Exhibit 4.11
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INDENTURE OF TRUST
by and among
NELNET EDUCATION LOAN FUNDING, INC.
and
WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
as Indenture Trustee
and
WELLS FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
as Eligible Lender Trustee
Dated as of January 1, 2004
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Exhibit 4.11
TABLE OF CONTENTS
(This Table of Contents is for convenience of reference only and is
not
intended to define, limit or describe the
purpose or intent of any provisions of
this Indenture of Trust.)
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ARTICLE I
DEFINITIONS AND USE OF
PHRASES...................................................................................3
ARTICLE II
THE SERIES 2004-1 NOTES
Section 2.01.
Series 2004-1 Note
Details................................................................24
Section 2.02.
Execution of Series 2004-1
Notes..........................................................27
Section 2.03.
Registration, Transfer and Exchange of Series 2004-1 Notes; Persons
Treated as
Registered
Owners.........................................................................27
Section 2.04.
Lost, Stolen, Destroyed and Mutilated Series 2004-1
Notes.................................31
Section 2.05.
Forms of Series 2004-1
Notes..............................................................31
Section 2.06.
Indenture Trustee's Authentication
Certificate............................................31
Section 2.07.
Cancellation and Destruction of Series 2004-1 Notes by the
Indenture Trustee..............32
Section 2.08.
Temporary Series 2004-1
Notes.............................................................32
Section 2.09.
Redemption of and Principal Reduction Payments on the Series 2004-1
Notes.................32
Section 2.10.
Delivery of Series 2004-1
Notes...........................................................36
Section 2.11.
Deposit of Series 2004-1 Note
Proceeds....................................................37
ARTICLE III
PARITY AND PRIORITY OF LIEN; OTHER OBLIGATIONS; AND DERIVATIVE
PRODUCTS
Section 3.01.
Parity and Priority of
Lien...............................................................37
Section 3.02.
Other
Obligations.........................................................................37
Section 3.03.
Derivative Products; Counterparty Payments; Issuer Derivative
Payments....................38
ARTICLE IV
PROVISIONS APPLICABLE TO THE NOTES; DUTIES OF THE ISSUER
Section 4.01.
Payment of Principal, Interest and
Premium................................................39
Section 4.02.
Representations and Warranties of the
Issuer..............................................39
Section 4.03.
Covenants as to Additional
Conveyances....................................................39
Section 4.04.
Further Covenants of the
Issuer...........................................................39
Section 4.05.
Enforcement of Servicing
Agreements.......................................................41
Section 4.06.
Procedures for Transfer of
Funds..........................................................41
Section 4.07.
Additional Covenants with Respect to the Higher Education
Act.............................42
Section 4.08.
Financed Eligible Loans; Collections Thereof; Assignment
Thereof..........................43
Section 4.09.
Appointment of Agents,
Etc................................................................43
Section 4.10.
Capacity to
Sue...........................................................................43
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Exhibit 4.11
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Section 4.11.
Continued Existence; Successor to
Issuer..................................................44
Section 4.12.
Amendment of Student Loan Purchase
Agreements.............................................44
Section 4.13.
Representations; Negative
Covenants.......................................................44
Section 4.14.
Additional
Covenants......................................................................50
Section 4.15.
Providing of
Notice.......................................................................51
Section 4.16.
Statement as to
Compliance................................................................51
Section 4.17.
Collection of Indebtedness and Suits for Enforcement by Indenture
Trustee.................51
Section 4.18.
Representations of the Issuer Regarding the Indenture Trustee's
Security Interest.........52
Section 4.19.
Covenants of the Issuer Regarding the Indenture Trustee's Security
Interest...............53
Section 4.20.
Tax
Treatment.............................................................................53
Section 4.21.
Opinions as to Indenture Trust
Estate.....................................................54
Section 4.22.
Borrower Incentive
Programs...............................................................54
ARTICLE V
FUNDS
Section 5.01.
Creation and Continuation of Funds and
Accounts...........................................55
Section 5.02.
Acquisition
Fund..........................................................................55
Section 5.03.
Class B Supplemental Reserve
Fund.........................................................58
Section 5.04.
Collection
Fund...........................................................................59
Section 5.05.
Note Payment
Fund.........................................................................64
Section 5.06.
Remarketing Fee
Fund......................................................................67
Section 5.07.
Reserve
Fund..............................................................................68
Section 5.08.
Supplemental Interest
Fund................................................................68
Section 5.09.
Transfers to
Issuer.......................................................................69
Section 5.10.
Investment of Funds Held by Indenture
Trustee.............................................69
Section 5.11.
Investment
Securities.....................................................................70
Section 5.12.
Release; Sale of Financed Eligible
Loans..................................................72
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.01.
Events of Default
Defined.................................................................73
Section 6.02.
Remedy on Default; Possession of Trust
Estate.............................................74
Section 6.03.
Remedies on Default; Advice of
Counsel....................................................75
Section 6.04.
Remedies on Default; Sale of Trust
Estate.................................................75
Section 6.05.
Appointment of
Receiver...................................................................76
Section 6.06.
Restoration of
Position...................................................................76
Section 6.07.
Purchase of Properties by Indenture Trustee or Registered
Owners..........................76
Section 6.08.
Application of Sale
Proceeds..............................................................77
Section 6.09.
Accelerated
Maturity......................................................................77
Section 6.10.
Remedies Not
Exclusive....................................................................77
Section 6.11.
Direction of Indenture
Trustee............................................................77
Section 6.12.
Right to Enforce in Indenture
Trustee.....................................................78
Section 6.13.
Physical Possession of Obligations not
Required...........................................78
Section 6.14.
Waivers of Events of
Default..............................................................79
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Exhibit 4.11
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Section 6.15.
Notice of
Defaults........................................................................79
ARTICLE VII
THE INDENTURE TRUSTEE
Section 7.01.
Acceptance of
Trust.......................................................................79
Section 7.02.
Recitals of
Others........................................................................80
Section 7.03.
As to Filing of
Indenture.................................................................80
Section 7.04.
Indenture Trustee May Act Through
Agents..................................................80
Section 7.05.
Indemnification of Indenture
Trustee......................................................81
Section 7.06.
Indenture
Trustee's Right to
Reliance.....................................................82
Section 7.07.
Compensation of Indenture
Trustee.........................................................82
Section 7.08.
Indenture Trustee May Own Series 2004-1
Notes.............................................83
Section 7.09.
Resignation of Indenture
Trustee..........................................................83
Section 7.10.
Removal of Indenture
Trustee..............................................................83
Section 7.11.
Successor Indenture
Trustee...............................................................84
Section 7.12.
Manner of Vesting Title in Indenture
Trustee..............................................84
Section 7.13.
Additional Covenants by the Indenture Trustee to Conform to the
Higher Education
Act.......................................................................................85
Section 7.14.
Right of
Inspection.......................................................................85
Section 7.15.
Limitation with Respect to Examination of
Reports.........................................85
Section 7.16.
Servicing
Agreement.......................................................................85
Section 7.17.
Additional Covenants of Indenture
Trustee.................................................85
Section 7.18.
Duty of Indenture Trustee with Respect to Rating
Agencies.................................86
Section 7.19.
Merger of the Indenture
Trustee...........................................................86
Section 7.20.
Receipt of Funds from
Servicers...........................................................87
Section 7.21.
Special Circumstances Leading to Resignation of Indenture
Trustee.........................87
Section 7.22.
Survival of Indenture Trustee's Rights to Receive Compensation,
Reimbursement and
Indemnification...........................................................................87
Section 7.23.
Indenture Trustee May File Proofs of
Claim................................................87
Section 7.24.
Payment of Taxes and Other Governmental
Charges...........................................88
ARTICLE VIII
SUPPLEMENTAL INDENTURES
Section 8.01.
Supplemental Indentures Not Requiring Consent of Registered
Owners........................88
Section 8.02.
Supplemental Indentures Requiring Consent of Registered
Owners............................90
Section 8.03.
Additional Limitation on Modification of
Indenture........................................91
ARTICLE IX
GENERAL PROVISIONS
Section 9.01.
Notices...................................................................................91
Section 9.02.
Covenants Bind
Issuer.....................................................................92
Section 9.03.
Lien
Created..............................................................................92
Section 9.04.
Severability of
Lien......................................................................92
Section 9.05.
Consent of Registered Owners Binds
Successors.............................................92
Section 9.06.
Nonliability of
Directors; No General
Obligation..........................................93
Section 9.07.
Nonpresentment of Series 2004-1 Notes or Interest
Checks..................................93
Section 9.08.
Security
Agreement........................................................................93
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Exhibit 4.11
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Section 9.09.
Laws
Governing............................................................................93
Section 9.10.
Severability..............................................................................93
Section 9.11.
Exhibits..................................................................................93
Section 9.12.
Non-Business
Days.........................................................................94
Section 9.13.
Parties Interested
Herein.................................................................94
Section 9.14.
Obligations Are Limited
Obligations.......................................................94
Section 9.15.
Counterparty
Rights.......................................................................94
Section 9.16.
Aggregate Principal Amount of
Obligations.................................................94
Section 9.17.
