As filed with the Securities and Exchange Commission on December 5, 1997
Registration No. 333-35825
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
FORM S-3
AMENDMENT NO. 2
to
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
----------------
<TABLE>
<S> <C>
Virginia CRESTAR BANK, as Depositor 53-0116200
(State or other to CRESTAR STUDENT LOAN TRUST 1997-1 (I.R.S. Employer
jurisdiction of (Exact name of registrant as specified in its charter) Identification No.)
incorporation or
organization)
</TABLE>
919 East Main Street
Richmond, Virginia 23219
(804) 782-5000
(Address, including zip code, and telephone number,
including area code, of registrant's
principal executive offices)
<TABLE>
<S> <C>
W. Clark McGhee Copies to: And to: And to:
Senior Vice President Randolph F. Totten David M. Reicher Paul F. Sefcovic
6802 Paragon Place Hunton & Williams Foley & Lardner Squire, Sanders & Dempsey L.L.P.
Richmond, VA 23230-7172 951 East Byrd Street Firstar Center 41 S. High St., Suite 1300
(804) 287-9501 Richmond, VA 23219-4074 777 E. Wisconsin Ave. Columbus, OH 43215
(804) 287-9428 (telecopy) (804) 788-8281 Milwaukee, WI (614) 365-2738
(Name, address, including zip code and (804) 788-8218 (telecopy) (414) 297-5763 (614) 365-2499 (telecopy)
telephone number, (414) 297-4900 (telecopy)
including area code, of agent for service)
</TABLE>
Approximate date of commencement of proposed sale to
the public: As soon as practicable after the effective date of
this Registration Statement.
-----------------------
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
======================================================================================
Proposed Proposed
Maximum Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
Being Registered Registered(1) Per Unit(2) Offering Price(2) Registration Fee(3)
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<S> <C>
Student Loan
Asset Backed Notes $222,900,000 100% $222,900,000 $65,460.50(3)
======================================================================================
</TABLE>
(1) Also registered are secondary market sales of Notes that may be
effected by Crestar Securities Corporation, an affiliate of the
Registrant.
(2) Estimated solely for calculating the registration fee.
(3) Excludes $303.04 previously paid in connection with the initial
registration of $1,000,000.
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The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that the Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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<PAGE>
SUBJECT TO COMPLETION, DATED DECEMBER 5, 1997
PROSPECTUS
$222,900,000
Crestar Student Loan Trust 1997-1
STUDENT LOAN ASSET BACKED NOTES
------------
Crestar Bank
Transferor
Crestar Student Loan Trust 1997-1, a Delaware business trust (the
"Trust"), will issue $222,900,000 aggregate principal amount of its Student Loan
Asset Backed Notes in the classes and original principal amounts set forth below
(collectively, the "Notes"). The assets of the Trust will include a pool of
guaranteed or insured education loans to students and parents of students
acquired by Star Bank, National Association, as eligible lender trustee on
behalf of the Trust (the "Eligible Lender Trustee"), from Crestar Bank (the
"Transferor") (the "Financed Student Loans"), collections and other payments
with respect to the Financed Student Loans and monies on deposit in certain
trust accounts to be established (including the Collection Account, the Reserve
Account, the Note Distribution Account, the Expense Account and the Monthly
Advance Account). The Notes will be collateralized by the assets of the Trust.
(Continued on following page)
Prospective investors should consider the material risks set
forth under "Risk Factors" beginning on page 24.
------------
THE NOTES REPRESENT OBLIGATIONS OF THE TRUST ONLY AND DO NOT REPRESENT
INTERESTS IN OR OBLIGATIONS OF THE TRANSFEROR, THE MASTER SERVICER, THE
SERVICERS, THE ELIGIBLE LENDER TRUSTEE, THE INDENTURE TRUSTEE OR ANY OF THEIR
RESPECTIVE AFFILIATES OR SUBSIDIARIES. THE NOTES ARE NOT DEPOSITS OF A BANK.
THE NOTES ARE NOT GUARANTEED OR INSURED BY THE FEDERAL DEPOSIT INSURANCE
CORPORATION OR ANY GOVERNMENTAL AGENCY.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
Class Final
Interest Price to Underwriting Proceeds to Maturity
Rate Public Discount(1) Transferor(2) Date (4)
<S> <C>
$130,000,000 Senior LIBOR Rate Class A-1 Notes .... (3) 100% % % January 25,
2007
$84,000,000 Senior LIBOR Rate Class A-2 Notes .... (3) 100% % % January 25,
2017
$8,900,000 Subordinate LIBOR Rate Class B Notes .... (3) 100% % % January 25,
2027
Total................................................. $ $
$222,900,000
</TABLE>
(1) The Transferor has agreed to indemnify the Underwriters against certain
liabilities under the Securities Act of 1933, as amended.
(2) Before deducting expenses, estimated to be $668,700.
(3) Following the initial Interest Periods, the Class Interest Rates for
the Class A-1 Notes, the Class A-2 Notes and the Class B Notes will
equal, subject to certain limitations described herein, One-Month LIBOR
plus ____%, ____% and ____%, respectively.
(4) Payment in full of the Notes could occur earlier than their respective
final maturity dates as described herein.
------------
The Notes are offered by the Underwriters when, as and if issued by the
Trust, delivered to and accepted by the Underwriters and subject to approval of
certain legal matters by counsel for the Underwriters. The Underwriters reserve
the right to withdraw, cancel or modify such offer and to reject orders in whole
or in part. It is expected that delivery of the Notes will be made in
book-entry form through the Same Day Funds Settlement System of The Depository
Trust Company and also Cedel Bank, societe anonyme or the Euroclear System on or
about December __, 1997.
------------
Salomon Smith Barney
Crestar Securities Corporation
Morgan Stanley Dean Witter
The date of this Prospectus is December __, 1997
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
(Cover continued from previous page)
The Notes will be available for purchase in denominations of $50,000
and integral multiples of $1,000 in excess thereof in book-entry form only.
Interest on the Class A Notes will be payable monthly on or about the 25th day
of each month, commencing January 26, 1998 (each, a "Distribution Date").
Principal of the Class A Notes will be payable monthly on each Distribution
Date, commencing February 25, 1998. Interest on and principal of the Class B
Notes will be payable quarterly on the Distribution Date in each January, April,
July and October, commencing April 27, 1998 (each, a "Quarterly Distribution
Date"). No distribution in respect of principal of the Class B Notes will be
payable until each Class of Class A Notes is paid in full. See generally
"Description of the Notes -- The Notes." Interest will accrue on the Class A-1
Notes at the rate of ___% per annum, on the Class A-2 Notes at the rate of ___%
per annum and on the Class B Notes at the rate of ___% per annum through January
25, 1998. Thereafter, interest on the Notes will accrue, subject to certain
limitations described herein, for each Interest Payment Period at the per annum
rates set forth on the cover page hereof.
Payment in full of the Notes could occur earlier than their respective
final maturity dates from payments on the Financed Student Loans as described
herein. In addition, the Notes will be repaid (i) on any Quarterly Distribution
Date on which the Transferor exercises its option to purchase the Financed
Student Loans, exercisable when the outstanding Pool Balance is reduced to 10%
or less of the Initial Pool Balance, (ii) on or after the Distribution Date
occurring in April 2007, if the outstanding Pool Balance is reduced to 10% or
less of the Initial Pool Balance and the Financed Student Loans are sold
pursuant to the auction procedures described under "Description of the Transfer
and Servicing Agreements -- Termination," and (iii) under certain circumstances
as described in "Description of the Transfer and Servicing Agreements --
Insolvency Event," upon the insolvency of the Transferor and subsequent
termination of the Trust pursuant to the Trust Agreement (as defined in "Summary
of Terms -- The Trust").
The rights of the Class B Noteholders to receive principal and interest
payments with respect to the Notes and to direct remedies upon default will be
subordinated to such rights of the Class A Noteholders to the extent described
in this Prospectus. See "Risk Factors -- Risk of Loss to Noteholders of Class B
Notes Resulting From Subordination of the Class B Notes," "Description of the
Notes -- The Indenture" and "Description of the Transfer and Servicing
Agreements -- Distributions," "-- Credit Enhancement -- Subordination of the
Class B Notes," "-Master Servicer Default; Administrator Default," "-- Rights
Upon Servicer Default and Administrator Default" and "-- Waiver of Past
Defaults."
There is currently no secondary market for the Notes. Salomon Brothers
Inc, Morgan Stanley & Co., Incorporated and Crestar Securities Corporation
intend to make a secondary market for the Notes, but none of them has any
obligation to do so. There can be no assurance that a secondary market for the
Notes will develop or, if one does develop that it will continue. The Notes will
not be listed on any national securities exchange.
After the initial distribution of the Notes by the Underwriters, the
Prospectus may be used by Crestar Securities Corporation, an affiliate of the
Transferor, in connection with offers and sales relating to market making
transactions in the Notes. Crestar Securities Corporation may act as principal
or agent in such transactions. Such sales will be made at prices related to
prevailing market prices at the time of sale. Certain information in this
Prospectus will be updated from time to time as described in "Incorporation of
Certain Documents by Reference."
The Transferor has not authorized any offer of Notes to the public in
the United Kingdom within the meaning of the Public Offers of Securities
Regulations 1995 (the "U.K. Regulations"). The Notes may not lawfully be offered
or sold to persons in the United Kingdom except in circumstances which do not
result in an offer to the public in the United Kingdom within the meaning of the
U.K. Regulations or otherwise are in compliance with all applicable provisions
of the U.K. Regulations.
------------
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS
THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE NOTES OFFERED
HEREBY INCLUDING OVER-ALLOTMENT, STABILIZING TRANSACTIONS, SYNDICATE COVERING
-2-
<PAGE>
TRANSACTIONS AND PENALTY BIDS. FOR A DESCRIPTION OF THESE ACTIVITIES SEE
"UNDERWRITING."
Until 90 days after the date hereof, all dealers effecting transactions
in the Notes, whether or not participating in this distribution, may be required
to deliver a Prospectus. This is in addition to the obligation of dealers to
deliver a Prospectus when acting as underwriters and with respect to their
unsold allotments or subscriptions.
-3-
<PAGE>
AVAILABLE INFORMATION
The Transferor, as depositor of the Trust (the "Depositor"), has filed
with the Securities and Exchange Commission (the "Commission") a registration
statement (together with all amendments and exhibits thereto, the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to the Notes offered hereby. This Prospectus, which forms part of
the Registration Statement, does not contain all the information contained
therein. For further information, reference is made to the Registration
Statement which may be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Washington D.C. 20549;
and at the Commission's regional offices at Seven World Trade Center, Suite
1300, New York, New York 10048; and 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661, and copies of all or any part thereof may be obtained
from the Public Reference Branch of the Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549 upon the payment of certain fees prescribed by the
Commission. In addition, the Registration Statement may be accessed
electronically through the Commission's Electronic Data Gathering, Analysis and
Retrieval system at the Commission's site on the World Wide Web located at
http:/ /www.sec.gov.
REPORTS TO NOTEHOLDERS
Unless and until Definitive Notes are issued, monthly unaudited reports
(while the Class A Notes are outstanding, and quarterly unaudited reports
thereafter) and annual unaudited reports containing information concerning the
Financed Student Loans will be prepared by Crestar Bank, in its capacity as
administrator for the Trust (the "Administrator") and sent on behalf of the
Trust only to Cede & Co. ("Cede"), as nominee of The Depository Trust Company
("DTC") and registered holder of the Notes but will not be sent to any
beneficial holder of the Notes. Such reports will not constitute financial
statements prepared in accordance with generally accepted accounting principles.
See "Description of the Notes -- BookEntry Registration" and "-- Reports to
Noteholders." The Trust will file with the Commission such periodic reports as
are required under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations of the Commission thereunder. The
Trust intends to suspend the filing of such reports under the Exchange Act when
and if the filing of such reports is no longer statutorily required.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
All reports and other documents filed by the Administrator, on behalf
of the Trust, pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of this Prospectus and prior to the termination of the
offering of the Notes shall be deemed to be incorporated by reference into this
Prospectus and to be a part hereof. After the initial distribution of the Notes
by the Underwriters and in connection with market making transactions by Crestar
Securities Corporation, this Prospectus will be distributed together with, and
should be read in conjunction with, an accompanying supplement to the
Prospectus. Such supplement will contain the reports described above and
generally will include the information contained in the quarterly statements
furnished to Noteholders. See "Description of the Notes -- Reports to
Noteholders" and "Description of the Transfer and Servicing Agreements --
Statements to Indenture Trustee." Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Administrator will provide without charge to each person to whom a
copy of this Prospectus is delivered, on the written or oral request of any such
person, a copy of any or all of the documents incorporated herein by reference,
except the exhibits to such documents (unless such exhibits are specifically
incorporated by reference in such documents). Written requests for such copies
should be directed to Mr. Eugene S. Putnam, Jr., Senior Vice President -
Investor Relations, Crestar Financial Corporation, 919 East Main Street, P.O.
Box 26665, Richmond, VA 23261-6665 or "[email protected]" on the
Internet. Telephone requests for such copies should be directed to (804)
782-7821.
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<PAGE>
SUMMARY OF TERMS
The following summary is qualified in its entirety by reference to the
detailed information appearing elsewhere in this Prospectus and by the Related
Documents. Certain capitalized terms used in this Prospectus are defined
elsewhere herein on the pages indicated in the "Index of Principal Terms"
beginning on page 105 of this Prospectus.
Issuer ........................... Crestar Student Loan Trust 1997-1 (the
"Trust") is a statutory business trust
established under the laws of the State of
Delaware.
Securities Offered................ Senior LIBOR Rate Class A-1 Student Loan
Asset Backed Notes (the "Class A-1 Notes") in
the aggregate principal amount of
$130,000,000, Senior LIBOR Rate Class A-2
Student Loan Asset Backed Notes (the "Class
A-2 Notes", and together with the Class A-1
Notes, the "Class A Notes") in the aggregate
principal amount of $84,000,000 and
Subordinate LIBOR Rate Class B Student Loan
Asset Backed Notes (the "Class B Notes" and,
together with the Class A Notes, the "Notes")
in the aggregate principal amount of
$8,900,000. The original principal amount of
each class (a "Class") of Notes is referred
to as its "Original Amount."
The holders of the Class A-1 Notes and the
Class A-2 Notes are referred to as the "Class
A-1 Noteholders" and the "Class A-2
Noteholders," respectively, and collectively
as the "Class A Noteholders." The holders of
the Class B Notes are referred to as the
"Class B Noteholders."
The Notes will be issued in minimum
denominations of $50,000 and integral
multiples of $1,000 in excess thereof.
Persons acquiring beneficial ownership
interests in the Notes will hold their
interests in the Notes through DTC in the
United States or Cedel Bank, societe anonyme
("Cedel") or the Euroclear System
("Euroclear") in Europe. See "Description of
the Notes -Book-Entry Registration."
The Trust will issue the Notes pursuant to an
Indenture, dated as of December 1, 1997, and
a First Terms Supplement, dated as of
December 1, 1997, authorizing the Notes (as
amended and supplemented from time to time,
the "Terms Supplement" and, together with the
Indenture, as amended and supplemented from
time to time, the "Indenture") between the
Trust and the Indenture Trustee.
The Certificates.................. The Trust will issue $1,000 aggregate
principal amount of Crestar Student Loan
Trust 1997-1 Asset Backed Certificates (the
"Certificates") in a transaction exempt from
the registration requirements of the
Securities Act. The Certificates are not
being offered hereby. The rights of
Certificateholders in the assets of the Trust
to receive payments will be fully
subordinated to the rights of the
Noteholders. See "Formation of the Trust."
Transferor ....................... Crestar Bank, a Virginia banking corporation
(the "Transferor"), will contribute the
Financed Student Loans to the Trust pursuant
to the Transfer and Servicing Agreement (as
amended and supplemented from time to time,
the "Transfer and Servicing Agreement") among
the Trust, the Transferor and the Eligible
Lender Trustee.
-5-
<PAGE>
Master Servicer and Servicers..... The Transferor will act as Master Servicer
with respect to the Financed Student Loans
(in such capacity, the "Master Servicer").
The Financed Student Loans will be serviced
by Pennsylvania Higher Education Assistance
Agency, an agency of the Commonwealth of
Pennsylvania ("PHEAA"), or such other parties
as may be approved by the Master Servicer.
The Transferor, PHEAA, and each other party
who may, from time to time, be servicing the
Financed Student Loans are referred to herein
as a "Servicer" and collectively as the
"Servicers."
Eligible Lender Trustee .......... Star Bank, National Association, a national
banking association, will act as eligible
lender trustee under the Trust Agreement and
holder of legal title to the Financed Student
Loans on behalf of the Trust (the "Eligible
Lender Trustee"). See "Formation of the Trust
-- Eligible Lender Trustee."
Indenture Trustee ................ Bankers Trust Company, a New York banking
corporation (the "Indenture Trustee"), will
act as trustee under the Indenture.
Administrator .................... Crestar Bank will act as Administrator on
behalf of the Trust pursuant to an
Administration Agreement (as amended and
supplemented from time to time, the
"Administration Agreement"), among the
Administrator, the Eligible Lender Trustee
and the Indenture Trustee.
Distribution Dates ............... Interest on the Class A Notes will be payable
monthly on the 25th day of each month, or if
any such day is not a Business Day in New
York, the next succeeding Business Day in New
York, commencing January 26, 1998 (each, a
"Distribution Date"). Principal of the Class
A Notes will be payable monthly on each
Distribution Date, commencing February 25,
1998. Interest on and principal of the Class
B Notes will be payable quarterly on the
Distribution Date in each January, April,
July and October, commencing April 27, 1998
(each, a "Quarterly Distribution Date").
See "Description of the Transfer and
Servicing Agreements -- Distributions."
Record Date ...................... Payments in respect of the Notes will be
payable to holders of record of the Notes
("Noteholders") as of the second Business Day
in New York preceding the related
Distribution Date (each a "Record Date").
Collection Period................. "Collection Period" means, initially, the
period beginning __________, __, 1997 and
ending on December 31, 1997, and thereafter,
the Collection Period means the calendar
month immediately following the end of the
previous Collection Period.
-6-
<PAGE>
Interest ......................... Each Class of Notes will bear interest during
each period (an "Interest Payment Period")
beginning on the most recent Distribution
Date for such Class of Notes (or the Closing
Date with respect to the initial Interest
Payment Period) through and including the day
preceding the following Distribution Date for
such Class of Notes at the rates per annum
for such Class (the "Class Interest Rate")
described below. Interest on the Notes will
be calculated on the basis of the actual
number of days elapsed in each Interest
Period divided by 360. Within each Interest
Payment Period, each Class of Notes will bear
interest during each period commencing on a
Rate Adjustment Date for such Class (or the
Closing Date with respect to the initial
Interest Period) and ending on and including
the day before the next Rate Adjustment Date
for such Class (an "Interest Period"), at a
Class Interest Rate determined as follows (a
"Formula Interest Rate"), unless the Net Loan
Rate for such Interest Period (which shall
not apply to the initial Interest Period) is
a lower interest rate:
(i) In the case of the Class A-1 Notes and
the Class A-2 Notes, the Formula Interest
Rate for each Interest Period after the
initial Interest Period will be One-Month
LIBOR as of the Rate Determination Date for
such Interest Period plus the applicable
Margin for each such Class, but in no event
greater than 18% per annum. For the initial
Interest Period (commencing on the Closing
Date), the interest rate for the Class A-1
Notes will be ___% per annum and for the
Class A-2 Notes will be ___% per annum.
"One-Month LIBOR" for any Interest Period
will be determined as described under
"Description of the Notes -- Determination of
LIBOR." The "Margin" will be ____% for the
Class A-1 Notes and ____% for the Class A-2
Notes. The "Rate Adjustment Date" for the
Class A Notes (which, except for the initial
Interest Period, also will be the first day
of an Interest Period for the Class A Notes)
will be the Distribution Date occurring in
each month.
(ii) In the case of the Class B Notes, the
Formula Interest Rate for each Interest
Period after the initial Interest Period will
be OneMonth LIBOR as of the Rate
Determination Date for such Interest Period
plus the applicable Margin for such Class,
but in no event greater than 18% per annum.
For the initial Interest Period (commencing
on the Closing Date), the interest rate for
the Class B Notes will be ___% per annum.
"One-Month LIBOR" for any Interest Period
will be determined as described under
"Description of the Notes -- Determination of
LIBOR." The "Margin" will be ____% for the
Class B Notes. The "Rate Adjustment Date" for
the Class B Notes (which, except for the
initial Interest Period, also will be the
first day of an Interest Period for the Class
B Notes) will be (A) the Distribution Date in
each month while any Class A Notes are
outstanding, and (B) thereafter, the 25th day
of each month, except that the Rate
Adjustment Date occurring in January, April,
July or October will be the Distribution
Dates occurring in such months.
See "Description of the Notes -- The Notes --
Distributions of Interest."
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<PAGE>
Notwithstanding the foregoing, with respect
to each Class of Notes, if the Formula
Interest Rate with respect to such Class for
any Interest Period is greater than the Net
Loan Rate (as defined in "-- Net Loan Rate"
below) determined on the Rate Determination
Date for such Interest Period, then the Class
Interest Rate for such Interest Period will
be the Net Loan Rate; provided, however, that
no such determination of the Net Loan Rate
will be required to be made on a Rate
Determination Date unless the excess of
OneMonth LIBOR over the 91-day T-Bill Rate is
greater than 100 basis points as of the
preceding Rate Determination Date. See
"Description of the Notes -- The Notes --
Distributions of Interest."
If the Class Interest Rate for any Class of
Notes for any Interest Payment Period or
portion thereof is based on the Net Loan
Rate, the excess of (a) the amount of
interest such Class of Notes would have
accrued in respect of the related Interest
Payment Period had interest been calculated
based on the applicable Formula Interest
Rate, over (b) the amount of interest such
Class of Notes actually accrued in respect of
such Interest Payment Period based on the Net
Loan Rate (such excess, together with the
unpaid portion of any such excess from prior
Interest Payment Periods and interest accrued
thereon calculated based on the Formula
Interest Rate applicable to such Class of
Notes is referred to as the "Noteholders'
Interest Carryover") will be paid on the
dates and in the priority set forth herein
under "-- Assets of the Trust -Collection
Account; Note Distribution Account;
Certificate Distribution Account; and Expense
Account." Any amount of Noteholders' Interest
Carryover with respect to a Class of Notes
remaining after the earlier of the
Distribution Date on which the outstanding
principal amount of such Class of Notes has
been reduced to zero and the distribution of
all Available Funds on the Final Maturity
Date of such Class of Notes, will never
become due and payable and will be discharged
as to the applicable Class of Notes on such
date. The ratings of the Notes do not address
the likelihood of the payment of the amount
of any Noteholders' Interest Carryover. Any
reference herein or in the Indenture or the
Transfer and Servicing Agreement to
"principal" or "interest" does not include
within the meaning of such words Noteholders'
Interest Carryover or any interest accrued
thereon.
-8-
<PAGE>
Net Loan Rate .................... For any Interest Period, the "Net Loan Rate"
will be the rate of interest per
annum (rounded to the next highest .01%)
equal to (i) the weighted average Effective
Interest Rate of the Financed Student Loans
as of the last day of the Collection Period
immediately preceding the commencement of
such Interest Period, less (ii) the Program
Operating Expense Percentage (or less 0.73%
per annum during the period from the Closing
Date through March 31, 1998).
The "Effective Interest Rate" means, with
respect to any Financed Student Loan, the
interest rate per annum borne by such
Financed Student Loan after giving effect to
all applicable interest subsidy payments,
Special Allowance Payments, rebate fees on
Consolidation Loans and reductions pursuant
to borrower incentives. For this purpose, the
Special Allowance Payment rate shall be
computed based upon the average of the bond
equivalent rates of 91-day United States
Treasury Bills auctioned during that portion
of the then current calendar quarter which
ends on the date as of which the Effective
Interest Rate is determined.
The "Program Operating Expense Percentage" is
the fraction (expressed as a percentage and
calculated as of the end of each calendar
quarter by the Administrator) the numerator
of which is the annualized operating expenses
of the Trust for the calendar month then
ended, including, without limitation, the
Transaction Fees, and the denominator of
which is the Pool Balance as of the last day
of such calendar quarter.
-9-
<PAGE>
Principal ........................ Principal of the Class A Notes will be
payable monthly on each Distribution Date
commencing February 25, 1998, first to the
Class A-1 Notes until paid in full and then
to the Class A-2 Notes until paid in full.
After all Class A Notes are paid in full,
principal of the Class B Notes will be paid
quarterly on each Quarterly Distribution
Date. Consequently, no principal will be paid
on the Class B Notes until the Class A Notes
have been paid in full, and no principal will
be paid on the Class A-2 Notes until the
Class A-1 Notes have been paid in full.
Notwithstanding the foregoing, upon the
occurrence of an Event of Default with
respect to payment of the Notes, principal
will be paid to each Class of Class A Notes
pro rata, based upon the outstanding
principal amount of each such Class of Class
A Notes. See "Description of the Transfer and
Servicing Agreements -- Distributions."
The amount of principal available to be paid
on a Distribution Date will be equal to the
Noteholders' Principal Distribution Amount
for such Distribution Date, less any portion
thereof being used to pay Transaction Fees,
overdue Transaction Fees, Consolidation Loan
Fees, overdue Consolidation Loan Fees and
interest on the Notes on such Distribution
Date. See "Description of the Transfer and
Servicing Agreements -Distributions." The
Noteholders' Principal Distribution Amount
generally will be equal to the amount , if
any, by which the Pool Balance as of the last
day of the Collection Period immediately
preceding a Distribution Date is exceeded by
the Pool Balance as of the last day of the
second preceding Collection Period (or in the
case of the initial Collection Period, the
Cut-Off Date). In addition, until the Parity
Percentage equals 101.50%, accelerated
principal payments will be made in respect of
the Notes from amounts remaining in the
Collection Account as of the end of the
preceding Collection Period and certain
amounts available therefor in the Reserve
Account.
As of any date of determination, the "Parity
Percentage" will be the fraction expressed as
a percentage, the numerator of which is the
sum of (i) the then Pool Balance, plus
accrued interest thereon due from borrowers,
and accrued Interest Subsidy Payments and
Special Allowance Payments, if any, as of the
end of the preceding Collection Period, and
(ii) all amounts on deposit (including any
accrued interest thereon) in the Collection
Account and the Reserve Account and the
denominator of which is the sum of the
aggregate outstanding principal balance of
the Notes, accrued and unpaid interest
thereon plus accrued and unpaid Transaction
Fees and Consolidation Loan Fees.
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Final Maturity Dates.............. The Final Maturity Dates with respect to each
Class of Notes are as follows:
Class of Notes Final Maturity Date
Class A-1 Notes January 25, 2007
Class A-2 Notes January 25, 2017
Class B Notes January 25, 2027
The actual maturity of one or more Classes of
Notes could occur sooner than such dates as a
result of a variety of factors, including (i)
as a result of payments on the Financed
Student Loans; (ii) the exercise by the
Transferor of its option to repurchase the
Financed Student Loans when the aggregate
principal balance is reduced to 10% or less
of the Initial Pool Balance; (iii) if the
Indenture Trustee is successful in offering
any Financed Student Loans remaining in the
Trust for sale on or after April 2007 if the
aggregate principal balance is reduced to 10%
or less of the Initial Pool Balance, as
described under "Description of the Transfer
and Servicing Agreements -Termination"; or
(iv) under certain circumstances upon the
insolvency of the Transferor and subsequent
termination of the Trust pursuant to the
Trust Agreement as described under
"Description of the Transfer and Servicing
Agreements -- Insolvency Event." See
"Maturity and Prepayment Considerations."
Servicing Fee..................... The Master Servicer will receive a quarterly
fee (the "Servicing Fee") with respect to
each calendar quarter in an amount equal to
(i) 0.70% per annum of the average of the
Pool Balance as of the last day of the
calendar quarter and the last day of the
immediately preceding calendar quarter (or
the Cut-off Date with respect to the calendar
quarter ending March 31, 1998), or (ii) such
greater amount acceptable to the Rating
Agencies, prior written confirmation of which
shall be provided to the Indenture Trustee.
The Servicing Fee will be payable quarterly
in advance, out of Available Funds and
amounts on deposit in the Reserve Account, on
each Quarterly Distribution Date (or in the
case of the initial Servicing Fee, on the
Closing Date) based on the Administrator's
good faith estimate of the Servicing Fee that
will accrue during the calendar quarter in
which such Quarterly Distribution Date occurs
(or in the case of the initial Servicing Fee,
the period through March 31, 1998) plus (or
minus) the difference (or excess) of the
actual Servicing Fee accrued for the calendar
quarter immediately preceding such Quarterly
Distribution Date (or in the case of the
initial Servicing Fee, the period through
March 31, 1998) and the amount paid as an
estimated Servicing Fee for such calendar
quarter or initial period on the immediately
preceding Quarterly Distribution Date (or the
Closing Date with respect to the first
Quarterly Distribution Date).
Administration Fee ............... The Administrator will receive a fee (the
"Administration Fee"), payable
quarterly in advance on each Quarterly
Distribution Date, in an amount equal to
0.02% per annum of the principal amount of
the Notes outstanding on such Quarterly
Distribution Date (following any principal
reductions of the Notes on such Distribution
Date).
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<PAGE>
The Trust ........................ The Trust is a Delaware statutory business
trust established by a Trust
Agreement dated as of December 1, 1997 (as
amended and supplemented from time to time,
the "Trust Agreement"), between the
Transferor, as depositor, the Eligible Lender
Trustee and Delaware Trust Capital
Management, Inc., as Delaware trustee (the
"Delaware Trustee"). The activities of the
Trust and the Eligible Lender Trustee are
limited by the terms of the Trust Agreement
to issuing one or more classes of its
certificates and notes, acquiring, owning,
selling and managing the Financed Student
Loans and the other assets of the Trust as
described herein, collecting and making
payments thereon and other activities related
thereto.
Assets of the Trust .............. The assets of the Trust will include the
following:
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<PAGE>
A. Financed Student Loans ...... The Financed Student Loans will consist of
certain education loans to
students and parents of students ("Student
Loans") enrolled in accredited institutions
of higher education and will include rights
to receive payments made with respect to such
Financed Student Loans and the proceeds
thereof. On December __, 1997 (the "Closing
Date"), the Transferor will transfer and
contribute Student Loans (the "Initial
Financed Student Loans") having an aggregate
principal balance of $211,956,796 (the
"Initial Pool Balance") as of November 25,
1997 (the "Cut-off Date"), to the Eligible
Lender Trustee on behalf of the Trust,
pursuant to the Transfer and Servicing
Agreement. Following the Closing Date and
during the Subsequent Finance Period
(described below), it is anticipated that,
subject to certain conditions described
herein, the Transferor may transfer to the
Eligible Lender Trustee on behalf of the
Trust, certain Serial Loans, Consolidation
Loans and HEAL Consolidation Loans owned by
the Transferor (the "Subsequent Financed
Student Loans", which term also includes
Student Loans deposited by the Transferor in
exchange for certain Financed Student Loans
owned by the Trust which have become
ineligible for and lost interest payments or
Special Allowance Payments). See "Description
of the Transfer and Servicing Agreements --
Subsequent Finance Period and Subsequent
Financed Student Loans."
Certain of the Financed Student Loans have
been or will be originated by the Transferor
and the remainder of the Financed Student
Loans have been or will be originated by
independent third parties and subsequently
sold to the Transferor. The Financed Student
Loans constituting the assets of the Trust
include some or all of the following types of
Student Loans: (1) loans made under the
federal government's Federal Family Education
Loan Program (the "FFEL Program"), including
(i) Parental Loans for Undergraduate Students
("PLUS Loans"), (ii) Stafford Loans, (iii)
Unsubsidized Stafford Loans, (iv)
Supplemental Loans for Students ("SLS
Loans"), and (v) Consolidation Loans
(collectively, the "FFELP Loans"), and (2)
loans (the "HEAL Loans") made under the
federal government's Health Education
Assistance Loan Program (the "HEAL Program").
FFELP Loans and HEAL Loans included in the
Financed Student Loans are sometimes referred
to herein as "Financed FFELP Loans" and
"Financed HEAL Loans," respectively.
Of the Financed Student Loans included in the
Initial Pool Balance, approximately 91% are
FFELP Loans. The Financed FFELP Loans are
guaranteed to the extent described herein as
to the payment of principal and interest by
various guarantee agencies under the FFEL
Program (each such entity, a "Guarantor" or
"Guarantee Agency," and collectively, the
"Guarantors" or the "Guarantee Agencies"),
which are in each case reinsured to the
extent described herein by the Secretary of
the United States Department of Education
(the "Secretary of Education" or the
"Department of Education"). Payment of
principal and interest with respect to the
Financed FFELP Loans is guaranteed against
default, death, bankruptcy, disability,
school closure or false certification by the
school with respect to the applicable
borrower by a Guarantor pursuant to a
guarantee agreement between the applicable
Guarantor and the Eligible Lender Trustee
(such agreements, each as amended or
supplemented from time to time, the
"Guarantee Agreements"). Of the Financed
Student Loans included in the Initial Pool
Balance, approximately 72.8% are guaranteed
by Educational Credit Management Corporation,
a Minnesota non-profit corporation
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<PAGE>
("ECMC", formerly known as Transitional
Guaranty Agency, Inc.), approximately 15.9%
are guaranteed by Pennsylvania Higher
Education Assistance Agency, an agency of the
Commonwealth of Pennsylvania ("PHEAA"),
approximately 9.0% are HEAL Loans, and the
remaining 2.3% are guaranteed by one of the
following Guarantee Agencies: United Student
Aid Funds, Inc., a Delaware non-profit
corporation ("USAF"), the Florida Department
of Education, an agency of the State of
Florida, New York Higher Education Services
Corporation, an agency of the State of New
York, and Texas Guaranteed Student Loan
Program, a Texas nonprofit corporation.
See "Description of the Guarantee Agencies."
Of the Financed FFELP Loans included in the
Initial Pool Balance, approximately 40.7% are
guaranteed as to the payment of 100% of
principal and interest by a Guarantee Agency
and approximately 59.3% are guaranteed as to
the payment of 98% of principal and interest
by a Guarantee Agency. Pursuant to the FFEL
Program, the Guarantee Agencies each have
reinsurance contracts with the Department of
Education, pursuant to which the Department
of Education reimburses the Guarantee
Agencies for such portions of guarantee
claims paid by the Guarantee Agencies as is
provided in the Higher Education Act of 1965,
as amended (such Act, together with all rules
and regulations promulgated thereunder by the
Department of Education and/or the
Guarantors, the "Higher Education Act"). In
addition, the Department of Education is
obligated to make certain interest and other
subsidy payments to the holders of such
Financed FFELP Loans. See "Description of the
FFEL Program" for a more complete description
of the provisions of the Higher Education Act
that provide for such programs. The
obligations of the Guarantee Agencies to the
holders of loans, such as the Eligible Lender
Trustee, are payable from the general funds
available to each such Guarantee Agency,
including reserve funds maintained by the
Guarantee Agencies as required by the Higher
Education Act. Certain delays in receiving
reimbursement could occur if a Guarantee
Agency fails to meet its obligations. In
addition, failure to properly originate or
service a FFELP Loan can cause a FFELP Loan
to lose its guarantee and/or its eligibility
for federal interest payments and subsidies.
See "Risk Factors -Risk That Failure to
Comply with Student Loan Origination and
Servicing Procedures for Financed Student
Loans May Result in the Department of
Education's Refusal to Make Certain Payments
to Guarantors and the Eligible Lender
Trustee, the Guarantors' Refusal to Make
Guarantee Payments to the Eligible Lender
Trustee and the Department of HHS's Refusal
to Make Insurance Payments to the Eligible
Lender Trustee" and " -Risk That Financial
Status of Guarantors Will Affect Their
Ability to Make Guarantee Payments".
Of the Financed Student Loans included in the
Initial Pool Balance, approximately 9.0% are
HEAL Loans insured as to payment of 100% of
principal and interest by the Secretary of
the United States Department of Health and
Human Services (the "Secretary of HHS" or the
"Department of HHS") to the extent described
herein. The Department of HHS insures such
payment against default, death, bankruptcy or
disability with respect to the applicable
borrower pursuant to a HEAL Insurance
Contract between the Department of HHS and
the Eligible Lender Trustee (such HEAL
Insurance Contract, as amended or
supplemented from time to time, the "HEAL
Insurance Contract"). See "Description of the
HEAL Program."
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<PAGE>
Certain incentive programs currently or
hereafter made available by the Transferor to
borrowers may also be made available by the
Master Servicer to borrowers with Financed
FFELP Loans. Of the Financed Student Loans
included in the Initial Pool Balance, less
than 1.00% are currently eligible for an
incentive program. Other than with respect to
Subsequent Financed Student Loans, no other
Financed Student Loans will be eligible for
such incentive programs. See "Risk
Factors-Risk Resulting From Changes in
Repayment Terms of Financed Student Loans
Pursuant to Incentive Programs" and "The
Financed Student Loan Pool -- Incentive
Programs."
Any consolidation loan under the HEAL Program
(a "HEAL Consolidation Loan") or
Consolidation Loan made with respect to a
Financed Student Loan after the Closing Date,
whether made by the Transferor or another
lender, will result in a prepayment to the
Trust of such Financed Student Loan. During
the period (the "Subsequent Finance Period")
from the Closing Date until December 31,
2002, the Eligible Lender Trustee, at the
option of the Transferor and subject to
certain conditions, will be obligated to
apply prepayments of Financed Student Loans
which have been consolidated to purchase from
the Transferor Financed Student Loans owned
by the Transferor that are Consolidation
Loans, HEAL Consolidation Loans or serial to
existing Financed Student Loans owned by the
Trust . In addition, at the option of the
Transferor and subject to certain conditions,
the Eligible Lender Trustee will be obligated
to accept Student Loans deposited by the
Transferor in exchange for certain Financed
Student Loans owned by the Trust which have
become ineligible for and lost interest
payments or Special Allowance Payments. Each
such transfer of a Subsequent Financed
Student Loan will be made pursuant to a
transfer agreement (each a "Transfer
Agreement") among the Transferor, the Trust
and the Eligible Lender Trustee. See
"Description of the Transfer and Servicing
Agreements -Subsequent Finance Period and
Subsequent Financed Student Loans."
With respect to certain of the Financed
Student Loans, during the period (the
"Deferral Phase") in which the related
borrower is in school and for certain
authorized periods under the FFEL Program or
the HEAL Program, as the case may be, the
borrower is not required to make payments on
his or her Financed Student Loan. With
respect to such Financed FFELP Loans
constituting Stafford Loans and certain
Consolidation Loans, the Department will make
all interest payments during the related
Deferral Phase. For all other Financed
Student Loans (other than certain PLUS
Loans), interest will not be paid during the
related Deferral Phase but, instead, will
accrue and be capitalized and added to the
principal balance of such Financed Student
Loan. The Trust will consist of Financed
Student Loans that are in the Deferral Phase
as well as Financed Student Loans for which
the related borrower is currently required to
make payments of principal and interest (the
"Repayment Phase"). See "The Financed Student
Loan Pool -Distribution of the Initial
Financed Student Loans by Borrower Payment
Status as of the Cut-off Date."
The "Pool Balance" at any time represents the
aggregate principal balance of the Financed
Student Loans at the end of the preceding
Collection Period (including accrued interest
thereon to the extent such interest will be
capitalized as of the end of the Collection
Period), after giving effect to the
following, without duplication: (i) all
payments in respect of principal
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<PAGE>
received by the Trust during such Collection
Period from or on behalf of borrowers and
Guarantors and, with respect to certain
payments on the Financed Student Loans, the
Department of Education and the Department of
HHS (collectively, "Obligor"), (ii) the
principal portion of all Purchase Amounts
received by the Trust for such Collection
Period from the Transferor or the Master
Servicer and (iii) any Subsequent Financed
Student Loans conveyed to the Trust and any
Financed Student Loans conveyed by the Trust
in exchange for such Subsequent Financed
Student Loan, during such Collection Period,
as described above.
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<PAGE>
B. Collection Account; Note
Distribution Account;
Certificate Distribution
Account; and Expense
Account ..................... Each Servicer will be required to remit all
collections received with respect
to the Financed Student Loans for which it is
acting as primary servicer (other than
Financed Student Loans that have been
repurchased by the Transferor or purchased by
the Master Servicer pursuant to the Transfer
and Servicing Agreement) to an account in the
name of the Indenture Trustee (the
"Collection Account"). The Eligible Lender
Trustee will be required to remit Interest
Subsidy Payments and Special Allowance
Payments it receives to the Collection
Account. See "Description of the Transfer and
Servicing Agreements -- Payments on Financed
Student Loans."
On each "Distribution Determination Date"
(which is the third Business Day immediately
preceding a Distribution Date), the
Administrator will advise the Indenture
Trustee in writing of the applicable
Noteholders' Interest Distribution Amount,
the Noteholders' Principal Distribution
Amount and all amounts payable to the holders
of the Certificates (the
"Certificateholders") on the related
Distribution Date. Further, on each
Distribution Determination Date relating to a
Quarterly Distribution Date, the
Administrator will advise the Indenture
Trustee in writing of the estimated fees
payable to the Master Servicer, the
Administrator, the Indenture Trustee, the
Delaware Trustee and the Eligible Lender
Trustee (the "Servicing Fee," the
"Administration Fee," the "Indenture Trustee
Fee," the "Delaware Trustee Fee" and the
"Eligible Lender Trustee Fee," respectively,
and, collectively, the "Transaction Fees")
for the calendar quarter in which such
Quarterly Distribution Date occurs.
On each Distribution Date, the Indenture
Trustee will transfer from the Collection
Account, in the following priority and from
the Available Funds for each Collection
Period from and including the Collection
Period during which the preceding Quarterly
Distribution Date occurred through the
Collection Period immediately preceding the
month of such Distribution Date (or with
respect to each Distribution Date through and
including the first Quarterly Distribution
Date, from the Closing Date through and
including the Collection Period immediately
preceding such Distribution Date), the
required amounts from the Available Funds for
such Collection Periods:
(i) to a separate account held with
and in the name of the Indenture
Trustee (the "Expense Account"), (A)
an amount equal to the Consolidation
Loan Fees with respect to the
calendar month most recently ended
and any overdue Consolidation Loan
Fees from prior months, and (B) if
such Distribution Date is a Quarterly
Distribution Date, an amount up to
the estimated Transaction Fees for
the calendar quarter commencing in
the month of such Quarterly
Distribution Date and all overdue
Transaction Fees from prior calendar
quarters (plus (or minus) the
difference (or excess) of the actual
Transaction Fees for the immediately
preceding calendar quarter and the
Transaction Fees deposited into the
Expense Account on the preceding
Quarterly Distribution Date),
(ii) to a separate account held with
and in the name of the Indenture
Trustee for the benefit of the
Noteholders (the "Note Distribution
Account"), an amount up to the
Noteholders' Interest Distribution
Amount,
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<PAGE>
(iii) to the Note Distribution
Account, an amount up to the
Noteholders' Principal Distribution
Amount,
(iv) to a supplemental account held
with and in the name of the Eligible
Lender Trustee for the benefit of the
Certificateholders (the "Certificate
Distribution Account"), an amount up
to the Certificateholders' Interest
Distribution Amount, and
(v) after the Notes have been paid in
full, to the Certificateholders'
Distribution Account, an amount up to
the Certificateholders' Principal
Distribution Amount.
On each Quarterly Distribution Date (and with
respect to clause (i) below, on the 25th day
of each month or if such day is not a
Business Day, the next succeeding Business
Day), following the transfer to the Expense
Account described in the preceding paragraph,
the Indenture Trustee will distribute from
the Expense Account (in addition to any
amounts transferred from the Reserve Account
as described herein) the following amounts in
the following order of priority:
(i) to the Department of Education,
the Consolidation Loan Fees for the
immediately preceding calendar month,
together with any overdue
Consolidation Loan Fees for any prior
months,
(ii) to the Master Servicer, the
estimated Servicing Fee for the
calendar quarter commencing in the
month of such Quarterly Distribution
Date and all overdue Servicing Fees,
(iii) to the Administrator, the
estimated Administration Fee for the
calendar quarter commencing in the
month of such Quarterly Distribution
Date and all overdue Administration
Fees,
(iv) to the Indenture Trustee, the
estimated Indenture Trustee Fee for
the calendar quarter commencing in
the month of such Quarterly
Distribution Date and all overdue
Indenture Trustee Fees, and
(v) to the Eligible Lender Trustee
and the Delaware Trustee, the
estimated Eligible Lender Trustee Fee
and Delaware Trustee Fee,
respectively, for the calendar
quarter commencing in the month of
such Quarterly Distribution Date and
all overdue Eligible Lender Trustee
Fees and Delaware Trustee Fees.
On each Distribution Date, following the
transfer to the Note Distribution Account,
the Indenture Trustee will distribute to the
Noteholders as of the related Record Date the
amounts transferred to the Note Distribution
Account as set forth above (in addition to
any amounts transferred from the Reserve
Account and the Monthly Advance Account and
any Parity Percentage Payments transferred
from the Collection Account, each as
described below) in the following order of
priority:
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<PAGE>
(i) first, to each Class of Class A
Noteholders, the Class A Noteholders'
Interest Distribution Amount (pro
rata based upon the portion thereof
allocable to each such Class);
(ii) second, if such Distribution
Date is a Quarterly Distribution
Date, to the Class B Noteholders, the
Class B Noteholders' Interest
Distribution Amount:
(iii) third, to the Class A-1
Noteholders, the Noteholders'
Principal Distribution Amount until
the principal balance of the Class
A-1 Notes has been reduced to zero;
(iv) fourth, after the principal
balance of the Class A-1 Notes has
been reduced to zero, to the Class
A-2 Noteholders, the Noteholders'
Principal Distribution Amount until
the principal balance of the Class
A-2 Notes has been reduced to zero;
and
(v) fifth, after the principal
balance of each Class of Class A
Notes has been reduced to zero, if
such Distribution Date is a Quarterly
Distribution Date, to the Class B
Noteholders, the Noteholders'
Principal Distribution Amount until
the principal balance of the Class B
Notes has been reduced to zero.
On each Quarterly Distribution Date, after
making all required transfers to the Expense
Account and the Note Distribution Account,
and, if applicable, the Certificate
Distribution Account, the Indenture Trustee
will transfer any amounts remaining in the
Collection Account (other than amounts
representing payments received during such
month) in the following order of priority:
(i) to the Reserve Account, the
amount, if any, necessary to increase
the balance thereof to the Specified
Reserve Account Balance,
(ii) to the Note Distribution
Account, the amount, if any, which
when applied as a payment of
principal on such Quarterly
Distribution Date to the Class of
Notes then receiving payments of
principal is necessary for the Parity
Percentage to equal 101.50% on such
Quarterly Distribution Date (the
amount so transferred to the Note
Distribution Account is the "Parity
Percentage Payment"),
(iii) to the Note Distribution
Account, the amount of any
outstanding Noteholders' Interest
Carryover, and
(iv) to the Transferor, any amounts
remaining in the Collection Account
after such transfers (other than
amounts representing payments
received during such current month).
Notwithstanding the foregoing, if (x) on any
Distribution Date following all distributions
to be made on such Distribution Date, the
principal amount of the Class A Notes would
exceed the sum of the Pool Balance at the end
of the immediately preceding Collection
Period plus the aggregate balance on
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<PAGE>
deposit in the Trust Accounts on such
Distribution Date following such
distributions, or (y) an Event of Default has
occurred with respect to payment of the
Notes, after paying Transaction Fees, overdue
Transaction Fees, Consolidation Loan Fees and
overdue Consolidation Loan Fees,
distributions will be made in the following
priority:
(i) first, to each Class of Class A
Noteholders, the Noteholders' Interest
Distribution Amount applicable to each
such Class, pro rata based upon the
portion thereof allocable to each such
Class;
(ii) second, in the case of clause (x)
above, to the Class A-1 Noteholders,
the Noteholders' Principal Distribution
Amount, until the principal balance of
the Class A-1 Notes has been reduced to
zero, and then to the Class A-2
Noteholders, the Noteholders' Principal
Distribution Amount until the principal
balance of the Class A-2 Notes has been
reduced to zero, or in the case of
clause (y) above, to each Class of
Class A Noteholders, the Noteholders'
Principal Distribution Amount
applicable to such Distribution Date,
pro rata based upon the principal
balance of each Class of Class A Notes
until the principal balance of each
Class of Class A Notes has been paid in
full;
(iii) third, if such Distribution Date
is a Quarterly Distribution Date, to
the Class B Noteholders, the
Noteholders' Interest Distribution
Amount applicable to the Class B Notes;
(iv) fourth, after the principal
balance of each of the Class A Notes
has been paid in full, if such
Distribution Date is a Quarterly
Distribution Date, to the Class B
Noteholders, the Noteholders' Principal
Distribution Amount until the principal
balance of the Class B Notes has been
paid in full;
(v) fifth, if such Distribution Date is
a Quarterly Distribution Date, to the
Class A-1 Noteholders and the Class A-2
Noteholders, the Noteholders' Interest
Carryover applicable to the respective
Class of Class A Notes, pro rata based
upon the portion thereof allocable to
each such Class;
(vi) sixth, if such Distribution Date
is a Quarterly Distribution Date, to
the Class B Noteholders, the
Noteholders' Interest Carryover
applicable to the Class B Notes; and
(vii) seventh, if such Distribution
Date is a Quarterly Distribution Date,
to the Certificateholders, the
Certificateholders' Interest
Distribution Amount and then the
Certificateholders' Principal
Distribution Amount.
All principal payments of Notes of any Class
shall be made pro rata within that Class. In
connection with each principal payment of
Notes of any Class, the Indenture Trustee
shall compute the Principal Factor for that
Class. The "Principal Factor" shall be a
seven-digit decimal indicating the principal
balance of each Note of a Class as of a
Distribution Date (after giving effect to any
payments made on that date) as a fraction of
the original principal
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<PAGE>
amount of such Note. The principal balance of
any Note can be determined by multiplying the
original principal amount of such Note by the
Principal Factor applicable to that Class of
Notes.
C. Reserve Account............. Pursuant to the Transfer and Servicing
Agreement, an account in the name
of the Indenture Trustee (the "Reserve
Account") will be established with and
maintained by the Indenture Trustee and will
be an asset of the Trust. On the Closing
Date, the Transferor will make an initial
deposit into the Reserve Account of cash or
Eligible Investments (as defined in
"Description of the Transfer and Servicing
Agreements -- Accounts") equal to $2,190,464
(the "Reserve Account Deposit"). The Reserve
Account Deposit will be augmented on each
Quarterly Distribution Date by the deposit
into the Reserve Account of any Available
Funds remaining after making all prior
distributions on such date. See "Description
of the Transfer and Servicing Agreements --
Distributions."
Amounts, if any, on deposit in the Reserve
Account will be available on each
Distribution Date to cover any shortfalls in
payments of the Transaction Fees, the
Consolidation Loan Fees and the Noteholders'
Interest Distribution Amount for such
applicable Distribution Date for which
Available Funds are insufficient to make such
payments and distributions. Additionally, on
the Final Maturity Date for a Class of Notes,
amounts in the Reserve Account will be
available to reduce the principal balance of
such Class of Notes to zero to the extent
that Available Funds are insufficient to make
such payment.
Amounts, if any, in the Reserve Account on
any Quarterly Distribution Date (after giving
effect to all distributions to be made or
allocated on such Distribution Date) in
excess of the then applicable Specified
Reserve Account Balance generally will be
distributed to the Transferor. The "Specified
Reserve Account Balance" with respect to any
Distribution Date will equal the greater of
(i) 1.00% of the sum of the outstanding
principal balance of the Notes on such
Distribution Date, after giving effect to all
payments to be made on such date, or (ii)
$500,000; provided, however, that such
balance shall not exceed the sum of the
aggregate outstanding principal amount of the
Notes. See "Description of the Transfer and
Servicing Agreements -- Credit Enhancement --
Reserve Account."
The funding and maintenance of the Reserve
Account is intended to enhance the likelihood
of timely payment to the Noteholders of the
Noteholders' Distribution Amount. In certain
circumstances, however, the Reserve Account
could be depleted and shortfalls in
distributions to the Noteholders could
result.
D. Eligible Investments........... Pursuant to the Transfer and Servicing
Agreement, funds on deposit in the Trust
Accounts will be invested in "Eligible
Investments." See "Description of the
Transfer and Servicing Agreements --
Accounts."
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E. Transfer and Servicing
Agreement ................. Under the Transfer and Servicing Agreement,
the Transferor will contribute the Initial
Financed Student Loans to the Trust on the
Closing Date, and may contribute the
Subsequent Financed Student Loans to the
Trust during the Subsequent Finance Period.
The Eligible Lender Trustee will hold legal
title to all Financed Student Loans
contributed to the Trust. In addition, the
Master Servicer will be responsible for
servicing, managing, maintaining custody of
(except for HEAL Loans, which will be held by
a third party custodian) and making
collections on the Financed Student Loans.
The obligations of the Transferor and the
Master Servicer under the Transfer and
Servicing Agreement include the following:
The Transferor will be obligated to
repurchase any Financed Student Loan if the
interests of the Noteholders therein are
materially adversely affected by a breach of
any representation or warranty made by the
Transferor with respect to the Financed
Student Loans and the Master Servicer will be
obligated to purchase any Financed Student
Loan if the interests of the Noteholders
therein are materially adversely affected by
a breach of any servicing obligation of the
Master Servicer with respect to the Financed
Student Loans , if the breach has not been
cured within 120 days following the discovery
by or notice to the Transferor or the Master
Servicer, as the case may be, of the breach
(it being understood that any such breach
that has not resulted in the failure of a
Guarantee Agency to make a Guarantee Payment
or the Department of HHS to make an Insurance
Payment to the Eligible Lender Trustee will
not be considered to have a material adverse
effect for this purpose); provided, however,
that if such breach may be cured by
reinstatement of the Guarantor's obligation
to guarantee payment or the Department of
HHS's obligation to insure payment, such cure
period shall be 360 days unless the amount of
Financed Student Loans in cure status exceed
amounts specified in the Transfer and
Servicing Agreement. In addition, the
Transferor will be obligated to reimburse the
Trust for (i) any accrued interest amounts
not insured by the Department of HHS with
respect to Financed HEAL Loans due to, and
(ii) any accrued interest amounts not
guaranteed by a Guarantor with respect to
Financed FFELP Loans due to, or any lost
Interest Subsidy Payments or Special
Allowance Payments as a result of, a breach
of the Transferor's representations and
warranties; provided, however, that such
reimbursements shall not exceed the amount
that would have been paid if not for such
breach. See "Description of the Transfer and
Servicing Agreements -- Conveyance of Initial
Financed Student Loans; Representations and
Warranties" and "-- Master Servicer
Covenants."
Pursuant to the Transfer and Servicing
Agreement, the Master Servicer will be
responsible for, among other things,
preparing and filing with the Department of
HHS, the Department of Education and the
Guarantors all appropriate claims forms and
other documents and filings on behalf of the
Eligible Lender Trustee to claim (i) the
Insurance Payments from the Department of HHS
in respect of the Financed HEAL Loans
entitled thereto, and (ii) the Interest
Subsidy Payments and Special Allowance
Payments from the Department of Education and
the Guarantee Payments from the Guarantors,
in respect of the Financed FFELP Loans
entitled thereto, and preparing and providing
periodic and annual statements to the
Eligible Lender Trustee and the Indenture
Trustee with respect to distributions to
Noteholders and Certificateholders.
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Monthly Advances ................. If the Master Servicer has applied for an
Insurance Payment from the
Department of HHS, a Guarantee Payment from a
Guarantor or an Interest Subsidy Payment or a
Special Allowance Payment from the
Department, and the Master Servicer has not
received the related payment prior to the end
of the Collection Period immediately
preceding the Distribution Date on which such
amount would be required to be distributed as
a payment of interest, the Master Servicer
may, no later than the Distribution
Determination Date relating to such
Distribution Date, deposit into an account in
the name of the Indenture Trustee (the
"Monthly Advance Account") an amount up to
the amount of such payments applied for but
not received (such deposits by the Master
Servicer are referred to herein as "Monthly
Advances"). Monthly Advances will be
distributed to the Noteholders or
Certificateholders on the upcoming
Distribution Date. Monthly Advances are
recoverable by the Master Servicer (i) first,
from the source for which such Monthly
Advance was made and (ii) second, from
collections received generally on or with
respect to the Financed Student Loans. The
Master Servicer will have no obligation,
legal or otherwise, to make any Monthly
Advance, and the making of or decision to
make a particular Monthly Advance will not
create any obligation on the Master Servicer,
legal or otherwise, to make any future
Monthly Advances.
Auction of Trust Assets .......... Any Financed Student Loans remaining in the
Trust as of February 28, 2007 will be offered
for sale by the Indenture Trustee on or prior
to the April 2007 Distribution Date if the
Pool Balance is equal to 10% or less of the
Initial Pool Balance at the time of such
offer. The Transferor, its affiliates and
unrelated third parties may offer bids to
purchase such Financed Student Loans on or
prior to such Distribution Date. If at least
two bids are received, the Indenture Trustee
will accept the highest bid equal to or in
excess of the greater of (x) the aggregate
Purchase Amounts of such Financed Student
Loans as of the end of the Collection Period
immediately preceding such Distribution Date
or (y) an amount that would be sufficient to
(i) reduce the outstanding principal amount
of the Notes on such Distribution Date to
zero and (ii) pay to Noteholders the
Noteholders' Interest Distribution amount
payable on such Distribution Date (the
"Minimum Purchase Price"). If at least two
bids are not received or the highest bid is
not equal to or in excess of the Minimum
Purchase Price, the Indenture Trustee will
not consummate such sale. The proceeds of any
such sale will be used to redeem any
outstanding Notes on such Distribution Date.
If the sale is not consummated in accordance
with the foregoing, the Indenture Trustee
may, but shall not be under any obligation
to, solicit bids for sale of the Financed
Student Loans on future Distribution Dates
upon terms similar to those described above.
No assurance can be given as to whether the
Indenture Trustee will be successful in
soliciting acceptable bids to purchase the
Financed Student Loans on either the April
2007 Distribution Date or any subsequent
Distribution Date. There will be no
continuing liability on the part of the Trust
or the Noteholders to the purchaser of the
Financed Student Loans in connection with
such auction sale. Such an auction sale of
the Financed Student Loans will result in the
termination of the Trust and prepayment of
all outstanding Notes. See "Description of
the Transfer and Servicing Agreements --
Termination".
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Optional Purchase ................ The Transferor may repurchase all remaining
Financed Student Loans, and
thus effect the early retirement of the Notes
and the Certificates, on any Quarterly
Distribution Date on or after the
Distribution Date on which the Pool Balance
is equal to 10% or less of the Initial Pool
Balance, at a price equal to, for each
Financed Student Loan, the outstanding
principal balance of such Financed Student
Loan as of the end of the preceding
Collection Period, together with all accrued
interest thereon and certain unamortized
premiums, if any. Such an optional purchase
of the
Financed Student Loans will result in the
termination of the Trust and prepayment of
all outstanding Notes. See "Description of
the Transfer and Servicing Agreements --
Termination." The "Initial Pool Balance" is
$211,956,796.
Federal Income Tax
Consequences The Notes will evidence debt obligations
under the Internal Revenue Code of 1986, as
amended (the "Code"), and interest paid or
accrued thereon will be taxable to
Noteholders. It is not expected that the
Notes will be issued with original issue
discount. By acceptance of its Note, each
Noteholder will be deemed to have agreed to
treat its Note as a debt instrument for
purposes of federal and state income tax,
franchise tax and any other tax measured in
whole or in part by income. See "Federal
Income Tax Consequences" for additional
information concerning the application of
Federal laws with respect to the Notes and
the Trust.
ERISA Considerations It is expected that the Notes will be treated
as debt obligations without significant
equity features for purposes of the
regulations of the Department of Labor set
forth in 29 C.F.R. 2510.3-101 (the "Plan
Asset Regulations"). Accordingly, employee
benefit plans and certain other retirement
plans and arrangements that are subject to
ERISA or corresponding provisions of the
Code, including individual retirement
accounts and annuities, Keogh plan and
collective investment funds in which such
plans, accounts, annuities or arrangements
are invested (any of the foregoing, a "Plan")
that acquire a Note should not be treated as
having acquired a direct interest in the
assets of the Trust for purposes of the Plan
Asset Regulations. However, there can be no
complete assurance that the Notes will be
treated as debt obligations without
significant equity features for purposes of
the Plan Asset Regulations. Furthermore,
regardless whether the Notes are treated as
debt or equity for ERISA purposes, the
acquisition or holding of the Notes by or on
behalf of a Plan still could be considered to
give rise to a prohibited transaction under
certain circumstances. Although certain
exceptions from the application of the
prohibited transaction rules and the Plan
Asset Regulations exist, there can be no
assurance that any such exception will apply
with respect to the acquisition of a Note.
See "ERISA Considerations" herein.
Registration of Notes............. The Notes will be represented by global
certificates registered in the name of Cede,
as nominee of DTC or another nominee. The
Noteholders will not be entitled to receive
definitive certificates representing such
Noteholders' interests, except in certain
circumstances. See "Description of the Notes
-- Book-Entry Registration."
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Rating of the Securities ......... It is a condition to the issuance and sale of
each of the Class A Notes that
they be rated "AAA" by Standard & Poor's
Ratings Services, a division of The
McGraw-Hill Companies ("Standard & Poor's")
and Fitch IBCA, Inc. ("Fitch"), and "Aaa" by
Moody's Investors Service, Inc. ("Moody's"),
and it is a condition to the issuance and
sale of each of the Class B Notes that they
be rated at least "A" by Standard & Poor's
and Fitch and at least "A2" by Moody's. Each
of Standard & Poor's, Fitch and Moody's is
also referred to herein as a "Rating Agency"
and collectively as the "Rating Agencies." A
securities rating is not a recommendation to
buy, sell or hold securities and may be
subject to revision or withdrawal at any time
by the assigning rating agency. See "Risk
Factors -- Risk of Change of Ratings on the
Notes."
The Rating Agencies do not evaluate, and the
ratings of the Notes do not address, the
likelihood of prepayments on the Notes or the
likelihood of payment of the Noteholders'
Interest Carryover.
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<PAGE>
RISK FACTORS
Prospective purchasers of the Notes should consider carefully the following
discussion of certain risk factors associated with an investment in the Notes.
Risk Resulting From Limited Assets of the Trust
The Trust does not have, nor is it permitted to have, any significant
assets or sources of funds other than the Financed Student Loans (and the
related Guarantee Agreements and HEAL Insurance Contract to the extent assigned
to the Trust by the Transferor ("Assigned Rights")), the Collection Account, the
Note Distribution Account, the Reserve Account and the Monthly Advance Account.
The Notes represent obligations solely of the Trust and its assets, and will not
be insured or guaranteed by the Transferor, the Master Servicer, the Guarantors,
the Eligible Lender Trustee, any of their affiliates, the Department of HHS or
the Department of Education. Consequently, holders of the Notes must rely for
repayment upon proceeds realized upon the sale of, or payments with respect to,
the Financed Student Loans and, if and to the extent available under the
circumstances described herein, amounts on deposit in the Reserve Account.
Amounts to be deposited in the Reserve Account are limited in amount and will be
reduced, subject to a specified minimum, as the principal amount of the Notes is
reduced. If the Reserve Account is exhausted, the Trust will depend solely on
payments with respect to the Financed Student Loans to make payments on the
Notes. See "Description of the Transfer and Servicing Agreements --
Distributions" and "-- Credit Enhancement."
Risk of Loss to Noteholders of Class B Notes Resulting From Subordination of the
Class B Notes
The rights of the Class B Noteholders to receive payments of interest and
principal will be subordinated to those of the Class A Noteholders as described
herein. If amounts otherwise allocable to the Class B Notes are used to fund
payments on the Class A Notes, distributions with respect to the Class B Notes
may be delayed or reduced. Notwithstanding the foregoing, distributions to the
Class B Noteholders of amounts representing the Class B Noteholders' Interest
Distribution Amount will not be subordinated to the payment of any Noteholders'
Interest Carryover that may exist from time to time. The Class B Noteholders are
also subordinated to the Class A Noteholders as to granting consents and the
direction of remedies upon defaults under the Transfer and Servicing Agreements
and the Indenture. See "Description of the Notes -- The Indenture" and
"Description of the Transfer and Servicing Agreements -- Distributions," "--
Credit Enhancement -- Subordination of the Class B Notes," "-- Master Servicer
Default; Administrator Default," "-- Rights Upon Servicer Default and
Administrator Default" and "-- Waiver of Past Defaults."
Risk That Interest Rate on Financed Student Loans May Be Insufficient to Cover
Interest on the Notes at the Formula Interest Rate Due to Rate-Index Difference
The interest rate for the Notes will be based generally on One-Month LIBOR.
The Financed Student Loans, however, generally bear interest at an effective
rate (taking into account Special Allowance Payments, if any, the "Loan Rates")
equal to the average bond equivalent rates of weekly auctions of 91-day Treasury
bills for each quarter (the "91-day T-Bill Rate") (or, in certain circumstances,
52-week Treasury bills) plus margins specified for such Financed Student Loans
under "Description of the FFEL Program -- Loan Terms -- Interest Rates" and
"Description of the HEAL Program -- Interest." As a result of these differences
between the indices used to determine the Loan Rates and the interest rates on
the Notes, there could be periods of time when the Loan Rates are inadequate to
cover the interest on the Notes (calculated on the basis of One-Month LIBOR) and
Transaction Expenses. If in respect of any Interest Period for a Class of Notes,
there does not exist a positive spread between (a) the Net Loan Rate (if
determined for such Interest Period) and (b) the Formula Rate on the Notes of
such Class (calculated on the basis of One-Month LIBOR), the interest rate on
the Notes of such Class for such Interest Period will be the Net Loan Rate. See
"Description of the Notes -- The Notes -- Distributions of Interest." Any
Noteholders' Interest Carryover arising as a result of the applicable interest
rate for any Class of Notes being determined on the basis of the Net Loan Rate
will be paid on the following Quarterly Distribution Date or on any succeeding
Quarterly Distribution Date to the extent funds are allocated and available
therefor after making any required prior distributions and deposits with respect
to such date. Payment of such amounts, however, will not be covered by amounts
on deposit in the Reserve Account (other than amounts in excess of the Specified
Reserve Account Balance). Any amount of Noteholders' Interest Carryover,
including any accrued and unpaid interest thereon, with respect to a Class of
Notes remaining after the
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earlier of the Distribution Date on which the outstanding principal amount of
such Class of Notes has been reduced to zero and the distribution of all
Available Funds on the Final Maturity Date for such Class, will never become due
and payable and will be discharged as to the applicable Class of Notes on such
date. See "Description of Transfer and Servicing Agreements -- Distributions."
Risk That Failure to Comply with Student Loan Origination and Servicing
Procedures for Financed Student Loans May Result in the Department of
Education's Refusal to Make Certain Payments to Guarantors and the Eligible
Lender Trustee, the Guarantors' Refusal to Make Guarantee Payments to the
Eligible Lender Trustee, and the Department of HHS's Refusal to Make Insurance
Payments to the Eligible Lender Trustee
The Higher Education Act, including the implementing regulations
thereunder, requires lenders and their assignees making and servicing FFELP
Loans, and Guarantors guaranteeing FFELP Loans, to follow specified procedures,
including due diligence procedures, to ensure that the FFELP Loans are properly
originated, disbursed and collected. The Public Health Services Act, Title VII,
Sections 701-720, as amended (such Act, together with all rules and regulations
promulgated thereunder by the Department of HHS, the "HEAL Act"), including the
implementing regulations thereunder, requires lenders and their assignees making
and servicing HEAL Loans to follow specified procedures, including due diligence
procedures, to ensure that the HEAL Loans are properly originated, disbursed and
collected. Certain of those procedures, which are specifically set forth in the
Higher Education Act and the HEAL Act, are summarized herein. See "Description
of the FFEL Program," "Description of the HEAL Program" and "Description of the
Transfer and Servicing Agreements -Servicing Procedures." Generally, those
procedures require that completed loan applications be processed, a
determination of whether an applicant is an eligible borrower attending an
eligible institution under the Higher Education Act or the HEAL Act be made, the
borrower's responsibilities under the loan be explained to him or her, the
promissory note evidencing the loan be executed by the borrower and then that
the loan proceeds be disbursed by the lender in a specified manner. After the
loan is made, the lender must establish repayment terms with the borrower,
properly administer deferments and forbearances and credit the borrower for
payments made. If a borrower becomes delinquent in repaying a loan, a lender
must perform certain collection procedures (primarily telephone calls, demand
letters, skiptracing procedures and requesting assistance from the applicable
Guarantor) which vary depending upon the length of time a loan is delinquent.
The Master Servicer will agree in the Transfer and Servicing Agreement to
perform (or provide for third party servicers to perform) servicing and
collection procedures on behalf of the Trust in compliance with these
procedures. However, the failure by the Transferor or the other originators to
follow or to have followed these procedures relating to the origination of
Financed Student Loans or of the Servicers to follow or to have followed certain
servicing procedures for the Financed Student Loans, as described below, may
result in (i) the Department of Education's refusal to make reinsurance payments
to the Guarantors or to make Interest Subsidy Payments and Special Allowance
Payments to the Eligible Lender Trustee with respect to the Financed FFELP
Loans, (ii) the Guarantors' inability or refusal to honor their obligations to
make payments under the Guarantee Agreements ("Guarantee Payments") with respect
to Financed FFELP Loans, and (iii) the Department of HHS's refusal to honor its
obligations to make payments ("Insurance Payments") under the HEAL Insurance
Contract with respect to Financed HEAL Loans. Loss of any such Guarantee
Payments, Interest Subsidy Payments, Special Allowance Payments or Insurance
Payments with respect to the Financed Student Loans could adversely affect the
amount of Available Funds for any Collection Period and the Trust's ability to
pay principal and interest on the Notes. See "Description of the FFEL Program,"
"Description of the HEAL Program" and "Description of the Transfer and Servicing
Agreements -Servicing Procedures."
Risk of Inability of Transferor and Master Servicer to Honor their Obligations
to Purchase Financed Student Loans
Under certain circumstances, pursuant to the Transfer and Servicing
Agreement, the Transferor or the Master Servicer is obligated to purchase any
Financed Student Loan if a breach of the representations, warranties and
obligations of the Transferor or the Master Servicer, respectively, with respect
to such Financed Student Loan has a material adverse effect on the interests of
the Noteholders therein and such breach is not cured within any applicable cure
period (it being understood that any such breach that has not resulted in the
failure of a Guarantee Agency to make a Guarantee Payment or
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the Department of HHS to make an Insurance Payment to the Eligible Lender
Trustee will not be considered to have such a material adverse effect). In
addition, under certain circumstances pursuant to the Transfer and Servicing
Agreement, the Transferor or the Master Servicer, as the case may be, is
obligated to reimburse the Trust for (i) any accrued interest amounts not
insured by the Department of HHS with respect to Financed HEAL Loans due to, and
(ii) any accrued interest amounts not guaranteed by a Guarantor due to, or any
lost Interest Subsidy Payments or Special Allowance Payments as a result of, a
breach of the Transferor's representations and warranties or the Master
Servicer's servicing obligations, as the case may be, with respect to a Financed
Student Loan. If the Transferor or the Master Servicer is obligated to purchase
a Financed Student Loan as a result of the Transferor's, a third party's or the
Master Servicer's failure to originate or service such Financed Student Loan in
compliance with the Higher Education Act and the applicable Guarantee Agreement,
or the HEAL Act and the HEAL Insurance Contract, as the case may be, it will be
obligated to purchase such Financed Student Loans from the Eligible Lender
Trustee at a price equal to the applicable Purchase Amount. See "Description of
the Transfer and Servicing Agreements -- Conveyance of Financed Student Loans:
Representations and Warranties" and "-- Master Servicer Covenants." There can be
no assurance, however, that the Transferor or the Master Servicer will have the
financial resources to do so. The failure of the Transferor or the Master
Servicer to so purchase a Financed Student Loan would constitute a breach of the
Transfer and Servicing Agreement, enforceable by the Eligible Lender Trustee on
behalf of the Trust or by the Indenture Trustee on behalf of the Noteholders,
but would not constitute an Event of Default under the Indenture or permit the
exercise of remedies thereunder.
Risk of Offset by Guarantors or the Department of Education Against Federal
Benefit Payments Due to Shared Lender Identification Number
Due to Department of Education policy limiting the granting of new lender
identification numbers, the Trust Agreement will allow the Eligible Lender
Trustee to use the Department of Education lender identification number that it
uses for the Financed Student Loans (under the Trust) for other Student Loans
held by the Eligible Lender Trustee as trustee under other indentures, if any,
securing obligations of the Transferor or obligations of subsidiaries of the
Transferor, or for trusts established by the Transferor or subsidiaries of the
Transferor. In that event, the billings submitted to the Department of Education
for Interest Subsidy Payments and Special Allowance Payments on Financed Student
Loans in the Trust would be consolidated with the billings for such payments for
Student Loans under such other indentures and trusts using the same lender
identification number and payments on such billings would be made by the
Department of Education to the Eligible Lender Trustee in lump sum form. Such
lump sum payments would then be allocated by the Eligible Lender Trustee among
the various indentures and trusts using the same lender identification number.
In addition, such sharing of the lender identification number may result in
the receipt of Guarantee Payments by Guarantors in lump sum form. In that event,
such payments would be allocated by the Eligible Lender Trustee among the trusts
and indentures in a manner similar to the allocation process for Interest
Subsidy Payments and Special Allowance Payments.
The Department of Education regards the Eligible Lender Trustee as the
party primarily responsible to the Department of Education for any liabilities
owed to the Department of Education or Guarantors resulting from the Eligible
Lender Trustee's activities in the FFEL Program. As a result, if the Department
of Education or a Guarantor were to determine that the Eligible Lender Trustee
owes a liability to the Department of Education or a Guarantor on any FFELP Loan
for which the Eligible Lender Trustee is or was legal titleholder, including
loans held in the Trust or other trusts, the Department of Education or
Guarantor might seek to collect that liability by offset against payments due
the Eligible Lender Trustee under the Trust. If the Department of Education or a
Guarantor determines such a liability exists in connection with a trust using
the shared lender identification number, the Department of Education or the
Guarantor would be likely to collect that liability by offsetting against
amounts due the Eligible Lender Trustee under the shared lender identification
number, including amounts owed in connection with the Trust. Such offsetting of
payments due to the Eligible Lender Trustee with respect to the Trust could
adversely affect the amount of Available Funds for any Collection Period and the
Trust's ability to pay interest and principal on the Notes.
In addition, other trusts or indentures using the shared lender
identification number may in a given quarter incur origination fees that exceed
the Interest Subsidy Payments and Special Allowance Payments payable by the
Department of Education on the loans in such other trusts and indentures,
resulting in the payment from the Department of Education
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received by the Eligible Lender Trustee under such shared lender identification
number for that quarter equalling an amount that is less than the amount owed by
the Department of Education on the Financed Student Loans in the Trust for that
quarter.
The Trust Agreement for the Trust and the indentures or trust agreements
under which the Trustee may separately hold Student Loans which share the lender
identification number to be used by the Trust (the separate trusts created
thereunder being collectively referred to herein as the "Transferor Trusts") may
require a Transferor Trust (including the Trust) to indemnify the other
Transferor Trusts for a shortfall or an offset by the Department of Education or
a Guarantor arising from the Financed FFELP Loans held by the Eligible Lender
Trustee on such Transferor Trust's behalf. To the extent that the Trust is
required to indemnify other Transferor Trusts with respect to an offset by the
Department of Education or a Guarantor arising from Financed FFELP Loans held by
the Eligible Lender Trustee for the Trust, such indemnification obligation could
adversely affect the amount of Available Funds for any Collection Period and the
Trust's ability to pay principal and interest on the Notes. Also, to the extent
that the Trust may be entitled to indemnification with respect to an offset by
the Department of Education or a Guarantor arising from Financed FFELP Loans
held by the Eligible Lender Trustee for a Transferor Trust other than the Trust,
there can be no assurance that the amount of funds available to the Trust with
respect to such right of indemnification may be adequate to compensate the Trust
and Noteholders for any previous reduction in the Available Funds for a
Collection Period.
Although the Department of HHS does not currently limit lender
identification numbers with respect to HEAL Loans, the Trust Agreement will
provide for the sharing of lender identification numbers with respect to the
Financed HEAL Loans in a similar manner to the sharing of lender identification
numbers for the Financed FFELP Loans.
Risk Resulting From Limited Liquidity of the Notes
The Notes will not be listed on any national security exchange. While
Salomon Brothers Inc, Morgan Stanley & Co., Incorporated and Crestar Securities
Corporation intend to make a secondary market in the Notes, they are not
obligated to do so. There can be no assurance that a secondary market for the
Notes will develop or, if a secondary market does develop, that it will provide
Noteholders with liquidity of investment or that it will continue for the life
of the Notes. As a result, investors must be prepared to bear the risk of
holding the Notes for as long as the Notes are outstanding.
