default
is made in the payment of any interest on any Series of Notes (other than
Noteholders' Auction Rate Interest Carryover) when the same becomes due and
payable, and such default continues for a period of five days, or (ii) default
is made in the payment of the principal of or any installment of the principal
of any Series of Notes when the same becomes due and payable, and such default
continues for a period of five days the Issuer will, upon demand of the Surety
Provider or, if the Surety Provider consents, the Indenture Trustee, pay to the
Indenture Trustee, for the benefit of the Noteholders, the whole amount then due
and payable on the Outstanding Notes for principal and interest (and any
Noteholders' Auction Rate Interest Carryover), with interest upon the overdue
principal, and, to the extent payment at such rate of interest shall be legally
enforceable, upon overdue installments of interest (and any Noteholders' Auction
Rate Interest Carryover), at the respective Note Interest Rate and in addition
thereto such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Indenture Trustee and its agents and counsel.
(b) In case the Issuer shall fail forthwith to pay such
amounts upon such demand, the Indenture Trustee, in its own name and as trustee
of an express trust, may institute a Proceeding for the collection of the sums
so due and unpaid, and may prosecute such Proceeding to judgment or final
decree, and may enforce the same against the Issuer or other obligor upon any
Series of Notes and collect in the manner provided by law out of the property of
the Issuer or other obligor upon any Series of Notes, wherever situated, the
moneys adjudged or decreed to be payable.
(c) If an Event of Default occurs and is continuing, the
Indenture Trustee may, as more particularly provided in Section 5.4, in its
discretion, proceed to protect and enforce its rights and the rights of the
Noteholders, by such appropriate Proceedings as the Indenture Trustee shall deem
most effective to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy or
legal or equitable right vested in the Indenture Trustee by this Indenture or by
law.
(d) In case there shall be pending, relative to the Issuer or
any other obligor upon the Notes or any Person having or claiming an ownership
interest in the Indenture Trust Estate, Proceedings under Title 11 of the United
States Code or any other applicable Federal or State bankruptcy, insolvency or
other similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other
obligor or Person, or in case of any other comparable judicial Proceedings
relative to the Issuer or other obligor upon the Notes, or to the creditors or
property of the Issuer or such other obligor, the Indenture Trustee,
irrespective of whether the principal of any Notes shall then be due and payable
as therein expressed or by declaration or otherwise and irrespective of whether
the Indenture Trustee shall have made any demand pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(i) to file and prove a claim or claims for the whole
amount of principal and interest (including any Noteholders'
Auction Rate Interest Carryover) owing and unpaid in respect
of such Series of Notes and to file such other papers or
documents as may be necessary or advisable in order to have
the claims of the Indenture Trustee (including any claim for
reasonable compensation to the Indenture Trustee and each
predecessor Indenture Trustee, and their respective agents,
attorneys and counsel, and for reimbursement of all expenses
and liabilities incurred, and all advances made, by the
Indenture Trustee and each predecessor Indenture Trustee,
except as a result of negligence or bad faith) and of the
Noteholders allowed in such Proceedings;
(ii) unless prohibited by applicable law and regulations,
to vote on behalf of the Noteholders in any election of a
trustee, a standby trustee or Person performing similar
functions in any such Proceedings;
(iii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute
all amounts received with respect to the claims of the
Noteholders and of the Indenture Trustee on their behalf; and
(iv) to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have
the claims of the Indenture Trustee or the Noteholders allowed
in any judicial proceedings relative to the Issuer, its
creditors and its property;
and any trustee, receiver, liquidator, custodian or other similar official in
any such Proceeding is hereby authorized by each of such Noteholders to make
payments to the Indenture Trustee, and, in the event that the Indenture Trustee
shall consent to the making of payments directly to such Noteholders, to pay to
the Indenture Trustee such amounts as shall be sufficient to cover reasonable
compensation to the Indenture Trustee, each predecessor Indenture Trustee and
their respective agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Indenture Trustee and each
predecessor Indenture Trustee except as a result of negligence or bad faith.
(e) Nothing herein contained shall be deemed to authorize the
Indenture Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Noteholder any plan of reorganization, arrangement, adjustment or
composition affecting the Outstanding Notes or the rights of any Noteholder
thereof or to authorize the Indenture Trustee to vote in respect of the claim of
any Noteholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar Person.
(f) All rights of action and of asserting claims under this
Indenture, or under any of the Outstanding Notes, may be enforced by the
Indenture Trustee without the possession of any of the Outstanding Notes or the
production thereof in any trial or other Proceedings relative thereto, and any
such action or Proceedings instituted by the Indenture Trustee shall be brought
in its own name as trustee of an express trust, and any recovery of judgment,
subject to the payment of the expenses, disbursements and compensation of the
Indenture Trustee, each predecessor Indenture Trustee and their respective
agents and attorneys, shall be for the ratable benefit of the Noteholders.
(g) In any Proceedings brought by the Indenture Trustee (and
also any Proceedings involving the interpretation of any provision of this
Indenture to which the Indenture Trustee shall be a party), the Indenture
Trustee shall be held to represent all the Noteholders, and it shall not be
necessary to make any Noteholder a party to any such Proceedings.
SECTION 5.4. REMEDIES; PRIORITIES. (a) If an Event of Default
shall have occurred and be continuing in respect of the Outstanding Notes and
the Outstanding Notes have been declared due and payable and such declaration
and its consequences have not been rescinded and annulled, the Indenture Trustee
may do one or more of the following (subject to Section 5.5):
(i) institute Proceedings in its own name and as
trustee of an express trust for the collection of all amounts
then payable on the Outstanding Notes or under this Indenture
with respect of Notes, whether by declaration or otherwise,
enforce any judgment obtained, and collect from the Issuer and
any other obligor upon such Outstanding Notes moneys adjudged
due;
(ii) institute Proceedings from time to time for the
complete or partial foreclosure of this Indenture with respect
to the Indenture Trust Estate securing the Outstanding Notes;
(iii) exercise any remedies of a secured party under the
UCC and take any other appropriate action to protect and
enforce the rights and remedies of the Indenture Trustee and
the Noteholders; and
(iv) sell the Indenture Trust Estate or any portion
thereof or rights or interest therein, at one or more public
or private sales called and conducted in any manner permitted
by law;
PROVIDED, HOWEVER, that the Indenture Trustee may not sell or otherwise
liquidate the Indenture Trust Estate following an Event of Default, other than
an Event of Default described in Section 5.1(i) or (ii), unless the Surety
Provider has given its written consent and (A) the Noteholders of 100% of the
Outstanding Amount of the Notes of such Series consent thereto, (B) the proceeds
of such sale or liquidation distributable to the Noteholders are sufficient to
discharge in full all amounts then due and unpaid upon the Outstanding Notes for
principal and interest or (C) the Indenture Trustee determines that the
Indenture Trust Estate will not continue to provide sufficient funds for the
payment of principal of and interest on the Notes as they would have become due
if the Outstanding Notes had not been declared due and payable, and the
Indenture Trustee obtains the consent of Noteholders of 66-2/3% of the
Outstanding Amount of all the Outstanding Notes. In determining such sufficiency
or insufficiency with respect to clause (B) and (C), the Indenture Trustee may,
but need not, obtain and rely upon an opinion of an Independent investment
banking or accounting firm of national reputation as to the feasibility of such
proposed action and as to the sufficiency of the Indenture Trust Estate for such
purpose.
(b) If the Indenture Trustee collects any money or property
pursuant to this Article V, it shall pay out the money or property in the
following order:
FIRST: to the Indenture Trustee for amounts due
under Section 6.7;
SECOND: to the Eligible Lender Trustee for amounts
due under the Trust Agreement and the Sale and Servicing
Agreement;
THIRD: to Noteholders for amounts due and unpaid on
each Series of Notes for interest, ratably, without
preference or priority of any kind, according to the
amounts due and payable on each Series of Notes for interest;
FOURTH: to Noteholders for amounts due and unpaid on
the Notes of each Series for principal, ratably, without
preference or priority of any kind, according to the
amounts due and payable on the Notes of each Series for
principal;
FIFTH: to the Issuer for distribution of principal
and interest due and unpaid to the Certificateholders;
SIXTH: to the Surety Provider for amounts due for
unreimbursed Note and Certificate Surety Bond Payments
previously made or any unpaid premiums;
SEVENTH: to the Servicer, for any unpaid Servicing
Fee Carryovers; and
EIGHTH: to the Issuer, for distribution in accordance
with the terms of the Sale and Servicing Agreement, and any
related Supplemental Sale and Servicing Agreements.
The Indenture Trustee may fix a record date and payment date
for any payment to Noteholders pursuant to this Section. At least 15 days before
such record date, the Issuer shall mail to each Noteholder and the Indenture
Trustee a notice that states the record date, the payment date and the amount to
be paid.
SECTION 5.5. OPTIONAL PRESERVATION OF THE FINANCED STUDENT
LOANS. If the Outstanding Notes have been declared to be due and payable under
Section 5.2 following an Event of Default and such declaration and its
consequences have not been rescinded and annulled, the Indenture Trustee may,
but need not, elect to maintain possession of the Indenture Trust Estate. It is
the desire of the parties hereto and the Noteholders that there be at all times
sufficient funds for the payment of principal of and interest (including any
Noteholders' Auction Rate Interest Carryover) on the Notes, and the Indenture
Trustee shall take such desire into account when determining whether or not to
maintain possession of the Indenture Trust Estate. In determining whether to
maintain possession of the Indenture Trust Estate, the Indenture Trustee may,
but need not, obtain and rely upon an opinion of an Independent investment
banking or accounting firm of national reputation as to the feasibility of such
proposed action and as to the sufficiency of the Indenture Trust Estate for such
purpose.
SECTION 5.6. LIMITATION OF SUITS. No Noteholder of any Series
shall have any right to institute any Proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
(i) such Noteholder has previously given written
notice to the Indenture Trustee of a continuing Event of
Default;
(ii) the Noteholders of not less than 25% of the
Outstanding Notes have made written request to the Indenture
Trustee to institute such Proceeding in respect of such Event
of Default in its own name as Indenture Trustee hereunder;
(iii) such Noteholder or Noteholders have offered to
the Indenture Trustee reasonable indemnity against the costs,
expenses and liabilities to be incurred in complying with
such request;
(iv) the Indenture Trustee for 60 days after its receipt
of such notice, request and offer of indemnity has failed to
institute such Proceeding; and
(v) no direction inconsistent with such written request
has been given to the Indenture Trustee during such 60-day
period by the Noteholders of a majority of the Outstanding
Amount of the Notes of such Series;
it being understood and intended that no one or more Noteholders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other
Noteholders or to obtain or to seek to obtain priority or preference over any
other Noteholders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all Noteholders.
In the event the Indenture Trustee shall receive conflicting
or inconsistent requests and indemnity from two or more groups of Noteholders,
each representing less than a majority of the Outstanding Amount of the
Outstanding Notes, the Indenture Trustee in its sole discretion may determine
what action, if any, shall be taken, notwithstanding any other provisions of
this Indenture based upon the larger percentage of Noteholders as of a date
certain.
SECTION 5.7. UNCONDITIONAL RIGHTS OF NOTEHOLDERS TO RECEIVE
PRINCIPAL AND INTEREST. Notwithstanding any other provisions in this Indenture,
any Noteholder shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest, if any, on such Note on or
after the respective due dates thereof expressed in such Note or in this
Indenture and to institute suit for the enforcement of any such payment, and
such right shall not be impaired without the consent of such Noteholder.
SECTION 5.8. RESTORATION OF RIGHTS AND REMEDIES. If the
Indenture Trustee or any Noteholder has instituted any Proceeding to enforce any
right or remedy under this Indenture and such Proceeding has been discontinued
or abandoned for any reason or has been determined adversely to the Indenture
Trustee or to such Noteholder, then and in every such case the Issuer, the
Indenture Trustee and the Noteholders shall, subject to any determination in
such Proceeding, be restored severally and respectively to their former
positions hereunder, and thereafter all rights and remedies of the Indenture
Trustee and the Noteholders shall continue as though no such Proceeding had been
instituted.
SECTION 5.9. RIGHTS AND REMEDIES CUMULATIVE. No right or
remedy herein conferred upon or reserved to the Indenture Trustee or to the
Noteholders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.10. DELAY OR OMISSION NOT A WAIVER. No delay or
omission of the Indenture Trustee or any Noteholder to exercise any right or
remedy accruing upon any Default shall impair any such right or remedy or
constitute a waiver of any such Default or an acquiescence therein. Every right
and remedy given by this Article V or by law to the Indenture Trustee or to the
Noteholders may be exercised from time to time, and as often as may be deemed
expedient, by the Indenture Trustee or by the Noteholders, as the case may be.