Financed Eligible
Loans...................................................................94
Section 9.18.
No Petition;
Subordination................................................................94
ARTICLE
X
PAYMENT AND CANCELLATION OF NOTES AND SATISFACTION OF INDENTURE
Section 10.01.
Trust
Irrevocable.........................................................................95
Section 10.02.
Satisfaction of
Indenture.................................................................95
Section 10.03.
Cancellation of Paid Series 2004-1
Notes..................................................96
ARTICLE XI
TERMINATION
Section 11.01.
Termination of the
Trust..................................................................96
Section 11.02.
Notice....................................................................................97
ARTICLE XII
REPORTING REQUIREMENTS
Section 12.01.
Annual Statement as to
Compliance.........................................................97
Section 12.02.
Annual Independent Public Accountants' Servicing
Report...................................98
Section 12.03.
Administrator's
Certificate...............................................................98
Section 12.04.
Statements to Registered
Owners...........................................................98
APPENDIX A CERTAIN TERMS AND PROVISIONS OF
THE Reset RATE
NOTES................................................A-1
APPENDIX B CERTAIN TERMS AND PROVISIONS OF
THE AUCTION RATE
NOTES..............................................B-1
EXHIBIT A FORM OF RESET RATE
NOTES.............................................................................A-1
EXHIBIT B FORM OF AUCTION RATE
NOTES...........................................................................B-1
EXHIBIT C NOTICE OF PAYMENT
DEFAULT............................................................................C-1
EXHIBIT D NOTICE OF CURE OF PAYMENT
DEFAULT....................................................................D-1
EXHIBIT E NOTICE OF PROPOSED CHANGE IN
LENGTH OF ONE OR MORE AUCTION
PERIODS...................................E-1
EXHIBIT F NOTICE ESTABLISHING CHANGE IN
LENGTH OF ONE OR MORE AUCTION
PERIODS..................................F-1
EXHIBIT G NOTICE OF CHANGE IN AUCTION
DATE.....................................................................G-1
EXHIBIT H ELIGIBLE LOAN ACQUISITION
CERTIFICATE................................................................H-1
EXHIBIT I FORM OF ADMINISTRATOR'S MONTHLY
SERVICING PAYMENT DATE
CERTIFICATE...................................I-1
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Exhibit 4.11
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EXHIBIT J FORM OF ADMINISTRATOR'S
DISTRIBUTION DATE
CERTIFICATE................................................J-1
EXHIBIT K FORM OF STUDENT LOAN PURCHASE
AGREEMENT..............................................................K-1
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Exhibit 4.11
INDENTURE OF TRUST
THIS INDENTURE
OF TRUST, dated as of January 1, 2004 (this
"Indenture"), is by and among NELNET
EDUCATION LOAN FUNDING, INC., a corporation
duly organized and existing under the laws of the State of Nebraska (the
"Issuer"), WELLS FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
a national banking
association duly organized and operating under
the laws of the United States of
America, as indenture trustee hereunder (together with its successors, the
"Indenture Trustee"), and WELLS FARGO BANK
MINNESOTA, National
Association, as
eligible lender trustee hereunder
(together with its
successors, the
"Eligible
Lender Trustee") (all capitalized
terms used in these
preambles, recitals
and
granting clauses shall have the same meanings assigned thereto in Article I
hereof);
W I T N E S S E T H:
WHEREAS, the Issuer represents that it is duly created as a
corporation
under the laws of the State and that by
proper action of its
governing body it
has duly authorized the execution and delivery of this Indenture, which
Indenture provides for the payment of student loan asset-backed notes (the
"Series 2004-1 Notes") and the payments to
any Counterparty; and
WHEREAS, the Indenture
Trustee has agreed to
accept the trusts herein
created upon the terms herein set forth;
and
WHEREAS, it is hereby agreed between the parties hereto, the
Registered
Owners of the Series 2004-1 Notes (the Registered Owners evidencing their
consent by their acceptance of the Series
2004-1 Notes) and any Counterparty
(the Counterparty evidencing its consent by its execution and delivery of a
Derivative Product) that in the performance of any of the agreements of the
Issuer herein contained, any obligation it may thereby
incur for the payment of
money shall not be general debt on its
part, but shall be secured by and payable
solely from the Trust Estate, payable in such order of
preference and
priority
as provided herein;
NOW, THEREFORE, the
Issuer and, with respect to the legal title to the
Financed Eligible Loans, the Eligible Lender Trustee,
in consideration of
the
premises and acceptance by the Indenture
Trustee of the trusts
herein created,
of the purchase and acceptance of the Series 2004-1 Notes by the Registered
Owners thereof, of the execution and delivery of
any Derivative
Product by a
Counterparty and the Issuer and the
acknowledgement
thereof by the
Indenture
Trustee, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby
acknowledged, does hereby GRANT, CONVEY, PLEDGE,
TRANSFER, ASSIGN AND DELIVER to the
Indenture Trustee,
for the benefit of
the
Registered Owners of the Series 2004-1
Notes and any Counterparty (to secure the
payment of any and all amounts which may from time to time become
due and owing
to a Counterparty pursuant to any
Derivative Product), all of their right, title
and interest in and to the moneys,
rights, and properties described in the
granting clauses A through F below (the
"Trust Estate"), as follows:
GRANTING CLAUSE A
The Revenues (other
than Revenues released
from the lien of the Trust
Estate as provided herein);
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Exhibit 4.11
GRANTING CLAUSE B
All moneys
and investments held in the Funds and Accounts created
pursuant to Section 5.01 hereof;
GRANTING CLAUSE C
The Financed
Eligible Loans (other than Financed Eligible Loans
released from the lien of the Trust Estate
as provided herein);
GRANTING CLAUSE D
The Servicing
Agreements, the
Administration
Agreement,
the Escrow
Reserve Agreement, the Assignment Agreement, the Student Loan Purchase
Agreements, the Custodian Agreements and the Guarantee
Agreements as the
same
relate to Financed Eligible Loans;
GRANTING CLAUSE E
Any Derivative
Product and any Counterparty Guarantee; provided,
however, that this Granting Clause E shall not be for the benefit of a
Counterparty with respect to its Derivative
Product or any related
Counterparty
Guarantee; and
GRANTING CLAUSE F
Any and all other
property, rights
and interests of every kind or
description that from time to time
hereafter is granted, conveyed, pledged,
transferred, assigned or delivered to the Indenture Trustee as additional
security hereunder.
TO HAVE AND TO HOLD the Trust Estate, whether now owned or held or
hereafter acquired, unto the Indenture
Trustee and its successors or assigns;
IN TRUST NEVERTHELESS,
upon the terms and
trusts herein set forth for
the equal and proportionate benefit and security of all present and future
Registered Owners of the Series 2004-1
Notes, without
preference of any
Series
2004-1 Note over any other, except as provided herein, and for enforcement of
the payment of the Series 2004-1 Notes in
accordance with their
terms, and all
other sums payable hereunder (including payments due and payable to any
Counterparty) or on the Series 2004-1
Notes, and for the performance of and
compliance with the obligations, covenants,
and conditions of this Indenture, as
if all the Series 2004-1 Notes and any Derivative Products at any time
Outstanding had been executed and delivered
simultaneously
with the execution
and delivery of this Indenture;
PROVIDED, HOWEVER, that if the Issuer, its successors or assigns,
shall
well and truly pay, or cause to be paid, the principal of the Series 2004-1
Notes and the interest due and to become due thereon, or provide fully for
payment thereof as herein provided,
at the times and in
the manner mentioned in
the Series 2004-1 Notes according to the true intent and
meaning thereof,
and
shall make all required payments into the Funds as required
under Article V
hereof, or shall provide, as permitted hereby, for the payment thereof by
depositing with the Indenture Trustee sums sufficient to pay or
to provide for
payment of the entire amount due and to become so due as herein provided
(including payments due and payable to any
Counterparty),
then this
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Exhibit 4.11
Indenture and the rights hereby granted shall cease, terminate and be void;
otherwise, this Indenture shall be and
remain in full force and effect;
NOW, THEREFORE, it is mutually covenanted and agreed as
follows:
ARTICLE I
DEFINITIONS AND USE OF PHRASES
The following
terms have the
following meanings unless the context
clearly requires otherwise (certain additional terms relating to the Series
2004-1 Notes are defined in Appendices A
and B hereto):
"Account" shall mean any of the accounts created and established
within
any Fund pursuant to this Indenture.
"Acquisition Fund"
shall mean the Fund by that name created in Section
5.01(a) hereof and further described in Section 5.02 hereof, including any
Accounts and Subaccounts created
therein.
"Add-on Consolidation Loan" shall mean an Eligible Loan included in
the
Trust Estate, the principal balance of which is added to an existing
Consolidation Loan during the Add-on
Period, as required by the Higher Education
Act.
"Add-on Period"
shall mean the period of 180 days after the date
of
origination of any Consolidation Loan
financed by the Issuer.