Risk Resulting from Principal Balance of Notes Exceeding Initial Pool Balance of
the Financed Student Loans
On the Closing Date, the aggregate initial principal amount of the Notes
will be greater than the Initial Pool Balance of the Financed Student Loans as
of the Cut-off Date. As a result, if an Event of Default should occur under the
Indenture or an Insolvency Event should occur and the Financed Student Loans
were liquidated at a time when the outstanding principal amount of the Notes
exceeded the sum of the Pool Balance and the amounts in the other Trust
Accounts, such Financed Student Loans would likely have to be liquidated at a
premium for the Class B Noteholders and, in some circumstances, the Class A
Noteholders, not to suffer a loss. Because the actual rate and timing of any
accelerated payments of principal, if any, will depend on a number of factors
including the rate and timing of the payments on the Financed Student Loans,
there can be no assurance of the actual rate or timing of such accelerated
payments of principal or when the aggregate principal amount of the Notes will
be equal to or less than the sum of the Pool Balance and the amounts in the
other Trust Accounts.
Risk of Reduction in Amounts Paid on the Notes Resulting From Variability of
Actual Cash Flows
Amounts received with respect to the Financed Student Loans for a
particular Collection Period may vary in both timing and amount from the
payments actually due on the Financed Student Loans as of such Collection Period
for a variety of economic, social and other factors, including both individual
factors such as additional periods of deferment or forbearance prior to or after
a borrower's commencement of repayment, and general factors, such as a general
economic downturn which could increase the amount of defaulted Financed Student
Loans. Failures by borrowers to pay timely the principal and interest on the
Financed Student Loans will affect the amount of Available Funds, which may
reduce the amount of principal and interest paid to the Noteholders.
Risk of Inability of Indenture Trustee to Liquidate Financed Student Loans
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If an Event of Default occurs under the Indenture, subject to certain
conditions, the Indenture Trustee is authorized, with the consent of the
Noteholders holding 66-2/3% of the outstanding principal balance of the
Directing Notes, to sell the Financed Student Loans (the "Directing Notes" means
the Class A Notes while any such Notes are outstanding, and, when no Class A
Notes remain outstanding, the Class B Notes). There can be no assurance,
however, that the Indenture Trustee will be able to find a purchaser for the
Financed Student Loans in a timely manner or that the market value of such
Financed Student Loans would, at any time, be equal to the aggregate outstanding
principal amount of the Notes and accrued interest thereon. If the net proceeds
of any such sale, together with amounts then on deposit in the Reserve Account,
do not exceed the aggregate outstanding principal amount of Notes and accrued
interest thereon, the Noteholders will suffer a loss. In addition, the amount of
principal required to be distributed to Noteholders under the Indenture is
generally limited to amounts available to be so distributed. Therefore, the
failure to pay principal on the Notes may not result in the occurrence of an
Event of Default until the Final Maturity Date of the Notes. See "Description of
the Transfer and Servicing Agreements -- Credit Enhancement."
Risk That Financial Status of Guarantors Will Affect Their Ability to Make
Guarantee Payments
The Higher Education Act requires all FFELP Loans to be unsecured. As a
result, the only security for payment of the Financed FFELP Loans are the
Guarantee Agreements between the Eligible Lender Trustee and the Guarantors. A
deterioration in the financial status of the Guarantors and their ability to
honor guarantee claims with respect to the Financed FFELP Loans could result in
a delay in making or a failure to make Guarantee Payments to the Eligible Lender
Trustee. Failures by borrowers of FFELP Loans generally to pay timely the
principal and interest due on such Student Loans could obligate the Guarantors
to make payments thereon, which could adversely affect the solvency of the
Guarantors and their ability to meet their guarantee obligations (including with
respect to the Financed Student Loans). Loss of any such Guarantee Payments
could adversely affect the amount of Available Funds for any Collection Period
and the Trust's ability to pay principal of and interest on the Notes. Moreover,
to the extent that the Department of Education pays reimbursement claims
submitted by a Guarantor for any fiscal year exceeding certain specified levels
(see "Description of the Guarantee Agencies -- Effect of Annual Claims Rate"),
the Department of Education's obligation to reimburse the Guarantor for losses
will be reduced on a sliding scale from 100% (98% for loans made on or after
October l, 1993) to a minimum of 80% (78% for loans made on or after October l,
1993), except that death, disability, bankruptcy, closed school and false
certification claims are reimbursed 100% by the Department of Education.
Pursuant to Section 432(o) of the Higher Education Act, if the Department
of Education has determined that a Guarantor is unable to meet its insurance
obligations, the holders of loans guaranteed by such Guarantor may submit claims
directly to the Department of Education and the Department of Education is
required to pay the full Guarantee Payment due with respect thereto in
accordance with guarantee claim processing standards no more stringent than
those applied by the Guarantor. However, the Department of Education's
obligation to pay guarantee claims directly in this fashion is contingent upon
the Department of Education making the determination referred to above. There
can be no assurance that the Department of Education would ever make such a
determination with respect to a Guarantor or, if such a determination was made,
that such determination or the ultimate payment of such guarantee claims would
be made in a timely manner. See "Description of the FFEL Program" and
"Description of the Guarantee Agencies."
Risk That Changes in Law Relating to the HEAL Program and the FFEL Program Could
Adversely Affect the Noteholders
There can be no assurance that the HEAL Act, the Higher Education Act or
other relevant federal or state laws, rules and regulations and the programs
implemented thereunder will not be amended or modified in the future in a manner
that will adversely impact the programs described herein and the loans made
thereunder, including the Financed Student Loans or the Guarantee Agencies. The
FFEL Program has been the subject of numerous amendments and proposed amendments
to the Higher Education Act, including amendments designed to reduce the federal
budget deficit. Amendments to the Higher Education Act in the past several years
have reduced the portion of loans covered by Guarantee Payments and the portion
of Guarantee Payments covered by reinsurance, reduced certain administrative
expense allowances paid by the Department of Education to Guarantee Agencies,
reduced the premiums and default collections that Guarantee Agencies are
entitled to receive and/or retain, and given the Department of Education broad
powers over Guarantee Agencies and their reserves,
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including the authority to require a Guarantee Agency to pay a portion or all
reserve funds to the Department of Education in certain circumstances.
Several proposals have been made by Congress and the Administration to
amend the Higher Education Act, including proposals that would significantly
alter the FFEL Program and the roles of its participants. It is impossible to
predict whether any such proposals will be adopted as legislation or, if so,
what impact such legislation may have on the Eligible Lender Trustee's receipt
of revenues with respect to Financed Student Loans.
The Competing Federal Direct Student Loan Program May Result in Higher Servicer
Costs Because of Reduced Economies of Scale; a Smaller Secondary Market and
Reduced Value for Financed Student Loans; and Higher Prepayments of Financed
Student Loans Through Consolidations
The Higher Education Act provides for a Federal Direct Student Loan
Program. This program, established in academic year 1994-1995, has a statutory
target volume of 60% of student loan demand in academic year 1998-1999, which
could result in reductions in the volume of loans made under the FFEL Program.
If the Federal Direct Student Loan Program expands, the Master Servicer and the
Servicers may experience increased costs due to reduced economies of scale to
the extent the volume of new loans serviced by them is reduced. Such cost
increases could affect the ability of the Master Servicer and the Servicers to
satisfy their obligations to service the Financed Student Loans. Such volume
reductions could also reduce revenues received by the Guarantee Agencies
available to pay claims on defaulted FFELP Loans. Finally, the level of
competition currently in existence in the secondary market for loans made under
the FFEL Program and HEAL Program could be reduced, resulting in fewer potential
buyers of the FFELP Loans and HEAL Loans and lower prices available in the
secondary market for those loans. Further, the Department of Education has
implemented a direct consolidation loan program, which program may further
reduce the volume of loans made under the FFEL Program and the HEAL Program and
is expected to result in prepayments of Financed Student Loans. See "Description
of the FFEL Program.".
Reinvestment Risk to Noteholders From Prepayments of the Notes
Financed Student Loans may be prepaid by borrowers at any time without
penalty. (For this purpose the term "prepayments" includes prepayments in full
or in part (including pursuant to Consolidation Loans or HEAL Consolidation
Loans) and liquidations due to default (including receipt of Guarantee Payments
and Insurance Payments).) The rate of prepayments on the Financed Student Loans
may be influenced by a variety of economic, social and other factors affecting
borrowers, including interest rates, the availability of alternative financing
and the general job market for graduates of institutions of higher education. In
addition, under certain circumstances, the Transferor and the Master Servicer
will be obligated to purchase Financed Student Loans from the Trust pursuant to
the Transfer and Servicing Agreement as a result of breaches of the Transferor's
representations and warranties or the Master Servicer's servicing obligations,
respectively. See "Description of the Transfer and Servicing Agreements --
Conveyance of Financed Student Loans; Representations and Warranties" and "--
Master Servicer Covenants." Moreover, to the extent borrowers of Financed
Student Loans elect to borrow money through Consolidation Loans or HEAL
Consolidation Loans with respect to such Financed Student Loans from the
Transferor or from another lender, the Noteholders will receive as a prepayment
of principal the aggregate principal amount of such Financed Student Loans. The
effect of such prepayments may be mitigated during the Subsequent Finance Period
if the Transferor elects to transfer Consolidation Loans or HEAL Consolidation
Loans to the Eligible Lender Trustee on behalf of the Trust or elects to
transfer to the Eligible Lender Trustee on behalf of the Trust a Student Loan
(each, a "Serial Loan") to serialize the ownership of such Student Loan with
other Financed Student Loans of the same borrower. See "Description of Transfer
and Servicing Agreements -- Subsequent Finance Period and Subsequent Financed
Student Loans". There can be no assurance that borrowers with Financed Student
Loans will not seek to obtain Consolidation Loans or HEAL Consolidation Loans
with respect to such Financed Student Loans and no assurance that the Transferor
will elect to transfer Subsequent Financed Student Loans into the Trust during
the Subsequent Finance Period. See "Maturity and Prepayment Considerations,"
"Description of the FFEL Program -- Loan Terms -- Repayment" and "Description of
the HEAL Program -Terms of HEAL Loans."
To the extent such prepayments of the Financed Student Loans result in a
prepayment of the Notes prior to their expected Final Maturity Dates, the
holders of the Notes may not be able to reinvest such funds at the same yield as
the yield
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on the Notes. The rate of payment on the Financed Student Loans cannot be
predicted, and any reinvestment risks resulting from a faster or slower
incidence of prepayment of Financed Student Loans will be borne entirely by the
holders of the Notes. The effect of such prepayments initially will be to
increase the rate of payment on the Class A-1 Notes and, therefore, increase the
reinvestment risk with respect to the Class A-1 Notes. After the Class A-1 Notes
have been paid in full, the entire amount of such prepayments will be applied to
the payment of the principal balance of the Class A-2 Notes until they are paid
in full, and then to the payment of the principal balance of the Class B Notes.
See "Description of the Transfer and Servicing Agreements -- Distributions". As
a result, the reinvestment risk resulting from such prepayments will be borne
entirely by the holders of the Class A-2 Notes after the principal balance of
the Class A-1 Notes has been paid in full, and by the holders of the Class B
Notes after the principal balance of the Class A-2 Notes has been paid in full.
Risk That Average Life of Notes May Be Lengthened As a Result of Extension of
Payments on the Financed Student Loans
Scheduled payments with respect to, and maturities of, the Financed Student
Loans may be extended, including pursuant to the applicable Deferment Period,
certain other grace periods authorized by the Higher Education Act and the HEAL
Act ("Grace Periods") and, under certain circumstances, periods of forbearance
("Forbearance Periods") or as a result of the conveyance of Subsequent Financed
Student Loans to the Eligible Lender Trustee on behalf of the Trust during the
Subsequent Finance Period, as described herein, which may lengthen the remaining
term of the Financed Student Loans and the average life of the Notes. See
"Maturity and Prepayment Considerations," "Description of the FFEL Program --
Loan Terms -- Repayment" and "Description of the HEAL Program -- Terms of HEAL
Loans." See also "Description of the Transfer and Servicing Agreements --
Insolvency Event" regarding the sale of the Financed Student Loans if a
Transferor Insolvency Event occurs and "-- Termination" regarding the
Transferor's option to purchase the Financed Student Loans and the auction of
the Financed Student Loans on or after the April 2007 Distribution Date.
Risk Resulting From Differences between Classes of Notes with Respect to Receipt
of Payments on the Financed Student Loans
The Classes of Notes receiving principal earlier bear relatively greater
risk than each Class receiving principal later of principal repayments with
respect to the Financed Student Loans (whether as a result of voluntary
prepayments, Consolidation Loans, HEAL Consolidation Loans or liquidations due
to default or breach). Thus, the holders of the Class A-1 Notes bear the
greatest risk of such principal prepayments, with the holders of the Class A-2
Notes and the Class B Notes bearing the next most significant risk of such
principal prepayments. On the other hand, holders of Notes receiving principal
later would bear a greater risk of loss of principal than do holders of Notes
receiving principal earlier in the event of a shortfall in Available Funds and
amounts on deposit in the Reserve Account.
Insolvency Risk of Transferor
The Transferor intends that the transfer of the Financed Student Loans by
it to the Eligible Lender Trustee on behalf of the Trust under the Transfer and
Servicing Agreement constitutes a valid contribution and assignment of such
Financed Student Loans. However, a court could treat the transfer of the
Financed Student Loans to the Eligible Lender Trustee as an assignment of
collateral as security for the benefit of the Trust. If the transfer of the
Financed Student Loans to the Eligible Lender Trustee is deemed to create a
security interest therein, a tax or government lien on property of the
Transferor arising before the Financed Student Loans came into existence may
have priority over the Eligible Lender Trustee's interest in such Financed
Student Loans and, if the Federal Deposit Insurance Corporation (the "FDIC")
were appointed receiver or conservator of the Transferor, the FDIC's
administrative expenses may also have priority over the Eligible Lender
Trustee's interest in such Financed Student Loans. If the Transferor becomes
insolvent, the Federal Deposit Insurance Act ("FDIA"), as amended by the
Financial Institutions Reform, Recovery and Enforcement Act of 1989 ("FIRREA"),
sets forth certain powers which the FDIC could exercise if it were appointed as
receiver or conservator of the Transferor. Subject to clarification by FDIC
regulations or interpretations, it would appear from the positions taken by the
FDIC that the FDIC, in its capacity as a receiver or conservator for the
Transferor, would not interfere with the timely transfer to the Trust of
collections with respect to the Financed Student Loans.
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To the extent that the transfer of the Financed Student Loans is deemed to
create a security interest, and that interest was validly perfected before the
Transferor's insolvency and was not taken in contemplation of insolvency or with
the intent to hinder, delay or defraud the Transferor or its creditors, based
upon opinions and statements of policy issued by the general counsel of the FDIC
addressing the enforceability against the FDIC, as conservator or receiver for a
depository institution, of a security interest in collateral granted by such
depository institution, such security interest should not be subject to
avoidance and payments to the Trust with respect to the Financed Student Loans
should not be subject to recovery by the FDIC as receiver or conservator of the
Transferor. If, however, the FDIC were to assert a contrary position, certain
provisions of the FDIA which, at the request of the FDIC, have been applied in
recent lawsuits to avoid security interests in collateral granted by depository
institutions, would permit the FDIC to avoid such security interest, thereby
resulting in possible delays and reductions in payments on the Notes. In
addition, if the FDIC were to require the Indenture Trustee or the Eligible
Lender Trustee to establish its right to such payments by submitting to and
completing the administrative claims procedure under the FDIA, as amended by the
FIRREA, delays in payments on the Notes and possible reductions in the amount of
those payments could occur.
Defeat or Lack of Perfected Security Interest in Financed Student Loans
The Transferor intends that the transfer of the Financed Student Loans by
it to the Eligible Lender Trustee on behalf of the Trust will constitute a valid
contribution and assignment of such Financed Student Loans. Notwithstanding the
foregoing, if the transfer of the Financed Student Loans is deemed to be an
assignment of collateral as security for the benefit of the Trust, a security
interest in the FFELP Loans created on behalf of the Eligible Lender Trustee
may, pursuant to the provisions of 20 U.S.C. ss.1087-2(d) (3), be perfected by
the filing of notice of such security interest in the manner provided by the
applicable state law version Uniform Commercial Code ("UCC") for perfection of a
security interest in accounts. A financing statement or statements covering the
Financed Student Loans will be filed under the UCC to protect the interest of
the Eligible Lender Trustee in the event the transfer by the Transferor is
deemed to be subject to the UCC.
If the transfer of the Financed Student Loans is deemed to be an assignment
as security for the benefit of the Trust, there are certain limited
circumstances under the UCC in which prior or subsequent transferees of Financed
Student Loans could have an interest in such Financed Student Loans with
priority over the Eligible Lender Trustee's interest. A tax or other government
lien on property of the Transferor arising prior to the time a Financed Student
Loans came into existence may also have priority over the interest of the
Eligible Lender Trustee in such Financed Student Loan. Under the Transfer and
Servicing Agreement, however, the Transferor will warrant that it has caused the
Financed Student Loans to be transferred to the Eligible Lender Trustee on
behalf of the Trust free and clear of any lien of any third party. In addition,
the Transferor will covenant that it will not sell, pledge, assign, transfer or
grant any lien on any Financed Student Loan (or any interest therein) other than
to the Eligible Lender Trustee on behalf of the Trust.
Pursuant to the Transfer and Servicing Agreement, each Servicer as
custodian on behalf of the Trust (or another designated custodian) will have
custody of the promissory notes evidencing the Financed FFELP Loans serviced by
it following the conveyance of such loans to the Eligible Lender Trustee and the
pledge thereof to the Indenture Trustee. The promissory notes evidencing the
Financed HEAL Loans will, except as otherwise required for servicing purposes,
be held by the Indenture Trustee or a custodian appointed for that purpose.
Although the accounts of the Transferor will be marked to indicate the
conveyance and the Transferor will cause UCC financing statements to be filed
with the appropriate authorities, the Financed Student Loans will not be
physically segregated in the Servicer's or custodian's offices. If, through
inadvertence or otherwise, any of the Financed Student Loans were sold to
another party, or a security interest therein were granted to another party,
that purchased (or took such security interest in) any of such Financed Student
Loans in the ordinary course of its business and took possession of such
Financed Student Loans, then the purchaser (or secured party) would acquire an
interest in the Financed Student Loans superior to the interest of the Eligible
Lender Trustee and the Indenture Trustee if the purchaser (or secured party)
acquired (or took a security interest in) the Financed Student Loans for new
value and without actual knowledge of the Eligible Lender Trustee's and the
Indenture Trustee's respective interests. See "Description of the Transfer and
Servicing Agreements -- Conveyance of Financed Student Loans; Representations
and Warranties" and "-- Servicer Covenants."
Risk Resulting From Changes in Repayment Terms of Financed Student Loans
Pursuant to Incentive Programs
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The Transferor currently makes available and may hereafter make available
certain incentive programs to borrowers. See "The Financed Student Loan Pool --
Incentive Programs". Under these programs, the Transferor retains the option to
terminate or change the terms of the incentives with respect to any or all of
the borrower's loans, including loans originated prior to the termination or
change which have been assigned to the Trust. It cannot be predicted with
certainty which borrowers will qualify or decide to participate in these
programs. The effect of these incentive programs may be to reduce the yield on
the Financed Student Loans.
Risk of Change of Ratings on the Notes
It is a condition to the issuance and sale of each Class of Notes that such
Classes receive the respective ratings from each of the Rating Agencies
described in "Rating." A rating is not a recommendation to purchase, hold or
sell the Notes, inasmuch as such rating does not comment as to market price or
suitability for a particular investor. The ratings of the Notes address the
likelihood of the ultimate payment of principal of and interest on the Notes
pursuant to their terms. However, the Rating Agencies do not evaluate, and the
ratings of the Notes do not address, the likelihood of prepayments on the Notes
or the likelihood of payment of any Noteholders' Interest Carryover. There can
be no assurance that a rating will remain for any given period of time or that a
rating will not be lowered or withdrawn entirely by a Rating Agency if in its
judgment circumstances in the future so warrant.
Failure to Comply with Consumer Protection Laws
Numerous federal and state consumer protection laws and related regulations
impose substantial requirements upon lenders and servicers involved in consumer
finance. Also, some state laws impose finance charge ceilings and other
restrictions on certain consumer transactions and require contract disclosures
in addition to those required under federal law. These state laws are, in large
part, preempted by the Higher Education Act and the HEAL Act. However, the form
of promissory notes required by the Department of Education for FFELP Loans
provides that holders of such promissory notes evidencing certain loans made to
borrowers attending for-profit schools are subject to any defenses that the
borrower may have against the school. For a discussion of the Trust's rights if
the Financed Student Loans were not originated or serviced in compliance in all
material respects with applicable laws, see "Description of the Transfer and
Servicing Agreements -Conveyance of Financed Student Loans; Representations and
Warranties" and "-- Master Servicer Covenants."
Effect of Book-Entry Registration
The Notes will each be initially represented by one or more certificates
registered in the name of Cede, the nominee for DTC, and will not be registered
in the names of the holders of such Notes or their nominees. Because of this,
unless and until Definitive Notes are issued, holders of the Notes will not be
recognized by the Indenture Trustee or the Eligible Lender Trustee as
"Noteholders" (as such terms are used in the Indenture). Hence, until Definitive
Notes are issued, holders of the Notes will only be able to exercise the rights
of Noteholders indirectly through DTC and its respective participating
organizations. See "Description of the Notes --Book-Entry Registration" and "--
Definitive Notes."
FORMATION OF THE TRUST
The Trust
Crestar Student Loan Trust 1997-1 is a statutory business trust that will
be formed on or prior to the Closing Date, under the laws of the State of
Delaware for the transactions described in this Prospectus. The Trust will not
engage in any activity other than (i) acquiring, holding, selling and managing
the Financed Student Loans and the other assets of the Trust and proceeds
therefrom, (ii) issuing one or more classes of its certificates and notes, (iii)
making payments thereon and (iv) engaging in other activities that are
necessary, suitable or convenient to accomplish the foregoing or are incidental
thereto or connected therewith. For so long as the Transferor is a
Certificateholder, the Trust's activities will be limited to activities that are
part of, or incidental to, the business of banking as well.
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The Trust will be initially capitalized with equity equal to $l,000 on the
date of its formation, representing the initial principal balance of the
Certificates issued on such date. Approximately 4.9% of such Certificates will
be sold to the Transferor and the remaining Certificates were offered for sale
in transactions exempt from the registration requirements of the Securities Act.
The equity of the Trust, together with the proceeds from the sale of the Notes,
will be used by the Eligible Lender Trustee in connection with its acquisition,
on behalf of the Trust, of the Initial Financed Student Loans from the
Transferor pursuant to the Transfer and Servicing Agreement. A portion of the
net proceeds received from the transfer of the Initial Financed Student Loans
will be used by the Transferor to make a Reserve Account Deposit in the amount
of $2,190,464. Upon the consummation of such transaction, the property of the
Trust will consist of (a) the pool of Financed Student Loans, legal title to
which is held by the Eligible Lender Trustee on behalf of the Trust, (b) all
funds collected in respect thereof after the applicable Cut-off Date or
Subsequent Cut-off Date, and (c) all moneys and investments on deposit in the
Collection Account, the Certificate Distribution Account, the Note Distribution
Account, the Expense Account, the Monthly Advance Account and the Reserve
Account. The Notes will be collateralized by the property of the Trust. The
Collection Account, the Note Distribution Account, the Expense Account, the
Reserve Account and the Monthly Advance Account will be maintained with and in
the name of the Indenture Trustee. To facilitate servicing and to minimize
administrative burden and expense, the related Servicer will be appointed
custodian of the promissory notes representing the Financed Student Loans by the
Eligible Lender Trustee.
The Trust's principal offices are in Cincinnati, Ohio, in care of Star
Bank, National Association, as Eligible Lender Trustee, at the address listed
below.
Eligible Lender Trustee
Star Bank, National Association, the Eligible Lender Trustee for the Trust
under the Trust Agreement, is a national banking association organized under the
laws of the United States with its chief executive office in Cincinnati, Ohio.
The office of the Eligible Lender Trustee for purposes of administering the
Trust is located at 425 Walnut Street, Cincinnati, Ohio 45201. The Eligible
Lender Trustee will acquire on behalf of the Trust legal title to all the
Financed Student Loans acquired pursuant to the Transfer and Servicing
Agreement. The Eligible Lender Trustee on behalf of the Trust will enter into a
Guarantee Agreement with each of the Guarantors with respect to such Financed
FFELP Loans and a HEAL Insurance Contract with the Department of HHS with
respect to such Financed HEAL Loans. The Eligible Lender Trustee qualifies as an
eligible lender and owner of Financed Student Loans for all purposes under the
Higher Education Act and the Guarantee Agreements with respect to such Financed
FFELP Loans and under the HEAL Act and the HEAL Insurance Contract with respect
to such Financed HEAL Loans. Failure of the Financed Student Loans to be owned
by an eligible lender would result in the loss of Guarantee Payments, Interest
Subsidy Payments and Special Allowance Payments with respect to Financed FFELP
Loans and the loss of Insurance Payments with respect to Financed HEAL Loans.
See "Description of the FFEL Program" and "Description of the HEAL Program."
The Transferor or its affiliates may maintain from time to time other
banking relationships with Star Bank, National Association, the Eligible Lender
Trustee, and its affiliates.
USE OF PROCEEDS
The net proceeds from the sale of the Notes will be paid to the Transferor
on the Closing Date as consideration for the Initial Financed Student Loans
being conveyed on such date. The Transferor will use such proceeds to make the
initial Reserve Account Deposit, deposits into certain other Trust Accounts and
for general corporate purposes.
THE TRANSFEROR
The Transferor is a Virginia banking corporation that offers a broad range
of banking services, including various types of deposit accounts and
instruments, commercial and consumer loans, trust and investment management,
bank credit cards, and international banking to customers throughout Virginia,
Maryland and Washington, D.C. Services are also provided
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through non-bank subsidiaries. Securities brokerage and investment banking
services are offered by Crestar Securities Corporation.
The Transferor and its predecessors have been originating and purchasing
FFELP Loans since 1965 and HEAL Loans since 1995. As of September 30, 1997, the
Transferor had Student Loans under its management in an aggregate principal
amount of approximately $970 million.
The Transferor is a wholly owned indirect subsidiary of Crestar
Financial Corporation, a bank holding company organized under the laws of the
Commonwealth of Virginia and registered under the Bank Holding Company Act of
1956, as amended (the "BHCA"). As of September 30, 1997, Crestar Financial
Corporation had $23.2 billion in total assets, $16.1 billion in total deposits
and $1.9 billion in total shareholders' equity.
Crestar Financial Corporation is supervised and examined by the Board
of Governors of the Federal Reserve System under the BHCA. The BHCA requires
Federal Reserve approval for bank acquisitions and regulates non-banking
activities of bank holding companies. Crestar Bank is regulated by the State
Corporation Commission of Virginia and the Federal Reserve Bank of Richmond.
The principal executive office of the Transferor are located at Crestar
Center, 919 East Main Street, Richmond, Virginia 23219. Its telephone number is
(804) 782-5171.
THE NOTES ARE NEITHER OBLIGATIONS OF NOR GUARANTEED BY CRESTAR FINANCIAL
CORPORATION OR ANY OF CRESTAR FINANCIAL CORPORATION'S SUBSIDIARIES (INCLUDING
THE TRANSFEROR).
THE SERVICERS
General
The Transferor will act as Master Servicer with respect to the Financed
Student Loans. The Financed Student Loans will be serviced by PHEAA, or such
other parties as may be approved by the Master Servicer from time to time
(subject to confirmation of the ratings on the outstanding Notes). Pursuant to a
sub-servicing agreement, PHEAA has agreed to service, and perform all other
related tasks with respect to, the Financed Student Loans in compliance with
applicable standards and procedures. The sub-servicing agreement provides that
PHEAA will service the Financed Student Loans until such loans are paid off .
See "Description of the Transfer and Servicing Agreements -- Servicing
Procedures."
Pennsylvania Higher Education Assistance Agency
PHEAA is a body corporate and politic constituting a public corporation and
government instrumentality created pursuant to an act of the Pennsylvania
Legislature. PHEAA has approximately 2,200 employees. PHEAA's headquarters is
located in Harrisburg, Pennsylvania, with six regional offices located
throughout Pennsylvania and additional offices located in California, Delaware
and West Virginia.
Under its enabling legislation, PHEAA is authorized to issue bonds or
notes, with the approval of the Governor of the Commonwealth of Pennsylvania,
for the purpose of purchasing, making, or guaranteeing loans to students or
parents, or to lending institutions or post secondary institutions to make
student or parent loans. PHEAA's enabling legislation also authorizes PHEAA to
undertake the origination of loans and the servicing of loans made by PHEAA and
others.
PHEAA has no power to pledge the credit or taxing power of the Commonwealth
of Pennsylvania or to make PHEAA debts payable out of any moneys except those of
PHEAA. Neither the faith and credit nor the taxing power of the Commonwealth of
Pennsylvania is pledged to the payment of any of PHEAA's obligations.
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PHEAA's enabling legislation created an educational loan assistance fund
within the Commonwealth of Pennsylvania Treasury (the "Educational Loan
Assistance Fund"). For accounting purposes, PHEAA has divided the Educational
Loan Assistance Fund into a Higher Education Assistance Fund (the "Assistance
Fund") and a Revenue Bond Fund (the "PHEAA Bond Fund"). Appropriations, revenues
and expenditures allocable to all PHEAA's programs, other than assets and
expenditures relating to its revenue bond financings, are allocated to the
Assistance Fund. All assets included in the PHEAA Bond Fund are pledged to
particular bond and note issues of PHEAA and are not available to meet guarantee
or other obligations of PHEAA related to its other programs. Several obligations
of PHEAA under certain bond and note financings, though secured and
collateralized by specified assets in PHEAA's Bond Fund, are obligations not
limited to such assets. Under those financings, certain persons may seek
recourse against the Assistance Fund.
As of June 30, 1997, the Assistance Fund had total assets of approximately
$786 million, total liabilities of approximately $553 million, and retained
earnings of approximately $233 million. PHEAA estimates that the portion of its
retained earnings that would be treated as its Guarantee Fund under the Higher
Education Act would be approximately $196 million. The PHEAA Bond Fund had total
assets of approximately $1.65 billion, total liabilities of approximately $1.55
billion and retained earnings of approximately $52 million as of June 30, 1997.
Substantially all of PHEAA's expenditures relating to the various grant
programs that it administers (other than administrative expenses) are derived
from appropriations from the Commonwealth. In recent years, PHEAA has not
received any appropriations to cover its administrative expenses. To meet
PHEAA's obligations under its servicing and guarantee programs, PHEAA has in the
past relied, and expects in the future to continue to rely, principally on
servicing fee revenues; income on various investments in the Assistance Fund
(including various types of student loans); and revenues generated by its
activity as a guarantee agency under the Higher Education Act, including federal
reimbursement payments, administrative cost allowances, student loan insurance
premiums, and retentions from collections on defaulted loans. The implementation
of the new direct loan program or other modifications to the Higher Education
Act may reduce certain servicing fee revenues or income generated by PHEAA's
activity as a guarantee agency.
PHEAA had outstanding debt and/or credit facilities (under which the entire
aggregate amount of funds available had not been drawn) in the amount of
approximately $2.2 billion as of June 30, 1997 . As of June 30, 1997. PHEAA
owned approximately $1.6 billion outstanding principal amount of student loans
financed with the proceeds of its long-term debt, and had funds available for
acquisition of student loans in the amount of approximately $364 million.
PHEAA has been guaranteeing student loans since 1964. As of June 30, 1997,
PHEAA had guaranteed a total of approximately $19.0 billion principal amount of
student loans under the Higher Education Act. Of that amount, PHEAA estimates
that approximately $13.3 billion original principal amount of such loans was
outstanding. In addition to guaranteeing loans under the Higher Education Act,
PHEAA also operates certain guarantee programs for which its receives no federal
reinsurance. PHEAA has outstanding guarantee obligations of such loans in the
amount of approximately $49 million as of June 30, 1997.
PHEAA's two principal servicing products are its full servicing operation
(in which it performs all student loan servicing functions on behalf of its
customers) and its remote servicing operation (in which it provides only data
processing services to its customers that have their own servicing operations).
As of June 30,1997, PHEAA was servicing under its full service program
approximately 1.145 million student loan accounts representing approximately
$11.1 billion outstanding principal amount for more than 320 customers and under
its remote servicing operation, approximately 700,000 student loans representing
approximately $3.5 billion outstanding principal amount for four customers.
Servicing revenue generated from PHEAA's servicing of loans that it owns
accounted for approximately 25% of servicing revenues for the 12 months ended
June 30, 1997. For the year then ended, one other customer accounted for
approximately 17% of servicing revenues. PHEAA's management expects gross
servicing revenues to continue to increase.
PHEAA's current servicing agreements have contractual terms at inception
ranging from three years to life of the loan. Under PHEAA's servicing
agreements, PHEAA generally has agreed to reimburse customers for any claims,
losses, liabilities or expenses which arise out of or relate to PHEAA's acts or
omissions with respect to services provided under such agreements where the
final determination of PHEAA's liability is established by an arbitrator, by a
court of law of competent jurisdiction, or by way of settlement. PHEAA must rely
on moneys in the Assistance Fund to cover expenditures necessary
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<PAGE>
to meet its contractual obligations under the servicing agreements, including
any potential liabilities. PHEAA has developed a new servicing system in
consultation with the consulting firm Deloitte & Touche, IBM and servicing
clients. Conversion to the new system began in the second quarter of 1995 and
is ongoing.
Information relating to PHEAA set forth in this Prospectus has been
provided by PHEAA, and neither such information nor information included in the
reports referred to herein has been verified by, or is guaranteed as to accuracy
or completeness by, the Transferor or the Underwriters. Such information should
not be construed as a representation by the Transferor or the Underwriters. No
representation is made by the Transferor or the Underwriters as to the accuracy
or adequacy of such information or the absence of material adverse changes in
such information subsequent to the dates thereof. PHEAA has agreed that it will
provide a copy of its most recent audited financial statements to Noteholders
upon receipt of a written request directed to Mr. Timothy A. Guenther, Senior
Vice President and Chief Financial Officer Financial Management, 1200 North
Seventh Street, Harrisburg, Pennsylvania 17102.
THE FINANCED STUDENT LOAN POOL
The Initial Financed Student Loans were, and the Subsequent Financed
Student Loans will be, selected from the Transferor's portfolio of FFELP Loans
and HEAL Loans by several criteria, including the following: each Financed
Student Loan (i) was or will be originated in the United States or its
territories or possessions under and in accordance with the FFEL Program or the
HEAL Program, as the case may be, to or on behalf of a student who has graduated
or is expected to graduate from an accredited institution of higher education
within the meaning of the Higher Education Act or the HEAL Act, (ii) contains
terms in accordance with those required by the FFEL Program, the Guarantee
Agreements, the HEAL Program, the HEAL Insurance Contract and other applicable
requirements, and (iii) is not more than 90 days past due as of the Cut-off Date
or, in the case of an Subsequent Financed Student Loan, as of the subsequent
cut-off date set forth in the related Transfer Agreement (each, a "Subsequent
Cut-Off Date"). As of the Cut-off Date, $21,326,413 principal amount of the
Initial Financed Student Loans were delinquent for up to 59 days and none of the
Initial Financed Student Loans were delinquent for more than 59 days. For this
purpose, delinquency refers to the number of days for which a payment is past
due.
Each Financed Student Loan is required (i) to be insured by the Department
of HHS as to principal and interest to the extent provided under the HEAL Act,
or (ii) to be guaranteed as to principal and interest by a Guarantor and
reinsured by the Department of Education to the extent provided under the Higher
Education Act and eligible for Special Allowance Payments and, with respect to
each Financed Student Loan that is a Stafford Loan, Interest Subsidy Payments
paid by the Department of Education.
Except for the criteria described above and under "Description of the
Transfer and Servicing Agreements -- Subsequent Finance Period and Subsequent
Financed Student Loans", however, there will be no required characteristics of
the Subsequent Financed Student Loans and no limitations on the amount of
Subsequent Financed Student Loans that may be included in the Trust. Therefore,
following the transfer of Subsequent Financed Student Loans to the Eligible
Lender Trustee on behalf of the Trust, the aggregate characteristics of the
entire pool of Financed Student Loans, including the composition of the Financed
Student Loans and of the borrowers thereof, the distribution by interest rate
and the distribution by principal balance described in the following tables,
will vary from those of the Initial Financed Student Loans as of the Cut-Off
Date.
Each of the Financed Student Loans provides for the amortization of the
outstanding principal balance of such Financed Student Loan over a series of
regular payments. Each regular payment consists of an installment of interest
which is calculated on the basis of the outstanding principal balance of such
Financed Student Loan multiplied by the applicable interest rate and further
multiplied by the period elapsed (as a fraction of a calendar year) since the
preceding payment of interest was made. As payments are received in respect of
such Financed Student Loan, the amount received is applied first to outstanding
late fees, if collected, then to interest accrued to the date of payment and the
balance is applied to reduce the unpaid principal balance. Accordingly, if a
borrower pays a regular installment before its scheduled due date, the portion
of the payment allocable to interest for the period since the preceding payment
was made will be less than it would have been had the payment been made as
scheduled, and the portion of the payment applied to reduce the unpaid principal
balance will be correspondingly greater. Conversely, if a borrower pays a
monthly installment after its scheduled due date, the portion of the payment
allocable to interest for the period since the preceding payment was made will
be greater than it would have
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<PAGE>
been had the payment been made as scheduled, and the portion of the payment
applied to reduce the unpaid principal balance will be correspondingly less. In
either case, subject to any applicable Deferment Periods or Forbearance Periods,
the borrower pays a regular installment until the final scheduled payment date,
at which time the amount of the final installment is increased or decreased as
necessary to repay the then outstanding principal balance of such Financed
Student Loan.
Set forth below in the following tables is a description of certain
additional characteristics of the Initial Financed Student Loans as of the
Cut-Off Date.
Composition of the Initial Financed Student Loans as of the Cut-off Date
<TABLE>
<S> <C>
Aggregate Outstanding Principal Balance................................................ $211,956,796
Aggregate Outstanding Accrued Interest................................................. $7,416,340
Number of Borrowers.................................................................... 28,569
Average Outstanding Principal Balance Per Borrower..................................... $7,419
Number of Loans........................................................................ 67,686
Average Outstanding Principal Balance Per Loan......................................... $3,131
Weighted Average Annual Borrower Interest Rate......................................... 8.26%
Weighted Average Remaining Term (months) (does not include the months
remaining for the in-school, grace, deferment or forbearance periods)................ 121
Weighted Average Remaining Term (months) (including the months remaining for
the in-school, grace, deferment or forbearance periods).............................. 123
</TABLE>
-39-
<PAGE>
Distribution of the Initial Financed Student Loans by Loan Type as of the
Cut-Off Date
<TABLE>
<CAPTION>
Percent of
Loans by
Outstanding Outstanding
Number of Principal Principal
Loan Type Loans Balance Balance
<S> <C>
Stafford-Subsidized....................................... 46,961 $111,717,635 52.7%
Stafford-Unsubsidized..................................... 8,066 22,751,836 10.7
Consolidation............................................. 2,476 33,396,187 15.8
PLUS...................................................... 5,379 16,588,801 7.8
SLS....................................................... 3,208 8,460,793 4.0
HEAL...................................................... 1,596 19,041,544 9.0
------ ----------- -----
Total.................................................. 67,686 $211,956,796 100.0%
</TABLE>
Distribution of the Initial Financed Student Loans by Borrower Interest Rate as
of the Cut-Off Date
<TABLE>
<CAPTION>
Percent of
Loans by
Outstanding Outstanding
Number of Principal Principal
Interest Rate (1) Loans Balance Balance
- ----------------- ----- ------- -------
<S> <C>
Less than 7.50%........................................... 2,038 $ 19,631,267 9.3%
7.50% to 7.99%............................................ 628 1,618,987 0.8
8.00% to 8.49%............................................ 54,639 142,871,298 67.4
8.50% to 8.99%............................................ 4,431 16,541,180 7.8
9.00% to 9.49%............................................ 5,681 29,625,905 14.0
9.50% or greater.......................................... 269 1,668,159 0.8
------ ----------- -----
Total ............................................... 67,686 $211,956,796 100.0%
</TABLE>
- ----------------------
(1) Determined using the interest rates applicable to the Initial Financed
Student Loans as of the Cut-off Date. However, because certain of the
Initial Financed Student Loans bear interest at variable rates per
annum, there can be no assurance that the foregoing information will
remain applicable to the Initial Financed Student Loans at any time
after the Cut-off Date. See "Description of the FFEL Program" and
"Description of the HEAL Program".
-40-
<PAGE>
Distribution of the Initial Financed Student Loans by Range of Outstanding
Principal Balances as of the Cut-Off Date
<TABLE>
<CAPTION>
Percent of
Loans by
Outstanding Outstanding
Number of Principal Principal
Principal Balance Loans Balance Balance
- ----------------- ----- ------- -------
<S> <C>
Less than $1,000................................................. 13,450 $ 8,020,595 3.8%
$1,000-$1,999.................................................... 16,597 24,709,824 11.7
$2,000-$2,999.................................................... 15,581 38,623,245 18.2
$3,000-$3,999.................................................... 7,240 24,882,797 11.7
$4,000-$4,999.................................................... 4,520 20,233,725 9.5
$5,000-$5,999.................................................... 3,940 21,459,368 10.1
$6,000-$6,999.................................................... 1,493 9,588,778 4.5
$7,000-$7,999.................................................... 1,031 7,740,097 3.7
$8,000-$8,999.................................................... 853 7,186,037 3.4
$9,000-$9,999.................................................... 382 3,613,635 1.7
$10,000-$10,999.................................................. 362 3,752,770 1.8
$11,000-$11,999.................................................. 232 2,661,869 1.3
$12,000-$12,999.................................................. 239 2,970,403 1.4
$13,000-$13,999.................................................. 185 2,481,491 1.2
$14,000-$14,999.................................................. 175 2,537,779 1.2
$15,000 or greater............................................... 1,406 31,494,387 14.9
------ ----------- -----
Total....................................................... 67,686 $211,956,796 100.0%
</TABLE>
Distribution of the Initial Financed Student Loans by Borrower Payment Status
as of the Cut-Off Date
<TABLE>
<CAPTION>
Percent of
Loans by
Outstanding Outstanding
Number of Principal Principal
Borrower Payment Status Loans Balance Balance
- ----------------------- ----- ------- -------
<S> <C>
In School........................................................ 30 $ 416,575 0.2%
Grace............................................................ 89 1,169,096 0.6
Repayment........................................................ 48,374 139,272,660 65.7
Deferment........................................................ 8,820 36,357,947 17.2
Forbearance...................................................... 10,373 34,716.418 16.2
-------- ------------------------------------
Total................................. 67,686 $211,956,796 100.0%
</TABLE>
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<PAGE>
Distribution of Initial Financed Student Loans by Remaining Term
to Scheduled Maturity as of the Cut-Off Date
<TABLE>
<CAPTION>
Percent of Loans
Remaining Months Outstanding By Outstanding
Until Scheduled Number Principal Principal
Maturity Of Loans Balance Balance
- -------- -------- ----------- -------
<S> <C>
1 to 12 1,649 $ 553,818 0.3%
13 to 24 2,586 1,878,333 0.9
25 to 36 3,165 3,509,700 1.7
37 to 48 4,030 5,842,402 2.8
49 to 60 4,965 8,861,644 4.2
61 to 72 5,604 12,132,424 5.7
73 to 84 6,341 15,551,730 7.3
85 to 96 6,297 18,956,356 8.9
97 to 108 5,919 20,681,038 9.8
109 to 120 11,410 38,586,128 18.2
121 to 180 14,163 57,982,451 27.4
181 to 240 1,399 21,379,192 10.1
241 to 300 129 4,122,314 1.9
Over 300 29 1,919,266 0.9
-------- ------------------------------- -------
Total 67,686 $211,956,796 100.0%
</TABLE>
Geographic Distribution of the Initial Financed Student Loans as
of the Cut-Off Date
<TABLE>
<CAPTION>
<S> <C>
Percent of
Loans by
Outstanding Outstanding
Number of Principal Principal
Location (1) Loans Balance Balance
- ------------ ---------- ----------- ------------
Virginia................................................... 46,289 $128,630,873 60.7%
Pennsylvania............................................... 1,886 11,628,333 5.5
Maryland................................................... 2,309 7,495,272 3.5
New York................................................... 1,383 6,183,616 2.9
North Carolina............................................. 2,157 6,238,265 2.9
Others(2).................................................. 13,662 51,780,437 24.4
------ ----------- -----
TOTAL................................................. 67,686 $211,956,796 100.0%
</TABLE>
(1) Based on the current permanent billing addresses of the borrowers of
the Initial Financed Student Loans shown on the Servicer's records.
(2) Consist of locations that include 52 other states, U.S. territories,
possessions and commonwealths, foreign countries, overseas military
establishments, and unknown locations, none of the aggregate principal
balance of the Student Loans relating to which exceed 2.50% of the
Initial Pool Balance.
To the extent such states with a greater concentration of loans experience
adverse economic or other conditions to a greater degree than other areas of the
country, the ability of such borrowers to repay their Financed Student Loans may
be
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<PAGE>
impacted to a larger extent than if such borrowers were dispersed more
geographically. The Transferor is not aware of any material adverse conditions
that are unique to such states.
Distribution of the Initial Financed Student Loans by Insurance or
Guarantee Level as of the Cut-Off Date
<TABLE>
<CAPTION>
Percent of
Loans by
Outstanding Outstanding
Number of Principal Principal
Guarantee or Insurance Level Loans Balance Balance
<S> <C>
FFELP Loan Guaranteed 100%.................................. 36,922 $ 78,487,232 37.0%
FFELP Loan Guaranteed 98%................................... 29,168 114,428,020 54.0
HEAL Loan Insured 100%...................................... 1,596 19,041,544 9.0
------- ----------- -----
Total.................................................. 67,686 $211,956,796 100.0%
</TABLE>
Distribution of the Initial Financed Student Loans by Guarantor or by HEAL
as of the Cut-Off Date
<TABLE>
<CAPTION>
Percent of
Loans by
Outstanding Outstanding
Number of Principal Principal
Guarantors Loans Balance Balance
<S> <C>
Educational Credit Management Corporation................. 61,160 $154,254,693 72.8%
Pennsylvania Higher Education Assistance Agency........... 2,575 33,795,967 15.9
HEAL Loans................................................ 1,596 19,041,544 9.0
Other Guarantors.......................................... 2,355 4,864,592 2.3
------ ----------- -----
Total................................................ 67,686 $211,956,796 100.0%
</TABLE>
Distribution of the Initial Financed Student Loans by School Types
as of the Cut-Off Date
<TABLE>
<CAPTION>
Percent of Loans
Outstanding by Outstanding
Number of Principal Principal
School Type Loans Balance Balance
----------- ----- ------- -------
<S><C>
4 Year Public 42,898 $125,294,495 59.1%
4 Year Private 14,750 57,529,767 27.1
2 Year Public 3,868 8,352,655 3.9
2 Year Private 153 448,496 0.2
Proprietary/Vocational 4,855 10,969,189 5.2
Other/Unknown 1,162 9,362,194 4.4
------ ----------- -----
Total 67,686 $211,956,796 100.0%
</TABLE>
Incentive Programs
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<PAGE>
The Transferor currently makes available and may hereafter make available
certain incentive programs to borrowers, including the Crestar Bank Top
Performer Program (the "TP Program"). The TP Program generally applies to all
Stafford Loans, Unsubsidized Stafford Loans and PLUS Loans with a first
disbursement made by the Transferor on or after November 1, 1996 ("TP Loans").
Under the TP Program, if the borrower makes 36 consecutive monthly payments of a
TP Loan on time, the applicable interest rate on such TP Loan is reduced by
1.00% per annum for Stafford Loans and Unsubsidized Stafford Loans and 0.5% per
annum for PLUS Loans. Although less than 1.00% of the Initial Financed Student
Loans are TP Loans, additional TP Loans may be included in the Subsequent
Financed Student Loans.
Program Descriptions and Summaries
The description and summaries of the Higher Education Act, the FFEL
Program, the Guarantee Agreements, the HEAL Act, the HEAL Program, the HEAL
Insurance Contract, and the other statutes, regulations and documents referred
to in this Prospectus do not purport to be comprehensive, and are qualified in
their entirety by reference to each such statute, regulation or document. There
can be no assurance that future amendments or modifications will not materially
change any of the terms or provisions of the programs described in this
Prospectus or of the statutes and regulations implementing these programs. See
"Risk Factors -- Risk That Changes in Law Relating to the HEAL Program and the
FFEL Program Could Adversely Affect the Noteholders."
MATURITY AND PREPAYMENT CONSIDERATIONS
Maturity and Prepayment Assumptions
The rate of payment of principal of the Notes and the yield on the Notes
will be affected by (i) prepayments of the Financed Student Loans that may occur
as described below, (ii) the sale by the Trust of Financed Student Loans and
(iii) Parity Percentage Payments. All the Financed Student Loans are prepayable
in whole or in part by the borrowers at any time without penalty (including by
means of Consolidation Loans or HEAL Consolidation Loans as discussed below) and
may be prepaid as a result of a borrower default, death, disability or
bankruptcy and subsequent liquidation or collection of Guarantee Payments or
Insurance Payments with respect thereto. The rate of such prepayments cannot be
predicted and may be influenced by a variety of economic, social and other
factors, including those described below. In general, the rate of prepayments
may tend to increase to the extent that alternative financing becomes available
at prevailing interest rates which fall significantly below the interest rates
applicable to the Financed Student Loans. However, because many of the Financed
Student Loans bear interest at a rate that either actually or effectively is
floating, it is impossible to determine whether changes in prevailing interest
rates will be similar to or vary from changes in the interest rates on the
Financed Student Loans. To the extent borrowers of Financed Student Loans elect
to borrow Consolidation Loans or HEAL Consolidation Loans, such Financed Student
Loans will be prepaid. See "Description of the FFEL Program -- Consolidation
Loans" and "Description of the HEAL Program." In addition, the Transferor is
obligated to repurchase any Financed Student Loan pursuant to the Transfer and
Servicing Agreement as a result of a breach of any of the Transferor's
representations and warranties with respect to such Financed Student Loan and
the Master Servicer is obligated to purchase any Financed Student Loan pursuant
to the Transfer and Servicing Agreement as a result of a breach of any of the
Master Servicer's servicing obligations with respect to such Financed Student
Loan, in each case where such breach materially and adversely affects the
interests of the Noteholders in that Financed Student Loan and is not cured
within the applicable cure period (it being understood that any such breach that
has not resulted in the failure of a Guarantee Agency to make a Guarantee
Payment or the Department of HHS to make an Insurance Payment to the Eligible
Lender Trustee will not be considered to have a material adverse effect for this
purpose). See "Description of the Transfer and Servicing Agreements --
Conveyance of Financed Student Loans; Representations and Warranties" and "--
Master Servicer Covenants." See also "Description of the Transfer and Servicing
Agreements -- Termination" regarding the Transferor's option to purchase the
Financed Student Loans when the aggregate Pool Balance is less than or equal to
10% of the Initial Pool Balance and the auction by the Indenture Trustee of any
Financed Student Loans remaining in the Trust as of February 28, 2007 if the
Pool Balance is less than or equal to 10% of the Initial Pool Balance, and "--
Insolvency Event" regarding the sale of Financed Student Loans if a Transferor
Insolvency Event occurs.
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<PAGE>
Scheduled payments with respect to, and maturities of, the Financed Student
Loans may be extended, including pursuit to Grace Periods, Deferment Periods
and, under certain circumstances, Forbearance Periods. The rate of payment of
principal of the Notes and the yield on the Notes may also be affected by the
rate of defaults resulting in losses on Financed Student Loans, by the severity
of those losses and by the timing of those losses, which may affect the ability
of the Guarantors to make Guarantee Payments with respect thereto.
The rate of prepayment on the Financed Student Loans cannot be predicted,
and any reinvestment risks resulting from a faster or slower incidence of
prepayment of Financed Student Loans or a faster or slower incidence of sales by
the Trust will be borne entirely by the Noteholders. Such reinvestment risks may
include the risk that interest rates and the relevant spreads above particular
interest rate bases are lower at the time Noteholders receive payments from the
Trust than such interest rates and such spreads would otherwise have been had
such prepayments not been made or had such prepayments been made at a different
time.
Weighted Average Life of the Notes
The following information is given solely to illustrate the effect of
prepayments on the Financed Student Loans on the weighted average life of the
Notes under the assumptions stated below and is not a prediction of the
prepayment rate that might actually be experienced by the Financed Student Loans
held in the Trust.
Weighted average life refers to the average amount of time from the date of
issuance of a security until each dollar of principal of such security will be
repaid to the investor. The weighted average life of the Notes will be primarily
a function of the rate at which payments are made on the Financed Student Loans
held in the Trust. Payments on such Financed Student Loans may be in the form of
scheduled amortization of principal or prepayments (including, without
limitation, Guarantee Payments and Insurance Payments).
The Constant Prepayment Rate prepayment model ("CPR") represents an assumed
constant rate of prepayment of Financed Student Loans held in the Trust
outstanding as of the beginning of each quarter expressed as a per annum
percentage. There can be no assurance that such Financed Student Loans will
experience prepayments at a constant prepayment rate or otherwise in the manner
assumed by the prepayment model.
The weighted average lives in the following table were determined assuming
that (i) scheduled payments of principal on the Financed Student Loans are
received in a timely manner and prepayments are made at the percentages of the
prepayment model set forth in the table; (ii) the initial principal balance of
the Financed Student Loans is $211,956,796 and such Financed Student Loans have
the characteristics described under "The Financed Student Loan Pool;" (iii)
payments are made on the Notes on the 25th day of each month commencing February
25, 1998; (iv) the Financed Student Loans are auctioned on the April 2007
Distribution Date; and (v) the Notes are issued on December 18, 1997. No
representation is made that these assumptions will be correct, including the
assumption that the Financed Student Loans held in the Trust will not experience
delinquencies or unanticipated losses.
In making an investment decision with respect to the Notes, investors
should consider a variety of possible prepayment scenarios, including the
limited scenarios described in the table below.
Weighted Average Life of the Notes at the Respective CPRs Set Forth Below:
<TABLE>
<CAPTION>
Weighted Average Life (years)
0% CPR 3% CPR 5% CPR 7% CPR 9%CPR 15% CPR
------ ------ ------ ------ ----- -------
<S> <C>
Class A-1 Notes. . .
Class A-2 Notes . . .
Class B Notes . . .
</TABLE>
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<PAGE>
DESCRIPTION OF THE FFEL PROGRAM
General
The Higher Education Act sets forth provisions establishing the FFEL
Program, pursuant to which state agencies or private nonprofit corporations
administering student loan insurance programs (referred to as "guarantee
agencies") are reimbursed for losses sustained in the operation of their
programs, and holders of certain loans made under such programs are paid
subsidies for owning such loans.
The Higher Education Act currently authorizes certain student loans to be
covered under the FFEL Program if they are contracted for and paid to the
student prior to September 30, 2002, unless a student has received a loan under
the FFEL Program prior to such date, in which case that student may receive a
student loan covered by the FFEL Program until September 30, 2006. Congress has
extended similar authorization dates in prior versions of the Higher Education
Act; however, there can be no assurance that the current authorization dates
will again be extended or that the other provisions of the Higher Education Act
will be continued in their present form.
Various amendments to the Higher Education Act have revised the FFEL
Program from time to time. These amendments include, but are not limited to, the
Balanced Budget Act of 1997 (the "1997 Amendments"), the Higher Education
Technical Amendments Act of 1993 (the "1993 Technical Amendments"), the Omnibus
Budget Reconciliation Act of 1993 (the "1993 Amendments"), the Higher Education
Amendments of 1992 (the "1992 Amendments"), which reauthorized the FFEL Program,
the Omnibus Budget Reconciliation Act of 1990, the Omnibus Budget Reconciliation
Act of 1989 (the "1989 Amendments"), the Omnibus Budget Reconciliation Act of
1987, the Higher Education Technical Amendments Act of 1987 (the "1987
Amendments"), the Higher Education Amendments of 1986 (the "1986 Amendments"),
which reauthorized the FFEL Program, the Consolidated Omnibus Budget
Reconciliation Act of 1985, the Postsecondary Student Assistance Amendments of
1981 (the "1981 Amendments") and the Education Amendments of 1980 (the "1980
Amendments").
There can be no assurance that relevant federal laws, including the Higher
Education Act, will not be changed in a manner that may adversely impact the
receipt of funds by the Guarantee Agencies or by the Transferor or the Eligible
Lender Trustee with respect to Financed FFELP Loans. Proposals have been made by
Congress and the Administration which, if enacted into law, would amend the
Higher Education Act and make various changes to the FFEL Program, including
changes that would reduce various payments to Guarantee Agencies and restructure
guarantee agencies' operations and programs and revise terms of student loans
and payments to Lenders. There is no certainty that any of the proposals will be
enacted into law in their current form or at all, and the Transferor cannot
predict at this time how such legislation, if enacted, would affect the
Servicer's business or operations, or the Transferor.
This is only a summary of certain provisions of the Higher Education Act.
Reference is made to the text of the Higher Education Act for full and complete
statements of its provisions.
Loan Terms
General
Four types of loans are currently available under the FFEL Program:
Stafford Loans, Unsubsidized Stafford Loans, Plus Loans and Consolidation Loans.
These loan types vary as to eligibility requirements, interest rates, repayment
periods, loan limits and eligibility for interest subsidies and Special
Allowance Payments. Some of these loan types have had other names in the past.
References herein to the various loan types include, where appropriate,
predecessors to such loan types.
The primary loan under the FFEL Program is the Stafford Loan. Students who
are not eligible for Stafford Loans based on their economic circumstances may be
able to obtain Unsubsidized Stafford Loans. Parents of students may be able to
obtain Plus Loans. Consolidation Loans are available to borrowers with existing
loans made under the FFEL Program and certain other federal programs to
consolidate repayment of such existing loans. For periods of enrollment
beginning prior
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<PAGE>
to July 1, 1994, SLS Loans were available to students with costs of education
that were not met by other sources and that exceeded the Stafford or
Unsubsidized Stafford Loan limits.
Eligibility
General. A student is eligible for loans made under the FFEL Program only
if he or she: (i) has been accepted for enrollment or is enrolled in good
standing at an eligible institution of higher education (which term includes
certain vocational schools), (ii) is carrying or planning to carry at least
one-half the normal full-time workload for the course of study the student is
pursuing as determined by the institution (which, in the case of a loan to cover
the cost of a period of enrollment beginning on or after July 1, 1987, must
either lead to a recognized educational credential or be necessary for
enrollment in a course of study that leads to such a credential), (iii) has
agreed to notify promptly the holder of the loan concerning any change of
address, (iv) (if presently enrolled) is maintaining satisfactory progress in
the course of study he or she is pursuing, (v) does not owe a refund on, and is
not (except as specifically permitted under the Higher Education Act) in default
under, any loan or grant made under the Higher Education Act, (vi) has filed
with the eligible institution a statement of educational purpose, (vii) meets
certain citizenship requirements, and (viii) (except in the case of a graduate
or professional student) has received a preliminary determination of eligibility
or ineligibility for a Pell Grant.
Stafford Loans. Stafford Loans generally are made only to student borrowers
who meet certain needs tests. The educational institution must provide the
lender with a statement evidencing a determination of need for a loan, and the
amount of such need, calculated by subtracting from the estimated cost of
attendance the sum of the expected family contribution with respect to the
student plus the estimated financial assistance available to such student. The
amounts of the expected family contribution, estimated available financial
assistance, and estimated costs of attendance are to be computed in accordance
with standards set forth in the Higher Education Act.
Unsubsidized Stafford Loans. A student borrower meeting the requirements
set forth under "General" above is eligible for an Unsubsidized Stafford Loan
without regard to need. Unsubsidized Stafford Loans were not available before
October 1, 1992.
Plus Loans. Plus Loans are made only to borrowers who are parents (and,
under certain circumstances, spouses of remarried parents) of dependent
undergraduate students. For Plus Loans made on or after July 1, 1993, the parent
borrower must not have an adverse credit history (as determined pursuant to
criteria established by the Department of Education). Prior to the 1986
Amendments, the Higher Education Act did not distinguish between Plus Loans and
SLS Loans. Student borrowers were eligible for Plus Loans; however, parents of
graduate and professional students were ineligible.
SLS Loans. Eligible borrowers for SLS Loans were limited to (a) graduate or
professional students, (b) independent undergraduate students, and (c) under
certain circumstances, dependent undergraduate students, if such students'
parents were unable to obtain a Plus Loan and were also unable to provide such
students' expected family contribution. Prior to the 1987 Amendments, a
dependent undergraduate student was not eligible under any circumstances. Except
as described in clause (c), eligibility was determined without regard to need.
Consolidation Loans. To be eligible for a Consolidation Loan a borrower
must (a) have outstanding indebtedness on student loans made under the FFEL
Program and/or certain other federal student loan programs, and (b) be in
repayment status or in a Grace Period, or be a defaulted borrower who has made
arrangements to repay the defaulted loan(s) satisfactory to the holder of the
defaulted loan(s). A married couple who agree to be jointly liable on a
Consolidation Loan for which the application is received on or after January 1,
1993 may be treated as an individual for purposes of obtaining a Consolidation
Loan. For Consolidation Loans disbursed prior to July 1, 1994 the Borrower was
required to have outstanding student loan indebtedness of at least $7,500. Prior
to the adoption of the 1993 Technical Amendments, Plus Loans could not be
included in the Consolidation Loan. For Consolidation Loans for which the
applications were received prior to January 1, 1993, the minimum student loan
indebtedness was $5,000 and the borrower could not be delinquent more than 90
days in the payment of such indebtedness.
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Interest Rates
The Higher Education Act establishes maximum interest rates for each of the
various types of loans. These rates vary not only among loan types, but also
within loan types depending upon when the loan was made or when the borrower
first obtained a loan under the FFEL Program. The Higher Education Act allows
lesser rates of interest to be charged. Many lenders, including the Transferor,
have offered repayment incentives or other programs that involve reduced
interest rates on certain loans made under the FFEL Program.
Stafford Loans. For a Stafford Loan made prior to July 1, 1994, the
applicable interest rate for a borrower who, on the date the promissory note was
signed, did not have an outstanding balance on a previous loan which was made,
insured or guaranteed under the FFEL Program (a "New Borrower"):
(a) is 7% per annum for a loan covering a period of instruction
beginning before January 1, 1981;
(b) is 9% per annum for a loan covering a period of instruction
beginning on or after January 1, 1981, but before September
13, 1983;
(c) is 8% per annum for a loan covering a period of instruction
beginning on or after September 13, 1983, but before July 1,
1988;
(d) for a loan made prior to October 1, 1992, covering a period of
instruction beginning on or after July 1, 1988, is 8% per
annum for the period from the disbursement of the loan to the
date which is four years after the loan enters repayment, and
thereafter shall be adjusted annually, and for any 12-month
period commencing on a July 1 shall be equal to the bond
equivalent rate of 91- day U.S. Treasury bills auctioned at
the final auction prior to the preceding June 1, plus 3.25%
per annum (but not to exceed 10% per annum); or
(e) for a loan made on or after October 1, 1992 shall be adjusted
annually, and for any 12-month period commencing on a July 1
shall be equal to the bond equivalent rate of 91-day U.S.
Treasury bills auctioned at the final auction prior to the
preceding June 1, plus 3.1% per annum (but not to exceed 9%
per annum).
For a Stafford Loan made prior to July 1, 1994, the applicable interest rate for
a borrower who, on the date the promissory note evidencing the loan was signed,
had an outstanding balance on a previous loan made, insured or guaranteed under
the FFEL Program (a "Repeat Borrower"):
(f) for a loan made prior to July 23, 1992 is the applicable
interest rate on the previous loan or, if such previous loan
is not a Stafford Loan, 8% per annum; or
(g) for a loan made on or after July 23, 1992 shall be adjusted
annually, and for any twelve month period commencing on a July
1 shall be equal to the bond equivalent rate of 91-day U.S.
Treasury bills auctioned at the final auction prior to the
preceding June 1, plus 3.1% per annum but not to exceed:
(i) 7% per annum in the case of a Stafford Loan made to a
borrower who has a loan described in clause (a)
above;
(ii) 8% per annum in the case of (A) a Stafford Loan made
to a borrower who has a loan described in clause (c)
above, (B) a Stafford Loan which has not been in
repayment for four years and which was made to a
borrower who has a loan described in clause (d) above
or (C) a Stafford Loan for which the first
disbursement was made prior to December 20, 1993 to a
borrower whose previous loans do not include a
Stafford Loan or an Unsubsidized Stafford Loan;
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(iii) 9% per annum in the case of (A) a Stafford Loan made
to a borrower who has a loan described in clauses (b)
or (e) above or (B) a Stafford Loan for which the
first disbursement was made on or after December 20,
1993 to a borrower whose previous loans do not
include a Stafford Loan or an Unsubsidized Stafford
Loan; and
(iv) 10% per annum in the case of a Stafford Loan which
has been in repayment for four years or more and
which was made to a borrower who has a loan described
in clause (d) above.
The interest rate on all Stafford Loans made on or after July 1, 1994,
regardless of whether the borrower is a New Borrower or a Repeat Borrower, is
the rate described in clause (g) above, except that such rate shall not exceed
8.25% per annum. For any Stafford Loan made on or after July 1, 1995, the
interest rate is further reduced prior to the time the loan enters repayment and
during any Deferment Periods (as such term is defined below under "Repayment").
During such periods, the formula described in clause (g) above is applied,
except that 2.5% is substituted for 3.1%, and the rate shall not exceed 8.25%
per annum.
For loans made on or after July 1, 1998, the applicable rate will
continue to be adjusted annually, but for any 12- month period commencing on a
July 1 will be equal to the bond equivalent rate of securities with a comparable
maturity (as established by the Secretary of Education), plus 1% per annum, but
not to exceed 8.25% per annum. There can be no assurance that the interest rate
provisions for such loans will not be further amended, either before or after
the rate described herein becomes effective.
Unsubsidized Stafford Loans. Unsubsidized Stafford Loans are subject
to the same interest rate provisions as Stafford Loans.
Plus Loans. The applicable interest rate on a Plus Loan:
(a) made on or after January 1, 1981, but before October 1, 1981
is 9% per annum;
(b) made on or after October 1, 1981, but before November 1, 1982
is 14% per annum;
(c) made on or after November 1, 1982, but before July 1, 1987 is
12% per annum;
(d) made on or after July 1, 1987 and before October 1, 1992 shall
be adjusted annually, and for any 12-month period beginning on
July 1 shall be equal to the bond equivalent rate of 52-week
U.S. Treasury bills auctioned at the final auction prior to
the preceding June 1, plus 3.25% per annum (but not to exceed
12% per annum); or
(e) made on or after October 1, 1992 shall be adjusted annually,
and for any 12-month period beginning on July 1 shall be equal
to the bond equivalent rate of 52-week U.S. Treasury bills
auctioned at the final auction prior to the preceding June 1,
plus 3.1% per annum (but not to exceed 10% per annum).
The applicable interest rate for Plus Loans made on or after July 1,
1994 is the same as that described in clause (e) above, except that such rate
shall not exceed 9% per annum. For Plus Loans made on or after July 1, 1998, the
applicable rate will continue to be adjusted annually, but for any 12-month
period commencing on a July 1 will be equal to the bond equivalent rate of
securities with a comparable maturity (as established by the Secretary of
Education), plus 2.1% per annum, but not to exceed 9% per annum.
If requested by the borrower, an eligible lender may consolidate SLS or
Plus Loans of the same borrower held by the lender under a single repayment
schedule. The repayment period for each included loan shall be based on the
commencement of repayment of the most recent loan. The consolidated loan shall
bear interest at a rate equal to the weighted average of the rates of the
included loans. Such a consolidation shall not be treated as the making of a new
loan. In addition,
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at the request of the borrower, a lender may refinance an existing fixed rate
SLS or Plus Loan (including an SLS or Plus Loan held by a different lender who
has refused so to refinance such loan) at a variable interest rate. In such a
case, proceeds of the new loan are used to discharge the original loan.
SLS Loans. The applicable interest rates on SLS Loans made prior to
October 1, 1992 are identical to the applicable interest rates on Plus Loans
made at the same time. For SLS Loans made on or after October 1, 1992, the
applicable interest rate is the same as the applicable interest rate on Plus
Loans, except that the ceiling is 11% per annum instead of 10% per annum.
Consolidation Loans. A Consolidation Loan made prior to July 1, 1994
bears interest at a rate equal to the weighted average of the interest rates on
the loans retired, rounded to the nearest whole percent, but not less than 9%
per annum. Except as described in the next sentence, a Consolidation Loan made
on or after July 1, 1994 bears interest at a rate equal to the weighted average
of the interest rates on the loans retired, rounded upward to the nearest whole
percent, but with no minimum rate. For a Consolidation Loan for which the
application is received by an eligible lender on or after November 13, 1997 and
before October 1, 1998, the interest rate shall be adjusted annually, and for
any twelve month period commencing on a July 1 shall be equal to the bond
equivalent rate of 91-day U.S. Treasury bills auctioned at the final auction
prior to the preceding June 1, plus 3.1% per annum, but not to exceed 8.25% per
annum. For a discussion of required payments that reduce the return on
Consolidation Loans, see "Fees -- Rebate Fees on Consolidation Loans" below.
Loan Limits
Each type of loan (other than Consolidation Loans, which are limited
only by the amount of eligible loans to be consolidated) is subject to limits as
to the maximum principal amount, both with respect to a given year and in the
aggregate. All of the loans are limited to the difference between the cost of
attendance and the other aid available to the student. Stafford Loans are also
subject to limits based upon the needs analysis as described above under
"Eligibility -- Stafford Loans" above.
Additional limits are described below.
Stafford and Unsubsidized Stafford Loans. Except as described in the
next paragraph, Stafford and Unsubsidized Stafford Loans are generally treated
as one loan type for loan limit purposes. A student who has not successfully
completed the first year of a program of undergraduate education may borrow up
to $2,625 in an academic year. A student who has successfully completed such
first year, but who has not successfully completed the second year may borrow up
to $3,500 per academic year. An undergraduate student who has successfully
completed the first and second year, but who has not successfully completed the
remainder of a program of undergraduate education, may borrow up to $5,500 per
academic year. For students enrolled in programs of less than an academic year
in length, the limits are generally reduced in proportion to the amount by which
such programs are less than one year in length. A graduate or professional
student may borrow up to $8,500 in an academic year. The maximum aggregate
amount of Stafford and Unsubsidized Stafford Loans (including that portion of a
Consolidation Loan used to repay such loans) which an undergraduate student may
have outstanding is $23,000. The maximum aggregate amount for a graduate and
professional student, including loans for undergraduate education, is $65,500.
The Secretary is authorized to increase the limits applicable to graduate and
professional students who are pursuing programs which the Secretary determines
to be exceptionally expensive.
Under the 1993 Amendments, at the same time that SLS Loans were
eliminated, the loan limits for Unsubsidized Stafford Loans to independent
students, or dependent students whose parents cannot borrow a Plus Loan, were
increased by amounts equal to the prior SLS Loan limits (as described below
under "SLS Loans").
Prior to the enactment of the 1992 Amendments, an undergraduate student
who had not successfully completed the first and second year of a program of
undergraduate education could borrow Stafford Loans in amounts up to $2,625 in
an academic year. An undergraduate student who had successfully completed such
first and second year, but who had not successfully completed the remainder of a
program of undergraduate education could borrow up to $4,000 per academic year.
The maximum for graduate and professional students was $7,500 per academic year.
The maximum aggregate amount of Stafford Loans which a borrower could have
outstanding (including that portion of a Consolidation Loan used to repay such
loans) was $17,250. The maximum aggregate amount for a graduate or professional
student, including loans for
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undergraduate education, was $54,750. Prior to the enactment of the 1986
Amendments, the annual limits were generally lower.
Plus Loans. For Plus Loans made on or after July 1, 1993, the amounts
of Plus Loans are limited only by the student's unmet need. Prior to that time
Plus Loans were subject to limits similar to those to which SLS Loans were then
subject (see "SLS Loans" below), applied with respect to each student on behalf
of whom the parent borrowed.
SLS Loans. A student who had not successfully completed the first and
second year of a program of undergraduate education could borrow an SLS Loan in
an amount of up to $4,000. A student who had successfully completed such first
and second year, but who had not successfully completed the remainder of a
program of undergraduate education could borrow up to $5,000 per year. Graduate
and professional students could borrow up to $10,000 per year. SLS Loans were
subject to an aggregate maximum of $23,000 ($73,000 for graduate and
professional students). Prior to the 1992 Amendments, SLS Loans were available
in amounts of $4,000 per academic year, up to a $20,000 aggregate maximum. Prior
to the 1986 Amendments, a graduate or professional student could borrow $3,000
of SLS Loans per academic year, up to a $15,000 maximum, and an independent
undergraduate student could borrow $2,500 of SLS Loans per academic year minus
the amount of all other FFEL Program loans to such student for such academic
year, up to a maximum amount of all FFEL Program loans to that student of
$12,500. The 1989 Amendments limited the amount of SLS Loans for students
enrolled in programs of less than an academic year in length (similar to the
limits described above under "Stafford Loans"), and such limits were continued
by the 1992 Amendments.
Repayment
Loans made under the FFEL Program (other than Consolidation Loans) must
provide for repayment of principal in periodic installments over a period of not
less than five nor more than ten years. A Consolidation Loan must be repaid
during a period agreed to by the borrower and lender, subject to maximum
repayment periods which vary depending upon the principal amount of the
borrower's outstanding student loans (but no longer than 30 years). For
Consolidation Loans for which the application was received prior to January 1,
1993, the repayment period could not exceed 25 years. The repayment period
commences (a) not more than twelve months after the borrower ceases to pursue at
least a half-time course of study with respect to Stafford Loans for which the
applicable rate of interest is 7% per annum, (b) not more than six months after
the borrower ceases to pursue at least a half-time course of study with respect
to other Stafford Loans and Unsubsidized Stafford Loans (the six month or twelve
month periods are the "Grace Periods") and (c) on the date of final disbursement
of the loan in the case of SLS, Plus and Consolidation Loans, except that the
borrower of an SLS Loan who also has a Stafford or Unsubsidized Stafford Loan
may defer repayment of the SLS Loan to coincide with the commencement of
repayment of the Stafford or Unsubsidized Stafford Loan. During periods in which
repayment of principal is required, payments of principal and interest must in
general be made at a rate of not less than the greater of $600 per year or the
interest that accrues during the year, except that a borrower and lender may
agree at any time before or during the repayment period that repayment may be at
a lesser rate. A borrower may agree, with concurrence of the lender, to repay
the loan in less than five years with the right subsequently to extend his
minimum repayment period to five years. Borrowers are entitled to accelerate,
without penalty, the repayment of all or any part of the loan.
In addition, the 1992 Amendments required lenders of Consolidation
Loans to establish graduated or incomesensitive repayment schedules and required
lenders of Stafford and SLS Loans to offer borrowers the option of repaying in
accordance with graduated or income-sensitive repayment schedules. The
Transferor may implement graduated repayment schedules and income-sensitive
repayment schedules. Use of income-sensitive repayment schedules may extend the
ten-year maximum term for up to five years. In addition, if the repayment
schedule on a loan that has been converted to a variable interest rate does not
provide for adjustments to the amount of the monthly installment payments, the
ten-year maximum term may be extended for up to three years.