SECTION 5.11. CONTROL BY NOTEHOLDERS. The Noteholders of a
majority of the Outstanding Amount of the Notes shall have the right to direct
the time, method and place of conducting any Proceeding for any remedy available
to the Indenture Trustee with respect to the Notes or exercising any trust or
power conferred on the Indenture Trustee; PROVIDED that
(i) such direction shall not be in conflict with any
rule of law or with this Indenture;
(ii) subject to the express terms of Section 5.4, any
direction to the Indenture Trustee to sell or liquidate the
Indenture Trust Estate shall be by the Noteholders of not less
than 100% of the Outstanding Amount of the Notes of each
Series;
(iii) if the conditions set forth in Section 5.5 have been
satisfied and the Indenture Trustee elects to retain the
Indenture Trust Estate pursuant to such Section, then any
direction to the Indenture Trustee by Noteholders of less than
100% of the Outstanding Amount of the Notes of each Series to
sell or liquidate the Indenture Trust Estate shall be of no
force and effect;
(iv) the Surety Provider has given its consent
thereto; and
(v) the Indenture Trustee may take any other action
deemed proper by the Indenture Trustee that is not
inconsistent with such direction;
PROVIDED, HOWEVER, that, subject to Section 6.1, the Indenture Trustee need not
take any action that it determines might involve it in liability or might
materially adversely affect the rights of any Noteholders not consenting to such
action.
SECTION 5.12. WAIVER OF PAST DEFAULTS. Prior to the time a
judgment or decree for payment of money due has been obtained as described in
Section 5.2, the Noteholders of not less than a majority of the Outstanding
Amount of the Notes of a Series may, after obtaining the written consent of the
Surety Provider, waive any past Default hereunder and its consequences except a
Default (a) in payment when due of principal of or interest on any of the
Outstanding Notes or (b) in respect of a covenant or provision hereof which
cannot be modified or amended without the consent of each Noteholder. In the
case of any such waiver, the Issuer, the Indenture Trustee and the Noteholders
shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other Default or impair any
right consequent thereto.
Upon any such waiver, such Default shall cease but to exist
and be deemed to have been cured and not to have occurred for every purpose of
this Indenture; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereto.
SECTION 5.13. UNDERTAKING FOR COSTS. All parties to this
Indenture agree, not in their individual capacity but solely in their capacity
as Indenture Trustee or Eligible Lender Trustee, as applicable, and each
Noteholder by such Noteholder's acceptance of any Note shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Indenture Trustee for any action taken, suffered or omitted by it as
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to (a) any suit instituted by the
Indenture Trustee, (b) any suit instituted by any Noteholder, or group of
Noteholders, in each case holding in the aggregate more than 10% of the
Outstanding Amount of the Outstanding Notes or (c) any suit instituted by any
Noteholder for the enforcement of the payment of principal of or interest
(including any Noteholders' Auction Rate Interest Carryover) on any Note on or
after the respective due dates expressed in such Note.
SECTION 5.14. WAIVER OF STAY OR EXTENSION LAWS. The Issuer
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead or in any manner whatsoever, claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, that may affect the covenants or the performance of
this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Indenture Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 5.15. ACTION ON NOTES. The Indenture Trustee's right
to seek and recover judgment on the Notes or under this Indenture shall not be
affected by the seeking, obtaining or application of any other relief under or
with respect to this Indenture. Neither the lien of this Indenture and each
Terms Supplement nor any rights or remedies of the Indenture Trustee or the
Noteholders of any Series shall be impaired by the recovery of any judgment by
the Indenture Trustee against the Issuer or by the levy of any execution under
such judgment upon any portion of the Indenture Trust Estate or upon any of the
assets of the Issuer. Any money or property collected by the Indenture Trustee
shall be applied in accordance with Section 5.4(b).
SECTION 5.16. PERFORMANCE AND ENFORCEMENT OF CERTAIN
OBLIGATIONS. (a) Promptly following a request from the Indenture Trustee to do
so and at the Administrator's expense, the Issuer shall take all such lawful
action as the Indenture Trustee may request to compel or secure the performance
and observance by the Seller, the Administrator and the Servicer, as applicable,
of each of their obligations to the Issuer under or in connection with the Sale
and Servicing Agreement and Supplemental Sale and Servicing Agreement (and with
respect to the Administrator only, the Administration Agreement) in accordance
with the terms thereof, and to exercise any and all rights, remedies, powers and
privileges lawfully available to the Issuer under or in connection with the Sale
and Servicing Agreement and any Supplemental Sale and Servicing Agreement (and
the Administration Agreement) to the extent and in the manner directed by the
Indenture Trustee, including the transmission of notices of default on the part
of the Seller, the Administrator or the Servicer thereunder and the institution
of legal or administrative actions or proceedings to compel or secure
performance by the Seller, the Administrator or the Servicer of each of their
obligations under the Sale and Servicing Agreement and any Supplemental Sale and
Servicing Agreement (and the Administration Agreement).
(b) If an Event of Default has occurred and is continuing, the
Indenture Trustee may, and at the direction (which direction shall be in
writing) of either the Surety Provider or, upon receipt of the Surety Provider's
written consent, the Noteholders of 66-2/3% of the Outstanding Amount of the
Outstanding Notes shall, exercise all rights, remedies, powers, privileges and
claims of the Issuer against the Seller, the Administrator or the Servicer under
or in connection with the Sale and Servicing Agreement and any Supplemental Sale
and Servicing Agreement (and the Administration Agreement), including the right
or power to take any action to compel or secure performance or observance by the
Seller, the Administrator or the Servicer of each of their obligations to the
Issuer thereunder and to give any consent, request, notice, direction, approval,
extension or waiver under the related Sale and Servicing Agreement and any
Supplemental Sale and Servicing Agreement (and the Administration Agreement) and
any right of the Issuer to take such action shall be suspended.
SECTION 5.17. SUBROGATION. Subject only to the priority of
payment provisions of this Indenture and any Terms Supplement, each of the
Issuer and the Indenture Trustee acknowledges that to the extent of any payment
made by the Surety Provider pursuant to any Note Surety Bond, the Surety
Provider is to be fully subrogated to the extent of such payment and any
additional interest due on any late payment to the rights of the Holders of the
Notes to any moneys paid or payable in respect of the Notes under this
Indenture, any Terms Supplement, the Sale and Servicing Agreement or otherwise.
Each of the Issuer and the Indenture Trustee agrees to such subrogation and,
further, agrees to execute such instruments and to take such actions as, in the
sole judgment of the Surety Provider, are necessary to evidence such subrogation
and, subject to the priority of payment provision of this Indenture, any Terms
Supplement and the Sale and Servicing Agreement, to perfect the rights of the
Noteholders to receive any moneys paid or payable in respect of the Notes under
this Indenture, any Terms Supplement, the Sale and Servicing Agreement or
otherwise.
ARTICLE VI
THE INDENTURE TRUSTEE
SECTION 6.1. DUTIES OF INDENTURE TRUSTEE. (a) If an Event of
Default has occurred and is continuing, the Indenture Trustee shall exercise the
rights and powers vested in it by this Indenture and use the same degree of care
and skill in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Indenture Trustee undertakes to perform such
duties and only such duties as are specifically set forth in
this Indenture and any Terms Supplement and no implied
covenants or obligations shall be read into this Indenture or
any Terms Supplement against the Indenture Trustee; and
(ii) in the absence of bad faith on its part, the
Indenture Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Indenture Trustee and conforming to the requirements of this
Indenture; PROVIDED, HOWEVER, that the Indenture Trustee shall
examine the certificates and opinions to determine whether or
not they conform to the requirements of this Indenture.
(c) The Indenture Trustee may not be relieved from liability
for its own negligent action, its own negligent failure to act or its own
willful misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section;
(ii) the Indenture Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer
unless it is proved that the Indenture Trustee was negligent
in ascertaining the pertinent facts; and
(iii) the Indenture Trustee shall not be liable with
respect to any action it takes or omits to take in good faith
in accordance with a direction received by it pursuant to
Section 5.11.
(d) Every provision of this Indenture that in any way relates
to the Indenture Trustee is subject to paragraphs (a), (b), (c) and (g) of this
Section.
(e) The Indenture Trustee shall not be liable for interest on
any money received by it except as the Indenture Trustee may agree in writing
with the Issuer.
(f) Money held in trust by the Indenture Trustee need not be
segregated from other funds except to the extent required by law or the terms of
this Indenture or the Sale and Servicing Agreement.
(g) No provision of this Indenture shall require the Indenture
Trustee 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 of powers, if it shall have reasonable grounds to believe that
repayments of such funds or adequate indemnity satisfactory to it against any
loss, liability or expense is not reasonably assured to it; provided, however,
that the Indenture Trustee shall not refuse or fail to perform any of its duties
hereunder solely as a result of nonpayment of its normal fees and expenses and
further provided that nothing in this Section 6.1(g) shall be construed to limit
the exercise by the Indenture Trustee of any right or remedy permitted under
this Indenture or otherwise in the event of the Issuer's failure to pay the
Indenture Trustee's fees and expenses pursuant to Section 6.7.
(h) Except as expressly provided in the Basic Documents, the
Indenture Trustee shall have no obligation to administer, service or collect the
Financed Student Loans or to maintain, monitor or otherwise supervise the
administration, servicing or collection of the Financed Student Loans.
(i) In the event that the Indenture Trustee is the Paying
Agent or the Note Registrar, the rights and protections afforded to the
Indenture Trustee pursuant to this Indenture shall also be afforded to the
Indenture Trustee in its capacity as Paying Agent or Note Registrar.
(j) Every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Indenture Trustee
shall be subject to the provision of this Section and to the provisions of the
TIA.
SECTION 6.2. RIGHTS OF INDENTURE TRUSTEE. (a) The
Indenture Trustee may rely on any document believed by it to be genuine and
to have been signed or presented by the proper Person. The Indenture Trustee
need not investigate any fact or matter stated in such document.
(b) Before the Indenture Trustee acts or refrains from acting,
it may require an Officer's Certificate of the Issuer or an Opinion of Counsel.
The Indenture Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on such Officer's Certificate or Opinion of
Counsel.
(c) The Indenture Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys or a custodian or nominee, and the Indenture Trustee
shall not be responsible for any misconduct or negligence on the part of, or for
the supervision of, any such agent, attorney, custodian or nominee appointed
with due care by it hereunder.
(d) The Indenture Trustee shall not be liable for any action
it takes or omits to take in good faith which it believes to be authorized or
within its rights or powers; PROVIDED, HOWEVER, that the Indenture Trustee's
conduct does not constitute willful misconduct, negligence or bad faith.
(e) The Indenture Trustee may consult with counsel, and the
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes shall be full and complete authorization and protection
from liability in respect to any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or opinion of such
counsel.
SECTION 6.3. INDIVIDUAL RIGHTS OF INDENTURE TRUSTEE. The
Indenture Trustee in its individual or any other capacity may become the owner
or pledgee of Notes and may otherwise deal with the Issuer or its Affiliates
with the same rights it would have if it were not Indenture Trustee. Any Paying
Agent, Note Registrar, co-registrar or co-paying agent may do the same with like
rights. However, the Indenture Trustee must comply with Sections 6.11 and 6.12.
SECTION 6.4. INDENTURE TRUSTEE'S DISCLAIMER. Neither the
Indenture Trustee nor the Eligible Lender Trustee shall be responsible for and
neither makes any representation as to the validity or adequacy of this
Indenture or the Notes, neither shall be accountable for the Issuer's use of the
proceeds from the sale of the Notes, and neither shall be responsible for any
statement of the Issuer in the Indenture or in any document issued in connection
with the sale of the Notes or in the Notes other than the Indenture Trustee's
certificate of authentication.
SECTION 6.5. NOTICE OF DEFAULTS. If a Default occurs and is
continuing and if it is either actually known or written notice of the existence
thereof has been delivered to a Responsible Officer of the Indenture Trustee,
the Indenture Trustee shall mail notice of the Default to the Surety Provider
within two days and to each Noteholder within 90 days after it occurs. Except in
the case of a Default in payment of principal of or interest on any Note, the
Indenture Trustee may withhold the notice to the Noteholders, but not to the
Surety Provider if and so long as a committee of its Responsible Officers in
good faith determines that withholding the notice is in the interests of
Noteholders of such Series.