"Administration
Agreement" shall
mean the Administrative Services
Agreement, dated as of January 1, 2004,
among the Issuer, the Indenture Trustee,
the Eligible Lender Trustee and National Education Loan Network, Inc., as
administrator, and any other Administration
Agreement entered into
between the
Issuer and an entity that will provide
administrative
services for the
Issuer,
each as amended and supplemented pursuant
to the terms and provisions thereof.
"Administration Fee"
shall mean an amount equal to 0.18% per annum,
based on the aggregate principal amount of the Financed
Eligible Loans
within
the Trust Estate at any time, as determined
by the Administrator.
"Administrator" shall mean National Education Loan Network, Inc. in
its
capacity as administrator of the Issuer and
the Financed Eligible Loans, and any
successor thereto in accordance with the
Administration Agreement.
"Administrator's
Distribution
Date
Certificate"
shall mean
a
certificate signed by the Administrator in substantially
the form attached
as
Exhibit J hereto.
"Administrator's Monthly Servicing Payment Date Certificate" shall
mean
a certificate signed by the Administrator in
substantially the form attached as
Exhibit I hereto.
"Agent Member" shall mean a member of, or participant in, a Securities
Depository.
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Exhibit 4.11
"Aggregate Quarterly
Funding Amount" shall mean, for any Quarterly
Distribution Date, the sum of the Quarterly
Funding Amounts for
that Quarterly
Distribution Date; provided, however, that
if the aggregate amount on deposit in
the Remarketing Fee Fund on any Quarterly
Distribution Date, after giving effect
to any remarketing fee payments therefrom in respect of that Quarterly
Distribution Date, exceeds the sum of the Reset
Period Target Amounts for that
Quarterly Distribution Date, such excess will be
transferred to the Collection
Fund pursuant to Section 5.06 of the
Indenture.
"Aggregate Value"
shall mean on any
calculation
date the sum of
the
Values of all assets of the Trust
Estate.
"Asset Release Test"
shall have the meaning
described in Section 5.09
hereof.
"Assignment Agreement"
shall mean the Partial
Assignment
Agreement,
dated as of January 1, 2004, between the Issuer and the Indenture Trustee
assigning to the Indenture Trustee certain
rights of the Issuer under certain of
its loan purchase agreements and servicing agreements, as amended and
supplemented pursuant to the terms and
provisions thereof.
"Auction Rate Distribution Date" shall mean, with respect to each
Class
of the Auction Rate Notes, (a) so long as such Class of the
Auction Rate Notes
bear interest at an Auction Rate Notes
Interest Rate for an Auction Period of
not greater than 90 days, the Business Day
immediately following
the expiration
of the Initial Period for such Auction Rate Notes, and each related Auction
Period thereafter, commencing on March 4,
2004 for the Class B-1 Notes and March
11, 2004 for the Class B-2
Notes; and (b) if and for so long as such
Class of
the Auction Rate Notes bear interest at an
Auction Rate Notes
Interest Rate for
an Auction Period of greater than 90 days,
the 25th day of each
February, May,
August and November and the Business Day
immediately following the expiration of
the related Auction Period. On any Auction Rate Distribution Date that is a
designated calendar date (such as described in clause (b) above), if the
designated date is not a Business
Day, interest shall be payable on the next
succeeding Business Day in the amount
accrued to but
excluding the
designated
calendar date and no interest shall accrue
on the payment so deferred during the
intervening period. On any Auction Rate Distribution Date that is not a
designated calendar date (such as described
in clause (a) above), interest shall
be payable in the amount accrued to but excluding the date
on which interest is
actually paid.
"Auction Rate Notes" shall mean, collectively, the Class B-1 Notes and
the Class B-2 Notes.
"Auction Rate Notes Carry-over Amount" shall have the meaning
ascribed
to such term in Appendix B hereto.
"Authorized Denominations" shall mean (a) with respect to each
Class of
the Reset Rate Notes, $100,000 and any integral multiple of $1,000 in excess
thereof, and (b) with respect to the Auction Rate Notes, $50,000 and any
integral multiple thereof.
"Authorized Officer"
shall mean, when used with reference to the
Issuer, its Chairman, President, any Vice President or Secretary,
or any other
officer or board member authorized in writing by the Board of
Directors to act
on behalf of the Issuer.
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Exhibit 4.11
"Authorized Representative" shall mean, when used with reference to
the
Issuer, (a) an Authorized Officer, (b) the Administrator or (c) any
officer or
board member of any affiliate organization or other entity authorized by the
Board of Directors to act on the Issuer's
behalf.
"Board of Directors" shall mean the Board of Directors of the
Issuer.
"Business Day"
shall have the meanings ascribed to such term in
Appendices A and B hereto.
"Certificate of
Insurance"
shall mean any
certificate
evidencing a
Financed Eligible Loan is Insured pursuant
to a Contract of Insurance.
"Class" shall mean,
(a) with the respect to the Reset Rate Notes, any
or all of the Class A-1A Notes,
the Class A-1B
Notes, the Class A-2 Notes and
the Class A-3 Notes and (b) with the
respect to the Auction
Rate Notes, either
or both of the Class B-1 Notes and the
Class B-2 Notes.
"Class A Notes" shall
mean, collectively,
the Class A-1A Notes,
the
Class A-1B Notes, the Class A-2 Notes and
the Class A-3 Notes.
"Class A-1A
Interest Account" shall mean the Account by that name
created by Section 5.01(d) hereof within the Note Payment Fund and further
described in Section 5.05 hereof, including
any Subaccounts created therein.
"Class A-1A Notes" shall mean the $267,700,000 Nelnet Education Loan
Funding, Inc., Student Loan Asset-Backed
Notes, Senior Class 2004A-1A Reset Rate
Notes.
"Class A-1A Notes
Interest Distribution
Amount" shall mean,
for each
Quarterly Distribution Date, the sum of (a) the amount of
interest accrued
at
the Class A-1A Notes Interest Rate for the related Accrual Period on the
Outstanding Amount of the Class A-1A Notes
immediately prior to
such Quarterly
Distribution Date; and (b) the Class A-1A Notes
Interest Shortfall for such
Quarterly Distribution Date, as based on the appropriate Day Count Basis and
rounding the resultant figure to the fifth decimal place,
as determined by
the
Administrator.
"Class A-1A Notes Interest Shortfall" shall mean, with respect to
any
Quarterly Distribution Date, the excess, if any, of (a) the Class A-1A
Notes
Interest Distribution Amount on the
immediately preceding Quarterly Distribution
Date over (b) the amount of interest actually distributed to the Registered
Owners of the Class A-1A Notes on such
preceding Quarterly
Distribution
Date,
plus interest on the amount of such excess
interest due to the Registered Owners
of the Class A-1A Notes, to the extent permitted by law, at the interest
rate
borne by the Class A-1A Notes from such immediately preceding Quarterly
Distribution Date to the current Quarterly
Distribution
Date, as determined
by
the Administrator.
"Class A-1A
Redemption
Account" shall mean the Account by that
name
created by Section 5.01(d) hereof within the Note Payment Fund and further
described in Section 5.05 hereof, including
any Subaccounts created therein.
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Exhibit 4.11
"Class A-1A
Supplemental Interest
Account" shall mean
the Account by
that name created by Section 5.01(g) hereof within the Supplemental Interest
Fund and further described in Section 5.08 hereof,
including any Subaccounts
created therein.
"Class A-1B
Interest Account" shall mean the Account by that name
created by Section 5.01(d) hereof within the Note Payment Fund and further
described in Section 5.05 hereof, including
any Subaccounts created therein.
"Class A-1B Notes" shall mean the $210,000,000 Nelnet Education Loan
Funding, Inc., Student Loan Asset-Backed
Notes, Senior Class 2004A-1B Reset Rate
Notes.
"Class A-1B Notes
Interest Distribution
Amount" shall mean,
for each
Quarterly Distribution Date, the sum of (a) the amount of
interest accrued
at
the Class A-1B Notes Interest Rate for the related Accrual Period on the
Outstanding Amount of the Class A-1B Notes
immediately prior to
such Quarterly
Distribution Date; and (b) the Class A-1B Notes
Interest Shortfall for such
Quarterly Distribution Date, as based on the appropriate Day Count Basis and
rounding the resultant figure to the fifth decimal place,
as determined by
the
Administrator.
"Class A-1B Notes Interest Shortfall" shall mean, with respect to
any
Quarterly Distribution Date, the excess, if any, of (a) the Class A-1B
Notes
Interest Distribution Amount on the
immediately preceding Quarterly Distribution
Date over (b) the amount of interest actually distributed to the Registered
Owners of the Class A-1B Notes on such
preceding Quarterly
Distribution
Date,
plus interest on the amount of such excess
interest due to the Registered Owners
of the Class A-1B Notes, to the extent permitted by law, at the interest
rate
borne by the Class A-1B Notes from such immediately preceding Quarterly
Distribution Date to the current Quarterly
Distribution
Date, as determined
by
the Administrator.
"Class A-1B
Redemption
Account" shall mean the Account by that
name
created by Section 5.01(d) hereof within the Note Payment Fund and further
described in Section 5.05 hereof, including
any Subaccounts created therein.