No principal repayments need be made during certain periods of
deferment prescribed by the Higher Education Act ("Deferment Periods"). For
loans to a borrower who first obtained a loan which was disbursed before July 1,
1993, deferments are available (i) during a period not exceeding three years
while the borrower is a member of the Armed Forces, an officer in the
Commissioned Corps of the Public Health Service or, with respect to a borrower
who first obtained a student loan disbursed on or after July 1, 1987, or a
student loan to cover the cost of instruction for a period of enrollment
beginning
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on or after July 1, 1987, an active duty member of the National Oceanic and
Atmospheric Administration Corps, (ii) during a period not in excess of three
years while the borrower is a volunteer under the Peace Corps Act, (iii) during
a period not in excess of three years while the borrower is a full-time
volunteer under the Domestic Volunteer Act of 1973, (iv) during a period not
exceeding three years while the borrower is in service, comparable to the
service referred to in clauses (ii) and (iii), as a full-time volunteer for an
organization which is exempt from taxation under Section 501(c)(3) of the Code,
(v) during a period not exceeding two years while the borrower is serving an
internship, the successful completion of which is required to receive
professional recognition required to begin professional practice or service, or
a qualified internship or residency program, (vi) during a period not exceeding
three years while the borrower is temporarily totally disabled, as established
by sworn affidavit of a qualified physician, or while the borrower is unable to
secure employment by reason of the care required by a dependent who is so
disabled, (vii) during a period not to exceed twenty-four months while the
borrower is seeking and unable to find full-time employment, (viii) during any
period that the borrower is pursuing a full-time course of study at an eligible
institution (or, with respect to a borrower who first obtained a student loan
disbursed on or after July 1, 1987, or a student loan to cover the cost of
instruction for a period of enrollment beginning on or after July 1, 1987, is
pursuing at least a half-time course of study for which the borrower has
obtained a loan under the FFEL Program), or is pursuing a course of study
pursuant to a graduate fellowship program or a rehabilitation training program
for disabled individuals approved by the Secretary of Education, (ix) during a
period, not in excess of 6 months, while the borrower is on parental leave, and
(x) only with respect to a borrower who first obtained a student loan disbursed
on or after July 1, 1987, or a student loan to cover the cost of instruction for
a period of enrollment beginning on or after July 1, 1987, (A) during a period
not in excess of three years while the borrower is a full-time teacher in a
public or nonprofit private elementary or secondary school in a "teacher
shortage area" (as prescribed by the Secretary of Education), and (B) during a
period not in excess of 12 months for mothers, with preschool age children, who
are entering or re-entering the work force and who are compensated at a rate not
exceeding $1 per hour in excess of the federal minimum wage. For loans to a
borrower who first obtains a loan on or after July 1, 1993, deferments are
available (a) during any period that the borrower is pursuing at least a
half-time course of study at an eligible institution or a course of study
pursuant to a graduate fellowship program or rehabilitation training program
approved by the Secretary, (b) during a period not exceeding three years while
the borrower is seeking and unable to find full-time employment, and (c) during
a period not in excess of three years for any reason which the lender
determines, in accordance with regulations under the Higher Education Act, has
caused or will cause the borrower economic hardship. Economic hardship includes
working full time and earning an amount not in excess of the greater of the
minimum wage or the poverty line for a family of two. Additional categories of
economic hardship are based on the relationship between a borrower's educational
debt burden and his or her income. Prior to the 1992 Amendments, only the
Deferment Periods described above in clauses (vi) and (vii) (with respect to the
parent borrower) and the Deferment Period described in clause (viii) (with
respect to the parent borrower or a student on whose behalf the parent borrowed)
were available to Plus Loan borrowers, and only the Deferment Periods described
above in clauses (vi), (vii) and (viii) were available to Consolidation Loan
borrowers. Prior to the 1986 Amendments, Plus Loan borrowers were not entitled
to Deferment Periods. Deferment Periods extend the ten year maximum term.
The Higher Education Act also provides for periods of forbearance
during which the borrower, in case of temporary financial hardship, may defer
any payments (a "Forbearance Period"). A borrower is entitled to forbearance for
a period not to exceed three years while the borrower's debt burden under Title
IV of the Higher Education Act (which includes the FFEL Program) equals or
exceeds 20% of the borrower's gross income, and also is entitled to forbearance
while he or she is serving in a qualifying medical or dental internship program
or in a "national service position" under the National and Community Service
Trust Act of 1993. In addition, mandatory administrative forbearances are
provided when exceptional circumstances such as a local or national emergency or
military mobilization exist; or when the geographical area in which the borrower
or endorser resides has been designated a disaster area by the President of the
United States or Mexico, the Prime Minister of Canada, or by the governor of a
state. In other circumstances, forbearance is at the lender's option. Such
forbearance also extends the ten year maximum term.
As described under "Contracts with Guarantee Agencies -- Federal
Interest Subsidy Payments" below, the Secretary of Education makes interest
payments on behalf of the borrower of certain eligible loans while the borrower
is in school and during Grace and Deferment Periods. Interest that accrues
during periods of forbearance and, if the loan is not eligible for Interest
Subsidy Payments, while the borrower is in school and during the Grace and
Deferment Periods, may be paid monthly or quarterly or capitalized (added to the
principal balance) not more frequently than quarterly.
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Disbursement
Loans made under the FFEL Program (except Consolidation Loans)
generally must be disbursed in two or more installments, none of which may
exceed 50% of the total principal amount of the loan.
Fees
Guarantee Fee. A Guarantee Agency is authorized to charge a premium, or
guarantee fee, of up to 1% of the principal amount of the loan, which must be
deducted proportionately from each installment payment of the proceeds of the
loan to the borrower. Guarantee fees may not currently be charged to borrowers
of Consolidation Loans. However, lenders may be charged an insurance fee to
cover the costs of increased or extended liability with respect to Consolidation
Loans. For loans made prior to July 1, 1994, the maximum guarantee fee was 3% of
the principal amount of the loan, but no such guarantee fee was authorized to be
charged with respect to Unsubsidized Stafford Loans.
Origination Fee. An eligible lender is authorized to charge the
borrower of a Stafford or Plus Loan an origination fee in an amount not to
exceed 3% of the principal amount of the loan, and is required to charge the
borrower of an Unsubsidized Stafford Loan an origination fee in the amount of 3%
of the principal amount of the loan. These fees must be deducted proportionately
from each installment payment of the loan proceeds prior to payment to the
borrower and are not retained by the eligible lender, but must be passed on to
the Secretary of Education. For loans made prior to July 1, 1994, the maximum
authorized fee for Stafford, Plus and SLS Loans was 5%, and the required fee for
Unsubsidized Stafford Loans was 6.5%, of the principal amount of the loan.
Lender Origination Fee. The lender of any loan under the FFEL Program
made on or after October 1, 1993 is required to pay to the Secretary of
Education a fee equal to 0.5% of the principal amount of such loan.
Rebate Fee on Consolidation Loans. The holder of any Consolidation Loan
made on or after October 1, 1993 is required to pay to the Secretary of
Education a monthly fee equal to .0875% (1.05% per annum) of the principal
amount of, and accrued interest on, such Consolidation Loan.
Loan Guarantees
Under the FFEL Program, Guarantee Agencies are required to guarantee
the payment of not less than 100% of the principal amount of loans made prior to
October 1, 1993 and covered by their respective guarantee programs. For a
description of the requirements for loans to be covered by such guarantees, see
"Description of the Guarantee Agencies". The 1993 Amendments reduced the minimum
percentage of the principal amount of loans which a Guarantee Agency must pay to
98%, effective with respect to loans made on or after October 1, 1993. The
Department of Education has taken the position that a Guarantee Agency may not
pay more than 98% of the principal amount of and accrued interest on such a
loan. Under certain circumstances, guarantees may be assumed by the Secretary of
Education or another Guarantee Agency. See "Contracts with Guarantee Agencies"
below.
Contracts with Guarantee Agencies
Under the FFEL Program, the Secretary of Education is authorized to
enter into guaranty and interest subsidy agreements with Guarantee Agencies. The
FFEL Program provides for reimbursements to Guarantee Agencies for default
claims paid by Guarantee Agencies, support payments to Guarantee Agencies for
administrative and other expenses, advances for a Guarantee Agency's reserve
funds, and Interest Subsidy Payments and Special Allowance Payments to the
holders of qualifying student loans made pursuant to the FFEL Program.
The 1992 Amendments gave the Secretary of Education certain oversight
powers over Guarantee Agencies. Guarantee Agencies are required to maintain
their reserves at certain levels based on the amount of outstanding loans that
they have guaranteed. If a Guarantee Agency falls below the required level in
two consecutive years, or its claims rate exceeds 9% in any year, or if the
Secretary determines that the agency's administrative or financial condition
jeopardizes its
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ability to meet its obligations, the Secretary can require the Guarantee Agency
to submit and implement a plan by which it will correct such problem(s). If a
Guarantee Agency fails to timely submit an acceptable plan or fails to improve
its condition, or if the Secretary determines that the Guarantee Agency is in
danger of financial collapse, the Secretary may terminate the Guarantee Agency's
reimbursement contract. The 1993 Amendments broadened the circumstances under
which the Secretary may terminate such reimbursement contracts, to include a
determination that such action is necessary to protect the federal fiscal
interest or to ensure continued availability of student loans or a smooth
transition to direct lending (See "Direct Loans" below).
The 1992 Amendments also added provisions authorizing the Secretary of
Education to assume the guarantee obligations of a Guarantee Agency. The Higher
Education Act now provides that, if the Secretary terminates a Guarantee
Agency's agreements under the FFEL Program, the Secretary shall assume
responsibility for all functions of the Guarantee Agency under its program. To
that end, the Secretary is authorized to, among other options, transfer the
guarantees to another Guarantee Agency or assume the guarantees. It also
provides that in the event the Secretary has determined that a Guarantee Agency
is unable to meet its guarantee obligations, holders of loans guaranteed by such
Guarantee Agency may submit claims directly to the Secretary for payment, unless
the Secretary has provided for the assumption of such guarantees by another
Guarantee Agency.
Federal Reimbursement
A Guarantee Agency's right to receive federal reimbursements for
various guarantee claims paid by such Guarantee Agency is governed by the Higher
Education Act and various contracts entered into between Guarantee Agencies and
the Secretary of Education. See "Description of the Guarantee Agencies --
Federal Agreements". Under the Higher Education Act and the Federal
Reimbursement Contracts, the Secretary of Education currently agrees to
reimburse a Guarantee Agency for the amounts expended by the Guarantee Agency in
the discharge of its guarantee obligation (i.e., the unpaid principal balance of
and accrued interest on loans guaranteed by the Guarantee Agency, which loans
are referred to herein as "guaranteed loans") as a result of the default of the
borrower. With respect to loans made prior to October 1, 1993, the Secretary
currently agrees to reimburse the Guarantee Agency for up to 100% of the amounts
so expended. The 1993 Amendments provide for reimbursement of a maximum of 98%
of the amount expended with respect to guaranteed loans made on or after October
1, 1993. Depending on the claims rate experience of a Guarantee Agency, such
100% (or 98%) reimbursement may be reduced as discussed in the formula described
below. The Secretary of Education also agrees to repay 100% of the unpaid
principal plus applicable accrued interest expended by a Guarantee Agency in
discharging its guarantee obligation as a result of the bankruptcy, death, or
total and permanent disability of a borrower (or in the case of a Plus Loan, the
death of the student on behalf of whom the loan was borrowed), or in certain
circumstances, as a result of school closures, which reimbursements are not to
be included in the calculations of the Guarantee Agency's Claims Rate experience
for the purpose of federal reimbursement under the Federal Reimbursement
Contracts.
The formula for computing the percentage of federal reimbursement under
the Federal Reimbursement Contracts is not accumulated over a period of years
but is measured by the amount of federal reimbursement payments in any one
federal fiscal year as a percentage of the original principal amount of loans
under the FFEL Program guaranteed by the Guarantee Agency and in repayment at
the end of the preceding fiscal year. Under the formula, federal reimbursement
payments to a Guarantee Agency in any one fiscal year not exceeding 5% of the
original principal amount of loans in repayment at the end of the preceding
fiscal year are to be paid by the Secretary of Education at 100% (or 98% for
loans made on or after October 1, 1993). Beginning at any time during any fiscal
year that federal reimbursement payments exceed 5%, and until such time as they
may exceed 9%, of the original principal amount of loans in repayment at the end
of the preceding fiscal year, then reimbursement payments on claims submitted
during that period are to be paid at 90% (or 88% for loans made on or after
October 1, 1993). Beginning at any time during any fiscal year that federal
reimbursement payments exceed 9% of the original principal amount of loans in
repayment at the end of the preceding fiscal year, then such payments for the
balance of that fiscal year will be paid at 80% (or 78% for loans made on or
after October 1, 1993). The original principal amount of loans in repayment for
purposes of computing reimbursement payments to a Guarantee Agency means the
original principal amount of all loans guaranteed by such Guarantee Agency less:
(1) guarantee payments on such loans, (2) the original principal amount of such
loans that have been fully repaid, and (3) the original principal amount of such
loans for which the first principal installment payment has not become due or
such first installment need not be paid because of a Deferment Period.
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Under present practice, after the Secretary of Education reimburses a
Guarantee Agency for a default claim paid on guaranteed loan, the Guarantee
Agency continues to seek repayment from the borrower. The Guarantee Agency
returns to the Secretary of Education payments that it receives from a borrower
after deducting and retaining (i) a percentage amount equal to the complement of
the reimbursement percentage in effect at the time the loan was reimbursed, and
(ii) an amount equal to 27% (or 18 1/2% in the case of a payment from the
proceeds of a Consolidation Loan) of such payments for certain administrative
costs. The Secretary of Education may, however, require the assignment to the
Secretary of defaulted guaranteed loans, in which event no further collections
activity need be undertaken by the Guarantee Agency, and no amount of any
recoveries shall be paid to the Guarantee Agency. Prior to the 1993 Amendments,
the percentage of collections which Guarantee Agencies could retain (as
described in clause (ii) above) was 30%.
A Guarantee Agency may enter into an addendum to its Interest Subsidy
Agreement (as hereinafter defined), which addendum provides for the Guarantee
Agency to refer to the Secretary of Education certain defaulted guaranteed
loans. Such loans are then reported to the Internal Revenue Service to "offset"
any tax refunds which may be due any defaulted borrower. To the extent that the
Guarantee Agency has originally received less than 100% reimbursement from the
Secretary of Education with respect to such a referred loan, the Guarantee
Agency will not recover any amounts subsequently collected by the federal
government which are attributable to that portion of the defaulted loan for
which the Guarantee Agency has not been reimbursed.
Rehabilitation of Defaulted Loans
Under Section 428F of the Higher Education Act, the Secretary of
Education is authorized to enter into an agreement with a Guarantee Agency
pursuant to which the Guarantee Agency shall sell defaulted loans that are
eligible for rehabilitation to an eligible lender. The Guarantee Agency shall
repay the Secretary of Education an amount equal to 81.5% of the then current
principal balance of such loan, multiplied by the reimbursement percentage in
effect at the time the loan was reimbursed. The amount of such repayment shall
be deducted from the amount of federal reimbursement payments for the fiscal
year in which such repayment occurs, for purposes of determining the
reimbursement rate for that fiscal year.
For a loan to be eligible for rehabilitation, the Guarantee Agency must
have received consecutive payments for 12 months of amounts owed on such loan.
Upon rehabilitation, a loan is eligible for all the benefits under the Higher
Education Act for which it would have been eligible had no default occurred
(except that a borrower's loan may only be rehabilitated once).
Eligibility for Federal Reimbursement
To be eligible for federal reimbursement payments, guaranteed loans
must be made by an eligible lender under the applicable Guarantee Agency's
Guarantee Program, which must meet requirements prescribed by the rules and
regulations promulgated under the Higher Education Act, including the borrower
eligibility, loan amount, disbursement, interest rate, repayment period and
guarantee fee provisions described herein and the other requirements set forth
in Section 428(b) of the Higher Education Act.
Under the Higher Education Act, a guaranteed loan must be delinquent
for 180 days if it is repayable in monthly installments or 240 days if it is
payable in less frequent installments before a lender may obtain payment on a
guarantee from the Guarantee Agency. The Guarantee Agency must pay the lender
for the defaulted loan prior to submitting a claim to the Secretary of Education
for reimbursement. The Guarantee Agency must submit a reimbursement claim to the
Secretary of Education within 45 days after it has paid the lender's default
claim. As a prerequisite to entitlement to payment on the guarantee by the
Guarantee Agency, and in turn payment of reimbursement by the Secretary of
Education, the lender must have exercised reasonable care and diligence in
making, servicing and collecting the Guaranteed Loan.
Federal Interest Subsidy Payments
"Interest Subsidy Payments" are interest payments paid with respect to
an eligible loan during the period prior to the time that the loan enters
repayment and during Grace and Deferment Periods. The Secretary of Education and
the Guarantee Agencies entered into the Interest Subsidy Agreements as described
in "Description of the Guarantee Agencies --
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Federal Agreements", whereby the Secretary of Education agrees to pay Interest
Subsidy Payments to the holders of eligible guaranteed loans for the benefit of
students meeting certain requirements, subject to the holders' compliance with
all requirements of the Higher Education Act. Only Stafford Loans, and
Consolidation Loans for which the application was received on or after January
1, 1993, are eligible for Interest Subsidy Payments. Consolidation Loans made
after August 10, 1993 are eligible for Interest Subsidy Payments only if all
loans consolidated thereby are Stafford Loans, except that Consolidation Loans
for which the application is received by an eligible lender on or after November
13, 1997 and before October 1, 1998, are eligible for Interest Subsidy Payments
on that portion of the Consolidation Loan that repays Stafford Loans or similar
subsidized loans made under the direct loan program. In addition, to be eligible
for Interest Subsidy Payments, guaranteed loans must be made by an eligible
lender under the applicable Guarantee Agency's Guarantee Program, and must meet
requirements prescribed by the rules and regulations promulgated under the
Higher Education Act, including the borrower eligibility, loan amount,
disbursement, interest rate, repayment period and guarantee fee provisions
described herein and the other requirements set forth in Section 428(b) of the
Higher Education Act.
The Secretary of Education makes Interest Subsidy Payments quarterly on
behalf of the borrower to the holder of a guaranteed loan in a total amount
equal to the interest which accrues on the unpaid principal amount prior to the
commencement of the repayment period of the loan or during any Deferment Period.
A borrower may elect to forego Interest Subsidy Payments, in which case the
borrower is required to make interest payments.
Federal Administrative Expense Allowances
Prior to the adoption of the 1993 Amendments, each Guarantee Agency was
entitled to receive from the Secretary of Education an administrative cost
allowance equal to 1% of the total principal amount of the loans (other than
Consolidation Loans) guaranteed by the Guarantee Agency in any fiscal year, for
the purposes of administrative costs of preclaims assistance for default
prevention and collection of defaulted guaranteed loans, administrative costs of
promoting commercial lender participation, administrative costs of monitoring
the enrollment and repayment status of students, and for other such costs
related to the Guarantee Agency's Guarantee Program. The 1993 Amendments
repealed such entitlement, effective October 1, 1993. The 1993 Amendments,
however, authorized payments for transition support (including administrative
costs) to Guarantee Agencies, in connection with the transition to direct
lending. See "Direct Loans" below. Budget legislation adopted since that time
has provided for the payment to Guarantee Agencies of an administrative expense
allowance equal to 0.85% of the agency's annual new guarantee volume. The 1997
Amendments provide for payment of such an administrative expense allowance
through the fiscal year ending September 30, 2002. After the fiscal year ending
September 30, 1997, however, such amounts are subject to decreasing aggregate
limits. There are no assurances as to the level of such payments that can be
made within such aggregate limits, or that Congress will require such payments
or that the Secretary of Education will determine to continue to make any such
payments in future years.
Federal Advances
Pursuant to agreements entered into between the Guarantee Agencies and
the Secretary of Education under Sections 422 and 422(c) of the Higher Education
Act, the Secretary of Education was authorized to advance moneys from time to
time to the Guarantee Agencies for the purpose of establishing and strengthening
the Guarantee Agencies' reserves. Section 422(c) currently authorizes the
Secretary of Education to make advances to Guarantee Agencies in various
circumstances, on terms and conditions satisfactory to the Secretary, including
if the Secretary is seeking to terminate the Guarantee Agency's reimbursement
contract or assume the Guarantee Agency's functions, to assist the Guarantee
Agency in meeting its immediate cash needs or to ensure the uninterrupted
payment of claims.
Federal Special Allowance Payments
The Higher Education Act provides for the payment by the Secretary of
Education of additional subsidies, called Special Allowance Payments, to holders
of qualifying student loans. The amount of the Special Allowance Payments, which
are made on a quarterly basis, is computed by reference to the average of the
bond equivalent rates of the 91-day Treasury bills auctioned during the
preceding quarter (the "91-day T-Bill Rate"). The quarterly rate for Special
Allowance Payments for Student Loans made on or after October 1, 1981, and
generally before November 16, 1986 is computed by subtracting the applicable
interest rate on such loans from the 91-day T-Bill Rate, adding 3.5% to the
resulting per centum, and dividing
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the resulting per centum by four. For loans disbursed on or after November 16,
1986, or loans to cover the costs of instruction for periods of enrollment
beginning on or after November 16, 1986, the 1986 Amendments and 1987 Amendments
substituted 3.25% for 3.5% in the foregoing formula. For loans disbursed on or
after October 1, 1992, the 1992 Amendments substituted 3.1% for 3.5% in such
formula. For Stafford and Unsubsidized Stafford Loans made on or after July 1,
1995, the 1993 Amendments substitute 2.5% for 3.1% in such formula prior to the
time such loans enter repayment and during any Deferment Periods. For loans made
on or after July 1, 1998, the special allowance formula is to be revised
similarly to the manner in which the applicable interest rate formula is
revised, as described above under "Loan Terms -- Interest Rates -- Stafford
Loans".
For Plus and SLS Loans which bear interest at rates adjusted annually,
Special Allowance Payments are made only in years during which the interest rate
ceiling on such loans operates to reduce the rate that would otherwise apply
based upon the applicable formula. See "Loan Terms -- Interest Rates -- Plus
Loans" and "-- SLS Loans" above. Under the 1993 Amendments, Special Allowance
Payments are paid with respect to Plus Loans made on or after July 1, 1994 only
if the rate that would otherwise apply exceeds 10% per annum, notwithstanding
that the interest rate ceiling on such loans is 9% per annum.
The Balanced Budget and Deficit Control Act of 1985, as amended (known
as the "Gramm-Rudman Law") requires the President to issue a sequester order for
any federal fiscal year in which the projected budget exceeds the target for
that year. A sequester order for any fiscal year would apply to loans made on or
after October 1 of that fiscal year. The sequester order would change the
formula for calculating Special Allowance Payments for the first four Special
Allowance Payment periods relating to loans originally disbursed during that
fiscal year. The special allowance formula would be reduced to the 91-day T-Bill
Rate plus 3.0% (for loans with a special allowance formula of the 91-day T-Bill
Rate plus 3.1%).
The Higher Education Act provides that if Special Allowance Payments or
Interest Subsidy Payments have not been made within 30 days after the Secretary
of Education receives an accurate, timely and complete request therefor, the
special allowance payable to such holder shall be increased by an amount equal
to the daily interest accruing on the special allowance and Interest Subsidy
Payments due the holder.
Special Allowance Payments and Interest Subsidy Payments are reduced by
the amount which the lender is authorized or required to charge as an
origination fee, as described above under "Loan Terms -- Fees -- Origination
Fee". In addition, the amount of the lender origination fee described above
under "Loan Terms -- Fees -- Lender Origination Fees" is collected by offset to
Special Allowance Payments and Interest Subsidy Payments.
Federal Student Loan Insurance Fund
The Higher Education Act authorizes the establishment of a Student Loan
Insurance Fund by the Federal government for making the federal insurance and
the federal reimbursement payments on defaulted student loans to Guarantee
Agencies. If moneys in the fund are insufficient to make the federal payments on
defaults of such loans, the Secretary of Education is authorized, to the extent
provided in advance by appropriation acts, to issue to the Secretary of the
Treasury obligations containing terms and conditions prescribed by the Secretary
of Education and approved by the Secretary of the Treasury, bearing interest at
a rate determined by the Secretary of the Treasury. The Secretary of the
Treasury is authorized and directed by the Higher Education Act to purchase such
obligations.
Direct Loans
The 1993 Amendments authorized a program of "direct loans", to be
originated by schools with funds provided by the Secretary of Education. Under
the direct loan program, the Secretary of Education is directed to enter into
agreements with schools, or origination agents in lieu of schools, to disburse
loans with funds provided by the Secretary. Participation in the program by
schools is voluntary. The goals set forth in the 1993 Amendments call for the
direct loan program to constitute 5% of the total volume of loans made under the
FFEL Program and the direct loan program for academic year 1994-1995, 40% for
academic year 1995-1996, 50% for academic years 1996-1997 and 1997-1998 and 60%
for academic year 1998-1999. No provision is made for the size of the direct
loan program thereafter. Based upon information released
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by the General Accounting Office, participation by schools in the direct loan
program has not been sufficient to meet the goals for the 1995-1996 or 1996-1997
academic years.
The loan terms are generally the same under the direct loan program as
under the FFEL Program, though more flexible repayment provisions are available
under the direct loan program. At the discretion of the Secretary of Education,
students attending schools that participate in the direct loan program (and
their parents) may still be eligible for participation in the FFEL Program,
though no borrower could obtain loans under both programs.
It is difficult to predict the impact of the direct lending program.
There is no way to accurately predict the number of schools that will
participate in future years, or, if the Secretary authorizes students attending
participating schools to continue to be eligible for FFEL Program loans, how
many students will seek loans under the direct loan program instead of the FFEL
Program. In addition, it is impossible to predict whether future legislation
will eliminate, limit or expand the direct loan program or the FFEL Program.
DESCRIPTION OF THE GUARANTEE AGENCIES
General
Of the Financed Student Loans included in the Initial Pool Balance,
approximately 72.8% are guaranteed by Educational Credit Management Corporation,
a Minnesota non-profit corporation ("ECMC", formerly known as Transitional
Guaranty Agency, Inc.), approximately 15.9% are guaranteed by Pennsylvania
Higher Education Assistance Agency, an agency of the Commonwealth of
Pennsylvania ("PHEAA"), approximately 9.0% are HEAL Loans, and the remaining
2.3% are guaranteed by one of the following Guarantee Agencies: United Student
Aid Funds, Inc., a Delaware non-profit corporation ("USAF"), the Florida
Department of Education, an agency of the State of Florida, New York Higher
Education Services Corporation, an agency of the State of New York, and Texas
Guaranteed Student Loan Program, a Texas nonprofit corporation.
A Guarantee Agency guarantees loans made to students or parents of
students by lending institutions such as banks, credit unions, savings and loan
associations, certain schools, pension funds and insurance companies. A
Guarantee Agency generally purchases defaulted student loans which it has
guaranteed from its cash and reserves (generally referred to herein as its
"Guarantee Fund"). A lender may submit a default claim to the Guarantee Agency
after the student loan has been delinquent for at least 180 days; however,
lenders are strongly encouraged not to file a claim until a loan is at least 210
days delinquent. The default claim package must include all information and
documentation required under the FFEL Program regulations and the Guarantee
Agency's policies and procedures. Under the Guarantee Agencies' current
procedures, assuming that the default claim package complies with the Guarantee
Agency's loan procedures manual or regulations, the Guarantee Agency pays the
lender for a default claim within 90 days of the lender's filing the claim with
the Guarantee Agency. The Guarantee Agency will pay the lender interest accrued
on the loan for up to 360 days after delinquency. The Guarantee Agency must file
a reimbursement claim with the Department of Education within 45 days after the
Guarantee Agency has paid the lender for the default claim.
In general, a Guarantee Agency's Guarantee Fund has been funded
principally by administrative cost allowances paid by the Secretary of
Education, guarantee fees paid by lenders (the cost of which may be passed on to
borrowers), investment income on moneys in the Guarantee Fund, and a portion of
the moneys collected from borrowers on Guaranteed Loans that have been
reimbursed by the Secretary of Education to cover the Guarantee Agency's
administrative expenses. ECMC's funding of its Guarantee Fund has differed (and
may continue to differ) from other Guarantors. See "-- Educational Credit
Management Corporation" below.
Various changes to the Higher Education Act have adversely affected the
receipt of revenues by the Guarantee Agencies and their ability to maintain
their Guarantee Funds at previous levels, and may adversely affect their ability
to meet their guarantee obligations. These changes include the reduction in
reinsurance payments from the Secretary of Education because of reduced
reimbursement percentages; the reduction in maximum permitted guarantee fees
from 3% to 1% for loans made on or after July 1, 1994; the reduction and
possible elimination of administrative expense allowances from the
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Secretary of Education; the reduction in supplemental preclaims assistance
payments from the Secretary of Education; and the reduction in retention by a
Guarantee Agency of collections on defaulted loans from 30% to 27%.
Additionally, the adequacy of a Guarantee Agency's Guarantee Fund to meet its
guarantee obligations with respect to existing student loans depends, in
significant part, on its ability to collect revenues generated by new loan
guarantees. The Federal Direct Student Loan Program may adversely affect the
volume of new loan guarantees. Pending legislation and future legislation may
make additional changes to the Higher Education Act that would significantly
affect the revenues received by Guarantee Agencies and the structure of the
guarantee agency program. For a more complete description of provisions of the
Higher Education Act that relate to payments described in this paragraph or
affect the funding of a Guarantee Fund, see "Description of the FFEL Program".
The Higher Education Act gives the Secretary of Education various
oversight powers over Guarantee Agencies. These include requiring a Guarantee
Agency to maintain its Guarantee Fund at a certain required level and taking
various actions relating to a Guarantee Agency if its administrative and
financial condition jeopardizes its ability to meet its obligations. These
actions include, among others, providing advances to the Guarantee Agency,
terminating the Guarantee Agency's Federal Reimbursement Contracts, assuming
responsibility for all functions of the Guarantee Agency, and transferring the
Guarantee Agency's guarantees to another guarantee agency or assuming such
guarantees. The Higher Education Act provides that a Guarantee Agency's
Guarantee Fund shall be considered to be the property of the United States to be
used in the operation of the FFEL Program or the Federal Direct Student Loan
Program, and, under certain circumstances, the Secretary of Education may demand
payment of amounts in the Guarantee Fund. The 1997 Amendments direct the
Secretary of Education to demand payment on September 1, 2002 of a total of one
billion dollars from all the Guarantee Agencies participating in the FFEL
Program. The amounts to be demanded of each Guarantee Agency shall be determined
in accordance with formulas included in the Higher Education Act. Each Guarantee
Agency will be required to deposit funds in a restricted account in
installments, beginning in the federal fiscal year ended September 30, 1998, to
provide for such payment. The Secretary of Education has not yet made any
determination of the amounts required to be so transferred by the Guarantee
Agencies. There can be no assurance that relevant federal laws, including the
Higher Education Act, will not be further changed in a manner that may adversely
affect the ability of a Guarantee Agency to meet its guarantee obligations. See
"Description of the FFEL Program".
There are no assurances as to the Secretary of Education's actions if a
Guarantee Agency encounters administrative or financial difficulties or that the
Secretary of Education will not demand that a Guarantee Agency transfer
additional portions or all of its Guarantee Fund to the Secretary of Education.
Information relating to the particular Guarantee Agencies set forth in
this Prospectus has been provided by the respective Guarantee Agencies, and
neither such information nor information included in the reports referred to
herein has been verified by, or is guaranteed as to accuracy or completeness by,
the Transferor or the Underwriters. Such information should not be construed as
a representation by the Transferor or the Underwriters. No representation is
made by the Transferor or the Underwriters as to the accuracy or adequacy of
such information or the absence of material adverse changes in such information
subsequent to the dates thereof.
Federal Agreements
Each Guarantee Agency and the Secretary of Education have entered into
Federal Reimbursement Contracts pursuant to Section 428(c) of the Higher
Education Act (which include, for older Guarantee Agencies, a supplemental
contract pursuant to former Section 428A of the Higher Education Act), which
provide for the Guarantee Agency to receive 80% to 100% reimbursement of
insurance payments that the Guarantee Agency makes to eligible lenders with
respect to loans guaranteed by the Guarantee Agency prior to the termination of
the Federal Reimbursement Contracts or the expiration of the authority of the
Higher Education Act. The 1993 Amendments reduced the reimbursement percentages
referred to above with respect to claims on most loans made on or after October
1, 1993. See "Effect of Annual Claims Rate" below. The Federal Reimbursement
Contracts provide for termination under certain circumstances and also provide
for certain actions short of termination by the Secretary of Education to
protect the federal interest. See "Description of the FFEL Program -- Contracts
with Guarantee Agencies -- Federal Reimbursement".
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In addition to guarantee benefits, qualified Student Loans acquired
under the Program benefit from certain federal subsidies. Each Guarantee Agency
and the Secretary of Education have entered into an interest subsidy agreement
under Section 428(b) of the Higher Education Act (as amended, the "Interest
Subsidy Agreement"), which entitles the holders of eligible loans guaranteed by
the Guarantee Agency to receive Interest Subsidy Payments from the Secretary of
Education on behalf of certain students while the student is in school, during a
six to twelve month Grace Period after the student leaves school, and during
certain Deferment Periods, subject to the holders' compliance with all
requirements of the Higher Education Act. See "Description of the FFEL Program
- -- Contracts with Guarantee Agencies -- Federal Interest Subsidy Payments" for a
more detailed description of the Interest Subsidy Payments.
United States Courts of Appeals have held that the federal government,
through subsequent legislation, has the right unilaterally to amend the
contracts between the Secretary of Education and the Guarantee Agencies
described herein. Amendments to the Higher Education Act in 1986, 1987, 1992 and
1993, respectively (i) abrogated certain rights of guarantee agencies under
contracts with the Secretary of Education relating to the repayment of certain
advances from the Secretary of Education, (ii) authorized the Secretary of
Education to withhold reimbursement payments otherwise due to certain guarantee
agencies until specified amounts of such guarantee agencies' reserves had been
eliminated, (iii) added new reserve level requirements for guarantee agencies
and authorized the Secretary of Education to terminate the Federal Reimbursement
Contracts under circumstances that did not previously warrant such termination,
and (iv) expanded the Secretary of Education's authority to terminate such
contracts and to seize guarantee agencies' reserves. There can be no assurance
that future legislation will not further adversely affect the rights of the
Guarantee Agencies, or holders of loans guaranteed by a Guarantee Agency under
such contracts.
Effect of Annual Claims Rate
A Guarantee Agency's ability to meet its obligation to pay default
claims on Financed Eligible Loans will depend on the adequacy of its Guarantee
Fund and, under the current federal reinsurance arrangement, the default
experience of all lenders under the Guarantee Agency's Guarantee Program. A high
default experience among lenders participating in a Guarantee Agency's Guarantee
Program may cause the Guarantee Agency's Claims Rate (as defined below) for its
Guarantee Program to exceed the 5% and 9% levels described below, and result in
the Secretary of Education reimbursing the Guarantee Agency at lower percentages
of default claims payments made by the Guarantee Agency.
Each Guarantee Agency is currently entitled to receive reimbursement
payments under the Federal Reimbursement Contracts in amounts that vary
depending on the Claims Rate experience of the Guarantee Agency. The "Claims
Rate" is computed by dividing total default claims since the previous September
30 by the total original principal amount of the Guarantee Agency's guaranteed
loans in repayment on such September 30. On October 1 of each year the Claims
Rate begins at zero, regardless of the experience in preceding years. For loans
made prior to October 1, 1993, if the Claims Rate remains equal to or below 5%
within a given federal fiscal year (October 1 through September 30), the
Secretary of Education is currently obligated to provide 100% reimbursement; if
and when the Claims Rate exceeds 5% and until such time, if any, as it exceeds
9% during the fiscal year, the reimbursement rate is at 90%; if and when the
Claims Rate exceeds 9% during the fiscal year, the reimbursement rate for the
remainder of the fiscal year is at 80%. For loans made prior to October 1, 1993,
each Guarantee Agency is currently entitled to at least 80% reimbursement from
the Secretary of Education on default claims that it purchases, regardless of
its Claims Rate. The reimbursement percentages for loans made on or after
October 1, 1993 are reduced from 100%, 90% and 80% to 98%, 88% and 78%,
respectively. See "Description of the FFEL Program".
The Claims Rates for PHEAA for each of the last five federal fiscal
years is set forth in the table under "Certain Historical Information for
Guarantee Agencies -- Claims Rate" below.
Educational Credit Management Corporation
ECMC was organized in 1994 under the name Transitional Guaranty Agency,
Inc. On March 17, 1994, ECMC entered into various Guarantee Agency agreements
with the Department of Education (as amended or supplemented, the
"ECMC\Department Agreements"). In accordance with the ECMC\Department
Agreements, the Department of Education has instructed ECMC to perform various
functions. The primary functions in fiscal years 1995 and 1996 were to collect
and
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monitor payments from borrowers making payments on loans under Chapter 13 of the
Bankruptcy Code. These loans were transferred from the Department of Education
and from other Guarantee Agencies. The Department of Education also transferred
guarantees representing predefault and postdefault inactive accounts for ECMC to
service these accounts if the need should arise.
Pursuant to the Department of Education's request, ECMC developed the
operational capability to issue new guarantees and to service existing active
loan guarantees. On March 15, 1996, the Department of Education designated ECMC
as the Guarantee Agency for the Commonwealth of Virginia, effective July 1,
1996. ECMC replaced the Virginia State Education Assistance Authority ("SEAA")
and assumed responsibility for all outstanding loan guarantees of SEAA.
Pursuant to the ECMC\Department Agreements, ECMC's financial structure
differs in many respects from other Guarantee Agencies. The ECMC\Department
Agreements provide that at the end of each federal fiscal year, ECMC is required
to calculate the amount of its reserve funds and the amount of its expenses
during the fiscal year using a formula prescribed by the Department of
Education. Using that formula, if the amount of reserve funds exceed 60 percent
of expenses (as defined by the Department of Education), ECMC is required to
return the excess to the Department of Education, unless directed otherwise by
the Department of Education.
ECMC has agreed that it will provide a copy of its most recent audited
financial statements to Noteholders upon receipt of a written request directed
to Mr. Robert McGowan, Vice President, Educational Credit Management
Corporation, 101 East Fifth Street, Suite 2400, Saint Paul, Minnesota 55101.
Pennsylvania Higher Education Assistance Agency
Certain information regarding PHEAA and its operations is included
under "The Servicers -- Pennsylvania Higher Education Assistance Agency."
Certain Historical Information for Guarantee Agencies
Set forth below is certain historical information with respect to PHEAA
and with respect to all guarantors of loans under the Federal Family Education
Loan Program. Information is not provided for ECMC because it only commenced
guaranteeing loans on July 1, 1996. Except as otherwise indicated below, the
information regarding each Guarantee Agency has been obtained from the
Department of Education's Federal Fiscal Year 1993 Loan Programs Data Book and
FY94-FY96 Federal Student Loan Programs Data Book (the "DOE Data Books"). No
independent verification of such information has been or will be made by the
Transferor or the Underwriters.
Guarantee Volume. The following table sets forth the approximate
aggregate principal amount of loans under the FFEL Program that have first
become committed to be guaranteed by PHEAA and by all guarantors of such loans
in each of the five federal fiscal years 1992 through 1996:*
Stafford, Unsubsidized Stafford, SLS,
PlUS and Consolidated Loans
Guaranteed
Dollars in Millions
Federal
Fiscal All
Year PHEAA Guarantors
------- ----- ----------
1992 $1,410.4 $16,114.0
1993 1,857.1 19,356.6
1994 2,003.4 25,070.4
1995 2,221.5 24,213.0
1996 2,227.7 23,831.3
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- ----------
* The information set forth in the table above has been obtained from
PHEAA and, as to All Guarantors, the DOE Data Books.
Reserve Ratio. Each Guarantee Agency's reserve ratio is determined by
dividing its cumulative cash reserves by the original principal amount of the
outstanding loans it has agreed to guarantee. The term "cumulative cash
reserves" refers to cash reserves plus (i) sources of funds (including insurance
premiums, state appropriations, federal advances, federal reinsurance payments,
administrative cost allowances, collections on claims paid and investment
earnings) minus (ii) uses of funds (including claims paid to lenders, operating
expenses, lender fees, the Department of Education's share of collections on
claims paid, returned advances and reinsurance fees). The "original principal
amount of outstanding loans" consists of the original principal amount of loans
guaranteed by such Guarantee Agency minus (i) the original principal amount of
loans cancelled, claims paid, loans paid in full and loan guarantees transferred
from such Guarantee Agency to other guarantors, plus (ii) the original principal
amount of loan guarantees transferred to such Guarantee Agency from other
guarantors. The following table sets forth PHEAA's cumulative cash reserves and
its corresponding reserve ratios and the national average reserve ratio for all
guarantors for the five federal fiscal years 1992 through 1996.*
PHEAA National
Federal Cumulative Average
Fiscal Cash Reserve Reserve
Year Reserves** Ratio Ratio
---- ---------- ----- -----
1992 $ 85.9 1.1% 1.5%
1993 100.9 1.1 1.7
1994 133.6 1.3 1.4
1995 166.3 1.5 1.6
1996 210.6 1.6 1.8
- ----------
* The information set forth in the table above has been obtained from
PHEAA and, as to the national average, the DOE Data Books (with respect
to fiscal years 1992 through 1995) and from the Department of Education
(with respect to fiscal year 1996). According to the Department of
Education, available cash reserves may not always be an accurate
barometer of a guarantor's financial health.
** Dollars in millions.
Cumulative Recovery Rates. A Guarantee Agency's cumulative recovery
rate is determined by dividing the cumulative aggregate amount recovered from
borrowers by such Guarantee Agency by the cumulative aggregate amount of default
claims paid by such Guarantee Agency as of the end of the applicable federal
fiscal year. The table below sets forth the cumulative recovery rates for PHEAA
and the national average cumulative recovery rates for all guarantors as of the
end of the five federal fiscal years 1992 through 1996.* PHEAA's cumulative
recovery rates have exceeded the national average cumulative recovery rate in
each of the five federal fiscal years shown in the Cumulative Recovery Rate
table below. The Transferor's management does not believe that cumulative
recovery rates provide an accurate indication of a guarantor's financial health.
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Cumulative
Recovery Rate
Federal
Fiscal National
Year PHEAA Average
---- ----- -------
1992 46.5% 35.1%
1993 48.2 38.0
1994 52.9 39.2
1995 53.3 40.7
1996 55.0 43.1**
- ----------
* The information set forth in the table above has been obtained from
PHEAA and, as to the national average, the Department of Education.
** 1996 National Average does not include all guarantor data, as all
guarantors have not been processed.
Loan Loss Reserve. The DOE Data Books do not disclose whether any
guarantor has established a segregated loan loss reserve with respect to its
student loan guarantee obligations. Accordingly, to the extent that a guarantor
has not established such a segregated loan loss reserve, if a guarantor receives
less than full reimbursement of its guarantee obligations from the Department of
Education, the guarantor would be forced to look to its existing assets to
satisfy any such guarantee obligations not so reimbursed.
Claims Rate. The following table sets forth the Claims Rate of PHEAA
and the national average for all guarantors for the last five federal fiscal
years 1992 through 1996:*
Claims Rate
Federal
Fiscal National
Year PHEAA Average
---- ----- -------
1992 2.84% 4.15%
1993 2.32 3.83
1994 2.18 3.44
1995 1.97 3.21
1996 1.58 3.25
- ----------
* The information set forth in the table above has been obtained from
PHEAA and, as to the national average, the Department of Education.
PHEAA's Claims Rate have been lower than the national average Claims
Rate in each of the five federal fiscal years shown in the Claims Rate table
above. Management of PHEAA has indicated to the Transferor that they are
currently unaware of any trends or conditions which would cause their Claims
Rate to exceed 5% and thereby result in less than maximum reimbursement for
reinsurance claims to the Department of Education. Notwithstanding the above, no
assurance can be made that any such trends will continue or not deteriorate, or
that any Guarantee Agency will receive full reimbursement for reinsurance claims
(or the full 98% maximum reimbursement for loans first disbursed on or after
October 1, 1993).
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DESCRIPTION OF THE HEAL PROGRAM
Eligible Borrower
An eligible borrower under the HEAL Program is a student who (i) meets
certain citizen, national or resident requirements, (ii) has been accepted for
enrollment at a school of medicine, osteopathy, dentistry, veterinary medicine,
optometry, podiatry, pharmacy, public health or chiropractic, or a graduate
program in health administration or clinical psychology (an "eligible
institution") or, if attending an eligible institution, is in good standing at
that institution, but, in the case of a medical, dental or osteopathic student,
including only the last four years of an accelerated, integrated program of
study, (iii) is or will be a full-time student at the eligible institution, (iv)
has agreed that all funds received under the loan will be used solely for
tuition and other reasonable educational expenses and the insurance premium
charged on the loan, (v) requires the loan to pursue the course of study at the
institution, and (vi) if a pharmacy student, has satisfactorily completed three
years of training. Certain individuals who meet the same citizen, national or
resident requirements and have previously received a loan insured under the HEAL
Program while a full-time student at an eligible institution may also receive a
loan during the period before principal must be paid on the loan to repay
interest due on the previous loans under the HEAL Program.
Eligible Lender
An eligible institution may apply to the Secretary of HHS to become a
lender under the HEAL Program. Various types of other organizations may qualify
to be eligible lenders or holders of HEAL loans. Eligible lenders may include an
agency or instrumentality of a state; a bank, savings and loan association,
credit union or insurance company which is subject to examination and
supervision in its capacity as a lender by an agency of the United States or of
the state in which it has its principal place of business; a pension fund
approved by the Secretary of HHS; and certain other entities specified in the
HEAL Act. If the Secretary of HHS approves the lender's application, the
Secretary of HHS and the lender enter into an insurance contract whereby the
Secretary of HHS agrees to insure each eligible HEAL Loan held by the lender
against the borrower's default, death, total and permanent disability, or
bankruptcy.
An approved eligible lender can have either a standard insurance
contract or a comprehensive insurance contract with the Secretary of HHS. A
lender with a standard insurance contract must submit to the Secretary of HHS a
borrower's application for each loan that the lender determines to be eligible
for insurance. The Secretary of HHS notifies the lender whether or not the loan
is insurable, the amount of the insurance and the expiration of the loan
commitment. A lender with a comprehensive insurance contract may disburse a loan
without submitting an individual borrower's application to the Secretary of HHS
for initial approval. All eligible loans made by a lender with a comprehensive
insurance contract before a specified date are automatically insured up to the
aggregate amount stated in the insurance contract. The Secretary of HHS may
limit, suspend or terminate the lender's eligibility under the HEAL Program if
the lender violates any provision of the HEAL Act, or agreements with the
Secretary of HHS concerning the HEAL Program. The Transferor and the Eligible
Lender Trustee are each a currently approved holder of a Comprehensive Insurance
Contract with the Secretary of HHS.
Insurance Benefits
The insurance provided by the Secretary of HHS covers 100% of the
lender's losses on both unpaid principal and interest except to the extent that
a borrower may have a defense on the loan (other than infancy). HEAL insurance
is not unconditional. The Secretary of HHS insures HEAL Loans on the implied
representation of the lender that all the requirements for the initial
insurability have been met. HEAL insurance is further conditioned upon
compliance by all holders of the loan with all laws, regulations and other
requirements. The insurance coverage on a loan under the HEAL Program ceases to
be effective after a 60-day default by the lender in the payment of the
insurance premium charged by the Secretary of HHS.
Payment on an approved insurance claim generally covers interest that
accrues through the date the claim is paid, except that the Secretary of HHS
does not pay interest that accrues between the end of the period that a claim is
required to be filed and the date the Secretary of HHS receives the claim, and,
if a claim is returned to the lender for additional documentation necessary for
approval of the claim, interest is only paid for the first 30 days following the
return of the claim to the lender.
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Authorized Amounts of HEAL Loans
An eligible student borrower may borrow an amount for an academic year
equal to the difference between the student's estimated cost of education for
that period and the amount of other financial aid the student will receive for
that period. An eligible non-student borrower may borrow in an amount that is no
greater than the sum of the HEAL insurance premium plus the interest that is
expected to accrue and must be paid on the borrower's HEAL Loan during the
period for which the new loan is intended. The total amount of HEAL Loans made
to any borrower which may be covered by federal insurance may not exceed $20,000
in any academic year for a student enrolled in a school of, or in the field of,
medicine, osteopathy, dentistry, veterinary medicine, optometry or podiatry, up
to a maximum aggregate of $80,000, and $12,500 in any academic year for a
borrower enrolled in a school of, or in the field, of pharmacy, public health,
or chiropractic, or a graduate program in health administration or clinical
psychology, up to an aggregate maximum of $50,000.
Terms of HEAL Loans
A loan made under the HEAL Program must be made without security,
except that in certain limited instances an endorsement may be required. The
borrower may prepay the whole or any part of the loan at any time without
penalty.
The principal amount of the HEAL Loan must be repaid in installments
over a period of not less than 10 years or more than 25 years, beginning not
earlier than nine months nor later than twelve months (the "Grace Period") after
the date on which (i) the borrower ceases to be a participant in an accredited
internship or residency program of not more than four years in duration, or the
borrower completes the fourth year of an accredited internship or residency
program of more than four years in duration (for loans made on or after October
22, 1985), or the borrower ceases to carry, at an eligible institution, the
normal full-time academic workload, or (ii) the borrower, who is a graduate
student of an eligible institution, ceases to be a participant in a fellowship
training program not in excess of two years or a participant in a full-time
educational activity not in excess of two years, which is directly related to
the health profession for which the borrower prepared at an eligible
institution, as determined by the Secretary of HHS, and which may be engaged in
by the borrower during such a two-year period which begins within twelve months
after the completion of the borrower's participation in a program described in
clause (i) of this sentence or prior to the completion of the borrower's
participation in such program (for loans made on or after October 22, 1985),
except during periods of deferment (described below). The repayment period of
the loan may not exceed 33 years from the date of execution of the note or
written agreement evidencing it. Principal and interest need not be paid, but
interest accrues, during any period (i) during which the borrower is pursuing a
full-time course of study at an eligible institution (or at an eligible
institution under the FFEL Program), (ii) not in excess of four years during
which the borrower is a participant in an accredited internship or residency
program, (iii) not in excess of three years during which the borrower is a
member of the Armed Forces of the United States, (iv) not in excess of three
years during which the borrower is in service as a volunteer under the Peace
Corps Act (22 USCA ss.2501 et seq.) or is a member of the National Health
Service Corps, (v) not in excess of three years during which the borrower is in
service as a full-time volunteer under Title I of the Domestic Volunteer Service
Act of 1973, (vi) not in excess of three years for a borrower who has completed
an accredited internship or residency training program in osteopathic general
practice, family medicine, general internal practice, preventive medicine or
general pediatrics and who is practicing primary care, (vii) not in excess of
one year, for borrowers who are graduates of schools of chiropractic, (viii) not
in excess of two years which is described in clause (ii) of the first sentence
of this paragraph, and (ix) in addition to all other deferments for which the
borrower is eligible under clauses (i) through (viii) of this sentence during
which the borrower is a member of the Armed Forces on active duty during the
Persian Gulf conflict. The periods described in (i) through (ix) are "Deferment
Periods." In certain circumstances a Deferment Period may not be included in
determining the 25- and 33-year maximum repayment periods referred to above.
At least 30 and not more than 60 days before the commencement of the
repayment period, the borrower must contact the lender to establish the precise
term of repayment. The note must offer, in accordance with criteria prescribed
by regulation of the Secretary of HHS, a graduated repayment schedule. The
borrower may choose to repay under the graduated repayment schedule or a
repayment schedule which provides for substantially equal installment payments.
The Secretary of HHS has not promulgated regulations which set the criteria for
a graduated repayment schedule.
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Unless agreed otherwise, in writing, the total of the payments by a
borrower during any year of the repayment period with respect to all loans of
the borrower under the HEAL Program should be at least equal to the annual
interest on the outstanding principal, except during Deferment Periods.
Interest
At the lender's option, the interest rate on the HEAL Loan may be
calculated on a fixed rate or on a variable rate basis. Whichever method is
selected, that method must continue over the life of the loan, except where the
loan is consolidated with another HEAL Loan. Interest that is calculated on a
fixed rate basis is determined for the life of the loan during the calendar
quarter in which the loan is disbursed. It may not exceed the maximum rate
determined for that quarter by the Secretary of HHS. Interest that is calculated
on a variable rate basis varies every calendar quarter throughout the life of
the loan as the market price of U.S. Treasury bills changes. For any quarter, it
may not exceed the maximum rate determined by the Secretary of HHS. For each
calendar quarter, the Secretary of HHS determines the general maximum annual
HEAL interest rate by (i) determining the average of the bond equivalent rates
reported for the 91-day U.S. Treasury bills auctioned for the preceding calendar
quarter, (ii) adding 3 percentage points, and (iii) rounding that figure to the
next higher one-eighth of one percent. Pursuant to the insurance agreements
under which the Financed HEAL Loans originally were made, however, the maximum
amount under clause (ii) of the preceding sentence is 2.00 percentage points
during inschool periods, Grace Periods and Deferment Periods, and 2.70
percentage points during the Repayment Phase.
As a general rule, unpaid accrued interest may be compounded
semi-annually and added to principal. However, if a borrower postpones payment
of interest before the beginning of the repayment period or during Deferment
Periods or the lender permits postponement during forbearance, the lender may
refrain from semi-annual compounding of interest and add accrued interest to
principal only at the time repayment of principal begins or resumes. A lender
may do so only if this practice does not result in interest being compounded
more frequently than semi-annually. Interest begins to accrue when a loan is
disbursed. However, a borrower may postpone payment of interest before the
beginning of the repayment period or during the Deferment Periods or a lender
may permit postponement during the forbearance. In these cases, payment of
interest must begin or resume on the date on which repayment of principal begins
or resumes. If payment of interest is postponed, it may be added to the
principal for purposes of calculating a repayment schedule.
Insurance Premium
The Secretary of HHS charges each lender an insurance premium to
provide the insurance on HEAL Loans at the time of disbursement. The HEAL Act
authorizes the Secretary of HHS to charge an insurance premium based on the
default rate of the educational institution and the borrower obtaining a
co-signer on the loan or securing the debt with only the borrower's signature
payable in advance. Presently, the insurance premium varies between 3% and 8%.
The lender may pass along the cost of the insurance premium to the borrower by
billing for it separately or deducting the amount from disbursed loan proceeds.
Premiums are not refundable by the Secretary of HHS and need not be refunded by
the lender to the borrower. Eligible lenders and eligible institutions may also
be assessed additional risk based premiums based on the eligible entities
default rate. The risk-based premium to be assessed shall range from 6 percent
of the principal amount of the loan to 10 percent of the principal amount of the
loan.
Consolidation of HEAL Loans
If a lender or holder holds two or more HEAL Loans made to the same
borrower, the lender or holder and the borrower may agree to consolidate the
loans into a single HEAL Loan obligation evidenced by one promissory note if the
consolidation will not result in terms less favorable to the borrower than if no
consolidation had occurred and certain other requirements are satisfied.
Payments by Secretary of HHS
The Secretary of HHS insures each lender for the losses which the
lender may incur on insured loans in the event that a borrower dies, becomes
permanently and totally disabled, files for bankruptcy or defaults on the loans.
If a borrower dies or becomes disabled, the Secretary of HHS discharges the
borrower's liability on the loan by repaying the amount owed.
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If the borrower defaults after a substantial collection effort, the Secretary of
HHS pays the amount of the loss to the lender, and the borrower's loan is
assigned to the Secretary of HHS.
Due Diligence
A lender must follow certain procedures in making HEAL Loans, and must
exercise due diligence in the collection of a HEAL Loan with respect to both a
borrower and any endorser, in accordance with regulations of the Secretary of
HHS. If these procedures are not followed or such due diligence is not
exercised, the lender's ability to realize the benefits of the insurance
described above may be adversely affected.
Claims
"Default" means the persistent failure of the borrower to make a
payment when due, or to comply with other terms of the note or other written
agreement evidencing a loan under circumstances where the Secretary of HHS finds
it reasonable to conclude that the borrower no longer intends to honor the
obligation to repay. In the case of a loan repayable (or on which interest is
payable) in monthly installments, this failure must have persisted for 120 days.
In the case of a loan repayable (or on which interest is payable) in less
frequent installments, this failure must have persisted for 180 days. Upon the
occurrence of a default, the Secretary of HHS shall require the eligible lender
or holder to commence and prosecute an action for default. If, for a particular
loan, an automatic stay is imposed on collection activities by a Bankruptcy
Court, and the lender receives written notification of the automatic stay prior
to initiating legal proceedings against the borrower, the 120 or 180-day period
does not include any period prior to the end of the automatic stay. Unless a
lender has notified the Secretary of HHS that it has filed suit against a
defaulted borrower, it must file a default claim with the Secretary of HHS
within 30 days after a loan has been determined to be in default. Under various
circumstances, a lender must commence and prosecute an action for default
against a borrower before filing a default claim. A lender must file a death
claim with the Secretary of HHS within 30 days after the lender determines that
a borrower is dead. A lender must file a disability claim with the Secretary of
HHS within 30 days after it is notified that the Secretary of HHS had determined
a borrower to be totally and permanently disabled. A lender must file a
bankruptcy claim with the Secretary of HHS within 10 days of the initial date of
receipt of court notice or written notice from the borrower's attorney that the
borrower has filed for bankruptcy under chapters 11 or 13 of the Bankruptcy
Code, or has filed a complaint to determine the dischargeability of the HEAL
Loan under chapter 7 of the Bankruptcy Code.
General
The Secretary of HHS may enter into a special contract with a borrower
who has obtained a degree from an eligible institution. Under the contract, the
borrower agrees to serve for a continuous period of (i) not less than 12 months
for each 12-month period the Secretary of HHS assumes such obligations, or (ii)
24 months, whichever is greater in a health manpower shortage area as a member
of the National Health Service Corps or as a private practitioner. In return,
the Secretary of HHS will pay an amount, not to exceed $10,000 per 12-month
period, to the holder of the borrower's HEAL Loan to be applied toward interest
and principal.
Insurance Fund
The federal government has established pursuant to the HEAL Act a
student loan insurance fund which is available without fiscal year limitation to
the Secretary of HHS for making payments in connection with the collection or
default of loans insured under the HEAL Program. If moneys in the fund are
insufficient to make the payments on collection or default of insured loans, the
Secretary of the Treasury may lend the fund such amounts as may be necessary to
make the payments involved, subject to the Federal Credit Reform Act of 1990 (42
USC ss. 661 et seq.)
Collection/Litigation
The use of litigation by the lender could affect the cost of collection
on defaulted HEAL Loans.
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DESCRIPTION OF THE NOTES
General
The Notes will be issued pursuant to the terms of the Indenture, which
has been filed as an exhibit to the Registration Statement of which this
Prospectus is a part.
The following summary describes the material terms of the Notes and the
Indenture. The summary does not purport to be complete and is qualified in its
entirety by reference to the provisions of the Notes, the Indenture and the
Terms Supplement, which provisions are incorporated by reference herein.
The Notes will initially be represented by one or more Notes registered
in the name of the nominee of DTC (together with any successor depository
selected by the Administrator, the "Depository") except as set forth below. The
Notes will be available for purchase in denominations of $50,000 and integral
multiples of $1,000 in excess thereof in book-entry form only. The Trust has
been informed by DTC that DTC's nominee will be Cede. Accordingly, Cede is
expected to be the holder of record of the Notes. Unless and until Definitive
Notes are issued under the limited circumstances described herein, no Noteholder
will be entitled to receive a physical certificate representing a Note. All
references herein to actions by Noteholders refer to actions taken by DTC upon
instructions from its participating organizations (the "Participants") and all
references herein to distributions, notices, reports and statements to
Noteholders refer to distributions, notices, reports and statements to DTC or
Cede, as the registered holder of the Notes, for distribution to Noteholders in
accordance with DTC's procedures with respect thereto. See "-- Book-Entry
Registration" and "-- Definitive Notes."
The Notes
Distributions of Interest. Interest will accrue during each Interest
Period on the principal balance of each Class of Notes at a rate per annum equal
to the related Class Interest Rate (calculated as provided below) and will be
payable (i) monthly on each Distribution Date to the Class A Noteholders as of
the related Record Date, and (ii) quarterly on each Quarterly Distribution Date
to the Class B Noteholders as of the related Record Date. Interest distributions
due on any Class of Notes for any Distribution Date but not distributed on such
Distribution Date will be due on the next Distribution Date for such Class
increased by an amount equal to interest on such amount at the applicable Class
Interest Rate for the period from the Distribution Date for which such interest
was first due until the Distribution Date such interest is paid. Interest
payments on the Notes will generally be funded from Available Funds, Monthly
Advances and amounts, if any, on deposit in the Reserve Account remaining after
the deposit of the Transaction Fees and Consolidation Loan Fees in the Expense
Account. Interest will be paid pro rata to the holders of each such Class of
Notes outstanding. See "Description of the Transfer and Servicing Agreements --
Distributions" and "-- Credit Enhancement."
Within each Interest Payment Period, each Class of Notes will bear
interest during each Interest Period for such Class at the Formula Interest
Rate, unless the Net Loan Rate for such Interest Period (which shall not apply
to the initial Interest Period) is a lower interest rate. For the initial
Interest Period (commencing on the Closing Date) for each Class of Notes, the
interest rate for each such Class shall be as stated on the inside cover page of
this Prospectus and not subject to Net Loan Rate. The Formula Interest Rate for
each Interest Period after the initial Interest Period for each Class of Notes
will equal One-Month LIBOR as of the Rate Determination Date for such Interest
Period plus the applicable Margin for such Class, but in no event greater than
18.0% per annum. Interest on each Class of Notes will be calculated on the basis
of the actual number of days elapsed in each Interest Period divided by 360.
Notwithstanding the foregoing, with respect to each Class of Notes, if
the Formula Interest Rate with respect to such Class for any Interest Period is
greater than the Net Loan Rate determined on the Rate Determination Date for
such Interest Period, then the Class Interest Rate for such Interest Period will
be the Net Loan Rate; provided, however, that no such determination of the Net
Loan Rate will be required to be made on a Rate Determination Date unless the
excess of OneMonth LIBOR over the 91-day T-Bill Rate is greater than 100 basis
points as of the preceding Rate Determination Date.
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Noteholders' Interest Carryover. If the Class Interest Rate for any
Class of Notes for any Interest Payment Period or portion thereof is based on
the Net Loan Rate, the excess of (a) the amount of interest on such Class of
Notes that would have accrued in respect of the related Interest Payment Period
or portion thereof had interest been calculated based on the applicable Formula
Interest Rate over (b) the amount of interest such Class of Notes actually
accrued in respect of such Interest Payment Period or portion thereof based on
the Net Loan Rate (such excess, together with the unpaid portion of any such
excess from prior Interest Payment Periods (and interest accrued thereon
calculated based on the Formula Interest Rate applicable to such Class of Notes
is referred to as the "Noteholders' Interest Carryover") will be paid on the
dates and in the priority as described herein under "Description of the Transfer
and Servicing Agreements -- Distributions." Any amount of Noteholders' Interest
Carryover with respect to a Class of Notes remaining after the earlier of the
Distribution Date on which the outstanding principal amount of such Class of
Notes has been reduced to zero and the distribution of all Available Funds on
the Final Maturity Date of such Class of Notes, will never become due and
payable and will be discharged as to the applicable Class of Notes on such date.
The ratings of the Notes do not address the likelihood of the payment of the
amount of any Noteholders' Interest Carryover. Any reference herein or in the
Indenture or the Transfer and Servicing Agreement to "principal" or "interest"
does not include within the meaning of such words Noteholders' Interest
Carryover or any interest accrued thereon.
Distributions of Principal. Principal of the Class A Notes will be
payable monthly on each Distribution Date, commencing February 25, 1998, and
principal on the Class B Notes will be payable quarterly, on each Quarterly
Distribution Date, generally in the order of priority described in "The Transfer
and Servicing Agreements -- Distributions." Principal payments on a Class of
Notes will generally be derived from Available Funds remaining after the
Indenture Trustee has deposited in the Expense Account the Transaction Fees, the
Consolidation Loan Fees, overdue Transaction Fees and overdue Consolidation Loan
Fees and deposited in the Note Distribution Account the Noteholders' Interest
Distribution Amount. Additionally, until the Parity Percentage equals 101.50%,
amounts otherwise required to be distributed to the Transferor will be applied
as additional principal payments. See "Description of the Transfer and Servicing
Agreements -Distributions" and "-Credit Enhancement." If such sources are
insufficient to pay the Noteholders' Principal Distribution Amount for such
Distribution Date, such shortfall will be added to the principal payable to the
Noteholders on subsequent Distribution Dates and (except with respect to the
Final Maturity Date of a Class of Notes) such shortfall will not constitute an
Event of Default. Additionally, on the Final Maturity Date for a Class of Notes
amounts in the Reserve Account will be available to reduce the principal balance
of such Class of Notes to zero to the extent Available Funds are insufficient to
make such payment. Notwithstanding the foregoing, if an Event of Default has
occurred with respect to payment of the Notes, principal will be paid to each
Class of Class A Notes pro rata, based upon the outstanding principal amount of
each Class of Class A Notes. No distribution in respect of principal of Class B
Notes will be made until each of the Class A Notes has been paid in full. See
"Description of the Transfer and Servicing Agreements -- Distributions."
The aggregate outstanding principal amount of each Class of Notes will
be payable in full on the Distribution Date identified in the Summary of Terms
under "Final Maturity Date" (the "Final Maturity Date"). The actual date on
which the aggregate outstanding principal of and accrued interest on any Class
of Notes are paid may be earlier than its respective Final Maturity Date, based
on a variety of factors, including those described above under "Risk Factors --
Reinvestment Risk to Noteholders from Prepayments of Notes" and "Maturity and
Prepayment Considerations."
Determination of LIBOR
Pursuant to the Transfer and Servicing Agreement, for each Interest
Period after the initial Interest Period, the Master Servicer will determine
One-Month LIBOR for purposes of calculating the Formula Interest Rate due on the
Notes and the Noteholders' Interest Carryover for each given Interest Period on
the date which is both two Business Days (in New York and Virginia) and two
London Banking Days (a "London Banking Day" means a business day on which
dealings in deposits in United States dollars are transacted in the London
interbank market) preceding the commencement of each Interest Period (each, a
"Rate Determination Date"). The "Rate Adjustment Date" for (i) the Class A Notes
(which, except for the initial Interest Period, also will be the first day of an
Interest Period for the Class A Notes) will be the Distribution Date occurring
in each month, and (ii) the Class B Notes (which, except for the initial
Interest Period, also will be the first day of an Interest Period for the Class
B Notes) will be (A) the Distribution Date in each month while any Class A Notes
are outstanding, and (B) thereafter, the 25th day of each month, except that the
Rate Adjustment Date occurring in January, April, July or October will be the
Distribution Dates occurring in such months. Following the initial Interest
Period, each
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Interest Period thereafter for each Class of Notes shall commence on a Rate
Adjustment Date for such Class of Notes and shall continue through and include
the day immediately preceding the next Rate Adjustment Date for such Class of
Notes.
"One-Month LIBOR" means the rate of interest per annum equal to the
London interbank offered rate for deposits in U.S. dollars having a maturity of
one month commencing on the related Rate Determination Date (the "Index
Maturity") which appears on Telerate Page 3750 as of 11:00 a.m., London time, on
such Rate Determination Date. If such rate does not appear on Telerate Page
3750, the rate for that day will be determined by reference to the Reuters
Screen LIBOR Page. If such rate does not appear on Telerate Page 3750 or the
Reuters Screen LIBOR Page, the rate for that day will be determined on the basis
of the rates at which deposits in U.S. dollars, having the Index Maturity and in
a principal amount of not less than U.S. $1,000,000, are offered at
approximately 11:00 a.m., London time, on such Rate Determination Date to prime
banks in the London interbank market by the Reference Banks. The Master Servicer
will request the principal London office of each of such Reference Banks to
provide a quotation of its rate. If at least two such quotations are provided,
One-Month LIBOR for that day will be the arithmetic mean (rounded upwards, if
necessary, to the nearest .01%) of the quotations. If fewer than two quotations
are provided, One-Month LIBOR for that day will be the arithmetic mean (rounded
upwards, if necessary, to the nearest .01%) of the rates quoted by three major
banks in New York City, selected by the Master Servicer, or by the Trustee, as
applicable, at approximately 11:00 a.m., New York City time, on such Rate
Determination Date for loans in U.S. dollars to leading European banks having
the Index Maturity and in a principal amount equal to an amount of not less than
U.S. $1,000,000; provided, however, that if the banks selected as aforesaid are
not quoting as mentioned in this sentence, One-Month LIBOR in effect for the
applicable Interest Period will be One-Month LIBOR in effect for the previous
Interest Period.
"Telerate Page 3750" means the display page so designated on the Dow
Jones Telerate Service (or such other page as may replace that page on that
service for the purpose of displaying comparable rates or prices) .
"Reuters Screen LIBOR Page" will be the display designated as page
"LIBOR" on the Reuters Monitor Money Rates Service (or such other page as may
replace the LIBOR page for the purposes of displaying London interbank offered
rates of major banks).
"Reference Banks" means four leading banks, selected by the Master
Servicer, or by the Trustee, as applicable, (i) engaged in transactions in
Eurodollar deposits in the international Eurocurrency market, (ii) not
controlling, controlled by or under common control with the Administrator or the
Transferor and (iii) and having an established place of business in London.
The Indenture
Modification of the Indenture. With the consent of the holders of a
majority of the aggregate principal amount of Directing Notes then outstanding
(or, with respect to any change affecting only certain Classes of Notes, the
holders of a majority of the aggregate principal amount of Notes of such Class),
the Indenture Trustee and the Trust may execute a supplemental indenture to add
provisions to, or change in any manner or eliminate any provisions of, the
Indenture with respect to the Notes, or to modify (except as provided below) in
any manner the rights of the Noteholders.
Without the consent of the holder of each outstanding Note affected
thereby, however, no supplemental indenture will (i) change the date of payment
of any installment of principal of or interest on any Note or reduce the
principal amount thereof or the interest rate thereon, change the provisions of
the Indenture relating to the application of collections on, or the proceeds of
the sale of, the assets of the Trust to payment of principal of or interest on
the Notes, or change any place of payment where, or the coin or currency in
which, any Note or any interest thereon is payable, (ii) impair the right to
institute suit for the enforcement of certain provisions of the Indenture
regarding payment, (iii) reduce the percentage of the aggregate amount of the
outstanding Notes of any Class the consent of the holders of which is required
for any such supplemental indenture or the consent of the holders of which is
required for any waiver of compliance with certain provisions of the Indenture
or certain defaults thereunder and their consequences as provided for in the
Indenture, (iv) modify or alter certain provisions of the Indenture regarding
the determination of Notes that are considered "outstanding" for consent,
waivers and other matters, (v) reduce the percentage of the aggregate
outstanding amount of the Notes the consent of the holders of which
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is required to direct the Indenture Trustee to direct the Trust to sell or
liquidate the Financed Student Loans, (vi) decrease the percentage of the
aggregate principal amount of the Notes required to amend the sections of the
Indenture which specify the applicable percentage of aggregate principal amount
of the Notes necessary to amend the Indenture or certain other related
agreements, (vii) modify any of the provisions of the Indenture in such manner
as to affect the calculation of the amount of any payment of interest on any
Note or (viii) permit the creation of any lien ranking prior to or on a parity
with the lien of the Indenture with respect to any of the collateral for the
Notes or, except as otherwise permitted or contemplated in the Indenture,
terminate the lien of the Indenture on any such collateral or deprive the holder
of any Note of the security afforded by the lien of the Indenture.
The Trust and the Indenture Trustee may also enter into supplemental
indentures, but without obtaining the consent of Noteholders, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or modifying in any manner the rights of Noteholders
so long as such action will not, in the opinion of counsel satisfactory to the
Indenture Trustee, materially and adversely affect the interest of any
Noteholder. Any such amendment or supplemental indenture shall be deemed not to
materially and adversely affect any Noteholder if there is delivered to the
Indenture Trustee written notification from each Rating Agency that initially
rated the Notes to the effect that such amendment or supplement will not cause
that Rating Agency to reduce the then current rating assigned to the Notes.
Events of Default; Rights Upon Event of Default. An "Event of Default"
with respect to the Notes is defined in the Indenture as consisting of the
following (except as described in the remaining sentences of this paragraph):
(i) a default for five business days or more in the payment of any Noteholders'
Interest Distribution Amount after the same becomes due and payable; (ii) a
default for five business days in the payment of principal of any Note when the
same becomes due and payable; (iii) a default in the observance or performance
of any covenant or agreement of the Trust made in the Indenture or the Transfer
and Servicing Agreement and the continuation of any such default for a period of
30 days after notice thereof is given to the Trust by the Indenture Trustee or
to the Trust and the Indenture Trustee by the holders of at least 25% in
aggregate principal amount of the Directing Notes then outstanding; (iv) any
representation or warranty made by the Trust in the Indenture or in any
certificate delivered pursuant thereto or in connection therewith having been
incorrect in a material respect as of the time made, and such breach not having
been cured within 30 days after notice thereof is given to the Trust by the
Indenture Trustee or to the Trust and the Indenture Trustee by the holders of at
least 25% in aggregate principal amount of the Directing Notes then outstanding;
or (v) certain events of bankruptcy, insolvency, receivership or liquidation of
the Trust. However, the amount of principal required to be distributed to
Noteholders on any Distribution Date is limited to the amount of Available Funds
after payment of the Transaction Fees, overdue Transaction Fees, the
Consolidation Loan Fees, overdue Consolidation Loan Fees and the Noteholders'
Interest Distribution Amount. Any such principal shortfalls on any Distribution
Date will be carried over as a Noteholders' Principal Carryover Shortfall to be
paid on succeeding Distribution Dates. Therefore, the failure to pay principal
on any Class of Notes may not result in the occurrence of an Event of Default
until the Final Maturity Date of such Class of Notes. In addition, the failure
to pay the aggregate amount of Noteholders' Interest Carryover as a result of
insufficient Available Funds will not result in the occurrence of an Event of
Default.
If an Event of Default should occur and be continuing with respect to
any Class of Notes, the Indenture Trustee or holders of a majority in aggregate
principal amount of the Directing Notes then outstanding may declare all
outstanding Notes to be immediately due and payable, by notice to the Trust or
notice to the Indenture Trustee if given by the Noteholders. Such declaration
may be rescinded by the holders of a majority in aggregate principal amount of
the Directing Notes then outstanding at any time prior to the entry of judgment
in a court of competent jurisdiction for the payment of such amount if (i) the
Trust has paid to the Indenture Trustee a sum equal to all amounts then due with
respect to the Notes (without giving effect to such acceleration) and due to the
Indenture Trustee and (ii) all Events of Default (other than nonpayment of
amounts due solely as a result of such acceleration) have been cured or waived.
If the Notes have been declared to be due and payable following an
Event of Default with respect thereto, the Indenture Trustee may, in its
discretion, require the Eligible Lender Trustee to sell the Financed Student
Loans or elect to have the Eligible Lender Trustee maintain possession of the
Financed Student Loans and continue to apply collections with respect to such
Financed Student Loans as if there had been no declaration of acceleration. In
addition, the Indenture Trustee is prohibited from directing the Eligible Lender
Trustee to sell the Financed Student Loans following an Event of Default,
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other than a default for five days or more in the payment of any principal or a
default for five days or more in the payment of any interest on any Note, unless
(i) the holders of 100% of the aggregate amount of the Directing Notes
outstanding consent to such sale, (ii) the proceeds of such sale are sufficient
to pay in full the principal of and the accrued interest on the Notes
outstanding at the date of such sale or (iii) the Indenture Trustee determines
that the collections on the Financed Student Loans and other assets of the Trust
would not be sufficient on an ongoing basis to make all payments on the Notes as
such payments would have become due if such obligations had not been declared
due and payable, and the Indenture Trustee obtains the consent of the holders of
66-2/3% of the aggregate principal amount of the Directing Notes then
outstanding. Although the Indenture Trustee meets the criteria for an eligible
lender under the Higher Education Act and the HEAL Act, it may not become the
owner or holder of the Financed Student Loans without entering into guarantee
agreements with the applicable Guarantor of each Financed FFELP Loan and with
the Secretary of HHS with respect to the Financed HEAL Loans. The Indenture
Trustee has not entered into any such agreements. As a result, if the Indenture
Trustee determined to take title to or hold the loans itself, it would not be
permitted to do so without entering into such agreements or retaining an
eligible lender trustee to do it on its behalf. See "Description of the FFEL
Program" and "Description of the HEAL Program."
Subject to the provisions of the Indenture relating to the duties of
the Indenture Trustee, if an Event of Default should occur and be continuing
with respect to the Notes, the Indenture Trustee will be under no obligation to
exercise any of the rights or powers under the Indenture at the request or
direction of any of the holders of Notes, if the Indenture Trustee reasonably
believes it will not be adequately indemnified against the costs, expenses and
liabilities which might be incurred by it in complying with such request.
Subject to such provisions for indemnification and certain limitations contained
in the Indenture, the holders of a majority in aggregate principal amount of the
outstanding Directing Notes will have the right to direct the time, method and
place of conducting any proceeding or any remedy available to the Indenture
Trustee and the holders of a majority in aggregate principal amount of the
Directing Notes then outstanding, may, in certain cases, waive any default with
respect thereto, except a default in the payment of principal or interest or a
default in respect of a covenant or provision of the Indenture that cannot be
modified without the waiver or consent of all the holders of the outstanding
Directing Notes.