SECTION 6.6. REPORTS BY INDENTURE TRUSTEE TO NOTEHOLDERS. The
Indenture Trustee shall deliver to each Noteholder (and to each Person who was a
Noteholder at any time during the applicable calendar year) such information as
may be requested of it to enable such holder to prepare its Federal and state
income tax returns. Within 60 days after each December 31 beginning with the
December 31 following the first issuance of a Series of Notes, the Indenture
Trustee shall mail to each Noteholder a brief report as of such December 31 that
complies with TIA ss. 313(a) if required by said section. The Indenture Trustee
shall also comply with TIA ss. 313(b). If the issuance of any Series of Notes
has been registered under the Securities Act of 1933, as amended, a copy of each
such report required pursuant to TIA ▇▇.▇▇. 313(a) or (b) shall, at the time of
such transmission to Noteholders, be filed by the Indenture Trustee with the
Commission and with each securities exchange, if any, upon which the Notes of
such Series are listed, provided that the Issuer has previously notified the
Indenture Trustee of such listing.
SECTION 6.7. COMPENSATION AND INDEMNITY. The Issuer shall pay
to the Indenture Trustee for its services, a fee equal to the amount agreed to
in writing between the Indenture Trustee and the Administrator (the "Indenture
Trustee Fee") at the times set forth in Section 5.5 of the Sale and Servicing
Agreement and shall or shall cause the Administrator from its own funds to
reimburse the Indenture Trustee for all reasonable out-of-pocket expenses
incurred or made by it in accordance with any provision of this Indenture. The
Indenture Trustee's compensation shall not be limited by any law on compensation
of a trustee of an express trust. The Issuer shall or shall cause the
Administrator from its own funds to indemnify the Indenture Trustee against any
and all loss, liability or expense (including attorneys' fees) incurred by it in
connection with the administration of this trust and the performance of its
duties hereunder and the other Basic Documents. The Indenture Trustee shall
notify the Issuer and the Administrator promptly of any claim for which it may
seek indemnity. Failure by the Indenture Trustee to so notify the Issuer and the
Administrator shall not relieve the Issuer or the Administrator of its
obligations hereunder and under the other Basic Documents. The Issuer shall or
shall cause the Administrator to defend the claim and the Administrator shall
not be liable for any separate legal fees and expenses of the Indenture Trustee
after it has assumed such defense; PROVIDED, HOWEVER, that, in the event that
there may be a conflict between the positions of the Indenture Trustee and the
Administrator in conducting the defense of such claim, the Indenture Trustee
shall be entitled to separate counsel the fees and expenses of which shall be
paid by the Administrator from its own funds on behalf of the Issuer. Neither
the Issuer nor the Administrator need reimburse any expense or indemnify against
any loss, liability or expense incurred by the Indenture Trustee through the
Indenture Trustee's own willful misconduct, negligence or bad faith.
The Issuer's payment obligations to the Indenture Trustee
pursuant to this Section shall survive the discharge of this Indenture. When the
Indenture Trustee incurs expenses after the occurrence of a Default specified in
Section 5.1(iv) or (v) with respect to the Issuer, the expenses are intended to
constitute expenses of administration under Title 11 of the United States Code
or any other applicable Federal or State bankruptcy, insolvency or similar law.
SECTION 6.8. REPLACEMENT OF INDENTURE TRUSTEE. No resignation
or removal of the Indenture Trustee and no appointment of a successor Indenture
Trustee shall become effective until the acceptance of appointment by the
successor Indenture Trustee pursuant to this Section 6.8. The Indenture Trustee
may resign at any time by so notifying the Issuer and the Surety Provider. The
Noteholders of a majority in Outstanding Amount of the Notes may, after
receiving the written consent of the Surety Provider, remove the Indenture
Trustee by so notifying the Indenture Trustee and may, after receiving the
written consent of the Surety Provider, appoint a successor Indenture Trustee.
The Issuer shall remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with
Section 6.11;
(ii) an Insolvency Event occurs with respect to the
Indenture Trustee;
(iii) a receiver or other public officer takes charge
of the Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable
of acting.
If the Indenture Trustee resigns or is removed or if a vacancy
exists in the office of Indenture Trustee for any reason (the Indenture Trustee
in such event being referred to herein as the retiring Indenture Trustee), the
Issuer shall, with the written consent of the Surety Provider, promptly appoint
a successor Indenture Trustee.
A successor Indenture Trustee shall deliver a written
acceptance of its appointment to the retiring Indenture Trustee, the Surety
Provider and to the Issuer. Thereupon the resignation or removal of the retiring
Indenture Trustee shall become effective, and the successor Indenture Trustee
shall have all the rights, powers and duties of the Indenture Trustee under this
Indenture. The successor Indenture Trustee shall mail a notice of its succession
to Noteholders. The retiring Indenture Trustee shall promptly transfer all
property held by it as Indenture Trustee to the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within
60 days after the retiring Indenture Trustee resigns or is removed, the retiring
Indenture Trustee, the Issuer or the Noteholders of a majority in Outstanding
Amount of the Notes may petition any court of competent jurisdiction for the
appointment of a successor Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.11,
any Noteholder may petition any court of competent jurisdiction for the removal
of the Indenture Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee
pursuant to this Section, the Issuer's and the Administrator's obligations under
Section 6.7 shall continue for the benefit of the retiring Indenture Trustee.
SECTION 6.9. SUCCESSOR INDENTURE TRUSTEE BY MERGER. If the
Indenture Trustee consolidates with, merges or converts into, or transfers all
or substantially all its corporate trust business or assets to, another
corporation or banking association, the resulting, surviving or transferee
corporation without any further act shall be the successor Indenture Trustee;
provided that such corporation or banking association shall be otherwise
qualified and eligible under Section 6.11. The Indenture Trustee shall provide
the Rating Agencies and the Surety Provider prior written notice of any such
transaction.
In case at the time such successor or successors by merger,
conversion or consolidation to the Indenture Trustee shall succeed to the trusts
created by this Indenture any of the Notes shall have been authenticated but not
delivered, any such successor to the Indenture Trustee may adopt the certificate
of authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Indenture Trustee may authenticate such
Notes either in the name of any predecessor hereunder or in the name of the
successor to the Indenture Trustee; and in all such cases such certificates
shall have the full force which it is anywhere in the Notes or in this Indenture
provided that the certificate of the Indenture Trustee shall have.
SECTION 6.10. APPOINTMENT OF CO-TRUSTEE OR SEPARATE Trustee.
(a) Notwithstanding any other provisions of this Indenture, at any time, for the
purpose of meeting any legal requirement of any jurisdiction in which any part
of the Indenture Trust Estate may at the time be located, the Indenture Trustee
shall have the power and may execute and deliver all instruments to appoint one
or more Persons to act as co-trustee or co-trustees, or separate trustee or
separate trustees, of all or any part of the Indenture Trust Estate, and to vest
in such Person or Persons, in such capacity and for the benefit of the
Noteholders, such title to the Indenture Trust Estate, or any part hereof, and,
subject to the other provisions of this Section, such powers, duties,
obligations, rights and trusts as the Indenture Trustee may consider necessary
or desirable. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 6.11 and no
notice to Noteholders of the appointment of any co-trustee or separate trustee
shall be required under Section 6.8 hereof; provided, however, that no
co-trustee or separate trustee shall be appointed without having obtained the
prior written consent of the Surety Provider, and any such appointment of a
co-trustee or separate trustee shall be terminated for cause by the Indenture
Trustee at the direction of the Surety Provider.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Indenture Trustee shall be
conferred or imposed upon and exercised or performed by the
Indenture Trustee and such separate trustee or co-trustee
jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the
Indenture Trustee joining in such act), except to the extent
that under any law of any jurisdiction in which any particular
act or acts are to be performed the Indenture 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 Indenture Trust Estate
or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Indenture
Trustee;
(ii) no trustee hereunder shall be personally liable
by reason of any act or omission of any other trustee
hereunder; and
(iii) the Indenture Trustee may at any time accept the
resignation of or, at its election or the election of the
Surety Provider, remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the
Indenture 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 Indenture and the conditions of this Article VI. 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 Indenture Trustee or separately, as may be provided therein,
subject to all the provisions of this Indenture, specifically including every
provision of this Indenture relating to the conduct of, affecting the liability
of, or affording protection to, the Indenture Trustee. Every such instrument
shall be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time
constitute the Indenture Trustee, its agent or attorney-in-fact with full power
and authority, to the extent not prohibited by law, to do any lawful act under
or in respect of this Indenture on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be
removed, all its estates, properties, rights, remedies and trusts shall vest in
and be exercised by the Indenture Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.
SECTION 6.11. ELIGIBILITY; DISQUALIFICATION. The
Indenture Trustee shall at all times satisfy the requirements of TIA ss. 310(a).
The Indenture Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of condition
and it shall have a long term debt rating of Baa3 or better by Moody's or BBB or
better by Standard & Poor's Corporation. The Indenture Trustee shall comply with
TIA ss. 310(b), including the optional provision permitted by the second
sentence of TIA ss. 310(b)(9); PROVIDED, HOWEVER, that there shall be excluded
from the operation of TIA ss. 310(b)(1) any indenture or indentures under which
other securities of the Issuer are outstanding if the requirements for such
exclusion set forth in TIA ss. 310(b)(1) are met.
In addition to the conflicting interests specified in TIA ss.
310(b), the Indenture Trustee shall be deemed to have a conflicting interest
prohibited by said ss.310(b) and therefore prohibited by this Section 6.11, if
by reason of supplements or amendments to this Indenture as originally executed,
there shall be created covenants, restrictions, conditions or additional events
of default which are applicable to less than all Series of Notes and the
existence of which
(1) would give the Noteholders of any Series any
rights with respect to the Indenture Trust Estate or any other
property held by the Indenture Trustee for the benefit of
Noteholders of any other Series with respect to which it is
also serving as Indenture Trustee,
(2) would cause the Notes of one or more Series not
to rank equally with the Notes of any other Series, or
(3) is sufficiently likely to involve a material
conflict of interest between Series of Notes that it is
advisable in the public interest or for the protection of
Noteholders of any Series that the Indenture Trustee
disqualify itself from acting as such with respect to one or
more applicable Series of Notes.
SECTION 6.12. PREFERENTIAL COLLECTION OF CLAIMS AGAINST
ISSUER. The Indenture Trustee shall comply with TIA ss. 311(a), excluding any
creditor relationship listed in TIA ss. 311(b). AN Indenture Trustee who has
resigned or been removed shall be subject to TIA ss. 311(a) to the extent
indicated.
ARTICLE VII
NOTEHOLDERS' LISTS AND REPORTS
SECTION 7.1. ISSUER TO FURNISH INDENTURE TRUSTEE NAMES AND
ADDRESSES OF NOTEHOLDERS. The Issuer will furnish or cause to be furnished to
the Indenture Trustee (a) not more than five days after the earlier of (i) each
Record Date for a Series and (ii) three months after the last Record Date for
such Series, a list, in such form as the Indenture Trustee may reasonably
require, of the names and addresses of the Noteholders of such Series as of such
Record Date, (b) at such other times as the Indenture Trustee may request in
writing, within 30 days after receipt by the Issuer of any such request, a list
of similar form and content as of a date not more than 10 days prior to the time
such list is furnished; PROVIDED, HOWEVER, that so long as the Indenture Trustee
is the Note Registrar, no such list shall be required to be furnished.
SECTION 7.2. PRESERVATION OF INFORMATION; COMMUNICATIONS TO
NOTEHOLDERS. (a) The Indenture Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of the Noteholders contained
in the most recent list furnished to the Indenture Trustee as provided in
Section 7.1 and the name and addresses of Noteholders received by the Indenture
Trustee in its capacity as Note Registrar. The Indenture Trustee may destroy any
list furnished to it as provided in such Section 7.1 upon receipt of a new list
so furnished.
(b) Noteholders may communicate pursuant to TIA ss. 312(b)
with other Noteholders with respect to their rights under this Indenture or
under the Notes. Upon receipt by the Indenture Trustee of any request by a
Noteholder to receive a copy of the current list of Noteholders (whether or not
made pursuant to TIA ss. 312(b)), the Indenture Trustee shall promptly notify
the Administrator thereof by providing to the Administrator a copy of such
request and a copy of the list of Noteholders produced in response thereto.
(c) The Issuer, the Indenture Trustee and the Note Registrar
shall have the protection of TIA ss. 312(c).
(d) The Indenture Trustee shall furnish to the Noteholders
promptly upon receipt of a written request therefor, duplicates or copies of all
reports, notices, requests, demands, certificates, financial statements and any
other instruments furnished to the Indenture Trustee under the Basic Documents.