"Class A-1B
Supplemental Interest
Account" shall mean
the Account by
that name created by Section 5.01(g) hereof within the Supplemental Interest
Fund and further described in Section 5.08 hereof,
including any Subaccounts
created therein.
"Class A-2
Interest Account" shall mean the Account by that name
created by Section 5.01(d) hereof within the Note Payment Fund and further
described in Section 5.05 hereof, including
any Subaccounts created therein.
"Class A-2 Notes" shall mean the $372,000,000 Nelnet Education Loan
Funding, Inc., Student Loan Asset-Backed
Notes, Senior Class 2004A-2 Reset Rate
Notes.
"Class A-2 Notes
Interest Distribution
Amount" shall mean,
for each
Quarterly Distribution Date, the sum of (a) the amount of
interest accrued
at
the Class A-2 Notes Interest Rate for the related Accrual Period on the
aggregate outstanding principal balance of
the Class A-2 Notes immediately prior
to such Quarterly Distribution Date; and (b) the Class A-2 Notes Interest
Shortfall for such Quarterly Distribution Date, as based on the
appropriate Day
6
<PAGE>
Exhibit 4.11
Count Basis and rounding the resultant figure to the fifth decimal
place, as
determined by the Administrator.
"Class A-2 Notes Interest Shortfall" shall mean, with respect to any
Quarterly Distribution Date, the excess, if any, of (a) the Class A-2
Notes
Interest Distribution Amount on the
immediately preceding Quarterly Distribution
Date over (b) the amount of interest actually distributed to the Registered
Owners of the Class A-2 Notes on such
preceding Quarterly Distribution Date,
plus interest on the amount of such excess
interest due to the Registered Owners
of the Class A-2 Notes, to the extent permitted by law, at the
interest rate
borne by the Class A-2 Notes from such immediately preceding Quarterly
Distribution Date to the current Quarterly
Distribution
Date, as determined
by
the Administrator.
"Class A-2 Redemption
Account" shall mean the Account by that name
created by Section 5.01(d) hereof within the Note Payment Fund and further
described in Section 5.05 hereof, including
any Subaccounts created therein.
"Class A-2
Supplemental Interest
Account" shall mean the Account by
that name created by Section 5.01(g) hereof within the Supplemental Interest
Fund and further described in Section 5.08 hereof,
including any Subaccounts
created therein.
"Class A-3
Interest Account" shall mean the Account by that name
created by Section 5.01(d) hereof within the Note Payment Fund and further
described in Section 5.05 hereof, including
any Subaccounts created therein.
"Class A-3 Notes" shall mean the $130,000,000 Nelnet Education Loan
Funding, Inc., Student Loan Asset-Backed
Notes, Senior Class 2004A-3 Reset Rate
Notes.
"Class A-3 Notes
Interest Distribution
Amount" shall mean,
for each
Quarterly Distribution Date, the sum of (a) the amount of
interest accrued
at
the Class A-3 Notes Interest Rate for the related Accrual Period on the
aggregate outstanding principal balance of
the Class A-3 Notes immediately prior
to such Quarterly Distribution Date; and (b) the Class A-3 Notes Interest
Shortfall for such Quarterly Distribution Date, as based on the
appropriate Day
Count Basis and rounding the resultant figure to the fifth decimal
place, as
determined by the Administrator.
"Class A-3 Notes Interest Shortfall" shall mean, with respect to any
Quarterly Distribution Date, the excess, if any, of (a) the Class A-3
Notes
Interest Distribution Amount on the
immediately preceding Quarterly Distribution
Date over (b) the amount of interest actually distributed to the Registered
Owners of the Class A-3 Notes on such
preceding Quarterly Distribution Date,
plus interest on the amount of such excess
interest due to the Registered Owners
of the Class A-3 Notes, to the extent permitted by law, at the
interest rate
borne by the Class A-3 Notes from such immediately preceding Quarterly
Distribution Date to the current Quarterly
Distribution
Date, as determined
by
the Administrator.
"Class A-3 Redemption
Account" shall mean the Account by that name
created by Section 5.01(d) hereof within the Note Payment Fund and further
described in Section 5.05 hereof, including
any Subaccounts created therein.
7
<PAGE>
Exhibit 4.11
"Class A-3
Supplemental Interest
Account" shall mean the Account by
that name created by Section 5.01(g) hereof within the Supplemental Interest
Fund and further described in Section 5.08 hereof,
including any Subaccounts
created therein.
"Class B Notes" shall mean, collectively, the Class B-1 Notes and the
Class B-2 Notes.
"Class B Supplemental
Reserve Fund" shall mean the Fund by that
name
created in Section 5.01(b) hereof and
further described in
Section 5.03 hereof,
including any Accounts and Subaccounts
created therein.
"Class B Supplemental
Reserve Fund
Requirement" shall
mean an amount
equal to 90 days' interest on the Outstanding Amount of the Class B Notes
calculated at the highest then current interest rate on either Class of the
Class B Notes.
"Class B-1
Interest Account" shall mean the Account by that name
created by Section 5.01(d) hereof within the Note Payment Fund and further
described in Section 5.05 hereof, including
any Subaccounts created therein.
"Class B-1 Notes"
shall mean the
$15,150,000 Nelnet
Education Loan
Funding, Inc., Student Loan Asset-Backed Notes, Subordinate Class 2004B-1
Auction Rate Notes.
"Class B-1 Notes
Interest Distribution
Amount" shall mean,
for each
Auction Rate Distribution Date for the Class B-1 Notes, the sum of (a) the
amount of interest accrued at the Class B-1 Notes
Interest Rate for the related
Accrual Period on the Outstanding Amount of the Class B-1 Notes
immediately
prior to such Auction Rate Distribution Date for the Class B-1 Notes;
and (b)
the Class B-1 Notes Interest Shortfall for such Auction Rate
Distribution Date
for the Class B-1 Notes, as based on the actual
number of days in such
Accrual
Period divided by 360 and rounding the
resultant figure to the fifth decimal
place, as determined by the
Administrator.
"Class B-1 Notes Interest Shortfall" shall mean, with respect to any
Auction Rate Distribution Date for the Class B-1 Notes, the
excess, if any, of
(a) the Class B-1 Notes Interest Distribution Amount on the immediately
preceding Auction Rate Distribution Date for the Class B-1 Notes over
(b) the
amount of interest actually distributed to the Registered
Owners of the
Class
B-1 Notes on such preceding Auction Rate Distribution Date for the Class B-1
Notes, plus interest on the amount of such
excess interest due to the Registered
Owners of the Class B-1 Notes, to the extent permitted by law, at the
interest
rate borne by the Class B-1 Notes from such
immediately preceding
Auction Rate
Distribution Date for the Class B-1 Notes to the current Auction Rate
Distribution Date for the Class B-1 Notes,
as determined by the Administrator.
"Class B-1 Redemption
Account" shall mean the Account by that name
created by Section 5.01(d) hereof within the Note Payment Fund and further
described in Section 5.05 hereof, including
any Subaccounts created therein.
"Class B-2
Interest Account" shall mean the Account by that name
created by Section 5.01(d) hereof within the Note Payment Fund and further
described in Section 5.05 hereof, including
any Subaccounts created therein.
8
<PAGE>
Exhibit 4.11
"Class B-2 Notes"
shall mean the
$15,150,000 Nelnet
Education Loan
Funding, Inc., Student Loan Asset-Backed Notes, Subordinate Class 2004B-2
Auction Rate Notes.
"Class B-2 Notes
Interest Distribution
Amount" shall mean,
for each
Auction Rate Distribution Date for the Class B-2 Notes, the sum of (a) the
amount of interest accrued at the Class B-2 Notes
Interest Rate for the related
Accrual Period on the Outstanding Amount of the Class B-2 Notes
immediately
prior to such Auction Rate Distribution Date for the Class B-2 Notes;
and (b)
the Class B-2 Notes Interest Shortfall for such Auction Rate
Distribution Date
for the Class B-2 Notes, as based on the actual
number of days in such
Accrual
Period divided by 360 and rounding the
resultant figure to the fifth decimal
place, as determined by the
Administrator.
"Class B-2 Notes Interest Shortfall" shall mean, with respect to any
Auction Rate Distribution Date for the Class B-2 Notes, the
excess, if any, of
(a) the Class B-2 Notes Interest Distribution Amount on the immediately
preceding Auction Rate Distribution Date for the Class B-2 Notes over
(b) the
amount of interest actually distributed to the Registered
Owners of the
Class
B-2 Notes on such preceding Auction Rate Distribution Date for the Class B-2
Notes, plus interest on the amount of such
excess interest due to the Registered
Owners of the Class B-2 Notes, to the extent permitted by law, at the
interest
rate borne by the Class B-2 Notes from such
immediately preceding
Auction Rate
Distribution Date for the Class B-2 Notes to the current Auction Rate
Distribution Date for the Class B-2 Notes,
as determined by the Administrator.
"Class B-2 Redemption
Account" shall mean the Account by that name
created by Section 5.01(d) hereof within the Note Payment Fund and further
described in Section 5.05 hereof, including
any Subaccounts created therein.