No holder of any Note will have the right to institute any proceeding
with respect to the Indenture, unless (i) such holder previously has given to
the Indenture Trustee written notice of a continuing Event of Default, (ii) the
holders of not less than 25% in principal amount of the outstanding Directing
Notes have requested in writing that the Indenture Trustee institute such
proceeding in its own name as Indenture Trustee, (iii) such holder or holders
have offered the Indenture Trustee reasonable indemnity, (iv) the Indenture
Trustee has for 60 days after notice 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 holders of a majority in
aggregate principal amount of the outstanding Directing Notes.
If an Event of Default should occur, payment of the Notes could occur,
if at all, later than their respective Final Maturity Dates.
Certain Covenants. The Trust may not consolidate with or merge into any
other entity unless (i) the entity formed by or surviving such consolidation or
merger is organized under the laws of the United States, or any state, and such
entity expressly assumes the Trust's obligation to make due and punctual
payments upon the Notes and the performance or observance of every agreement and
covenant of the Trust under the Indenture and any supplemental indenture, (ii)
no Event of Default has occurred and is continuing immediately after such merger
or consolidation, (iii) the Trust has received an opinion of counsel to the
effect that such consolidation or merger would have no material adverse federal
or Ohio or Delaware state tax consequence to the Trust or to any
Certificateholder or Noteholder, (iv) any action as is necessary to maintain the
lien and security interest created by the Indenture shall have been taken and
(v) the Trust shall have delivered to the Indenture Trustee an officer's
certificate of the Administrator and an opinion of counsel each stating that
such consolidation or merger and any supplemental indenture relating thereto
comply with the terms of the Indenture and that all conditions precedent
provided for in the Indenture to such transaction have been complied with
(including any Exchange Act filings) in all material respects.
Except as otherwise permitted by the Indenture, the Transfer and
Servicing Agreement and related documents (the "Related Documents"), the Trust
may not convey or transfer all or substantially all its properties or assets,
including the
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assets securing the Notes, unless the conditions specified in (i) through (v)
above with respect to a permitted merger or consolidation are substantially met,
plus the acquiror must agree (a) that all right, title and interest in the
property and assets so conveyed or transferred are subordinate to the rights of
the Noteholders, (b) to indemnify the Trust (unless otherwise provided in a
supplemental indenture) and (c) to make all filings with the Commission required
by the Exchange Act in connection with the Notes.
The Trust will not, among other things, (i) except as expressly
permitted by the Related Documents, sell, transfer, exchange or otherwise
dispose of any of the assets of the Trust, (ii) claim any credit on or make any
deduction from the principal and interest payable in respect of any Notes (other
than amounts withheld under the Code or applicable state law) or assert any
claim against any present or former holder of Notes because of the payment of
taxes levied or assessed upon the Trust, (iii) except as contemplated by the
Related Documents, dissolve or liquidate in whole or in part, (iv) permit the
validity or effectiveness of the Indenture or any supplemental indenture to be
impaired, or permit the lien of the Indenture and any supplemental indenture to
be amended, hypothecated, subordinated, terminated or discharged, or permit any
person to be released from any covenants or obligations with respect to any
Notes under the Indenture except as may be expressly permitted thereby, (v)
permit any lien, charge, excise, claim, security interest, mortgage or other
encumbrance (other than the lien of the Indenture and any supplemental
indenture) to be created on or extend to or otherwise arise upon or burden the
assets of the Trust or any part thereof, or any interest therein or the proceeds
thereof (other than certain tax and other liens arising by operation of law,
except as expressly permitted by the Related Documents) or (vi) permit the lien
of the Indenture and any supplemental indenture not to constitute a valid first
priority (other than with respect to such tax or other lien) security interest
in the assets securing the Notes.
The Trust may not engage in any activity other than financing,
purchasing, owning, selling, servicing and managing the Financed Student Loans
and activities incidental thereto.
The Trust will not issue, incur, assume or guarantee or otherwise
become liable for any indebtedness other than the Notes or otherwise in
accordance with the Related Documents.
Annual Compliance Statement and Other Notices. The Administrator, on
behalf of the Trust, will be required to file annually, commencing in 1999, with
the Indenture Trustee a written statement as to the fulfillment of the Trust's
obligations under the Indenture. The Trust is required to give the Indenture
Trustee written notice of each Event of Default among other notices. The
Indenture Trustee will notify Noteholders of known defaults under the Indenture
within 90 days after their occurrence.
Satisfaction and Discharge of Indenture. The Indenture will be
discharged with respect to the collateral securing the Notes upon the delivery
to the Indenture Trustee for cancellation of all the Notes or, with certain
limitations, upon deposit with the Indenture Trustee of funds sufficient for the
payment in full of all the Notes.
The Indenture Trustee. Bankers Trust Company, a New York banking
corporation, will be the Indenture Trustee under the Indenture.
Bankers Trust Company, the Indenture Trustee, may serve from time to
time as trustee under indentures or trust agreements with the Transferor or its
affiliates relating to other issues of their securities. In addition, the
Transferor or its affiliates may have other banking relationships with Bankers
Trust Company and its affiliates.
Book-Entry Registration
The description which follows of the procedures and record keeping with
respect to beneficial ownership interests in the Notes, payment of principal of
and interest on the Notes to DTC Participants, Cedel Participants and Euroclear
Participants or to purchasers of the Notes, confirmation and transfer of
beneficial ownership interests in the Notes, and other securities-related
transactions by and between DTC, Cedel, Euroclear, DTC Participants, Cedel
Participants, Euroclear Participants and Note Owners, is based solely on
information furnished by DTC, Cedel and Euroclear and has not been independently
verified by the Transferor or the Underwriters. The inclusion of this
information is not, and should not be construed as, a representation by the
Transferor or the Underwriters as to its accuracy or completeness or otherwise.
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Noteholders may hold their certificates through DTC (in the United
States) or Cedel or Euroclear (in Europe) if they are participants of such
systems, or indirectly through organizations that are participants in such
systems.
Cede, as nominee for DTC, will hold the global Notes. Cedel and
Euroclear will hold omnibus positions on behalf of the Cedel Participants and
the Euroclear Participants, respectively, through customers securities accounts
in Cedel's and Euroclear's names on the books of their respective depositories
(collectively, the "Depositories") which in turn will hold such positions in
customers' securities accounts in the Depositories' names on the books of DTC.
DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York Banking
Law, a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities for its Participants ("DTC Participants") and facilitates the
clearance and settlement among DTC Participants of securities transactions, such
as transfers and pledges, in deposited securities through electronic book-entry
changes in DTC Participants' accounts, thereby eliminating the need for physical
movement of securities certificates. DTC Participants include securities brokers
and dealers, banks, trust companies, clearing corporations and certain other
organizations. Indirect access to the DTC system is also available to others
such as securities brokers and dealers, banks, and trust companies that clear
through or maintain a custodial relationship with a DTC Participant, either
directly or indirectly ("Indirect Participants"). The rules applicable to DTC
and its DTC Participants are on file with the Commission.
Transfers between DTC Participants will occur in accordance with DTC
rules. Transfers between Cedel Participants and Euroclear Participants will
occur in the ordinary way in accordance with their applicable rules and
operating procedures.
Cross-market transfers between persons holding directly or indirectly
through DTC, on the one hand, and directly or indirectly through Cedel
Participants or Euroclear Participants, on the other, will be effected in DTC in
accordance with DTC rules on behalf of the relevant European international
clearing system by its Depository; however, such cross-market transactions will
require delivery of instructions to the relevant European international clearing
system by the counterparty in such system in accordance with its rules and
procedures and within its established deadlines (European time). The relevant
European international clearing system will, if the transaction meets its
settlement requirements, deliver instructions to its Depository to take action
to effect final settlement on its behalf by delivering or receiving securities
in DTC, and making or receiving payment in accordance with normal procedures for
same-day funds settlement applicable to DTC. Cedel Participants and Euroclear
Participants may not deliver instructions directly to the Depositories.
Because of time-zone differences, credits of securities in Cedel or
Euroclear as a result of a transaction with a DTC Participant will be made
during the subsequent securities settlement processing, dated the business day
following the DTC settlement date, and such credits or any transactions in such
securities settled during such processing will be reported to the relevant Cedel
Participant or Euroclear Participant on such business day. Cash received in
Cedel or Euroclear as a result of sales of securities by or through a Cedel
Participant or a Euroclear Participant to a DTC Participant will be received
with value on the DTC settlement date but will be available in the relevant
Cedel or Euroclear cash account only as of the business day following settlement
in DTC.
Day traders that use Cedel or Euroclear and that purchase the globally
offered Notes from DTC Participants for delivery to Cedel Participants or
Euroclear Participants should note that these trades may fail on the sale side
unless affirmative actions are taken. Participants should consult with their
clearing system to confirm that adequate steps have been taken to assure
settlement.
Purchases of Notes under the DTC system must be made by or through DTC
Participants, which will receive a credit for the Notes on DTC's records. The
ownership interest of each actual owner of a Note (a "Note Owner") is in turn to
be recorded on the DTC Participants' and Indirect Participants' records. Note
Owners will not receive written confirmation from DTC of their purchase, but
Note Owners are expected to receive written confirmations providing details of
the transaction, as well as periodic statements of their holdings, from the DTC
Participant or Indirect Participant through which the Note Owner entered into
the transaction. Transfers of ownership interests in the Notes are to be
accomplished by entries
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made on the books of DTC Participants acting on behalf of Note Owners. Note
Owners will not receive certificates representing their ownership interest in
Notes, except in the event that use of the book-entry system for the Notes is
discontinued.
To facilitate subsequent transfers, all Notes deposited by DTC
Participants with DTC are registered in the name of DTC's nominee, Cede. The
deposit of Notes with DTC and their registration in the name of Cede effects no
change in beneficial ownership. DTC has no knowledge of the actual Note Owners
of the Notes; DTC's records reflect only the identity of the DTC Participants to
whose accounts such Notes are credited, which may or may not be the Note Owners.
The DTC Participants will remain responsible for keeping account of their
holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to DTC
Participants, by DTC Participants to Indirect Participants, and by DTC
Participants and Indirect Participants to Note Owners will be governed by
arrangements among them, subject to any statutory or regulatory requirements as
may be in effect from time to time.
Neither DTC nor Cede will consent or vote with respect to Notes. Under
its usual procedures, DTC mails an omnibus proxy to the issuer as soon as
possible after the record date, which assigns Cede's consenting or voting rights
to those DTC Participants to whose accounts the Notes are credited on the record
date (identified in a listing attached thereto).
Principal and interest payments on the Notes will be made to DTC. DTC's
practice is to credit DTC Participants' accounts on the applicable Distribution
Date in accordance with their respective holdings shown on DTC's records unless
DTC has reason to believe that it will not receive payment on such Distribution
Date. Payments by DTC Participants to Note Owners will be governed by standing
instructions and customary practices, as is the case with securities held for
the accounts of customers in bearer form or registered in "street name" and will
be the responsibility of such DTC Participant and not of DTC, the Indenture
Trustee or the Transferor, subject to any statutory or regulatory requirements
as may be in effect from time to time. Payment of principal and interest to DTC
is the responsibility of the Indenture Trustee, disbursement of such payments to
DTC Participants shall be the responsibility of DTC, and disbursement of such
payments to Note Owners shall be the responsibility of DTC Participants and
Indirect Participants.
DTC may discontinue providing its services as securities depository
with respect to the Notes at any time by giving reasonable notice to the
Transferor or the Indenture Trustee. Under such circumstances, in the event that
a successor securities depository is not obtained, Definitive Notes are required
to be printed and delivered. The Administrator may decide to discontinue use of
the system of book-entry transfers through DTC (or a successor securities
depository). In that event, Definitive Notes will be delivered to Noteholders.
See "-- Definitive Notes."
Cedel is incorporated under the laws of Luxembourg as a professional
depository. Cedel holds securities for its participating organizations ("Cedel
Participants") and facilitates the clearance and settlement of securities
transactions between Cedel Participants through electronic book-entry changes in
accounts of Cedel Participants, thereby eliminating the need for physical
movement of certificates. Transactions may be settled in Cedel in any of 32
currencies, including United States dollars. Cedel provides to its Cedel
Participants, among other things, services for safekeeping, administration,
clearance and settlement of internationally traded securities and securities
lending and borrowing. Cedel interfaces with domestic markets in several
countries. As a professional depository, Cedel is subject to regulation by the
Luxembourg Monetary Institute. Cedel Participants are recognized financial
institutions around the world, including underwriters, securities brokers and
dealers, banks, trust companies, clearing corporations and certain other
organizations and may include the underwriters of any Series of Notes. Indirect
access to Cedel is also available to others, such as banks, brokers, dealers and
trust companies that clear through or maintain a custodial relationship with a
Cedel Participant, either directly or indirectly.
The Euroclear System was created in 1968 to hold securities for
participants of the Euroclear System ("Euroclear Participants") and to clear and
settle transactions between Euroclear Participants through simultaneous
electronic book-entry delivery against payment, thereby eliminating the need for
physical movement of certificates and any risk from lack of simultaneous
transfers of securities and cash. Transactions may now be settled in any of 32
currencies, including United States dollars. The Euroclear System includes
various other services, including securities lending and borrowing and
interfaces with domestic markets in 25 countries generally similar to the
arrangements for cross-market transfers with DTC
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described above. The Euroclear System is operated by Morgan Guaranty Trust
Company of New York, Brussels, Belgium office (the "Euroclear Operator" or
"Euroclear"), under contract with Euroclear Clearance System, Societe
Cooperative, a Belgian cooperative corporation (the "Cooperative"). All
operations are conducted by the Euroclear Operator, and all Euroclear securities
clearance accounts and Euroclear cash accounts are accounts with the Euroclear
Operator, not the Cooperative. The Cooperative Board establishes policy for the
Euroclear System. Euroclear Participants include banks (including central
banks), securities brokers and dealers and other professional financial
intermediaries and may include the underwriters of any Series of Notes. Indirect
access to the Euroclear System is also available to other firms that maintain a
custodial relationship with a Euroclear Participant, either directly or
indirectly.
The Euroclear Operator is the Belgian branch of a New York banking
corporation which is a member bank of the Federal Reserve System. As such, it is
regulated and examined by the Board of Governors of the Federal Reserve System
and the New York State Banking Department, as well as the Belgian Banking
Commission.
Securities clearance accounts and cash accounts with the Euroclear
Operator are governed by the Terms and Conditions Governing Use of Euroclear and
the related Operating Procedures of the Euroclear System (collectively, the
"Terms and Conditions"). The Terms and Conditions govern transfers of securities
and cash within the Euroclear System, withdrawal of securities and cash from the
Euroclear System, and receipts of payments with respect to securities in the
Euroclear System. All securities in the Euroclear System are held on a fundable
basis without attribution of specific certificates to specific securities
clearance accounts. The Euroclear Operator acts under the Terms and Conditions
only on behalf of Euroclear Participants and has no record of or relationship
with persons holding through Euroclear Participants.
The Euroclear Operator has advised as follows: Under Belgian law,
investors that are credited with securities on the records of the Euroclear
Operator have a co-property right in the fungible pool of interests in
securities on deposit with the Euroclear Operator in an amount equal to the
amount of interests in securities credited to their accounts. In the event of
the insolvency of the Euroclear Operator, Euroclear Participants would have a
right under Belgian law to the return of the amount and type of interests in
securities credited to their accounts with the Euroclear Operator. If the
Euroclear Operator did not have a sufficient amount of interests in securities
on deposit of a particular type to cover the claims of all Euroclear
Participants credited with such interests in securities on the Euroclear
Operator's records, all Euroclear Participants having an amount of interests in
securities of such type credited to their accounts with the Euroclear Operator
would have the right under Belgian law to the return of their pro-rata share of
the amount of interests in securities actually on deposit. Under Belgian law,
the Euroclear Operator is required to pass on the benefits of ownership in any
interests in securities on deposit with it (such as dividends, voting rights and
other entitlements) to any person credited with such interests in securities on
its records.
Distributions with respect to Notes held through Cedel or Euroclear
will be credited to the cash accounts of Cedel Participants or Euroclear
Participants in accordance with the relevant system's rules and procedures, to
the extent received by its Depository. Such distributions will be subject to tax
reporting in accordance with relevant United States tax laws and regulations.
See "Federal Income Tax Consequences." Cedel or the Euroclear Operator, as the
case may be, will take any other action permitted to be taken by a Noteholder
under the Agreement on behalf of a Cedel Participant or Euroclear Participant
only in accordance with its relevant rules and procedures and subject to its
Depository's ability to effect such actions on its behalf through DTC.
Although DTC, Cedel and Euroclear have agreed to the foregoing
procedures in order to facilitate transfers of Notes among participants of DTC,
Cedel and Euroclear, they are under no obligation to perform or continue to
perform such procedures and such procedures may be discontinued at any time.
Definitive Notes
Notes will be issued in fully registered, certificated form (the
"Definitive Notes") to Note Owners or their nominees rather than to DTC or its
nominee, only if (i) the Administrator advises the Indenture Trustee for such
Series in writing that DTC is no longer willing or able to discharge properly
its responsibilities as Depository with respect to such Series of Notes, and the
Administrator is unable to locate a qualified successor, (ii) the Administrator,
at its option, advises the Trustee in writing that it elects to terminate the
book-entry system through DTC or successor securities depository or (iii) after
the
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occurrence of an Event of Default, Master Servicer Default or Administrator
Default Noteholders representing not less than 50% of the outstanding principal
balance of the Directing Notes advise the Indenture Trustee and DTC through DTC
Participants in writing that the continuation of a book-entry system through DTC
(or a successor thereto) is no longer in the best interest of the Noteholders.
Upon the occurrence of any of the events described in the immediately
preceding paragraph, the Indenture Trustee will cause DTC to notify all DTC
Participants of the availability through DTC of Definitive Notes. Upon surrender
by DTC of the definitive certificate representing the Notes and instructions for
registration, the Indenture Trustee will issue the Notes as Definitive Notes,
and thereafter the Indenture Trustee will recognize the holders of such
Definitive Notes as Noteholders under the Indenture.
Distribution of principal and interest on the Notes will be made by the
Indenture Trustee directly to Noteholders of Definitive Notes in accordance with
the procedures set forth herein and in the Agreement. Interest payments and any
principal payments on each Distribution Date will be made to Noteholders in
whose names the Definitive Notes were registered at the close of business on the
related Record Date. The final payment on any Note (whether Definitive Notes or
the Notes registered in the name of Cede representing the Notes), will he made
only upon presentation and surrender of such Note at the office or agency
specified in the notice of final distribution to Noteholders. The Indenture
Trustee will provide such notice to registered Noteholders prior to the
Distribution Date on which it expects such final distributions to occur.
Definitive Notes will be transferable and exchangeable at the offices
of the transfer agent and registrar for the Notes, which shall initially be the
Indenture Trustee. No service charges will be imposed for any registration of
transfer or exchange, but the Transfer Agent and Registrar may require payment
of a sum sufficient to cover any tax or other governmental charge imposed in
connection therewith.
List of Noteholders
A Noteholder may, by written request to the Indenture Trustee, obtain
access to the list of all Noteholders maintained by the Indenture Trustee for
the purpose of communicating with other Noteholders with respect to their rights
under the Indenture or the Notes. The Indenture Trustee may elect not to afford
the requesting Noteholders access to the list of Noteholders if it agrees to
mail the desired communication or proxy, on behalf and at the expense of the
requesting Noteholders, to all Noteholders.
Reports to Noteholders
On each Distribution Date, the Indenture Trustee will provide to the
applicable Noteholders of record as of the related Record Date, a statement
setting forth substantially the same information as is required to be provided
on the report provided to the Indenture Trustee and the Trust described under
"Description of Transfer and Servicing Agreements -Statements to Indenture
Trustee."
Within the prescribed period of time for tax reporting purposes after
the end of each calendar year during the term of the Indenture, the Indenture
Trustee will mail to each person who at any time during such calendar year was a
Noteholder and received any payment thereon, a statement containing certain
information for the purposes of such Noteholder's preparation of federal income
tax returns. See "Federal Income Tax Consequences."
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DESCRIPTION OF THE TRANSFER AND SERVICING AGREEMENTS
General
The following is a summary of the material terms of the Transfer and
Servicing Agreement, pursuant to which the Eligible Lender Trustee on behalf of
the Trust will obtain, the Master Servicer will service and the Administrator
will perform certain administrative functions with respect to the Financed
Students Loans; the Administration Agreement, pursuant to which the
Administrator will undertake certain other administrative duties with respect to
the Trust and the Financed Student Loans; and the Trust Agreement, pursuant to
which the Trust has been created and the Certificates have been issued
(collectively, the "Transfer and Servicing Agreements"). The summary does not
purport to be complete and is qualified in its entirety by reference to the
provisions of the Transfer and Servicing Agreements. Each of such Transfer and
Servicing Agreements will be substantially in the form filed as an exhibit to
the Registration Statement of which this Prospectus is a part.
Conveyance of Initial Financed Student Loans; Representations and Warranties
On the Closing Date, the Transferor will contribute and assign to the
Eligible Lender Trustee on behalf of the Trust, without recourse, its entire
interest in the Initial Financed Student Loans described in the Transfer and
Servicing Agreement, all collections received and to be received with respect
thereto for the period after the Cut-off Date and all the Assigned Rights
pursuant to the Transfer and Servicing Agreement. Each Financed Student Loan
will be identified in schedules appearing as an exhibit to the Transfer and
Servicing Agreement. The Eligible Lender Trustee will, concurrently with such
contribution and assignment, execute, authenticate and deliver the Notes, which
will be authenticated by the Indenture Trustee.
In the Transfer and Servicing Agreement, the Transferor will make
certain representations and warranties with respect to the Financed Student
Loans to the Trust for the benefit of the Certificateholders and the
Noteholders, including, among other things, that (i) each Financed Student Loan,
at the time of transfer to the Trust, is free and clear of all security
interests, liens, charges and encumbrances and no offsets, defenses or
counterclaims have been asserted or, to the Transferor's knowledge, threatened;
(ii) the information provided with respect to the Financed Student Loans is true
and correct in all material respects as of the Cut-off Date (or in the case of a
Subsequent Financed Student Loan, as of its Subsequent Cut-off Date); and (iii)
each Financed Student Loan, at the time it was originated, complied and, at the
Closing Date (or in the case of a Subsequent Financed Student Loan, as of its
Subsequent Cut-off Date), complies in all material respects with applicable
federal and state laws (including, without limitation, the Higher Education Act,
the HEAL Act, consumer credit, truth-in-lending, equal credit opportunity and
disclosure laws) and applicable restrictions imposed by (A) the FFEL Program or
under any Guarantee Agreement with respect to FFELP Loans and (B) the HEAL
Program or under the HEAL Insurance Contract with respect to HEAL Loans.
Following the discovery by or notice to the Transferor of a breach of
any such representation or warranty with respect to any Financed Student Loan
that materially and adversely affects the interests of the Noteholders in such
Financed Student Loan (it being understood that any such breach that has not
resulted in the failure of a Guarantee Agency to make a Guarantee Payment or the
Department of HHS to make an Insurance Payment to the Eligible Lender Trustee
will not be considered to have a material adverse effect for this purpose), the
Transferor will, unless such breach is cured within 120 days, purchase such
Financed Student Loan from the Eligible Lender Trustee, as of the first day
following the end of such 120-day period that is the last day of a Collection
Period, at a price equal to the applicable Purchase Amount (as defined below);
provided, however, that in the case of any representation or warranty the breach
of which may be cured by reinstatement of the Guarantor's obligation to
guarantee payment or the Department of HHS's obligation to insure payment, such
cure period shall be 360 days (instead of 120 days), in each case following the
earlier of the date on which such breach is discovered by the Transferor and the
date of the Servicer's receipt of the Guarantor or Department of HHS reject
transmittal form with respect to such Financed Student Loan. Notwithstanding the
foregoing, if as of the last day of any Collection Period the aggregate
principal amount of Financed Student Loans with respect to which claims have
been filed with and rejected by a Guarantor or the Department of HHS as a result
of a breach of a representation or warranty of the Transferor or a breach of the
obligations of the Master Servicer or with respect to which the Master Servicer
determines that claims cannot be filed pursuant to the Higher Education Act or
the HEAL Act, as the case may be, as a result of such a
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breach exceeds the lesser of $250,000 or 0.25% of the Pool Balance as of such
date, the Transferor shall repurchase within 120 days of a written request by
the Eligible Lender Trustee or the Indenture Trustee, affected Financed Student
Loans in an aggregate principal amount such that after such repurchases (or
purchases by the Master Servicer as described below under "Master Servicer
Covenants") the aggregate principal amount of affected Financed Student Loans is
equal to or less than the lesser of $250,000 or 0.25% of the Pool Balance. The
Financed Student Loans to be repurchased by the Transferor (or purchased by the
Master Servicer) as described in the preceding sentence will be based on the
date of claim rejection, with the Financed Student Loans with the earliest such
dates to be repurchased or purchased first. In addition, the Transferor will
reimburse the Trust (i) for any accrued interest amounts that the Department of
HHS refuses to pay with respect to Financed HEAL Loans due to, and (ii) for any
accrued interest amounts that a Guarantor refuses to pay pursuant to its
Guarantee Agreement, or for any Interest Subsidy Payments and Special Allowance
Payments that are lost or that must be repaid to the Department of Education
with respect to Financed FFELP Loans, as a result of a breach of any such
representation or warranty by the Transferor. Under certain circumstances, the
Transferor also has the right to repurchase, or transfer a Subsequent Financed
Student Loan in exchange for, a Financed Student Loan for which it has a
reimbursement obligation as described in the preceding sentence. The repurchase
and reimbursement obligations of the Transferor will constitute, together with
the right to receive certain amounts from the Reserve Account, the sole remedy
available to or on behalf of the Trust, the Certificateholders or the
Noteholders for any such uncured breach. The Transferor's repurchase and
reimbursement obligations are contractual obligations pursuant to the Transfer
and Servicing Agreement that may be enforced against the Transferor, but the
breach of which will not constitute an Event of Default.
"Purchase Amount" means, as to any Financed Student Loan on any date of
determination, the amount required to prepay in full the outstanding principal
balance of such Financed Student Loan as of the last day of the most recently
completed Collection Period, including all accrued but unpaid interest thereon
(including interest to be capitalized) through the last day of the Collection
Period in which such Financed Student Loan is being purchased.
Subsequent Finance Period and Subsequent Financed Student Loans
During the period (the "Subsequent Finance Period") from the Closing
Date until December 31, 2002, subject to the conditions set forth in the
Transfer and Servicing Agreement, the Transferor may, at its option, transfer to
the Eligible Lender Trustee on behalf of the Trust, Subsequent Financed Student
Loans, and direct the Eligible Lender Trustee and the Indenture Trustee to apply
Consolidation Prepayments on deposit in the Collection Account to pay the
Subsequent Financing Purchase Price for such Subsequent Financed Student Loans.
Subsequent Financed Student Loans that may be so transferred by the Transferor
include (i) Consolidation Loans or HEAL Consolidation Loans made by the
Transferor, provided that in no event shall the aggregate amount of Subsequent
Financed Student Loans that are Consolidation Loans or HEAL Consolidation Loans
transferred into the Trust exceed $1,000,000; and (ii) Serial Loans owned by the
Transferor that are serial (i.e., made to the same borrower under the same loan
program and guaranteed by the same Guarantor or insured by the Department of
HHS) to an existing Financed Student Loan owned by the Trust, provided that each
such Subsequent Financed Student Loan entitles the holder thereof to receive
interest based on the same interest rate index as the Financed Student Loan to
which it is serial, and provided further, that in no event shall the aggregate
amount of Subsequent Financed Student Loans that are Serial Loans transferred
into the Trust exceed $750,000.
"Consolidation Prepayments" means, for any date (each, a "Subsequent
Finance Date") that any Subsequent Financed Student Loans are being transferred
into the Trust, the amount of principal then on deposit in the Collection
Account representing payments received as a result of Financed Student Loans
being repaid with the proceeds of Consolidation Loans or HEAL Consolidation
Loans (provided, however, if a Subsequent Finance Date occurs during the month
of a Distribution Date, Consolidation Prepayments will not include amounts
received during the month of such Distribution Date).
"Subsequent Financing Purchase Price" means, as to any Subsequent
Financed Student Loan, the principal amount of such Subsequent Financed Student
Loan as of the Subsequent Cut-off Date for such loan and all accrued and unpaid
interest on (including interest to be capitalized) such Subsequent Financed
Student Loan (other than Interest Subsidy Payments and Special Allowance
Payments payable through the Subsequent Cut-Off Date) through the Subsequent
Cut-off Date for such loan.
In addition, during the Subsequent Finance Period, subject to the
conditions set forth in the Transfer and Servicing Agreement, the Transferor
may, at its option, in lieu of reimbursing certain lost interest payments and
Special Allowance
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Payments or depositing into the Collection Account the Purchase Amount of a
Financed Student Loan which has become ineligible for and lost interest payments
or Special Allowance Payments (as described under "Description of the Transfer
and Servicing Agreements -- Conveyance of Initial Financed Student Loans;
Representations and Warranties" and "-- Master Servicer Covenants"), the
Transferor may transfer to the Eligible Lender Trustee on behalf of the Trust, a
Subsequent Financed Student Loan which satisfies the following criteria: (A) the
Subsequent Financed Student Loan was originated under the same loan program as
the Financed Student Loan for which it is being exchanged and entitles the
holder thereof to receive interest based on the same interest rate index as the
Financed Student Loan for which it is being exchanged, (B) the Subsequent
Financed Student Loan will not, at any level of such interest rate index, have
an interest rate that is less than the Financed Student Loan for which it is
being exchanged and (C) the average principal balance per Obligor of the
Subsequent Financed Student Loans that are being transferred into the Trust on
each Subsequent Finance Date and the existing Financed Student Loans for which
they are being exchanged is within 10% (plus or minus) of the average principal
balance per Obligor of the Financed Student Loans being transferred to the
Transferor on such Subsequent Finance Date. If on any Subsequent Finance Date
that any Subsequent Financed Student Loans are being exchanged into the Trust as
described in this paragraph, the aggregate outstanding principal balance as of
the related Subsequent Cut-off Date of all the Subsequent Financed Student Loans
being exchanged on such Subsequent Finance Date as described in this paragraph
is less than that of all the Financed Student Loans for which they are being
exchanged, an amount equal to such difference (the "Adjustment Payments") shall
be deposited by the Transferor into the Collection Account on the related
Subsequent Finance Date. If on any Subsequent Finance Date the aggregate
outstanding principal balance as of the related Subsequent Cut-off Date of all
the Subsequent Financed Student Loans being exchanged on such Subsequent Finance
Date as described in this paragraph is greater than that of all the Financed
Student Loans for which they are being exchanged, upon written request of the
Transferor an amount up to the amount of such excess (the "Issuer 2.3(b)
Payments") shall be remitted by the Indenture Trustee to the Transferor from
Consolidation Prepayments on deposit in the Collection Account.
An acquisition of Subsequent Financed Student Loans will be prohibited
at any time that an Event of Default under the Indenture, a Master Servicer
Default under the Transfer and Servicing Agreement or an Administrator Default
under the Administration Agreement is continuing.
Accounts
The Indenture Trustee will establish and maintain the Collection
Account, the Note Distribution Account, the Expense Account, the Reserve Account
and the Monthly Advance Account. The Eligible Lender Trustee will establish and
maintain two accounts, referred to as the "Certificate Distribution Account" and
the "Certificate Quarterly Advance Account" in the name of the Eligible Lender
Trustee on behalf of the Certificateholders. The foregoing accounts are referred
to collectively as the "Trust Accounts" in the name of the Indenture Trustee on
behalf of the Noteholders or the Eligible Lender Trustee on behalf of the
Certificateholders.
Funds in the Trust Accounts will be invested as provided in the
Transfer and Servicing Agreement in Eligible Investments. "Eligible Investments"
include the following:
(i) Cash (insured at all times by the Federal Deposit Insurance
Corporation);
(ii) Direct obligations of (including obligations issued or held in
book entry form on the books of) the Department of the
Treasury of the United States of America;
(iii) obligations of any of the following federal agencies which
obligations represent the full faith and credit of the United
States of America, including:
- Export-Import Bank
- Farm Credit System Financial Assistance Corporation
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- Farmers Home Administration
- General Services Administration
- U.S. Maritime Administration
- Small Business Administration
- Government National Mortgage Association (GNMA)
- U.S. Department of Housing & Urban Development (PHA's)
- Federal Housing Administration;
(iv) senior debt obligations rated "AAA" by Standard & Poor's and
"Aaa" by Moody's issued by the Federal National Mortgage
Association or the Federal Home Loan Mortgage Corporation
(v) U.S. dollar denominated deposit accounts, federal funds and
banker's acceptances with domestic commercial banks which have
a rating on their short term certificates of deposit on the
date of purchase of "A-1+" by Standard & Poor's and "P-1" by
Moody's and maturing no more than 360 days after the date of
purchase (ratings on holding companies not being considered
the rating of the bank);
(vi) commercial paper which is rated at the time of purchase in the
single highest classification, "A-1+" by Standard & Poor's and
"P-1" by Moody's and which matures not more than 270 days
after the date of purchase;
(vii) Investments in money market funds (including, but not limited
to, money market mutual funds) rated "AAAm" or "AAAm-G" or
better by Standard & Poor's;
(viii) investment agreements acceptable to the Rating Agencies,
written confirmation of which shall be furnished to the
Indenture Trustee prior to any such investment; and
(ix) other forms of investments acceptable to the Rating Agencies,
written confirmation of which shall be furnished to the
Indenture Trustee prior to any such investment.
Notwithstanding anything in the Transfer and Servicing Agreement to the
contrary, for so long as the Transferor is a Certificateholder, all investments
of the Trust shall be made in investments permissible for a national bank. If
the amount required to be withdrawn from the Reserve Account to cover shortfalls
in the amount of Available Funds exceeds the amount of cash in the Reserve
Account, a temporary shortfall in the amounts distributed to the Noteholders
could result. This could, in turn, increase the average life of the Notes.
Investment earnings on funds deposited in the Trust Accounts, net of losses and
investment expenses (collectively, "Investment Earnings"), will be deposited in
the Collection Account.
The Trust Accounts will be maintained as Eligible Deposit Accounts.
"Eligible Deposit Account" means either (a) a segregated account with an
Eligible Institution or (b) a segregated trust account with the corporate trust
department of a depository institution organized under the laws of the United
States of America or any one of the states thereof or the District of Columbia
(or any domestic branch of a foreign bank), having corporate trust powers and
acting as trustee for funds deposited in such account, so long as any of the
securities of such depository institution have a credit rating from each Rating
Agency in one of its generic rating categories which signifies investment grade.
An "Eligible Institution" is generally a depository institution organized under
the federal or any state banking laws whose deposits are insured by the Federal
Deposit Insurance Corporation and whose unsecured long-term debt obligations or
short-term debt ratings are acceptable to Standard & Poor's and Moody's.
Servicing Procedures
Pursuant to the Transfer and Servicing Agreement, the Master Servicer
has agreed to service, and perform all other related tasks with respect to, all
the Financed Student Loans acquired from time to time. The Master Servicer is
required pursuant to the Transfer and Servicing Agreement to perform all
services and duties customary to the servicing of Financed Student Loans
(including all collection practices), and to do so with reasonable care and in
compliance with all standards
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and procedures provided for in the Higher Education Act, the Guarantee
Agreements, the Heal Act, the HEAL Insurance Contract and all other applicable
federal and state laws.
Without limiting the foregoing, the duties of the Master Servicer under
the Transfer and Servicing Agreement include, but are not limited to, collecting
and depositing into the Collection Account all payments with respect to the
Financed Student Loans, including claiming and obtaining any Insurance Payments
with respect to Financed HEAL Loans, and, with respect to Financed FFELP Loans,
any Guarantee Payments, Interest Subsidy Payments and Special Allowance
Payments; responding to inquiries from borrowers on the Financed Student Loans;
and investigating delinquencies and sending out statements, payment coupons and
tax reporting information to borrowers. In addition, the Master Servicer will
keep ongoing records with respect to such Financed Student Loans and collections
thereon and will furnish monthly and annual statements to the Administrator with
respect to such information, in accordance with the customary standards and as
otherwise required in the Transfer and Servicing Agreement.
The Master Servicer may enter into sub-servicing agreements with
sub-servicers pursuant to which some or all of the Financed Student Loans may be
serviced on behalf of the Master Servicer. No such sub-servicing arrangement
will relieve the Master Servicer of its duties and obligations under the
Transfer and Servicing Agreement.
Payments on Financed Student Loans
The Master Servicer shall cause each Servicer to deposit in the
Collection Account, no less frequently than weekly, all payments on Financed
Student Loans for which such Servicer is acting as primary servicer (from
whatever source) and all proceeds of such Financed Student Loans collected by it
during each Collection Period.
Master Servicer Covenants
In the Transfer and Servicing Agreement, the Master Servicer covenants
that: (a) it will duly satisfy or cause to be duly satisfied all obligations on
its part to be fulfilled under or in connection with the Financed Student Loans,
maintain in effect all qualifications required to service the Financed Student
Loans and comply in all material respects with all requirements of law in
connection with servicing the Financed Student Loans, the failure to comply with
which would have a materially adverse effect on the Noteholders; (b) it will not
permit any rescission or cancellation of a Financed Student Loan except as
ordered by a court of competent jurisdiction or other government authority or as
otherwise consented to by the Eligible Lender Trustee and the Indenture Trustee;
(c) it will do nothing to impair in any material respect the rights of the
Noteholders in the Financed Student Loans; and (d) it will not reschedule,
revise, defer or otherwise compromise with respect to payments due on any
Financed Student Loan except pursuant to any applicable Deferment or Forbearance
Periods or otherwise in accordance with its guidelines with respect to the
servicing of the Financed Student Loans; provided, however, that the Master
Servicer may not agree to any decrease of the interest rate on, or the principal
amount payable with respect to, any Financed Student Loan except as otherwise
permitted by the Higher Education Act or any Guarantee Agreement with respect to
Financed FFELP Loans and by the Heal Act and the HEAL Insurance Contract with
respect to Financed HEAL Loans. Notwithstanding the foregoing, the Master
Servicer may, in its sole discretion, without having to obtain the consent or
approval of any other party, (i) not collect late charges that may be due on
Financed Student Loans, and (ii) waive remaining amounts owing under a Financed
Student Loan up to and including $250.00).
Following the discovery by
or notice to the Master Servicer of a breach of any such obligations
with respect to any Financed Student Loan that materially and adversely affects
the interests of the Noteholders in such Financed Student Loan (it being
understood that any such breach that has not resulted in the failure of a
Guarantee Agency to make a Guarantee Payment or the Department of HHS to make an
Insurance Payment to the Eligible Lender Trustee will not be considered to have
a material adverse effect for this purpose), the Master Servicer will, unless
such breach is cured within 120 days, purchase such Financed Student Loan from
the Eligible Lender Trustee, as of the first day following the end of such
120-day period that is the last day of a Collection Period, at a price equal to
the applicable Purchase Amount; provided, however, that in the case of any
obligation the breach of which may be cured by reinstatement of the Guarantor's
obligation to guarantee payment or the Department of HHS's obligation to insure
payment, such cure period shall be 360 days (instead of 120 days), in each case
following the earlier of the date on which such breach is discovered by the
Master Servicer and the date of the Servicer's receipt of the Guarantor or
Department of HHS reject transmittal form with respect to such
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Financed Student Loan. Notwithstanding the foregoing, if as of the last day of
any Collection Period the aggregate principal amount of Financed Student Loans
with respect to which claims have been filed with and rejected by a Guarantor or
the Department of HHS as a result of a breach of a representation or warranty of
the Transferor (as described above under "Conveyance of Initial Financed Student
Loans; Representations and Warranties") or a breach of the obligations of the
Master Servicer or with respect to which the Master Servicer determines that
claims cannot be filed pursuant to the Higher Education Act or the HEAL Act, as
the case may be, as a result of such a breach exceeds the lesser of $250,000 or
0.25% of the Pool Balance as of such date, the Master Servicer shall purchase
within 120 days of a written request by the Eligible Lender Trustee or the
Indenture Trustee, affected Financed Student Loans in an aggregate principal
amount such that after such purchases (or repurchases by the Transferor as
described above under "Conveyance of Initial Financed Student Loans;
Representations and Warranties") the aggregate principal amount of affected
Financed Student Loans is equal to or less than the lesser of $250,000 or 0.25%
of the Pool Balance. The Financed Student Loans to be purchased by the Master
Servicer (or repurchased by the Transferor) as described in the preceding
sentence will be based on the date of claim rejection, with the Financed Student
Loans with the earliest such dates to be repurchased or purchased first. In
addition, the Master Servicer will reimburse the Trust (i) for any accrued
interest amounts that the Department of HHS refuses to pay with respect to
Financed HEAL Loans due to, and (ii) for any accrued interest amounts that a
Guarantor refuses to pay pursuant to its Guarantee Agreement, or for any
Interest Subsidy Payments and Special Allowance Payments that are lost or that
must be repaid to the Department of Education with respect to Financed FFELP
Loans, as a result of a breach of any such obligation by the Master Servicer.
Under certain circumstances, the Master Servicer also has the right to purchase,
or (if the Transferor is the Master Servicer at the time of such purchase)
transfer a Subsequent Financed Student Loan in exchange for, a Financed Student
Loan for which it has a reimbursement obligation as described in the preceding
sentence. The purchase and reimbursement obligations of the Master Servicer will
constitute, together with the right to receive certain amounts from the Reserve
Account, the sole remedy available to or on behalf of the Trust, the
Certificateholders or the Noteholders for any such uncured breach. The Master
Servicer's purchase and reimbursement obligations are contractual obligations
pursuant to the Transfer and Servicing Agreement that may be enforced against
the Master Servicer, but the breach of which will not constitute an Event of
Default.
Servicing Compensation
The Master Servicer will be entitled to receive a quarterly fee (the
"Servicing Fee") with respect to each calendar quarter in an amount equal to (i)
0.70% per annum of the average of the Pool Balance as of the last day of the
calendar quarter and the last day of the immediately preceding calendar quarter
(or the Cut-off Date with respect to the calendar quarter ending March 31,
1998), or (ii) such greater amount acceptable to the Rating Agencies, prior
written confirmation of which shall be provided to the Indenture Trustee. An
increase in the Servicing Fee pursuant to clause (ii) of the preceding sentence
is not subject to a limit. The Servicing Fee will be payable quarterly in
advance, out of Available Funds and amounts on deposit in the Reserve Account,
on each Distribution Date (or in the case of the initial Servicing Fee, on the
Closing Date) based on the Administrator's good faith estimate of the Servicing
Fee that will accrue during the Collection Period in which such Distribution
Date occurs (or in the case of the initial Servicing Fee, the Collection Period
immediately succeeding the Closing Date) plus (or minus) the difference (or
excess) of the actual Servicing Fee accrued for the Collection immediately
preceding such Distribution Date and the amount paid as an estimated Servicing
Fee for such Collection Period on the immediately preceding Distribution Date
(or the Closing Date with respect to the first Distribution Date).
The Servicing Fee will compensate the Master Servicer and each other
Servicer for performing the functions of a third party servicer of student loans
as an agent for their beneficial owner, including collecting and posting all
payments, responding to inquiries of borrowers on the Financed Student Loans,
investigating delinquencies, pursuing, filing and collecting any Guarantee
Payments and Insurance Payments, including litigation costs, accounting for
collections and furnishing monthly and annual statements to the Administrator.
The Servicing Fee also will reimburse the Master Servicer for certain taxes,
accounting fees, outside auditor fees, data processing costs and other costs
incurred in connection with administering the Financed Student Loans.
Distributions
Deposits to Collection Account. On or before each Distribution
Determination Date, the Administrator will provide the Indenture Trustee and the
Eligible Lender Trustee a report setting forth by component the Available Funds
for the
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immediately preceding Collection Period (or the three preceding Collection
Periods if the Class A Notes are no longer outstanding).
For purposes hereof, the term "Available Funds" means the excess of (A)
the sum, without duplication, of the following amounts with respect to the
related Collection Period: (i) all collections received by the Master Servicer
or any Servicer on the Financed Student Loans (including any Guarantee Payments
and Insurance Payments received with respect to the Financed Student Loans
during such Collection Period); (ii) any payments, including without limitation,
Interest Subsidy Payments and Special Allowance Payments received by the
Eligible Lender Trustee during such Collection Period with respect to the
Financed Student Loans; (iii) all proceeds from any sales of Financed Student
Loans by the Trust during such Collection Period; (iv) any payments of or with
respect to interest received by the Master Servicer or a Servicer during such
Collection Period with respect to a Financed Student Loan for which a Realized
Loss was previously allocated; (v) the aggregate Purchase Amounts received for
those Financed Student Loans purchased by the Transferor or the Master Servicer
during the related Collection Period; (vi) the aggregate amounts, if any,
received from the Transferor or the Master Servicer as reimbursement of
non-guaranteed or uninsured interest amounts (which shall not include, with
respect to Financed FFELP Loans, the portion of such interest amounts (i.e., 2%)
for which the Guarantor did not have an obligation to make a Guarantee Payment),
or lost Interest Subsidy Payments and Special Allowance Payments with respect to
the Financed Student Loans pursuant to the Transfer and Servicing Agreement;
(vii) all Adjustment Payments, if any, received from the Transferor during such
Collection Period; and (viii) Investment Earnings for such Collection Period
over (B) the Issuer 2.3(b) Payments for such Collection Period; provided,
however, that Available Funds will exclude all payments and proceeds of any
Financed Student Loans the Purchase Amount of which has been included in
Available Funds for a prior Collection Period (which payments and proceeds shall
be paid to the Transferor), and amounts used to reimburse the Master Servicer
for Monthly Advances pursuant to the terms of the Transfer and Servicing
Agreement.
Distributions from Collection Account. On each Distribution
Determination Date, the Administrator will advise the Indenture Trustee and the
Eligible Lender Trustee in writing of the applicable Noteholders' Interest
Distribution Amount and Certificateholders' Interest Distribution Amount.
Additionally, on each Distribution Determination Date, the Administrator will
advise the Indenture Trustee and the Eligible Lender Trustee in writing of the
applicable Noteholders' Principal Distribution Amount (or, after all the Notes
have been paid in full, the Certificateholders' Principal Distribution Amount).
Further, on each Distribution Determination Date relating to a Quarterly
Distribution Date, the Administrator will advise the Indenture Trustee in
writing of the estimated Transaction Fees payable for the calendar quarter in
which such Quarterly Distribution Date occurs.
On each Distribution Date, the Indenture Trustee will transfer from the
Collection Account, in the following priority and from Available Funds for each
Collection Period from and including the Collection Period during which the
preceding Quarterly Distribution Date occurred through the Collection Period
immediately preceding the month of such Distribution Date (or with respect to
each Distribution Date through and including the first Quarterly Distribution
Date, from the Closing Date through and including the Collection Period
immediately preceding such Distribution Date), the required amounts from the
Available Funds for such Collection Periods:
(i) to the Expense Account (A) an amount equal to the Consolidation
Loan Fees with respect to the calendar month most recently ended and
all overdue Consolidation Loan Fees from prior months, and (B) if such
Distribution Date is a Quarterly Distribution Date, an amount up to the
estimated Transaction Fees for the calendar quarter commencing in the
month of such Quarterly Distribution Date and all overdue Transaction
Fees from prior calendar quarters (plus (or minus) the difference (or
excess) of the actual Transaction Fees for the immediately preceding
calendar quarter and the Transaction Fees deposited into the Expense
Account on the preceding Quarterly Distribution Date),
(ii) to the Note Distribution Account, an amount up to the Noteholders'
Interest Distribution Amount,
(iii) to the Note Distribution Account, an amount up to the
Noteholders' Principal Distribution Amount,
(iv) to the Certificate Distribution Account, an amount up to the
Certificateholders' Interest Distribution Amount, and
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(v) after the Notes have been paid in full, to the Certificate
Distribution Account, an amount up to the Certificateholders' Principal
Distribution Amount.
On each Quarterly Distribution Date (and with respect to clause (i)
below on each Distribution Date while the Class A Notes are outstanding, and
thereafter, on the 25th day of each month, or if such day is not a Business Day,
the next succeeding Business Day) following the transfer to the Expense Account
described in the preceding paragraph, the Indenture Trustee will distribute from
the Expense Account (in addition to any amounts transferred from the Reserve
Account as described herein) the following amounts in the following order of
priority:
(i) to the Department of Education, the Consolidation Loan Fees for the
immediately preceding calendar month together with any overdue
Consolidation Loan Fees for any prior months,
(ii) to the Master Servicer, the estimated Servicing Fee for the
calendar quarter in which such Quarterly Distribution Date occurs and
all overdue Servicing Fees,
(iii) to the Administrator, the estimated Administration Fee for the
calendar quarter in which such Quarterly Distribution Date occurs and
all overdue Administration Fees,
(iv) to the Indenture Trustee, the estimated Indenture Trustee Fee for
the calendar quarter in which such Quarterly Distribution Date occurs
and all overdue Indenture Trustee Fees, and
(v) to the Eligible Lender Trustee and the Delaware Trustee, the
estimated Eligible Lender Trustee Fee and the Delaware Trustee Fee,
respectively, for the calendar quarter in which such Quarterly
Distribution Date occurs and all overdue Eligible Lender Trustee Fees
and Delaware Trustee Fees.
On each Distribution Date, following the transfer to the Note
Distribution Account, the Indenture Trustee will distribute to the Noteholders
as of the related Record Date the amounts transferred to the Note Distribution
Account as set forth above (in addition to any amounts transferred from the
Reserve Account and the Monthly Advance Account and any Parity Percentage
Payments transferred from the Collection Account, each as described below) in
the following order of priority:
(i) first, to each Class of Class A Noteholders, the Class A
Noteholders' Interest Distribution Amount (pro rata based upon the
portion thereof allocable to each such Class),
(ii) second, if such Distribution Date is a Quarterly Distribution
Date, to the Class B Noteholders, the Class B Noteholders' Interest
Distribution Amount,
(iii) third, to the Class A-1 Noteholders, the Noteholders' Principal
Distribution Amount until the Outstanding Amount of the Class A-1 Notes
has been paid in full,
(iv) fourth, after the principal balance of the Class A-1 Notes has
been reduced to zero, to the Class A-2 Noteholders, the Noteholders'
Principal Distribution Amount until the Outstanding Amount of the Class
A-2 Notes has been paid in full, and
(v) fifth, after the principal balance of each Class of Class A Notes
has been reduced to zero, if such Distribution Date is a Quarterly
Distribution Date, to the Class B Noteholders, the remaining
Noteholders' Principal Distribution Amount until the principal balance
of the Class B Notes has been reduced to zero.
On each Quarterly Distribution Date, after making all required
transfers to the Expense Account, the Note Distribution Account and, if
applicable, the Certificate Distribution Account, the Indenture Trustee will
transfer any amounts remaining in the Collection Account (other than amounts
representing payments received during such month) in the following order of
priority:
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(i) to the Reserve Account, the amount, if any, necessary to increase
the balance thereof to the Specified Reserve Account Balance,
(ii) to the Note Distribution Account, Parity Percentage Payments to
the extent then required, and
(iii) to the Note Distribution Account, the amount of any outstanding
Noteholders' Interest Carryover.
Any amounts remaining in the Collection Account after such transfers on a
Quarterly Distribution Date (other than amounts representing payments received
during such current month) will be distributed to the Transferor.
Notwithstanding the foregoing, if (x) on any Distribution Date
following all distributions to be made on such Distribution Date, the principal
amount of the Class A Notes would exceed the sum of the Pool Balance at the end
of the immediately preceding Collection Period plus the aggregate balance on
deposit in the Trust Accounts on such Distribution Date following such
distributions, or (y) an Event of Default has occurred with respect to payment
of the Notes, after paying Transaction Fees, overdue Transaction Fees,
Consolidation Loan Fees and overdue Consolidation Loan Fees, distributions will
be made in the following priority:
(i) first, to each Class of Class A Noteholders, the Noteholders'
Interest Distribution Amount applicable to each such Class pro rata
based upon the portion thereof allocable to each such Class,
(ii) second, in the case of clause (x) above, to the Class A-1
Noteholders, the Noteholders' Principal Distribution Amount, until the
principal balance of the Class A-1 Notes has been reduced to zero, and
then to the Class A-2 Noteholders, the Noteholders' Principal
Distribution Amount until the principal balance of the Class A-2 Notes
has been reduced to zero, or in the case of clause (y) above, to each
Class of Class A Noteholders, the Noteholders' Principal Distribution
Amount applicable to such Distribution Date, pro rata based upon the
principal balance of each Class of Class A Notes until the principal
balance of each Class of Class A Notes has been paid in full,
(iii) third, if such Distribution Date is a Quarterly Distribution
Date, to the Class B Noteholders, the Noteholders' Interest
Distribution Amount applicable to the Class B Notes,
(iv) fourth, after the principal balance of each of the Class A Notes
has been paid in full, if such Distribution Date is a Quarterly
Distribution Date, to the Class B Noteholders, the Noteholders'
Principal Distribution Amount until the principal balance of the Class
B Notes has been paid in full,
(v) fifth, if such Distribution Date is a Quarterly Distribution Date,
to the Class A Noteholders, the Noteholders' Interest Carryover
applicable to the respective Class of Class A Notes, pro rata based
upon the portion thereof allocable to each such Class,
(vi) sixth, if such Distribution Date is a Quarterly Distribution Date,
to the Class B Noteholders, the Noteholders' Interest Carryover
applicable to the Class B Notes, and
(vii) seventh, if such Distribution Date is a Quarterly Distribution
Date, to the Certificateholders, the Certificateholders' Interest
Distribution Amount and then the Certificateholders' Principal
Distribution Amount.
All principal payments of Notes of any Class shall be made pro rata
within that Class. In connection with each principal payment of Notes of any
Class, the Administrator shall compute the Principal Factor for that Class. The
"Principal Factor" shall be a number, carried to a seven-digit decimal,
indicating the principal balance of each Note of a Class as of a Distribution
Date (after giving effect to any payments made on that date) as a fraction of
the original principal amount of such Note. The Principal Factor for each Class
of Notes shall be initially 1.0000000 and will thereafter decline to reflect the
reduction in the principal balance of the Notes of that Class after any payment
of principal. The principal balance of any Note can be determined by multiplying
the original principal amount of such Note by the Principal Factor applicable to
that Class of Notes.
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"Certificate Balance" equals the original principal balance of each
Class of Certificates issued reduced by all amounts allocable to principal
previously distributed to Certificateholders.
"Certificateholders' Distribution Amount" means, as to any Class of
Certificates, with respect to any Quarterly Distribution Date, the
Certificateholders' Interest Distribution Amount for such Quarterly Distribution
Date plus, for each Quarterly Distribution Date on and after which the Notes
have been paid in full, the Certificateholders' Principal Distribution Amount
for such Quarterly Distribution Date.
"Certificateholders' Interest Shortfall" means, as to any Class of
Certificates, with respect to any Quarterly Distribution Date, the excess, if
any, of (i) the sum of the related Certificateholders' Interest Distribution
Amount on the preceding Quarterly Distribution Date and any outstanding
Certificateholders' Interest Shortfall on such preceding Quarterly Distribution
Date over (ii) the amount of interest actually distributed to the
Certificateholders of such Class on such preceding Quarterly Distribution Date,
plus interest on the amount of such excess interest due to the
Certificateholders of such Class, to the extent permitted by law, at the related
Certificate Rate from such preceding Quarterly Distribution Date to the current
Quarterly Distribution Date.
"Certificateholders' Interest Distribution Amount" means, as to any
Class of Certificates, with respect to any Quarterly Distribution Date relating
to such Certificates, the sum of (i) the amount of interest accrued at One Month
LIBOR plus 1.50% per annum for each related Interest Period since the last
Quarterly Distribution Date (or, in the case of the first Quarterly Distribution
Date, the Closing Date) on the outstanding principal amount of such Certificates
on the immediately preceding Quarterly Distribution Date, after giving effect to
all distributions of principal to Certificateholders of such Class on such
Quarterly Distribution Date (or, in the case of the first Quarterly Distribution
Date, on the Closing Date) and (ii) the Certificateholders' Interest Shortfall
relating to such Certificates for such Quarterly Distribution Date.
"Certificateholders' Principal Carryover Shortfall" means, as of the
close of any Quarterly Distribution Date relating to a Class of Certificates on
or after which the Notes have been paid in full, the excess, if any, of (i) the
sum of the Certificateholders' Principal Distribution Amount on such Quarterly
Distribution Date and any outstanding Certificateholders' Principal Carryover
Shortfall for the preceding Quarterly Distribution Date over (ii) the amount of
principal actually distributed to the Certificateholders on such Quarterly
Distribution Date.
"Certificateholders' Principal Distribution Amount" means, on each
Quarterly Distribution Date occurring after the principal balance of each Class
of Notes has been paid in full, the sum of (i) the Principal Distribution Amount
for the three Collection Periods preceding such Quarterly Distribution Date, and
(ii) the Certificateholders' Principal Carryover Shortfall as of the close of
the preceding Quarterly Distribution Date; provided, however, that the
Certificateholders' Principal Distribution Amount will in no event exceed the
outstanding principal balance of the applicable class of Certificates. Further,
on the first Quarterly Distribution Date occurring on or after the Distribution
Date on which the principal balance of the last outstanding Class of Notes is
paid in full, the Certificateholders' Principal Distribution Amount also will
include the excess, if any, of the amount of principal available to be
distributed on such Distribution Date over the amount of principal paid on the
Notes on such date.
"Consolidation Loan Fees" means, as to any Collection Period, an amount
equal to 1.05% per annum of the outstanding principal balances of and accrued
interest on the Consolidation Loans owned by the Trust as of the last day of
such Collection Period.
"Noteholders' Distribution Amount" means, as to any Class of Notes,
with respect to any Distribution Date, the sum of the related Noteholders'
Interest Distribution Amount and the Noteholders' Principal Distribution Amount
for such Distribution Date.
"Noteholders' Interest Shortfall" means, as to any Class of Notes, with
respect to any Distribution Date (which, for the Class B Notes, shall be a
Quarterly Distribution Date), the excess of (i) the sum of the related
Noteholders' Interest Distribution Amount on the preceding Distribution Date for
such Class of Notes and any Noteholders' Interest Shortfall on such preceding
Distribution Date for such Class of Notes over (ii) the amount of interest
actually allocated to such Noteholders on such preceding Distribution Date for
such Class of Notes, plus interest on the amount of such excess interest
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due to the Noteholders, to the extent permitted by law, at the related Class
Interest Rate from such preceding Distribution Date for such Class of Notes to
the current Distribution Date for such Class of Notes.
"Noteholders' Interest Distribution Amount" means, as to any Class of
Notes, with respect to any Distribution Date (which, for the Class B Notes,
shall be a Quarterly Distribution Date), the sum of (i) the amount of interest
accrued at the respective Class Interest Rate for each Interest Period since the
last Distribution Date for such Class of Notes (or, in the case of the first
Distribution Date for such Class of Notes, the Closing Date) on the outstanding
principal balance of such Class of Notes on the immediately preceding
Distribution Date for such Class of Notes after giving effect to all principal
distributions to holders of Notes of such Class on such date (or, in the case of
the first Distribution Date for such Class of Notes, on the Closing Date) and
(ii) the Noteholders' Interest Shortfall for such Class of Notes for such
Distribution Date; provided, however, that the Noteholders' Interest
Distribution Amount will not include any Noteholders' Interest Carryover.
"Noteholders' Principal Carryover Shortfall" means, as of the close of
any Distribution Date, the excess of (i) the sum of the Noteholders' Principal
Distribution Amount on such Distribution Date and any outstanding Noteholders'
Principal Carryover Shortfall for the preceding Distribution Date over (ii) the
amount of principal actually allocated to the Noteholders on such Distribution
Date.
"Noteholders' Principal Distribution Amount" means, (A) as to any
Distribution Date on or after February 25, 1998 and on or before the
Distribution Date on which the Class A Notes are paid in full, the sum of (i)
the Principal Distribution Amount for the Collection Period immediately
preceding the month of such Distribution Date (and, in the case of the February
25, 1998 Distribution Date, all preceding Collection Periods), (ii) any Parity
Percentage Payments to be made on such Distribution Date, (iii) the Noteholders'
Principal Carryover Shortfall as of the close of the preceding Distribution Date
and (iv) the amount, if any, remaining on deposit in the Note Distribution
Account following the preceding Distribution Date, and (B) as to any Quarterly
Distribution Date after the Distribution Date on which the Class A Notes are
paid in full, the sum of (i) the Principal Distribution Amount for the three
Collection Periods immediately preceding the month of such Quarterly
Distribution Date, (ii) any Parity Percentage Payments to be made on such
Quarterly Distribution Date, (iii) the Noteholders' Principal Carryover
Shortfall as of the close of the preceding Quarterly Distribution Date and (iv)
the amount, if any, remaining on deposit in the Note Distribution Account
following the preceding Quarterly Distribution Date; provided, however, that the
Noteholders' Principal Distribution Amount allocable to a Class of Notes will
not exceed the outstanding principal balance of such Class of Notes. In
addition, with respect to each Class of Notes, on the related Final Maturity
Date the Noteholders' Principal Distribution Amount will include the amount
required to reduce the outstanding principal balance of such Notes to zero.
"Principal Distribution Amount" means, with respect to any Collection
Period, the amount, if any, by which the Pool Balance as of the last day of
such Collection Period is exceeded by the Pool Balance as of the last day of the
preceding Collection Period (or, in the case of the initial Collection Period,
the Cut-off Date).
With respect to each Financed FFELP Loan submitted to a Guarantor for a
Guarantee Payment, a "Realized Loss" means the excess, if any, of (i) the unpaid
principal balance of such Financed FFELP Loan on the date it was first submitted
to a Guarantor for a Guarantee Payment over (ii) all amounts received on or with
respect to principal on such Financed FFELP Loan up through the earlier to occur
of (A) the date a related Guarantee Payment is made or (B) the last day of the
Collection Period occurring 12 months after the date the claim for such
Guarantee Payment is first denied.
With respect to each Financed HEAL Loan submitted to the Department of
HHS for an Insurance Payment, a "Realized Loss" means the excess, if any, of (i)
the unpaid principal balance of such Financed HEAL Loan on the date it was first
submitted to the Department of HHS for an Insurance Payment over (ii) all
amounts received on or with respect to principal on such Financed HEAL Loan up
through the earlier to occur of (A) the date a related Insurance Payment is made
or (B) the last day of the Collection Period occurring 12 months after the date
the claim for such Insurance Payment is first denied.
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Monthly Advances
If the Master Servicer has applied for an Insurance Payment from the
Department of HHS, a Guarantee Payment from a Guarantor or an Interest Subsidy
Payment or a Special Allowance Payment from the Department of Education, and the
Master Servicer has not received the related payment prior to the end of the
Collection Period immediately preceding the Distribution Date on which such
amount would be required to be distributed as a payment of interest, the Master
Servicer may, no later than the Distribution Determination Date relating to such
Distribution Date, deposit into the Monthly Advance Account an amount up to the
amount of such payments applied for but not received (such deposits by the
Master Servicer are referred to herein as "Monthly Advances"). On each related
Distribution Date, the Indenture Trustee will distribute from the Monthly
Advance Account to the Noteholders the Monthly Advance for such Distribution
Date. Such Monthly Advances are recoverable by the Master Servicer (i) first,
from the source for which such Monthly Advance was made and (ii) second, from
payments received generally on or with respect to the Financed Student Loans.
The Master Servicer will have no obligation, legal or otherwise, to make any
Monthly Advance, and a determination by the Master Servicer to make a Monthly
Advance will not create any obligation of the Master Servicer, legal or
otherwise, to make any future Monthly Advances.
Credit Enhancement
Reserve Account. Pursuant to the Transfer and Servicing Agreement, the
Reserve Account will be created on or prior to the Closing Date and the
Transferor will deposit to the Reserve Account cash or Eligible Investments in
an amount equal to the Reserve Account Deposit. The initial Reserve Account
Deposit is $2,190,464. The Reserve Account will be augmented on each Quarterly
Distribution Date by deposit therein of the amount, if any, necessary to
reinstate the balance of the Reserve Account to the Specified Reserve Account
Balance from the amount of Available Funds remaining after making all prior
distributions on such date as described above under the heading "--
Distributions -- Distributions from the Collection Account". Also, if amounts
were transferred from the Reserve Account to cover a Realized Loss on a Financed
Student Loan, any subsequent payments of principal received on or with respect
to such Financed Student Loan will be deposited into the Reserve Account. As
described below, subject to certain limitations, amounts on deposit in the
Reserve Account will be released to the Transferor to the extent that the amount
on deposit in the Reserve Account exceeds the Specified Reserve Account Balance.
If the amount, if any, on deposit in the Reserve Account on any
Quarterly Distribution Date (after giving effect to all deposits or withdrawals
therefrom on such Distribution Date) is greater than the Specified Reserve
Account Balance, subject to certain limitations, the Administrator will instruct
the Indenture Trustee to distribute the amount of the excess, after payment of
any unpaid Noteholders' Interest Carryover or to purchase Financed Student Loans
for which there has been an uncured breach of certain representations and
warranties, to the Transferor. Upon any distribution to the Transferor of
amounts from the Reserve Account, the Noteholders will not have any rights in,
or claims to, such amounts.
The Reserve Account is intended to enhance the likelihood of timely
receipt by the Noteholders of the full amount of interest due them, the ultimate
receipt by the Noteholders of the full amount of principal and to decrease the
likelihood that the Noteholders will experience losses. In certain
circumstances, however, the Reserve Account could be depleted. If the amount
required to be withdrawn from the Reserve Account to cover shortfalls in the
amount of Available Funds exceeds the amount of cash in the Reserve Account, a
temporary shortfall in the amount of principal and interest distributed to the
Noteholders could result. This could, in turn, increase the average life of the
Notes. Moreover, amounts on deposit in the Reserve Account (other than amounts
in excess of the Specified Reserve Account Balance) will not be available to
cover any aggregate unpaid Noteholders' Interest Carryover.
Subordination of the Class B Notes. The rights of the holders of the
Class B Notes to receive distributions with respect to interest and principal
will be subordinated to such rights of the holders of the Class A Notes to the
extent described herein. This subordination is intended to enhance the
likelihood of regular receipt by holders of the Class A Notes of the full amount
of the Noteholders' Interest Distribution Amount and, after distribution of the
Class B Interest Distribution Amount, the Noteholders' Principal Distribution
Amount. See "-- Distributions".
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Statements to Indenture Trustee
On each Distribution Determination Date immediately preceding a
Distribution Date, the Master Servicer or the Administrator will provide to the
Indenture Trustee (for the Indenture Trustee to forward on each succeeding
Distribution Date to each Noteholder) a statement which will include the
following information with respect to such Distribution Date or for the
preceding Collection Period or Collection Periods, to the extent applicable:
(i) the Principal Factor for each Class of Notes;
(ii) the amount of the distribution allocable to principal
of each Class of Notes;
(iii) the amount of the distribution allocable to interest on
each Class of Notes, together with the interest rates applicable with
respect thereto (indicating whether such interest rates are based on
Formula Interest Rate or on the Net Loan Rate with respect to each
Class of Notes, and specifying what each such interest rate would have
been if it had been calculated using the alternate basis; provided that
no such calculation of the
Net Loan Rate will be required to be made unless the excess of
One-Month LIBOR over the 91-day T-Bill Rate is greater than 100 basis
points as of the preceding Rate Determination Date;
(iv) the amount of the distribution, if any, allocable to any
Noteholders' Interest Carryover together with the outstanding amount,
if any, thereof after giving effect to any such distribution;
(v) the Pool Balance as of the close of business on the
last day of the preceding Collection Period;
(vi) the aggregate outstanding principal balance of each Class
of Notes as of such Distribution Date, after giving effect to payments
allocated to principal reported under clause (ii) above;
(vii) the amount of the Servicing Fee to be allocated to the
Master Servicer, the amount of the Administration Fee to be allocated
to the Administrator, the amount of the Indenture Trustee Fee to be
allocated to the Indenture Trustee, the amount of the Delaware Trustee
Fee to be allocated to the Delaware Trustee and the amount of the
Eligible Lender Trustee Fee to be allocated to the Eligible Lender
Trustee, respectively, with respect to the upcoming Distribution Date;
(viii) the amount of the aggregate Realized Losses, if any,
for the preceding Collection Period and the aggregate amount, if any,
received (stated separately for interest and principal ) with
respect to Financed Student Loans for which Realized Losses were
allocated previously;
(ix) the amount of the distribution attributable to amounts in
the Reserve Account, the amount of any other withdrawals from the
Reserve Account for such Distribution Date, the balance of the Reserve
Account on such Distribution Date, after giving effect to changes
therein on such Distribution Date, the then applicable Parity
Percentage and the amount of the distribution, if any, attributable to
Parity Percentage Payments;
(x) the aggregate amount, if any, paid for Financed Student
Loans purchased from the Trust during the preceding Collection Period;
(xi) during the Subsequent Finance Period only, the aggregate
Issuer 2.3(b) Payments and Adjustment Payments, stated separately, for
the preceding Collection Period; and
(xii) the number and principal amount of Financed Student
Loans, as of the preceding Collection Period, that are (A) 31 to 60
days delinquent, (B) 61 to 90 days delinquent, (C) 91 to 120 days
delinquent, (D) more than 120 days delinquent and (E) for which claims
have been filed with the appropriate Guarantor or the Department of HHS
and which are awaiting payment.
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Evidence as to Compliance
The Transfer and Servicing Agreement will provide that a firm of
independent public accountants will furnish to the Eligible Lender Trustee and
the Indenture Trustee annually a statement (based on the examination of certain
documents and records and on such accounting and auditing procedures considered
appropriate under the circumstances) as to compliance by the Master Servicer
during the preceding calendar year (or, in the case of the first such
certificate, the period from the Closing Date to December 31, 1998) with certain
provisions of the Transfer and Servicing Agreement relating to the servicing of
the Financed Student Loans.
The Transfer and Servicing Agreement will further provide that a firm
of independent public accountants (which may be the same firm referred to in the
immediately preceding paragraph) will furnish to the Eligible Lender Trustee and
the Indenture Trustee annually a statement (based on the examination of certain
documents and records and on such accounting and auditing procedures considered
appropriate under the circumstances) as to compliance by the Administrator
during the preceding calendar year (or, in the case of the first such
certificate, the period from the Closing Date to December 31, 1998) with certain
provisions of the Transfer and Servicing Agreement and the Administration
Agreement relating to the administration of the Trust and the Financed Student
Loans.
The Transfer and Servicing Agreement will also provide for delivery to
the Eligible Lender Trustee and the Indenture Trustee, concurrently with the
delivery of each statement of compliance referred to above, of a certificate
signed by an officer of the Master Servicer or the Administrator, as the case
may be, stating that, to his knowledge, the Master Servicer or the
Administrator, as the case may be, has fulfilled in all material respects all
its obligations under the Transfer and Servicing Agreement and the
Administration Agreement, respectively, throughout the preceding calendar year
(or, in the case of the first such certificate, the period from the Closing Date
to December 31, 1998) or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officer and the
nature and status thereof. Each of the Master Servicer and the Administrator has
agreed to give the Indenture Trustee and the Eligible Lender Trustee notice of
certain Servicer Defaults and Administrator Defaults, respectively, under the
Transfer and Servicing Agreement.
Copies of such statements and certificates may be obtained by
Noteholders by a request in writing addressed to the Indenture Trustee at Four
Albany Street, New York, New York, 10006, Attention: Corporate Trust and Agent
Group, Structural Finance; facsimile: (212) 250-6439.
Certain Matters Regarding the Master Servicer
The Transfer and Servicing Agreement will provide that the Master
Servicer may not resign from its obligations and duties as Master Servicer
thereunder, except upon determination that the Master Servicer's performance of
such duties is no longer permissible under applicable law or shall violate any
final order of a court or administrative agency with jurisdiction over the
Master Servicer or its properties. No such resignation will become effective
until the Indenture Trustee or a successor servicer has assumed the Master
Servicer's servicing obligations and duties under the Transfer and Servicing
Agreement.
The Transfer and Servicing Agreement will further provide that neither
the Transferor, the Master Servicer nor any of its directors, officers,
employees or agents will be under any liability to the Trust, the Noteholders,
the Certificateholders, the Indenture Trustee or the Eligible Lender Trustee,
except as provided under the Transfer and Servicing Agreement or the
Administration Agreement for taking any action or for refraining from taking any
action pursuant to the Transfer and Servicing Agreement, or for errors in
judgment; provided however, that neither the Transferor, the Master Servicer nor
any such person will be protected against any liability that would otherwise be
imposed by reason of willful misfeasance, bad faith or negligence in the
performance of their respective duties thereunder. In addition, the Transfer and
Servicing Agreement will provide that the Transferor and the Master Servicer
shall not be under any obligation to appear in, prosecute, or defend any legal
action that is not incidental to its duties in accordance with the Transfer and
Servicing Agreement and that, in its opinion, may cause it to incur any expense
or liability.
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The Transfer and Servicing Agreement will provide that the Master
Servicer will be permitted to perform its services thereunder through any of its
affiliates, provided that the Master Servicer shall continue to be responsible
for all performance of such services.
Under the circumstances and subject to conditions specified in the
Transfer and Servicing Agreement, any entity into which the Master Servicer may
be merged or consolidated, or any entity resulting from any merger or
consolidation to which the Master Servicer is a party, or any entity succeeding
to the business of the Master Servicer will be the successor of the Master
Servicer under the Transfer and Servicing Agreement. Successors (other than the
Crestar Financial Corporation or a Crestar Subsidiary (as defined below)) must
execute an agreement expressly assuming the Master Servicer's obligations under
the Transfer and Servicing Agreement.
Nothing in the Transfer and Servicing Agreements prohibits or restricts
the merger of Crestar Bank with the Crestar Financial Corporation or certain
subsidiaries of Crestar Financial Corporation (each a "Crestar Subsidiary"), the
consolidation of Crestar Bank and Crestar Financial Corporation or any Crestar
Subsidiary, or the sale of all or substantially all of the assets of Crestar
Bank to Crestar Financial Corporation or another Crestar Subsidiary. In such
event, no consent of the Noteholders or Certificateholders will be required.
Master Servicer Default; Administrator Default
"Master Servicer Default" under the Transfer and Servicing Agreement
will consist of: (i) any failure by the Master Servicer to deliver to the
Indenture Trustee for deposit in any of the Trust Accounts at the time required
for such deposit any collections, Guarantee Payments, Insurance Payments or
other amounts received by the Master Servicer with respect to the Financed
Student Loans, which failure continues unremedied for three Business Days after
written notice from the Indenture Trustee, the Administrator or the Eligible
Lender Trustee is received by the Master Servicer or after discovery by the
Master Servicer; (ii) any failure by the Master Servicer duly to observe or
perform in any material respect any other covenant or agreement of the Master
Servicer in the Transfer and Servicing Agreement which failure materially and
adversely affects the rights of Noteholders and which continues unremedied for
60 days after the giving of written notice of such failure (A) to the Master
Servicer by the Indenture Trustee, the Eligible Lender Trustee or the
Administrator or (B) to the Master Servicer and to the Indenture Trustee and the
Eligible Lender Trustee by holders of Directing Notes evidencing not less than
25% in principal amount of the outstanding Directing Notes; (iii) certain events
of insolvency, readjustment of debt, marshaling of assets and liabilities, or
similar proceedings with respect to the Master Servicer and certain actions by
the Master Servicer indicating its Insolvency, reorganization pursuant to
bankruptcy proceedings or inability to pay its obligations; and (iv) any
limitation, suspension or termination by the Department of Education or the
Department of HHS of the Master Servicer's eligibility to service Student Loans
which materially and adversely affects the Master Servicer's ability to service
Financed Student Loans.
"Administrator Default" under the Transfer and Servicing Agreement or
the Administration Agreement will consist of (i) any failure by the
Administrator to direct the Indenture Trustee or the Eligible Lender Trustee, as
applicable, to make any required distributions from any of the Trust Accounts,
which failure continues unremedied for three Business Days after written notice
from the Indenture Trustee or the Eligible Lender Trustee is received by the
Administrator or after discovery of such failure by the Administrator; (ii) any
failure by the Administrator duly to observe or perform in any material respect
any other covenant or agreement in the Administration Agreement or the Transfer
and Servicing Agreement which failure materially and adversely affects the
rights of Noteholders, and which continues unremedied for 60 days after the
giving of written notice of such failure (A) to the Administrator by the
Indenture Trustee or the Eligible Lender Trustee or (B) to the Administrator and
to the Indenture Trustee and the Eligible Lender Trustee by holders of Directing
Notes evidencing not less than 25% in principal amount of the outstanding
Directing Notes; and (iii) certain events of insolvency, readjustment of debt,
marshalling of assets and liabilities, or similar proceedings with respect to
the Administrator and certain actions by the Administrator indicating its
insolvency or inability to pay its obligations.