SECTION 7.3. REPORTS BY ISSUER. (a) If the issuance of
any Series of Notes has been registered under the Securities Act of
1933, as amended, the Issuer shall:
(i) file with the Indenture Trustee and the Surety
Provider, within 15 days after the Issuer is required to file
the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of
such portions of any of the foregoing as the Commission may
from time to time by rules and regulations prescribe) which
the Issuer may be required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act;
(ii) file with the Indenture Trustee, the Surety Provider
and the Commission in accordance with rules and regulations
prescribed from time to time by the Commission such additional
information, documents and reports with respect to compliance
by the Issuer with the conditions and covenants of this
Indenture as may be required from time to time by such rules
and regulations; and
(iii) supply to the Indenture Trustee and the Surety
Provider (and the Indenture Trustee shall transmit by mail to
all Noteholders of the related Series described in TIA ss.
313(c)) such summaries of any information, documents and
reports required to be filed by the Issuer pursuant to clauses
(i) and (ii) of this Section 7.3(a) as may be required by
rules and regulations prescribed from time to time by the
Commission.
(b) Unless the Issuer otherwise determines, the fiscal year of
the Issuer shall end on December 31 of each year.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1. COLLECTION OF MONEY. Except as otherwise
expressly provided herein, the Indenture Trustee may demand payment or delivery
of, and shall receive and collect, directly and without intervention or
assistance of any fiscal agent or other intermediary, all money and other
property payable to or receivable by the Indenture Trustee pursuant to this
Indenture. The Indenture Trustee shall apply all such money received by it on
behalf of the Noteholders and the Surety Provider pursuant to the Sale and
Servicing Agreement and each Supplemental Sale and Servicing Agreement as
provided in this Indenture. Except as otherwise expressly provided in this
Indenture, if any default occurs in the making of any payment or performance
under any agreement or instrument that is part of the Indenture Trust Estate,
the Indenture Trustee may take such action as may be appropriate to enforce such
payment or performance, including the institution and prosecution of appropriate
Proceedings. Any such action shall be without prejudice to any right to claim a
Default under this Indenture and any right to proceed thereafter as provided in
Article V.
SECTION 8.2. TRUST ACCOUNTS. (a) On or prior to the Closing
Date of the first Series, the Indenture Trustee shall establish and maintain, in
the name of and with the Indenture Trustee, for the benefit of the Noteholders,
the Certificateholders and the Surety Provider, the Trust Accounts as provided
in Section 5.1 of the Sale and Servicing Agreement.
(b) On or before the Business Day preceding each Note
Distribution Date, all Available Funds for the related Class of Notes with
respect to the preceding Collection Period will be deposited in the Collection
Account as provided in Section 5.2 of the Sale and Servicing Agreement. On or
before each Note Distribution Date for each Class of Notes, the appropriate
Noteholders' Distribution Amount and any Noteholders' Auction Rate Interest
Carryover, if any, with respect to the preceding Collection Period will be
distributed from the Collection Account and any other Trust Account to the
Indenture Trustee (or any other Paying Agent) on behalf of the Noteholders as
provided in Sections 5.5 and 5.6 of the Sale and Servicing Agreement.
(c) On each Note Distribution Date, the Indenture Trustee (or
any other Paying Agent) shall distribute all amounts received by it on behalf of
Noteholders of a particular Class pursuant to paragraph (b) above to such
Noteholders in respect of the Notes to the extent of amounts due and unpaid on
the Notes of such Class as provided in the related Terms Supplement.
SECTION 8.3. GENERAL PROVISIONS REGARDING ACCOUNTS. (a)
So long as no Default shall have occurred and be continuing, all or a
portion of the funds in the Trust Accounts shall be invested in Eligible
Investments and reinvested by the Indenture Trustee upon Issuer Order, subject
to the provisions of Section 5.1(b) of the Sale and Servicing Agreement. All
income or other gain from investments of moneys deposited in the Trust Accounts
relating to a particular Series shall be deposited by the Indenture Trustee in
the Collection Account, and any loss resulting from such investments shall be
charged to such Trust Account.
(b) Subject to Section 6.1(c), the Indenture Trustee shall not
in any way be held liable by reason of any insufficiency in any of the Trust
Accounts resulting from any loss on any Eligible Investment included therein
except for losses attributable to the Indenture Trustee's failure to make
payments on such Eligible Investments issued by the Indenture Trustee in its
commercial capacity as principal obligor and not as trustee, in accordance with
their terms.
(c) If (i) the Issuer shall have failed to give investment
directions for any funds on deposit in the Trust Accounts to the Indenture
Trustee by 10:00 a.m. New York City time (or such other time as may be agreed by
the Issuer and Indenture Trustee) on any Business Day; or (ii) a Default shall
have occurred and be continuing with respect to the Notes but the Notes shall
not have been declared due and payable pursuant to Section 5.2, or, if such
Notes shall have been declared due and payable following an Event of Default,
amounts collected or receivable from the Indenture Trust Estate are being
applied in accordance with Section 5.4 as if there had not been such a
declaration; the Indenture Trustee shall, to the fullest extent practicable,
invest and reinvest funds in the Trust Accounts in one or more Eligible
Investments listed in paragraph (7) of the definition of Eligible Investments.
SECTION 8.4. SUBSTITUTION AND RELEASE OF INDENTURE TRUST
ESTATE. (a) To the extent so provided in the related Terms Supplement, the
Issuer shall have the right to Grant an Eligible Substitute Financed Student
Loan for any Financed Student Loan securing Notes, any such substitution to take
place only upon compliance with all conditions precedent thereto set forth in
the related Terms Supplement.
(b) Upon any Grant of Eligible Substitute Financed Student
Loans pursuant to this Section 8.4 and the related Terms Supplement, the
Indenture Trustee shall transfer and assign the Financed Student Loans that were
the subject of such substitution to the Issuer, whereupon they shall be released
from, and no longer be subject to, the lien of any Terms Supplement.
(c) In connection with any release of Financed Student Loans
to which the Issuer is entitled pursuant to this Section 8.4 and the related
Terms Supplement, the Issuer shall prepare and the Indenture Trustee shall
execute appropriate instruments to release such Financed Student Loans from the
lien of any Terms Supplement, or convey the Indenture Trustee's interest in the
same. No party relying upon an instrument so executed by the Indenture Trustee
shall be bound to ascertain the Indenture Trustee's authority, inquire into the
satisfaction of any conditions precedent or see to the application of any
moneys.
(d) The Indenture Trustee shall, at such time as there are no
Notes Outstanding and all sums due the Indenture Trustee pursuant to Section 6.7
have been paid, release any remaining portion of the Indenture Trust Estate that
secured the Notes from the lien of any Terms Supplement and release to the
Issuer or any other Person entitled thereto any funds then on deposit in the
Trust Accounts.
(e) The Indenture Trustee shall release property from the lien
of each Terms Supplement pursuant to this Section 8.4 only upon receipt of an
Issuer Request accompanied by an Officer's Certificate of the Issuer, an Opinion
of Counsel and (if required by the TIA) Independent Certificates in accordance
with TIA ▇▇.▇▇. 314(c) and 314(d)(1) meeting the applicable requirements of
Section 11.1.
SECTION 8.5. OPINION OF COUNSEL. The Indenture Trustee shall
receive at least five days' notice when requested by the Issuer to take any
action pursuant to Section 8.4(a), accompanied by copies of any instruments
involved, and the Indenture Trustee shall also require, as a condition to such
action, an Opinion of Counsel, in form and substance satisfactory to the
Indenture Trustee, stating the legal effect of any such action, outlining the
steps required to complete the same, and concluding that all conditions
precedent to the taking of such action have been complied with and such action
will not materially and adversely impair the security for the Notes or the
rights of the Noteholders in contravention of the provisions of this Indenture;
PROVIDED, HOWEVER, that such Opinion of Counsel shall not be required to express
an opinion as to the fair value of the Indenture Trust Estate. Counsel rendering
any such opinion may rely, without independent investigation, on the accuracy
and validity of any certificate or other instrument delivered to the Indenture
Trustee in connection with any such action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF
NOTEHOLDERS. (a) Without the consent of any Noteholders but with prior notice to
the Rating Agencies and the prior written consent of the Surety Provider, the
Issuer and the Indenture Trustee, when authorized by an Issuer Order, at any
time and from time to time, may enter into one or more indentures supplemental
hereto (which shall conform to the provisions of the Trust Indenture Act as in
force at the date of the execution thereof), in form satisfactory to the
Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any
property at any time subject to the lien of each Terms
Supplement, or better to assure, convey and confirm unto the
Indenture Trustee any property subject or required to be
subjected to the lien of each Terms Supplement, or to subject
to the lien of each Terms Supplement additional property;
(ii) to evidence the succession, in compliance with the
applicable provisions hereof, of another Person to the Issuer,
and the assumption by any such successor of the covenants of
the Issuer herein and in the Notes contained;
(iii) to add to the covenants of the Issuer, for the
benefit of the Noteholders of all Notes or of the Notes of any
Series, or to surrender any right or power herein conferred
upon the Issuer;
(iv) to convey, transfer, assign, mortgage or pledge
any property to or with the Indenture Trustee;
(v) to cure any ambiguity, to correct or supplement
any provision herein or in any supplemental indenture which
may be inconsistent with any other provision herein or in any
supplemental indenture or to make any other provisions with
respect to matters or questions arising under this Indenture
or in any supplemental indenture; provided that such action
shall not materially adversely affect the interests of the
Noteholders of any Series;
(vi) to evidence and provide for the acceptance of the
appointment hereunder by a successor trustee with respect to
the Notes and to add to or change any of the provisions of
this Indenture as shall be necessary to facilitate the
administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Article VI;
(vii) to add to the conditions, limitations and
restrictions on the authorized amount, terms and purposes of
the issuance, authentication and delivery of any Series of
Notes, as herein set forth, additional conditions, limitations
and restrictions thereafter to be observed;
(viii) to set forth the terms of, and security for, any
Series that has not theretofore been authorized by a Terms
Supplement;
(ix) to modify or eliminate any of the terms of this
Indenture; provided, however, that
(A) such supplemental indenture shall
expressly provide that any such modifications or
eliminations shall not be effective with respect to
any Outstanding Note of any Series created prior to
the execution of such supplemental indenture; and
(B) the Indenture Trustee may, in its
discretion, decline to enter into any such
supplemental indenture which, in its opinion, would
adversely affect its own rights, duties or
immunities;
(x) to provide for the issuance of Notes of any
Series (including Notes of a Series theretofore authorized and
than Outstanding) or any Class within such Series in bearer
form with coupons ("Bearer Notes") and for the exchangeability
of Bearer Notes and Notes of the same Series and Class issued
in registered form ("Registered Notes"); any such supplemental
indenture may provide for payments on Bearer Notes only
outside the United States and for appointment of a foreign
Paying Agent that is acceptable to the Rating Agencies that
rated the initial Series of the Notes and may also contain any
provisions as may in the Issuer's judgment be necessary,
appropriate or convenient (a) to permit the Notes to be issued
and sold to or held in bearer form by non-United States
Persons, (b) to establish entitlement to an exemption from
United States withholding tax or reporting requirements with
respect to payments on the Notes, (c) to comply, or facilitate
compliance, with other applicable laws or regulations, (d) to
provide for usual and customary provisions for communication
(by notice, publication, maintenance of lists of holders of
Bearer Notes who have provided names and addresses for such
purpose, or otherwise) with holders of Bearer Notes, or (e) to
otherwise effectuate provisions of the issuance of Bearer
Notes and their exchangeability with Registered Notes; or
(xi) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualification of this Indenture under the TIA or under any
similar Federal statute hereafter enacted and to add to this
Indenture such other provisions as may be expressly required
by the TIA.
The Indenture Trustee is hereby authorized to join in the
execution of any such supplemental indenture and to make any further appropriate
agreements and stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee, when authorized by
an Issuer Order, may, also without the consent of any of the Noteholders but
with prior notice to the Rating Agencies and prior written consent of the Surety
Provider, enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to, or changing in any manner or eliminating
any of the provisions of, this Indenture or of modifying in any manner the
rights of the Noteholders under this Indenture; PROVIDED, HOWEVER, that such
action shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Noteholder.