"Clearstream" shall
mean Clearstream
Banking, societe
anonyme or its
successor in interest.
"Closing Date"
shall mean January 30, 2004, the date of initial
issuance and delivery of the Series 2004-1
Notes hereunder.
"Code" shall mean the
Internal Revenue Code
of 1986, as amended
from
time to time. Each reference to a section of the
Code herein shall be deemed to
include the United States Treasury
Regulations,
including applicable
temporary
and proposed regulations relating to such section which are
applicable to the
Series 2004-1 Notes or the use of the
proceeds thereof. A reference to any
specific section of the Code shall be deemed also to be a reference to the
comparable provisions of any enactment which supersedes or replaces the
Code
thereunder from time to time.
"Collection Fund"
shall mean the Fund by that name created in Section
5.01(c) hereof and further described in Section 5.04 hereof, including any
Accounts and Subaccounts created
therein.
"Commercial Paper Rate
Trigger" shall mean as of the last day of
any
calendar quarter the average daily 90-Day
Financial Commercial Paper Rate for
such calendar quarter exceeded 6.80% per
annum.
9
<PAGE>
Exhibit 4.11
"Commission" shall mean the Securities and Exchange Commission.
"Consolidation Fee"
shall mean any federal
origination fee,
monthly
rebate fee or similar fee payable to the
Department of Education relating to the
origination or ownership of Consolidation
Loans.
"Consolidation Loan"
shall mean an
Eligible Loan made pursuant to
Section 428C of the Higher Education Act to consolidate the borrower's
obligations under various federally authorized student loan programs into a
single loan, as supplemented by the
addition of any related Add-on Consolidation
Loan.
"Contract of
Insurance" shall mean
the contract of insurance between
the Eligible Lender and the Secretary.
"Counterparty" shall mean any counterparty under a Derivative
Product.
"Counterparty Payment
Account" shall mean each Account by that name
established for a Derivative Product pursuant to Section 5.01(d) hereof
within
the Note Payment Fund for the payment of
Issuer Derivative
Payments and further
described in Section 5.05 hereof, including
any Subaccounts created therein.
"Counterparty
Payments" shall mean
any payment to be made
to, or for
the benefit of, the Issuer under a
Derivative Product.
"Custodian Agreement"
shall mean the Custodian Agreement, dated as of
January 1, 2004, among the Issuer, the Eligible Lender Trustee,
the Indenture
Trustee and Nelnet, Inc., as custodian,
and any other
custodian agreements with
any Servicer, subservicer or other custodian or bailee related to Financed
Eligible Loans, each as amended and supplemented pursuant to the terms and
provisions thereof.
"Definitive
Certificates" shall
mean definitive, fully registered
certificates evidencing the Series 2004-1 Notes
which are not registered in the
name of the nominee of a Securities
Depository.
"Department of
Education" shall mean
the United Stated
Department of
Education, or any successor thereto.
"Derivative Product" shall mean a written contract or agreement
between
the Issuer and a Counterparty entered into pursuant to Section
3.03 hereof for
any interest rate swap, cap, floor, collar or other investment contract,
including the Interest Rate Cap Derivative
Agreement.
"Derivative Product
Distribution
Date" shall mean, with
respect to a
Derivative Product, any date specified in such
Derivative Product on
which an
Issuer Derivative Payment is due and
payable under such Derivative Product.
"Derivative Value" shall mean the value of the Derivative
Product, if
any, to the Counterparty; provided that such value is
defined and calculated in
substantially the same
10
<PAGE>
Exhibit 4.11
manner as amounts are defined and calculated pursuant to the applicable
provisions of an ISDA Master Agreement.
"Dissolution" shall
mean, with respect to Article XI hereof and
the
Issuer, the occurrence of any of the events
which would cause a dissolution of a
limited partnership organized under the
laws of the State of Delaware, the sole
general partner of which is the Issuer.
"Distribution Date"
shall mean (i) each Quarterly Distribution Date,
(ii) each Auction Rate Distribution Date and (iii) each Derivative Product
Distribution Date.
"DTC" shall mean The
Depository Trust
Company or its
successors
in
interest.
"Early Amortization
Event" shall mean (a) an Event of Default or a
Servicer default under its Servicing Agreement; (b) an Event of Bankruptcy
occurring with respect to a Seller; (c) that the Issuer becomes subject to
registration as an "Investment Company" under the Investment Company Act of
1940, as amended; (d) the Commercial Paper Rate
Trigger has occurred;
(e) July
1, 2006, unless a Rating Confirmation has
been obtained permitting the Financing
of Eligible Loans subsequent to July 1,
2006; (f) the Issuer
determines, in an
Issuer Order, there is a change in law that
adversely affects the economic
attributes of Consolidation Loans; (g) the Issuer determines, in an Issuer
Order, that it cannot originate
additional
Consolidation Loans on
commercially
reasonable terms or (h) the failure to obtain a Rating
Confirmation
from the
Rating Agencies then rating the Series 2004-1
Notes upon any change in law, or
interpretation of the current law,
relating to Special
Allowance Payments
paid
pursuant to Section 438(b)(i) and (ii) of
the Higher Education Act.
"Eligible Lender"
shall mean any "eligible lender," as defined in the
Higher Education Act, and which has
received an eligible lender designation from
the Secretary with respect to Eligible
Loans made under the
Higher Education
Act.
"Eligible Lender
Trustee" shall mean Wells Fargo Bank Minnesota,
National Association, a national banking association, not in its individual
capacity but solely as Eligible Lender
Trustee hereunder and
under the Eligible
Lender Trust Agreement, or its successors
and assigns.
"Eligible Lender Trustee Fee" shall mean the annual compensation to
the
Eligible Lender Trustee for acting as eligible
lender trustee hereunder and
under the Eligible Lender Trust Agreement.
So long as the
Indenture Trustee
is
acting as Eligible Lender Trustee
hereunder and under
the Eligible Lender Trust
Agreement, there shall be no Eligible
Lender Trustee Fee.
"Eligible Lender Trust
Agreement" shall mean the Eligible Lender Trust
Agreement, dated as of January 1, 2004, between the Issuer and the Eligible
Lender Trustee, as amended and supplemented
pursuant to the terms and provisions
thereof.
"Eligible Loan"
shall mean any loan made to finance post-secondary
education that (a)(i) is made to an eligible
borrower in
compliance
with the
requirements of the Higher Education Act (including Consolidation Loans and
Add-on Consolidation Loans), (ii) is
guaranteed by a Guarantee Agency or Insured
by the Secretary, (iii) bears interest at not less
than the maximum
applicable
rate of interest permitted by the Higher
Education Act at the
time
11
<PAGE>
Exhibit 4.11
originated, or any lesser rate of interest shown in the cash flow
analyses
provided to each Rating Agency on the
Closing Date;
provided that such
rate of
interest may be reduced if Rating
Confirmation
is obtained,
based on new cash
flow analyses containing such assumptions as the Issuer shall reasonably
determine, and (iv) is eligible for Special Allowance Payments; or (b) is
insured by the Secretary of Health and Human Services pursuant to the Public
Health Services Act; provided, however, that if after any reauthorization or
amendment of the Higher Education Act loans authorized
thereunder,
including,
without limitation, their benefits, any provisions, or the servicing thereof,
are materially different from loans authorized
prior to such reauthorization or
amendment, such loans shall not constitute Eligible Loans unless a Rating
Confirmation is obtained.
"Eligible Loan Acquisition Certificate" shall mean a certificate
signed
by an Authorized Representative of the
Issuer in substantially the form attached
as Exhibit H hereto.
"Ending Balance
Factor" shall mean, for any given day, the number
calculated by dividing the unpaid principal
balance of the
appropriate Class of
the Outstanding Class A Notes (after any
Principal Reduction
Payments are made
thereto) by the original principal balance of such Class of the Class
A Notes,
and rounding the result to nine decimal
places.
"Escrow Reserve
Agreement"
shall mean the Escrow
Reserve Agreement,
dated as of January 1, 2004, between the Issuer and Wells Fargo
Bank Minnesota,
National Association, as escrow agent, as amended and
supplemented pursuant to
the terms and provisions thereof.
"Euroclear" shall
mean The Euroclear System or its successor in
interest.
"Event of Bankruptcy"
shall mean, with
respect to any Person (a) such
Person shall have commenced a voluntary case or other proceeding seeking
liquidation, reorganization, or other
relief with respect to itself or its debts
under any bankruptcy, insolvency, or other similar law now or hereafter in
effect or seeking the appointment of a
trustee, receiver, liquidator, custodian,
or other similar official of it or any substantial part of its property, or
shall have made a general assignment for
the benefit of creditors, or shall have
declared a moratorium with respect to its debts or shall
have failed
generally
to pay its debts as they become due, or
shall have taken any action to authorize
any of the foregoing; or (b) an involuntary case or
other proceeding shall have
been commenced against such Person seeking
liquidation, reorganization, or other
relief with respect to it or its debts
under any bankruptcy, insolvency or other
similar law now or hereafter in effect or
seeking the
appointment of a trustee,
receiver, liquidator, custodian, or other similar official of it or any
substantial part of its property provided such action or proceeding is not
dismissed within 60 days.