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Rights Upon Servicer Default and Administrator Default
As long as a Servicer Default under the Transfer and Servicing
Agreement or an Administrator Default under the Transfer and Servicing Agreement
or the Administration Agreement remains unremedied, the Indenture Trustee or
holders of Directing Notes evidencing not less than 25% in principal amount of
then outstanding Directing Notes may terminate all the rights and obligations of
the Master Servicer under the Transfer and Servicing Agreement, or the
Administrator under the Transfer and Servicing Agreement and the Administration
Agreement, as the case may be, whereupon a successor servicer or administrator
appointed by the Indenture Trustee or the Indenture Trustee will succeed to all
the responsibilities, duties and liabilities of the Master Servicer under the
Transfer and Servicing Agreement, or the Administrator under the Transfer and
Servicing Agreement and the Administration Agreement, as the case may be, and
will be entitled to similar compensation arrangements. If a successor Master
Servicer or Administrator, as the case may be, has not been appointed at the
time when the predecessor Master Servicer or Administrator has ceased to act as
Master Servicer or Administrator, then the Indenture Trustee shall automatically
be appointed successor Master Servicer or Administrator. Notwithstanding the
above, the Indenture Trustee shall, if it shall be unwilling or legally unable
so to act, appoint or petition a court of competent jurisdiction to appoint, any
established institution whose regular business shall include the servicing of
student loans, as the successor to the Master Servicer or Administrator, as the
case may be, under this Agreement. If a successor Master Servicer or
Administrator, as the case may be, has not been appointed at the time when the
predecessor Master Servicer or Administrator has ceased to act as Master
Servicer or Administrator, then the Indenture Trustee shall automatically be
appointed as successor Master Servicer or Administrator.
Waiver of Past Defaults
The holders of Directing Notes evidencing at least a majority in
principal amount of the then outstanding Directing Notes may, on behalf of all
Noteholders and Certificateholders, waive any default by the Master Servicer in
the performance of its obligations under the Transfer and Servicing Agreement,
or any default by the Administrator of its obligations under the Transfer and
Servicing Agreement and the Administration Agreement, as the case may be, and
their respective consequences, except a default in making any required payments
from any of the Trust Accounts or giving instructions regarding the same in
accordance with the Transfer and Servicing Agreement. No such waiver will impair
the Noteholders' or the Certificateholders' rights with respect to subsequent
defaults.
Amendment
The Transfer and Servicing Agreements may be amended by the parties
thereto, with the consent of the Indenture Trustee, for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of the Transfer and Servicing Agreements or of modifying in any manner the
rights of Noteholders or Certificateholders; provided, however, that no such
amendment may (i) increase or reduce in any manner the amount of, or accelerate
or delay the timing of, collections of payments with respect to the Financed
Student Loans or distributions that are required to be made for the benefit of
the Noteholders or the Certificateholders, or (ii) reduce the aforesaid
percentage of the Notes or Certificates which are required to consent to any
such amendment, without the consent of the holders of all the outstanding Notes
and Certificates affected thereby.
Insolvency Event
If any of certain events of insolvency or receivership, readjustment of
debt, marshaling of assets and liabilities, or similar proceedings with respect
to the Transferor or certain actions by the Transferor indicating its insolvency
or inability to pay its obligations (each, an "Insolvency Event") occurs, the
Financed Student Loans will be liquidated and the Trust will be terminated.
Promptly after the occurrence of any Insolvency Event, notice thereof is
required to be given to Noteholders and Certificateholders; provided, however,
that any failure to give such required notice will not prevent or delay
termination of the Trust. Upon termination of the Trust, the Eligible Lender
Trustee will direct the Indenture Trustee promptly to sell the assets of the
Trust (other than the Trust Accounts) in a commercially reasonable manner and on
commercially reasonable terms. The proceeds from any such sale, disposition or
liquidation of the Financed Student Loans will be treated as collections thereon
and deposited in the Collection Account. If the proceeds from the liquidation of
the Financed Student
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Loans and any amounts on deposit in the Reserve Account are not sufficient to
pay the Notes in full, the amount of principal returned to the Noteholders will
be reduced and the Noteholders will incur a loss.
Payment of Notes
Upon the payment in full of all outstanding Notes and the satisfaction
and discharge of the Indenture, the Eligible Lender Trustee will succeed to all
the rights of the Indenture Trustee, and the Certificateholders will succeed to
all the rights of the Noteholders, under the Transfer and Servicing Agreement,
except as otherwise provided therein.
Termination
The obligations of the Master Servicer, the Transferor, the
Administrator, the Eligible Lender Trustee and the Indenture Trustee pursuant to
the Transfer and Servicing Agreements will terminate upon (i) the maturity or
other liquidation of the last Financed Student Loan and the disposition of any
amount received upon liquidation of any remaining Financed Student Loans and
(ii) the payment to the Noteholders and the Certificateholders of all amounts
required to be paid to them pursuant to the Transfer and Servicing Agreements.
To avoid excessive administrative expense, the Transferor is permitted at its
option to repurchase from the Eligible Lender Trustee, as of the end of any
Collection Period immediately preceding a Quarterly Distribution Date, if the
then outstanding Pool Balance is 10% or less of the Initial Pool Balance, all
remaining Financed Student Loans at a price equal to the aggregate Purchase
Amounts thereof as of the end of such Collection Period, which amounts will be
used to retire the Notes and the Certificates concurrently therewith. Upon
termination of the Trust, all right, title and interest in the Financed Student
Loans and other funds of the Trust, after giving effect to any final
distributions to Noteholders and Certificateholders therefrom, will be conveyed
and transferred to the Transferor.
Any Financed Student Loans remaining in the Trust as of February 28,
2007 will be offered for sale by the Indenture Trustee on or prior to the April
2007 Distribution Date if the then outstanding Pool Balance is 10% or less of
the Initial Pool Balance. The Transferor, its affiliates and unrelated third
parties may offer bids to purchase such Financed Student Loans on or prior to
such Distribution Date. If at least two bids are received, the Indenture Trustee
will accept the highest bid equal to or in excess of the greater of (x) the
aggregate Purchase Amounts of such Financed Student Loans as of the end of the
Collection Period immediately preceding such Distribution Date or (y) an amount
that would be sufficient to (i) reduce the outstanding principal amount of the
Notes on such Distribution Date to zero and (ii) pay to the Noteholders the
Noteholders' Interest Distribution Amount payable on such Distribution Date (the
"Minimum Purchase Price"). If at least two bids are not received or the highest
bid is not equal to or in excess of the Minimum Purchase Price, the Indenture
Trustee will not consummate such sale. The proceeds of any such sale will be
used to redeem any outstanding Notes on such Distribution Date. If the sale is
not consummated in accordance with the foregoing, the Indenture Trustee may, but
shall not be under any obligation to, solicit bids to purchase the Financed
Student Loans on future Distribution Dates upon terms similar to those described
above. No assurance can be given as to whether the Indenture Trustee will be
successful in soliciting acceptable bids to purchase the Financed Student Loans
on either the April 2007 Distribution Date or any subsequent Distribution Date.
Administrator
Crestar Bank, in its capacity as Administrator, has entered into the
Administration Agreement with the Trust and the Indenture Trustee, pursuant to
which the Administrator will agree, to the extent provided therein, (i) to
direct the Indenture Trustee to make the required distributions from the Trust
Accounts on each Distribution Date, (ii) to prepare (based on the reports
received from the Master Servicer) and provide periodic and annual statements to
the Eligible Lender Trustee and the Indenture Trustee with respect to
distributions to Noteholders and Certificateholders and any related Federal
income tax reporting information and (iii) to provide the notices and to perform
other administrative obligations required by the Indenture and the Trust
Agreement. As compensation for the performance of the Administrator's
obligations under the Administration Agreement and as reimbursement for its
expenses related thereto, the Administrator will be entitled to the
Administration Fee. Affiliates of the Administrator may assist it in performing
its obligations under the Administration Agreement.
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FEDERAL INCOME TAX CONSEQUENCES
General
The following is a summary of the anticipated material federal income
tax consequences of the purchase, ownership, and disposition of the Notes.
Hunton & Williams, special tax counsel to the Trust ("Special Tax Counsel"), has
reviewed this summary and is of the opinion that the descriptions of the law and
legal conclusions contained herein are correct in all material respects and the
discussions hereunder fairly summarize the federal income tax considerations
that are likely to be material to Noteholders. The summary is based upon the
provisions of the Code, the regulations promulgated thereunder, and the judicial
and administrative rulings and decisions now in effect, all of which are subject
to change or possible differing interpretations. The statutory provisions,
regulations, and interpretations on which this summary is based are subject to
change, and such a change could apply retroactively.
The summary does not purport to deal with all aspects of federal income
taxation that may affect particular investors in light of their individual
circumstances, nor with certain categories of investors subject to special
treatment under the federal income tax laws. This summary focuses primarily on
investors who will hold Notes as "capital assets" (generally held for
investment) within the meaning of Section 1221 of the Code, but much of the
discussion is applicable to other investors as well. The summary does not
purport to address the anticipated state income tax consequences to investors of
owning and disposing of the Notes. Consequently, potential purchasers of Notes
are advised to consult their own tax advisors concerning the federal, state or
local tax consequences to them of the purchase, holding, and disposition of the
Notes.
There are no regulations, published rulings or judicial decisions
involving the characterization for federal income tax purposes of securities
with terms substantially the same as the Notes. However, in Special Tax
Counsel's opinion, based upon the facts as they exist at closing, the Notes will
be treated for federal income tax purposes as indebtedness and not as an
ownership interest in the Financed Student Loans or other assets of the Trust,
or as an equity interest in the Trust or in a separate association taxable as a
corporation. That opinion is based on existing law, but there can be no
assurance that the law will not change or that contrary positions will not be
taken by the Internal Revenue Service (the "Service").
In addition, if the Service were to make and prevail upon the
contention that the Notes did not constitute indebtedness for federal income tax
purposes, the Notes could be treated as equity interests in the Trust. In that
event, the Trust should be treated as a partnership that is not a publicly
traded partnership taxable as a corporation.
Interest Income
Payments received by Noteholders on the Notes generally should be
accorded the same tax treatment under the Code as payments received on other
taxable corporate bonds. It is not expected that the Notes will be issued with
original issue discount. Accordingly, Noteholders will include in income
interest paid or accrued on the Notes in accordance with such Noteholder's usual
method of accounting.
Market Discount and Acquisition Premium
A subsequent purchaser of a Note at a discount from its adjusted issue
price will acquire such Note with market discount. The purchaser generally will
be required to recognize the market discount (in addition to original issue
discount, if any, remaining with respect to the Note) as ordinary income. A Note
will not be considered to have market discount if the amount of such market
discount is de minimis, i.e., less than the product of (i) 0.25% of the
remaining principal amount of such Note and (ii) the weighted average maturity
of such Note remaining after the date of purchase. Regardless of whether the
subsequent purchaser of a Note with more than a de minimis amount of market
discount is a cash-basis or accrual-basis taxpayer, market discount generally
will be taken into income as principal payments are received, in an amount equal
to the lesser of (i) the amount of the principal payment received or (ii) the
amount of market discount that has "accrued" (as described below), but that has
not yet been included in income. The purchaser may make an election, which
generally will apply to all market discount instruments held or acquired by the
purchaser in the taxable year of election or thereafter, to
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recognize market discount currently on an uncapped accrual basis (as described
below). Revenue Procedure 92-67 sets forth the manner in which such an election
may be made.
Until the Treasury promulgates applicable regulations, the purchaser of
a Note with market discount generally may elect to accrue the market discount
either: (i) on the basis of a constant interest rate; or (ii) in the ratio of
original issue discount, if any, accrued for the relevant period to the total
remaining original issue discount at the beginning of such period. The Service
indicated in Revenue Procedure 92-67 the manner in which an election may be made
to accrue market discount on a Note on the basis of a constant interest rate. If
that computation method is elected, the pricing prepayment assumption used in
pricing the Notes must be used to calculate the accrual of market discount.
A holder who acquires a Note with market discount generally will be
required to treat a portion of any gain on the sale or exchange of such Note as
ordinary income to the extent of the market discount accrued to the date of
disposition under one of the foregoing methods, less any accrued market discount
previously reported as ordinary income under one of the methods described above.
Moreover, a holder who acquires a Note with market discount generally must defer
interest deductions attributable to any indebtedness incurred or continued to
purchase or carry such Note to the extent they exceed income on such Note, up to
the amount of any accrued but unrecognized market discount. Any such deferred
interest expense, in general, is allowed as a deduction not later than the year
in which the related market discount income is recognized. If the holder of a
Note makes an election to recognize market discount currently, the interest
deferral rule will not apply.
Treasury regulations implementing the market discount rules have not
yet been issued, and uncertainty exists with respect to many aspects of those
rules. Due to the substantial lack of regulatory guidance with respect to the
market discount rules, it is unclear how those rules will affect any secondary
market that develops for the Notes. Prospective purchasers of Notes should
consult with their own tax advisors regarding the application of the market
discount rules to the Notes.
Gain or Loss on Disposition
If a Note is sold, the holder thereof will recognize gain or loss equal
to the difference between the amount realized on the sale and his adjusted basis
in such Note. A holder's adjusted basis in a Note generally will equal the cost
to such holder of the Note, increased by any market discount and original issue
discount, if any, previously includable in such holder's gross income with
respect to the Note, and reduced by payments on the Note previously received by
such holder. Except to the extent that the market discount rules apply and
except as provided below, any gain or loss on the sale or other disposition of a
Note generally will be capital gain or loss. Such gain or loss will be long-term
gain or loss if the Note is held as a capital asset for the long-term capital
gain holding period.
If the holder of a Note is a bank, thrift, or similar institution
described in section 582 of the Code, any gain or loss on the sale or exchange
of such Note will be treated as ordinary income or loss. In addition, a portion
of the gain, if any, from the sale of a Note that might otherwise be capital
gain may be treated as ordinary income to the extent that such Note is held as
part of a "conversion transaction" within the meaning of section 1258 of the
Code. A conversion transaction generally is one in which the taxpayer has taken
two or more positions in Notes or similar property that reduce or eliminate
market risk, if substantially all of the taxpayer's return is attributable to
the time value of the taxpayer's net investment in such transaction. The amount
of gain realized in a conversion transaction that is recharacterized as ordinary
income generally will not exceed the amount of interest that would have accrued
on the taxpayer's net investment at 120% of the appropriate "applicable federal
rate" (which rate is computed and published monthly by the Service) at the time
the taxpayer entered into the conversion transaction, subject to appropriate
reduction for prior inclusion of interest and other ordinary income from the
transaction.
The highest marginal individual income tax bracket is 36%, and a 10%
surtax is imposed on taxpayers whose taxable income exceeds $250,000 (resulting
in a 39.6% marginal rate). The alternative minimum tax rate for individuals is
26% with respect to alternative minimum tax income up to $175,000 and 28% with
respect to alternative minimum tax income over $175,000. The recently enacted
Taxpayer Relief Act of 1997 (the "Relief Act") established a three-tier rate
structure with respect to the net capital gain of individuals. Under the Relief
Act, the highest marginal federal tax rate on net capital gains for individuals
with respect to assets held for 18 months or less is 28%, as under prior law.
However, the
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Relief Act reduces the highest marginal federal tax rate with respect to net
capital gain on assets held by individuals for more than 18 months from 28% to
20%, and, for taxable years beginning after, and for assets acquired after,
December 31, 2000 and with respect to assets held for more than 5 years, to 18%.
Accordingly, there can be a significant marginal tax rate differential between
net capital gains and ordinary income for individuals. The highest marginal
corporate tax rate is 35% for corporate taxable income over $10 million, and the
marginal tax rate on corporate net capital gains is 35%, although the
distinction between capital gains and ordinary income remains relevant for other
purposes. Investors should note that the deductibility of capital losses is
subject to certain limitations.
Backup Withholding
A Note may, under certain circumstances, be subject to "backup
withholding" at the rate of 31% with respect to "reportable payments," which
include interest payments and principal payments to the extent of accrued OID as
well as to distributions of proceeds from a sale of the Notes. The withholding
generally applies if the holder of a Note (i) fails to furnish the Trustee with
his taxpayer identification number ("TIN"); (ii) furnishes the Trustee an
incorrect TIN; (iii) fails to report properly interest, dividends, or other
"reportable payments" as defined in the Code; or (iv) under certain
circumstances, fails to provide the Trustee or such holder's securities broker
with a certified statement, signed under penalty of perjury, that the TIN is its
correct number and that the holder is not subject to backup withholding. Backup
withholding will not apply, however, with respect to payments made to certain
Noteholders, including certain exempt recipients (such as exempt organizations)
and Nonresidents (as defined below) complying with the requisite certification
procedures. Holders of the Notes should consult their tax advisors as to their
qualification for exemption from backup withholding and the procedure for
obtaining the exemption.
The Trustee will report to the Noteholders and to the Service each
calendar year the amount of any "reportable payments" during such year and the
amount of tax withheld, if any, with respect to payments on the Notes within a
reasonable time after the end of each calendar year.
Foreign Holders
Under the Code, interest income accrued with respect to Notes held by
holders who are nonresident alien individuals, foreign corporations, foreign
partnerships or certain foreign estates and trusts ("Nonresidents") or holders
holding on behalf of a Nonresident generally will be treated as "portfolio
interest" and therefore will not be subject to any United States tax provided
that (i) such interest income is not effectively connected with a trade or
business in the United States of the holder and (ii) the Trustee (or other
person who would otherwise be required to withhold tax from such payments) is
provided with an appropriate statement that the beneficial owner of a Note is a
Nonresident. If a Nonresident holder of a Note does not provide the Trustee (or
other person who would otherwise be required to withhold tax) with the required
certification of Nonresident status, payments on the Note that are attributable
to accrued interest may be subject to either a 30% withholding tax or 31% backup
withholding. See "--Backup Withholding" above. Any market discount or capital
gain recognized on the redemption or disposition of a Note by a Nonresident
generally will not be subject to withholding tax unless the Nonresident is an
individual who is present in the United States for 183 days or more during the
taxable year in which the Note is redeemed or disposed of.
Interest income accrued on and market discount and capital gains
recognized with respect to Notes held by Nonresidents will be subject to regular
United States income tax if such income is effectively connected with the
conduct of a United States business by the holder. Any such income, however,
will not be subject to withholding tax as long as the holder of the Note has
provided the Issuer (or other person who would otherwise be required to withhold
tax) with a properly completed IRS Form 4224 for the taxable year in which the
withholding otherwise would occur.
Reporting and Tax Administration
Reports will be made by the tax administrator of the Notes, at least
annually to holders of record of the Notes (other than those with respect to
whom reporting is not required) and to the Service as may be required by
statute, regulation, or administrative ruling with respect to (i) interest
income and original issue discount, if any, accrued on such Notes; and (ii)
information necessary to compute the accrual of any market discount on such
Notes.
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Certain U.S. Federal Income Tax Documentation Requirements
A Note Owner of Notes holding securities through Cedel or Euroclear (or
through DTC if the holder has an address outside the U.S.) will be subject to
the 30% U.S. withholding tax (or, in certain cases, the 31% backup withholding
tax) that generally applies to payments of interest (including original issue
discount) on registered debt issued by U.S. Persons (as defined below), unless
(i) each clearing system, bank or other financial institution that holds
customer's securities in the ordinary course of its trade or business in the
chain of intermediaries between such Note Owner and the U.S. entity required to
withhold tax complies with applicable certification requirements and (ii) such
Note Owner takes one of the following steps to obtain an exemption or reduced
tax rate:
Exemption for non-U.S. Persons (Form W-8). Note Owners of Notes that
are non-U.S. Persons can obtain a complete exemption from the U.S. withholding
tax and the backup withholding tax by filing a signed Form W-8 (Certificate of
Foreign Status). If the information shown in Form W-8 changes, a new form W-8
must be filed within 30 days of such change.
Exemption for non-U.S. Persons with effectively connected income (Form
4224). A non-U.S. Person, including a non-U.S. corporation or bank with a U.S.
branch, for which the interest income in effectively connected with its conduct
of a trade or business in the United States, can obtain an exemption from the
U.S. withholding tax and the backup withholding tax by filing Form 4224
(Exemption from Withholding of Tax on Income Effectively Connected with the
Conduct of a Trade or Business in the United States).
Exemption or reduced rate for non-U.S. Persons resident in treaty
countries (Form 1001). Non-U.S. Persons that are Note Owners of Notes residing
in a country that has a tax treaty with the United States can obtain an
exemption or reduced tax rate (depending on the treaty terms) with respect to
U.S. withholding tax and an exemption from the backup withholding tax by filing
Form 1001 (Ownership, Exemption or Reduced Rate Note). If the treaty provides
only for a reduced rate, the U.S. withholding tax will be imposed at that rate
unless the filer alternatively files Form W-8. Form 1001 may be filed by the
Note Owner of the Note or his agent.
Exemption for U.S. Persons (Form W-9). U.S. Persons generally are not
subject to the U.S. withholding and can obtain a complete exemption from the
backup withholding tax by filing Form W-9 (Payer's Request for Taxpayer
Identification Number and Certification).
U.S. Federal Income Tax Reporting Procedure. The Note Owner of a Note
(or in the case of a Form 1001 or a Form 4224 filer, its agent), files by
submitting the appropriate form to the person through whom it holds (the
clearing agency, in the case of persons holding directly on the books of the
clearing agency). Form W-8 and Form 1001 are effective for three calendar years
and Form 4224 is effective for one calendar year.
The term "U.S. Person" means (i) a citizen or resident of the United
States, (ii) a corporation or partnership organized in or under the laws of the
United States or any political subdivision thereof, (iii) an estate the income
of which is includable in gross income for United States tax purposes,
regardless of its source, or (iv) a trust if a court within the United States is
able to exercise primary jurisdiction over the administration of the trust and
one or more U.S. fiduciaries have the authority to control all substantial
decisions of the trust.
New Withholding Rules in 1999. Effective January 1, 1999, any foreign
investor that seeks the protection of an income tax treaty with respect to the
imposition of United States withholding tax will generally be required to obtain
a taxpayer identification number ("TIN") from the Service in advance and provide
verification that such investor is entitled to the protection of the relevant
income tax treaty. Foreign tax-exempt investors will generally be required to
provide verification of their tax-exempt status. Foreign investors are urged to
consult with their tax advisors with respect to these new withholding rules.
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This summary does not deal with all aspects of U.S. federal income tax
withholding that may be relevant to foreign holders of the globally offered
Notes. Investors are advised to consult their own tax advisers for specific tax
advice concerning their holding and disposing of the globally offered Notes.
DUE TO THE COMPLEXITY OF THE FEDERAL INCOME TAX RULES APPLICABLE TO
HOLDERS OF THE NOTES AND THE CONSIDERABLE UNCERTAINTY THAT EXISTS WITH RESPECT
TO MANY ASPECTS OF THOSE RULES, POTENTIAL INVESTORS SHOULD CONSULT THEIR OWN TAX
ADVISORS REGARDING THE TAX TREATMENT OF THE ACQUISITION, OWNERSHIP, AND
DISPOSITION OF THE NOTES.
STATE TAX CONSIDERATIONS
In addition to the federal income tax consequences described under
"Certain Federal Income Tax Consequences" above, potential investors should
consider the state income tax consequences of the acquisition, ownership, and
disposition of the Notes. State income tax law may differ substantially from the
corresponding federal law, and this discussion does not purport to describe any
aspect of the income tax laws of any state. Therefore, potential investors
should consult their own tax advisors with respect to the various state tax
consequences of an investment in the Notes.
ERISA CONSIDERATIONS
Fiduciaries of employee benefit plans and certain other retirement
plans and arrangements that are subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA") or corresponding provisions of the
Code, including individual retirement accounts and annuities, Keogh plans and
collective investment funds in which such plans, accounts, annuities or
arrangements are invested (any of the foregoing, a "Plan"), persons acting on
behalf of a Plan, or persons using the assets of a Plan ("Plan Investors"),
should review carefully with their legal advisors whether the purchase or
holding of the Notes could either give rise to a transaction that is prohibited
under ERISA or the Code or cause the Financed Student Loans or other assets of
the Trust to be treated as plan assets for purposes of regulations of the
Department of Labor set forth in 29 C.F.R. 2510.3-101 (the "Plan Asset
Regulations"). Prospective investors should be aware that, although certain
exceptions from the application of the prohibited transaction rules and the Plan
Asset Regulations exist, there can be no assurance that any such exception will
apply with respect to the acquisition of a Note.
Under the Plan Asset Regulations, if the Notes are treated as having
substantial equity features, the purchaser of a Note could be treated as having
acquired a direct interest in the Financed Student Loans and other Trust assets
securing the Notes. In that event, the purchase, holding, or resale of the Notes
could result in a transaction that is prohibited under ERISA or the Code. It is
expected that the Notes will be treated as debt obligations without significant
equity features for purposes of the Plan Asset Regulations. Accordingly, a Plan
that acquires a Note should not be treated as having acquired a direct interest
in the Trust assets. However, there can be no complete assurance that the Notes
will be treated as debt obligations without significant equity features for
purposes of the Plan Asset Regulations.
Regardless whether the Notes are treated as debt or equity for purposes
of ERISA, the acquisition or holding of the Notes by or on behalf of a Plan
could still be considered to give rise to a prohibited transaction if the
parties to the issuance transaction, or any of their respective affiliates is or
becomes a party in interest or a disqualified person with respect to such Plan.
However, one or more exemptions may be available with respect to certain
prohibited transaction rules of ERISA that might apply in connection with the
initial purchase, holding and resale of the Notes, depending in part upon the
type of Plan fiduciary making the decision to acquire Notes and the
circumstances under which such decision is made. Those exemptions include, but
are not limited to: (i) Prohibited Transaction Class Exemption 95-60, regarding
investments by insurance company pooled accounts; (ii) PTCE 91-38, regarding
investments by bank collective investment funds; (iii) PTCE 90-1, regarding
investments by insurance company pooled separate accounts; or (iv) PTCE 84-14,
regarding transactions negotiated by qualified professional asset managers.
Before purchasing Notes, a Plan subject to the fiduciary responsibility
provisions of ERISA or described in Section 4975(e)(1) (and not exempt under
Section 4975(g)) of the Code should consult with its counsel to determine
whether the conditions of any exemption would be met. A purchaser of a Note
should be aware, however, that even if the conditions specified in one or more
exemptions are met, the scope of the relief provided by an exemption might not
cover all acts that might be construed as prohibited transactions.
-99-
<PAGE>
UNDERWRITING
Subject to the terms and conditions set forth in an Underwriting
Agreement dated December __, 1997 (the "Underwriting Agreement"), among the
Transferor, Salomon Brothers Inc, Morgan Stanley & Co. Incorporated and Crestar
Securities Corporation (the "Underwriters"), the Transferor has agreed to sell
to the Underwriters, and each Underwriter has severally agreed to purchase from
the Transferor, the principal balance of each Class of Notes set forth below its
name on the following chart:
<TABLE>
<CAPTION>
<S> <C>
Principal Balance
-----------------------------------------------------------------------------------------
Crestar Securities Morgan Stanley
Class of Notes Salomon Brothers Inc Corporation & Co., Incorporated Total
- -------------- -------------------------------- ----------- ------------------- -----------
Class A-1 Notes............
Class A-2 Notes............
Class B Notes..............
Total.............
</TABLE>
In the Underwriting Agreement, the Underwriters have severally agreed,
subject to the terms and conditions set forth therein, to purchase all of the
Notes offered hereby, if any Notes are purchased. In the event of a default by
any Underwriter, the Underwriting Agreement provides that, in certain
circumstances, purchase commitments of the non-defaulting Underwriter may be
increased or purchase commitments of all Underwriters may be terminated. The
Transferor has been advised by the Underwriters that the Underwriters propose
initially to offer the Notes to the public at the public offering price with
respect to each Class set forth on the cover page of this Prospectus. After the
initial public offering, the public offering price may be changed.
The Underwriting Agreement provides that the Transferor will indemnify
the Underwriters against certain liabilities, including liabilities under
applicable securities laws, or contribute to payments the Underwriters may be
required to make in respect thereof.
After the initial distribution of the Notes by the Underwriters, the
Prospectus may be used by Crestar Securities Corporation, an affiliate of the
Transferor and the Master Servicer, in connection with offers and sales relating
to market making transactions in the Notes.
-100-
<PAGE>
Crestar Securities Corporation may act as principal or agent in such
transactions. Such sales will be made at prices related to prevailing market
prices at the time of sale.
The Underwriters may engage in over-allotment, stabilizing
transactions, syndicate covering transactions and penalty bids in accordance
with Regulation M under the Exchange Act. Over-allotment involves syndicate
sales in excess of the offering size, which creates a syndicate short position.
Stabilizing transactions permit bids to purchase the underlying security so long
as the stabilizing bids do not exceed a specific maximum. Syndicate covering
transactions involve purchases of the Notes in the open market after the
distribution has been completed in order to cover syndicate short positions.
Penalty bids permit the Underwriters to reclaim a selling concession from a
syndicate member when the Notes originally sold by such syndicate member are
purchased in a syndicate covering transaction to cover syndicate short
positions. Such stabilizing transactions, syndicate covering transactions and
penalty bids may cause the price of the Notes to be higher than it would
otherwise be in the absence of such transactions.
Each Underwriter has represented and agreed that (a) it has not offered
or sold, and will not offer or sell Notes to persons in the United Kingdom
except to persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the purposes of
their businesses or otherwise in circumstances which have not resulted, and will
not result in an offer to the public in the United Kingdom within the meaning of
the U.K. Regulations, (b) it has complied and will comply with all applicable
provisions of the Financial Services Act of 1986 of Great Britain with respect
to anything done by it in relation to the Notes in, from or otherwise involving
the United Kingdom and (c) it has only issued or passed on and will only issue
or pass on in the United Kingdom any document in connection with the issue of
the Notes to a person who is of a kind described in Article 11(3) of the
Financial Services Act 1986, as amended,
-101-
<PAGE>
(Investment Advertisement) (Exemptions) Order 1996, as amended, or is a person
to whom the document may otherwise lawfully be issued or passed on.
Crestar Securities Corporation is an affiliate of the Transferor and a
wholly owned indirect subsidiary of the Crestar Financial Corporation.
Salomon Brothers Inc has provided from time to time, and may provide in
the future, investment or commercial banking services to the Transferor and its
affiliates, for which Salomon Brothers Inc or its affiliates have received or
will receive customary fees and commissions.
LEGAL MATTERS
Certain legal matters relating to the Transferor, the Master Servicer
and the Administrator will be passed upon by Foley & Lardner and Hunton &
Williams. Certain legal matters relating to the validity of the issuance of the
Notes will be passed upon for the Trust by Hunton & Williams. Foley & Lardner
and Hunton & Williams each has performed legal services for the Transferor and
it is expected that they will continue to perform such services in the future.
Certain federal income tax and other matters will be passed upon for the Trust
by Hunton & Williams. Certain legal matters will be passed upon for the
Underwriters by Squire, Sanders & Dempsey L.L.P.
FINANCIAL INFORMATION
The Transferor has determined that its financial statements are not
material to the offering made hereby. The Trust will engage in no activities
other than as described herein. Accordingly, no financial statements with
respect to the Trust are included in this Prospectus.
RATING
It is a condition to the issuance and sale of each Class of the Class A
Notes that they each be rated "AAA" by Standard & Poor's and Fitch and "Aaa" by
Moody's. It is a condition to the issuance of the Class B Notes that they be
rated at least "A" by Standard & Poor's and Fitch and at least "A2" by Moody's.
Each of Standard & Poor's, Fitch and Moody's is also referred to herein as a
"Rating Agency" and collectively, as the "Rating Agencies." A securities rating
is not a recommendation to buy, sell or hold securities and may be subject to
revision or withdrawal at any time by the assigning rating agency. The ratings
of the Notes address the likelihood of the ultimate payment of principal of and
interest on the Notes pursuant to their terms. The Rating Agencies do not
evaluate, and the ratings on the Notes do not address, the likelihood of
prepayments on the Notes or the likelihood of payment of the Noteholders'
Interest Carryover.
INDEX OF PRINCIPAL TERMS
Set forth below is a list of the defined terms used in this Prospectus
and the pages on which the definitions of such terms may be found herein.
<TABLE>
<CAPTION>
<S> <C>
Page
1980 Amendments...................................................................................
1981 Amendments...................................................................................
Amendments........................................................................................
1987 Amendments...................................................................................
</TABLE>
-102-
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
Page
1989 Amendments...................................................................................
1992 Amendments...................................................................................
1993 Amendments...................................................................................
1993 Technical Amendments.........................................................................
1997 Amendments...................................................................................
91-day T-Bill Rate................................................................................
Adjustment Payment................................................................................
Administration Agreement..........................................................................
Administration Fee................................................................................
Administrator.....................................................................................
Administrator Default.............................................................................
Assigned Rights...................................................................................
Assistance Fund...................................................................................
Available Funds...................................................................................
BHCA..............................................................................................
Cede..............................................................................................
Cedel.............................................................................................
Cedel Participants................................................................................
Certificate Balance...............................................................................
Certificate Distribution Account..................................................................
Certificate Quarterly Advance Account.............................................................
Certificateholders................................................................................
Certificateholders' Distribution Amount...........................................................
Certificateholders' Interest Shortfall............................................................
Certificateholders' Principal Carryover Shortfall.................................................
Certificateholders' Principal Distribution Amount.................................................
Certificates......................................................................................
Claims Rates......................................................................................
Class.............................................................................................
Class A Noteholders...............................................................................
Class A Notes.....................................................................................
Class A-1 Noteholders.............................................................................
Class A-1 Notes...................................................................................
Class A-2 Noteholders.............................................................................
Class A-2 Notes...................................................................................
Class B Noteholders...............................................................................
Class B Notes.....................................................................................
Class Interest Rate...............................................................................
Closing Date......................................................................................
Code..............................................................................................
Collection Account................................................................................
Collection Period.................................................................................
Commission........................................................................................
Consolidation Loan Fees...........................................................................
Consolidation Prepayments.........................................................................
Cooperative.......................................................................................
CPR...............................................................................................
Crestar Subsidiary................................................................................
Cut-off Date......................................................................................
Default...........................................................................................
Deferment Periods.................................................................................
-103-
<PAGE>
Page
Deferral Phase....................................................................................
Definitive Notes..................................................................................
Delaware Trustee..................................................................................
Delaware Trustee Fee..............................................................................
Department of Education...........................................................................
Department of HHS.................................................................................
Depositor.........................................................................................
Depositories......................................................................................
Depository........................................................................................
Directing Notes...................................................................................
Distribution Date.................................................................................
Distribution Determination Date...................................................................
DOE Data Books....................................................................................
DTC...............................................................................................
DTC Participants..................................................................................
ECMC..............................................................................................
ECMC\Department Agreements........................................................................
Educational Loan Assistance Fund..................................................................
Effective Interest Rate...........................................................................
Eligible Deposit Account..........................................................................
Eligible Institution..............................................................................
Eligible Investments..............................................................................
Eligible Lender Trustee...........................................................................
Eligible Lender Trustee Fee.......................................................................
ERISA.............................................................................................
Euroclear.........................................................................................
Euroclear Operator................................................................................
Euroclear Participants............................................................................
Event of Default..................................................................................
Exchange Act......................................................................................
Expense Account...................................................................................
FDIA..............................................................................................
FDIC..............................................................................................
FFEL Program......................................................................................
FFELP Loans.......................................................................................
Final Maturity Date...............................................................................
Financed FFELP Loans..............................................................................
Financed HEAL Loans...............................................................................
Financed Student Loans............................................................................
FIRREA............................................................................................
Fitch.............................................................................................
Forbearance Period................................................................................
Forbearance Periods...............................................................................
Formula Interest Rate.............................................................................
Grace Period......................................................................................
Grace Periods.....................................................................................
Guarantee Agencies................................................................................
Guarantee Agency..................................................................................
Guarantee Agreements..............................................................................
Guarantee Fund....................................................................................
Guarantee Payments................................................................................
-104-
<PAGE>
Page
Guarantor.........................................................................................
Guarantors........................................................................................
HEAL Act..........................................................................................
HEAL Consolidation Loan...........................................................................
HEAL Insurance Contract...........................................................................
HEAL Loans........................................................................................
HEAL Program......................................................................................
Higher Education Act..............................................................................
Indenture.........................................................................................
Indenture Trustee.................................................................................
Indenture Trustee Fee.............................................................................
Index Maturity....................................................................................
Indirect Participants.............................................................................
Initial Financed Student Loans....................................................................
Initial Pool Balance..............................................................................
Insolvency Event..................................................................................
Insurance Payments................................................................................
Interest Payment Period...........................................................................
Interest Period...................................................................................
Interest Subsidy Agreement........................................................................
Interest Subsidy Payments.........................................................................
Investment Earnings...............................................................................
Issuer 2.3(b) Payments............................................................................
Loan Rates........................................................................................
London Banking Day................................................................................
Margin............................................................................................
Master Servicer...................................................................................
Master Servicer Default...........................................................................
Minimum Purchase Price............................................................................
Monthly Advance Account...........................................................................
Monthly Advances..................................................................................
Moody's...........................................................................................
Net Loan Rate.....................................................................................
New Borrower......................................................................................
Nonresidents......................................................................................
Note Distribution Account.........................................................................
Note Owner........................................................................................
Noteholders.......................................................................................
Noteholders' Distribution Amount..................................................................
Noteholders' Interest Carryover...................................................................
Noteholders' Interest Distribution Amount.........................................................
Noteholders' Interest Shortfall...................................................................
Noteholders' Principal Carryover Shortfall........................................................
Noteholders' Principal Distribution Amount........................................................
Notes.............................................................................................
Obligor...........................................................................................
One-Month LIBOR...................................................................................
Original Amount...................................................................................
Parity Percentage.................................................................................
Parity Percentage Payment.........................................................................
Participants......................................................................................
-105-
<PAGE>
Page
PHEAA.............................................................................................
PHEAA Bond Fund...................................................................................
Plan..............................................................................................
Plan Asset Regulations............................................................................
Plan Investors....................................................................................
PLUS Loans........................................................................................
Pool Balance......................................................................................
Principal Distribution Amount.....................................................................
Principal Factor..................................................................................
Program Operating Expense Percentage..............................................................
Purchase Amount...................................................................................
Quarterly Distribution Date.......................................................................
Rate Adjustment Date..............................................................................
Rate Determination Date...........................................................................
Rating Agencies...................................................................................
Rating Agency.....................................................................................
Realized Loss.....................................................................................
Record Date.......................................................................................
Reference Bank....................................................................................
Registration Statement............................................................................
Related Documents.................................................................................
Relief Act........................................................................................
Repayment.........................................................................................
Repayment Phase...................................................................................
Repeat Borrower...................................................................................
Reserve Account...................................................................................
Reserve Account Deposit...........................................................................
Reuters Screen LIBOR Page.........................................................................
Secretary of Education............................................................................
Secretary of HHS..................................................................................
Securities Act....................................................................................
Serial Loan.......................................................................................
Service...........................................................................................
Servicer..........................................................................................
Servicers.........................................................................................
Servicing Fee.....................................................................................
SLS Loans.........................................................................................
Special Allowance Payments........................................................................
Special Tax Counsel...............................................................................
Specified Reserve Account Balance.................................................................
Stafford Loans....................................................................................
Standard & Poor's.................................................................................
Student Loans.....................................................................................
Subsequent Cut-off Date...........................................................................
Subsequent Finance Date...........................................................................
Subsequent Finance Period.........................................................................
Subsequent Financed Student Loans.................................................................
Subsequent Financing Purchase Price...............................................................
Telerate Page 3750................................................................................
Terms and Conditions..............................................................................
Terms Supplement..................................................................................
-106-
<PAGE>
Page
TIN...............................................................................................
TP Loans..........................................................................................
TP Program........................................................................................
Transaction Fees..................................................................................
Transfer Agreement................................................................................
Transfer and Servicing Agreement..................................................................
Transfer and Servicing Agreements.................................................................
Transferor........................................................................................
Transferor Trusts.................................................................................
Trust.............................................................................................
Trust Accounts....................................................................................
Trust Agreement...................................................................................
U.K. Regulations..................................................................................
U.S. Person.......................................................................................
UCC...............................................................................................
Underwriters......................................................................................
Underwriting Agreement............................................................................
USAF..............................................................................................
</TABLE>
-107-
<PAGE>
No dealer, salesman or other individual has been authorized to give any
information or to make any representations other than those contained in this
Prospectus and, if given or made, such information or representations must not
be relied upon as having been authorized by the Transferor or the Underwriters.
This Prospectus does not constitute an offer to sell or a solicitation of an
offer to buy any securities other than the Notes offered hereby nor an offer of
such Notes to any person in any state or other jurisdiction in which such offer
would be unlawful. The delivery of this Prospectus at any time does not imply
that information herein is correct as of any time subsequent to its date.
--------------
TABLE OF CONTENTS
Available Information.......................
Reports to Noteholders......................
Incorporation of Certain Documents by
Reference.................................
Summary of Terms............................
Risk Factors................................
Formation of the Trust......................
Use of Proceeds.............................
The Transferor..............................
The Servicers...............................
The Financed Student Loan Pool..............
Maturity and Prepayment Considerations......
Description of the FFEL Program.............
Description of the Guarantee Agencies.......
Description of the HEAL Program.............
Description of the Notes....................
Description of the Transfer and Servicing
Agreements................................
Federal Income Tax Consequences.............
State Tax Considerations ...................
ERISA Considerations........................
Underwriting................................
Legal Matters...............................
Financial Information.......................
Rating......................................
Index of Principal Terms....................
$222,900,000
Crestar Student Loan
Trust 1997-1
STUDENT LOAN
ASSET BACKED NOTES
$130,000,000
Senior LIBOR Rate Class A-1 Notes
$84,000,000
Senior LIBOR Rate Class A-2 Notes
$8,900,000
Subordinate LIBOR Rate Class B Notes
__________
PROSPECTUS
__________
Salomon Smith Barney
Crestar Securities Corporation
Morgan Stanley Dean Witter
December __, 1997
-108-
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated expenses in connection with
the offering of $222,900,000 of the Student Loan Asset Backed Notes being
registered under this Registration Statement, other than underwriting discounts
and commission:
SEC Registration.........................................$ 65,764
Printing and Engraving................................... 35,000
Legal Fees and Expenses.................................. 310,000
Accounting Fees and Expenses............................. 35,000
Trustee Fees and Expenses................................ 18,500
Blue Sky Fees and Expenses............................... 10,000
Rating Agency Fees....................................... 138,000
Miscellaneous............................................ 56,436
--------
TOTAL.....................................$668,700
Item 15. Indemnification of Directors and Officers.
Registrant's Articles of Incorporation implement the provisions of the
Virginia State Corporation Act ("VSCA"), which provide for the indemnification
of Registrant's directors and officers in a variety of circumstances, which may
include indemnification for liabilities under the Securities Act of 1933. Under
Sections 13.1-697 and 13.1-702 of the VSCA, a Virginia corporation generally is
authorized to indemnify its directors and officers in civil and criminal actions
if they acted in good faith and believed their conduct to be in the best
interests of the corporation and, in the case of criminal actions, had no
reasonable cause to believe that the conduct was unlawful. Registrant's Articles
of Incorporation require indemnification of directors and officers with respect
to certain liabilities, expenses and other amounts imposed upon them by reason
of having been a director or officer, except in the case of willful misconduct
or a knowing violation of criminal law. In addition, the VSCA and Registrant's
Articles of Incorporation eliminate the liability of a director or officer in a
stockholder or derivative proceeding. This elimination of liability will not
apply in the event of willful misconduct or a knowing violation of the criminal
law or any federal or state securities law. Sections 13.1-692 and 13.1-696 to
- -704 of the VSCA are incorporated herein by reference.
Reference is made to the Underwriting Agreement filed as an exhibit hereto
for provisions relating to the indemnification of directors, officers and
controlling persons of the Registrant against certain liabilities, including
liabilities under the Securities Act of 1933, as amended.
Crestar Financial Corporation, the parent of the Registrant, carries an
insurance policy providing directors' and officers' liability insurance for any
liability its directors or officers or the directors or officers of any of its
subsidiaries, including the Registrant, may incur in their capacities as such.
II - 1
<PAGE>
Item 16. Exhibits.
All financial statements, schedules and historical financial information
have been omitted as they are not applicable.
1.1 Form of Underwriting Agreement+
3.1 Articles of Incorporation of Registrant+
3.2 By-Laws of Registrant+
3.3 Form of Trust Agreement among the Registrant, Star Bank, National
Association and Delaware Trust Capital Management Inc.+
4.1 Form of Indenture between the Trust and the Indenture Trustee+
4.2 Form of First Terms Supplement to Indenture between the Trust and the
Indenture Trustee+
4.3 Form of Transfer and Servicing Agreement among the Trust, the Master
Servicer and the Eligible Lender Trustee*
4.4 Form of Administration Agreement among the Administrator, the Eligible
Lender Trustee and the Indenture Trustee+
4.5 Guarantee Agreement with the Educational Credit Management Corporation+
4.6 Guarantee Agreement with the Pennsylvania Higher Education Assistance
Agency+
4.7 Contract of Insurance with the U.S. Department of Health and Human
Services*
5.1 Opinion of Hunton & Williams+
8.1 Opinion of Hunton & Williams with respect to tax matters+
23.1 Consent of Hunton & Williams is contained in their opinions filed as
Exhibits 5.1 and 8.1+
24.1 Power of Attorney of certain officers and directors of the Registrant+
25.1 T-1 Statement of Eligibility under the Trust Indenture Act of 1939 of
Bankers Trust Company*
- ------------------------------------
* Filed with this Amendment No. 2
+ Previously filed
Item 17. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the Prospectus any facts or events
arising after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in
the information set forth in the Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
Registration Statement or any material change of such information
in the Registration Statement;
II - 2
<PAGE>
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in the
post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are
included by reference in the Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof;
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission, such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
II - 3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Richmond, Commonwealth of Virginia, on December
5, 1997.
CRESTAR BANK
By: /s/ W. Clark McGhee
________________________
W. Clark McGhee
Senior Vice President
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to Registration Statement has been signed by the following persons in the
capacities and on the dates indicated pursuant to a Power of Attorney.
<TABLE>
<CAPTION>
Signature Capacity Date
<S> <C>
/s/ Richard G. Tilghman* Chairman of the Board & Chief December 5, 1997
- ------------------------------------ Executive Officer and Director
Richard G. Tilghman (Principal Executive Officer)
/s/ James M. Wells, III* President, Chief Operating Officer December 5, 1997
- ------------------------------------- and Director
James M. Wells, III
/s/ Richard F. Katchuk* Corporate Executive Vice President December 5, 1997
- ------------------------------------- and Chief Financial Officer
Richard F. Katchuk (Principal Financial Officer)
/s/ James D. Barr* Group Executive Vice President - December 5, 1997
- ------------------------------------- Controller & Treasurer
James D. Barr (Principal Accounting Officer)
- ------------------------------------- Director December __, 1997
J. Carter Fox
/s/ Bonnie Guiton Hill* Director December 5, 1997
- -------------------------------------
Bonnie Guiton Hill
/s/ Charles R. Longsworth* Director December 5, 1997
- -------------------------------------
Charles R. Longsworth
/s/ Patrick J. Maher* Director December 5, 1997
- -------------------------------------
Patrick J. Maher
</TABLE>
II - 4
<PAGE>
<TABLE>
<CAPTION>
Signature Capacity Date
<S> <C>
- ------------------------------------- Director December __, 1997
Frank E. McCarthy
/s/ Paul D. Miller* Director December 5, 1997
- -------------------------------------
Paul D. Miller
/s/ G. Gilmer Minor III* Director December 5, 1997
- -------------------------------------
G. Gilmer Minor III
/s/ Gordon F. Rainey, Jr.* Director December 5, 1997
- -------------------------------------
Gordon F. Rainey, Jr.
- ------------------------------------- Director December __, 1997
Frank S. Royal
/s/ Alfred H. Smith, Jr.* Director December 5, 1997
- -------------------------------------
Alfred H. Smith, Jr.
/s/ Jeffrey R. Springer* Director December 5, 1997
- -------------------------------------
Jeffrey R. Springer
/s/ Eugene P. Trani* Director December 5, 1997
- -------------------------------------
Eugene P. Trani
- ------------------------------------- Director December __, 1997
L. Dudley Walker
/s/ Robert C. Wilburn* Director December 5, 1997
- -------------------------------------
Robert C. Wilburn
/s/ Karen Hastie Williams* Director December 5, 1997
- -------------------------------------
Karen Hastie Williams
By: /s/ W. Clark McGhee
--------------------------------- December 5, 1997
W. Clark McGhee
Attorney-in-Fact, pursuant to a
Power of Attorney
II - 5
</TABLE>
EXHIBIT 4.3
TRANSFER AND SERVICING AGREEMENT
among
CRESTAR STUDENT LOAN TRUST 1997-1
as Issuer,
CRESTAR BANK
as Transferor, Master Servicer and Administrator
and
STAR BANK, NATIONAL ASSOCIATION
not in its individual capacity but solely
as Eligible Lender Trustee
Dated as of [_______,] 1997
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
ARTICLE I
<S> <C>
Definitions and Usage............................................................................ 1
ARTICLE II
Conveyance of Financed Student Loans
SECTION 2.1 Conveyance of Initial Financed
Student Loans............................................................ 1
SECTION 2.2 Conveyance of Subsequent Financed Student Loans............................. 2
SECTION 2.3 Purchase of Subsequent Financed Student Loans upon Order
of the Transferor........................................................ 3
SECTION 2.4 Security Agreement.......................................................... 4
ARTICLE III
The Financed Student Loans
SECTION 3.1 Representations, Warranties and Agreements of Transferor with Respect
to the Financed Student Loans............................................ 5
SECTION 3.2 Repurchase upon Breach; Reimbursement....................................... 7
SECTION 3.3 Custody of Financed Student Loan Files...................................... 8
SECTION 3.4 Duties of Master Servicer as Custodian...................................... 9
SECTION 3.5 Instructions; Authority to Act.............................................. 9
SECTION 3.6 Custodian's Indemnification................................................. 9
SECTION 3.7 Effective Period and Termination............................................ 10
SECTION 3.8 Appointment of Subcustodian................................................. 11
SECTION 3.9. Compliance by the Eligible Lender Trustee
with Insurance Agreements with the Secretary
of HHS................................................................... 11
ARTICLE IV
Administration and Servicing of Financed Student Loans
SECTION 4.1 Duties of Master Servicer................................................... 11
SECTION 4.2 Collection of Financed Student Loan Payments................................ 12
SECTION 4.3 Realization upon Financed Student Loans..................................... 14
SECTION 4.4 No Impairment............................................................... 14
SECTION 4.5 Purchase of Financed Student Loans; Reimbursement 14
SECTION 4.6 Servicing Fee............................................................... 15
SECTION 4.7 Administrator's Certificate................................................. 15
SECTION 4.8 Annual Statement as to Compliance; Notice of
Default.................................................................. 16
SECTION 4.9 Annual Independent Certified Public Accountants'
Report or Reports........................................................ 16
<PAGE>
SECTION 4.10 Access to Certain Documentation and Information
Regarding Financed Student Loans......................................... 17
SECTION 4.11 Master Servicer and Administrator Expenses .............................. 17
SECTION 4.12 Appointment of Servicer.................................................. 17
SECTION 4.13 Subservicing Agreements.................................................. 18
SECTION 4.14 Incentive Programs....................................................... 18
ARTICLE V
Distributions; Reserve Account;
Statements to Certificateholders and Noteholders
SECTION 5.1 Establishment of Trust Accounts............................................. 18
SECTION 5.2 Collections................................................................. 20
SECTION 5.3 Application of Collections.................................................. 20
SECTION 5.4 Additional Deposits......................................................... 20
SECTION 5.5 Distributions............................................................... 21
SECTION 5.6 Reserve Account............................................................. 24
SECTION 5.7 Statements to Certificateholders and Noteholders ........................... 25
SECTION 5.8 Expense Account............................................................. 26
SECTION 5.9 Note Distribution Account and Certificate Distribution Account 26
SECTION 5.10 Monthly Advances......................................................... 26
SECTION 5.11 Certificate Interest..................................................... 27
ARTICLE VI
The Transferor and the Master Servicer
SECTION 6.1 Representations of Transferor and Master Servicer .......................... 27
SECTION 6.2 Existence................................................................... 29
SECTION 6.3 Liability and Indemnities................................................... 29
SECTION 6.4 [Reserved].................................................................. 31
SECTION 6.5 Merger or Consolidation of, or Assumption of the Obligations
of, the Transferor, the Administrator or the Master
Servicer................................................................. 31
SECTION 6.6 Limitation on Liability of Transferor, Master Servicer
and Others............................................................... 32
SECTION 6.7 Transferor May Own Certificates or Notes.................................... 33
SECTION 6.8 Master Servicer Not to Resign............................................... 33
ARTICLE VII
The Administrator
SECTION 7.1 Representations of the Administrator........................................ 33
SECTION 7.2 Liability and Indemnities................................................... 34
SECTION 7.3 Administrator Not to Resign................................................. 36
SECTION 7.4 Additional Services......................................................... 36
<PAGE>
ARTICLE VIII
Default
SECTION 8.1 Master Servicer Default; Administrator Default 36
SECTION 8.2 Appointment of Successor.................................................... 38
SECTION 8.3 Notification to Noteholders and Certificateholders ......................... 39
SECTION 8.4 Waiver of Past Defaults..................................................... 39
ARTICLE IX
Termination
SECTION 9.1 Termination................................................................. 40
ARTICLE X
[Reserved]
ARTICLE XI
Miscellaneous
SECTION 11.1 Amendment................................................................ 42
SECTION 11.2 Protection of Interests in Trust......................................... 43
SECTION 11.3 Notices.................................................................. 44
SECTION 11.4 Assignment............................................................... 45
SECTION 11.5 Limitations on Rights of Others.......................................... 45
SECTION 11.6 Severability............................................................. 45
SECTION 11.7 Separate Counterparts.................................................... 45
SECTION 11.8 Headings................................................................. 45
SECTION 11.9 Governing ............................................................... 45
SECTION 11.10 Assignment to Indenture Trustee.......................................... 45
SECTION 11.11 Nonpetition Covenants.................................................... 45
SECTION 11.12 Limitation of Liability of Eligible Lender Trustee,
Indenture Trustee and Delaware Trustee................................... 46
</TABLE>
APPENDIX A Definitions and Usage
SCHEDULE A-1 Schedule of Financed Student Loans
SCHEDULE B Location of Financed Student Loan Files
EXHIBIT A Form of Noteholders' Statement
EXHIBIT B Form of to Certificateholders' Statement
EXHIBIT C Form of Administrator's Certificate
EXHIBIT D Assignment for Financed Student Loans
EXHIBIT E Transfer Agreement
EXHIBIT F Officer's Certificate Required by Section 2.2(b)(viii)
of the Transfer and Servicing Agreement
<PAGE>
TRANSFER AND SERVICING AGREEMENT (the "Agreement") dated as of
[_______,] 1997, among CRESTAR STUDENT LOAN TRUST 1997-1, a Delaware business
trust (the "Issuer"), CRESTAR BANK, a Virginia banking corporation (the
"Transferor," the "Master Servicer" or the "Administrator" in such respective
capacities), and STAR BANK, NATIONAL ASSOCIATION, a national banking
association, solely as eligible lender trustee and not in its individual
capacity (the "Eligible Lender Trustee").
WHEREAS the Issuer desires to acquire student loans originated or
acquired by the Transferor in the ordinary course of business;
WHEREAS the Eligible Lender Trustee is willing to hold legal title to,
and serve as eligible lender trustee with respect to, such student loans on
behalf of the Issuer; and
WHEREAS the Master Servicer and the Administrator are willing to
service such student loans and undertake certain administrative functions with
respect thereto; and
WHEREAS the Issuer has authorized the issuance of its Notes; and
WHEREAS the parties hereto are entering into this Transfer and
Servicing Agreement in connection with such Notes.
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree, intending to be legally
bound hereby, as follows:
ARTICLE I
Definitions and Usage
Capitalized terms used but not defined herein are defined in Appendix A
hereto, which also contains rules as to usage and construction that shall be
applicable herein.
ARTICLE II
Conveyance of Financed Student Loans
SECTION 2.1. Conveyance of Initial Financed Student Loans. (a) In
consideration of the Issuer's delivery to or upon the order of the Transferor on
the Closing Date of [$____________], the Transferor agrees to, and the
Transferor does hereby, as evidenced by a duly executed written assignment in
the form of Exhibit D, contribute, transfer, sell, assign, set over and
otherwise convey to the Eligible Lender Trustee on behalf of the Issuer, without
recourse (subject to the obligations herein):
(i) All right, title and interest in and to the
Financed Student Loans listed on Schedule A- 1 to this
Agreement (the "Initial Financed Student Loans") and all
obligations of the Obligors thereunder, including all moneys
paid thereunder (other than Interest Subsidy Payments and
Special Allowance Payments payable through the Cut-off Date),
and all written communications received by the Transferor with
respect thereto and still retained by Transferor in accordance
with its retention policies (including borrower
correspondence, notices of death, disability or bankruptcy and
requests for deferrals or forbearance), after the Cut-off
Date;
(ii) all right, title and interest in all funds on
deposit from time to time in the Trust Accounts and in all
investments and proceeds thereof (including all income
thereon); and
<PAGE>
(iii) the proceeds of any and all of the foregoing.
(b) On the Closing Date, the Transferor shall have delivered
(A) to the Rating Agencies an Opinion of Counsel with respect to the
transfer of the Initial Financed Student Loans and (B) to the Eligible
Lender Trustee and the Indenture Trustee the Opinion of Counsel
required by Section 11.2(i)(1).
SECTION 2.2. Conveyance of Subsequent Financed Student Loans.
(a) Subject to the conditions set forth in paragraph (b)
below, the Transferor shall contribute, transfer, sell, assign, set
over and otherwise convey to the Eligible Lender Trustee on behalf of
the Issuer, without recourse (subject to the obligations herein), all
right, title and interest in and to each Subsequent Financed Student
Loan, and all obligations of the Obligors thereunder, including all
moneys paid thereunder (other than Interest Subsidy Payments and
Special Allowance Payments payable through the related Subsequent
Cut-off Date), and all written communications received by the
Transferor with respect thereto and still retained by the Transferor in
accordance with its retention policies (including borrower
correspondence, notices of death, disability or bankruptcy and requests
for deferrals or forbearances), on and after the related Subsequent
Cut-off Date, and the proceeds of any and all of the foregoing, in
consideration of:
(i) the Indenture Trustee's transfer to the
Transferor on the related Subsequent Finance Date of the
Subsequent Financing Purchase Price in immediately available
funds to an account designated in writing by the Transferor to
the Indenture Trustee, if the Transferor exercises its option
pursuant to Section 2.3(a) hereof; and
(ii) the Eligible Lender Trustee's conveyance of
Financed Student Loans on the related Subsequent Finance Date
to the Transferor pursuant to Section 2.3(b) hereof, if the
Transferor exercises its option pursuant to Section 2.3(b).
(b) The Transferor shall transfer to the Issuer the Subsequent
Financed Student Loans for a given Subsequent Finance Date and the
other property and rights related thereto described in paragraph (a)
above only upon the satisfaction of each of the following conditions on
or prior to such Subsequent Finance Date:
(i) the Transferor shall have delivered to the
Eligible Lender Trustee and the Indenture Trustee a duly
executed written assignment (including an acceptance by the
Eligible Lender Trustee and the Indenture Trustee) in
substantially the form of Exhibit E (each, a "Transfer
Agreement"), which shall include supplements to Schedule A-1,
listing such Subsequent Financed Student Loans;
(ii) the Transferor shall have delivered, at least
two days' prior to such Subsequent Finance Date, notice of
such transfer to the Eligible Lender Trustee and the Indenture
Trustee, with a copy to the Rating Agencies, including a
listing of the aggregate principal balance of such Subsequent
Financed Student Loans;
(iii) the Transferor shall, to the extent required by
Section 2.3, have deposited in the Collection Account all
collections received in respect of the Subsequent Financed
Student Loans after each applicable Subsequent Cut-off Date
and all required Adjustment Payments;
(iv) as of such Subsequent Finance Date, the
Transferor was not insolvent nor will it have been made
insolvent by such transfer nor is it aware of any pending
insolvency;
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<PAGE>
(v) such transfer will not result in a material
adverse federal or State tax consequence to the Issuer
relating to its tax classification or the Noteholders,
considered as a whole, relating to a change in the
characterization of the Notes;
(vi) no Event of Default shall have occurred and be
continuing as of such Subsequent Finance Date and no Master
Servicer Default or Administrator Default shall have occurred
and be continuing as of such Subsequent Finance Date;
(vii) the Subsequent Finance Period shall not have
terminated;
(viii) the Transferor shall have delivered to the
Indenture Trustee and the Eligible Lender Trustee an Officers'
Certificate in substantially the form of Exhibit F, confirming
the satisfaction of each condition precedent specified in this
paragraph (b);
(ix) the Transferor shall have taken any action
required to maintain the first perfected ownership interest of
the Issuer in the Trust Estate and the first perfected
security interest of the Indenture Trustee in the Financed
Student Loans; and
(x) no selection procedures believed by the
Transferor to be adverse to the interests of the
Certificateholders or the Noteholders shall have been utilized
in selecting the Subsequent Financed Student Loans; provided,
however, that the Transferor shall not incur any liability as
a result of transferring Subsequent Financed Student Loans on
any Subsequent Finance Date at a time when the condition set
forth in clause (v) was not satisfied, if at the time of such
transfer the Transferor was not aware of any fact that would
reasonably suggest that such condition would not be satisfied
as of such date.
In the case of a transfer of Financed Student Loans by the Eligible
Lender Trustee pursuant to Section 2.3(b) hereof, upon the satisfaction
of the conditions set forth in this Section 2.2 (b), the Eligible
Lender Trustee shall execute and deliver to the Transferor an
Assignment, substantially in the form of Annex B to the Transfer
Agreement.
SECTION 2.3. Purchase of Subsequent Financed Student Loans upon Order
of the Transferor.
(a) During the Subsequent Finance Period, subject to the
conditions set forth in Section 2.2(b) hereof, the Transferor may, at
its option, transfer to the Eligible Lender Trustee on behalf of the
Trust, Subsequent Financed Student Loans as described in this Section
2.3(a), and direct the Eligible Lender Trustee and the Indenture
Trustee to apply Consolidation Prepayments on deposit in the Collection
Account to pay the Subsequent Financing Purchase Price for such
Subsequent Financed Student Loans. Subsequent Financed Student Loans
that may be transferred by the Transferor pursuant to this Section
2.3(a) include:
(i) A Consolidation Loan or a HEAL Consolidation Loan
being made by the Transferor which satisfies the following
criteria: [[insert criteria]]; and
(ii) One or more Serial Loans owned by the Transferor that are
serial (i.e., made to the same borrower under the same loan
program and guaranteed by the same Guarantor or insured by the
Department of HHS) to an existing Financed Student Loan owned
by the Trust; provided that each such Subsequent Financed
Student Loan entitles the holder thereof to receive interest
based on the same interest rate index as the Financed Student
Loan to which it is serial, and provided further, that in no
event shall the aggregate amount of Subsequent Financed
Student Loans that are Serial Loans transferred into the Trust
exceed [[$750,000]].
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<PAGE>
(b) [[During the Subsequent Finance Period,]] subject to the
conditions set forth in Section 2.2(b) hereof, the Transferor may, at
its option, in lieu of depositing into the Collection Account the
Purchase Amount of a Financed Student Loan pursuant to clause (y) of
the second paragraph of Section 3.2 or clause (y) of the second
paragraph of Section 4.5 hereof, transfer to the Eligible Lender
Trustee on behalf of the Trust, a Subsequent Financed Student Loan
which satisfies the following criteria: (A) the Subsequent Financed
Student Loan was originated under the same loan program as the Financed
Student Loan for which it is being exchanged and entitles the holder
thereof to receive interest based on the same interest rate index as
the Financed Student Loan for which it is being exchanged, (B) the
Subsequent Financed Student Loan will not, at any level of such
interest rate index, have an interest rate that is less than the
Financed Student Loan for which it is being exchanged and (C) the
average principal balance per Obligor of the Subsequent Financed
Student Loans that are being transferred into the Trust on each
Subsequent Finance Date and the existing Financed Student Loans for
which they are being exchanged pursuant to this Section 2.3(b) is
within 10% (plus or minus) of the average principal balance per Obligor
of the Financed Student Loans being transferred to the Transferor on
such Subsequent Finance Date.
(c) Upon receipt of written notice (or telephonic or facsimile
notice promptly followed by written notice) from the Master Servicer by
the Eligible Lender Trustee and the Indenture Trustee, the Eligible
Lender Trustee will convey to the Master Servicer (or the Master
Servicer's designee) the Financed Student Loans identified in such
notice, which are to be transferred to a Guarantor or the Department of
HHS in consideration of a related Guarantee Payment or Insurance
Payment. Within [[one Business Day of its receipt]] of the related
Guarantee Payment or Insurance Payment, the Master Servicer shall
deposit, or cause to be deposited, into the Collection Account an
amount equal to such Guarantee Payment or Insurance Payment, as payment
of such conveyance.
(d) If on any Subsequent Finance Date the aggregate
outstanding principal balance as of the related Subsequent Cut-off Date
of all the Subsequent Financed Student Loans being exchanged on such
Subsequent Finance Date pursuant to Section 2.3(b) is less than that of
all the Financed Student Loans for which they are being exchanged, an
amount equal to such difference (the "Adjustment Payments") shall be
deposited by the Transferor into the Collection Account on the related
Subsequent Finance Date.
(e) If on any Subsequent Finance Date the aggregate
outstanding principal balance as of the related Subsequent Cut-off Date
of all the Subsequent Financed Student Loans being exchanged on such
Subsequent Finance Date pursuant to Section 2.3(b) is greater than that
of all the Financed Student Loans for which they are being exchanged,
upon written request of the Transferor an amount up to the amount of
such excess (the "Issuer 2.3(b) Payments") shall be remitted by the
Indenture Trustee to the Transferor [[from Consolidation Prepayments]]
on deposit in the Collection Account.
SECTION 2.4. Security Agreement. Although it is the intent of the
parties to this Agreement that the conveyance of the Transferor's right, title
and interest in and to the Financed Student Loans pursuant to this Agreement or
any Transfer Agreement shall constitute a contribution and transfer and not a
loan, if such conveyance is deemed to be a loan, it is the intent of the parties
to this Agreement that the Transferor shall be deemed to have Granted to the
Eligible Lender Trustee, on behalf of the Issuer, a first priority perfected
security interest in all of the Transferor's right, title and interest in, to
and under the Financed Student Loans and the proceeds thereof, and that this
Agreement shall constitute a security agreement under applicable law. It is the
further intent of the parties to this Agreement that if the Trust is disregarded
for whatever reason or purpose, the Transferor's foregoing Grant of a first
priority perfected security interest shall be deemed to be directly to, and for
the direct benefit of, the Indenture Trustee.
-4-
<PAGE>
ARTICLE III
The Financed Student Loans
SECTION 3.1. Representations, Warranties and Agreements of Transferor
with Respect to the Financed Student Loans. The Transferor hereby makes the
following representations and warranties as to the Financed Student Loans on
which the Issuer is deemed to have relied in acquiring (through the Eligible
Lender Trustee) such Financed Student Loans. Such representations and warranties
speak as of the Closing Date, in the case of the Initial Financed Student Loans,
and as of the applicable Subsequent Finance Dates in the case of the Subsequent
Financed Student Loans, but shall survive the contribution, transfer and
assignment of such Financed Student Loans to the Eligible Lender Trustee on
behalf of the Issuer and the pledge thereof to the Indenture Trustee pursuant to
the Indenture.
(i) Characteristics of Financed Student Loans. Each
Financed Student Loan (A) was originated in the United States
of America, its territories, its possessions or other areas
subject to its jurisdiction to an eligible borrower under
applicable law and agreements and was fully and properly
executed by the parties thereto, (B) was originated or
acquired by the Transferor in the ordinary course of its
business, and (C) provides or, when the payment schedule with
respect thereto is determined, will provide for payments on a
periodic basis that fully amortize the principal amount of
such Financed Student Loan by its maturity and yields interest
at the rate applicable thereto (except as otherwise provided
in Section 4.14), as such maturity may be modified in
accordance with any applicable deferment or forbearance
periods granted in accordance with applicable laws and
restrictions, including those of the Higher Education Act, the
HEAL Act, the HEAL Insurance Contract or any Guarantee
Agreement. Each Financed Student Loan that is a Stafford Loan
qualifies the holder thereof (assuming such holder is an
eligible lender under the Higher Education Act and has a
guarantee agreement with the applicable Guarantor of such
loan) to receive Interest Subsidy Payments and Special
Allowance Payments from the Department of Education. Each
Financed Student Loan that is a Consolidation Loan, a PLUS
Loan, a SLS Loan or an Unsubsidized Stafford Loan qualifies
the holder thereof (assuming such holder is an eligible lender
under the Higher Education Act and has a guarantee agreement
with the applicable Guarantor of such loan) to receive Special
Allowance Payments from the Department of Education to the
extent applicable. Each Financed FFELP Loan qualifies the
holder thereof (assuming such holder is an eligible lender
under the Higher Education Act and has a guarantee agreement
with the applicable Guarantor of such loan) to receive
Guarantee Payments from the applicable Guarantor in accordance
with the applicable Guarantee Agreement. Each Financed HEAL
Loan qualifies the holder thereof (assuming such holder is an
eligible lender under the HEAL Act and has an insurance
contract with the Secretary of HHS) to receive Insurance
Payments from the Department of HHS in accordance with the
HEAL Insurance Contract.
(ii) Schedule of Financed Student Loans. The
information concerning the Financed Student Loans set forth in
Schedule A-1 to this Agreement and Schedule A of the related
Transfer Agreement is true and correct in all material
respects as of the close of business on the Cut-off Date (with
respect to Schedule A-1 to this Agreement) or each applicable
Subsequent Cut-off Date (with respect thereto), as applicable.
The computer tape or electronic data transmission regarding
the Initial Financed Student Loans is true and correct in all
material respects as of the Cut-off Date and each computer
tape or electronic data transmission regarding the Subsequent
Student Loans will be true and correct in all material
respects as of the related Subsequent Cut-off Date.
(iii) Compliance with Law. Except with respect to any
VELA Service Errors that have been waived by the Department of
Education and the applicable Guarantor, at the time each
Financed Student Loan was originated or made and at the
execution of this Agreement or the
-5-
<PAGE>
applicable Transfer Agreement, as the case may be, each
Financed Student Loan complied or complies, and the Transferor
and its agents, with respect to each such Financed Student
Loan, have at all times complied, in all material respects
with all requirements of applicable federal, State and local
laws and regulations thereunder, including the Higher
Education Act with respect to FFELP Loans, the HEAL Act with
respect to HEAL Loans, the Equal Credit Opportunity Act, the
Federal Reserve Board's Regulation B and other applicable
consumer credit laws and equal credit opportunity laws.
(iv) Binding Obligation. Each Financed Student Loan
represents the genuine, legal, valid and binding payment
obligation in writing of the related borrower, enforceable by
or on behalf of the holder thereof against such borrower in
accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance and similar
laws relating to creditors' rights generally and subject to
general principles of equity and no Financed Student Loan has
been satisfied, subordinated or rescinded.
(v) No Defenses. No right of rescission, setoff,
counterclaim or defense has been asserted or, to the
Transferor's knowledge, threatened with respect to any
Financed Student Loan.
(vi) No Default. No Initial Financed Student Loan has
a payment that is more than 90 days overdue as of the Cut-off
Date, and no Subsequent Financed Student Loan will have a
payment that is more than 90 days overdue as of its related
Subsequent Cut-off Date, and, except as permitted in this
paragraph, no default, breach, violation or event permitting
acceleration under the terms of any Financed Student Loan has
occurred; and, except for payment defaults and other
circumstances creating a delinquency continuing for a period
of not more than 90 days, no continuing condition that with
notice or the lapse of time or both would constitute a
default, breach, violation or event permitting acceleration
under the terms of any Financed Student Loan has arisen; and
the Transferor has not waived and shall not waive any of the
foregoing other than as permitted by the Basic Documents.
(vii) Title. It is the intention of the Transferor
that the transfer and assignment herein contemplated
constitutes a contribution of the Financed Student Loans from
the Transferor to the Eligible Lender Trustee on behalf of the
Issuer and the beneficial interest in and title to such
Financed Student Loans shall not be part of the debtor's
estate in the event of the appointment of a receiver with
respect to the Transferor. No Financed Student Loan has been
transferred, assigned or pledged by the Transferor to any
Person other than the Eligible Lender Trustee on behalf of the
Issuer or any such assignment or pledge has been released.
Immediately prior to the transfer and assignment herein
contemplated, the Transferor had good title to each Financed
Student Loan, free and clear of all Liens and, immediately
upon the transfer thereof, the Eligible Lender Trustee on
behalf of the Issuer shall have good title to each such
Financed Student Loan, free and clear of all Liens, and the
transfer to the Indenture Trustee, shall have been perfected
under the UCC. No Financed Student Loan was subject to a third
party's right of first refusal to the transfers from the
Transferor provided for herein, and the transfer of the
Financed Student Loans as contemplated hereby will not violate
in any material respect the terms of any Subservicing
Agreement or any other material agreement or arrangement to
which the Master Servicer is a party.
(viii) Lawful Assignment. No Financed Student Loan
has been originated in, or is subject to the laws of, any
jurisdiction under which the contribution, transfer and
assignment of such Financed Student Loan under this Agreement
or any Transfer Agreement is unlawful, void or voidable.
-6-
<PAGE>
(ix) All Filings Made. All filings (including UCC
filings) necessary in any jurisdiction to give the Issuer a
first perfected security interest in the Financed Student
Loans (if, despite the express intention of the parties
hereto, the transfer of the Financed Student Loans is deemed a
loan), and to give the Indenture Trustee a first perfected
security interest therein, shall have been made or have been
delivered for filing.
(x) One Original. To the best knowledge of the
Transferor, there is only one original executed copy of each
promissory note evidencing a Financed Student Loan.
(xi) Principal Balance. The aggregate principal
balance of the Initial Financed Student Loans set forth on
Schedule A-1 as of the Cut-off Date is [$____________].
Additionally, as of the Cut-off Date, the accrued interest on
the Initial Financed Student Loans set forth on Schedule A-1
other than with respect to Interest Subsidy Payments and
Special Allowance Payments is [$_______].
(xii) Interest Rate. Except with respect to TP Loans
(as permitted by Section 4.14 hereof), each Financed FFELP
Loan included in the Initial Financed Student Loans bears
interest at the "applicable interest rate" permitted for such
loan under the Higher Education Act. Each Financed HEAL Loan
included in the Initial Financed Student Loans bears interest
at the rate of [______%].
(xiii) Interest Accruing. Each Financed Student Loan
is accruing interest (whether or not such interest is being
paid currently, by the Obligor or is being capitalized),
except as otherwise expressly permitted by the Basic
Documents.
SECTION 3.2. Repurchase upon Breach; Reimbursement. The Transferor, the
Master Servicer or the Eligible Lender Trustee, as the case may be, shall inform
the other parties to this Agreement and the Indenture Trustee promptly, in
writing, upon the discovery of any breach of the representations and warranties
of the Transferor made pursuant to Sections 3.1 and 6.1 hereof. Unless any such
breach shall have been cured within 120 days following the discovery thereof by
the Transferor or receipt by the Transferor of written notice from the Eligible
Lender Trustee or the Master Servicer of such breach, the Financed Student Loan
in which the interests of the Noteholders or the Certificateholders are
materially and adversely affected by any such breach shall be retransferred,
reassigned, resetover and otherwise reconveyed to the Transferor (a
"repurchase") as of the first day succeeding the end of such 120-day period that
is the last day of a Collection Period; provided that it is understood that any
such breach that has not resulted in the failure of a Guarantee Agency to make a
Guarantee Payment or the Department of HHS to make an Insurance Payment to the
Eligible Lender Trustee will not be considered to have a material adverse effect
for this purpose; and provided further, however, that in the case of any
representation or warranty the breach of which may be cured by reinstatement of
the Guarantor's obligation to guarantee payment or the Department of HHS's
obligation to insure payment, such cure period shall be 360 days (instead of 120
days), in each case following the earlier of the date on which such breach is
discovered by the Transferor and the date of the Servicer's receipt of the
Guarantor or Department of HHS reject transmittal form with respect to such
Financed Student Loan. Notwithstanding the foregoing, if as of the last day of
any Collection Period the aggregate principal amount of Financed Student Loans
with respect to which claims have been filed with and rejected by a Guarantor or
the Department of HHS as a result of a breach of a representation or warranty of
the Transferor in Sections 3.1 or Section 6.1 hereof or a breach of the
obligations of the Master Servicer under Sections 4.1 through 4.4 hereof or with
respect to which the Master Servicer determines that claims cannot be filed
pursuant to the Higher Education Act or the HEAL Act, as the case may be, as a
result of such a breach exceeds the lesser of $250,000 or 0.25% of the Pool
Balance as of such date, the Transferor shall repurchase within 120 days of a
written request by the Eligible Lender Trustee or the Indenture Trustee,
affected Financed Student Loans in an aggregate principal amount such that after
such repurchases (or purchases by the Master Servicer pursuant to Section 4.5
hereof) the aggregate principal amount of affected Financed Student Loans is
equal to or less than the lesser of $250,000 or 0.25% of the Pool Balance. The
Financed Student Loans to be repurchased by the Transferor pursuant to the
preceding
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<PAGE>
sentence (or by the Master Servicer pursuant to Section 4.5 hereof) will be
based on the date of claim rejection, with the Financed Student Loans with the
earliest such dates to be repurchased or purchased first. In consideration of
and simultaneously with the repurchase of the Financed Student Loan, the
Transferor shall remit the Purchase Amount, in the manner specified in Section
5.4, and the Issuer shall execute such assignments and other documents
reasonably requested by the Transferor in order to effect such transfer. Upon
any such transfer of a Financed Student Loan, legal title to, and beneficial
ownership and control of, the related Financed Student Loan File and, if
applicable, the related Additional Financed HEAL Loan File will thereafter
belong to the Transferor.