SECTION 9.2. SUPPLEMENTAL INDENTURES WITH CONSENT OF
NOTEHOLDERS. The Issuer and the Indenture Trustee, when authorized by an Issuer
Order, also may, with prior notice to the Rating Agencies and with the consent
of the Surety Provider and the Noteholders of not less than a majority of the
Outstanding Amount of all the Notes in case Outstanding Notes of all Series are
to be affected or with the consent of the Noteholders of not less than a
majority of the Outstanding Amount of the Notes to be affected in case one or
more, but less than all, of the Series of Outstanding Notes are to be affected,
by Act of such Noteholders delivered to the Issuer and the Indenture Trustee,
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to, or changing in any manner or eliminating any of the
provisions of, this Indenture relating to such Series or of modifying in any
manner the rights of the Noteholders of such Series under this Indenture;
PROVIDED, however, that no such supplemental indenture shall, without the
consent of the Noteholders of each Outstanding Note affected thereby:
(i) change the date of payment of any installment of
principal of or interest (including any Noteholders' Auction
Rate Interest Carryover) on any Note, or reduce the principal
amount thereof or the interest rate thereon, change the
provisions of this Indenture relating to the application of
collections on, or the proceeds of the sale of, the Indenture
Trust Estate to payment of principal of or interest (including
any Noteholders' Auction Rate Interest Carryover) on the
Notes, or change any place of payment where, or the coin or
currency in which, any Note or the interest thereon is
payable, or impair the right to institute suit for the
enforcement of the provisions of this Indenture requiring the
application of funds available therefor, as provided in
Article V, to the payment of any such amount due on the Notes
on or after the respective due dates thereof;
(ii) reduce the percentage of the Outstanding Amount of
the Notes of any Series, the consent of the Noteholders of
which is required for any such supplemental indenture, or the
consent of the Noteholders of which is required for any waiver
of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences provided for
in this Indenture;
(iii) modify or alter the provisions of the proviso to
the definition of the term "Outstanding";
(iv) reduce the percentage of the Outstanding Amount of
the Notes of any Series required to direct the Indenture
Trustee to direct the Issuer to sell or liquidate the
Indenture Trust Estate pursuant to Section 5.4;
(v) modify any provision of this Section except to
increase any percentage specified herein or to provide that
certain additional provisions of this Indenture or the other
Basic Documents cannot be modified or waived without the
consent of the Noteholder of each Outstanding Note affected
thereby;
(vi) modify any of the provisions of this Indenture in
such manner as to affect the calculation of the amount of any
payment of interest (including any Noteholders' Auction Rate
Interest Carryover) or principal due on any Note on any Note
Distribution Date (including the calculation of any of the
individual components of such calculation); or
(vii) permit the creation of any lien ranking prior to or
on a parity with the lien of this Indenture with respect to
any part of the Indenture Trust Estate or, except as otherwise
permitted or contemplated herein, terminate the lien of this
Indenture on any property at any time subject hereto or
deprive any Noteholder of any Note of the security provided by
the lien of this Indenture.
The Indenture Trustee may in its discretion determine whether
or not any Notes of any particular Series would be affected by any supplemental
indenture and any such determination shall be conclusive upon the Noteholders of
all Notes, whether theretofore or thereafter authenticated and delivered
hereunder. The Indenture Trustee shall not be liable for any such determination
made in good faith.
It shall not be necessary for any Act of Noteholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Promptly after the execution by the Issuer and the Indenture
Trustee of any supplemental indenture pursuant to this Section, the Indenture
Trustee shall mail to the Noteholders of the Notes of each Series to which such
amendment or supplemental indenture relates and to the Surety Provider a notice
setting forth in general terms the substance of such supplemental indenture. Any
failure of the Indenture Trustee to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
supplemental indenture.
SECTION 9.3. EXECUTION OF SUPPLEMENTAL INDENTURES. In
executing, or permitting the additional trusts created by, any supplemental
indenture permitted by this Article IX or the modifications thereby of the
trusts created by this Indenture, the Indenture Trustee shall be entitled to
receive, and subject to Sections 6.1 and 6.2, shall be fully protected in
relying upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Indenture Trustee may, but shall not be obligated to, enter into any such
supplemental indenture that affects the Indenture Trustee's own rights, duties,
liabilities or immunities under this Indenture or otherwise.
SECTION 9.4. EFFECT OF SUPPLEMENTAL INDENTURE. Upon the
execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith with respect to the Notes of each Series affected thereby, and the
respective rights, limitations of rights, obligations, duties, liabilities and
immunities under this Indenture of the Indenture Trustee, the Issuer and the
Noteholders shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments, and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
SECTION 9.5. CONFORMITY WITH TRUST INDENTURE ACT. Every
amendment of this Indenture and every supplemental indenture executed pursuant
to this Article IX shall conform to the requirements of the Trust Indenture Act
as then in effect so long as this Indenture shall then be qualified under the
Trust Indenture Act.
SECTION 9.6. REFERENCE IN NOTES TO SUPPLEMENTAL Indentures.
Notes authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article IX which relates to the Series of which such
Notes are a part may, and if required by the Indenture Trustee shall, bear a
notation in form approved by the Indenture Trustee as to any matter provided for
in such supplemental indenture. If the Issuer or the Indenture Trustee shall so
determine, new Notes so modified as to conform, in the opinion of the Indenture
Trustee and the Issuer, to any such supplemental indenture which relates to the
Series of which such Notes are a part may be prepared and executed by the Issuer
and authenticated and delivered by the Indenture Trustee in exchange for
Outstanding Notes of such Series.
ARTICLE X
[Intentionally Omitted]
ARTICLE XI
MISCELLANEOUS
SECTION 11.1. COMPLIANCE CERTIFICATES AND OPINIONS, ETC. (a)
Upon any application or request by the Issuer to the Indenture Trustee to take
any action under any provision of this Indenture, the Issuer, or the
Administrator on behalf of the Issuer, shall furnish to the Indenture Trustee
and the Surety Provider (i) an Officer's Certificate of the Issuer stating that
all conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with, (ii) an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent, if any, have been
complied with and (iii) (if required by the TIA) an Independent Certificate from
a firm of certified public accountants meeting the applicable requirements of
this Section, except that, in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that such signatory of such
certificate or opinion has read or has caused to be read such
covenant or condition and the definitions herein relating
thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such
signatory, such signatory has made such examination or
investigation as is necessary to enable such signatory to
express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each
such signatory, such condition or covenant has been complied
with.
(b) (i) Other than any property released as
contemplated by clause (iii) below, whenever any property or
securities are to be released from the lien of this Indenture
and the related Terms Supplements, the Issuer shall also
furnish to the Indenture Trustee and the Surety Provider an
Officer's Certificate of the Issuer certifying or stating the
opinion of each person signing such certificate as to the fair
value (within 90 days of such release) of the property or
securities proposed to be released and stating that in the
opinion of such person the proposed release will not impair
the security under this Indenture in contravention of the
provisions hereof.
(ii) Whenever the Issuer is required to furnish to
the Indenture Trustee and the Surety Provider an Officer's
Certificate of the Issuer certifying or stating the opinion of
any signer thereof as to the matters described in clause (i)
above, the Issuer shall also furnish to the Indenture Trustee
and the Surety Provider an Independent Certificate as to the
same matters if the fair value of the property or securities
and of all other property, other than property as contemplated
by clause (iii) below, or securities released from the lien of
this Indenture and the related Terms Supplements since the
commencement of the then-current calendar year, as set forth
in the certificates required by clause (i) above and this
clause (ii), equals 10% or more of the Outstanding Amount of
the Notes, but such certificate need not be furnished in the
case of any release of property or securities if the fair
value thereof as set forth in the related Officer's
Certificate is less than $25,000 or less than one percent of
the then Outstanding Amount of the Notes Outstanding.
(iii) Notwithstanding Section 2.12 or any other
provisions of this Section, the Issuer may, without compliance
with the requirements of the other provisions of this Section,
(A) collect, liquidate, sell, service, convey, administer,
manage or otherwise dispose of Financed Student Loans as and
to the extent permitted or required by the Basic Documents,
(B) make cash payments out of the Trust Accounts as and to the
extent permitted or required by the Basic Documents, so long
as the Issuer shall deliver to the Indenture Trustee and the
Surety Provider every six months, commencing six months after
the first issuance of a Series of Notes, an Officer's
Certificate of the Issuer stating that all the dispositions of
any portion of the Indenture Trust Estate described in clauses
(A) or (B) above that occurred during the immediately
preceding six calendar months were applied in accordance with
the Basic Documents.
SECTION 11.2. FORM OF DOCUMENTS DELIVERED TO INDENTURE
TRUSTEE. In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of, or representations by, counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate of an Authorized Officer or
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Servicer, the Seller, the Issuer or the Administrator, stating that the
information with respect to such factual matters is in the possession of the
Servicer, the Seller, the Issuer or the Administrator, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
Whenever in this Indenture, in connection with any application
or certificate or report to the Indenture Trustee or the Surety Provider, it is
provided that the Issuer shall deliver any document as a condition of the
granting of such application, or as evidence of the Issuer's compliance with any
term hereof, it is intended that the truth and accuracy, at the time of the
granting of such application or at the effective date of such certificate or
report (as the case may be), of the facts and opinions stated in such document
shall in such case be conditions precedent to the right of the Issuer to have
such application granted or to the sufficiency of such certificate or report.
The foregoing shall not, however, be construed to affect the Indenture Trustee's
right to rely upon the truth and accuracy of any statement or opinion contained
in any such document as provided in Article VI.
SECTION 11.3. ACTS OF NOTEHOLDERS. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Noteholders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Noteholders in person or by agents duly appointed in writing; and except as
herein otherwise expressly provided such action shall become effective when such
instrument or instruments are delivered to the Indenture Trustee, and, where it
is hereby expressly required, to the Issuer. Such instrument or instruments (and
the action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Noteholders signing such instrument or instruments. Proof
of execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Section
6.1) conclusive in favor of the Indenture Trustee and the Issuer, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any person of any
such instrument or writing may be proved in any manner that the Indenture
Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Noteholder of any Notes shall bind the
Noteholder of every Note issued upon the registration thereof or in exchange
therefor or in lieu thereof, in respect of anything done, omitted or suffered to
be done by the Indenture Trustee or the Issuer in reliance thereon, whether or
not notation of such action is made upon such Note.
SECTION 11.4. NOTICES, ETC., TO INDENTURE TRUSTEE, ISSUER AND
RATING AGENCIES. Any request, demand, authorization, direction, notice, consent,
waiver or Act of Noteholders or other documents provided or permitted by this
Indenture shall be in writing and if such request, demand, authorization,
direction, notice, consent, waiver or Act of Noteholders is to be made upon,
given or furnished to or filed with:
(a) the Indenture Trustee by any Noteholder or by the
Issuer shall be sufficient for every purpose hereunder if
made, given, furnished or filed in writing and mailed, first
class, postage prepaid or sent by overnight courier or by
facsimile transmission to or with the Indenture Trustee at its
Corporate Trust Office, or
(b) the Issuer by the Indenture Trustee or by any
Noteholder shall be sufficient for every purpose hereunder if
in writing and mailed, first-class, postage prepaid, or via
overnight courier to the Issuer addressed to: [Trust 199_-_],
in care of [Dauphin Deposit Bank and Trust Company, ▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Corporate Trust Services]; with two copies to the
Administrator, one addressed to The Money Store Inc., ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief
Financial Officer; and the other addressed to: The Money Store
Inc., Educaid Division, ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: President; or at any other
address previously furnished in writing to the Indenture
Trustee by the Issuer or the Administrator. The Issuer shall
promptly transmit any notice received by it from the
Noteholders to the Indenture Trustee.
Notices required to be given to the Rating Agencies and/or the
Surety Provider by the Issuer, the Indenture Trustee or the Eligible Lender
Trustee shall be in writing, personally delivered or mailed by certified mail,
return receipt requested, to (i) in the case of Moody's, at the following
address: ▇▇▇▇▇'▇ Investors Service, Inc., ABS Monitoring Department, ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; (ii) in the case of Standard & Poor's, at the
following address: Standard & Poor's Corporation, ▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇▇ ▇▇▇▇▇), ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention of Asset Backed Surveillance Department; or
(iii) in the case of AMBAC Indemnity Corporation, at the following address: ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Structured Finance
Department/Student Loans; or as to each of the foregoing, at such other address
as shall be designated by written notice to the other parties.
SECTION 11.5. NOTICES TO NOTEHOLDERS; WAIVER. Where this
Indenture provides for notice to Noteholders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class, postage prepaid to each Noteholder affected by such
event, at his address as it appears on the Note Register, not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. In any case where notice to Noteholders is given by mail,
neither the failure to mail such notice nor any defect in any notice so mailed
to any particular Noteholder shall affect the sufficiency of such notice with
respect to other Noteholders, and any notice that is mailed in the manner herein
provided shall conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by any Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Noteholders shall be filed with the Indenture
Trustee but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such a waiver.