"Event of Default"
shall have the meaning specified in Article VI
hereof.
"Financed" or
"Financing"
when used with respect
to Eligible Loans,
shall mean or refer to Eligible
Loans (a) financed by
the Issuer with
balances
in the Acquisition Fund or otherwise deposited in or accounted for in the
Acquisition Fund or otherwise constituting a part of the Trust Estate and
(b)
Eligible Loans substituted or exchanged for
Financed Eligible
Loans, but does
not include Eligible Loans released from the
lien of this Indenture and sold or
transferred, to the extent permitted by
this Indenture.
12
<PAGE>
Exhibit 4.11
"Fiscal Year" shall mean the fiscal year of the Issuer ending
December
31, or as otherwise established from time
to time.
"Fitch" shall
mean Fitch, Inc., also known as Fitch Ratings, a
corporation organized and existing under
the laws of the State of Delaware, its
successors and assigns.
"Funds" shall mean each of the Funds created pursuant to Section 5.01
hereof.
"Global Certificate"
shall mean any Series
2004-1 Note registered
in
the name of a Securities Depository or its nominee.
Each Rule 144A
Certificate
or Regulation S Certificate shall
constitute a "Global Certificate."
"Guarantee" or
"Guaranteed"
shall mean,
with respect to an
Eligible
Loan, the insurance or guarantee by a
Guaranty Agency
pursuant to such Guaranty
Agency's Guarantee Agreement of the maximum
percentage of the principal of and
accrued interest on such Eligible Loan allowed by the terms of the Higher
Education Act with respect to such
Eligible Loan at the
time it was
originated
and the coverage of such Eligible Loan by
the federal
reimbursement
contracts,
providing, among other things, for reimbursement to a Guaranty Agency for
payments made by it on defaulted
Eligible Loans insured or guaranteed by a
Guaranty Agency of at least the
minimum reimbursement allowed by the Higher
Education Act with respect to a particular
Eligible Loan.
"Guarantee Agreements"
shall mean a guaranty or lender agreement
between the Indenture Trustee or the Eligible
Lender Trustee and any Guaranty
Agency, and any amendments thereto.
"Guaranty Agency" shall mean any entity authorized to guarantee
student
loans under the Higher Education Act and with which the
Indenture Trustee and
the Eligible Lender Trustee maintains a
Guarantee Agreement.
"Higher Education Act"
shall mean the Higher Education Act of 1965, as
amended or supplemented from time to time, or any
successor federal act and all
regulations, directives, bulletins, and
guidelines promulgated from time to time
thereunder.
"Highest Priority
Obligations" shall
mean (a) at any time when Senior
Obligations are Outstanding, the Senior Obligations and (b) at
any time when no
Senior Obligations are Outstanding, the
Subordinate Obligations.
"Indenture"
shall mean
this Indenture of Trust, including all
supplements and amendments hereto.
"Indenture Trustee"
shall mean Wells Fargo
Bank Minnesota,
National
Association, acting in its capacity as
Indenture Trustee
under this Indenture,
or any successor trustee designated
pursuant to this Indenture.
"Indenture Trustee Fee" shall mean an amount equal to the annual
amount
set in the Trustee Fee Letter dated January 20, 2004. Such fee shall be in
satisfaction of the Indenture
13
<PAGE>
Exhibit 4.11
Trustee's compensation as trustee hereunder and as eligible lender trustee
hereunder and under the Eligible Lender
Trust Agreement.
"Initial Purchasers"
shall mean,
collectively,
Credit Suisse First
Boston LLC and Deutsche Bank Securities
Inc.
"Insurance" or "Insured" or "Insuring" shall mean, with respect to an
Eligible Loan, the insuring by the Secretary (as
evidenced by a Certificate of
Insurance or other document or
certification issued
under the provisions of the
Higher Education Act) under the Higher
Education Act of 100% of the principal of
and accrued interest on such Eligible
Loan.
"Interest Benefit
Payment" shall mean an
interest payment on Eligible
Loans received pursuant to the Higher
Education Act and an
agreement with the
federal government, or any similar
payments.
"Interest Rate Cap
Derivative
Agreement"
shall mean the ISDA
Master
Agreement, Schedule and Confirmation,
each dated January 30,
2004, between the
Issuer and Credit Suisse First Boston
International, as amended and supplemented
pursuant to the terms and provisions
thereof, which Interest Rate Cap Derivative
Agreement shall constitute a Derivative
Agreement hereunder.
"Investment Agreement"
shall mean,
collectively,
(a) the Investment
Agreement, dated January 30, 2004,
between the
Indenture Trustee and Trinity
Plus Funding Company, LLC, (b) the
Investment Agreement, dated January 30, 2004,
between the Indenture Trustee and FSA Capital
Management
Services, Inc., and
acknowledged by the Issuer and (c) any
other investment
agreement approved by
the Rating Agencies, each as amended and supplemented
pursuant to the terms and
provisions thereof.
"Investment
Securities" shall mean book-entry securities, negotiable
instruments or securities represented by instruments in bearer or
registered
form, all purchased at a price not in
excess of par, which evidence:
(a) direct obligations of, and obligations fully guaranteed as
to timely payment by, the United States of America;
(b) demand deposits,
time deposits or certificates of deposit
of any depository
institution or trust company incorporated under the
laws of the United
States of America or any State (or any domestic
branch of a foreign bank) and subject to supervision and
examination by
federal or
state banking or depository institution authorities
(including depository
receipts issued by any such institution or trust
company as custodian
with respect to any obligation referred to in
paragraph (a) above or
portion of such
obligation for the
benefit of
the holders of such depository receipts); provided, however, that at
the time of the
investment therein
(which shall be deemed
to be made
again each time funds are reinvested following each Distribution
Date),
the commercial
paper or other short-term senior unsecured debt
obligations (other
than such obligations
the rating of which is based
on the credit of a Person other than such depository institution or
trust company)
thereof shall have a credit rating from each of the
Rating Agencies in the highest investment category granted
thereby;
14
<PAGE>
Exhibit 4.11
(c) commercial paper
and auction rate securities having, at
the time of the investment or contractual commitment to invest
therein,
a rating from each of the Rating Agencies in the highest investment
category granted thereby;
(d) investments
in money market funds having a rating from
each of the Rating Agencies rating such fund, in the highest
investment
category granted
thereby provided at least Moody's has rated such fund
(including funds for
which the Indenture
Trustee, a Servicer or the
Eligible Lender
Trustee or any of their respective affiliates is
investment manager or
advisor); provided, however, that such Fitch
rating shall be
"AA/F1+" or higher for any money market fund which has
the ability to maintain a stable one-dollar net asset value per share
and whose shares are freely transferable on a daily basis;
(e) bankers' acceptances issued by any depository institution
or trust company referred to in clause (b) above;
(f) repurchase
obligations with
respect to any security that
is a direct obligation of, or fully guaranteed by, the United
States of
America or any agency or instrumentality thereof the obligations of
which are backed by the full faith and credit of the United
States of
America, in either
case entered into with a depository institution or
trust company (acting as principal) described in clause (b)
above;
(g) any Investment Agreement; and
(h) any other
investment
permitted by each of the Rating
Agencies as
evidenced by a Rating Confirmation delivered to the
Indenture Trustee.
Notwithstanding the foregoing, for purposes of clauses (b),
(c), (e) and (f)
above, the provider must have a Moody's long term rating of "Aaa" if the
investment is longer than 6 months,
"Aa3" if the
investment is between
90 and
180 days, and "A1" if the investment is between 30 and 90 days. No
obligation
will be considered to be rated in the
highest investment
category if it has
an
"r" highlighter affixed to its rating.
"ISDA Master
Agreement" shall mean the ISDA Interest Rate and Currency
Exchange Agreement, copyright 1992, as amended from time to time,
and as in
effect with respect to any Derivative
Product.
"Issuer" shall mean Nelnet Education Loan Funding, Inc., a corporation
organized and existing under the laws of
the State, and any successor thereto.
"Issuer Order"
shall mean a written
order signed in the name of the
Issuer by an Authorized Representative.
"Issuer Derivative Payment" shall mean a payment required to be
made by
or on behalf of the Issuer due to a Counterparty pursuant to a Derivative
Product (including Priority Termination Payments, but excluding other
Termination Payments).
15
<PAGE>
Exhibit 4.11
"Liquidated Financed
Eligible Loan" shall mean any defaulted Financed
Eligible Loan liquidated by a Servicer (which shall not include any
Financed
Eligible Loan on which payments are
received from a Guaranty Agency) or which a
Servicer has, after using all reasonable efforts to realize upon such
Financed
Eligible Loan, determined to charge
off.
"Liquidation Proceeds"
shall mean, with respect to any Liquidated
Financed Eligible Loan which became a
Liquidated Financed
Eligible Loan during
the current calendar quarter in accordance
with a Servicer's customary servicing
procedures, the moneys collected in respect of the liquidation thereof from
whatever source, other than moneys collected with respect to any Liquidated
Financed Eligible Loan which was written off in prior calendar quarters or
during the current calendar quarter, net of
the sum of any amounts expended by a
Servicer in connection with such
liquidation and any
amounts required by law to
be remitted to the obligor on such
Liquidated Financed Eligible Loan.