In addition, if any such breach does not trigger such a repurchase
obligation but does result in (i) the refusal by the Department of HHS to insure
the applicable portion of the accrued interest with respect to any Financed HEAL
Loan, or (ii) the refusal by a Guarantor to guarantee the applicable portion of
the accrued interest, or the loss of (including any obligation of the Issuer to
repay to the Department of Education) certain Interest Subsidy Payments and
Special Allowance Payments, with respect to a Financed FFELP Loan, then, unless
such breach, if curable, is cured within 120 days following the discovery
thereof by the Transferor or receipt by the Transferor of written notice from
the Eligible Lender Trustee, the Transferor shall, at its option, either (y)
repurchase such Financed Student Loan (but only if an actual failure to pay any
such amount to the Eligible Lender Trustee occurs or the Eligible Lender is
required to repay such an amount which has been previously paid) at the
applicable Purchase Amount, including, by transferring to the Eligible Lender
Trustee a Subsequent Financed Student Loan pursuant to Section 2.3(b) hereof in
lieu of depositing into the Collection Account all or a portion of the Purchase
Amount (equal to the Subsequent Financing Purchase Price of such Subsequent
Financed Student Loan as of the Subsequent Finance Date) or (z) reimburse the
Issuer by remitting an amount equal to the sum of all amounts that would have
been payable if not for such breach in the manner specified in Section 5.4 not
later than the last day of the Collection Period in which such 120th day occurs
(or, to the extent that all or a portion of such amount is not otherwise due and
payable as of such date, that portion shall be remitted to the Collection
Account on the last day of the Collection Period during which such amount would
otherwise be due and payable).
The sole remedy of the Issuer, the Eligible Lender Trustee, the
Indenture Trustee, the Noteholders or the Certificateholders with respect to a
breach of the representations and warranties of the Transferor pursuant to
Sections 3.1 and 6.1 hereof and the agreement contained in this Section 3.2
shall be to require the Transferor to repurchase Financed Student Loans or to
reimburse the Issuer as provided above pursuant to this Section 3.2, subject to
the conditions contained herein. The Eligible Lender Trustee shall have no duty
to conduct any affirmative investigation as to the occurrence of any condition
requiring the repurchase of any Financed Student Loan or the reimbursement for
any interest penalty pursuant to this Section 3.2.
SECTION 3.3. Custody of Financed Student Loan Files. To assure uniform
quality in servicing the Financed Student Loans and to reduce administrative
costs, the Issuer hereby revocably appoints the Master Servicer as custodian of
the following documents or instruments with respect to each Financed Student
Loan (such documents are referred to collectively as the "Financed Student Loan
File":
(a) the original fully executed copy of the note evidencing
the Financed FFELP Loan (which may be included in the application)
unless such note is in the custody of a Guarantor;
(b) the original loan application fully executed by the
related borrower (which may be included in the note evidencing a
Financed FFELP Loan); and
(c) any and all other documents and computerized records that
any of the Master Servicer, the Administrator or the Transferor shall
keep on file, in accordance with its customary procedures, relating to
such Financed Student Loan or any Obligor with respect thereto.
Notwithstanding the foregoing, each Subcustodian appointed pursuant to
Section 3.8 who enters into a Subservicing Agreement may act as a custodian of
the Related Financed Student Loan Files. The custodian for the
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original fully executed copy of the note evidencing a Financed HEAL Loan (which
may be included in the application) and the original loan application for a
Financed HEAL Loan fully executed by the related borrower (if included in the
note evidencing a Financed HEAL Loan) (the "Additional Financed HEAL Loan File")
shall be selected by the Indenture Trustee, however, such custodian shall not be
the Master Servicer and such custodian shall not hold such documents pursuant to
this Transfer and Servicing Agreement.
SECTION 3.4. Duties of Master Servicer as Custodian.
(a) Safekeeping. The Master Servicer, as custodian, shall hold
or cause one or more Subcustodians appointed pursuant to Section 3.8,
to (i) hold the Financed Student Loan Files for the benefit of the
Issuer, and (ii) maintain such accurate and complete accounts, records
and computer systems pertaining to each Financed Student Loan File as
shall enable the Issuer to comply with this Agreement and the other
Basic Documents. In performing its duties as custodian, the Master
Servicer shall act with reasonable care and shall ensure that it
complies in all material respects with all applicable federal and State
laws, including the Higher Education Act and the HEAL Act, with respect
thereto. The Master Servicer shall promptly report to the Issuer and
the Indenture Trustee any failure on its part to hold the Financed
Student Loan Files and maintain its accounts, records and computer
systems as herein provided and promptly take appropriate action to
remedy any such failure. Nothing herein shall be deemed to require an
initial review or any periodic review by the Issuer, the Eligible
Lender Trustee or the Indenture Trustee of the Financed Student Loan
Files.
(b) Maintenance of and Access to Records. The Master Servicer
shall cause each Subcustodian to maintain the Related Financed Student
Loan Files at the office specified opposite such Subcustodian's name in
Schedule B or shall cause the Financed Student Loan Files to be
maintained at such other offices as shall be specified by written
notice to the Issuer and the Indenture Trustee not later than 60 days
after any change in location. Upon reasonable prior notice, the Master
Servicer shall make available, or cause each Subcustodian to make
available, to the Issuer and the Indenture Trustee or their respective
duly authorized representatives, attorneys or auditors (i) a list of
locations of the Financed Student Loan Files and (ii) the related
accounts, records and computer systems at the locations identified in
the list provided pursuant to clause (i) of this Section 3.4(b) and at
such times which are in accordance with the applicable Subservicing
Agreements.
SECTION 3.5. Instructions; Authority to Act. The Master Servicer shall
be deemed to have received proper instructions with respect to the Financed
Student Loan Files upon its receipt of written instructions signed by a
Responsible Officer of the Indenture Trustee.
SECTION 3.6. Custodian's Indemnification.
(a) The Master Servicer shall pay from its own funds for any
Indemnifiable Expense that may be imposed on, incurred by or asserted
against the Issuer, the Eligible Lender Trustee, the Delaware Trustee
or the Indenture Trustee or any of their officers, directors, employees
and agents to the extent such Indemnifiable Expense results from the
Master Servicer's failure to perform its duties as specified in this
Article III where the final determination that any such improper act or
omission by the Master Servicer or any Subcustodian resulted in such
Indemnifiable Expense is established by a court of law, by an
arbitrator or by way of settlement agreed to by the Master Servicer;
provided, however, that the Master Servicer shall not be liable to the
Eligible Lender Trustee for any portion of any such amount resulting
from the willful misfeasance, bad faith or negligence of the Eligible
Lender Trustee and the Master Servicer shall not be liable to the
Indenture Trustee for any portion of any such amount resulting from the
willful misfeasance, bad faith or negligence of the Indenture Trustee.
This provision shall not be construed to limit the Master Servicer's or
any other party's rights, obligations, liabilities, claims or defenses
which arise as a matter of law or pursuant to any other provision of
this Agreement; provided, however, the Master Servicer shall not be
liable for any such Indemnifiable Expense imposed upon such Person to
the
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extent that they arise out of or result from such Person's negligence,
willful malfeasance or bad faith or a breach of the representations and
warranties of such Person in this Agreement. Notwithstanding anything
to the contrary contained in this Article III, in no event shall the
Master Servicer be liable under any theory of tort, contract, strict
liability or other legal or equitable theory for any lost profits or
exemplary, punitive, special, incidental, indirect or consequential
damages, each of which is hereby excluded by agreement of the parties
regardless of whether or not the Master Servicer has been advised of
the possibility of such damages.
(b) Promptly after receipt by an indemnified party under this
Section 3.6 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 3.6, notify the
indemnifying party of the commencement thereof, but the omission so to
notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than under Section
3.6, except to the extent the indemnifying party is materially
prejudiced by such failure. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified
party; provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party, and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnifying party or parties
shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on
behalf of the indemnified party or parties. After notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable
to such indemnified party under this Section 3.6 for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation.
In no event shall the indemnifying party be liable for fees and
expenses for more than one counsel separate from their own counsel for
all indemnified parties in connection with any one action or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances. An indemnifying party will not, without
the prior written consent of the indemnified party, settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
The indemnified party will not, without the prior written
consent of the indemnifying party, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in which indemnification may be
sought hereunder.
SECTION 3.7. Effective Period and Termination. The Master Servicer's
appointment as custodian of the Financed Student Loan Files shall become
effective as of the Closing Date and shall continue in full force and effect for
so long as the Master Servicer shall remain the Master Servicer hereunder. If
the Master Servicer or any successor Master Servicer shall resign as Master
Servicer in accordance with the provisions of this Agreement or if all the
rights and obligations of the Master Servicer or any such successor Master
Servicer shall have been terminated under Section 8.1 of this Agreement, the
appointment of the Master Servicer or such successor Master Servicer as
custodian shall be terminated simultaneously with the effectiveness of such
termination. As soon as practicable on or after any termination of such
appointment (and in any event within (i) 10 Business Days, with respect to that
portion of the Financed Student Loan Files consisting of electronic records and
information that is reasonably available and deliverable within 10 Business
Days, and (ii) 30 Business Days, with respect to the remaining portion of the
Financed Student Loan Files), the Master Servicer shall deliver, to the extent
in its
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possession, the Financed Student Loan Files to the Indenture Trustee or the
Indenture Trustee's agent at such place or places as the Indenture Trustee may
reasonably designate.
SECTION 3.8. Appointment of Subcustodian.
(a) The Master Servicer may at any time appoint one or more
Servicers to act as a subcustodian (each a "Subcustodian") of the
Financed Student Loan Files of the Financed Student Loans being
serviced by such Servicer (the "Related Financed Student Loan Files")
to perform all or any portion of its obligations as custodian
hereunder; provided, however, that the Master Servicer shall remain
obligated and be liable to the Issuer, the Eligible Lender Trustee, the
Indenture Trustee, the Certificateholders and the Noteholders for the
custodial services with respect to the Financed Student Loan Files in
accordance with the provisions hereof without diminution of such
obligation and liability by virtue of the appointment of such
Subcustodian and to the same extent and under the same terms and
conditions as if the Master Servicer alone were performing the
custodial services. The fees and expenses of the Subcustodian shall be
as agreed between the Master Servicer and its Subcustodian from time to
time and none of the Issuer, the Eligible Lender Trustee, the Indenture
Trustee, the Delaware Trustee, the Certificateholders or the
Noteholders shall have any responsibility therefor.
(b) The appointment of a Subcustodian by the Master Servicer
shall become effective as of the date specified in the related
Subservicing Agreement and shall continue in full force and effect with
respect to each such Subcustodian and its Related Financed Student Loan
Files for so long as such Subcustodian is a Servicer of the Financed
Student Loans relating to such Financed Student Loan Files. As soon as
practicable following the occurrence of an event of default as to which
the Master Servicer is aware or has received notice of that is
continuing under a Subservicing Agreement, the Master Servicer shall
cause each applicable Subcustodian to deliver the Financed Student Loan
Files held by it as directed by the Master Servicer.
SECTION 3.9. Compliance by the Eligible Lender Trustee with Insurance
Agreements with the Secretary of HHS. Pursuant to paragraph 5 of the
Comprehensive Insurance Contract Health Education Assistance Loan Program,
between PHEAA and the Secretary of HHS, dated October 1, 1992 (as amended, the
"1992 Insurance Agreement"), paragraph 4 of the Comprehensive Insurance Contract
Health Education Assistance Loan Program, between PHEAA and the Secretary of
HHS, dated October 1, 1993 (as amended, the "1993 Insurance Agreement"), and
Paragraph 6 of the Secondary Market Insurance Contract Health Education
Assistance Loan Program, between the Transferor and the Secretary of HHS, dated
September 27, 1996 (the "1996 Insurance Agreement"), the Eligible Lender Trustee
agrees to comply, as if it were the lender, with the procedures set forth,
respectively, in paragraph 3 of the 1992 Insurance Agreement, paragraphs 1 and 2
of the 1993 Insurance Agreement and paragraph 6 of the 1996 Insurance Agreement.
ARTICLE IV
Administration and Servicing of Financed Student Loans
SECTION 4.1. Duties of Master Servicer. The Master Servicer, for the
benefit of the Issuer (to the extent provided herein), shall manage, service,
administer and make collections on the Financed Student Loans with reasonable
care. Without limiting the generality of the foregoing or of any other provision
set forth in this Agreement and notwithstanding any other provision to the
contrary set forth herein, the Master Servicer shall manage, service, administer
and make collections with respect to the Financed Student Loans (other than
collection of any Interest Subsidy Payments and Special Allowance Payments,
which the Eligible Lender Trustee will perform on behalf of the Trust) in
accordance in all material respects with all applicable federal and State laws,
including
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all applicable standards, guidelines and requirements of the Higher Education
Act and any Guarantee Agreement with respect to the Financed FFELP Loans and of
the HEAL Act and the HEAL Insurance Contract with respect to the Financed HEAL
Loans, the failure to comply with which would adversely affect the eligibility
of one or more of the Financed FFELP Loans for Interest Subsidy Payments,
Special Allowance Payments or Guarantee Payments or the eligibility of one or
more of the Financed HEAL Loans for Insurance Payments or would have a material
adverse effect on the Certificateholders or the Noteholders.
The Master Servicer's duties shall include collection and posting of
all payments, responding to inquiries of borrowers on such Financed Student
Loans, monitoring borrowers' status, making required disclosures to borrowers,
investigating delinquencies, sending bills or payment coupons to borrowers and
otherwise establishing repayment terms, reporting tax information to borrowers,
if applicable, accounting for collections and furnishing monthly and annual
statements with respect thereto to the Administrator. Subject to the provisions
of Section 4.2, the Master Servicer shall follow customary standards, policies
and procedures in performing its duties as Master Servicer. Without limiting the
generality of the foregoing, the Master Servicer is authorized and empowered to
execute and deliver, on behalf of itself, the Issuer, the Eligible Lender
Trustee, the Indenture Trustee, the Certificateholders and the Noteholders or
any of them, instruments of satisfaction or cancellation, or partial or full
release or discharge, and all other comparable instruments, with respect to such
Financed Student Loans; provided, however, that the Master Servicer agrees that
it will not (a) permit any rescission or cancellation of a Financed Student Loan
except as ordered by a court of competent jurisdiction or governmental authority
or as otherwise consented to in writing by the Eligible Lender Trustee and the
Indenture Trustee or (b) except as otherwise provided in Section 4.14,
reschedule, revise, defer or otherwise compromise with respect to payments due
on any Financed Student Loan except pursuant to any applicable deferment or
forbearance periods or otherwise in accordance with all applicable standards,
guidelines and requirements with respect to the servicing of the Financed
Student Loans; provided further, however, that the Master Servicer shall not
agree to any decrease of the interest rate on, or the principal amount payable
with respect to, any Financed Student Loan except as otherwise permitted in
accordance with applicable standards, guidelines and requirements of the Higher
Education Act and any Guarantee Agreement with respect to the Financed FFELP
Loans and by the HEAL Act and the HEAL Insurance Contract with respect to the
Financed HEAL Loans. Notwithstanding the foregoing, the Master Servicer may, in
its sole discretion, without having to obtain the consent or approval of any
other party, (i) not collect late charges that may be due on Financed Student
Loans, and (ii) waive remaining amounts owing under a Financed Student Loan up
to and including $250.00. The Master Servicer also shall be responsible for
advising the Eligible Lender Trustee and the Indenture Trustee of any action
required to be taken to maintain each such Guarantee Agreement and the HEAL
Insurance Contract. The Eligible Lender Trustee on behalf of the Issuer hereby
grants a power of attorney and all necessary authorization to the Master
Servicer to sign endorsements of the notes relating to the Financed Student
Loans on behalf of the Eligible Lender Trustee in connection with conveyances
pursuant to Section 2.3 hereof and to maintain any and all collection procedures
with respect to the Financed Student Loans, including filing, pursuing and
recovering claims against the Guarantors for Guarantee Payments and the
Department of HHS for Insurance Payments and taking any steps to enforce such
Financed Student Loan such as commencing a legal proceeding to enforce a
Financed Student Loan in the name of the Issuer, the Eligible Lender Trustee,
the Indenture Trustee, the Certificateholders or the Noteholders. The Eligible
Lender Trustee or the Indenture Trustee shall upon the written request of the
Master Servicer or the Administrator furnish the Master Servicer or the
Administrator with any other powers of attorney and other documents reasonably
necessary or appropriate to enable the Master Servicer or the Administrator to
carry out its servicing and administrative duties hereunder.
SECTION 4.2. Collection of Financed Student Loan Payments.
(a) The Master Servicer shall make reasonable efforts
(including all efforts that may be specified under the Higher Education
Act or any Guarantee Agreement with respect to Financed FFELP Loans and
under the HEAL Act and the HEAL Insurance Contract with respect to
Financed HEAL Loans) to collect all payments called for under the terms
and provisions of the Financed Student Loans as and when the same shall
become due. The Master Servicer may in its discretion waive any late
payment charge or any other
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fees in addition to any fee or waiver permitted under Section 4.1 that
may be collected in the ordinary course of servicing a Financed Student
Loan.
(b) The Master Servicer shall make reasonable efforts to
claim, pursue and collect all Guarantee Payments from the Guarantors
pursuant to the Guarantee Agreements and all Insurance Payments from
the Department of HHS pursuant to the HEAL Insurance Contract with
respect to any of the Financed Student Loans as and when the same shall
become due and payable, and shall comply in all material respects with
all applicable laws and agreements with respect to claiming, pursuing
and collecting such payments. In connection therewith, the Master
Servicer is hereby authorized and empowered to convey to any Guarantor
the note and the related Financed Student Loan File representing any
Financed FFELP Loan in connection with submitting a claim to such
Guarantor for a Guarantee Payment in accordance with the terms of the
applicable Guarantee Agreement and to the Department of HHS the note
and the related Financed Student Loan File representing any Financed
HEAL Loan in connection with submitting a claim to the Department of
HHS for an Insurance Payment in accordance with the terms of the HEAL
Insurance Contract whereupon the Lien of the Indenture Trustee relating
to such Financed Student Loan shall be released without any further
action of any kind.
(c) The Eligible Lender Trustee shall, with the assistance of
the Master Servicer and on behalf of the Issuer, make reasonable
efforts to claim, pursue and collect all Interest Subsidy Payments and
Special Allowance Payments from the Department of Education with
respect to any of the Financed FFELP Loans as and when the same shall
become due and payable, shall comply in all material respects with all
applicable laws and agreements with respect to claiming, pursuing and
collecting such payments. All amounts so collected by the Eligible
Lender Trustee shall constitute Available Funds for the applicable
Collection Period or Collection Periods and shall be deposited into the
Collection Account in accordance with Section 5.4. In connection
therewith, the Master Servicer shall prepare and file with the
Department of Education on a timely basis all claims, forms and other
documents and filings necessary or appropriate in connection with the
claiming of Interest Subsidy Payments and Special Allowance Payments on
behalf of the Eligible Lender Trustee and shall otherwise assist the
Eligible Lender Trustee in pursuing and collecting such Interest
Subsidy Payments and Special Allowance Payments from the Department of
Education. The Eligible Lender Trustee shall, upon the written request
of the Master Servicer, furnish the Master Servicer with any power of
attorney and other documents reasonably necessary or appropriate to
enable the Master Servicer to prepare and file such claims, forms and
other documents and filings.
(d) The Eligible Lender Trustee may permit trusts, other than
the Trust, established by the Transferor to securitize student loans to
use the Department of Education and the Department of HHS lender
identification numbers applicable to the Trust. In such event, the
Eligible Lender Trustee may claim and collect Interest Subsidy Payments
and Special Allowance Payments with respect to Financed Student Loans
in the Trust and student loans in such other trusts using such common
lender identification number. Notwithstanding anything herein or in the
Basic Documents to the contrary, any amounts assessed against payments
(including, but not limited to, Interest Subsidy Payments and Special
Allowance Payments) due from the Department of Education, any Guarantor
or the Department of HHS to any such other trust using such common
lender identification number as a result of amounts (including, but not
limited to, consolidation fees) owing to the Department of Education,
any Guarantor or the Department of HHS from the Trust will be deemed
for all purposes hereof and of the Basic Documents (including for
purposes of determining amounts paid by the Department of Education,
any Guarantor or the Department of HHS with respect to the student
loans in the Trust and such other trust) to have been assessed against
the Trust and shall be deducted by the Eligible Lender Trustee or the
Master Servicer and paid to such other trust from any collections made
by them which would otherwise have been payable to the Collection
Account for the Trust. Any amounts assessed against payments due from
the Department of Education, any Guarantor or the Department of HHS to
the Trust as a result of amounts owing to the Department of Education,
any Guarantor or the Department of HHS to the Trust from such other
trust using such common lender identification number will be deemed to
have been assessed against such other trust and will be deducted
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by the Eligible Lender Trustee or the Master Servicer from any
collections made by them which would otherwise be payable to the
collection account for such other trust and paid to the Trust.
SECTION 4.3. Realization upon Financed Student Loans. For the benefit
of the Issuer, the Master Servicer shall use reasonable efforts consistent with
customary servicing practices and procedures and including all efforts that may
be specified under the Higher Education Act or any Guarantee Agreement with
respect to the Financed FFELP Loans and under the HEAL Act and the HEAL
Insurance Contract with respect to the Financed HEAL Loans in its servicing of
any delinquent Financed Student Loans.
SECTION 4.4. No Impairment. The Master Servicer shall not impair in any
material respect the rights of the Issuer, the Eligible Lender Trustee, the
Indenture Trustee, the Certificateholders or the Noteholders in the Financed
Student Loans, in any Guaranty Agreement or in the HEAL Insurance Contract.
SECTION 4.5. Purchase of Financed Student Loans; Reimbursement. The
Master Servicer or the Eligible Lender Trustee, as the case may be, shall inform
the other parties to this Agreement and the Indenture Trustee promptly, in
writing, upon the discovery of any breach of an obligation under Section 4.1,
4.2, 4.3 or 4.4 hereof. Unless any such breach shall have been cured within 120
days following the discovery thereof by the Master Servicer or receipt by the
Master Servicer of written notice from the Eligible Lender Trustee of such
breach, the Financed Student Loan in which the interests of the Noteholders or
the Certificateholders are materially and adversely affected by any such breach
shall be transferred, assigned, setover and otherwise conveyed to the Master
Servicer (a "purchase") as of the first day succeeding the end of such 120-day
period that is the last day of a Collection Period; provided that it is
understood that any such breach that has not resulted in the failure of a
Guarantee Agency to make a Guarantee Payment or the Department of HHS to make an
Insurance Payment to the Eligible Lender Trustee will not be considered to have
a material adverse effect for this purpose; and provided further, however, that
in the case of any obligation the breach of which may be cured by reinstatement
of the Guarantor's obligation to guarantee payment or the Department of HHS's
obligation to insure payment, such cure period shall be 360 days (instead of 120
days), in each case following the earlier of the date on which such breach is
discovered by the Master Servicer and the date of the Servicer's receipt of the
Guarantor or Department of HHS reject transmittal form with respect to such
Financed Student Loan. Notwithstanding the foregoing, if as of the last day of
any Collection Period the aggregate principal amount of Financed Student Loans
with respect to which claims have been filed with and rejected by a Guarantor or
the Department of HHS as a result of a breach of a representation or warranty of
the Transferor in Sections 3.1 or Section 6.1 hereof or a breach of the
obligations of the Master Servicer under Sections 4.1 through 4.4 hereof or with
respect to which the Master Servicer determines that claims cannot be filed
pursuant to the Higher Education Act or the HEAL Act, as the case may be, as a
result of such a breach exceeds the lesser of $250,000 or 0.25% of the Pool
Balance as of such date, the Master Servicer shall purchase (or Transferor shall
repurchase pursuant to Section 3.2 hereof) within 120 days of a written request
by the Eligible Lender Trustee or the Indenture Trustee, affected Financed
Student Loans in an aggregate principal amount such that after such purchases or
repurchases the aggregate principal amount of affected Financed Student Loans is
equal to or less than the lesser of $250,000 or 0.25% of the Pool Balance. The
Financed Student Loans to be purchased by the Master Servicer pursuant to the
preceding sentence (or repurchased by the Transferor pursuant to Section 3.2
hereof) will be based on the date of claim rejection, with the Financed Student
Loans with the earliest such dates to be purchased or repurchased first. In
consideration of and simultaneously with the purchase of the Financed Student
Loan, the Master Servicer shall remit the Purchase Amount, in the manner
specified in Section 5.4, and the Issuer shall execute such assignments and
other documents reasonably requested by the Master Servicer in order to effect
such transfer. Upon any such transfer of a Financed Student Loan, legal title
to, and beneficial ownership and control of, the related Financed Student Loan
File and, if applicable, the related Additional Financed HEAL Loan File will
thereafter belong to the Master Servicer.
In addition, if any such breach does not trigger such a purchase
obligation but does result in (i) the refusal by the Department of HHS to insure
the applicable portion of the accrued interest with respect to any Financed HEAL
Loan, or (ii) the refusal by a Guarantor to guarantee the applicable portion of
the accrued interest, or the loss of (including any obligation of the Issuer to
repay to the Department of Education) certain Interest Subsidy
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Payments and Special Allowance Payments, with respect to a Financed FFELP Loan,
then, unless such breach, if curable, is cured within 120 days following the
discovery thereof by the Master Servicer or receipt by the Master Servicer of
written notice from the Eligible Lender Trustee, the Master Servicer shall, at
its option, either (y) purchase such Financed Student Loan (but only if an
actual failure to pay any such amount to the Eligible Lender Trustee occurs or
the Eligible Lender is required to repay such an amount which has been
previously paid) at the applicable Purchase Amount, including (if the Transferor
is the Master Servicer at the time of such purchase) by transferring to the
Eligible Lender Trustee a Subsequent Financed Student Loan pursuant to Section
2.3(b) hereof in lieu of depositing into the Collection Account all or a portion
of the Purchase Amount (equal to the Subsequent Financing Purchase Price of such
Subsequent Financed Student Loan as of the Subsequent Finance Date) or (z)
reimburse the Issuer by remitting an amount equal to the sum of all amounts that
would have been payable if not for such breach in the manner specified in
Section 5.4 not later than the last day of the Collection Period in which such
120th day occurs (or, to the extent that all or a portion of such amount is not
otherwise due and payable as of such date, that portion shall be remitted to the
Collection Account on the last day of the Collection Period during which such
amount would otherwise be due and payable).
The sole remedy of the Issuer, the Eligible Lender Trustee, the
Indenture Trustee, the Noteholders or the Certificateholders with respect to a
breach of the obligations of the Master Servicer under Sections 4.1 through 4.4
hereof and the agreement contained in this Section 4.5 shall be to require the
Master Servicer to purchase Financed Student Loans or to reimburse the Issuer as
provided above pursuant to this Section 4.5, subject to the conditions contained
herein. The Eligible Lender Trustee shall have no duty to conduct any
affirmative investigation as to the occurrence of any condition requiring the
purchase of any Financed Student Loan or the reimbursement for any interest
penalty pursuant to this Section 4.5.
SECTION 4.6. Servicing Fee. For its services hereunder, the Master
Servicer shall be entitled to receive the Servicing Fee in the manner set forth
in Section 5.5.
SECTION 4.7. Administrator's Certificate.
(a) On each Distribution Determination Date, the Administrator
shall deliver to the Indenture Trustee and the Eligible Lender Trustee
in writing the applicable Noteholders' Interest Distribution Amount,
the Noteholders Principal Distribution Amount and all amounts to be
paid to Certificateholders on the related Distribution Date. On each
Distribution Determination Date relating to a Quarterly Distribution
Date, the Administrator also shall deliver to the Indenture Trustee and
the Eligible Lender Trustee in writing the estimated Transaction Fees
(separately and in the aggregate) for the calendar quarter in which
such Quarterly Distribution Date occurs. Two Business Days prior to the
25th day of each month, the Administrator will advise the Indenture
Trustee and the Eligible Lender Trustee in writing of the Consolidation
Loan Fees for the preceding calendar month.
(b) On each Distribution Determination Date, the Administrator
also shall deliver to the Eligible Lender Trustee, the Indenture
Trustee and the Transferor (if the Transferor is not also the
Administrator), an Administrator's Certificate containing all
information necessary to make the distributions pursuant to Sections
5.5 and 5.6, if applicable, for the upcoming Distribution Date.
Financed Student Loans to be repurchased by the Transferor or purchased
by the Master Servicer (whether pursuant to Section 2.3(b), 3.2 or
4.5), or acquired by any Guarantor or by the Department of HHS shall be
identified by the Administrator by borrower social security number with
respect to such Financed Student Loan (as specified in Schedule A-1).
(c) On or before each Distribution Determination Date, the
Administrator shall deliver to the Eligible Lender Trustee, the
Indenture Trustee and the Transferor (if the Transferor is not also the
Administrator), the Administrator's Certificate substantially in the
form of Exhibit C setting forth by component the Available Funds for
the immediately preceding Collection Period (or the three preceding
Collection Periods if the Class A Notes are no longer Outstanding).
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SECTION 4.8. Annual Statement as to Compliance; Notice of Default.
(a) Each of the Master Servicer and the Administrator shall
deliver to the Transferor, the Eligible Lender Trustee and the
Indenture Trustee, on or before April 30 of each year beginning April
30, 1999, an Officer's Certificate of the Master Servicer or the
Administrator, as the case may be, dated as of December 31 of the
preceding year, stating that (i) a review of the activities of the
Master Servicer or the Administrator, as the case may be, during the
preceding 12-month period (or, in the case of the first such
certificate, during the period from the Closing Date to December 31,
1998) and of its performance under this Agreement has been made under
such officers' supervision and (ii) to the best of such officers'
knowledge, based on such review, the Master Servicer or the
Administrator, as the case may be, has fulfilled in all material
respects all its obligations under this Agreement and the
Administration Agreement, respectively, throughout such year or, if
there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and
status thereof. The Eligible Lender Trustee shall send a copy of each
such Officers' Certificate and each report referred to in Section 4.9
to the Rating Agencies. A copy of each such Officers' Certificate and
each report referred to in Section 4.9 may be obtained by any
Noteholder or Note Owner by a request in writing to the Eligible Lender
Trustee addressed to its Corporate Trust Office, together with evidence
satisfactory to the Eligible Lender Trustee that such Person is a
Noteholder or Note Owner. Pursuant to the Indenture, upon the telephone
request of the Eligible Lender Trustee, the Indenture Trustee will
promptly furnish the Eligible Lender Trustee a list of Noteholders as
of the date specified by the Eligible Lender Trustee.
(b) The Master Servicer shall deliver to the Eligible Lender
Trustee, the Indenture Trustee, the Transferor and the Rating Agencies,
promptly after having obtained knowledge thereof, but in no event later
than five Business Days thereafter, written notice in an Officer's
Certificate of the Master Servicer of any event which with the giving
of notice or lapse of time, or both, would become a Master Servicer
Default under Section 8.1(a).
(c) The Administrator shall deliver to the Eligible Lender
Trustee, the Indenture Trustee, the Master Servicer and the Rating
Agencies, promptly after having obtained knowledge thereof, but in no
event later than five Business Days thereafter, written notice in an
Officer's Certificate of the Administrator of any event which with the
giving of notice or lapse of time, or both, would become an
Administrator Default under Section 8.1(b) (l), (2) or (3).
SECTION 4.9. Annual Independent Certified Public Accountants' Report or
Reports. Each of the Master Servicer and the Administrator shall cause KPMG Peat
Marwick LLP, or any other nationally recognized firm of independent certified
public accountants, to deliver to the Transferor, which may also render its
services to the Master Servicer and the Administrator, the Eligible Lender
Trustee, the Indenture Trustee and any Servicer on or before April 30 of each
year beginning April 30, 1999 one or more reports addressed to the Master
Servicer and to the Transferor, the Eligible Lender Trustee and the Indenture
Trustee, to the effect that such accountants have relied upon the assertions by
the Master Servicer's and Administrator's management about the Master Servicer's
and Administrator's compliance with Sections 3.3, 3.4, 4.1, 4.2, 4.3, 4.4, 4.6,
4.7, 5.2, 5.5, 5.6, 5.7 and 5.8 of the Transfer and Servicing Agreement and
Sections [[1(B), 1(D), 1(G), 1(U), 2 and 3:]] of the Administration Agreement
during the preceding calendar year (or, in the case of the first such report(s),
during the period from the Closing Date to December 31, 1998) and in any such
accountant's opinion(s), such assertions are fairly stated in all material
respects, except for (i) such exceptions as any such firm shall believe to be
immaterial and (ii) such other exceptions as shall be set forth in such
report(s). If any such firm requires the Indenture Trustee or the Eligible
Lender Trustee to agree to the procedures performed by such firm, the Master
Servicer shall direct the Indenture Trustee or the Eligible Lender Trustee in
writing to so agree; it being understood and agreed that the Indenture Trustee
or the Eligible Lender Trustee, as applicable, will deliver such letter of
agreement in conclusive reliance upon the direction of the Master Servicer, and
the Indenture Trustee and the Eligible Lender Trustee make
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no independent inquiry or investigation as to and shall have no obligation or
liability in respect of, the sufficiency, validity or correctness of such
procedures.
Such report(s) will also indicate that the firm is independent of the
Master Servicer within the meaning of the Code of Professional Ethics of the
American Institute of Certified Public Accountants.
SECTION 4.10. Access to Certain Documentation and Information Regarding
Financed Student Loans. Upon reasonable prior notice, the Master Servicer shall,
or shall cause each Servicer to, provide access to the Financed Student Loan
Files and the related accounts, records and computer systems maintained by the
Master Servicer or such Servicer, as the case may be, to (i) the Eligible Lender
Trustee and (ii) the Indenture Trustee and their respective duly authorized
representatives, attorneys or auditors; provided, however, that, except as
otherwise agreed to by the Master Servicer or required by law, (A) such Persons
shall maintain the confidentiality of the information in such Financed Student
Loan Files and the related accounts, records and computer systems and not use
any of such information for any purpose except in connection with performing
their obligations as Eligible Lender Trustee or Indenture Trustee, and (B)
access to the computer systems shall be limited to obtaining, and only to the
extent necessary to obtain, information relating to the Financed Student Loans
for purposes of performing their obligations as Eligible Lender Trustee or
Indenture Trustee. Access shall be afforded without charge (except that the
reasonable cost of photocopying shall be borne by the party requesting copies),
but only upon reasonable request and during the normal business hours at the
respective offices of the applicable Servicer. Nothing in this Section shall
affect the obligation of the Master Servicer (or a Servicer) to observe any
applicable law prohibiting disclosure of information regarding the Obligors and
the failure of the Master Servicer to provide (or cause each Servicer to
provide) access to information as a result of such obligation shall not
constitute a breach of this Section.
SECTION 4.11. Master Servicer and Administrator Expenses. The Master
Servicer and the Administrator shall be severally required to pay all expenses
incurred by them in connection with their respective activities hereunder,
including fees and disbursements of independent accountants, taxes imposed on
the Master Servicer or the Administrator, as the case may be, and expenses
incurred in connection with distributions and reports to the Administrator, the
Noteholders and the Eligible Lender Trustee, as the case may be.
SECTION 4.12. Appointment of Servicer.
(a) The Master Servicer may at any time appoint a Servicer to
perform all or any portion of its obligations as Master Servicer
hereunder; provided, however, that the Rating Agency Condition shall
have been satisfied in connection therewith; provided further, that the
Master Servicer shall remain obligated and be liable to the Issuer, the
Eligible Lender Trustee, the Indenture Trustee, the Certificateholders
and the Noteholders for the servicing and administering of the Financed
Student Loans in accordance with the provisions hereof without
diminution of such obligation and liability by virtue of the
appointment of such subservicer and to the same extent and under the
same terms and conditions as if the Master Servicer alone were
servicing and administering the Financed Student Loans. The fees and
expenses of each Servicer shall be as agreed between the Master
Servicer and such Servicer from time to time and none of the Issuer,
the Eligible Lender Trustee, the Delaware Trustee, the Indenture
Trustee, the Certificateholders and the Noteholders shall have any
responsibility therefor. Notwithstanding the foregoing, PHEAA shall be
deemed an approved Servicer for all purposes hereunder.
(b) The Master Servicer may at any time appoint one or more of
its Affiliates to perform all or any portion of its obligations
hereunder; provided, however, that the Master Servicer shall remain
obligated and liable to the Issuer, the Eligible Lender Trustee, the
Indenture Trustee, the Certificateholders and the Noteholders for the
servicing and administering of the Financed Student Loans in accordance
with the provisions hereof without diminution of such obligation and
liability by virtue of the appointment of such Affiliate and to the
same extent and under the same terms and conditions as if the Master
Servicer alone were servicing and administering the Financed Student
Loans. The fees and expenses of each such Affiliate shall be as agreed
between the Master Servicer and such Affiliate from time to time and
none of the Issuer,
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the Eligible Lender Trustee, the Delaware Trustee, the Indenture
Trustee, the Certificateholders and the Noteholders shall have any
responsibility therefor.
SECTION 4.13. Subservicing Agreements. The Master Servicer hereby
represents and warrants that: (i) as of the Closing Date it has entered into a
Subservicing Agreement with PHEAA (the "Subservicing Agreement"); (ii) the
Subservicing Agreement requires the Servicer thereunder to service the Financed
Student Loans subject thereto in accordance in all material respects with all
applicable federal and State laws, including all applicable standards,
guidelines and requirements of the Higher Education Act with respect to Financed
FFELP Loans and the HEAL Act with respect to Financed HEAL Loans.
SECTION 4.14. Incentive Programs. The Servicer shall be permitted to
reduce the applicable interest rate on a TP Loan by up to (i) 1.00% per anum for
Stafford Loans and Unsubsidized Stafford Loans and 0.5% per annum for PLUS
Loans, if the Obligor related to such TP Loan makes 36 consecutive monthly
payments of such TP Loan on or prior to the applicable due dates of such TP
Loan, or (ii) such greater percentage and upon such other conditions for which a
Rating Agency Condition is satisfied.
ARTICLE V
Distributions; Reserve Account;
Statements to Certificateholders and Noteholders
SECTION 5.1. Establishment of Trust Accounts.
(a) The Indenture Trustee, for the benefit of the Noteholders,
shall establish and maintain in the name of the Indenture Trustee each
of the Collection Account, the Note Distribution Account, the Reserve
Account, the Expense Account and the Monthly Advance Account. The
Eligible Lender Trustee, for the benefit of the Certificateholders,
shall establish and maintain in the name of the Eligible Lender Trustee
the Certificate Distribution Account and the Certificate Quarterly
Advance Account. The foregoing accounts are referred to collectively as
the "Trust Accounts." Each such Trust Account shall be an Eligible
Deposit Account and, except for the Certificate Distribution Account
and the Certificate Quarterly Advance Account, shall be entitled as
follows: "[Name of Account] for the benefit of Crestar Student Loan
Trust 1997-1 and Bankers Trust Company, as Indenture Trustee, as their
interests may appear." The Certificate Distribution Account and the
Certificate Quarterly Advance Account shall be entitled as follows:
"Crestar Student Loan Trust 1997-1 Certificate Distribution Account"
and Crestar Student Loan Trust 1997-1 Certificate Quarterly Advance
Account," respectively.
(b) Funds on deposit in the Trust Accounts shall be invested
by the Indenture Trustee and, in the case of the Certificate
Distribution Account and the Certificate Quarterly Advance Account, the
Eligible Lender Trustee in Eligible Investments pursuant to written
instructions from the Administrator, on behalf of the Issuer; provided,
however, it is understood and agreed that the Indenture Trustee and the
Eligible Lender Trustee shall not be liable for any loss arising from
such investment in Eligible Investments. All such Eligible Investments
shall be held by the Indenture Trustee and the Eligible Lender Trustee
for the benefit of the Issuer; provided that on the Business Day
preceding each Distribution Date all interest and other investment
income (net of losses and investment expenses) on funds on deposit
therein shall be deposited into the Collection Account and shall be
deemed to constitute a portion of the Available Funds for the related
Distribution Date. Funds on deposit in the Trust Accounts shall be
invested in Eligible Investments that will mature or otherwise be
available so that such funds will be available at the close of business
on the Business Day preceding the day on which funds in the applicable
Trust Account may be required to be withdrawn; provided, however, that
funds on deposit in such Trust Accounts may be invested in Eligible
Investments of the Indenture Trustee or of the Eligible Lender Trustee
in the case of the Certificate Distribution Account and Certificate
Quarterly Advance Account which may mature so that
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such funds will be available on the following Business Day. Funds
deposited in a Trust Account on a Business Day which immediately
precedes a Distribution Date upon the maturity of any Eligible
Investments are not required to be invested overnight unless otherwise
directed by telephone or facsimile and confirmed within 24 hours in
writing by the Administrator.
(c) (i) The Indenture Trustee (or the Eligible Lender Trustee
with respect to the Certificate Distribution Account and the
Certificate Quarterly Advance Account) shall possess all right, title
and interest in all funds on deposit from time to time in the Trust
Accounts and in all proceeds thereof (including all income thereon) and
all such funds, investments, proceeds and income shall be part of the
Trust Estate. Subject to the Administrator's power to give instructions
pursuant to paragraph (b) above and paragraph (c) (iii) below, the
Trust Accounts shall be under the sole dominion and control of the
Indenture Trustee (or the Eligible Lender Trustee with respect to the
Certificate Distribution Account and the Certificate Quarterly Advance
Account) for the benefit of the Noteholders and Certificateholders. If,
at any time, any of the Trust Accounts ceases to be an Eligible Deposit
Account, the Administrator, on behalf of the Issuer, agrees that it
shall within 10 Business Days (or such longer period, not to exceed 30
calendar days, as to which the Rating Agencies may consent) establish a
new Trust Account as an Eligible Deposit Account and shall transfer any
cash and/or any investments to such new Trust Account. In connection
with the foregoing, the Administrator, on behalf of the Issuer, agrees
that, if any of the Trust Accounts are not accounts with the Indenture
Trustee (or the Eligible Lender Trustee with respect to the Certificate
Distribution Account and the Certificate Quarterly Advance Account),
the Administrator shall notify the Indenture Trustee and the Eligible
Lender Trustee in writing promptly upon any of such Trust Accounts
ceasing to be an Eligible Deposit Account.
(ii) With respect to the Trust Account Property, the Indenture
Trustee agrees (or, with respect to the Certificate Distribution
Account and the Certificate Quarterly Advance Account, the Eligible
Lender Trustee agrees), by its acceptance thereof, that:
(A) any Trust Account Property that is held in
deposit accounts shall be held solely in Eligible Deposit
Accounts, subject to the last sentence of Section 5.1(c)(i);
and, subject to Section 5.1(b), each such Eligible Deposit
Account shall be subject to the exclusive custody and control
of the Indenture Trustee (or the Eligible Lender Trustee with
respect to the Certificate Distribution Account and the
Certificate Quarterly Advance Account), and the Indenture
Trustee (or the Eligible Lender Trustee with respect to the
Certificate Distribution Account and the Certificate Quarterly
Advance Account) shall have sole signature authority with
respect thereto;
(B) any Trust Account Property that constitutes
Physical Property shall be Delivered to the Indenture Trustee
in accordance with paragraph (a) of the definition of
"Delivery" and shall be held, pending maturity or disposition,
solely by the Indenture Trustee or a financial intermediary
(as such term is defined in Article 8 of the UCC) acting
solely for the Indenture Trustee;
(C) any Trust Account Property that is a book-entry
security held through the Federal Reserve System pursuant to
federal book-entry regulation shall be Delivered in accordance
with paragraph (b) of the definition of "Delivery" and shall
be maintained by the Indenture Trustee, pending maturity or
disposition, through continued book-entry registration of such
Trust Account Property as described in such paragraph; and
(D) any Trust Account Property that is an
"uncertificated security" under Article VIII of the UCC and
that is not governed by clause (C) above shall be Delivered to
the Indenture Trustee in accordance with paragraph (c) of the
definition of "Delivery" and shall be maintained by the
Indenture Trustee, pending maturity or disposition, through
continued registration of the Indenture Trustee's (or its
nominee's) ownership of such security.
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(iii) The Administrator shall have the power, revocable for
cause or upon the occurrence and during the continuance of an
Administrator Default by the Indenture Trustee or by the Eligible
Lender Trustee with the consent of the Indenture Trustee, to instruct
the Indenture Trustee to make withdrawals and payments from the Trust
Accounts (or the Eligible Lender Trustee with respect to the
Certificate Distribution Account and the Certificate Quarterly Advance
Account) for the purpose of permitting the Master Servicer, the
Administrator or the Eligible Lender Trustee to carry out its
respective duties hereunder or under the Trust Agreement or permitting
the Indenture Trustee to carry out its duties under the Indenture.
SECTION 5.2. Collections. The Master Servicer shall cause each Servicer
to remit to the Collection Account, no less frequently than weekly, all payments
by or on behalf of the Obligors with respect to the Financed Student Loans for
which it is acting as Primary Servicer (other than Purchased Student Loans). For
purposes of this Article V, the phrase "payments by or on behalf of Obligors"
shall mean payments made with respect to the Financed Student Loans by or on
behalf of borrowers thereof, the Guarantors and the Department of HHS. The
Master Servicer shall require each Servicer to provide notice by facsimile to
the Indenture Trustee of all wire transfers made by such Servicer to the
Indenture Trustee for deposits to the Collection Account.
SECTION 5.3. Application of Collections. With respect to each Financed
Student Loan, all collections (including all Guarantee Payments and all
Insurance Payments) with respect thereto shall be applied in accordance with
regulations of the Department of Education and the applicable Guarantor in the
case of Financed FFELP Loans and the Department of HHS in the case of Financed
HEAL Loans.
SECTION 5.4. Additional Deposits. Within two Business Days after
receipt thereof, the Eligible Lender Trustee (or the Master Servicer on its
behalf) shall deposit in the Collection Account the aggregate amount of Interest
Subsidy Payments and Special Allowance Payments received by it with respect to
the Financed Student Loans, and the Transferor shall deposit in the Collection
Account any amount owed pursuant to Section 3.2 no later than the last day of
the Collection Period during which any such amount is owed. The Master Servicer
shall deposit or cause to be deposited in the Collection Account the aggregate
Purchase Amount with respect to Purchased Student Loans and all other amounts to
be paid by the Master Servicer under Section 4.5 when such amounts are due, and
the Transferor shall deposit or cause to be deposited in the Collection Account
the aggregate Purchase Amount with respect to Purchased Student Loans and all
other amounts to be paid by the Transferor under Sections 3.2 or 9.1 when such
amounts are due. The Transferor, the Master Servicer and the Administrator also
shall deposit in the Collection Account all amounts required to be deposited
therein pursuant to, and within the time periods provided by, Section 2.3.
Notwithstanding the foregoing, the Master Servicer shall deposit, or cause to be
deposited, directly into the Reserve Account any payments of or with respect to
principal relating to a Financed Student Loan for which any payment on account
of a Realized Loss was previously distributed (but only up to the amount of such
Realized Loss), and shall deposit, or cause to be deposited, directly into the
Collection Account any payments of or with respect to interest relating to a
Financed Student Loan for which any payment on account of a Realized Loss was
previously distributed.
The Master Servicer also shall, in its sole discretion, deposit into
the Monthly Advance Account the amount of any Monthly Advances determined to be
made by the Master Servicer pursuant to Section 5.10 no later than the
Distribution Determination Date relating to the Distribution Date when such
amounts are to be applied as a payment of interest. On each Distribution Date,
the Indenture Trustee will transfer from the Monthly Advance Account to the
Eligible Lender Trustee, by wire transfer no later than 11:00 a.m. New York
time, for deposit into the Certificate Quarterly Advance Account the portion of
the Monthly Advance, if any, for such Distribution Date allocable to the
Certificates. Pursuant to Section 5.10, if after making a Monthly Advance the
Master Servicer receives the Guarantee Payment, the Special Allowance Payment,
the Interest Subsidy Payment or the Insurance Payment for which such Monthly
Advance was made, the Master Servicer shall be reimbursed immediately from such
Guarantee Payment, Special Allowance Payment, Interest Subsidy Payment or
Insurance Payment, as the case may be, on deposit in the Collection Account up
to the amount of the related Monthly Advance or, if such Guarantee Payment,
Special Allowance Payment, Interest Subsidy Payment or Insurance Payment is not
received,
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the Master Servicer may reimburse itself from any funds on deposit in the
Collection Account up to the amount of the related Monthly Advance.
SECTION 5.5. Distributions.
(a) On each Distribution Date, pursuant to the Administrator's
written instructions, the Indenture Trustee will transfer from the
Collection Account, in the following priority and from Available Funds
for each Collection Period from and including the Collection Period
during which the preceding Quarterly Distribution Date occurred through
the Collection Period immediately preceding the month of such
Distribution Date (or with respect to each Distribution Date through
and including the first Quarterly Distribution Date, from the Closing
Date through the Collection Period immediately preceding such
Distribution Date), the required amounts from the Available Funds for
such Collection Periods:
(i) first, to the Expense Account, (A) an amount
equal to the Consolidation Loan Fees with respect to the
calendar month most recently ended and all overdue
Consolidation Loan Fees from any prior months and (B) if such
Distribution Date is a Quarterly Distribution Date, an amount
up to the estimated Transaction Fees for the calendar quarter
commencing in the month of such Quarterly Distribution Date
and all overdue Transaction Fees from prior calendar quarters
(plus (or minus) the difference (or excess) of the actual
Transaction Fees for the immediately preceding calendar
quarter and the Transaction Fees deposited into the Expense
Account on the preceding Quarterly Distribution Date);
(ii) second, to the Note Distribution Account, an
amount up to the aggregate Noteholders' Interest Distribution
Amount for such Distribution Date;
(iii) third, to the Note Distribution Account, an
amount up to the Noteholders' Principal Distribution Amount
for such Distribution Date;
(iv) fourth, to the Eligible Lender Trustee, for
deposit into the Certificate Distribution Account, an amount
up to the Certificateholders' Interest Distribution Amount for
such Distribution Date; and
(v) fifth, if the Outstanding Amount of the Notes has
been paid in full, to the Eligible Lender Trustee, for deposit
into the Certificate Distribution Account, an amount up to the
Certificateholders' Principal Distribution Amount for such
Distribution Date.
(b) [Reserved]
(c) On each Quarterly Distribution Date (and in the case of
clause (i) below, on the 25th day of each month (or if such day is not
a Business Day, the next succeeding Business Day)), the Indenture
Trustee, pursuant to information contained in the Administrator's
Certificate delivered in accordance with Section 4.7, will distribute
from the Expense Account (in addition to any amounts transferred from
the Reserve Account pursuant to Section 5.6) the following amounts in
the following order of priority:
(i) to the Department of Education, the Consolidation
Loan Fees for the immediately preceding calendar month and all
overdue Consolidation Loan Fees for any prior months,
(ii) to the Master Servicer, the estimated Servicing
Fee for the calendar quarter in which such Quarterly
Distribution Date occurs and all overdue Servicing Fees,
(iii) to the Administrator, the estimated
Administration Fee for the calendar quarter in which such
Quarterly Distribution Date occurs and all overdue
Administration Fees,
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(iv) to the Indenture Trustee, the estimated
Indenture Trustee Fee for the calendar quarter in which such
Quarterly Distribution Date occurs and all overdue Indenture
Trustee Fees, and
(v) to the Eligible Lender Trustee and the Delaware
Trustee, the estimated Eligible Lender Trustee Fee and
Delaware Trustee Fee, respectively, for the calendar quarter
in which such Quarterly Distribution Date occurs and all
overdue Eligible Lender Trustee Fees and Delaware Trustee
Fees.
(d) On each Distribution Date, the Indenture Trustee will
distribute to the Noteholders as of the related Record Date all amounts
transferred to the Note Distribution Account pursuant to Section
5.5(a)(ii) and (iii) (in addition to any amounts transferred from the
Reserve Account, any amounts deposited into the Monthly Advance Account
pursuant to Section 5.4 and any Parity Percentage Payments transferred
from the Collection Account pursuant to Section 5.5(e)) in the
following order of priority:
(i) first, to each Class of Class A Noteholders, the
Class A Noteholders' Interest Distribution Amount (pro rata
based upon the portion thereof allocable to each such Class);
(ii) second, if such Distribution Date is a Quarterly
Distribution Date, to the Class B Noteholders, the Class B
Noteholders' Interest Distribution Amount;
(iii) third, to the Class A-1 Noteholders, the
Noteholders' Principal Distribution Amount until the
Outstanding Amount of the Class A-1 Notes has been reduced to
zero;
(iv) fourth, after the Outstanding Amount of the
Class A-1 Notes has been reduced to zero, to the Class A-2
Noteholders, the Noteholders' Principal Distribution Amount
until the Outstanding Amount of the Class A-2 Notes has been
reduced to zero, and
(v) fifth, after the Outstanding Amount of the Class
A Notes has been reduced to zero, if such Distribution Date is
a Quarterly Distribution Date, to the Class B Noteholders the
remaining Noteholders' Principal Distribution Amount until the
Outstanding Amount of the Class B Notes shall have been
reduced to zero.
On each Quarterly Distribution Date, the Eligible Lender
Trustee will distribute to the Certificateholders as of the related
Record Date all amounts transferred to the Certificate Distribution
Account pursuant to Section 5.5(a) (in addition to any amounts
transferred from the Reserve Account and any amount deposited into the
Certificate Quarterly Advance Account pursuant to Section 5.4) in the
following order of priority: (i) first, to the Certificateholders, the
Certificateholders' Interest Distribution Amount and (ii) second, to
the Certificateholders, the Certificateholders' Principal Distribution
Amount. The priority of distributions set forth in this Section 5.5(d)
shall be subject to the provisions of Section 5.5(f).
(e) On each Quarterly Distribution Date, after making any and
all required transfers to the Expense Account, the Note Distribution
Account and, if applicable, the Certificate Distribution Account
pursuant to Section 5.5(a), the Indenture Trustee will transfer any
amounts remaining in the Collection Account (other than amounts
representing payments received during the month in which such
Distribution Date occurs) in the following order of priority:
(i) to the Reserve Account, the amount, if any,
necessary to increase the balance thereof to the Specified
Reserve Account Balance,
(ii) to the Note Distribution Account, the Parity
Percentage Payment, if any, for such Distribution Date,
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(iii) to the Note Distribution Account, the amount of
any outstanding Noteholders' Interest Carryover, and
(iv) to the Transferor, any amounts remaining on
deposit in the Collection Account other than amounts
representing payments received on or with respect to the
Financed Student Loans during the month of such Quarterly
Distribution Date (amounts transferred to the Transferor
pursuant to this clause (iv) shall be transferred by the
Indenture Trustee to the account specified by the Transferor).
The Transferor shall have the right, at its option, to transfer and
assign, in whole or in part, its right to receive any amounts required
to be paid to it pursuant to clause (iv).
(f) Notwithstanding the foregoing, if (x) on any Distribution
Date following all distributions to be made on such Distribution Date,
the Outstanding Amount of the Class A Notes would exceed the sum of the
Pool Balance at the end of the immediately preceding Collection Period
plus the aggregate balance on deposit in the Trust Accounts on such
Distribution Date following such distributions, or (y) an Event of
Default has occurred with respect to payment of the Notes,
distributions pursuant to Section 5.5(d) shall be made in the following
priority:
(i) first, to each Class of Class A Noteholders, the
Noteholders' Interest Distribution Amount applicable to each
such Class pro rata based upon the portion thereof allocable
to each such Class;
(ii) second, in the case of
(A) clause (x) above, to the Class A-1
Noteholders, the Noteholders' Principal
Distribution Amount until the Outstanding
Amount of the Class A-1 Notes has been
reduced to zero, and then to the Class A-2
Noteholders, the Noteholders' Principal
Distribution Amount until the Outstanding
Amount of the Class A-2 Notes has been
reduced to zero, and
(B) clause (y) above, to each Class of Class
A Noteholders, the Noteholders' Principal
Distribution Amount applicable to such
Distribution Date, pro rata based upon the
Outstanding Amount of each Class of Class A
Notes until the Outstanding Amount of each
Class of Class A Notes has been paid in
full;
(iii) third, if such Distribution Date is a Quarterly
Distribution Date, to the Class B Noteholders, the
Noteholders' Interest Distribution Amount applicable to the
Class B Notes;
(iv) fourth, after the Outstanding Amount of each of
the Class A Notes has been reduced to zero, if such
Distribution Date is a Quarterly Distribution Date, to the
Class B Noteholders, the Noteholders' Principal Distribution
Amount until the Outstanding Amount of the Class B Notes has
been reduced to zero;
(v) fifth, if such Distribution Date is a Quarterly
Distribution Date, to the Class A Noteholders, the
Noteholders' Interest Carryover applicable to the respective
Class of Class A Notes, pro rata based upon the portion
thereof allocable to each such Class;
(vi) sixth, if such Distribution Date is a Quarterly
Distribution Date, to the Class B Noteholders, the
Noteholders' Interest Carryover applicable to the Class B
Notes;
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(vii) seventh, if such Distribution Date is a
Quarterly Distribution Date, to the Certificateholders, the
Certificateholders' Interest Distribution Amount; and
(viii) eighth, if such Distribution Date is a
Quarterly Distribution Date, to the Certificateholders, the
Certificateholders' Principal Distribution Amount.
All distributions made to the Noteholders of a Class or the
Certificateholders on each Distribution Date shall be made on a pro rata basis
among the Noteholders of such Class and Certificateholders of record as of the
related Record Date based upon the Outstanding Amount of such Class (or, with
respect to payments of principal on such Class of Notes, the applicable
Principal Factor with respect to such Class) or percentage interest of
Certificates so owned.
SECTION 5.6. Reserve Account.
(a) On the Closing Date, the Transferor shall deposit the
Reserve Account Initial Deposit into the Reserve Account.
(b) If the amount on deposit in the Reserve Account on any
Quarterly Distribution Date (after giving effect to all deposits or
withdrawals therefrom on such Quarterly Distribution Date) is greater
than the then applicable Specified Reserve Account Balance, the
Administrator shall instruct the Indenture Trustee in writing to
withdraw such excess from the Reserve Account and
(i) to deposit into the Note Distribution Account, an
amount equal to the lesser of such excess and the amount
described in Section 5.5(e)(iii) for such Distribution Date
(to the extent not otherwise paid to the Note Distribution
Account on such Distribution Date),
(ii) to deposit into the Note Distribution Account
the lesser of such excess (after giving effect to clause (i)
above) and any amounts required to be paid by the Transferor
or the Master Servicer pursuant to Sections 3.2 or 4.5 as a
result of breaches of representations, warranties and
agreements made in Sections 3.1, 4.1 through 4.4, or 6.1 to
the extent the Transferor or the Master Servicer, as the case
may be, has not made such payments within the required time
period, and
(iii) to distribute the remaining amount of such
excess (after giving effect to clauses (i) and (ii) above) to
the Transferor.
Amounts properly distributed pursuant to this paragraph (b) shall be
deemed released from the Trust Estate and the security interest therein
granted to the Indenture Trustee, and the Transferor shall in no event
thereafter be required to refund any such distributed amounts. The
Transferor shall have the right, at its option, to transfer and assign,
in whole or in part, its right to receive any amounts required to be
paid to it pursuant to clause (iii).
(c) Following the payment in full of the aggregate Outstanding
Amount of the Notes and of all other amounts owing or to be distributed
hereunder or under the Indenture or the Trust Agreement to Noteholders,
Certificateholders, the Master Servicer or the Administrator and the
termination of the Trust, any amount remaining on deposit in the
Reserve Account shall be distributed to the Transferor. The Transferor
shall in no event be required to refund any amounts properly
distributed pursuant to this Section 5.6(c).
(d) (i) If on any Quarterly Distribution Date (and with
respect to Section 5.5(c)(i), the 25th day of each month, or if such
day is not a Business Day the next succeeding Business Day), any
amounts to be distributed as calculated pursuant to Section
5.5(c)(i)-(v) exceed the amount on deposit in the Expense
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Account available for such purposes, the Administrator shall instruct
the Indenture Trustee to withdraw from the Reserve Account the lesser
of such excess and the amount on deposit in the Reserve Account (after
giving effect to each withdrawal in the order specified in Section
5.5(c) (i)-(v)) and deposit such withdrawn amount in the Expense
Account for distribution as provided in Section 5.5.
(ii) If the Noteholders' Distribution Amount for a
Distribution Date exceeds the amount in the Note Distribution Account
for such Distribution Date available for such purposes, the
Administrator shall instruct the Indenture Trustee to withdraw from the
Reserve Account an amount equal to the lesser of such excess, and the
amount on deposit in the Reserve Account (after giving effect to
paragraph (d)(i) above), and deposit such withdrawn amount into the
Note Distribution Account for distribution as provided in Section 5.5.
(iii) If the Certificateholders' Distribution Amount for a
Quarterly Distribution Date exceeds the amount for such Quarterly
Distribution Date available for such purposes, the Administrator shall
instruct the Indenture Trustee on such Quarterly Distribution Date to
withdraw from the Reserve Account an amount equal to the lesser of such
excess, and the amount on deposit in the Reserve Account (after giving
effect to paragraphs (d)(i) and (d) (ii) above), and to deposit such
withdrawn amount in the Certificate Distribution Account for
distribution as provided in Section 5.5.
SECTION 5.7. Statements to Certificateholders and Noteholders. On each
Distribution Determination Date immediately preceding a Distribution Date, the
Master Servicer or the Administrator shall provide to the Indenture Trustee with
a copy to the Rating Agencies (for the Indenture Trustee to forward on such
succeeding Distribution Date to each Noteholder of the applicable Class of
record and to the Eligible Lender Trustee for the Eligible Lender Trustee to
forward on such succeeding Distribution Date to each Certificateholder (if such
Certificateholder is not the Transferor) of record, a statement substantially in
the form of Exhibits A and B, respectively, setting forth at least the following
information with respect to such Distribution Date or the preceding Collection
Period or Collection Periods, to the extent applicable:
(i) the Principal Factor for each Class of Notes;
(ii) the amount of the distribution allocable to
principal on each Class of Notes;
(iii) the amount of the distribution allocable to
interest on each Class of Notes and on the Certificates,
together with the interest rates applicable with respect
thereto (indicating, whether such interest rates are based on
the Formula Interest Rate or on the Net Loan Rate with respect
to each Class of the Class A Notes and on the Formula Interest
Rate or on the Net Loan Rate with respect to the Class B
Notes, and specifying what each such interest rate would have
been if it had been calculated using the alternate basis);
(iv) the amount of the distribution, if any,
allocable to any Noteholders' Interest Carryover together with
the outstanding amount, if any, thereof after giving effect to
any such distribution;
(v) the Pool Balance as of the close of business on
the last day of the preceding Collection Period;
(vi) the aggregate outstanding principal amount of
each Class of Notes as of such Distribution Date, after giving
effect to payments allocated to principal reported under
clause (ii) above;
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(vii) the amount of the Servicing Fee, the
Administration Fee, the Indenture Trustee Fee, the Delaware
Trustee Fee and the Eligible Lender Trustee Fee to be
allocated on the upcoming Distribution Date;
(viii) the amount of the aggregate Realized Losses,
if any, for the preceding Collection Period and the aggregate
amount, if any, received (stated separately for interest and
principal) during such Collection Period relating to Financed
Student Loans for which a Realized Loss was previously
allocated;
(ix) the amount of the distribution attributable to
amounts in the Reserve Account, the amount of any other
withdrawals from the Reserve Account for such Distribution
Date, the balance of the Reserve Account on such Distribution
Date, after giving effect to changes therein on such
Distribution Date, the then applicable Parity Percentage and
the amount of the distribution, if any, attributable to Parity
Percentage Payments;
(x) the aggregate amount, if any, paid for Financed
Student Loans purchased from the Trust during the preceding
Collection Period;
(xi) during the Subsequent Finance Period only, the
aggregate Issuer 2.3(b) Payments and Adjustment Payments,
stated separately, for the preceding Collection Period; and
(xii) the number and principal amount of Financed
Student Loans, as of the end of the preceding Collection
Period, that are (A) 31 to 60 days delinquent, (B) 61 to 90
days delinquent, (C) 91 to 120 days delinquent, (D) more than
120 days delinquent and (E) for which claims have been filed
with the appropriate Guarantor or the Department of HHS and
which are awaiting payment.
5.8. Expense Account. The Administrator shall instruct the Indenture
Trustee to deposit funds into, and withdraw funds from, the Expense Account as
set forth in Sections 5.5 and 5.6. Any funds remaining in the Expense Account
upon termination of the Trust shall be distributed to the Master Servicer as
additional servicing compensation.
5.9. Note Distribution Account and Certificate Distribution Account.
The Administrator shall instruct the Indenture Trustee and the Eligible Lender
Trustee to deposit funds into, and withdraw funds from, the Note Distribution
Account and the Certificate Distribution Account, as applicable, as set forth in
Sections 5.5, 5.6 and 5.10.
5.10. Monthly Advances. If the Master Servicer has applied for a
Guarantee Payment from a Guarantor, an Interest Subsidy Payment or a Special
Allowance Payment from the Department of Education or an Insurance Payment from
the Department of HHS, and the Master Servicer has not received the related
payment prior to the end of the Collection Period immediately preceding the
Distribution Date on which such amount would be required to be distributed as a
payment of interest, the Master Servicer may, no later than the Distribution
Determination Date relating to such Distribution Date, in its sole discretion,
deposit into the Monthly Advance Account an amount up to the amount of such
payments applied for but not received (such deposits by the Master Servicer are
referred to herein as "Monthly Advances"). Such Monthly Advances are recoverable
by the Master Servicer (i) first, from the Guarantee Payment, Interest Subsidy
Payment, Special Allowance Payment or Insurance Payment, as the case may be, for
which such Monthly Advance was made and (ii) second, if such amounts have not
been received, from collections received generally on or with respect to the
Financed Student Loans. The Master Servicer shall have no obligation, legal or
otherwise, to make any Monthly Advance, and the making of or decision to make a
particular Monthly Advance shall not create any obligation on the Master
Servicer, legal or otherwise, to make any future Monthly Advances.
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5.11. Certificate Interest. During the initial Interest Period, the
Certificates shall bear interest at the Certificate Initial Rate. Thereafter,
the Certificates shall bear interest during each applicable Interest Period at
the Certificate Rate.
During each Interest Period, interest at the Certificate Rate shall
accrue daily and shall be computed for the actual number of days elapsed on the
basis of a year consisting of 360 days.
The Master Servicer shall calculate One-Month LIBOR on each Rate
Determination Date and shall notify the Eligible Lender Trustee and the
Indenture Trustee of One-Month LIBOR. The determination by the Master Servicer
of One-Month LIBOR shall (in the absence of manifest error) be final and binding
upon all parties.
ARTICLE VI
The Transferor and the Master Servicer
SECTION 6.1. Representations of Transferor and Master Servicer. The
Transferor and Master Servicer make the following representations with respect
to the Transferor and the Master Servicer, respectively, on which the Issuer is
deemed to have relied in acquiring (through the Eligible Lender Trustee) the
Financed Student Loans being conveyed pursuant to this Agreement. The
representations speak as of the Closing Date, in the case of the Initial
Financed Student Loans, and as of the applicable Subsequent Finance Date, in the
case of the Subsequent Financed Student Loans transferred on such Subsequent
Finance Date, but shall survive the contribution, transfer and assignment of the
Financed Student Loans to the Eligible Lender Trustee on behalf of the Issuer
and the pledge thereof to the Indenture Trustee pursuant to the Indenture.
(a) Organization and Good Standing. Each of the Transferor and
the Master Servicer is duly organized and validly existing as a
Virginia banking corporation with the power and authority to own its
properties and to conduct its business as such properties are currently
owned and such business is presently conducted, except for such power
and authority the absence of which would not have a material adverse
effect on the Master Servicer or Transferor, as the case may be, or
their respective ability to consummate the transactions contemplated by
the Basic Documents, and the Transferor had at all relevant times, and
has, the power, authority and legal right to originate, acquire and own
the Financed Student Loans and the Master Servicer had at all relevant
times, and has the power, authority and legal right to service the
Financed Student Loans.
(b) Due Qualification. The Master Servicer is duly qualified
to do business and has obtained all necessary licenses and approvals in
all jurisdictions in which the ownership and lease of property or the
conduct of its business (including the servicing of the Financed
Student Loans for which it acts as Primary Servicer as required by this
Agreement) shall require such qualifications except for such licenses
and approvals the absence of which would not have a material adverse
effect on the Master Servicer or its ability to consummate the
transactions contemplated by the Basic Documents.
(c) Power and Authority. Each of the Transferor and the Master
Servicer has the requisite corporate power and authority to execute and
deliver this Agreement and to carry out its terms; the Transferor has
requisite corporate power and authority to transfer and assign the
property to be contributed and assigned to and deposited with the
Issuer (or with the Eligible Lender Trustee on behalf of the Issuer)
and the Transferor has duly authorized such transfer and assignment to
the Issuer (or to the Eligible Lender Trustee on behalf of the Issuer)
by all necessary corporate action on Transferor's part; and the
execution, delivery and performance of this Agreement have been duly
authorized by the Transferor and the Master Servicer by all necessary
corporate action on their respective parts.
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(d) Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of the Transferor and the Master Servicer,
enforceable against the Transferor and the Master Servicer in
accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance and similar laws
relating to creditors' rights generally or the rights of creditors of
banks the deposit accounts of which are insured by the FDIC and subject
to general principles of equity.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
do not violate, result in any breach of any of the terms and provisions
of, or constitute (with or without notice or lapse of time or both) a
default under, the charter or by-laws of the Transferor or the Master
Servicer, or any material indenture, material agreement or other
material instrument to which the Transferor or the Master Servicer is a
party or by which it shall be bound; or result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms
of any such material indenture, material agreement or other material
instrument (other than pursuant to the Basic Documents); nor violate
any material law or, to the knowledge of either the Transferor or the
Master Servicer, any material order, rule or regulation applicable to
it of any court or of any federal or State regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Transferor or the Master Servicer or its
properties.
(f) No Proceedings. To its best knowledge, there are no
proceedings or investigations pending or threatened against the
Transferor or the Master Servicer, before any court, regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over it or its properties: (i) asserting the invalidity of
this Agreement, the Indenture or any of the other Basic Documents, the
Notes or the Certificates, (ii) seeking to prevent the issuance of the
Notes or the Certificates or the consummation of any of the
transactions contemplated by this Agreement, the Indenture or any of
the other Basic Documents, (iii) seeking any determination or ruling
that could reasonably be expected to have a material and adverse effect
on the performance by either the Transferor or the Master Servicer of
its obligations under, or the validity or enforceability of, this
Agreement, the Indenture, any of the other Basic Documents, the Notes
or the Certificates or (iv) seeking to affect adversely the federal or
State income tax attributes of the Issuer, the Notes or the
Certificates.
(g) All Consents. All authorizations, consents, orders or
approvals of or registrations or declarations with any court,
regulatory body, administrative agency or other government
instrumentality required to be obtained, effected or given by either
the Transferor or the Master Servicer in connection with the execution
and delivery by either the Transferor or the Master Servicer of this
Agreement and the performance by either the Transferor or the Master
Servicer of the transactions expressly contemplated by this Agreement,
have been duly obtained, effected or given and are in full force and
effect, except such as may be required by the blue sky laws of any
jurisdiction in connection with the sale and distribution of the Notes
and the Certificates for which no representation or warranty is being
given.
(h) No Amendment or Waiver. Except as provided in Section
4.14, no provision of a Financed Student Loan has been waived, altered
or modified in any respect, except pursuant to a document, instrument
or writing included in the Financed Student Loan File, and no such
amendment, waiver, alteration or modification causes such Financed
Student Loan not to conform in any material respect to the other
warranties contained in this Section or those of the Transferor
contained in Section 3.1.
(i) Location of Financed Student Loan Files. The Financed
Student Loan Files are kept in accordance with Section 3.4(b).
SECTION 6.2. Existence. Except as permitted by Section 6.5, during the
term of this Agreement, each of the Transferor and the Master Servicer will keep
in full force and effect its existence, rights and franchises as a Virginia
banking corporation under the laws of the jurisdiction of its organization.
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SECTION 6.3. Liability and Indemnities.
(a) Each of the Transferor and the Master Servicer shall be
liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Transferor and the Master Servicer, as
the case may be, under this Agreement.
(b) The Transferor shall indemnify, defend and hold harmless
the Issuer, the Eligible Lender Trustee and the Indenture Trustee and
their officers, directors, employees and agents from and against any
taxes that may at any time be asserted against any such Person with
respect to the transactions contemplated herein (except (i) taxes
arising out of fees paid to the Eligible Lender Trustee or the
Indenture Trustee, (ii) taxes arising out of the transfer of the
Financed Student Loans to the Eligible Lender Trustee, (iii) taxes
arising out of the issuance and sale of the Certificates and the Notes,
(iv) taxes arising out of the ownership of the Financed Student Loans
(including, without limitation, income taxes), and (v) taxes arising
out of distributions on the Certificates and the Notes) and costs and
expenses in defending against the same).
(c) The Transferor shall indemnify, defend and hold harmless
the Issuer, the Eligible Lender Trustee, the Indenture Trustee, and the
Noteholders and the officers, directors, employees and agents of the
Issuer, the Eligible Lender Trustee and the Indenture Trustee from and
against any and all Indemnifiable Expenses arising out of, or imposed
upon such Person through, (i) the Transferor's willful misfeasance, bad
faith or negligence in the performance of its duties under this
Agreement, or by reason of reckless disregard of its obligations and
duties under this Agreement and (ii) the Transferor's or the Issuer's
violation of federal or State securities laws in connection with the
offering and sale of the Notes and the Certificates; provided, however,
the Transferor shall not be liable for any such Indemnifiable Expenses
imposed upon such Person to the extent that they arise out of or result
from such Person's negligence, willful malfeasance or bad faith or a
breach of the representations and warranties of such Person in this
Agreement. Notwithstanding anything to the contrary contained in this
Agreement, in no event shall the Transferor be liable under any theory
of tort, contract, strict liability or other legal or equitable theory
for any lost profits or exemplary, punitive, special, incidental,
indirect or consequential damages, each of which is hereby excluded by
agreement of the parties regardless of whether or not the Transferor
has been advised of the possibility of such damages.
(d) The Transferor shall indemnify, defend and hold harmless
the Eligible Lender Trustee, the Delaware Trustee and the officers,
directors, employees and agents of the Eligible Lender Trustee and the
Delaware Trustee from and against, Indemnifiable Expenses arising out
of, incurred in connection with or relating to the Trust Agreement, the
other Basic Documents, the Trust Estate, the acceptance or performance
of the trusts and duties set forth herein and in the Trust Agreement or
the action or the inaction of such Person hereunder and under the Trust
Agreement, except to the extent that such Indemnifiable Expenses: (i)
shall be due to the willful misfeasance, bad faith or negligence of
such Person, (ii) shall arise from any breach by such Person of its
covenants under any of the Basic Documents; or (iii) shall arise from
the breach by such Person of any of its representations or warranties
set forth in Section [[7.3]] of the Trust Agreement. Notwithstanding
anything to the contrary contained in this Agreement, in no event shall
the Transferor be liable under any theory of tort, contract, strict
liability or other legal or equitable theory for any lost profits or
exemplary, punitive, special, incidental, indirect or consequential
damages, each of which is hereby excluded by agreement of the parties
regardless of whether or not the Transferor has been advised of the
possibility of such damages.
(e) The Transferor shall pay any and all taxes levied or
assessed upon all or any part of the Trust Estate (other than those
taxes expressly excluded from the Transferor's responsibilities
pursuant to the parenthetical in paragraph (b) above).