In case, by reason of the suspension of regular mail service
as a result of a strike, work stoppage or similar activity, it shall be
impractical to mail notice of any event to Noteholders when such notice is
required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Indenture Trustee
shall be deemed to be a sufficient giving of such notice.
Where this Indenture provides for notice to the Rating
Agencies, failure to give such notice shall not affect any other rights or
obligations created hereunder, and shall not under any circumstance constitute a
Default.
SECTION 11.6. ALTERNATE PAYMENT AND NOTICE PROVISIONS.
Notwithstanding any provision of this Indenture or any of the Notes to the
contrary, the Issuer and the Indenture Trustee may enter into any agreement with
any Noteholder providing for a method of payment, or notice by the Indenture
Trustee or any Paying Agent to such Noteholder, that is different from the
methods provided for in this Indenture for such payments or notices. The Issuer
will furnish to the Indenture Trustee a copy of each such agreement and the
Indenture Trustee will cause payments to be made and notices to be given in
accordance with such agreements.
SECTION 11.7. CONFLICT WITH TRUST INDENTURE ACT. If any
provision hereof limits, qualifies or conflicts with another provision hereof
that is required to be included in this Indenture by any of the provisions of
the Trust Indenture Act, such required provision shall control.
The provisions of TIA ▇▇.▇▇. 310 through 317 that impose
duties on any Person (including the provisions automatically deemed included
herein unless expressly excluded by this Indenture) are a part of and govern
this Indenture, whether or not physically contained herein.
SECTION 11.8. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 11.9. SUCCESSORS AND ASSIGNS. All covenants and
agreements in this Indenture and the Notes by the Issuer shall bind its
successors and assigns, whether so expressed or not. All agreements of the
Indenture Trustee in this Indenture shall bind the successors, co-trustees and
agents (excluding any legal representatives or accountants) of the Indenture
Trustee.
SECTION 11.10. SEPARABILITY. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality, and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 11.11. BENEFITS OF INDENTURE. Nothing in this
Indenture or in the Notes, express or implied, shall give to any Person, other
than the parties hereto and their successors hereunder, and the Noteholders, and
any other party secured hereunder, and any other Person with an ownership
interest in any part of the Indenture Trust Estate, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 11.12. LEGAL HOLIDAYS. In any case where the date on
which any payment is due shall not be a Business Day, then (notwithstanding any
other provision of the Notes or this Indenture) payment need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the date on which nominally due, and no interest shall
accrue for the period from and after any such nominal date.
SECTION 11.13. GOVERNING LAW. This Indenture, each Terms
Supplement and the Notes shall be construed in accordance with the laws of the
State of New York, without reference to its conflict of law provisions, and the
obligations, rights and remedies of the parties hereunder and thereunder shall
be determined in accordance with such laws.
SECTION 11.14. COUNTERPARTS. This Indenture may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
SECTION 11.15. RECORDING OF INDENTURE. If this Indenture is
subject to recording in any appropriate public recording offices, such recording
is to be effected by the Issuer and at its expenses accompanied by an Opinion of
Counsel (which may be counsel to the Issuer or any other counsel reasonably
acceptable to the Indenture Trustee) to the effect that such recording is
necessary either for the protection of the Noteholders or any other Person
secured hereunder or for the enforcement of any right or remedy granted to the
Indenture Trustee under this Indenture.
SECTION 11.16. TRUST OBLIGATIONS. No recourse may be taken,
directly or indirectly, with respect to the obligations of the Issuer, the
Eligible Lender Trustee or the Indenture Trustee on the Notes or under this
Indenture or any certificate or other writing delivered in connection herewith
or therewith, against (i) the Indenture Trustee or the Eligible Lender Trustee
in its individual capacity or (ii) any partner, owner, beneficiary, custodian,
officer, director, employee or agent of the Indenture Trustee or the Eligible
Lender Trustee in its individual capacity, any holder or owner of a beneficial
interest in the Issuer, the Eligible Lender Trustee or the Indenture Trustee or
of any successor or assign of the Indenture Trustee or the Eligible Lender
Trustee in its individual capacity, except as any such Person may have expressly
agreed (it being understood that the Indenture Trustee and the Eligible Lender
Trustee have no such obligations in their individual capacity) and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity. For all purposes of this Indenture, in the performance of any duties or
obligations of the Issuer hereunder, the Eligible Lender Trustee shall be
subject to, and entitled to the benefit of, the terms and provisions of Article
VI, VII and VIII of the Trust Agreement.
SECTION 11.17. NO PETITION. The Indenture Trustee, by entering
into this Indenture, and each Noteholder, by accepting a Note, hereby covenant
and agree that they will not at any time institute against the Seller or the
Issuer, or join in any institution against the Seller or the Issuer of, any
bankruptcy, reorganization, arrangement, insolvency, receivership or liquidation
proceedings, or other proceedings under any United States Federal or State
bankruptcy or similar law in connection with any obligations relating to the
Notes, this Indenture or any of the other Basic Documents.
SECTION 11.18. INSPECTION. The Issuer agrees that, on
reasonable prior notice, it will permit any representative of the Indenture
Trustee, during the Issuer's normal business hours, to examine all the books of
account, records, reports, and other papers of the Issuer, to make copies and
extracts therefrom, to cause such books to be audited by Independent certified
public accountants, and to discuss the Issuer's affairs, finances and accounts
with the Issuer's officers, employees and Independent certified public
accountants, all at such reasonable times and as often as may be reasonably
requested. The Indenture Trustee shall and shall cause its representatives to
hold in confidence all such information except to the extent disclosure may be
required by law (and all reasonable applications for confidential treatment are
unavailing) and except to the extent that the Indenture Trustee may reasonably
determine that such disclosure is consistent with its obligations hereunder.
SECTION 11.19. USURY. The amount of interest payable or paid
on any Note under the terms of this Indenture shall be limited to an amount
which shall not exceed the maximum non usurious rate of interest allowed by the
applicable laws of the United States or the lesser of New York or Pennsylvania
(whichever shall permit the higher rate), which could lawfully be contracted
for, charged or received (the "Highest Lawful Rate"). If any payment of interest
on any Note exceeds the Highest Lawful Rate, the Issuer stipulates that such
excess amount will be deemed to have been paid as a result of an error on the
part of both the Indenture Trustee, acting on behalf of the Noteholder of such
Note, and the Issuer, and the Noteholder receiving such excess payment shall
promptly, upon discovery of such error or upon notice thereof from the Issuer or
the Indenture Trustee, refund the amount of such excess and, at the option of
the Indenture Trustee, apply the excess to the payment of principal of such
Note, if any, remaining unpaid.
SECTION 11.20. RIGHTS OF SURETY PROVIDER. The Surety Provider
is a third-party beneficiary of this Indenture and any Terms Supplement. Any
right conferred to the Surety Provider shall be suspended during any period in
which the Surety Provider is in default in its payment obligations under the
Insurance Agreement. During any period of suspension the Surety Provider's
rights hereunder shall vest in the Noteholders and shall be exercisable by the
Holders of a majority of the aggregate principal amount of Notes then
Outstanding.
At such time as the Notes are no longer Outstanding hereunder and the Surety
Provider has been reimbursed for all Required Surety Payments to which it is
entitled under the Basic Documents and has been paid all Premium Amounts due and
owing in respect of the Surety Bonds, the Surety Provider's rights hereunder
shall terminate.
IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have
caused this Indenture to be duly executed by their respective officers,
thereunto duly authorized and duly attested, all as of the day and year first
above written.
[TRUST 199_-_],
by ________________,
not in its individual
capacity but solely as
Eligible Lender Trustee,
ATTEST:
by by
---------------------------
Name: Name:
Title: Assistant Secretary Title: Senior Vice President
_________________, not in its
individual capacity but solely as Indenture
Trustee,
by
------------------------
Name:
Title:
STATE OF NEW YORK, )
) ss.:
COUNTY OF NEW YORK, )
BEFORE ME, the undersigned authority, a Notary Public in and
for said county and state, on this day personally appeared
__________________________, known to me to be the person and officer whose name
is subscribed to the foregoing instrument and acknowledged to me that the same
was the act of the said _____________ of _________________, not in its
individual capacity but solely as Eligible Lender Trustee of [TRUST 199_-_], a
__________ trust, and that he executed the same as the act of said trust for the
purpose and consideration therein expressed, and in the capacities therein
stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the _____ day of
___________, 1995.
-----------------------------
Notary Public in
and for the State
of New York.
[SEAL]
My commission expires:
----------------------
STATE OF NEW YORK, )
) ss.:
COUNTY OF NEW YORK, )
BEFORE ME, the undersigned authority, a Notary Public in and
for said county and state, on this day personally appeared
__________________________, known to me to be the person and officer whose name
is subscribed to the foregoing instrument and acknowledged to me that the same
was the act of the said ____________, a _________ banking corporation, and that
she executed the same as the act of said corporation for the purpose and
consideration therein expressed, and in the capacities therein stated.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this the _____ day of
_____________, 1995.
-----------------------------
Notary Public in
and for the State
of New York.
[SEAL]
My commission expires:
----------------------
APPENDIX A
TO THE INDENTURE
DEFINITIONS AND USAGE
[See Appendix A to the Sale and Servicing Agreement]
EXHIBIT A-1
[FORM OF AUCTION RATE SERIES 199_-_ NOTES]
[TRUST 199_-_]
AUCTION RATE ASSET BACKED NOTES
SERIES 199_-_
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER (AS DEFINED BELOW)
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
[THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT") OR ANY STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS
NOTE, AGREES THAT THIS NOTE MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES LAWS AND (1) TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WHICH
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, OR (2) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT.]
THIS NOTE IS NOT GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY.
START HERE
No. A-_-_ $______
FINAL
MATURITY DATED INTEREST
CLASS DATE DATE RATE CUSIP
auction rate
as herein
provided
REGISTERED NOTEHOLDER:
PRINCIPAL AMOUNT: __________________________________
[TRUST 199_-_], a _________ business trust (the
"Issuer"), for value received, promises to pay, from the sources herein
described, to the Registered Noteholder identified above, or registered assigns,
upon presentation and surrender hereof at the Corporate Trust Office of Bankers
Trust Company, as Paying Agent, or at the principal office of any successor or
additional Paying Agent, the Principal Amount identified above, as reduced from
time to time as described herein, on the Final Maturity Date identified above,
and to pay to the registered owner hereof, interest and principal hereon in
lawful money of the United States of America at the Class Interest Rate on the
dates as provided herein. Unless otherwise defined in this Series 199_-_ Note,
capitalized terms used in this Series 199_-_ Note shall have the respective
meanings given to such terms in the Master Indenture dated as of ______ __,
1995, as supplemented by the _____ Terms Supplement dated as of _______, 199_,
(the "_____ Terms Supplement" and, together, the "Indenture") between the Issuer
and ______________, as Indenture Trustee.
This Series 199_-_ Note is one of a duly authorized
issue of notes of the Issuer designated as "[Trust 199_-_]
Asset-Backed Notes, Series 199_-_" (herein referred to by specific Class as the
"Series 199_-_, Class A-_ Notes" and collectively as the "Series 199_-_ Notes"),
in the aggregate principal amount of $__________ issued under the Indenture. The
Series 199_-_ Notes are issued to finance the acquisition and consolidation of
Financed Student Loans, and to make certain deposits to the Pledged Accounts.
The Master Indenture provides for the issuance, from
time to time, under the conditions, limitations and restrictions set forth
therein, of additional notes on a parity with all Series of obligations issued
or to be issued under the Indenture, for the purpose of providing additional
funds for the acquisition and consolidation of Financed Student Loans (said
additional notes, together with Series 199_-_ Notes, being collectively referred
to herein as the "Notes").
The Notes are secured under the Indenture which,
together with certain other documents, assigns to the Indenture Trustee for the
benefit of the Noteholders all the rights and remedies of the Issuer under
certain Financed Student Loans and rights under various contracts providing for
the issuance, guarantee and servicing of such Financed Student Loans. Reference
is hereby made to the Indenture for the provisions, among others, with respect
to the custody and application of the proceeds of the Notes, definitions of
certain capitalized terms used in this Series 199_-_ Note, the nature and the
extent of the liens and security of the Indenture, the collection and
disposition of revenues, the funds charged with and pledged to the payment of
the principal of and the interest on the Notes, the terms and conditions under
which additional Notes may be issued, the rights, duties and immunities of the
Indenture Trustee, the rights of the registered owners of the Notes, and the
rights and obligations of the Issuer. By the acceptance of this Series 199_-_
Note, the registered owner hereof assents to all of the provisions of the
Indenture.