"Make-whole Premium"
shall mean, with
respect to a Class of the Reset
Rate Notes other than the Class A-1B Notes
and the Class A-3 Notes, (a) during
each Initial Reset Period an amount equal to
the product of (i) the spread over
LIBOR applicable to such Class of the Reset
Rate Notes, (ii) the aggregate
Outstanding Amount of such Class of the
Reset Rate Notes and (iii) the number of
days until the first Reset Date for that
Class of the Reset Rate Notes, divided
by 360 and (b) during any subsequent Reset Period, the prepayment premium
established by the Remarketing Agent with respect to such Class of the
Reset
Rate Notes in connection with the remarketing of such Class of the Reset
Rate
Notes and set forth in the Remarketing Terms Notice. There shall be no
Make-whole Premium during the Initial Reset
Periods for the Class A-1B Notes or
the Class A-3 Notes.
"Master Promissory
Note" shall mean a
note (a) that
evidences one or
more loans made to finance post-secondary
education financing and (b) that is in
the form mandated by Section 432(m)(1) of the Higher Education
Act, as added by
Public Law No: 105-244, ss. 427, 112 Stat.
1702 (1998), as amended by Public Law
No: 106-554 (enacted December 21, 2000) and as codified in 20 U.S.C. ss.
1082(m)(1).
"Maturity" when used with respect to any Series 2004-1 Note, shall
mean
the date on which the principal thereof becomes due and payable as therein
or
herein provided, whether at its Stated Maturity, by earlier redemption, by
declaration of acceleration, or
otherwise.
"Monthly Servicing
Payment Date" shall
mean the twenty-fifth
day of
each calendar month or, if such day is not a
Business Day, the immediately
following Business Day, commencing on
February 25, 2004.
"Moody's" shall mean
Moody's Investors
Service, its successors and
assigns.
"90-Day Financial
Commercial
Paper Rate" shall mean the 90-Day AA
Financial Commercial Paper rate posted on the Federal
Reserve Release entitled
"Commercial Paper Rates and Outstandings," which rate may be available on
the
Internet at
www.federalreserve.gov/releases/cp.
16
<PAGE>
Exhibit 4.11
"Non-amortizing Reset
Rate Notes" shall mean any Class of the
Reset
Rate Notes on which Principal Reduction
Payments on that Class of the Reset Rate
Notes are to be paid only on the
Business Day succeeding its current Reset
Period.
"Non-U.S. Person"
shall mean a Person who is not a U.S.
Person, as
defined in Regulation S.
"Note Counsel"
shall mean Kutak Rock LLP or any other nationally
recognized law firm which is requested to deliver its
approving opinion with
respect to the Series 2004-1 Notes.
"Note Payment Fund" shall mean the Fund by that name created in
Section
5.01(d) hereof and further described in Section 5.05 hereof, including any
Accounts and Subaccounts created
therein.
"Obligations" shall mean, collectively, the Senior Obligations and the
Subordinate Obligations.
"Outstanding" shall
mean (a) when used in
connection with any
Series
2004-1 Note, a Series 2004-1 Note which has
been executed and delivered pursuant
to this Indenture which at such time
remains unpaid as to principal or interest,
unless provision has been made for such
payment pursuant to Section 10.02
hereof, excluding Series 2004-1 Notes which have been replaced pursuant to
Section 2.03 hereof, and (b) when used in
connection with a Derivative Product,
a Derivative Product which has not expired
or been terminated,
unless provision
has been made for such payment pursuant to
Section 10.02 hereof.
"Outstanding Amount"
shall mean the aggregate principal amount of all
Series 2004-1 Notes Outstanding at the date of
determination or, if the context
so requires, the aggregate principal amount of
one or more Classes of the Class
A Notes or Class B Notes Outstanding at the
date of determination.
"Person" shall mean an
individual,
corporation,
partnership,
joint
venture, association, joint stock company, trust, limited liability company,
unincorporated organization, or government or agency or
political
subdivision
thereof.
"Principal Office"
shall mean the principal office of the party
indicated, as set forth in Section 9.01
hereof or elsewhere in this Indenture.
"Principal Reduction Payments" shall mean principal payments made
prior
to a Stated Maturity from the Note Payment Fund on the Class A Notes which
reduce the principal balance of each Class
A Note on a pro rata basis.
"Priority Termination Payment" shall mean, with respect to a
Derivative
Product, any termination payment payable by or on behalf of the
Issuer under
such Derivative Product relating to an early termination of such Derivative
Product by the Counterparty, as the non-defaulting party, following (i) the
failure of the Issuer to make an Issuer
Derivative
Payment when due
(after any
applicable grace periods), but only if the Issuer had sufficient moneys on
deposit in the Collection Fund (after giving effect to any
required transfers
thereto) as of the due date of such Issuer Derivative Payment, (ii) the
occurrence of an Event of Default specified
in Section 6.01(f)
17
<PAGE>
Exhibit 4.11
hereof, (iii) the Indenture Trustee's taking any action
hereunder to liquidate
the entire Trust Estate following an Event of Default and
acceleration
of the
Series 2004-1 Notes pursuant to Section 6.09 hereof or (iv) any other
termination payments permitted by the Rating Agencies with a Rating
Confirmation.
"Program" shall mean
the Issuer's program
for the origination and the
purchase of Eligible Loans, as the same may
be modified from time to time.
"Program Expenses"
shall mean (a) the fees and expenses of the
Indenture Trustee and the Eligible Lender
Trustee; (b) the fees
and expenses of
the Auction Agent and any Broker-Dealer; (c) the fees and expenses of any
Remarketing Agent; (d) the fees and expenses due to
any credit provider of the
Series 2004-1 Notes for which a credit
facility or
liquidity facility is in
place; (e) the fees of any Servicer and/or custodian under any Servicing
Agreement or Custodian Agreement; (f) the
fees and expenses of any Administrator
and the Issuer incurred in connection with
the preparation of legal opinions and
other authorized reports or statements attributable to the Series 2004-1
Notes
and the Financed Eligible Loans; (g) transfer fees, loan origination fees,
Consolidation Fees and all other fees due to the
Department
of Education on
Financed Eligible Loans; (h) fees and
expenses associated with the delivery of a
credit facility or liquidity facility; (i) fees and expenses associated with
(but not payments under) Derivative
Products; (j) the costs of remarketing
any
of the Series 2004-1 Notes and (k) expenses incurred for the Issuer's
maintenance and operation of its Program as a direct consequence of this
Indenture, the Series 2004-1 Notes or the
Financed Eligible
Loans; including,
but not limited to, taxes, the reasonable fees and expenses of attorneys,
agents, financial advisors, consultants, accountants and other
professionals,
attributable to such maintenance and operation, marketing expenses for the
Program and a prorated portion of the rent, personnel compensation, office
supplies and equipment, travel expenses and other lawful payments made to
members of the Board of Directors.
"Qualified
Institutional Buyer" shall mean a "qualified institutional
buyer" within the meaning of Rule 144A.
"Quarterly Distribution Date" shall mean the twenty-fifth (25th)
day of
each February, May, August and November,
commencing on August
25, 2004, or, if
such day is not a Business Day, the
immediately following Business Day.
"Quarterly Funding Amount" shall mean, for each Class of the Reset
Rate
Notes for any Quarterly Distribution Date (a)(i) the Reset
Period Target Amount
for that Class and that Quarterly
Distribution
Date, minus (ii) the amount on
deposit in the Remarketing Fee Fund in
respect of that Class
immediately prior
to that Quarterly Distribution Date; divided by (b) the number of
Quarterly
Distribution Dates from and excluding that
Quarterly Distribution
Date through
and including the next Reset Date for that
Class.
"Rating" shall mean one of the rating categories of Fitch,
Moody's and
S&P or any other Rating Agency, provided Fitch, Moody's and S&P or any
other
Rating Agency, as the case may be, is
currently rating the Series 2004-1 Notes.
18
<PAGE>
Exhibit 4.11
"Rating Agency" shall mean, collectively, Fitch, Moody's and S&P and
their successors and assigns or any
other Rating Agency;
provided that in each
such case the Issuer has requested such Rating Agency to maintain a Rating on
any of the Series 2004-1 Notes. 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
Issuer, notice of which designation shall
be given to the Indenture Trustee.
"Rating Agency Condition" shall mean, with respect to any action,
that
each Rating Agency shall have been given prior
notice thereof and
that each of
the Rating Agencies shall have issued a
Rating Confirmation.
"Rating Confirmation"
shall mean a letter from each Rating Agency then
providing a Rating for any of the
Series 2004-1 Notes at the request of the
Issuer, confirming that the action
proposed to be taken by the Issuer will not,
in and of itself, result in a downgrade of
any of the Ratings then applicable to
the Series 2004-1 Notes, or cause any Rating Agency to
suspend or withdraw the
Ratings then applicable to the Series
2004-1 Notes.