(f) Pursuant to Section 6.7 of the Indenture, and subject to
the limitations therein, the Transferor shall pay reasonable
compensation to the Indenture Trustee and shall reimburse the Indenture
Trustee for
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all reasonable expenses, disbursements and advances, and indemnify,
defend and hold harmless the Indenture Trustee and its officers,
directors, employees and agents from and against all Indemnifiable
Expenses, to the extent and in the manner provided in the Indenture.
Notwithstanding anything to the contrary contained in this Agreement,
in no event shall the Transferor be liable under any theory of tort,
contract, strict liability or other legal or equitable theory for any
lost profits or exemplary, punitive, special, incidental, indirect or
consequential damages, each of which is hereby excluded by agreement of
the parties regardless of whether or not the Transferor has been
advised of the possibility of such damages.
(g) The Master Servicer shall indemnify, defend and hold
harmless the Issuer, the Eligible Lender Trustee, the Delaware Trustee,
the Indenture Trustee, the Certificateholders, and the Noteholders and
the officers, directors, employees and agents of the Issuer, the
Eligible Lender Trustee, the Delaware Trustee and the Indenture Trustee
from and against any and all Indemnifiable Expenses arising out of, or
imposed upon such Person through, the Master Servicer's willful
misfeasance, bad faith or negligence in the performance of its duties
under this Agreement, where the final determination that any such loss,
liability or expense arose out of, or was imposed upon any such Person
through, any such negligence, willful misfeasance or bad faith on the
part of the Master Servicer is established by a court of law, by an
arbitrator or by way of settlement agreed to by the Master Servicer;
provided, however, the Master Servicer shall not be liable for any such
Indemnifiable Expenses imposed upon such Person to the extent that they
arise out of or result from such Person's negligence, willful
malfeasance or bad faith or a breach of the representations and
warranties of such Person in this Agreement. Notwithstanding the
foregoing, if the Master Servicer is rendered unable, in whole or in
part, by a force outside the control of the Master Servicer (including
acts of God, acts of war, severe weather, communications failures or
failures to receive electronic data or labor disputes or strikes,
fires, earthquakes and other disasters) to satisfy its obligations
under this Agreement, the Master Servicer shall not be deemed to have
breached any such obligation upon delivery of written notice of such
event to the other parties hereto, for so long as the Master Servicer
remains unable to perform such obligation as a result of such event.
Notwithstanding anything to the contrary contained in this Agreement,
in no event shall the Master Servicer be liable under any theory of
tort, contract, strict liability or other legal or equitable theory for
any lost profits or exemplary, punitive, special, incidental, indirect
or consequential damages, each of which is hereby excluded by agreement
of the parties regardless of whether or not the Master Servicer has
been advised of the possibility of such damages.
(h) Indemnification under this Section shall survive the
resignation or removal of the Eligible Lender Trustee, the Delaware
Trustee or the Indenture Trustee and the termination of this Agreement
or the Indenture or the Trust Agreement, as applicable, and shall
include reasonable fees and expenses of counsel and expenses of
litigation. If the Transferor or the Master Servicer, as the case may
be, shall have made any indemnity payments pursuant to this Section and
the Person to or on behalf of whom such payments are made thereafter
shall collect any of such amounts from others, such Person shall
promptly repay such amounts to the Transferor or the Master Servicer,
as the case may be without interest.
(i) Promptly after receipt by an indemnified party under this
Section 6.3 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 6.3, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than under Section
6.3., except to the extent the indemnifying party is materially
prejudiced by such failure. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified
party; provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are
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different from or additional to those available to the indemnifying
party, the indemnifying party or parties shall have the right to select
separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of the indemnified
party or parties. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under
this Section 6.3 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation. In no event shall the
indemnifying party be liable for fees and expenses for more than one
counsel separate from their own counsel for all indemnified parties in
connection with any one action or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances. An indemnifying party will not, without the prior
written consent of the indemnified party, settle or compromise or
consent to the entry of any judgment with respect to any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless
such settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising out of
such claim, action, suit or proceeding.
The indemnified party will not, without the prior written
consent of the indemnifying party, settle, compromise or consent to the
entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in which indemnification may be sought
hereunder.
SECTION 6.4. [Reserved]
SECTION 6.5. Merger or Consolidation of, or Assumption of the
Obligations of, the Transferor, the Administrator or the Master Servicer. Any
Person (a) into which the Transferor, the Administrator or the Master Servicer,
as the case may be, may be merged or consolidated, (b) which may result from any
merger or consolidation to which the Transferor, the Administrator or the Master
Servicer, as the case may be, shall be a party or (c) which may succeed to the
properties and assets of the Transferor, the Administrator or the Master
Servicer, as the case may be, substantially as a whole, shall be the successor
to the Transferor, the Administrator or the Master Servicer, as the case may be,
without the execution or filing of any document or any further act by any of the
parties to this Agreement or the Administration Agreement; provided, however,
that each of the Transferor, the Administrator and the Master Servicer hereby
covenants that it will not consummate any of the foregoing transactions except
upon satisfaction of the following: (i) the surviving Transferor, Administrator
or Master Servicer, as the case may be, if other than Crestar Bank or a Crestar
Subsidiary or Crestar Financial Corporation, executes an agreement of assumption
to perform every obligation of the Transferor, the Administrator or the Master
Servicer, as the case may be, under this Agreement and the Administration
Agreement, (ii) immediately after giving effect to such transaction, no Master
Servicer Default (in the case of the Master Servicer) or no Administrator
Default (in the case of the Administrator) shall have occurred and be
continuing, (iii) the Transferor, the Administrator or the Master Servicer, as
the case may be, if other than Crestar Bank or a Crestar Subsidiary or Crestar
Financial Corporation shall have delivered to the Eligible Lender Trustee and
the Indenture Trustee an Officer's Certificate and an Opinion of Counsel each
stating that such consolidation, merger or succession and such agreement of
assumption comply with this Section and that all conditions precedent, if any,
provided for in this Agreement relating to such transaction have been complied
with, (iv) such transaction will not result in a material adverse federal or
State tax consequence to the Issuer relating to its tax classification, or to
the Noteholders, considered as a whole, relating to a change in the
characterization of the Notes and (v) unless "Crestar Bank" is the name of the
surviving entity, the Transferor, the Administrator or the Master Servicer, as
the case may be, shall have delivered to the Eligible Lender Trustee and the
Indenture Trustee an Opinion of Counsel either (A) stating that, in the opinion
of such counsel, all financing statements and continuation statements and
amendments thereto have been executed and filed that are necessary fully to
preserve and protect the interest of the Eligible Lender Trustee and Indenture
Trustee, respectively, in the Financed Student Loans, or (B) stating that, in
the opinion of such counsel, no such action shall be necessary to preserve and
protect such interests. Nothing in this Agreement or any other Basic Document
shall be deemed to restrict or prohibit, and no consent of Noteholders or
Certificateholders, supplemental agreement, Officer's Certificate (except to the
extent provided in clause [[(12)]]
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below of this Section 6.5) or Opinion of Counsel (except to the extent provided
in clause (v) above of this Section 6.5) shall be required in the case of, the
merger of a Crestar Subsidiary with a Crestar Subsidiary or Crestar Financial
Corporation, the consolidation of a Crestar Subsidiary and a Crestar Subsidiary
or Crestar Financial Corporation, or the sale or other disposition of all or
substantially all of the assets of a Crestar Subsidiary to another Crestar
Subsidiary or Crestar Financial Corporation, if, in any such case in which the
surviving, resulting or acquiring entity is not Crestar Financial Corporation,
Crestar Financial Corporation would own, directly or indirectly, at least eighty
percent (80%) of the voting securities of the Crestar Subsidiary surviving such
merger, resulting from such consolidation or acquiring such assets. For the
purpose of this Section 6.5, "Crestar Subsidiary" means each of (l) Crestar
Bank, (2) [_______] [[(__)]] any other banking subsidiaries of Crestar Financial
Corporation the consolidated assets of which constitute twenty percent (20%) or
more of the consolidated assets of Crestar Financial Corporation and its
consolidated subsidiaries, [[(__)]] any other banking subsidiary of Crestar
Financial Corporation designated as a Crestar Subsidiary pursuant to a Board
Resolution and set forth in an Officer's Certificate delivered to the Eligible
Lender Trustee and the Indenture Trustee, and [[(13)]] any subsidiary of Crestar
Financial Corporation that owns, directly or indirectly any voting securities,
or options, warrants or rights to subscribe for or purchase voting securities of
any Crestar Subsidiary under clauses (l) through [[(__)]], and in the case of
each of clauses (1) through [[(__)]] their respected successors (whether by
consolidation, merger, conversion, transfer of substantially all their assets
and business or otherwise) so long as any successor is a banking subsidiary (in
the case of clauses 1 through [[__]])) or a subsidiary (in the case of clause
[[(13)]]) of Crestar Financial Corporation. References to Crestar Financial
Corporation include any name change. "Board Resolution" means a copy of a
resolution certified by the Secretary or any Assistant Secretary of Crestar
Financial Corporation to have been duly adopted by the Board of Directors of
Crestar Financial Corporation, or such committee of the Board of Directors or
officers of Crestar Financial Corporation to which authority to act on behalf of
the Board of Directors has been delegated, and to be in full force and effect on
the date of such certification, and delivered to the Eligible Lender Trustee and
the Indenture Trustee.
SECTION 6.6. Limitation on Liability of Transferor, Master Servicer
and Others.
(a) The Transferor, the Master Servicer and any director or
officer or employee or agent of either may rely in good faith on the
advice of counsel or on any document of any kind, prima facie properly
executed and submitted by any Person respecting any matters arising
hereunder.
(b) Neither the Transferor, the Master Servicer nor any of its
directors, officers, employees or agents shall be under any liability
to the Issuer, the Noteholders, the Certificateholders, the Indenture
Trustee or the Eligible Lender Trustee except as provided under this
Agreement or the Administration Agreement for any action taken or for
refraining from the taking of any action pursuant to this Agreement or
for errors in judgment; provided, however, that this provision shall
not protect the Transferor or Master Servicer or any such person
against any liability that would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance of
their respective duties under this Agreement or the Administration
Agreement.
Except as provided in this Agreement, the Transferor and the
Master Servicer shall not be under any obligation to appear in,
prosecute or defend any legal action that shall not be incidental to
its duties in accordance with this Agreement, and that in its opinion
may involve it in any expense or liability; provided, however, that the
Transferor or the Master Servicer may undertake any reasonable action
that it may deem necessary or desirable in respect of this Agreement
and the other Basic Documents and the rights and duties of the parties
to this Agreement and the other Basic Documents and the interests of
the Certificateholders under this Agreement or the Administration
Agreement and the Noteholders under the Indenture.
SECTION 6.7. Transferor May Own Certificate or Notes. The Transferor
and any Affiliate thereof may in its individual or any other capacity become the
owner or pledgee of Certificates or Notes with the same rights
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as it would have if it were not the Transferor or an Affiliate thereof, except
as expressly provided herein or in any other Basic Document.
SECTION 6.8. Master Servicer Not to Resign. Subject to the provisions
of Section 6.5, Crestar Bank shall not resign from the obligations and duties
imposed on it as Master Servicer under this Agreement except upon (i)
determination that the performance of its duties under this Agreement shall no
longer be permissible under applicable law or shall violate any final order of a
court or administrative agency with jurisdiction over it or its properties, or
(ii) satisfaction of a Rating Agency Condition with respect to such resignation.
Notice of any such determination permitting resignation shall be communicated to
the Eligible Lender Trustee and the Indenture Trustee at the earliest
practicable time (and, if such communication is not in writing, shall be
confirmed in writing at the earliest practicable time) and any such
determination shall be evidenced by an Opinion of Counsel to such effect
delivered to the Eligible Lender Trustee and the Indenture Trustee concurrently
with or promptly after such notice. No such resignation shall become effective
until the Indenture Trustee or a successor Master Servicer shall have assumed
the responsibilities and obligations of Crestar Bank in accordance with Section
8.2.
ARTICLE VII
The Administrator
SECTION 7.1. Representations of the Administrator. The Administrator
makes the following representations on which the Issuer is deemed to have relied
in acquiring (through the Eligible Lender Trustee) the Financed Student Loans
being conveyed pursuant to this Agreement. The representations speak as of the
Closing Date, in the case of the Initial Financed Student Loans, and as of the
applicable Subsequent Finance Date, in the case of the Subsequent Financed
Student Loans being transferred on such Subsequent Finance Date, but shall
survive the contribution, transfer and assignment of the Financed Student Loans
to the Eligible Lender Trustee on behalf of the Issuer and the pledge thereof to
the Indenture Trustee pursuant to the Indenture.
(a) Organization and Good Standing. The Administrator is duly
organized and validly existing as a Virginia banking corporation with
the power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is
presently conducted except for such power and authority the absence of
which would not have a material adverse effect on the Administrator or
its ability to consummate the transactions contemplated by the Basic
Documents, and had at all relevant times, and has, the power, authority
and legal right, to administer the Financed Student Loans.
(b) Power and Authority of the Administrator. The
Administrator has the requisite corporate power and authority to
execute and deliver this Agreement and the Administration Agreement and
to carry out their respective terms; and the execution, delivery and
performance of this Agreement and the Administration Agreement have
been duly authorized by the Administrator by all necessary corporate
action on its part.
(c) Binding Obligation. This Agreement and the Administration
Agreement each constitutes a legal, valid and binding obligation of the
Administrator, enforceable against the Administrator in accordance with
its terms, subject to applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance and similar laws relating to
creditors' rights generally or the rights of creditors of banks the
deposit accounts of which are insured by the FDIC or and subject to
general principles of equity.
(d) No Violation. The consummation of the transactions
contemplated by this Agreement and the Administration Agreement and the
fulfillment of the terms hereof or thereof do not violate, result in
any breach of any of the terms and provisions of, nor constitute (with
or without notice of lapse of time or both) a default under, the
charter or by-laws of the Administrator, or any material indenture,
material agreement or other material instrument to which the
Administrator is a party or by which it shall be bound;
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nor result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such material indenture,
material agreement or other material instrument (other than pursuant to
the Basic Documents); nor violate any material law or, to the knowledge
of the Administrator, any material order, rule or regulation applicable
to it of any court or of any federal or State regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Administrator or its properties.
(e) No Proceedings. To its best knowledge, there are no
proceedings or investigations pending or threatened against the
Administrator, before any court, regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over it or
its properties: (i) asserting the invalidity of this Agreement or the
Administration Agreement, (ii) seeking to prevent the consummation of
any of the transactions contemplated by this Agreement or the
Administration Agreement or (iii) seeking any determination or ruling
that could reasonably be expected to have a material and adverse effect
on the performance by the Administrator, of its obligations under, or
the validity or enforceability of, this Agreement or the Administration
Agreement.
(f) All Consents. All authorizations, consents, orders or
approvals of or registrations or declarations with any court,
regulatory body, administrative agency or other government
instrumentality required to be obtained, effected or given by the
Administrator in its capacity as the Administrator in connection with
the execution and delivery by the Administrator of this Agreement or
the Administration Agreement and the performance by the Administrator
in its capacity as the Administrator of the transactions contemplated
by this Agreement or the Administration Agreement, have been duly
obtained, effected or given and are in full force and effect.
SECTION 7.2. Liability and Indemnities.
(a) The Administrator shall be liable in accordance herewith
only to the extent of the obligations specifically undertaken by the
Administrator under this Agreement or the Administration Agreement. The
Administrator and any of its directors, officers, employees or agents
may rely in good faith on the advice of counsel or on any document of
any kind, prima facie properly executed and submitted by any Person.
Except as provided in this Agreement or the Administration
Agreement, the Administrator shall not be under any obligation to
appear in, prosecute or defend any legal action that shall not be
incidental to its duties to administer the Financed Student Loans and
the Trust in accordance with this Agreement and the Administration
Agreement, and that in its opinion may involve it in any expense or
liability; provided, however, that the Administrator may undertake any
reasonable action that it may deem necessary or desirable in respect of
this Agreement and the other Basic Documents and the rights and duties
of the parties to this Agreement and the other Basic Documents and the
interests of the Certificateholders under this Agreement and the
Noteholders under the Indenture.
(b) The Administrator shall indemnify, defend and hold
harmless from its funds, the Issuer, the Eligible Lender Trustee, the
Delaware Trustee, the Indenture Trustee, the Master Servicer, the
Noteholders and the Certificateholders and the officers, directors,
employees and agents of the Issuer, the Eligible Lender Trustee, the
Delaware Trustee, the Indenture Trustee, the Noteholders and the
Certificateholders from and against any and all Indemnifiable Expenses
arising out of, or imposed upon such Person through, the
Administrator's willful misfeasance, bad faith or negligence in the
performance of its duties under this Agreement or the Administration
Agreement, or by reason of reckless disregard of its obligations and
duties under this Agreement or the Administration Agreement, where the
final determination that any such loss, liability or expense arose out
of, or was imposed upon any such Person through, any such negligence,
willful misfeasance or bad faith on the part of the Administrator is
established by a court of law, by an arbitrator or by way of settlement
agreed to by the Administrator. Notwithstanding the foregoing, if the
Administrator is rendered unable, in whole or in part, by a force
outside the control of the Administrator (including acts of God, acts
of war, severe weather, communications failures or failures to receive
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electronic data or labor disputes or strikes, fires, earthquakes and
other disasters) to satisfy its obligations under this Agreement, the
Administrator shall not be deemed to have breached any such obligation
upon delivery of written notice of such event to the other parties
hereto, for so long as the Administrator remains unable to perform such
obligation as a result of such event; provided, however, the
Administrator shall not be liable for any such Indemnifiable Expenses
imposed upon such Person to the extent that they arise out of or result
from such Person' s negligence, willful malfeasance or bad faith or a
breach of the representations and warranties of such Person in this
Agreement or the Administration Agreement. Notwithstanding anything to
the contrary contained in this Agreement or the Administration
Agreement, in no event shall the Administrator be liable under any
theory of tort, contract, strict liability or other legal or equitable
theory for any lost profits or exemplary, punitive, special,
incidental, indirect or consequential damages, each of which is hereby
excluded by agreement of the parties regardless of whether or not the
Administrator has been advised of the possibility of such damages.
(c) Indemnification under this Section shall survive the
resignation or removal of the Eligible Lender Trustee, the Delaware
Trustee or the Indenture Trustee and the termination of this Agreement
or the Indenture or the Trust Agreement, as applicable, and shall
include reasonable fees and expenses of counsel and expenses of
litigation. If the Administrator shall have made any indemnity payments
pursuant to this Section and the Person to or on behalf of whom such
payments are made thereafter shall collect any of such amounts from
others, such Person shall promptly repay such amounts to the
Administrator without interest.
(d) Promptly after receipt by an indemnified party under this
Section 7.2 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 7.2, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than under Section
7.2., except to the extent the indemnifying party is materially
prejudiced by such failure. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified
party; provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnifying party or parties
shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on
behalf of the indemnified party or parties. After notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable
to such indemnified party under this Section 7.2 for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation.
In no event shall the indemnifying party be liable for fees and
expenses for more than one counsel separate from their own counsel for
all indemnified parties in connection with any one action or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances. An indemnifying party will not, without
the prior written consent of the indemnified party, settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
The indemnified party may not, without the prior written
consent of the indemnifying party, settle, compromise or consent to the
entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in which indemnification may be sought
hereunder.
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SECTION 7.3. Administrator Not to Resign. Subject to the provisions of
Section 6.5, Crestar Bank shall not resign from the obligations and duties
imposed on it as Administrator under this Agreement except upon (i)
determination that the performance of its duties under this Agreement shall no
longer be permissible under applicable law or shall violate any final order of a
court or administrative agency with jurisdiction over it or its properties, or
(ii) satisfaction of a Rating Agency Condition with respect to such resignation.
Notice of any such determination permitting resignation shall be communicated to
the Eligible Lender Trustee and the Indenture Trustee at the earliest
practicable time (and, if such communication is not in writing, shall be
confirmed in writing at the earliest practicable time) and any such
determination shall be evidenced by an Opinion of Counsel to such effect
delivered to the Eligible Lender Trustee and the Indenture Trustee concurrently
with or promptly after such notice. No such resignation shall become effective
until the Indenture Trustee or a successor Administrator shall have assumed the
responsibilities and obligations of Crestar Bank in accordance with Section 8.2.
SECTION 7.4. Additional Services. Notwithstanding anything in the
Administration Agreement to the contrary, the Administrator is authorized and
directed to prepare, execute on behalf of the Trust in its capacity as
Administrator, and file any and all reports required to be filed under the
Exchange Act by the Trust as a result of the registration of the Notes under the
Securities Act. The Trust hereby ratifies and confirms as actions of the Trust
the execution by the Administrator on behalf of the Trust of the Registration
Statement on Form S-3, Registration No. 333-35825-__, and each amendment
thereto, and any related correspondence with Securities and Exchange Commission,
the Current Report on Form 8-K dated as of [________], 1997, and the Letter of
Representations to The Depository Trust Company with respect to the Notes.
ARTICLE VIII
Default
SECTION 8.1. Master Servicer Default; Administrator Default.
(a) If any one of the following events (a "Master Servicer Default")
shall occur and be continuing:
(1) any failure by the Master Servicer to deliver to
the Indenture Trustee for deposit in any of the Trust Accounts
at the time required for such deposit any collections,
Guarantee Payments, Insurance Payments or other amounts
received by the Master Servicer with respect to the Financed
Student Loans, which failure continues unremedied for three
Business Days after written notice of such failure is received
by the Master Servicer from the Eligible Lender Trustee, the
Indenture Trustee or the Administrator or after discovery of
such failure by an officer of the Master Servicer; or
(2) any failure by the Master Servicer duly to
observe or to perform in any material respect any other
covenants or agreements of the Master Servicer set forth in
this Agreement or any other Basic Document, which failure
shall (i) materially and adversely affect the rights of
Noteholders and Certificateholders and (ii) continue
unremedied for a period of 60 days after the date on which
written notice of such failure, requiring the same to be
remedied, shall have been given (A) to the Master Servicer by
the Indenture Trustee, the Eligible Lender Trustee, or the
Administrator or (B) to the Master Servicer and to the
Indenture Trustee and the Eligible Lender Trustee by the
holders of Directing Notes, representing not less than 25% of
the Outstanding Amount of the Directing Notes or
(3) an Insolvency Event occurs with respect to the
Master Servicer; or
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(4) any limitation, suspension or termination by the
Department of Education or the Department of HHS of the Master
Servicer's eligibility to service Student Loans which
materially and adversely affects the Master Servicer's ability
to service the Financed Student Loans;
then, and in each and every case, so long as the Master Servicer
Default shall not have been remedied, the Indenture Trustee or the
holders of Directing Notes evidencing not less than 25% of the
Outstanding Amount of the Directing Notes, by notice then given in
writing to the Master Servicer (and to the Indenture Trustee and the
Eligible Lender Trustee if given by the Noteholders) may terminate all
the rights and obligations (other than the obligations set forth in
Section 6.3 hereof) of the Master Servicer under this Agreement. On or
after the receipt by the Master Servicer of such written notice, all
authority and power of the Master Servicer under this Agreement,
whether with respect to the Notes, the Certificates or the Financed
Student Loans or otherwise, shall, without further action, pass to and
be vested in the Indenture Trustee or such successor Master Servicer as
may be appointed under Section 8.2, and, without limitation, the
Indenture Trustee and the Eligible Lender Trustee are hereby authorized
and empowered to execute and deliver, for the benefit of the
predecessor Master Servicer, as attorney-in-fact or otherwise, any and
all documents and other instruments, and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement
of the Financed Student Loans and related documents, or otherwise. The
predecessor Master Servicer shall cooperate with the successor Master
Servicer, the Indenture Trustee and the Eligible Lender Trustee in
effecting the termination of the responsibilities and rights of the
predecessor Master Servicer under this Agreement, including the
transfer to the successor Master Servicer for administration by it of
all cash amounts that shall at the time be held by the predecessor
Master Servicer for deposit, or shall thereafter be received by it with
respect to a Financed Student Loan. All reasonable costs and expenses
(including attorneys' fees) incurred in connection with transferring
the Financed Student Loan Files from a current Master Servicer to the
successor Master Servicer and amending this Agreement and any other
Basic Documents to reflect such succession as Master Servicer pursuant
to this Section shall be paid by the predecessor Master Servicer upon
presentation of reasonable documentation of such costs and expenses.
Upon receipt of notice of the occurrence of a Master Servicer Default,
the Eligible Lender Trustee shall give notice thereof to the Rating
Agencies.
Notwithstanding the termination of the Master Servicer and the
engagement of a successor Master Servicer, each Servicer shall continue
to serve in its capacity as Servicer or subservicer, unless it is in
breach of the related Servicing or Subservicing Agreement.
(b) Administrator Default. If any one of the following events
(an "Administrator Default") shall occur and be continuing:
(1) any failure by the Administrator to direct the
Indenture Trustee or the Eligible Lender Trustee, as
applicable, to make any required distributions from any of the
Trust Accounts, which failure continues unremedied for three
Business Days after written notice of such failure is received
by the Administrator from the Indenture Trustee or the
Eligible Lender Trustee or after discovery of such failure by
an officer of the Administrator; or
(2) any failure by the Administrator duly to observe
or to perform in any material respect any other covenants or
agreements of the Administrator set forth in this Agreement,
the Administration Agreement or any other Basic Document,
which failure shall (i) materially and adversely affect the
rights of Noteholders and (ii) continue unremedied for a
period of 60 days after the date on which written notice of
such failure, requiring the same to be remedied, shall have
been given (A) to the Administrator by the Indenture Trustee
or the Eligible Lender Trustee or (B) to the Administrator and
to the Indenture Trustee and the Eligible Lender Trustee by
the holders of Directing Notes representing not less than 25%
of the Outstanding Amount of the Directing Notes;
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(3) an Insolvency Event occurs with respect to the
Administrator;
then, and in each and every case, so long as the Administrator Default shall not
have been remedied, the Indenture Trustee or the holders of Directing Notes
evidencing not less than 25% of the Outstanding Amount of the Directing Notes,
by notice then given in writing to the Administrator (and to the Indenture
Trustee and the Eligible Lender Trustee if given by the Noteholders) may
terminate all the rights and obligations (other than the obligations set forth
in Sections 6.3 and 7.2 hereof) of the Administrator under this Agreement and
the Administration Agreement. On or after the receipt by the Administrator of
such written notice, all authority and power of the Administrator under this
Agreement and the Administration Agreement, whether with respect to the Notes,
the Certificates or the Financed Student Loans or otherwise, shall, without
further action, pass to and be vested in the Indenture Trustee or such successor
Administrator as may be appointed under Section 8.2; and, without limitation,
the Indenture Trustee and the Eligible Lender Trustee are hereby authorized and
empowered to execute and deliver, for the benefit of the predecessor
Administrator, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination. The
predecessor Administrator shall cooperate with the successor Administrator, the
Indenture Trustee and the Eligible Lender Trustee in effecting the termination
of the responsibilities and rights of the predecessor Administrator under this
Agreement and the Administration Agreement. All reasonable costs and expenses
(including attorneys' fees) incurred in connection with amending this Agreement
and the Administration Agreement to reflect such succession as Administrator
pursuant to this Section shall be paid by the predecessor Administrator upon
presentation of reasonable documentation of such costs and expenses. Upon
receipt of notice of the occurrence of an Administrator Default, the Eligible
Lender Trustee shall give notice thereof to the Rating Agencies.
SECTION 8.2. Appointment of Successor.
(a) Upon receipt by the Master Servicer or the Administrator,
as the case may be, of notice of termination pursuant to Section 8.1,
or the resignation by the Master Servicer or the Administrator, as the
case may be, in accordance with the terms of this Agreement, the
predecessor Master Servicer or the Administrator, as the case may be,
shall continue to perform its functions as Master Servicer or
Administrator, as the case may be, under this Agreement and the
Administration Agreement, as the case may be, in the case of
termination, only until the date specified in such termination notice
or, if no such date is specified in a notice of termination, until
receipt of such notice and, in the case of resignation, until the later
of (x) the date 120 days from the delivery to the Eligible Lender
Trustee and the Indenture Trustee of written notice of such resignation
(or written confirmation of such notice) in accordance with the terms
of this Agreement and (y) the date upon which the predecessor Master
Servicer or Administrator, as the case may be, shall become unable to
act as Master Servicer or Administrator, as the case may be, as
specified in the notice of resignation and accompanying Opinion of
Counsel. In the event of the termination hereunder of the Master
Servicer or the Administrator, as the case may be, the Issuer shall
appoint a successor Master Servicer or Administrator, as the case may
be, acceptable to the Indenture Trustee, and the successor Master
Servicer or Administrator, as the case may be, shall accept its
appointment by a written assumption in form acceptable to the Indenture
Trustee. If a successor Master Servicer or Administrator, as the case
may be, has not been appointed at the time when the predecessor Master
Servicer or Administrator, as the case may be, has ceased to act as
Master Servicer or Administrator, as the case may be, in accordance
with this Section, the Indenture Trustee without further action shall
automatically be appointed the successor Master Servicer or
Administrator, as the case may be, and the Indenture Trustee shall be
entitled to the Master Servicing Fee or the Administration Fee, as the
case may be in accordance with the provisions of the Basic Documents.
Notwithstanding the above, the Indenture Trustee shall, if it shall be
unwilling or legally unable so to act, appoint or petition a court of
competent jurisdiction to appoint, any established institution whose
regular business shall include the servicing of student loans, as the
successor to the Master Servicer or Administrator, as the case may be,
under this Agreement; provided, however, that such right to appoint or
to petition for the appointment of any such successor servicer 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.
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(b) Upon appointment, the successor Master Servicer or
Administrator, as the case may be (including the Indenture Trustee
acting as successor Master Servicer or Administrator as the case may
be), shall be the successor in all respects to the predecessor Master
Servicer or Administrator, as the case may be, and shall be subject to
all the responsibilities, duties and liabilities arising thereafter
relating thereto placed on the predecessor Master Servicer or
Administrator, as the case may be, and shall be entitled to an amount
agreed to by such successor Master Servicer or Administrator as the
case may be, in accordance with the provisions of the Basic Documents
(which shall not exceed the Master Servicing Fee or Administration Fee,
as the case may be, unless such compensation arrangements will not
result in a downgrading of the Notes by any Rating Agency) and all the
rights granted to the predecessor Master Servicer or Administrator, as
the case may be, by the terms and provisions of this Agreement.
(c) Neither the Master Servicer nor the Administrator may
resign unless it is prohibited from serving as such by law as evidenced
by an Opinion of Counsel to such effect delivered to the Indenture
Trustee and the Eligible Lender Trustee. Notwithstanding the foregoing
or anything to the contrary herein or in the other Basic Documents, the
Indenture Trustee, to the extent it is acting as successor Master
Servicer or Administrator, as the case may be, pursuant hereto shall be
entitled to resign to the extent a qualified successor Master Servicer
or Administrator, as the case may be, has been appointed and has
assumed all the obligations of the Master Servicer or Administrator, as
the case may be, in accordance with the terms of this Agreement and the
other Basic Documents.
(d) Any successor Master Servicer shall assume all the
obligations and responsibilities of the Master Servicer under each
Subservicing Agreement with a Servicer and shall only be able to modify
or terminate such Subservicing Agreements pursuant to the provisions
thereof.
SECTION 8.3. Notification to Noteholders and Certificateholders. Upon
any termination of, or appointment of a successor to, the Master Servicer or
Administrator, as the case may be, pursuant to this Article VIII, the Eligible
Lender Trustee shall give prompt written notice thereof to Certificateholders
and the Indenture Trustee shall give prompt written notice thereof to
Noteholders and the Rating Agencies (which, in the case of any such appointment
of a successor, shall consist of prior written notice thereof to the Rating
Agencies).
SECTION 8.4. Waiver of Past Defaults. The holders of Directing Notes
evidencing not less than a majority of the Outstanding Amount of the Directing
Notes may, on behalf of all Noteholders and Certificateholders, waive in writing
any default by the Master Servicer or Administrator, as the case may be, in the
performance of its obligations hereunder and any consequences thereof, except a
default in making any required payments from any of the Trust Accounts (or
giving instructions regarding the same) in accordance with this Agreement. Upon
any such waiver of a past default, such default shall cease to exist, and any
Master Servicer Default or Administrator Default, as the case may be, arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereto.
ARTICLE IX
Termination
SECTION 9.1. Termination.
(a) Optional Purchase of All Financed Student Loans. As of the
last day of any Collection Period immediately preceding a Quarterly
Distribution Date as of which the then outstanding Pool Balance is 10%
or less of the Initial Pool Balance, the Transferor shall have the
option to purchase the Indenture Trust Estate, other than the Trust
Accounts. To exercise such option, the Transferor shall deposit
pursuant to Section 5.4 in the Collection Account an amount equal to
the aggregate Purchase Amount for the Financed Student Loans and the
related rights with respect thereto, plus the appraised value of any
such other
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property held by the Trust, such value to be determined by an appraiser
mutually agreed upon by the Transferor, the Eligible Lender Trustee and
the Indenture Trustee, and shall succeed to all interests in and to the
Trust; provided, however, that the Transferor may not effect such
purchase if the aggregate Purchase Amount to be so deposited in the
Collection Account does not equal or exceed an amount equal to the sum
of (x) the unpaid principal balance of the Notes plus accrued and
unpaid interest thereon at the related Class Interest Rate to the last
day of the Collection Period during which such purchase occurs and (y)
the unpaid Transaction Fees, if any.
(b) Auction of Financed Student Loans. Any Financed Student
Loans remaining in the Trust as of February 28, 2007 will be offered
for sale by the Indenture Trustee on or prior to the April 2007
Distribution Date if the then outstanding Pool Balance is 10% or less
of the Initial Pool Balance. The Transferor, its Affiliates and
unrelated third parties may offer bids to purchase such Financed
Student Loans on or prior to such Distribution Date. If PHEAA is a
Servicer of the Financed Student Loans at such time, the Indenture
Trustee shall notify PHEAA of the auction and invite PHEAA to submit a
bid. If at least two bids are received, the Indenture Trustee will
accept the highest bid equal to or in excess of the greater of (x) the
aggregate Purchase Amounts of such Financed Student Loans as of the end
of the Collection Period immediately preceding such Distribution Date
or (y) an amount that would be sufficient to (i) reduce the outstanding
principal amount of the Notes on such Distribution Date to zero and
(ii) pay to the Noteholders the Noteholders' Interest Distribution
Amount payable on such Distribution Date (the "Minimum Purchase
Price"). If at least two bids are not received or the highest bid is
not equal to or in excess of the Minimum Purchase Price, the Indenture
Trustee will not consummate such sale. The proceeds of any such sale
will be used to redeem any outstanding Notes on such Distribution Date.
The proceeds of any sale will be applied in the order and priority set
forth in 5.4(b) of the Indenture. If the sale is not consummated in
accordance with the foregoing, the Indenture Trustee may, but shall not
be under any obligation to, solicit bids to purchase the Financed
Student Loans on future Distribution Dates upon terms similar to those
described above.
(c) Insolvency of Transferor . Upon any sale of the assets of
the Trust pursuant to Section [[9.2]] of the Trust Agreement, the
Master Servicer shall instruct the Indenture Trustee to deposit the net
proceeds from such sale after all payments and reserves therefrom
(including the expenses of such sale) have been made (the "Insolvency
Proceeds") in the Collection Account. On the applicable Distribution
Date, or, if such proceeds are not so deposited on a Distribution Date,
on the first Distribution Date following the date on which the
Insolvency Proceeds are deposited in the Collection Account, the Master
Servicer shall instruct the Indenture Trustee to make the following
distributions (after the application on such Distribution Date of the
amount of Available Funds and amounts on deposit in the Reserve Account
pursuant to Sections 5.5 (other than pursuant to Section 5.5(a) (ii))
and 5.6) from the Insolvency Proceeds and any funds remaining on
deposit in the Reserve Account (including the proceeds of any sale of
investments therein as described in the following sentence):
(i) to the Department of Education, the Indenture
Trustee, the Delaware Trustee and the Eligible Lender Trustee,
any unpaid Consolidation Loan Fees, Indenture Trustee Fees,
Delaware Trustee Fees and Eligible Lender Trustee Fees,
respectively, and other amounts owed the Indenture Trustee,
the Delaware Trustee or the Eligible Lender Trustee hereunder
or under any other Basic Document and not otherwise paid on
such Distribution Date;
(ii) to each Class of Class A Noteholders, pro rata
based upon the portion thereof allocable to each such Class,
any portion of the Noteholders' Interest Distribution Amount
applicable to the Class A Noteholders not otherwise
distributed to such Class A Noteholders on such Distribution
Date;
(iii) to each Class of Class A Noteholders, pro rata
based upon the Outstanding Amount of such Class (after giving
effect to the reduction in the Outstanding Amount of such
Class
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resulting from the distributions to such Class on such
Distribution Date and on prior Distribution Dates) until the
Outstanding Amount of each Class of Class A Notes has been
reduced to zero;
(iv) to the Class B Noteholders, any portion of the
Noteholders' Interest Distribution Amount applicable to the
Class B Noteholders not otherwise distributed to the Class B
Noteholders on such Distribution Date;
(v) after the Outstanding Amount of the Class A Notes
has been reduced to zero, to the Class B Noteholders, the
Outstanding Amount of the Class B Notes (after giving effect
to the reduction in the Outstanding Amount of the Notes
resulting from the distributions to Noteholders on such
Distribution Date and on prior Distribution Dates);
(vi) to the Master Servicer, any unpaid Servicing Fee
and other amounts owed to the Master Servicer hereunder or
under any other Basic Document and not otherwise paid on such
Distribution Date;
(vii) to the Class A-1 Noteholders and the Class A-2
Noteholders, any portion of the Noteholders' Interest
Carryover applicable to any such Class, pro rata based upon
the portion thereof allocable to each such Class not otherwise
distributed to the Class A Noteholders on such Distribution
Date;
(viii) to the Class B Noteholders, any portion of the
Noteholders' Interest Carryover applicable to the Class B
Noteholders not otherwise distributed to the Class B
Noteholders on such Distribution Date;
(ix) to the Certificateholders, any portion of the
Certificateholders' Interest Distribution amount not otherwise
distributed to the Certificateholders on such Distribution
Date; and
(x) to the Certificateholders, the Certificate
Balance (after giving effect to the reduction in the
Certificate Balance to result from the distributions to
Certificateholders on such Distribution Date).
Any investments on deposit in the Reserve Account which will not mature
on or before the Distribution Date when needed shall be sold by the
Indenture Trustee at such time as will result in the Indenture Trustee
receiving the proceeds from such sale not later than the Business Day
preceding such Distribution Date. Any Insolvency Proceeds remaining
after the deposits described above shall be paid to the Transferor.
(d) Notice. Notice of any termination of the Trust shall be
given by the Administrator to the Master Servicer, the Eligible Lender
Trustee, the Indenture Trustee and the Rating Agencies as soon as
practicable after the Administrator has received notice thereof.
(e) Succession. Following the satisfaction and discharge of
the Indenture and the payment in full of the principal of and interest
on the Notes, the Certificateholders will succeed to the rights of the
Noteholders hereunder other than Section 5.6(b) and the Eligible Lender
Trustee will succeed to the rights of, and assume the obligations of,
the Indenture Trustee pursuant to this Agreement and any other Basic
Documents.
ARTICLE X
[Reserved]
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ARTICLE XI
Miscellaneous
SECTION 11.1. Amendment.
(a) This Agreement may be amended by the Transferor, the
Master Servicer and the Eligible Lender Trustee, with the prior consent
of the Indenture Trustee (which consent shall not be unreasonably
withheld) to cure any ambiguity, to correct or supplement any
provisions in this Agreement or for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions in this Agreement or of modifying in any manner the rights
of the Noteholders or the Certificateholders; provided, however, that
such action shall not, as evidenced by an Opinion of Counsel delivered
to the Eligible Lender Trustee and the Indenture Trustee, adversely
affect in any material respect the interests of any Noteholder.
(b) This Agreement may also be amended from time to time by
the Transferor, the Master Servicer and the Eligible Lender Trustee,
with the prior consent of the Indenture Trustee and the consent of the
holders of Directing Notes evidencing not less than a majority of the
Outstanding Amount of the Directing Notes, for the purpose of adding
any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights
of the Noteholders or the Certificateholders; provided, however, that
no such amendment shall (i) increase or reduce in any manner the amount
of, or accelerate or delay the timing of, collections of payments with
respect to Financed Student Loans or distributions that shall be
required to be made for the benefit of the Noteholders or the
Certificateholders or (ii) reduce the aforesaid percentage of the
Outstanding Amount of the Notes and the Certificate Balance, the
Noteholders and the Certificateholders of which are required to consent
to any such amendment, without the consent of all outstanding
Noteholders and Certificateholders affected thereby.
(c) Promptly after the execution of any amendment pursuant to
clause (ii) above, the Eligible Lender Trustee shall furnish written
notification of the substance of such amendment or consent to each
Certificateholder and the Indenture Trustee.
(d) It shall not be necessary for the consent of
Certificateholders or Noteholders pursuant to this Section to approve
the particular form of any proposed amendment or consent, but it shall
be sufficient if such consent shall approve the substance thereof.
(e) Prior to the execution of any amendment to this Agreement,
the Eligible Lender Trustee and the Indenture Trustee shall be entitled
to receive and rely upon an Opinion of Counsel stating that the
execution of such amendment is authorized or permitted by this
Agreement and the Opinion of Counsel referred to in Section 11.2(i)(l).
The Eligible Lender Trustee and the Indenture Trustee may, but shall
not be obligated to, enter into any such amendment which affects the
Eligible Lender Trustee's or the Indenture Trustee's, as applicable,
own rights, duties or immunities under this Agreement or otherwise.
Notwithstanding anything to the contrary contained in this Section
11.1, neither this Agreement nor the Indenture may be amended unless such
amendment satisfies the Rating Agency Condition.
SECTION 11.2. Protection of Interests in Trust.
(a) The Transferor shall execute and file such financing
statements and cause to be executed and filed such continuation
statements, all in such manner and in such places as may be required by
law fully to preserve, maintain, and protect the interest of the
Issuer, the Eligible Lender Trustee and the Indenture
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Trustee in the Financed Student Loans and in the proceeds thereof. The
Transferor shall deliver (or cause to be delivered) to the Eligible
Lender Trustee and the Indenture Trustee file-stamped copies of, or
filing receipts for, any document filed as provided above, as soon as
available following such filing.
(b) Neither the Transferor nor the Master Servicer shall
change its name, identity or corporate structure in any manner that
would, could or might make any financing statement or continuation
statement filed in accordance with paragraph (a) above seriously
misleading within the meaning of ss. 9-402(7) of the UCC, unless it
shall have given the Eligible Lender Trustee and the Indenture Trustee
at least five days' prior written notice thereof and shall have
promptly filed appropriate amendments to all previously filed financing
statements or continuation statements.
(c) Each of the Transferor and the Master Servicer shall have
an obligation to give the Eligible Lender Trustee and the Indenture
Trustee at least 30 days' prior written notice of any relocation of its
principal executive office if, as a result of such relocation, the
applicable provisions of the UCC would require the filing of any
amendment of any previously filed financing or continuation statement
or of any new financing statement and shall promptly file any such
amendment. The Master Servicer shall at all times maintain each office
from which it shall service Financed Student Loans, and its principal
executive office, within the United States of America.
(d) The Master Servicer shall maintain, or cause the Servicers
to maintain, accounts and records as to each Financed Student Loan for
which it is the Primary Servicer (or provide access to such accounts
and records being serviced by a Servicer) accurately and in sufficient
detail to permit (i) the reader thereof to know at any time the status
of such Financed Student Loan, including payments and recoveries made
and payments owing (and the nature of each) and (ii) reconciliation
between payments or recoveries on (or with respect to) each Financed
Student Loan and the amounts from time to time deposited in the
Collection Account in respect of such Financed Student Loan.
(e) The Master Servicer shall cause each Subcustodian to
maintain its computer systems so that, from and after the time of
transfer under this Agreement of the Financed Student Loans, each
Subcustodian's master computer records (including any backup archives)
that refer to a Financed Student Loan shall indicate clearly the
interest of the Issuer and the Indenture Trustee in such Financed
Student Loan and that such Financed Student Loan has been assigned by
the Transferor to the Issuer and has been pledged to the Indenture
Trustee. Indication of the Issuer's and the Indenture Trustee's
interest in a Financed Student Loan shall be deleted from or modified
on the applicable Subcustodian's computer systems when, and only when,
the related Financed Student Loan shall have been paid in full or
repurchased.
(f) If at any time the Transferor shall propose to contribute,
grant a security interest in, or otherwise transfer any interest in
Financed Student Loans to any prospective purchaser, lender or other
transferee, the Master Servicer shall give notice to such prospective
purchaser, lender or other transferee that such Financed Student Loan
has been assigned to the Issuer and has been pledged to the Indenture
Trustee.
(g) Upon reasonable notice, the Master Servicer shall permit
the Indenture Trustee and its agents once each calendar year (unless
there is a Servicer Default, in which case at any time) during normal
business hours to inspect, audit and make copies of and abstracts from
the Master Servicer's records regarding any Financed Student Loan.
(h) Upon request at any time the Eligible Lender Trustee or
the Indenture Trustee shall have reasonable grounds to believe that
such request would be necessary in connection with its performance of
its duties under the Basic Documents, the Master Servicer shall furnish
to the Eligible Lender Trustee or to the Indenture Trustee, within
twenty Business Days following the receipt by the Master Servicer and
the
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Servicer of such a request, a list of all Financed Student Loans (by
borrower social security number and date of issuance) then held as part
of the Trust, and a comparison of such list to the list of the Initial
Financed Student Loans set forth in Schedule A as of the Closing Date,
and, for each Financed Student Loan that has been added to or removed
from the pool of loans held by the Eligible Lender Trustee on behalf of
the Issuer, information as to the date as of which and circumstances
under which each such Financed Student Loan was so added or removed.
(i) The Transferor shall deliver to the Eligible Lender
Trustee and the Indenture Trustee:
(l) promptly after the execution and delivery of this
Agreement and of each amendment thereto an Opinion of Counsel
either (A) stating that, in the opinion of such counsel, all
financing statements and continuation statements have been
executed and filed that are necessary to preserve and perfect
the interest of the Eligible Lender Trustee and the Indenture
Trustee in the Financed Student Loans, and reciting the
details of such filings or referring to prior Opinions of
Counsel in which such details are given, or (B) stating that,
in the opinion of such counsel, no such action shall be
necessary to preserve and maintain such interest; and
(2) within 120 days after the beginning of each
calendar year beginning with the first calendar year beginning
more than three months after the Closing Date, an Opinion of
Counsel, dated as of a date during such 120-day period, either
(A) stating that, in the opinion of such counsel, all
financing statements and continuation statements have been
executed and filed that are necessary to preserve and perfect
the interest of the Eligible Lender Trustee and the Indenture
Trustee in the Financed Student Loans, and reciting the
details of such filings or referring to prior Opinions of
Counsel in which such details are given, or (B) stating that,
in the opinion of such counsel, no such action shall be
necessary to preserve and maintain such interest; provided
that a single Opinion of Counsel may be delivered in
satisfaction of the foregoing requirement and that of Section
3.6 of the Indenture.
Each Opinion of Counsel referred to in clause (l) or (2) above
shall specify (as of the date of such opinion and given all applicable
laws as in effect on such date) any action necessary to be taken in the
following year to preserve and protect such interest.
(j) The Administrator shall file all reports with respect to
the Notes and the Certificates as may be required by the Commission or
state securities authorities.
SECTION 11.3. Notices. All demands, notices and communications upon or
to the Transferor, the Master Servicer, the Administrator, the Eligible Lender
Trustee or the Indenture Trustee under this Agreement shall be in writing,
personally delivered or mailed by certified mail or overnight courier, return
receipt requested or overnight courier (or in the form of telex or facsimile
notice, followed by written notice delivered as aforesaid) and shall be deemed
to have been duly given upon receipt (a) in the case of the Transferor, the
Master Servicer or Administrator, two copies, one to Crestar Bank, 919 East Main
Street, Richmond, Virginia 23219, Attention: Marke A. Thomas, Vice President -
Securitizations Manager; facsimile: (804) 782-7155, with a copy to Crestar Bank,
919 East Main Street, Richmond, Virginia 23219, Attention: Linda Rigsby, Senior
Vice President and General Counsel; facsimile (804) 782-7244; (b) in the case of
the Issuer or the Eligible Lender Trustee, at the Corporate Trust Office of the
Eligible Lender Trustee, (c) in the case of the Indenture Trustee, at its
Corporate Trust Office; (d) in the case of Moody's, to Moody's Investors
Service, Inc., 99 Church Street, New York, New York 10007, Attention: Structured
Finance Department / Student Loans (telephone: (212) 553 0300; facsimile: (212)
553 4792), (e) in the case of Standard & Poor's, to Standard & Poor's Ratings
Service, 25 Broadway (20th Floor), New York, New York 10004, Attention: Asset
Backed Surveillance Department (telephone: (212) 208 8000; facsimile: (212) 412
0225), or, as to each of the foregoing, at such other address as shall be
designated by written notice to the other parties.
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SECTION 11.4. Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Section 4.12 and in Section 6.5 and as
provided in the provisions of this Agreement concerning the resignation of the
Master Servicer, this Agreement may not be assigned by the Transferor or the
Master Servicer. This Agreement may only be assigned by the Eligible Lender
Trustee to its permitted successor pursuant to the Trust Agreement.
SECTION 11.5. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Transferor, the Master Servicer, the
Issuer and the Eligible Lender Trustee and for the benefit of the
Certificateholders, the Indenture Trustee, the Delaware Trustee and the
Noteholders as third party beneficiaries, and nothing in this Agreement, whether
express or implied, shall be construed to give to any other Person any legal or
equitable right, remedy or claim in the Trust Estate or under or in respect of
this Agreement or any covenants, conditions or provisions contained herein.
SECTION 11.6. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 11.7. Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.8. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 11.9. Governing Law. This Agreement 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 shall be determined in accordance with such laws.
SECTION 11.10. Assignment to Indenture Trustee. The Transferor hereby
acknowledges and consents to any mortgage, pledge, assignment and grant by the
Issuer to the Indenture Trustee pursuant to the Indenture for the benefit of the
Noteholders of a security interest in all right, title and interest of the
Issuer in, to and under the Financed Student Loans and/or the assignment of any
or all of the Issuer's rights and obligations hereunder to the Indenture
Trustee.
SECTION 11.11. Nonpetition Covenants. Notwithstanding any prior
termination of this Agreement, the Master Servicer, the Administrator and the
Transferor shall not, prior to the date that is one year after the termination
of this Agreement, with respect to the Issuer acquiesce, petition or otherwise
invoke or cause the Issuer to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the Issuer
under any federal or State bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Issuer or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Issuer.
SECTION 11.12. Limitation of Liability of Eligible Lender Trustee,
Indenture Trustee and Delaware Trustee.
(a) Notwithstanding anything contained herein to the contrary,
this Agreement has been signed by Star Bank, National Association not
in its individual capacity but solely in its capacity as Eligible
Lender Trustee of the Issuer and in no event shall Star Bank, National
Association in its individual capacity or as beneficial owner of the
Issuer have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder or
in any of the certificates, notices or agreements delivered pursuant
hereto as to all of which recourse shall be had solely to the assets of
the Issuer.
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Notwithstanding any provision in this Agreement or the Basic
Documents, nothing in such Agreement and Basic Documents shall be
construed to limit the Eligible Lender Trustee's responsibility to (i)
the U.S. Secretary of Education or a Guarantor in its capacity as
Eligible Lender Trustee for any violations of statutory or regulatory
requirements that may occur with respect to loans held in the Trust,
pursuant to 34 CFR 682.203(b) or any successor provision thereto, or
(ii) the Department of HHS in its capacity as Eligible Lender Trustee
for any violations of statutory or regulatory requirements that may
occur with respect to loans held in the Trust, pursuant to the HEAL
Act.
(b) Notwithstanding anything contained herein to the contrary,
this Agreement has been accepted by Bankers Trust Company not in its
individual capacity but solely as Indenture Trustee and in no event
shall Bankers Trust Company have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer
hereunder or in any of the certificates, notices or agreements
delivered pursuant hereto, as to all of which recourse shall be had
solely to the assets of the Issuer.
(c) In no event shall the Delaware Trustee have any liability
for the representations, warranties, covenants, agreements or other
obligations of the Issuer hereunder or in any of the certificates,
notices or agreements delivered pursuant hereto, as to all of which
recourse shall be had solely to the assets of the Issuer.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers as of the day and
year first above written.
CRESTAR STUDENT LOAN TRUST 1997-1
By: STAR BANK, NATIONAL ASSOCIATION, not in
its individual capacity but solely as
Eligible Lender Trustee on behalf of
the Trust
By:_________________________________
Name:
Title:
CRESTAR BANK
Transferor, Master Servicer and Administrator
By:_________________________________
Name:
Title:
Acknowledged and accepted as of the day and year first above written:
BANKERS TRUST COMPANY, not
in its individual capacity
but solely as Indenture Trustee
By:____________________________________
Name: [________]
Title: Vice President
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APPENDIX A
TO THE
TRANSFER AND SERVICING AGREEMENT
DEFINITIONS AND USAGE
Usage
The following rules of construction and usage shall be applicable to
any instrument that is governed by this Appendix:
(a) All terms defined in this Appendix shall have the defined meanings
when used in any instrument governed hereby and in any certificate or other
document made or delivered pursuant thereto unless otherwise defined therein.
(b) As used herein, in any instrument governed hereby and in any
certificate or other document made or delivered pursuant thereto, accounting
terms not defined in this Appendix or in any such instrument, certificate or
other document, and accounting terms partly defined in this Appendix or in any
such instrument, certificate or other document to the extent not defined, shall
have the respective meanings given to them under generally accepted accounting
principles as in effect on the date of such instrument. To the extent that the
definitions of accounting terms in this Appendix or in any such instrument,
certificate or other document are inconsistent with the meanings of such terms
under generally accepted accounting principles, the definitions contained in
this Appendix or in any such instrument, certificate or other document shall
control.
(c) The words "hereof", "herein", "hereunder" and words of similar
import when used in an instrument refer to such instrument as a whole and not to
any particular provision or subdivision thereof; references in an instrument to
"Article", "Section" or another subdivision or to an attachment are, unless the
context otherwise requires, to an article, section or subdivision of or an
attachment to such instrument; and the term "including" means "including without
limitation".
(d) The definitions contained in this Appendix are equally applicable
to both the singular and plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to below
or in any agreement or instrument that is governed by this Appendix means such
agreement or instrument or statute as from time to time amended, modified or
supplemented, including (in the case of agreements or instruments) by waiver or
consent and (in the case of statutes) by succession of comparable successor
statutes and includes (in the case of agreements or instruments) references to
all attachments thereto and instruments incorporated therein. References to a
Person are also to its permitted successors and assigns.
Definitions
"Act" has the meaning specified in Section 11.3(a) of the Indenture.
"Additional Financed HEAL Loan File" has the meaning set forth in
section 3.3 of the Transfer and Servicing Agreement.
"Adjustment Payments" has the meaning set forth in Section 2.3(d) of
the Transfer and Servicing Agreement.
"Administration Agreement" means the Administration Agreement dated as
of [_______] 1997, among the Issuer, the Indenture Trustee and the
Administrator, as amended from time to time.
<PAGE>
"Administration Fee" has the meaning specified in Section 3 of the
Administration Agreement.
"Administrator" means Crestar Bank, in its capacity as administrator of
the Issuer and the Financed Student Loans, or any successor as Administrator
under the Transfer and Servicing Agreement.
"Administrator Default" has the meaning specified in Section 8.1(b) of
the Transfer and Servicing Agreement.
"Administrator's Certificate" means an Officer's Certificate of the
Administrator delivered pursuant to Section 4.7 of the Transfer and Servicing
Agreement, substantially in the form of Exhibit C thereto and as the
Administrator and the Indenture Trustee may agree.
"Affiliate" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Authenticating Agent" means the Person appointed by the Indenture
Trustee at the request of the Issuer as Authenticating Agent for the Notes
pursuant to Section [[2.3(8)]] of the Indenture, and any successor
Authenticating Agent for the Notes.
"Authorized Officer" means (i) with respect to the Issuer, any officer
of the Eligible Lender Trustee who is authorized to act for the Eligible Lender
Trustee in matters relating to the Issuer pursuant to the Basic Documents and
who is identified on the list of Authorized Officers delivered by the Eligible
Lender Trustee to the Indenture Trustee on the Closing Date (as such list may be
modified or supplemented from time to time thereafter), (ii) with respect to the
Administrator, any officer of the Administrator who is authorized to act for the
Administrator in matters relating to itself or to the Issuer and to be acted
upon by the Administrator pursuant to the Basic Documents and who is identified
on the list of Authorized Officers delivered by the Administrator to the
Indenture Trustee on the Closing Date (as such list may be modified or
supplemented from time to time thereafter), (iii) with respect to the
Transferor, any officer of the Transferor who is authorized to act for the
Transferor in matters relating to or to be acted upon by the Transferor pursuant
to the Basic Documents and who is identified on the list of Authorized Officers
delivered by the Transferor to the Indenture Trustee on the Closing Date (as
such list may be modified or supplemented from time to time thereafter) and (iv)
with respect to a Servicer, any officer of such Servicer who is authorized to
act for such Servicer in matters relating to or to be acted upon by such
Servicer pursuant to the Basic Documents and who is identified on the list of
Authorized officers delivered by such Servicer to the Indenture Trustee, or the
Closing Date (as such list may be modified or supplemented from time to time
thereafter).
"Available Funds" means, with respect to any Collection Period, the
excess of (A) the sum, without duplication, of the following amounts with
respect to such Collection Period: (i) all collections received by the Master
Servicer or any Servicer on the Financed Student Loans (including any Guarantee
Payments and Insurance Payments received with respect to the Financed Student
Loans) during such Collection Period; (ii) any payments, including without
limitation Interest Subsidy Payments and Special Allowance Payments, received by
the Eligible Lender Trustee during such Collection Period with respect to
Financed Student Loans; (iii) all proceeds from any sales of Financed Student
Loans by the Trust during such Collection Period; (iv) any payments of or with
respect to interest received by the Master Servicer or a Servicer during such
Collection Period with respect to a Financed Student Loan for which a Realized
Loss was previously allocated; (v) the aggregate Purchase Amounts received for
those Financed Students Loans purchased by the Transferor or the Master Servicer
during the related Collection Period; (vi) the aggregate amounts, if any,
received from the Transferor or the Master Servicer as reimbursement of
non-guaranteed or uninsured interest amounts (which shall not include, with
respect to Financed FFELP Loans, the portion of such interest amounts (i.e., 2%)
for which the Guarantor did not have an obligation to make a Guarantee Payment),
or lost Interest Subsidy Payments and Special Allowance Payments, with respect
to the
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Financed Student Loans pursuant to Sections 3.2 or 4.5, respectively, of the
Transfer and Servicing Agreement (vii) all Adjustment Payments, if any, received
from the Transferor during such Collection Period and (viii) Investments
Earnings for such Collection Period over (B) the Issuer 2.3(b) Payments for such
Collection Period; provided, however, that Available Funds will exclude all
payments and proceeds of any Financed Student Loans the Purchase Amount of which
has been included in Available Funds for a prior Collection Period, which
payments and proceeds shall be paid to the Transferor, and amounts used to
reimburse the Master Servicer for Monthly Advances pursuant to Section 5.4 of
the Transfer and Servicing Agreement.
"Basic Documents" means the Trust Agreement, the Master Indenture, the
Terms Supplement, the Transfer and Servicing Agreement, the Administration
Agreement, the Note Depository Agreement, the Guarantee Agreements, the HEAL
Insurance Contract, the Underwriting Agreement and other documents and
certificates delivered in connection with any thereof and all amendments and
supplements thereto.
"Benefit Plan" means any employee benefit plan, retirement arrangement,
individual retirement account or Keogh Plan subject to either Title I of ERISA
or Section 4975 of the Code, or any entity (including an insurance company
general account) whose underlying assets include plan assets by reason of a
plan's investment in the entity.
"Book-Entry Note" means a beneficial interest in the Notes, ownership
and transfers of which shall be through book entries by a Securities Depository
as described in Section 2.14 of the Indenture.
"Business Day" means any day other than a Saturday, a Sunday or a day
on which national banking associations or banking institutions or trust
companies in New York, Ohio, Pennsylvania or Virginia are authorized or
obligated by law, regulation or executive order to remain closed.
"Certificate" means a certificate evidencing the beneficial interest of
a Certificateholder in the Trust, substantially in the form of Exhibit A to the
Trust Agreement.
"Certificate Balance" equals, initially, the Initial Certificate
Balance and, thereafter, equals the Initial Certificate Balance reduced by all
amounts previously distributed to Certificateholders as principal. In
determining whether the Certificateholders which hold Certificates representing
the requisite Certificate Balance have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or under any other Basic
Document, the Certificate Balance shall not include the principal balance of
Certificates owned by the Transferor or any Affiliate of the Transferor.
"Certificate Distribution Account" means the account designated as
such, established and maintained pursuant to Section 5.1 of the Transfer and
Servicing Agreement.
"Certificate Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 3.10 of the Trust Agreement, which shall initially
be the Eligible Lender Trustee.
"Certificate Initial Rate" means [_______]% per annum.
"Certificate Quarterly Advance Account" means the account designated as
such, established and maintained pursuant to Section 5.1 of the Transfer and
Servicing Agreement.
"Certificate Rate" means One-Month LIBOR plus 1.50% per annum.
"Certificate Register" and "Certificate Registrar" means the register
mentioned and the registrar appointed pursuant to Section 3.4 of the Trust
Agreement.
"Certificateholder" means a Person in whose name a Certificate is
registered in the Certificate Register.
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"Certificateholders' Distribution Amount" means, as to any Class of
Certificates, with respect to any Quarterly Distribution Date, the
Certificateholders' Interest Distribution Amount for such Quarterly Distribution
Date plus, for each Quarterly Distribution Date on and after which the Notes
have been paid in full, the Certificateholders' Principal Distribution Amount
for such Quarterly Distribution Date.
"Certificateholders' Interest Shortfall" means, as to any Class of
Certificates, with respect to any Quarterly Distribution Date, the excess, if
any, of (i) the sum of the related Certificateholders' Interest Distribution
Amount on the preceding Quarterly Distribution Date and any outstanding
Certificateholders' Interest Shortfall on such preceding Quarterly Distribution
Date over (ii) the amount of interest actually distributed to the
Certificateholders of such Class on such preceding Quarterly Distribution Date,
plus interest on the amount of such excess interest due to the
Certificateholders of such Class, to the extent permitted by law, at the related
Certificate Rate from such preceding Quarterly Distribution Date to the current
Quarterly Distribution Date.
"Certificateholders' Interest Distribution Amount" means, as to any
Class of Certificates, with respect to any Quarterly Distribution Date relating
to such Certificates, the sum of (i) the amount of interest accrued at One Month
LIBOR plus 1.50% per annum for each related Interest Period since the last
Quarterly Distribution Date (or, in the case of the first Quarterly Distribution
Date, the Closing Date) on the outstanding principal amount of such Certificates
on the immediately preceding Quarterly Distribution Date, after giving effect to
all distributions of principal to Certificateholders of such Class on such
Quarterly Distribution Date (or, in the case of the first Quarterly Distribution
Date, on the Closing Date) and (ii) the Certificateholders' Interest Carryover
Shortfall relating to such Certificates for such Quarterly Distribution Date.
"Certificateholders' Principal Carryover Shortfall" means, as of the
close of any Quarterly Distribution Date relating to a Class of Certificates on
or after which the Notes have been paid in full, the excess, if any, of (i) the
sum of the Certificateholders' Principal Distribution Amount on such Quarterly
Distribution Date and any outstanding Certificateholders' Principal Carryover
Shortfall for the preceding Quarterly Distribution Date over (ii) the amount of
principal actually distributed to the Certificateholders on such Quarterly
Distribution Date.
"Certificateholders' Principal Distribution Amount" means, on each
Quarterly Distribution Date occurring after the principal balance of each Class
of Notes has been paid in full, the sum of (i) the Principal Distribution Amount
for the three Collection Periods preceding such Quarterly Distribution Date, and
(ii) the Certificateholders' Principal Carryover Shortfall as of the close of
the preceding Quarterly Distribution Date; provided, however, that the
Certificateholders' Principal Distribution Amount will in no event exceed the
outstanding principal balance of the applicable class of Certificates. Further,
on the first Quarterly Distribution Date occurring on or after the Distribution
Date on which the principal balance of the last outstanding Class of Notes is
paid in full, the Certificateholders' Principal Distribution Amount also will
include the excess, if any, of the amount of principal available to be
distributed on such Distribution Date over the amount of principal paid on the
Notes on such date.
"Class" means any class of Notes.
"Class A Notes" means the Class A-1 Notes and the Class A-2 Notes.
"Class A-1 Notes" means Notes of the Issuer designated as "Crestar
Student Loan Trust 1997-1, Senior LIBOR Rate Class A-1 Student Loan Asset Backed
Notes."
"Class A-1 Noteholder" means any Noteholder of the Class A-1 Notes.
"Class A-2 Notes" means Notes of the Issuer designated as "Crestar
Student Loan Trust 1997-1, Senior LIBOR Rate Class A-2 Student Loan Asset Backed
Notes."
"Class A-2 Noteholder" means any Noteholder of the Class A-2 Notes.
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"Class B Notes" means Notes of the Issuer designated as "Crestar
Student Loan Trust 1997-1, Subordinate LIBOR Rate Class B Student Loan Asset
Backed Notes."
"Class B Noteholder" means any Noteholder of the Class B Notes.
"Class Initial Rate" means, with respect to any Class of Notes, the
rate identified as such in the Terms Supplement.
"Class Interest Rate" means, with respect to any Class of Notes, the
interest rate determined as set forth in the Terms Supplement.
"Closing Date" means [_______,] 1997.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and Treasury Regulations promulgated thereunder.
"Collection Account" means the account designated as such, established
and maintained pursuant to Section 5.1 of the Transfer and Servicing Agreement.
"Collection Period" means, initially, with respect to each of the
Initial Financed Student Loans, the period beginning on the day immediately
succeeding the Cut-off Date and ending on December 31, 1997, inclusive, and
thereafter, the Collection Period means the calendar month immediately following
the end of the previous Collection Period.
"Commission" means the Securities and Exchange Commission.
"Consolidation Loan" means a FFELP Loan designated as such, made by the
Transferor to an eligible borrower that represents the refinancing of student
loans to such borrower and his or her spouse in accordance with the applicable
terms and provisions of the Higher Education Act.
"Consolidation Loan Fees" means, as to any Collection Period, an amount
equal to 1.05% per annum of the outstanding principal balances of and accrued
interest on the Consolidation Loans owned by the Trust as of the last day of
such Collection Period.
"Consolidation Prepayments" means, on any Subsequent Finance Date, the
amount of principal then on deposit in the Collection Account representing
payments received as a result of Financed Student Loans being repaid with the
proceeds of Consolidation Loans or HEAL Consolidation Loans (provided, however,
if a Subsequent Finance Date occurs during the month of a Distribution Date,
Consolidation Prepayments shall not include amounts received during the month of
such Distribution Date).
"Corporate Trust Office" means (i) with respect to the Indenture
Trustee, the principal office of the Indenture Trustee at which at any
particular time its corporate trust business shall be administered, which office
on the Closing Date is located at Four Albany Street, New York, New York 10006
Attention: Corporate Trust and Agency Group, Structured Finance Group
(telephone: (212) 250- 6652; facsimile: (212) 250-6439) or at such other address
as the Indenture Trustee may designate from time to time by notice to the
Noteholders, the Certificateholder and the Transferor, or the principal
corporate trust office of any successor Indenture Trustee (the address of which
the successor Indenture Trustee will notify the Noteholders and the Transferor)
and (ii) with respect to the Eligible Lender Trustee, the principal corporate
trust office of the Eligible Lender Trustee located at 425 Walnut Street,
Cincinnati, Ohio 45201, Attention: Steve Blackstone, telephone: (513) 632-4622;
facsimile (513) 632-5511; or at such other address as the Eligible Lender
Trustee may designate by notice to the Certificateholders and the Transferor, or
the principal corporate trust office of any successor Eligible Lender Trustee
(the address of which the successor Eligible Lender Trustee will notify the
Certificateholders and the Transferor).
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"Crestar Subsidiary" has the meaning specified in Section 6.5 of the
Transfer and Servicing Agreement.
"Cut-off Date" means for the Financed Student Loans set forth on
Schedule A-1 to the Transfer and Servicing Agreement, the close of business on
[_______], 1997.
"Default" means any occurrence that is, or with notice or the lapse of
time or both would become, an Event of Default.
"Deferment Period" means certain deferment periods authorized by the
Higher Education Act and the HEAL Act during which the related borrower's
scheduled payments are deferred.
"Deferral Phase" means the period during which the related borrower is
in school and for certain authorized periods as described in the Higher
Education Act.
"Delaware Trustee" means Delaware Trust Capital Management, Inc., not
in its individual capacity but solely as the Delaware Trustee under the Trust
Agreement, and its successors and assigns in such capacity.
"Delaware Trustee Fee" has the meaning specified in Section [__] of the
Trust Agreement.
"Definitive Notes" has the meaning specified in Section 2.14 of the
Indenture.
"Delivery" when used with respect to Trust Account Property means:
(a) with respect to bankers' acceptances, commercial paper,
negotiable certificates of deposit and other obligations that
constitute "instruments" within the meaning of Section 9-105(l) (i) of
the UCC and are susceptible of physical delivery, transfer thereof to
the Indenture Trustee or its nominee or custodian by physical delivery
to the Indenture Trustee or its nominee or custodian endorsed to, or
registered in the name of, the Indenture Trustee or its nominee or
custodian or endorsed in blank, and, with respect to a certificated
security (as defined in Section 8-102 of the UCC) transfer thereof (i)
by delivery of such certificated security endorsed to, or registered in
the name of, the Indenture Trustee or its nominee or custodian or
endorsed in blank to a financial intermediary (as defined in Section
8-313) of the UCC) and the making by such financial intermediary of
entries on its books and records identifying such certificated
securities as belonging to the Indenture Trustee or its nominee or
custodian and the sending by such financial intermediary of a
confirmation of the purchase of such certificated security by the
Indenture Trustee or its nominee or custodian, or (ii) by delivery
thereof to a "clearing corporation" (as defined in Section 8-102(3) of
the UCC) and the making by such clearing corporation of appropriate
entries on its books reducing the appropriate securities account of the
transferor and increasing the appropriate securities account of a
financial intermediary by the amount of such certificated security, the
identification by the clearing corporation of the certificated
securities for the sole and exclusive account of the financial
intermediary, the maintenance of such certificated securities by such
clearing corporation or a "custodian bank" (as defined in Section
8-102(4) of the UCC) or the nominee of either subject to the clearing
corporation's exclusive control, the sending of a confirmation by the
financial intermediary of the purchase by the Indenture Trustee or its
nominee or custodian of such securities and the making by such
financial intermediary of entries on its books and records identifying
such certificated securities as belonging to the Indenture Trustee or
its nominee or custodian (all of the foregoing, "Physical Property"),
and, in any event, any such Physical Property in registered form shall
be in the name of the Indenture Trustee or its nominee or custodian;
and such additional or alternative procedures as may hereafter become
appropriate to effect the complete transfer of ownership of any such
Trust Account Property to the Indenture Trustee or its nominee or
custodian, consistent with changes in applicable law or regulations or
the interpretation thereof;
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(b) with respect to any securities issued by the U.S.
Treasury, the Federal Home Loan Mortgage Corporation or by the Federal
National Mortgage Association that is a book-entry security held
through the Federal Reserve System pursuant to federal book-entry
regulations, the following procedures, all in accordance with
applicable law, including applicable federal regulations and Articles 8
and 9 of the UCC: book-entry registration of such Trust Account
Property to an appropriate book-entry account maintained with a Federal
Reserve Bank by a financial intermediary which is also a "depository"
pursuant to applicable federal regulations and issuance by such
financial intermediary of a deposit advice or other written
confirmation of such book-entry registration to the Indenture Trustee
or its nominee or custodian of the purchase by the Indenture Trustee or
its nominee or custodian of such book-entry securities; the making by
such financial intermediary of entries in its books and records
identifying such book-entry security held through the Federal Reserve
System pursuant to federal book-entry regulations as belonging to the
Indenture Trustee or its nominee or custodian and indicating that such
custodian holds such Trust Account Property solely as agent for the
Indenture Trustee or its nominee or custodian; and such additional or
alternative procedures as may hereafter become appropriate to effect
complete transfer of ownership of any such Trust Account Property to
the Indenture Trustee or its nominee or custodian, consistent with
changes in applicable law or regulations or the interpretation thereof;
and
(c) with respect to any item of Trust Account Property that is
an uncertificated security under Article 8 of the UCC and that is not
governed by clause (b) above, registration on the books and records of
the issuer thereof in the name of the financial intermediary, the
sending of a confirmation by the financial intermediary of the purchase
by the Indenture Trustee or its nominee or custodian of such
uncertificated security, the making by such financial intermediary of
entries on its books and records identifying such uncertificated
certificates as belonging to the Indenture Trustee or its nominee or
custodian.
"Department of Education" means the United States Department of
Education.
"Department of HHS" means the United States Department of Health and
Human Services.
"Depositor" means Crestar Bank in its capacity as Depositor under the
Trust Agreement.
"Directing Notes" means the Class A Notes while any such Notes are
Outstanding, and, when no Class A Notes remain Outstanding, the Class B Notes.
"Distribution" means, with respect to any Financed Student Loan, the
amount of the monthly remittance payable to the holder of such Financed Student
Loan in accordance with its terms.
"Distribution Date" means, the 25th day of each month or if such day is
not a Business Day in New York, the next succeeding Business Day, commencing
January 26, 1998.
"Distribution Determination Date" means, with respect to any
Distribution Date, the third Business Day immediately preceding such
Distribution Date.
"Eligible Deposit Account" means either (a) a segregated account with
an Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution organized under the laws of the
United States of America or any one of the States (or any domestic branch of a
foreign bank), having corporate trust powers and acting as trustee for funds
deposited in such account, so long as any of the securities of such depository
institution have a credit rating from each Rating Agency in one of its generic
rating categories which signifies investment grade. An Eligible Deposit Account
may not be evidenced by a certificate of deposit, passbook or other instrument.
"Eligible Institution" means an entity which is an institution whose
deposits are insured by the FDIC and the unsecured and uncollateralized
long-term debt obligations of which shall be rated "AA-" or better by Standard
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& Poor's and A2 or better by Moody's, or the highest short-term rating by
Standard & Poor's and the highest short term rating by Moody's, and which is
either (i) a federal savings association duly organized, validly existing and in
good standing under the federal banking laws, (ii) an institution duly
organized, validly existing and in good standing under the applicable banking
laws of any state, (iii) a national banking association duly organized, validly
existing and in good standing under the federal banking laws, or (iv) a
principal subsidiary of a bank holding company.
"Eligible Investments" As used herein, Eligible Investments shall
include the following:
(1) Cash (insured at all times by the Federal Deposit Insurance
Corporation);
(2) Direct obligations of (including obligations issued or held in
book entry form on the books of) the Department of the
Treasury of the United States of America;
(3) obligations of any of the following federal agencies which
obligations represent the full faith and credit of the United
States of America, including:
- Export-Import Bank
- Farm Credit System Financial Assistance Corporation
- Farmers Home Administration
- General Services Administration
- U.S. Maritime Administration
- Small Business Administration
- Government National Mortgage Association (GNMA)
- U.S. Department of Housing & Urban Development
(PHA's)
- Federal Housing Administration;
(4) senior debt obligations rated "AAA" by Standard & Poor's and
"Aaa" by Moody's issued by the Federal National Mortgage
Association or the Federal Home Loan Mortgage Corporation
(5) U.S. dollar denominated deposit accounts, federal funds and
banker's acceptances with domestic commercial banks which have
a rating on their short term certificates of deposit on the
date of purchase of "A-1+" by Standard & Poor's and "P-1" by
Moody's and maturing no more than 360 days after the date of
purchase (ratings on holding companies not being considered
the rating of the bank);
(6) commercial paper which is rated at the time of purchase in the
single highest classification, "A- 1+" by Standard & Poor's
and "P-1" by Moody's and which matures not more than 270 days
after the date of purchase;
(7) Investments in money market funds (including, but not limited
to, money market mutual funds) rated "AAAm" or "AAAm-G" or
better by Standard & Poor's;
(8) investment agreements acceptable to the Rating Agencies,
written confirmation of which shall be furnished to the
Indenture Trustee prior to any such investment; and
(9) other forms of investments acceptable to the Rating Agencies,
written confirmation of which shall be furnished to the
Indenture Trustee prior to any such investment.