The unpaid principal amount hereof from time to time
outstanding shall bear interest at a Class Interest Rate, as described below,
payable on each applicable Note Distribution Date to the extent of interest
accrued on the principal then outstanding, such interest to accrue from the
later of the date hereof or the date through which interest has been paid or
duly provided for. Interest at a Class Interest Rate established pursuant to the
_____ Terms Supplement shall be computed for the actual number of days elapsed
on the basis of a year consisting of 360 days.
During the Class Initial Period, this Series 199_-_
Note shall bear interest at the Class Initial Rate for the Series 199_-_ Notes
of this Class. Thereafter until an Auction Period Adjustment, if any, this
Series 199_-_ Note shall bear interest at a Class Interest Rate based on an
Auction Period that shall, until adjusted pursuant to the _____ Terms
Supplement, generally consist of __ days, all as determined in the _____ Terms
Supplement.
The Class Interest Rate to be borne by this Series
199_-_ Note after the Class Initial Period for each Auction Period, if any, or
an Auction Period Adjustment, if any, shall be the lesser of (i) the Net Loan
Rate in effect for such Auction Period and (ii) the Auction Rate determined in
accordance with the applicable provisions of the _____ Terms Supplement.
In no event shall the Class Interest Rate on this
Series 199_-_ Note exceed ___% per annum.
The Class Interest Period, including, without
limitation, an Auction Period, the applicable Class Interest Rate, the method of
determining the applicable Class Interest Rate on each of the Series 199_-_
Notes and the Auction Procedures related thereto, including, without limitation,
required notices thereof to the Noteholders or Existing Noteholders of the
Series 199_-_ Notes, an Auction Period Adjustment, a change in the Auction Date
and the Note Distribution Dates will be determined in accordance with the terms,
conditions and provisions of the _____ Terms Supplement and the Auction Agent
Agreement, to which terms, conditions and provisions specific reference is
hereby made, and all of which terms, conditions and provisions are hereby
specifically incorporated herein by reference.
If the Auction Rate for the Series 199_-_ Notes is
greater than the Net Loan Rate, then the Class Interest Rate applicable to the
Series 199_-_ Notes for that Class Interest Period will be the Net Loan Rate. If
the Class Interest Rate applicable to the Series 199_-_ Notes for any Class
Interest Period is the Net Loan Rate, the Indenture Trustee shall determine the
Noteholders' Auction Rate Interest Carryover, if any, with respect to the Series
199_-_ Notes for such Class Interest Period. Such Noteholders' Auction Rate
Interest Carryover shall bear interest calculated at a rate equal to One-Month
LIBOR from the Note Distribution Date for each Class Interest Period with
respect to which such Noteholders' Auction Rate Interest Carryover was
calculated until paid. For purposes of this Series 199_-_ Note, any reference to
"principal" or "interest" herein shall not include within the meaning of such
words Noteholders' Auction Rate Interest Carryover or any interest accrued on
any such Noteholders' Auction Rate Interest Carryover. Such Noteholders' Auction
Rate Interest Carryover shall be separately calculated for each Series 199_-_
Note by the Indenture Trustee during such Class Interest Period in sufficient
time for the Indenture Trustee to give notice to each Noteholder of such
Noteholders' Auction Rate Interest Carryover as required in the next succeeding
sentence. On the Note Distribution Date for a Class Interest Period with respect
to which such Noteholders' Auction Rate Interest Carryover has been calculated
by the Indenture Trustee, the Indenture Trustee shall give written notice to
each Noteholder of the Noteholders' Auction Rate Interest Carryover applicable
to each Noteholder's Series 199_-_ Note, which written notice may accompany the
payment of interest by check made to each such Noteholder on such Note
Distribution Date or otherwise shall be mailed on such Note Distribution Date by
first class mall, postage prepaid, to each such Noteholder at such Noteholder's
address as it appears on the registration books maintained by the Registrar.
Such notice shall state, in addition to such Noteholders' Auction Rate Interest
Carryover, that, unless and until a Series 199_-_ Note has been paid in full or
has been deemed no longer Outstanding under the _____ Terms Supplement (after
which no Noteholders' Auction Rate Interest Carryover (and all accrued interest
thereon) shall be paid with respect to a Series 199_-_ Note), (i) the
Noteholders' Auction Rate Interest Carryover (and interest accrued thereon
calculated on the basis of One-Month LIBOR) shall be paid by the Indenture
Trustee on a Series 199_-_ Note on the first occurring Note Distribution Date
for a subsequent Class Interest Period if and to the extent that (1) during such
Class Interest Period no additional Noteholders' Auction Rate Interest Carryover
is accruing on the Series 199_-_ Notes and (2) moneys are available on such Note
Distribution Date pursuant to the terms of the _____ Terms Supplement in an
amount sufficient to pay all or a portion of such Noteholders' Auction Rate
Interest Carryover and (ii) interest shall accrue on the Noteholders' Auction
Rate Interest Carryover at a rate equal to One-Month LIBOR until such
Noteholders' Auction Rate Interest Carryover is paid in full or is cancelled.
The Noteholders' Auction Rate Interest Carryover for
the Series 199_-_ Notes shall be paid by the Indenture Trustee on Outstanding
Series 199_-_ Notes on the first occurring Note Distribution Date for a
subsequent Class Interest Period if and to the extent that (i) during such Class
Interest Period, no additional Noteholders' Auction Rate Interest Carryover is
accruing on the Series 199_-_ Notes and (ii) on such Note Distribution Date
there are sufficient moneys available pursuant to the terms of the _____ Terms
Supplement to pay all or a portion of the Noteholders' Auction Rate Interest
Carryover due on the Series 199_-_ Notes on such Note Distribution Date. Any
Noteholders' Auction Rate Interest Carryover (and any interest accrued thereon)
on any Series 199_-_ Note which is due and payable on any Note Distribution
Date, which Series 199_-_ Note is deemed no longer Outstanding under the
Indenture on said Note Distribution Date, shall be paid to the Noteholder
thereof on the next Note Distribution Date to the extent that moneys are
available therefor in accordance with the _____ Terms Supplement; provided,
however, that any Noteholders' Auction Rate Interest Carryover (and any interest
accrued thereon) which is not yet due and payable on said Note Distribution Date
shall be cancelled with respect to said Series 199_-_ Note that is to be deemed
no longer Outstanding under the Indenture on said Note Distribution Date and
shall not be paid on any succeeding Note Distribution Date. To the extent that
any portion of the Noteholders' Auction Rate Interest Carryover remains unpaid
after payment of a portion thereof, such unpaid portion of the Noteholders'
Auction Rate Interest Carryover shall be paid in whole or in part until fully
paid by the Indenture Trustee on the next occurring Note Distribution Date or
Dates, as necessary, for a subsequent Class Interest Period or Periods, if and
to the extent that the conditions in the immediately preceding sentence are
satisfied.
The Note Distribution Date in such subsequent Class
Interest Period on which such Noteholders' Auction Rate Interest Carryover for
the Series 199_-_ Notes shall be paid shall be determined by the Indenture
Trustee in accordance with the provisions of the immediately preceding
paragraph, and the Indenture Trustee shall make payment of the Noteholders'
Auction Rate Interest Carryover in the same manner as, and from the same account
from which, it pays interest on the Series 199_-_ Notes on an Note Distribution
Date.
The principal of and interest on the Series 199_-_
Notes and Noteholders' Auction Rate Interest Carryover on the Series 199_-_
Notes (and interest accrued thereon), if any, are special limited obligations of
the Issuer, payable solely from certain revenues derived by the Issuer from
certain assets of the Issuer, including certain notes evidencing Financed
Student Loans. The Series 199_-_ Notes are not an indebtedness, a debt or a
liability of Trans- World Insurance Company or The Money Store Inc.
Distributions of principal will made on each Note
Distribution Date to the Class of Notes with the earliest Final Maturity Date in
the manner described in the Sale and Servicing Agreement. With respect to the
Class of Notes entitled to receive payments of principal, the actual Notes of
such Class that will receive payments of principal on each applicable Note
Distribution Date will be selected no later than 15 days prior to the related
Note Distribution Date by the Indenture Trustee by lot in such manner as the
Indenture Trustee in its discretion may determine and which may provide for the
selection for payment of principal in minimum denominations of $50,000, and
integral multiples in excess thereof.
If an Event of Default as defined in the Indenture
occurs, the principal of and interest on all Notes issued under the Indenture
may be declared due and payable upon the conditions and in the manner and with
the effect provided in the Indenture. The Indenture and the rights and
obligations of the Issuer, the Indenture Trustee and the Noteholder hereof may
be modified or amended in the manner and subject to the conditions set forth in
the Indenture.
The Noteholder of this Series 199_-_ Note shall have
no right to enforce the provisions of the Indenture or to institute action to
enforce the covenants therein, or to take any action with respect to any Event
of Default under the Indenture, or to institute, appear in or defend any suit or
other proceeding with respect thereto, except as provided in the Indenture.
The transfer of this Series 199_-_ Note may be
registered only upon surrender hereof to the Indenture Trustee together with an
assignment duly executed by the registered owner or its attorney or legal
representative in such form as shall be satisfactory to the Indenture Trustee.
Upon any such registration of transfer of this Series 199_-_ Note and subject to
the payment of any fees and charges as provided by the Indenture, the Issuer
shall execute and the Indenture Trustee shall authenticate and deliver in
exchange for this Series 199_-_ Note a new Series 199_-_ Note or Notes
registered in the name of the transferee, in any denomination or denominations
authorized by the Indenture, of the same maturity and in an aggregate principal
amount equal to the unredeemed principal amount of this Series 199_-_ Note and
bearing the same interest as this Series 199_-_ Note.
In any case where the date fixed for the payment of
principal of or interest on this Series 199_-_ Note shall not be a Business Day,
then payment of such principal or interest need not be made on such date but may
be made on the next succeeding Business Day with the same force and effect as if
made on the date fixed for the payment thereof.
It is hereby certified, recited and declared that all
acts, conditions and things required to have happened, to exist and to have been
performed precedent to and in the execution and delivery of the Indenture and
issuance of this Series 199_-_ Note have happened, do exist and have been
performed in due time, form and manner as required by law.
This Series 199_-_ Note shall not be valid or become
obligatory for any purpose or be entitled to any security or benefit under the
Indenture until the certificate of authentication hereon shall have been
manually signed by the Indenture Trustee.
IN WITNESS WHEREOF, the Issuer has caused this Series
199_-_ Note to be executed in its name by the manual or facsimile signature of
an Authorized Officer and the manual or facsimile signature of an Assistant
Secretary, and has caused its corporate seal or a facsimile thereof to be hereto
affixed.
[TRUST 199_-_]
By:____________________,
not in its individual capacity but
solely as Eligible Lender Trustee
By:
(SEAL)
Attest:
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This Note is one of the Series 199_-_ Notes designated
in and issued under the provisions of the within mentioned Indenture.
-----------------
New York, New York, as
Indenture Trustee
By:
Authorized Representative
Date of Authentication:
------------------
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells,
assigns and transfers unto
, the within Note and irrevocably appoints , attorney-in-fact,
to transfer the within Note on the books kept for registration thereof, with
full power of substitution in the premises.
Dated:___________ ___________________________
NOTICE: The signature to Signature Guaranteed:
this assignment must
correspond with the name as __________________________
it appears upon the face of
the within Note in every par-
ticular, without any alter-
ation whatsoever.
Name and Address:__________________________
Tax Identification Number or
Social Security Number(s):___________________________
[END OF FORM OF SERIES 199_-_ NOTE)
EXHIBIT A-2
[FORM OF LIBOR RATE SERIES 199_-_ NOTES]
[TRUST 199_-_]
ASSET BACKED NOTES
SERIES 199_-_
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER (AS DEFINED BELOW)
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
[THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT") OR ANY STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS
NOTE, AGREES THAT THIS NOTE MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY
IN ACCORDANCE WITH ANY APPLICABLE STATE SECURITIES LAWS AND (1) TO A PERSON WHOM
THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WHICH
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, OR (2) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT.]
THIS NOTE IS NOT GUARANTEED OR INSURED BY ANY GOVERNMENTAL AGENCY.
No. A-_-_ $__________
FINAL CLASS
MATURITY DATED INTEREST
CLASS DATE DATE RATE CUSIP
LIBOR + ____% as
herein provided
REGISTERED NOTEHOLDER: CEDE & CO.
PRINCIPAL AMOUNT:
[TRUST 199_-_], a ____________ business trust (the
"Issuer"), for value received, promises to pay, from the sources herein
described, to the Registered Noteholder identified above, or registered assigns,
upon presentation and surrender hereof at the Corporate Trust Office of
_______________, as Paying Agent, or at the principal office of any successor or
additional Paying Agent, the Principal Amount identified above, as reduced from
time to time as described herein, on the Final Maturity Date identified above,
and to pay to the registered owner hereof, interest and principal hereon in
lawful money of the United States of America at the Class Interest Rate on the
dates as provided herein. Unless otherwise defined in this Series 199_-_ Note,
capitalized terms used in this Series 199_-_ Note shall have the respective
meanings given to such terms in the Master Indenture dated as of _______ __,
1995 (the "Master Indenture"), as supplemented by the ______ Terms Supplement
dated as of _______ __, 199_, (the "______ Terms Supplement" and, together with
the Master Indenture, the "Indenture") between the Issuer and Bankers Trust
Company, as Indenture Trustee.
This Series 199_-_ Note is one of a duly authorized
issue of notes of the Issuer designated as "[Trust 199_-_] Asset-Backed
Notes, Series 199_-_" (herein referred to by specific Class as the "Series
199_-_, Class A-_ Notes" and collectively as the "Series 199_-_ Notes"), in the
aggregate principal amount of $_________ issued under the Indenture. The Series
199_-_ Notes are issued to finance the acquisition and consolidation of Financed
Student Loans, and to make certain deposits to the Pledged Accounts.
The Master Indenture provides for the issuance, from
time to time, under the conditions, limitations and restrictions set forth
therein, of additional notes on a parity with all Series of obligations issued
or to be issued under the Indenture, for the purpose of providing additional
funds for the acquisition and consolidation of Financed Student Loans (said
additional notes, together with Series 199_-_ Notes, being collectively referred
to herein as the "Notes").
The Notes are secured under the Indenture which,
together with certain other documents, assigns to the Indenture Trustee for the
benefit of the Noteholders all the rights and remedies of the Issuer under
certain Financed Student Loans and rights under various contracts providing for
the issuance, guarantee and servicing of such Financed Student Loans. Reference
is hereby made to the Indenture for the provisions, among others, with respect
to the custody and application of the proceeds of the Notes, definitions of
certain capitalized terms used in this Series 199_-_ Note, the nature and the
extent of the liens and security of the Indenture, the collection and
disposition of revenues, the funds charged with and pledged to the payment of
the principal of and the interest on the Notes, the terms and conditions under
which additional Notes may be issued, the rights, duties and immunities of the
Indenture Trustee, the rights of the registered owners of the Notes, and the
rights and obligations of the Issuer. By the acceptance of this Series 199_-_
Note, the registered owner hereof assents to all of the provisions of the
Indenture.
The unpaid principal amount hereof from time to time
outstanding shall bear interest at a Class Interest Rate, as described below,
payable on each applicable Note Distribution Date to the extent of interest
accrued on the principal then outstanding, such interest to accrue from the
later of the date hereof or the date through which interest has been paid or
duly provided for. Interest at a Class Interest Rate established pursuant to the
_______ Terms Supplement shall be computed for the actual number of days elapsed
on the basis of a year consisting of 360 days.
During the Initial Period, this Series 199_-_ Note
shall bear interest at the Class Initial Rate equal to the rate set forth in the
_______ Terms Supplement. Thereafter, this Series 199_-_ Note generally shall
bear interest at a Class Interest Rate equal to LIBOR plus the margin set forth
in the _______ Terms Supplement.
[In no event shall the Class Interest Rate on this
Series 199_-_ Note exceed ____% per annum.]
[If the LIBOR Rate for the Series 199_-_ Notes is
greater than the Net Loan Rate, then the Class Interest Rate applicable to the
Series 199_-_ Notes for that Interest Period will be the Net Loan Rate. If the
Class Interest Rate applicable to the Series 199_-_ Notes for any Interest
Period is the Net Loan Rate, the Indenture Trustee shall determine the
Noteholders' LIBOR Rate Interest Carryover, if any, with respect to the Series
199_-_ Notes for such Interest Period. Such Noteholders' LIBOR Rate Interest
Carryover shall bear interest calculated at a rate equal to One-Month LIBOR from
the Note Distribution Date for each Interest Period with respect to which such
Noteholders' LIBOR Rate Interest Carryover was calculated until paid. For
purposes of this Series 199_-_ Note, any reference to "principal" or "interest"
herein shall not include within the meaning of such words Noteholders' LIBOR
Rate Interest Carryover or any interest accrued on any such Noteholders' LIBOR
Rate Interest Carryover. Such Noteholders' LIBOR Rate Interest Carryover shall
be calculated by the Indenture Trustee during such Interest Period in sufficient
time for the Indenture Trustee to give notice to each Noteholder of such
Noteholders' LIBOR Rate Interest Carryover as required in the next succeeding
sentence. On the Note Distribution Date for an Interest Period with respect to
which such Noteholders' LIBOR Rate Interest Carryover has been calculated by the
Indenture Trustee, the Indenture Trustee shall give written notice to each
Noteholder of the Noteholders' LIBOR Rate Interest Carryover applicable to each
Noteholder's Series 199_-_ Notes, which written notice may accompany the payment
of interest by check made to each such Noteholder on such Note Distribution Date
or otherwise shall be mailed on such Note Distribution Date by first class mall,
postage prepaid, to each such Noteholder at such Noteholder's address as it
appears on the registration books maintained by the Registrar. Such notice shall
state, in addition to such Noteholders' LIBOR Rate Interest Carryover, that,
unless and until a Series 199_-_ Note has been paid in full or has been deemed
no longer Outstanding under the _______ Terms Supplement (after which no
Noteholders' LIBOR Rate Interest Carryover (and all accrued interest thereon)
shall be paid with respect to a Series 199_-_ Note), (i) the Noteholders' LIBOR
Rate Interest Carryover (and interest accrued thereon calculated on the basis of
One-Month LIBOR) shall be paid by the Indenture Trustee on a Series 199_-_ Note
on the first occurring Note Distribution Date for a subsequent Interest Period
if and to the extent that (1) during such Interest Period no additional
Noteholders' LIBOR Rate Interest Carryover is accruing on the Series 199_-_
Notes and (2) moneys are available on such Note Distribution Date pursuant to
the terms of the _______ Terms Supplement in an amount sufficient to pay all or
a portion of such Noteholders' LIBOR Rate Interest Carryover and (ii) interest
shall accrue on the Noteholders' LIBOR Rate Interest Carryover at a rate equal
to One-Month LIBOR until such Noteholders' LIBOR Rate Interest Carryover is paid
in full or is cancelled.]
[The Noteholders' LIBOR Rate Interest Carryover for
the Series 199_-_ Notes shall be paid by the Indenture Trustee on Outstanding
Series 199_-_ Notes on the first occurring Note Distribution Date for a
subsequent Interest Period if and to the extent that (i) during such Interest
Period, no additional Noteholders' LIBOR Rate Interest Carryover is accruing on
the Series 199_-_ Notes and (ii) on such Note Distribution Date there are
sufficient moneys available pursuant to the terms of the _______ Terms
Supplement to pay all or a portion of the Noteholders' LIBOR Rate Interest
Carryover due on the Series 199_-_ Notes on such Note Distribution Date. Any
Noteholders' LIBOR Rate Interest Carryover (and any interest accrued thereon) on
any Series 199_-_ Note which is due and payable on any Note Distribution Date,
which Series 199_-_ Note is deemed no longer Outstanding under the Indenture on
said Note Distribution Date, shall be paid to the Noteholder thereof on the next
Note Distribution Date to the extent that moneys are available therefor in
accordance with the _______ Terms Supplement; provided, however, that any
Noteholders' LIBOR Rate Interest Carryover (and any interest accrued thereon)
which is not yet due and payable on said Note Distribution Date shall be
cancelled with respect to said Series 199_-_ Note that is to be deemed no longer
Outstanding under the Indenture on said Note Distribution Date and shall not be
paid on any succeeding Note Distribution Date. To the extent that any portion of
the Noteholders' LIBOR Rate Interest Carryover remains unpaid after payment of a
portion thereof, such unpaid portion of the Noteholders' LIBOR Rate Interest
Carryover shall be paid in whole or in part until fully paid by the Indenture
Trustee on the next occurring Note Distribution Date or Dates, as necessary, for
a subsequent Interest Period or Periods, if and to the extent that the
conditions in the immediately preceding sentence are satisfied.]
[The Note Distribution Date in such subsequent
Interest Period on which such Noteholders' LIBOR Rate Interest Carryover for the
Series 199_-_ Notes shall be paid shall be determined by the Indenture Trustee
in accordance with the provisions of the immediately preceding paragraph, and
the Indenture Trustee shall make payment of the Noteholders' LIBOR Rate Interest
Carryover in the same manner as, and from the same account from which, it pays
interest on the Series 199_-_ Notes on an Note Distribution Date.]
Distributions of principal will made on each Note
Distribution Date to the Class of Notes with the earliest Final Maturity Date in
the manner described in the Sale and Servicing Agreement. With respect to the
Class of Notes entitled to receive payments of principal, the actual Notes of
such Class that will receive payments of principal on each applicable Note
Distribution Date will be selected no later than 15 days prior to the related
Note Distribution Date by the Indenture Trustee by lot in such manner as the
Indenture Trustee in its discretion may determine and which may provide for the
selection for payment of principal in minimum denominations of $50,000, and
integral multiples in excess thereof.
If an Event of Default as defined in the Indenture
occurs, the principal of and interest on all Notes issued under the Indenture
may be declared due and payable upon the conditions and in the manner and with
the effect provided in the Indenture. The Indenture and the rights and
obligations of the Issuer, the Indenture Trustee and the Noteholder hereof may
be modified or amended in the manner and subject to the conditions set forth in
the Indenture.
The Noteholder of this Series 199_-_ Note shall have
no right to enforce the provisions of the Indenture or to institute action to
enforce the covenants therein, or to take any action with respect to any Event
of Default under the Indenture, or to institute, appear in or defend any suit or
other proceeding with respect thereto, except as provided in the Indenture.
The transfer of this Series 199_-_ Note may be
registered only upon surrender hereof to the Indenture Trustee together
with an assignment duly executed by the registered owner or its attorney or
legal representative in such form as shall be satisfactory to the Indenture
Trustee. Upon any such registration of transfer of this Series 199_-_ Note and
subject to the payment of any fees and charges as provided by the Indenture, the
Issuer shall execute and the Indenture Trustee shall authenticate and deliver in
exchange for this Series 199_-_ Note a new Series 199_-_ Note or Notes
registered in the name of the transferee, in any denomination or denominations
authorized by the Indenture, of the same maturity and in an aggregate principal
amount equal to the unredeemed principal amount of this Series 199_-_ Note and
bearing the same interest as this Series 199_-_ Note.
In any case where the date fixed for the payment of
principal of or interest on this Series 199_-_ Note shall not be a Business Day,
then payment of such principal or interest need not be made on such date but may
be made on the next succeeding Business Day with the same force and effect as if
made on the date fixed for the payment thereof.
It is hereby certified, recited and declared that all
acts, conditions and things required to have happened, to exist and to have been
performed precedent to and in the execution and delivery of the Indenture and
issuance of this Series 199_-_ Note have happened, do exist and have been
performed in due time, form and manner as required by law.
This Series 199_-_ Note shall not be valid or become
obligatory for any purpose or be entitled to any security or benefit under the
Indenture until the certificate of authentication hereon shall have been
manually signed by the Indenture Trustee.
IN WITNESS WHEREOF, the Issuer has caused this Series
199_-_ Note to be executed in its name by the manual or facsimile signature of
an Authorized Officer and the manual or facsimile signature of an Assistant
Secretary, and has caused its corporate seal or a facsimile thereof to be hereto
affixed.
[TRUST 199_-_]
By: ________________,
not in its individual capacity but
solely as Eligible Lender Trustee
By:
(SEAL)
Attest:
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This Note is one of the Series 199_-_ Notes designated
in and issued under the provisions of the within mentioned Indenture.
-----------------
New York, New York, as
Indenture Trustee
By:
Authorized Representative
Date of Authentication:
-----------------------
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells,
assigns and transfers unto , the within Note and irrevocably appoints ,
attorney-in-fact, to transfer the within Note on the books kept for registration
thereof, with full power of substitution in the premises.
Dated: ___________ ___________________________
NOTICE: The signature to Signature Guaranteed:
this assignment must
correspond with the name as ___________________________
it appears upon the face of
the within Note in every par-
ticular, without any alter-
ation whatsoever.
Name and Address:__________________________
Tax Identification Number or
Social Security Number(s):___________________________
[END OF FORM OF Series 199_-_ Note)