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Notwithstanding anything in this Agreement or the Basic Documents to
the contrary, for so long as the Transferor is a Certificateholder, all
investments of the Trust shall be made in investments permissible for a national
bank.
The value of the above investments shall be determined as follows:
a) as to investments the bid and asked prices of which are
published on a regular basis in The Wall Street Journal (or,
if not there, then in The New York Times): the average of the
bid and asked prices for such investments so published on or
most recently prior to such time of determination;
b) as to investments the bid and asked prices of which are not
published on a regular basis in The Wall Street Journal or The
New York Times: the average bid price at such time of
determination for such investments by any two nationally
recognized government securities dealers (selected by the
Indenture Trustee in its absolute discretion) at the time
making a market in such investments or the bid price published
by a nationally recognized pricing service;
c) as to certificates of deposit and bankers acceptances: the
face amount thereof, plus accrued interest; and
d) as to any investment not specified above: the value thereof
established by prior agreement between the Issuer, the
Administrator and the Indenture Trustee.
"Eligible Lender Trustee" means Star Bank, National Association not in
its individual capacity but solely as Eligible Lender Trustee under the Trust
Agreement, and its successors and assigns in such capacity.
"Eligible Lender Trustee Fee" has the meaning specified in Section 8.1
of the Trust Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Event of Default" has the meaning specified in Section 5.1 of the
Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Executive Officer" means, with respect to any corporation, the Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer, President,
any Executive Vice President, any Senior Vice President, any Vice President, the
Secretary, the Controller or the Treasurer of such corporation; and with respect
to any partnership, any general partner thereof.
"Expense Account" means the account designated as such pursuant to
Section 5.1 of the Transfer and Servicing Agreement.
"Expenses" means any and all liabilities, obligations, losses, damages,
taxes, claims, actions and suits, and any and all reasonable costs, expenses and
disbursements (including reasonable legal fees and expenses) of any kind and
nature whatsoever which may at any time be imposed on, incurred by, or asserted
against the Eligible Lender Trustee or any of its officers, directors or agents
in any way relating to or arising out of the Trust Agreement, the other Basic
Documents, the Trust Estate, the administration of the Trust Estate or the
action or inaction of the Eligible Lender Trustee under the Trust Agreement or
the other Basic Documents.
"FDIC" means the Federal Deposit Insurance Corporation.
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"FFELP Loan" means a student loan which is a PLUS Loan, SLS Loan,
Consolidation Loan, Stafford Loan or Unsubsidized Stafford Loan.
"FHLMC" means Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, or any successor thereto.
"Final Maturity Date" means, with respect to any Note, the date on
which the entire unpaid principal amount of such Note becomes due and payable as
provided in the Terms Supplement.
"Financed FFELP Loan" means a Financed Student Loan that also is a
FFELP Loan.
"Financed HEAL Loan" means a Financed Student Loan that also is a HEAL
Loan.
"Financed Student Loan" means the FFELP Loans and HEAL Loans set forth
in Schedule A-1 to the Transfer and Servicing Agreement and Schedule A to each
Transfer Agreement, as amended or supplemented from time to time by the Master
Servicer to accurately reflect the Financed Student Loans then subject to the
Lien of the Indenture. The Schedule of Financed Student Loans may be in the form
of microfiche or other form of electronic media.
"Financed Student Loan Files" means the documents specified in Section
3.3 of the Transfer and Servicing Agreement.
"FNMA" means Federal National Mortgage Association, a federally
chartered and privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor thereto.
"Formula Interest Rate" means, with respect to any Class of Notes, the
interest rate determined as set forth in the Terms Supplement.
"Grace Period" means certain grace periods authorized by the Higher
Education Act and the HEAL Act during which the related borrower's scheduled
payments are deferred.
"Grant" means mortgage, pledge, hypothecate, bargain, sell, warrant,
alienate, remise, release, convey, assign, transfer, create, and grant a lien
upon and a security interest in and right of set-off against, deposit, set over
and confirm pursuant to the Indenture. A Grant of the Trust Estate or of any
other agreement or instrument shall include all rights, powers and options (but
none of the obligations) of the Granting party thereunder, including the
immediate and continuing right to claim for, collect, receive and give receipt
for principal and interest payments in respect of the Trust Estate and all other
moneys payable thereunder, to give and receive notices and other communications,
to make waivers or other agreements, to exercise all rights and options, to
bring Proceedings in the name of the Granting party or otherwise and generally
to do and receive anything that the Granting party is or may be entitled to do
or receive thereunder or with respect thereto.
"Guarantee Agreements" means each agreement entered into between the
Eligible Lender Trustee and a Guarantor pursuant to which such Guarantor
guarantees payments on Financed FFELP Loans.
"Guarantee Payment" means any payment made by a Guaranty Agency
pursuant to a Guarantee Agreement in respect of a Financed FFELP Loan.
"Guarantor" means the Department of Education, Educational Credit
Management Corporation, a Minnesota non-profit corporation (formerly known as
Transitional Guaranty Agency, Inc.), PHEAA, United Student Aid Funds, Inc., a
Delaware non-profit corporation, the Florida Department of Education, an agency
of the State of
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Florida, New York Higher Education Services Corporation, an agency of the State
of New York, and Texas Guaranteed Student Loan Program, a Texas nonprofit
corporation, and their respective successors and assigns.
"Guaranty Agency" means any agency which has an agreement with the
Department of Education of Education to be a guarantor of FFELP Loans.
"HEAL Act" means Title VII, ss.ss.701-720 of the Public Health Services
Act, as amended, 42 U.S.C. ss.ss. 292-292p, together with any rules and
regulations promulgated thereunder by the Department of HHS.
"HEAL Consolidation Loan" means a HEAL Loan that is designated as such
that is made under the HEAL Act.
"HEAL Insurance Contract" means the HEAL Insurance Contract entered
into between the Eligible Lender Trustee and the Department of HHS pursuant to
which the Department of HHS insures payments on Financed HEAL Loans.
"Higher Education Act" means Title IV, Part B of the Higher Education
Act of 1965, as amended, together with any rules and regulations promulgated
thereunder by the Department of Education or the Guarantors.
"Indemnifiable Expenses" means any and all liabilities, obligations,
losses, damages, taxes, claims, actions and suits, and any and all reasonable
costs, expenses and disbursements (including reasonable legal fees and expenses)
of any kind and nature whatsoever which may at any time be imposed on, incurred
by, or asserted against a Person (or any of its officers, directors, employees
or agents) who is entitled to be indemnified.
"Indenture" means the Master Indenture and the Terms Supplement, each
as amended or supplemented from' time to time.
"Indenture Trust Estate" means all money, instruments, rights and other
property that are, from time to time, subject or intended to be subject to the
Lien and security interest of the Indenture for the benefit of the Noteholders
(including all property and interests Granted to the Indenture Trustee),
including all proceeds thereof.
"Indenture Trustee" means Bankers Trust Company, not in its individual
capacity but solely as Indenture Trustee under the Indenture and its successors
and assigns in such capacity.
"Indenture Trustee Fee" has the meaning specified in Section 6.7 of the
Master Indenture, as may be amended pursuant to any amendment to the Terms
Supplement.
"Independent" means, when used with respect to any specified Person,
that the Person (a) is in fact independent of the Issuer, any other obligor upon
the Notes, the Transferor and any Affiliate of any of the foregoing Persons, (b)
does not have any direct financial interest or any material indirect financial
interest in the Issuer, any such other obligor, the Transferor or any Affiliate
of any of the foregoing Persons and (c) is not connected with the Issuer, any
such other obligor, the Transferor or any Affiliate of any of the foregoing
Persons as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions.
"Independent Certificate" means a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable requirements of Section [[11.1]] of the
Master Indenture, made by an Independent appraiser or other expert appointed by
an Issuer Order and approved by the Indenture Trustee in the exercise of
reasonable care, and such opinion or certificate shall state that the signer has
read the definition of "Independent" and that the signer is Independent within
the meaning thereof.
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"Individual Note" means a Note of an initial principal amount equal to
$50,000. A Note of an original principal amount in excess thereof shall be
deemed to be a number of Individual Notes equal to the quotient obtained by
dividing such initial principal amount by $50,000, without regard to fractions.
"Initial Financed Student Loans" has the meaning specified in Section
2.1 of the Transfer and Servicing Agreement.
"Initial Certificate Balance" means $1,000, representing the
Certificate Balance as of the Closing Date.
"Initial Pool Balance" means [$_______] representing the sum of Pool
Balance for the Initial Financed Student Loans set forth on Schedule A-1 as of
the Cut-off Date.
"Insolvency Event" means, with respect to a specified Person, (a) the
filing of a decree or order for relief by a court having jurisdiction in the
premises in respect of such Person or any substantial part of its property in an
involuntary case under any applicable federal or State bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official for
such Person or for any substantial part of its property, or ordering the
winding-up or liquidation of such Person's affairs, and such decree or order
shall remain unstayed and in effect for a period of 60 consecutive days; or (b)
the commencement by such Person 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 such Person to the entry of an order for relief in an
involuntary case under any such law, or the consent by such Person to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for such Person or for any
substantial part of its property, or the making by such Person of any general
assignment for the benefit of creditors, or the failure by such Person generally
to pay its debts as such debts become due, or the taking of action by such
Person in furtherance of any of the foregoing.
"Insurance Payment" means any payment made by the Department of HHS
pursuant to the HEAL Insurance Contract in respect of a Financed HEAL Loan.
"Interest Payment Period" has the meaning set forth in the Terms
Supplement.
"Interest Period" has the meaning set forth in the Terms Supplement.
"Interest Subsidy Payments" means payments, designated as such,
consisting of interest subsidies by the Department of Education in respect of
the Financed Student Loans to the Eligible Lender Trustee on behalf of the Trust
in accordance with the Higher Education Act.
"Investment Earnings" means, with respect to any Distribution Date, the
investment earnings (net of losses and investment expenses) on amounts on
deposit in the Trust Accounts to be deposited into the Collection Account on or
prior to such Distribution Date pursuant to Section 5.1(b) of the Transfer and
Servicing Agreement.
"Issuer" means Crestar Student Loan Trust 1997-1.
"Issuer 2.3(b) Payments" has the meaning set forth in Section 2.3(e) of
the Transfer and Servicing Agreement.
"Issuer Order" and "Issuer Request" means a written order or request
signed in the name of the Issuer by any one of its Authorized Officers and
delivered to the Indenture Trustee.
"LIBOR Rate" means, with respect to the Notes or the Certificates, the
related Class Interest Rate or Certificate Rate, as the case may be, that
results from a determination based on One-Month LIBOR and is
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determined as described in the Terms Supplement, the Transfer and Servicing
Agreement or the Trust Agreement, as the case may be.
"Lien" means a security interest, lien, charge, pledge, equity or
encumbrance of any kind, other than tax liens and any other liens, if any, which
attach to the respective Financed Student Loan by operation of law as a result
of any act or omission by the related Obligor or obligations under Subservicing
Agreements in effect as of the Closing Date.
"London Banking Day" means any business day on which dealings in
deposits in United States dollars are transacted in the London interbank market.
"Majority Certificateholder" means the holders of more than 50% of the
Certificate Balance of the Certificates without regard to the Certificates held
by the Depositor.
"Margin" has the meaning set forth in the Terms Supplement.
"Master Indenture" means the Indenture dated as of [_______], 1997
between the Issuer and the Indenture Trustee, as amended or supplemented from
time to time.
"Master Servicer" means Crestar Bank, and its permitted successors and
assigns, as Master Servicer of the Financed Student Loans and the Transfer and
Servicing Agreement.
"Master Servicer Default" means an event specified in Section 8.1(a) of
the related Transfer and Servicing Agreement or Supplemental Transfer and
Servicing Agreement.
"Minimum Purchase Price" has the meaning set forth in Section 9.1(b) of
the Transfer and Servicing Agreement.
"Moody's" means Moody's Investors Service, Inc.
"Monthly Advance" means the amount, if any, advanced by the Master
Servicer pursuant to Section 5.10 of the Transfer and Servicing Agreement with
respect to Guarantee Payments or Interest Subsidy Payments applied for but not
received as of the end of the Collection Period immediately preceding the date
such Monthly Advance is made.
"Monthly Advance Account" means the account designated as such,
established and maintained pursuant to Section 5.1 of the Transfer and Servicing
Agreement.
"Net Loan Rate" shall have the meaning set forth in the Terms
Supplement.
"Notes" means the notes designated as the Issuer's Student Loan
Asset-Backed Notes, issued pursuant to the terms of the Master Indenture and the
Terms Supplement and having an original principal amount equal to
[$-------------].
"Note Depository Agreement" means the agreement dated as of the Closing
Date relating to the Notes among the Issuer, the Indenture Trustee, the
Administrator and the Depository Trust Company, as the initial Securities
Depository.
"Note Distribution Account" means the account designated as such,
established and maintained pursuant to Section 5.1 of the Transfer and Servicing
Agreement.
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"Note Owner" means, with respect to a Book Entry Note, the Person who
is the owner of such Book Entry Note, as reflected on the books of the
Securities Depository, or on the books of a Person maintaining an account with
such Securities Depository (directly as Securities Depository Participant or as
an indirect participant, in each case in accordance with the rules of such
Securities Depository).
"Note Register" and "Note Registrar" have the respective meanings
specified in Section [[2.6]] of the Indenture.
"Noteholder" means the Person in whose name a Note is registered in the
Note Register.
"Noteholders' Distribution Amount" means, as to any Class of Notes,
with respect to any Distribution Date, the sum of the related Noteholders'
Interest Distribution Amount and the Noteholders' Principal Distribution Amount
for such Distribution Date.
"Noteholders' Interest Carryover" has the meaning set forth in the
Terms Supplement.
"Noteholders' Interest Shortfall" means, as to any Class of Notes, with
respect to any Distribution Date (which, for the Class B Notes, shall be a
Quarterly Distribution Date), the excess of (i) the sum of the related
Noteholders' Interest Distribution Amount on the preceding Distribution Date for
such Class of Notes and any Noteholders' Interest Shortfall on such preceding
Distribution Date for such Class of Notes over (ii) the amount of interest
actually allocated to such Noteholders on such preceding Distribution Date for
such Class of Notes, plus interest on the amount of such excess interest due to
the Noteholders, to the extent permitted by law, at the related Class Interest
Rate from such preceding Distribution Date for such Class of Notes to the
current Distribution Date for such Class of Notes.
"Noteholders' Interest Distribution Amount" means, as to any Class of
Notes, with respect to any Distribution Date (which, for the Class B Notes,
shall be a Quarterly Distribution Date), the sum of (i) the amount of interest
accrued at the respective Class Interest Rate for each Interest Period since the
last Distribution Date for such Class of Notes (or, in the case of the first
Distribution Date for such Class of Notes, the Closing Date) on the outstanding
principal balance of such Class of Notes on the immediately preceding
Distribution Date for such Class of Notes after giving effect to all principal
distributions to holders of Notes of such Class on such date (or, in the case of
the first Distribution Date for such Class of Notes, on the Closing Date) and
(ii) the Noteholders' Interest Shortfall for such Class of Notes for such
Distribution Date; provided, however, that the Noteholders' Interest
Distribution Amount will not include any Noteholders' Interest Carryover.
"Noteholders' Principal Carryover Shortfall" means, as of the close of
any Distribution Date, the excess of (i) the sum of the Noteholders' Principal
Distribution Amount on such Distribution Date and any outstanding Noteholders'
Principal Carryover Shortfall for the preceding Distribution Date over (ii) the
amount of principal actually allocated to the Noteholders on such Distribution
Date.
"Noteholders' Principal Distribution Amount" means, (A) as to any
Distribution Date on or after February 25, 1998 and on or before the
Distribution Date on which the Class A Notes are paid in full, the sum of (i)
the Principal Distribution Amount for the Collection Period immediately
preceding the month of such Distribution Date (and, in the case of the February
25, 1998 Distribution Date, all preceding Collection Periods), (ii) any Parity
Percentage Payments to be made on such Distribution Date, (iii) the Noteholders'
Principal Carryover Shortfall as of the close of the preceding Distribution Date
and (iv) the amount, if any, remaining on deposit in the Note Distribution
Account following the preceding Distribution Date, and (B) as to any Quarterly
Distribution Date after the Distribution Date on which the Class A Notes are
paid in full, the sum of (i) the Principal Distribution Amount for the three
Collection Periods immediately preceding the month of such Quarterly
Distribution Date, (ii) any Parity Percentage Payments to be made on such
Quarterly Distribution Date, (iii) the Noteholders' Principal Carryover
Shortfall as of the close of the preceding Quarterly Distribution Date and (iv)
the amount, if any, remaining on deposit in the Note Distribution Account
following the preceding Quarterly Distribution Date; provided, however,
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that the Noteholders' Principal Distribution Amount allocable to a Class of
Notes will not exceed the outstanding principal balance of such Class of Notes.
In addition, with respect to each Class of Notes, on the related Final Maturity
Date the Noteholders' Principal Distribution Amount will include the amount
required to reduce the outstanding principal balance of such Notes to zero.
"Obligor" on a Financed Student Loan means the borrower or co-borrowers
of such Financed Student Loan and any other Person who owes payments in respect
of such Financed Student Loan, including (i) the Guaranty Agency thereof with
respect to a Financed FFELP Loan and the Department of HHS with respect to a
Financed HEAL Loan, and (ii) with respect to any Interest Subsidy Payment or
Special Allowance Payment, if any, thereon, the Department of Education.
"Officer's Certificate" means (i) in the case of the Issuer, a
certificate signed by an Authorized Officer of the Issuer, under the
circumstances described in, and otherwise complying with, the applicable
requirements of Section 11.1 of the Indenture, and delivered to the Indenture
Trustee, (ii) in the case of the Transferor, the Master Servicer or the
Administrator, a certificate signed by an Authorized Officer of the Transferor,
the Master Servicer or the Administrator, as appropriate and (iii) in the case
of the Servicer, a certificate signed by an Authorized Officer of the Servicer.
"One-Month LIBOR" means the rate of interest per annum equal to the
London interbank offered rate for deposits in U.S. dollars having a maturity of
one month commencing on the related Rate Determination Date (the "Index
Maturity") which appears on Telerate Page 3750 as of 11:00 a.m., London time, on
such Rate Determination Date. If such rate does not appear on Telerate Page
3750, the rate for that day will be determined on the basis of the Reuters
Screen LIBOR Page. If such rate does not appear on Telerate Page 3750 or the
Reuters Screen LIBOR Page, the rate for that day will be determined on the basis
of the rates at which deposits in U.S. dollars, having the Index Maturity and in
a principal amount of not less than U.S. $1,000,000, are offered at
approximately 11:00 a.m., London time, on such Rate Determination Date to prime
banks in the London interbank market by the Reference Banks. The Master Servicer
will request the principal London office of each of such Reference Banks to
provide a quotation of its rate. If at least two such quotations are provided,
One-Month LIBOR for that day will be the arithmetic mean (rounded upwards, if
necessary, to the nearest .01%) of the quotations. If fewer than two quotations
are provided, One-Month LIBOR for that day will be the arithmetic mean (rounded
upwards, if necessary, to the nearest .01%) of the rates quoted by three major
banks in New York City, selected by the Master Servicer, or by the Trustee, as
applicable, at approximately 11:00 a.m., New York City time, on such Rate
Determination Date for loans in U.S. dollars to leading European banks having
the Index Maturity and in a principal amount equal to an amount of not less than
U.S. $1,000,000; provided, however, that if the banks selected as aforesaid are
not quoting as mentioned in this sentence, One-Month LIBOR in effect for the
applicable Interest Period will be One-Month LIBOR in effect for the previous
Interest Period.
"Opinion of Counsel" means (i) with respect to the Issuer, one or more
written opinions of counsel who may, except as otherwise expressly provided in
the Master Indenture, be employees of or counsel to the Issuer or Administrator
or any of their Affiliates and who shall be reasonably satisfactory to the
Indenture Trustee, and which opinion or opinions shall be addressed to the
Indenture Trustee as Indenture Trustee, shall comply with any applicable
requirements of Section 11.1 of the Master Indenture, and shall be in form and
substance reasonably satisfactory to the Indenture Trustee and (ii) with respect
to the Transferor, the Administrator or the Master Servicer, one or more written
opinions of counsel who may be an employee of or counsel to the Transferor, the
Administrator or the Master Servicer, which counsel shall be reasonably
acceptable to the Indenture Trustee and the Eligible Lender Trustee.
"Outstanding" means, as of the date of determination, all Notes
theretofore authenticated and delivered under the Indenture except:
(i) Notes theretofore canceled by the Note Registrar or
delivered to the Note Registrar for cancellation;
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(ii) Notes or portions thereof the payment for which money in
the necessary amount has been theretofore deposited with the Indenture
Trustee or any Paying Agent in trust for the Noteholders thereof
(provided, however, that if such Notes are to be redeemed, notice of
such redemption has been duly given or irrevocably provided for
pursuant to the Indenture); and
(iii) Notes in exchange for or in lieu of other Notes which
have been authenticated and delivered pursuant to the Indenture unless
proof satisfactory to the Indenture Trustee is presented that any such
Notes are held by a bona fide purchaser;
provided that in determining whether the Noteholders of the requisite
Outstanding Amount of the Notes have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or under any other Basic
Document, Notes owned by the Issuer, any other obligor upon the Notes, the
Transferor or any Affiliate of any of the foregoing Persons shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Indenture Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes that a
Responsible Officer of the Indenture Trustee either actually knows to be so
owned or has received written notice thereof shall be do disregarded. Notes so
owned that have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Indenture Trustee the pledgee's
right so to act with respect to such Notes and that the pledgee is not the
Issuer, any other obligor upon the Notes, the Transferor or any Affiliate of any
of the foregoing Persons.
"Outstanding Amount" means the aggregate principal amount of all Notes,
or Class of Notes or Certificates as applicable, Outstanding at the date of
determination.
"Parity Percentage" means, as of any date of determination, the
fraction expressed as a percentage, the numerator of which is the sum of (i) the
then Pool Balance plus accrued interest thereon due from borrowers, and accrued
Interest Subsidy Payments and Special Allowance Payments, if any, as of the end
of the preceding Collection Period, and (ii) all amounts on deposit (including
any accrued interest thereon) in the Collection Account and the Reserve Account
and the denominator of which is the sum of the aggregate Outstanding Amount of
the Notes and the Certificates, accrued and unpaid interest thereon plus accrued
and unpaid Transaction Fees and Consolidation Loan Fees.
"Parity Percentage Payment" means, with respect to any Distribution
Date, the amount, if any, to be transferred from the Collection Account to the
Note Distribution Account pursuant to Section 5.5(e) of the Transfer and
Servicing Agreement, up to the amount necessary for the Parity Percentage to
equal [_______]% after giving effect to all distributions to be made on such
Distribution Date.
"Participant" means a Securities Depository Participant.
"Paying Agent" means the Indenture Trustee or any other Person that
meets the eligibility standards for the Indenture Trustee specified in Section
6.11 of the Master Indenture and is authorized by the Issuer to make the
payments to and distributions from the Collection Account and payments of
principal of and interest and any other amounts owing on the Notes on behalf of
the Issuer.
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, trust (including any beneficiary
thereof), unincorporated organization or government or any agency or political
subdivision thereof.
"PHEAA" means Pennsylvania Higher Education Assistance Agency.
"Physical Property" has the meaning assigned to such term in the
definition of "Delivery" above.
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"Pledged Account or Fund" means the Collection Account, the Reserve
Account, the Note Distribution Account and the Certificate Distribution Account.
"PLUS Loan" means a FFELP Loan made pursuant to the provisions of the
PLUS program established under Section 428B of the Higher Education Act (or
predecessor provisions).
"Pool Balance" means, at any time, the aggregate principal balance of
the Financed Student Loans at the end of the preceding Collection Period
(including accrued interest thereon to the extent such interest was capitalized
as of the end of such Collection Period), after giving effect to the following,
without duplication: (i) all payments in respect of principal received by the
Trust during such Collection Period from or on behalf of borrowers and
Guarantors and, with respect to certain payments on certain Financed Student
Loans, the Department of Education and the Department of HHS, (ii) the principal
portion of all Purchase Amounts received by the Trust for such Collection Period
and (iii) any Subsequent Financed Student Loans conveyed to the Trust and any
Financed Student Loans conveyed by the Trust in exchange for such Subsequent
Financed Student Loan during such Collection Period, in each case pursuant to
Sections 2.2 and 2.3 of the Transfer and Servicing Agreement.
"Predecessor Note" means, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section [[2.7]] of the Master Indenture and in
lieu of a mutilated, lost, destroyed or stolen Note shall be deemed to evidence
the same debt as the mutilated, lost, destroyed or stolen Note.
"Primary Servicer" means, with respect to any Financed Student Loan,
the entity responsible for the primary servicing of such Financed Student Loan
on a day to day basis, it being understood that where a subservicer appointed in
accordance with the terms of the Transfer and Servicing Agreement has
responsibility for servicing a Financed Student Loan, such subservicer and not
the Master Servicer shall be the Primary Servicer with respect such Financed
Student Loan.
"Principal Distribution Amount" means, with respect to any Collection
Period, the amount, if any, by which the Pool Balance as of the last day of such
Collection Period is exceeded by the Pool Balance as of the last day of the
preceding Collection Period (or, in the case of the initial Collection Period,
the Cut-off Date).
"Principal Factor" means, as of any Distribution Date for each Class of
Notes, a seven-digit decimal figure equal to the Outstanding Amount of such
Class of Notes (after giving effect to any payments of principal made on such
Distribution Date) divided by the original Outstanding Amount of such Class. The
Principal Factor will be 1.0000000 for each Class of Notes as of the Closing
Date; thereafter, the Principal Factor for each Class of Notes will decline to
reflect reductions in the outstanding principal balance of such Class.
"Proceeding" means any suit in equity, action at law or other judicial
or administrative proceeding.
"Purchase Amount" means, as to any Financed Student Loan on any date of
determination, the amount required to prepay in full the outstanding principal
balance of such Financed Student Loan as of the last day of the most recently
completed Collection Period, including all accrued but unpaid interest thereon
(including interest to be capitalized) through the last day of the Collection
Period in which such Financed Student Loan is being purchased.
"Purchased Student Loan" means a Financed Student Loan purchased
pursuant to Section 4.5 of the Transfer and Servicing Agreement or repurchased
pursuant to Section 3.2 of the Transfer and Servicing Agreement.
"Qualified Letter of Credit" means a letter of credit delivered or to
be delivered to the Indenture Trustee in lieu of a deposit of cash or Eligible
Investments in the Reserve Account for such Class, which letter of credit shall
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(a) be irrevocable and name the Indenture Trustee, in its capacity
as such, as the sole beneficiary thereof;
(b) be issued by a bank whose credit standing is acceptable to each of
the rating agencies which are rating or have rated the Notes of such
Class;
(c) provide that if at any time the then current credit standing of the
issuing bank is such that the continued reliance on such letter of
credit for the purpose or purposes for which it was originally
delivered to the Indenture Trustee would result in a downgrading of any
rating of the Notes of such Class, the Indenture Trustee may either
draw under such letter of credit any amount up to and including the
entire amount then remaining available for drawing thereunder or
terminate such letter of credit;
(d) be transferable to any successor trustee hereunder with respect to
such Class; and
(e) meet such other standards as may be specified in the Terms
Supplement.
"Qualified Institutional Buyer" has the meaning ascribed to such term
in Rule 144A under the Securities Act.
"Quarterly Distribution Date" means the Distribution Date in each
January, April, July and October, commencing April 27, 1998.
"Rate Adjustment Date" has the meaning set forth in the Terms
Supplement.
"Rate Determination Date" means for the Notes and the Certificates, the
date which is both two Business Days (in New York and Virginia) and two London
Banking Days preceding the related Rate Adjustment Date.
"Rating Agency" means Moody's and Standard & Poor's. If no such
organization or successor is any longer in existence, "Rating Agency" shall be a
nationally recognized statistical rating organization or other comparable Person
designated by the Transferor, notice of which designation shall be given to the
Indenture Trustee, the Eligible Lender Trustee and the Servicer.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have been given 10 days' prior notice thereof and that each
of the Rating Agencies shall have notified the Transferor, the Master Servicer,
the Eligible Lender Trustee and the Indenture Trustee in writing that such
action will not result in and of itself in a reduction or withdrawal of the then
current ratings of each Class of Notes.
"Realized Loss" means, for each Financed Student Loan submitted to a
Guarantor for a Guarantee Payment or the Department of HHS for an Insurance
Payment, the excess, if any, of (i) the unpaid principal balance of such
Financed Student Loan on the date it was first submitted to a Guarantor for a
Guarantee Payment or the Department of HHS for an Insurance Payment over (ii)
all amounts received on or with respect to principal on such Financed Student
Loan (including amounts received pursuant to Section 3.2 and 4.5 of the Transfer
and Servicing Agreement) up through the earlier to occur of (A) the date a
related Guarantee Payment or Insurance Payment is made or (B) the last day of
the Collection Period occurring 12 months after the date the claim for such
Guarantee Payment or Insurance Payment is first denied.
"Record Date" means, with respect to a Distribution Date, the close of
business on the second Business Day (in New York) preceding such Distribution
Date.
"Reference Banks" means four leading banks, selected by the Master
Servicer, or by the Trustee, as applicable, (i) engaged in transactions in
Eurodollar deposits in the international Eurocurrency market, (ii) not an
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Affiliate of the Master Servicer, the Administrator or the Transferor and (iii)
and having an established place of business in London.
"Related Financed Student Loan File" has the meaning specified in
Section 3.8(a) of the Transfer and Servicing Agreement.
"Repayment Phase" means the period during which the related borrower is
required to make payments of principal and interest on the related Financed
Student Loan.
"Requisite Amount" has the meaning set forth in the Terms Supplement.
"Reserve Account" means the account designated as such, established and
maintained pursuant to Section 5.1 of the related Transfer and Servicing
Agreement.
"Reserve Account Initial Deposit" means, [$_______].
"Responsible Officer" means, with respect to the Indenture Trustee, any
officer within the Corporate Trust Office of the Indenture Trustee with direct
responsibility for the administration of the Indenture and the other Basic
Documents on behalf of the Indenture Trustee, including any Managing Director,
Vice President, Assistant Vice President, Assistant Treasurer, Assistant
Secretary, or any other officer of the Indenture Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject.
"Reuters Screen LIBOR Page" will be the display designated as page
"LIBOR" on the Reuters Monitor Money Rates Service (or such other page as may
replace the LIBOR page for the purposes of displaying London interbank offered
rates of major banks).
"Schedule of Financed Student Loans" means the master listing of the
Financed Student Loans set forth in Schedule A-1 to the Transfer and Servicing
Agreement and Schedule A to each Transfer Agreement, in each case as from time
to time amended or supplemented to reflect the Financed Student Loans then
subject to the Lien of the Indenture. The Schedule of Financed Student Loans may
be in the form of microfiche or in the form of electronic media.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Depository" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"Securities Depository Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Securities
Depository effects book-entry transfers and pledges of securities deposited with
the Securities Depository.
"Senior Notes" means the Class A Notes.
"Senior Noteholder" means the holder of a Senior Note.
"Serial Loan" means a Student Loan that is owned by a third party that
is serial to a Financed Student Loan.
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"Servicer" means PHEAA or, subject to satisfying the Rating Agency
Condition, another entity appointed by the Master Servicer to service the
Financed Student Loans, in its capacity as servicer of the Financed Student
Loans.
"Servicer's Report" means any report of the Master Servicer delivered
pursuant to Section 4.8(a) of the Transfer and Servicing Agreement,
substantially in the form acceptable to the Administrator.
"Servicing Fee" means a quarterly fee in an amount equal to (i)
[_______]% of the average Pool Balance as of the last day of the Collection
Period and the last day of the immediately preceding Collection Period (or the
Cut-off Date with respect to the initial Collection Period), or (ii) such
greater amount for which a Rating Agency Condition is satisfied.
"SLS Loan" means a FFELP Loan designated as such that is made under the
Supplemental Loans for Students Program pursuant to the Higher Education Act.
"Special Allowance Payments" means payments, designated as such, by the
Department of Education in respect of the Financed FFELP Loans to the Eligible
Lender Trustee on behalf of the Trust in accordance with the Higher Education
Act.
"Specified Reserve Account Balance" means, with respect to any
Distribution Date, an amount equal to the greater of (i) [_______]% of the sum
of the Outstanding Amount of the Notes and the Certificate Balance on such
Distribution Date, after giving effect to all payments to be made on such date;
or (ii) [$_______]; provided, however, that such balance shall not exceed the
sum of the aggregate Outstanding Amount of the Notes and the Certificate
Balance.
"Stafford Loan" means a student loan designated as such that is made
under ss. 428 of the Higher Education Act (excluding Unsubsidized Stafford
Loans).
"Standard & Poor's" means Standard & Poor's Rating Services, a division
of The McGraw-Hill Companies, Inc., and its successors and assigns.
"State" means any one of the 50 States of the United States of America
or the District of Columbia.
"Subcustodian" has the meaning specified in Section 3.8 of the Transfer
and Servicing Agreement.
"Subordinated Notes" means the Class B Notes.
"Subordinated Noteholder" means any Noteholder of a Subordinated Note.
"Subsequent Cut-off Date" means the day as to which principal and
interest accruing with respect to an Subsequent Financed Student Loan are
transferred to the Eligible Lender Trustee on behalf of the Issuer pursuant to
Section 2.2 of the Transfer and Servicing Agreement.
"Subsequent Finance Date" means, with respect to any Subsequent
Financed Student Loans, the date specified as such in the related Transfer
Agreement.
"Subsequent Finance Period" means the period commencing on the Closing
Date and ending on December 31, 2002.
"Subsequent Financed Student Loan" means any FFELP Loan or HEAL Loan
transferred to the Eligible Lender Trustee on behalf of the Issuer during the
Subsequent Finance Period pursuant to Section 2.2 of the Transfer and Servicing
Agreement.
-20-
<PAGE>
"Subsequent Financing Purchase Price" means, as to any Subsequent
Financed Student Loan, the principal amount of such Subsequent Financed Student
Loan as of the Subsequent Cut-off Date for such loan and all accrued and unpaid
interest on (including interest to be capitalized) such Subsequent Financed
Student Loan (other than Interest Subsidy Payments and Special Allowance
Payments payable through the Subsequent Cut-Off Date) through the Subsequent
Cut-off Date for such loan.
"Subservicing Agreement" has the meaning specified in Section 4.13 of
the Transfer and Servicing Agreement.
"Successor Administrator" has the meaning specified in Section 3.7(e)
of the Indenture.
"Successor Master Servicer" has the meaning specified in Section 3.7(e)
of the Indenture.
"Telerate Page 3750" means the display page so designated on the Dow
Jones Telerate Service (or such other page as may replace that page on that
service for the purpose of displaying comparable rates or prices).
"Terms Supplement" means, the Terms Supplement to the Indenture dated
as of [_______,] 1997 between the Issuer and the Indenture Trustee.
"TP Loans" means all Stafford Loans, Unsubsidized Stafford Loans and
PLUS Loans with a first disbursement made by the Transferor on or after November
l, 1996.
"TP Program" means the Crestar Bank Top Performer Program and any
similar program with respect to which a Rating Agency Condition is satisfied.
"Transaction Fees" means, collectively, the Servicing Fee, the
Administration Fee, the Indenture Trustee Fee, the Delaware Trustee Fee and the
Eligible Lender Trustee Fee.
"Transfer Agreement" has the meaning set forth in Section 2.2(b) of the
Transfer and Servicing Agreement.
"Transfer and Servicing Agreement" means the Transfer and Servicing
Agreement dated as of [_______,] 1997, among the Issuer, the Transferor, the
Administrator, the Eligible Lender Trustee and the Master Servicer, as amended
from time to time.
"Transferor" means Crestar Bank.
"Treasury Regulations" means regulations, including proposed or
temporary regulations, promulgated under the Code. References in any document or
instrument to specific provisions of proposed or temporary regulations shall
include analogous provisions of final Treasury Regulations or other successor
Treasury Regulations.
"Trust" means the Issuer, established pursuant to the Trust Agreement.
"Trust Account Property" means the Trust Accounts, all amounts and
investments held from time to time in any Trust Account (whether in the form of
deposit accounts, Physical Property, book-entry securities, uncertificated
securities or otherwise), including the Reserve Account Initial Deposit, if any,
and all proceeds of the foregoing.
"Trust Accounts" has the meaning specified in Section 5.1 of the
Transfer and Servicing Agreement.
"Trust Agreement" means the Trust Agreement dated as of [_______],
1997, among the Depositor, the Eligible Lender Trustee and the Delaware Trustee,
as amended and supplemented from time to time.
-21-
<PAGE>
"Trust Certificate" means a Certificate.
"Trust Certificateholder" means a person in whose name a Trust
Certificate is registered in the Certificate Register.
"Trust Estate" means all right, title and interest of the Trust (or the
Eligible Lender Trustee on behalf of the Trust) in and to (i) the property and
rights assigned to the Trust pursuant to Article II of the Transfer and
Servicing Agreement and each Transfer Agreement, (ii) all funds on deposit from
time to time in the Trust Accounts and (iii) all other property of the Trust
from time to time, including any rights of the Eligible Lender Trustee and the
Trust pursuant to the Transfer and Servicing Agreement, the Administration
Agreement and the other Basic Documents.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 as
in force on the date hereof, unless otherwise specifically provided.
"UCC" means, unless the context otherwise requires, the Uniform
Commercial Code, as in effect in the relevant jurisdiction, as amended from time
to time.
"Unsubsidized Stafford Loan" means a FFELP Loan designated as such that
is made under ss. 428H of the Higher Education Act.
"VELA Service Errors" has the meaning assigned to such term in the
letter to the Transferor, dated March 7, 1996, from the Department of Education.
-22-
<PAGE>
SCHEDULE A-1
TO THE
TRANSFER AND SERVICING AGREEMENT
Schedule of Financed Student Loans
Schedule of Financed Student Loans was delivered to Trustee and is not
included herein.
A-1
<PAGE>
SCHEDULE B
TO THE
TRANSFER AND SERVICING AGREEMENT
Location of Financed Student Loan Files
Name of subcustodian Location of Related Financed Student Loan Files
Pennsylvania Higher 1200 N. 7th Street
Education Assistance Harrisburg, PA 17102
Agency
B-1
<PAGE>
EXHIBIT A
TO THE TRANSFER AND SERVICING AGREEMENT
Form of Noteholders' Statement pursuant to Section 5.7(a) of Transfer and
Servicing Agreement (capitalized terms used
herein are defined in Appendix A thereto)
<TABLE>
<S> <C>
Distribution Date:____________________
(i) Principal Factor
(a) Class A-1 Notes: _________________
(b) Class A-2 Notes: _________________
(c) Class B Notes: _________________
(ii) Amount of principal being paid or distributed:
(a) Class A-1 Notes: _________________
(b) Class A-2 Notes: _________________
(c) Class B Notes: _________________
(d) Certificates: _________________
(iii) (a) Amount of interest being paid or distributed:
(1) Class A-1 Notes: $__ (based on [Formula Interest Rate] [Net Loan Rate])
(2) Class A-2 Notes: $___(based on [Formula Interest Rate] [Net Loan Rate])
(3) Class B Notes: $___(based on [Formula Interest Rate] [Net Loan Rate])
(4) Certificates: $____ (based on [One-Month LIBOR] [Net Loan Rate])
(b) Applicable Interest Rate:
(1) Class A-1 Notes: ______%
(2) Class A-2 Notes: ______%
(3) Class B Notes: ______%
(4) Certificates: ______%
(iv) Amount of distribution allocable to any Noteholders' Interest Carryover:
(a) Class A-1 Notes: $____________
(b) Class A-2 Notes: $____________
(c) Class B Notes: $____________
(v) Pool Balance at end of preceding Collection Period: __________
(vii) After giving effect to distributions on this Distribution Date:
(a) outstanding principal amount of Class A-1 Notes: $____________
(b) outstanding principal amount of Class A-2 Notes: $____________
A-1
<PAGE>
(c) outstanding principal amount of Class B Notes: $____________
(d) Certificate Balance: $____________
(vii) Amount of Servicing Fee, Administration Fee, Indenture Trustee Fee, Delaware Trustee Fee and
Eligible Lender Trustee Fee to be allocated for the upcoming Distribution Date: ($____________)
(viii) Aggregated amount of Realized Losses (if any) for the
Collection Period immediately preceding the Distribution Date:
____________
(ix) (a) Amount of distribution attributable to amounts in the Reserve Account: $____________
(b) Amount of other withdrawals from the Reserve Account $____________
(c) Reserve Account Balance $____________
(d) Parity percentage _____%
(e) Amount of Parity Percentage Payments $____________
(x) The aggregate Purchase Amount paid for Financed Student Loans
purchased from the trust during the immediately preceding
Collection Period: ____________
(xi) During the Subsequent Finance Period only, the aggregate
Issuer 2.3(b) Payments and Adjustment Payments, stated
separately, for the immediately preceding Collection Period:
$____________
(xii) Amount of Financed Student Loans:
(a) that are 31 to 60 days delinquent: $____________
(b) that are 61 to 90 days delinquent: $____________
(c) that are 91 to 120 days delinquent: $____________
(d) that are 120 days delinquent: $____________
(e) for which claims have been filed with
the appropriate Guarantor or the Department of HHS
and which are awaiting payment $____________
</TABLE>
A-2
<PAGE>
EXHIBIT B
TO THE
TRANSFER AND SERVICING AGREEMENT
Form of Certificateholders' Statement pursuant to Section 5.7(a) of Transfer and
Servicing Agreement (capitalized terms used herein are defined in Appendix A
thereto)
<TABLE>
<S> <C>
Distribution Date:____________________
(i) Principal Factor
(a) Class A-1 Notes: _________________
(b) Class A-2 Notes: _________________
(c) Class B Notes: _________________
(ii) Amount of principal being paid or distributed:
(a) Class A-1 Notes: _________________
(b) Class A-2 Notes: _________________
(c) Class B Notes: _________________
(d) Certificates: _________________
(iii) (a) Amount of interest being paid or distributed:
(1) Class A-1 Notes: $__ (based on [Formula Interest Rate] [Net Loan Rate])
(2) Class A-2 Notes: $__ (based on [Formula Interest Rate] [Net Loan Rate])
(3) Class B Notes: $__ (based on [Formula Interest Rate] [Net Loan Rate])
(4) Certificates: $____ (based on [One-Month LIBOR] [Net Loan Rate])
(b) Applicable Interest Rate:
(1) Class A-1 Notes: ______%
(2) Class A-2 Notes: ______%
(3) Class B Notes: ______%
(4) Certificates: ______%
(iv) Amount of distribution allocable to any Noteholders' Interest Carryover:
(a) Class A-1 Notes: $____________
(b) Class A-2 Notes: $____________
(c) Class B Notes: $____________
(v) Pool Balance at end of preceding Collection Period: __________
(vii) After giving effect to distributions on this Distribution Date:
(a) outstanding principal amount of Class A-1 Notes: $____________
(b) outstanding principal amount of Class A-2 Notes: $____________
B-1
<PAGE>
(c) outstanding principal amount of Class B Notes: $____________
(d) Certificate Balance: $____________
(vii) Amount of Servicing Fee, Administration Fee, Indenture Trustee Fee, Delaware Trustee Fee and
Eligible Lender Trustee Fee to be allocated for the upcoming Distribution Date: ($____________)
(viii) Aggregated amount of Realized Losses (if any) for the
Collection Period immediately preceding the Distribution Date:
$ ____________
(ix) (a) Amount of distribution attributable to amounts in the Reserve Account: $____________
(b) Amount of other withdrawals from the Reserve Account $____________
(c) Reserve Account Balance $____________
(d) Parity percentage _____%
(e) Amount of Parity Percentage Payments $____________
(x) The aggregate Purchase Amount paid for Financed Student Loans
purchased from the Trust during the immediately preceding
Collection Period: ____________
(xi) During the Subsequent Finance Period only, the aggregate
Issuer 2.3(b) Payments and Adjustment Payments, stated
separately, for the immediately preceding Collection Period:
$____________
(xii) Amount of Financed Student Loans:
(a) that are 31 to 60 days delinquent: $____________
(b) that are 61 to 90 days delinquent: $____________
(c) that are 91 to 120 days delinquent: $____________
(d) that are 120 days delinquent: $____________
(e) for which claims have been filed with
the appropriate Guarantor or the Department of HHS
and which are awaiting payment $____________
</TABLE>
B-2
<PAGE>
EXHIBIT C
TO THE
TRANSFER AND SERVICING AGREEMENT
Form of Administrator's Certificate
[To be provided by the Administrator pursuant to
Section 4.7 of the Transfer and
Servicing Agreement]
C-1
<PAGE>
EXHIBIT D
TO THE TRANSFER AND SERVICING AGREEMENT
ASSIGNMENT FOR
FINANCED STUDENT LOANS
For value received, in accordance with the Transfer and Servicing
Agreement (the "Transfer and Servicing Agreement") dated as of [_______,] 1997,
among the undersigned, as transferor (the "Transferor"), as master servicer (the
"Master Servicer") and as administrator (the "Administrator"), Crestar Student
Loan Trust 1997-1 (the "Trust"), and Star Bank, National Association, not in its
individual capacity but solely as Eligible Lender Trustee (the "Eligible Lender
Trustee"), the undersigned does hereby contribute, assign, transfer and
otherwise convey unto the Eligible Lender Trustee on behalf of the Trust,
without recourse (subject to the obligations set forth in the Transfer and
Servicing Agreement), all right, title and interest of the undersigned in and to
(i) the FFELP Loans and the HEAL Loans set forth on Schedule A-1 to the Transfer
and Servicing Agreement and all obligations of the Obligors thereunder,
including all monies paid or payable thereunder (other than Interest Subsidy
Payments and Special Allowance Payments through the Cut-off Date) after the
Cut-off Date, including the right to enforce such FFELP Loans and HEAL Loans in
the same manner and to the same extent as the Transferor would have the power to
do but for the execution and delivery of the Transfer and Servicing Agreement,
(ii) all funds on deposit from time to time in the Trust Accounts and in all
investments and proceeds thereof (including all income thereon) and (iii) the
proceeds of any and all of the foregoing. The foregoing contribution,
assignment, transfer and conveyance does not constitute and is not intended to
result in any assumption by the Eligible Lender Trustee or the Trust of any
obligation of the Transferor to the borrowers of Initial Financed Student Loans
or any other person in connection with the Financed Student Loans or any
agreement or instrument relating to any of them, except to the extent required
by the Higher Education Act or the HEAL Act, as the case may be.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Transfer and Servicing Agreement and is to be governed by the Transfer and
Servicing Agreement.
Capitalized terms used but not defined herein shall have the meaning
assigned to them in Appendix A to the Transfer and Servicing Agreement, which
also contains rules as to usage that shall be applicable herein.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of [_______,] 1997.
CRESTAR BANK,
as Transferor
By:_________________________________________
Name:
Title:
D-1
<PAGE>
EXHIBIT E
TO THE TRANSFER AND SERVICING AGREEMENT
TRANSFER AGREEMENT
TRANSFER AGREEMENT No. ___dated as of ,_____, among CRESTAR STUDENT
LOAN TRUST 1997-1, a Delaware business trust (the "Issuer"), CRESTAR BANK, a
Virginia banking corporation, as transferor (the "Transferor"), and STAR BANK,
NATIONAL ASSOCIATION, a national banking association, not in its individual
capacity but solely as Eligible Lender Trustee of the Issuer (the "Eligible
Lender Trustee").
WITNESSETH:
WHEREAS the Issuer, the Transferor, the Eligible Lender Trustee, the
Administrator and the Master Servicer (as defined in the Appendix A to the
Transfer and Servicing Agreement) are parties to the Transfer and Servicing
Agreement dated as of [_______,] 1997 (as amended or supplemented, the "Transfer
and Servicing Agreement");
WHEREAS pursuant to the Transfer and Servicing Agreement, the
Transferor wishes to convey the FFELP Loans [and HEAL Loans] referred to in
Section 2 hereof (the "Subsequent Financed Student Loans") to the Eligible
Lender Trustee on behalf of the Issuer; and
WHEREAS, the Eligible Lender Trustee and the Issuer are willing to
accept such conveyance subject to the terms and conditions hereof.
NOW, THEREFORE, the parties hereto hereby agree, intending to be
legally bound hereby, as follows:
1. Definitions and Usage. Unless otherwise defined herein, capitalized
terms used herein shall have the meanings ascribed to them in Appendix A to the
Transfer and Servicing Agreement, which also contains rules of construction and
usage that shall be applicable herein.
In addition, the following terms have the following meanings:
"Subsequent Finance Date" means, with respect to the Subsequent
Financed Student Loans, [_______].
"Subsequent Cut-Off Date" means, with respect to each Subsequent
Financed Student Loan, the date specified as such on Schedule A hereto.
2. Schedule of Subsequent Financed Student Loans. Attached hereto as
Schedule A is a supplement to the Schedule of Financed Student Loans listing the
Subsequent Financed Student Loans to be conveyed on the Subsequent Finance Date
to the Eligible Lender Trustee on behalf of the Issuer pursuant to this
Agreement. Attached hereto as Schedule B is a list of Financed Student Loans
conveyed to the Transferor by the Eligible Lender Trustee on behalf of the
Issuer in exchange for the Subsequent Financed Student Loans conveyed pursuant
to Section 2.3(b) of the Transfer and Servicing Agreement, which Schedule B
shall be deemed to modify the Schedule of Financed Student Loans to delete
therefrom such Financed Student Loans being so conveyed to the Transferor.
E-1
<PAGE>
3. Conveyance of Subsequent Financed Student Loans. In consideration of
the payment of the Subsequent Financing Purchase Price or, with respect to a
conveyance of Subsequent Financed Student Loans pursuant to Section 2.3(b) of
the Transfer and Servicing Agreement, the Issuer's delivery to or upon the order
of the Transferor of the Financed Student Loans listed on Schedule B attached
hereto, the Transferor does hereby contribute, transfer, assign, set over and
otherwise convey, without recourse (subject to the obligations set forth in the
Transfer and Servicing Agreement), to the Eligible Lender Trustee on behalf of
the Issuer:
(a) all right, title and interest in and to each Subsequent
Financed Student Loan, and all obligations of the Obligors thereunder,
including all moneys paid thereunder (other than Interest Subsidy
Payments and Special Allowance Payments payable through the Subsequent
Cut-Off Date), and all written communications received by the
Transferor with respect thereto and still retained by the Transferor in
accordance with its retention policies (including borrower
correspondence, notices of death. disability or bankruptcy and requests
for deferments or forbearances), on and after the Subsequent Cut-Off
Date; and
(b) the proceeds of any and all of the foregoing.
4. Representations and Warranties of the Transferor. The Transferor
hereby represents and warrants to the Issuer as of the date of this Agreement
and as of the Subsequent Finance Date that:
(a) Organization and Good Standing. The Transferor is duly
organized and validly existing as a Virginia banking corporation with
the power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is
presently conducted, except for such power and authority the absence of
which would not have a material adverse effect on the Transferor or its
ability to consummate the transactions contemplated by this Agreement
and the Transferor had at all relevant times, and has, the power,
authority and legal right to originate, acquire and own the Subsequent
Financed Student Loans.
(b) Power and Authority. The Transferor has the requisite
corporate power and authority to execute and deliver this Agreement and
to carry out its terms; the Transferor has requisite corporate power
and authority to transfer and assign the property to be contributed and
assigned to and deposited with the Issuer (or with the Eligible Lender
Trustee on behalf of the Issuer) and the Transferor has duly authorized
such transfer and assignment to the Issuer (or to the Eligible Lender
Trustee on behalf of the Issuer) by all necessary corporate action on
the Transferor's part; and the execution, delivery and performance of
this Agreement have been duly authorized by the Transferor by all
necessary corporate action.
(c) Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of the Transferor enforceable against the
Transferor in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance and
similar laws relating to creditors' rights generally or the rights of
creditors of banks the deposit accounts of which are insured by the
FDIC and subject to general principles of equity.
(d) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
do not violate, result in any breach of any of the terms and provisions
of, nor constitute (with or without notice or lapse of time or both) a
default under, the charter or by-laws of the Transferor, or any
material indenture, material agreement or other material instrument to
which the Transferor is a party or by which it shall be bound; nor
result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such material indenture,
material agreement or other material instrument (other than pursuant to
the Basic Documents); nor violate any material law or, to the knowledge
of the Transferor, any material order, rule or regulation applicable to
it of any court or of any federal or State regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Transferor or its properties.
E-2
<PAGE>
(e) No Proceedings. To its best knowledge, there are no
proceedings or investigations pending or threatened against the
Transferor, before any court, regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over it or its
properties: (i) asserting the invalidity of this Agreement, (ii)
seeking to prevent the consummation of any of the transactions
contemplated by this Agreement, (iii) seeking any determination or
ruling that could reasonably be expected to have a material and adverse
effect on the performance by the Transferor of its obligations under,
or the validity or enforceability of, this Agreement or (iv) seeking to
affect adversely the federal or State income tax attributes of the
Issuer, the Notes or the Certificates.
(f) All Consents. All authorizations, consents, orders or
approvals of or registrations or declarations with any court,
regulatory body, administrative agency or other government
instrumentality required to be obtained, effected or given by the
Transferor in connection with the execution and delivery by the
Transferor of this Agreement and the performance by the Transferor of
the transactions contemplated by this Agreement have been duly
obtained, effected or given and are in full force and effect.
(g) Principal Balances. (i) The aggregate principal balance of
the Consolidation Loans, the HEAL Consolidation Loans, the Serial Loans
and the Student Loans transferred by the Transferor pursuant to Section
2.3(b) of the Transfer and Servicing Agreement that are Subsequent
Financed Student Loans listed on Schedule A attached hereto and
conveyed to the Eligible Lender Trustee on behalf of the Issuer
pursuant to this Agreement as of their respective Subsequent Cut-Off
Dates is $________, $________, $_______ and $________, respectively;
(ii) the aggregate principal balance of the Financed Student Loans
listed on Schedule B attached hereto and to be conveyed to the
Transferor pursuant to Section 2.3(b) of the Transfer and Servicing
Agreement is $_______ ; (iii) the Consolidation Prepayments on deposit
in the Collection Account is $________; (iv) the Issuer 2.3(b) Payments
for the Subsequent Finance Date is $__________; and (v) the Adjustment
Payment for the Subsequent Finance Date is $________.
5. Conditions Precedent. The obligation of the Issuer to acquire the
Subsequent Financed Student Loans hereunder is subject to the satisfaction, on
or prior to the Subsequent Finance Date, of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Transferor in Section 4 of
this Agreement and the representations and warranties made with respect
to the Subsequent Financed Student Loans in Section 3.1 of the Transfer
and Servicing Agreement shall be true and correct in all material
respects as of the date of this Agreement and as of the Subsequent
Finance Date.
(b) Transfer and Servicing Agreement Conditions. Each of the
conditions set forth in Section 2.2(b) of the Transfer and Servicing
Agreement shall have been satisfied.
(c) Delivery of Assignment. The Transferor shall have
delivered an Assignment substantially in the form of Annex A hereto.
Upon the satisfaction of the conditions set forth in this Section 5,
the Eligible Lender Trustee shall have executed and delivered to the Transferor
an Assignment, substantially in the form of Annex B hereto, with respect to any
Financed Student Loans to be conveyed to the Transferor pursuant to Section
2.3(b) of the Transfer and Servicing Agreement, and direct the Indenture Trustee
to transfer to the Transferor the Subsequent Financing Purchase Price in
immediately available funds to an account designated in writing by the
Transferor to the Indenture Trustee.
6. Ratification of Agreement. As supplemented by this Agreement, the
Transfer and Servicing Agreement is in all respects ratified and confirmed and
the Transfer and Servicing Agreement as so supplemented by this Agreement shall
be read, taken and construed as one and the same instrument.
E-3
<PAGE>
7. Counterparts. This Agreement may be executed in separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute but one and the same instrument.
8. Governing Law. This Agreement 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
shall be determined in accordance with such laws.
9. Headings. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective duly authorized officers as of
the day and the year first above written.
CRESTAR STUDENT LOAN TRUST 1997-1
By: STAR BANK, NATIONAL ASSOCIATION, not
in its individual capacity but
solely as Eligible Lender Trustee
By:_________________________________________
Name:
Title:
STAR BANK, NATIONAL ASSOCIATION,
not in its individual capacity but solely as
Eligible Lender Trustee
By: ________________________________________
Name:
Title:
CRESTAR BANK, as
Transferor
By: ________________________________________
Name:
Title:
E-4
<PAGE>
Acknowledged and accepted as of the date first above written:
BANKERS TRUST COMPANY,
not in its individual capacity but solely as
Indenture Trustee
By ______________________________________
Name:
Title:
E-5
<PAGE>
ANNEX A
TO THE TRANSFER AGREEMENT
ASSIGNMENT
For value received, in accordance with the Transfer and Servicing
Agreement (the "Transfer and Servicing Agreement") dated as of [_______,] 1997,
among the undersigned, as transferor (the "Transferor"), as master servicer and
as administrator, Crestar Student Loan Trust 1997-1 (the "Trust"), Star Bank,
National Association, not in its individual capacity but solely as Eligible
Lender Trustee (the "Eligible Lender Trustee"), and the Transfer Agreement No.
__ dated as of____, (the "Transfer Agreement") among the Transferor, the Trust
and the Eligible Lender Trustee, the undersigned does hereby contribute, assign,
transfer and otherwise convey unto the Eligible Lender Trustee on behalf of the
Trust, without recourse (subject to the obligations set forth in the Transfer
and Servicing Agreement), all right, title and interest of the undersigned in
and to (i) the Subsequent Financed Student Loans and all obligations of the
Obligors thereunder, including all moneys paid or payable thereunder (other than
Interest Subsidy Payments and Special Allowance Payments through the related
Subsequent Cut-Off Date) after the related Subsequent Cut-Off Date and (ii) the
proceeds of any and all of the foregoing. The foregoing contribution,
assignment, transfer and conveyance does not constitute and is not intended to
result in any assumption by the Eligible Lender Trustee or the Trust of any
obligation of the Transferor to the borrowers of such Subsequent Financed
Student Loans or any other person in connection with the Subsequent Financed
Student Loans or any agreement or instrument relating to any of them, except to
the extent required by the Higher Education Act or the HEAL Act, as the case may
be.
In addition, the undersigned, by execution of this instrument, hereby
endorses the promissory notes evidencing each Subsequent Financed Student Loan
described in Schedule A to the Transfer Agreement in favor of the Eligible
Lender Trustee on behalf of the Trust, without recourse (subject to the
obligations set forth in the Transfer and Servicing Agreement) against the
undersigned. This endorsement may be effected by attaching a facsimile hereof to
each or any of such promissory notes.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Transfer and Servicing Agreement and the Transfer Agreement and is to be
governed by the Transfer and Servicing Agreement and the Transfer Agreement.
Capitalized terms used but not defined herein shall have the meaning
assigned to them in the Transfer Agreement or in Appendix A to the Transfer and
Servicing Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of______
CRESTAR BANK,
as Transferor
By: ________________________________________
Name:
Title:
A-1
<PAGE>
ANNEX B
TO THE TRANSFER AGREEMENT
ASSIGNMENT
For value received, in accordance with the Transfer and Servicing
Agreement (the "Transfer and Servicing Agreement") dated as of [_______], 1997,
among the undersigned, (the "Trust"), as Master Servicer and as Administrator
(the "Transferor"), and Star Bank, National Association, not in its individual
capacity but solely as Eligible Lender Trustee (the "Eligible Lender Trustee"),
and the Transfer Agreement No. __ dated as of ____________, ____ (the "Transfer
Agreement") among the Transferor, the Trust and the Eligible Lender Trustee, the
undersigned does hereby contribute, assign, transfer and otherwise convey unto
the Transferor, without recourse (subject to the obligations set forth in the
Transfer and Servicing Agreement), all right, title and interest of the
undersigned in and to (i) the Financed Student Loans set forth on Schedule B to
the Transfer Agreement and all obligations of the Obligors thereunder, including
all moneys paid or payable thereunder (other than Interest Subsidy Payments and
Special Allowance Payments through the related Subsequent Cut-off Date) after
the related Subsequent Cut-off Date and (ii) the proceeds of any and all of the
foregoing. The foregoing contribution, assignment. transfer and conveyance does
not constitute and is not intended to result in any assumption by the Transferor
of any obligation of the Eligible Lender Trustee or the Trust to the borrowers
of such Financed Student Loans or any other person in connection with such
Financed Student Loans or any agreement or instrument relating to any of them,
except to the extent required by the Higher Education Act or the HEAL Act, as
the case may be.
In addition, the undersigned, by execution of this instrument, hereby
endorses the promissory notes evidencing each Financed Student Loan described in
Schedule B to the Transfer Agreement in favor of the Transferor, without
recourse, against the undersigned. This endorsement may be effected by attaching
a facsimile hereof to each or any of such promissory notes.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Transfer and Servicing Agreement and the Transfer Agreement and is to be
governed by the Transfer and Servicing Agreement and the Transfer Agreement.
Capitalized terms used but not defined herein shall have the meaning
assigned to them in the Transfer Agreement or in Appendix A to the Transfer and
Servicing Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of______
CRESTAR STUDENT LOAN TRUST 1997-1
By: STAR BANK, NATIONAL ASSOCIATION,
not in its individual capacity but solely as Eligible
Lender Trustee on behalf of the Trust
By: ________________________________________
Name:
Title:
B-1
<PAGE>
SCHEDULE A
TO THE TRANSFER AGREEMENT NO.____
[List of Subsequent Financed Student Loans and
their related Subsequent Cut-Off Dates]
B-1
<PAGE>
SCHEDULE B
TO THE TRANSFER AGREEMENT NO.___
[List of Financed Student Loans
to be Conveyed to the Transferor]
B-2
<PAGE>
EXHIBIT F
TO THE TRANSFER AND SERVICING AGREEMENT
OFFICER'S CERTIFICATE
REQUIRED BY SECTION 2.2(b)(viii) OF THE TRANSFER AND SERVICING AGREEMENT
B-3
EXHIBIT 4.7
DEPARTMENT OF HEALTH & HUMAN SERVICES Public Health Service
- -------------------------------------------------------------------------------
Bureau of Health Professions Health Resources and
Services Administration
Rockville, MD 20857
SECONDARY MARKET INSURANCE CONTRACT
HEALTH EDUCATION ASSISTANCE LOAN PROGRAM
This secondary market insurance contract covers the insurance of loans purchased
under the Health Education Assistance Loan Program. Star Bank, National
Association, referred to below as "the Secondary Market," and the Department of
Health and Human Services, referred to below as "the Secretary," agrees as
follows:
1. For the period October 1, 1997 to September 30, 1998, the Secondary
Market shall purchase and hold loans under the Health Education
Assistance Loan Program in accordance with the provisions of Title VII,
Part A, Subpart I of the Public Health Service Act (42 U.S.C.
292-292p), the regulations contained at 42 CFR Part 60 and any
applicable PHS policies in effect at the time of execution of this
contract or as may in the future be amended and communicated to the
lender in writing.
2. Subject to the provisions stated in paragraph 1, the Secretary shall
insure each eligible loan held by the Secondary Market under the Health
Education Assistance Loan Program against the borrower's default,
bankruptcy, death, or total and permanent disability.
3. Secondary markets are responsible for assuring those entities servicing
their HEAL loans (Servicers) comply with all HEAL regulations and
policy guidelines. Non-compliance by the secondary market's Servicer
will be considered non-compliance by the secondary market.
4. Secondary market must comply with the biennial audit provisions of the
HEAL Program and the HEAL biennial audit guidelines. Institutions of
higher learning and other nonprofit institution secondary markets must
perform biennial audits in accordance with OMB Circular No. A-133 dated
March 8, 1990 and June 24, 1997 and the OMB document, "Compliance
Supplement of Audits of Institutions of Higher Learning and Other
Non-Profit Institutions" dated October 1991. Secondary markets that
are State or local government agencies must complete biennial audits in
accordance with the Single Audit Act and OMB Circular A-128. The
portion of the audit which relates to HEAL activity must be submitted
to the DHHS Regional Director, Office of the Inspector General.
<PAGE>
5. Loans purchased that were or will be made between October 1, 1992
through September 30, 1998 shall be serviced in accordance with the
specific interest rates and compounding/capitalization terms specified
in the originating lender's annual contract with the Secretary and in
the promissory note and addendum (if applicable) approved by the
Secretary. These rates and terms are to cover the life of the loan.
Public Law 102- 408 requires that the compounding frequency be no more
frequently than annually for all loans made on or after October 13,
1992.
Any increase in the interest rates or compounding frequency from that
which is contained in a borrower's promissory note may result in
termination of this contract and will cancel the insurance coverage for
loans made under this insurance contract at invalid rates. The
secondary market agrees to make restitution of any excess interest
charges to all borrowers who are charged interest in violation of this
paragraph of the contract.
6. Loans purchased will remain insured if sold only to another HEAL
lender, HEAL secondary market, or the Student Loan Marketing
Association. HEAL loans can only be re-sold under a contract of sale
which requires the buyer to comply with the procedures set forth in
this paragraph. If a buyer pays to the secondary market on behalf of a
borrower an amount adequate to discharge the borrower's indebtedness to
the secondary market, then the secondary market shall provide to the
re-issuing lender or secondary market a copy of all records maintained
by the secondary market in connection with that loan as required by
Section 60.42 of the HEAL regulations (42 CFR Part 60.42), including a
repayment schedule, and all correspondence relevant to the HEAL loan
that was sent to or received from the borrower by the current secondary
market, a prior holder, or an independent servicing agent.
7. All data on loans transmitted to the Secretary under this secondary
market contract must be provided on magnetic or electronic media via a
method approved by the HEAL program.
8. If the Secondary Market no longer intends to purchase loans or hold
loans under the Health Education Assistance Loan Program, it shall
return this contract to the Secretary for cancellation. Cancellation of
this contract shall not affect the insurance coverage of eligible loans
held prior to the cancellation.
Failure to comply with any or all provisions of this contract may, at the
Secretary's discretion, result in termination of this contract.
FOR THE SECRETARY:
Date: _______________ Signature: _____________________
Print name: ____________________
Title: ____________________
FOR THE SECONDARY MARKET:
<PAGE>
Date: _______________ Signature: _____________________
Print name: ___________________
Title: ____________________
-----------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT
TO SECTION 305(b)(2) ___________
------------------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
Bankers Trust Company
Legal Department
130 Liberty Street, 31st Floor
New York, New York 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
---------------------------------
CRESTAR STUDENT LOAN TRUST 1997-1
(Exact name of obligor as specified in its charter)
Delaware 54-1872152
(State or other jurisdiction of (I.R.S. employer
Incorporation or organization) Identification no.)
c/o Star Bank, N.A.
425 Walnut Street
Cincinnati, Ohio 45201
(Address of principal executive offices) (Zip Code)
CRESTAR STUDENT LOAN TRUST 1997-1
Student Loan Asset Backed Notes
(Title of the indenture securities)
<PAGE>
Item 1. General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising
authority to which it is subject.
Name Address
---- -------
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust
powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each
such affiliation.
None.
Item 3. -15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of Bankers Trust
Company dated August 7, 1990, Certificate of
Amendment of the Organization Certificate of
Bankers Trust Company dated June 21, 1995
Incorporated herein by reference to Exhibit 1
filed with Form T-1 Statement, Registration No.
33-65171, Certificate of Amendment of the
Organization Certificate of Bankers Trust Company
dated March 20, 1996, incorporate by referenced to
Exhibit 1 filed with Form T-1 Statement,
Registration No. 333-25843 and Certificate of
Amendment of the Organization Certificate of
Bankers Trust Company dated June 19, 1997, copy
attached.
Exhibit 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2
filed with Form T-1 Statement, Registration No.
33-21047.
Exhibit 3 - Authorization of the Trustee to exercise corporate
trust powers - Incorporated herein by reference to
Exhibit 2 filed with Form T-1 Statement,
Registration No. 33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust Company, as
amended on February 18, 1997, Incorporated herein
by reference to Exhibit 4 filed with Form T-1
Statement, Registration No. 333-24509-01.
-2-
<PAGE>
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company required by
Section 321(b) of the Act. - Incorporated herein
by reference to Exhibit 4 filed with Form T-1
Statement, Registration No. 22-18864.
Exhibit 7 - The latest report of condition of Bankers Trust
Company dated as of September 30, 1997, copy
attached.
Exhibit 8 - Not Applicable.
Exhibit 9 - Not Applicable.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on the 3rd day
of December, 1997.
BANKERS TRUST COMPANY
By: /s/ Lillian K. Peros
---------------------------
Lillian K. Peros
Assistant Vice President
-4-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, a corporation organized and
existing under the laws of the State of New York, has duly caused this statement
of eligibility to be signed on its behalf by the undersigned, thereunto duly
authorized, all in The City of New York, and State of New York, on the 3rd day
of December, 1997.
BANKERS TRUST COMPANY
By: /s/ Lillian K. Peros
-------------------------------
Lillian K. Peros
Assistant Vice President
-5-
<PAGE>
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New
York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF
AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section
8005 of the Banking Law," dated June 19, 1997, providing for an increase in
authorized capital stock from $1,601,666,670 consisting of 100,166,667 shares
with a par value of $10 each designated as Common Stock and 600 shares with a
par value of $1,000,000 each designated as Series Preferred Stock to
$2,001,666,670 consisting of 100,166,667 shares with a par value of $10 each
designated as Common Stock and 1,000 shares with a par value of $1,000,000 each
designated as Series Preferred Stock.
Witness, my hand and official seal of the Banking
Department at the City of New York, this
27th day of June in the Year of our Lord one
thousand nine hundred and ninety-seven.
Manuel Kursky
------------------------------
Deputy Superintendent of Banks
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of march, 1903.
3. The organization certificate as heretofore amended is hereby amended
to increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is One Billion, Six Hundred and One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($1,601,666,670), divided into
One Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred
Sixty-Seven (100,166,667) shares with a par value of $10 each
designated as Common Stock and 600 shares with a par value of One
Million Dollars ($1,000,000) each designated as Series Preferred
Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Two Billion One Million, Six Hundred Sixty-Six Thousand, Six
Hundred Seventy Dollars ($2,001,666,670), divided into One Hundred
Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(100,166,667) shares with a par value of $10 each designated as Common
Stock and 1000 shares with a par value of One Million Dollars
($1,000,000) each designated as Series Preferred Stock."
<PAGE>
5. The foregoing amendment of the organization certificate was
authorized by unanimous written consent signed by the holder of all outstanding
shares entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this
19th day of June, 1997.
James T. Byrne, Jr.
----------------------------
James T. Byrne, Jr.
Managing Director
Lea Lahtinen
-----------------------------
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an
Assistant Secretary of Bankers Trust Company, the corporation described in the
foregoing certificate; that she has read the foregoing certificate and knows the
contents thereof, and that the statements herein contained are true.
Lea Lahtinen
---------------------
- -------------- Lea Lahtinen
Sworn to before me this 19th day of June, 1997.
Sandra L. West
- -----------------------------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
<PAGE>
<TABLE>
<S> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 09/30/97 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
</TABLE>
Consolidated Report of Condition for Insured Commercial
and State-Chartered Savings Banks for September 30, 1997
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of the
quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
C400
Dollar Amounts in Thousands RCFD Bil Mil Thou
<S> <C>
ASSETS //////////////////
1. Cash and balances due from depository institutions (from Schedule RC-A): //////////////////
a. Noninterest-bearing balances and currency and coin (1) ............................. 0081 1,526,000 1.a.
b. Interest-bearing balances (2) ...................................................... 0071 2,591,000 1.b.
2. Securities: //////////////////
a. Held-to-maturity securities (from Schedule RC-B, column A) ......................... 1754 0 2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)........................ 1773 3,903,000 2.b.
3. Federal funds sold and securities purchased under agreements to resell................... 1350 29,339,000 3.
4. Loans and lease financing receivables: //////////////////
a. Loans and leases, net of unearned income (from Schedule RC-C) RCFD 2122 19,343,000 ////////////////// 4.a.
b. LESS: Allowance for loan and lease losses..........................RCFD 3123 723,000 ////////////////// 4.b.
c. LESS: Allocated transfer risk reserve .............................RCFD 3128 0 ////////////////// 4.c.
d. Loans and leases, net of unearned income, //////////////////
allowance, and reserve (item 4.a minus 4.b and 4.c) ................................ 2125 18,620,000 4.d.
5. Trading Assets (from schedule RC-D) .................................................... 3545 43,032,000 5.
6. Premises and fixed assets (including capitalized leases) ................................ 2145 766,000 6.
7. Other real estate owned (from Schedule RC-M) ............................................ 2150 186,000 7.
8. Investments in unconsolidated subsidiaries and associated companies (from
Schedule RC-M) 2130 59,000 8.
9. Customers' liability to this bank on acceptances outstanding ............................ 2155 703,000 9.
10. Intangible assets (from Schedule RC-M) .................................................. 2143 84,000 10.
11. Other assets (from Schedule RC-F) ....................................................... 2160 5,343,000 11.
12. Total assets (sum of items 1 through 11) ................................................ 2170 106,152,000 12.
</TABLE>
- --------------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
<TABLE>
<S> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 09/30/97 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-2
City, State Zip: New York, NY 10006 12
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
</TABLE>
<TABLE>
<CAPTION>
Dollar Amounts in Thousands //////// Bil Mil Thou
<S> <C>
LIABILITIES ////////////////////////
13. Deposits: ////////////////////////
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) RCON 2200 22,016,000 13.a.
(1) Noninterest-bearing(1) ...........RCON 6631 2,272,000.............. ////////////////////// 13.a.(1)
(2) Interest-bearing ..................RCON 6636 19,744,000.............. ////////////////////// 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E //////////////////////
part II) RCFN 2200 26,396,000 13.b.
(1) Noninterest-bearing ..............RCFN 6631 1,304,000 ////////////////////// 13.b.(1)
(2) Interest-bearing .................RCFN 6636 25,092,000 ////////////////////// 13.b.(2)
14. Federal funds purchased and securities sold under agreements to repurchase RCFD 2800 11,779,000 14.
15. a. Demand notes issued to the U.S. Treasury ........................................ RCON 2840 0 15.a.
b. Trading liabilities (from Schedule RC-D)......................................... RCFD 3548 23,059,000 15.b.
16. Other borrowed money (includes mortgage indebtedness and obligations under
capitalized leases): ////////////////// /
a. With a remaining maturity of one year or less ................................... RCFD 2332 6,391,000 16.a.
b. With a remaining maturity of more than one year through three years............. A547 369,000 16.b.
c. With a remaining maturity of more than three years............................... A548 3,176,000 16.c
17. Not Applicable. ////////////////////// 17.
18. Bank's liability on acceptances executed and outstanding ............................. RCFD 2920 703,000 18.
19. Subordinated notes and debentures (2)................................................. RCFD 3200 1,250,000 19.
20. Other liabilities (from Schedule RC-G) ............................................... RCFD 2930 5,222,000 20.
21. Total liabilities (sum of items 13 through 20) ....................................... RCFD 2948 100,361,000 21.
22. Not Applicable ////////////////////
////////////////////// 22.
EQUITY CAPITAL ////////////////////
23. Perpetual preferred stock and related surplus ........................................ RCFD 3838 1,000,000 23.
24. Common stock ......................................................................... RCFD 3230 1,202,000 24.
25. Surplus (exclude all surplus related to preferred stock) ............................. RCFD 3839 540,000 25.
26. a. Undivided profits and capital reserves .......................................... RCFD 3632 3,409,000 26.a.
b. Net unrealized holding gains (losses) on available-for-sale securities .......... RCFD 8434 15,000 26.b.
27. Cumulative foreign currency translation adjustments .................................. RCFD 3284 (375,000)27.
28. Total equity capital (sum of items 23 through 27) .................................... RCFD 3210 5,791,000 28.
29. Total liabilities and equity capital (sum of items 21 and 28)......................... RCFD 3300 106,152,000 29
</TABLE>
<TABLE>
<S> <C>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best describes the
most comprehensive level of auditing work performed for the bank by independent external Number
auditors as of any date during 1996 .............................................. RCFD 6724 N/A M.1
</TABLE>
1 = Independent audit of the bank conducted in accordance
with generally accepted auditing standards by a certified
public accounting firm which submits a report on the bank
2 = Independent audit of the bank's parent holding company
conducted in accordance with generally accepted auditing
standards by a certified public accounting firm which
submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in
accordance with generally accepted auditing standards by a certified
public accounting firm (may be required by state chartering authority)
4 = Directors' examination of the bank performed by other
external auditors (may be required by state chartering
authority)
5 = Review of the bank's financial statements by external
auditors
6 = Compilation of the bank's financial statements by external
auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ----------------------
(1) Including total demand deposits and noninterest-bearing time and
savings deposits.
(2) Includes limited-life preferred stock and related surplus.