"Realized Loss"
shall mean the excess of the principal balance
(including any interest that had been or
had been expected to be capitalized) of
any Liquidated Financed Eligible Loan over
Liquidation Proceeds
with respect to
such Financed Eligible Loan to the extent
allocable to principal
(including any
interest that had been or had been expected
to be capitalized).
"Record Date" shall mean (a) with respect to the Reset Rate Notes,
the
close of business on the Business Day preceding each Distribution Date or
Redemption Date and (b) with respect to the
Auction Rate Notes, the Business Day
next preceding the applicable Auction Rate
Distribution Date.
"Recoveries of
Principal"
shall mean all amounts received by the
Indenture Trustee from or on account of any
Financed Eligible Loan as a recovery
of the principal amount thereof, including scheduled, delinquent and advance
payments, payouts or prepayments, proceeds from insurance or from the sale,
assignment, transfer, reallocation or other disposition
of a Financed Eligible
Loan and any payments representing such principal from the guarantee or
insurance of any Financed Eligible Loan, net of accrued
interest which will
be
capitalized at a later date.
"Redemption Accounts"
shall mean one or more of the Class A-1A
Redemption Account, the Class A-1B Redemption Account,
the Class A-2 Redemption
Account, the Class A-3 Redemption Account,
the Class B-1 Redemption Account and
the Class B-2 Redemption Account, as the
context requires.
"Registered Owner"
shall mean the Person in whose name a Series 2004-1
Note is registered on the Series 2004-1
Note registration
books maintained by
the Indenture Trustee, and shall also mean
with respect to a Derivative Product,
any Counterparty, unless the context otherwise
requires. All
references herein
to "Registered Owner" shall reflect the rights of beneficial owners of the
Series 2004-1 Notes as they may indirectly exercise such rights through a
Securities Depository and its Agent Members, except as otherwise specified
herein; provided, however, that the parties hereto shall be required to
recognize as a "Registered Owner" only the
19
<PAGE>
Exhibit 4.11
Person in whose name a Series 2004-1 Note is registered in the registration
books of the Indenture Trustee.
"Regulation S" shall mean Regulation S under the Securities
Act.
"Regulation S Certificate" shall have the meaning ascribed to such
term
in Section 2.01(b) hereof.
Regulations" shall
mean the Regulations
promulgated from time to time
by the Secretary or any Guaranty Agency
guaranteeing Financed Eligible Loans.
"Remarketing Fee Fund"
shall mean the Fund by that name
created in
Section 5.01(e) hereof and further
described in Section
5.06 hereof,
including
any Accounts and Subaccounts created
therein.
"Reserve Fund"
shall mean the Fund by that name
created in Section
5.01(f) hereof and further described in Section 5.07 hereof, including any
Accounts and Subaccounts created
therein.
"Reserve Fund Requirement" shall mean 0.25% of the
Outstanding Amount
of the Series 2004-1 Notes; provided,
however, that so long as any Series 2004-1
Notes remain Outstanding there shall be at
least 0.15% of the original principal
amount of the Series 2004-1 Notes
($1,515,000) on deposit in the Reserve Fund or
such lower amount as may be agreed to by the
Rating Agencies as
evidenced by a
Rating Confirmation.
"Reserve Fund Surety Bond" shall mean a letter of credit,
surety bond,
insurance policy, agreement guaranteeing payment or other undertaking by a
financial institution to ensure that cash in an amount required to meet a
Reserve Fund Requirement is available to
the Indenture Trustee.
"Reset Period
Target Amount" for each Class of the Reset Rate
Notes
shall mean (a) for any Quarterly Distribution Date through and including the
Initial Reset Date for that Class,
$267,700 for the Class
A-1A Notes,
$210,000
for the Class A-1B Notes, $372,000 for the Class A-2 Notes
and $130,000 for the
Class A-3 Notes, which amounts will be deposited in
the Remarketing Fee Fund on
the Closing Date; and (b) for any Quarterly
Distribution
Date thereafter,
the
highest remarketing fee payable to the
Remarketing Agents for that Class of the
Reset Rate Notes (not to exceed 0.10% per annum of the
maximum Outstanding
Amount of such Class of the Reset Rate
Notes that could be
remarketed)
on the
next related Reset Date, as determined by
the Administrator based on the assumed
weighted average life of such Class and the
maximum remarketing fee set forth in
a schedule to the Remarketing Agreement, as such schedule may be amended
from
time to time.
"Reset Rate Notes" shall mean, collectively, the Class A-1A Notes, the
Class A-1B Notes, the Class A-2 Notes and
the Class A-3 Notes.
"Reset Rate Notes Carry-over Amount" shall have the meaning
ascribed to
such term in Appendix A hereto.
20
<PAGE>
Exhibit 4.11
"Resolution" shall
mean a resolution duly adopted by the Board of
Directors.
"Revenue" or
"Revenues"
shall mean all Recoveries of Principal,
payments, proceeds, charges and other income received
by the Indenture Trustee
or the Issuer from or on account of any Financed Eligible Loan (including
scheduled, delinquent and advance
payments of and any
insurance proceeds
with
respect to and interest, including Interest Benefit Payments on any Financed
Eligible Loan and any Special Allowance Payment received by the Issuer with
respect to any Financed Eligible Loan) and all interest
earned or gain realized
from the investment of amounts in any Fund, Account or Subaccount and all
Counterparty Payments received by the
Issuer pursuant to a Derivative Product.
"Revolving Period" shall mean, with respect to the use of
Recoveries of
Principal in the Acquisition Fund, the period beginning on the
Closing Date and
ending on and including January 31, 2007, unless such Revolving Period is
suspended as provided in Section
5.02(b) or
terminated
on an earlier date
as
provided in Section 5.02(d) hereof.
"Rule 144A" shall mean Rule 144A promulgated under the Securities
Act.
"Rule 144A Certificate" shall have the meaning ascribed to such
term in
Section 2.01(b) hereof.
"S&P" shall mean
Standard & Poor's
Ratings Group,
a Division of The
McGraw-Hill Companies, Inc., its successors
and assigns.
"Secretary" shall mean the Secretary of the United States
Department of
Education or any successor to the pertinent
functions thereof under the Higher
Education Act.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Securities Depository" shall mean DTC, or if, (a) DTC resigns from
its
functions as depository of the Series 2004-1 Notes or (b) the Issuer
discontinues use of DTC, any other
securities depository
which agrees to follow
the procedures required to be followed by a
securities depository
in connection
with the Series 2004-1 Notes and which is selected by the Issuer with the
consent of the Indenture Trustee.
"Securities Exchange
Act" shall mean the
Securities
Exchange Act of
1934, as amended.
"Seller" shall
mean an Eligible Lender from which the Issuer is
purchasing or has purchased or agreed to
purchase Eligible
Loans pursuant to
a
Student Loan Purchase Agreement between the
Issuer and such Eligible Lender.
"Senior Obligations"
shall mean the Class A
Notes and any
Derivative
Product, the priority of payment of which
is equal with that of interest on the
Class A Notes.
"Senior Parity
Ratio" shall mean, with respect to any date of
calculation, the percentage equivalent of a fraction of (a)
aggregate Value of
the Trust Estate, less (i) amounts on
deposit in the Redemption Accounts for the
Notes, (ii) amounts that were received
under the Interest
Rate Cap
Derivative
Agreement, and (iii) amounts on deposit in
the Remarketing Fee Fund over
21
<PAGE>
Exhibit 4.11
(b) the Outstanding Amount of the Class A Notes, less
amounts on deposit in the
Redemption Accounts for the Class A
Notes.
"Series 2004-1 Notes" shall mean, collectively, the Class A Notes and
the Class B Notes.
"Servicer" shall mean, collectively, Nelnet, Inc., Sallie Mae
Servicing
L.P., EFS Services, Inc., ACS Educational Services,
Inc., Pennsylvania Higher
Education Assistance Agency, Great Lakes
Educational Loan Services, Inc. and any
other additional Servicer, subservicer or successor Servicer or subservicer
selected by the Issuer, including an affiliate of the Issuer, so long as the
Issuer obtains a Rating Confirmation as to each such other Servicer or
subservicer.
"Servicer's Report"
shall mean the servicer reports to be furnished to
the Issuer by a Servicer pursuant to its
Servicing Agreement.
"Servicing Agreement"
shall mean, collectively, (a) the Servicing
Agreement, dated as of January 1, 2004,
between the Issuer and Nelnet, Inc., as
supplemented and amended pursuant to its terms,
and (b) any other
servicing
agreement or subservicing agreement entered into with a Servicer or a
subservicer.
"Servicing Fee"
shall mean the fees and expenses due to a Servicer
under the terms of its Servicing
Agreement and the fees
and expenses due to any
custodian under the terms of a Custodian
Agreement.
"Special Allowance
Payments" shall mean the special allowance payments
authorized to be made by the Secretary by Section 438 of the
Higher Education
Act, or similar allowances, if any, authorized from time to
time by federal law
or regulation.
"State" shall mean the State of Nebraska.
"Stated Maturity"
shall mean the date
specified in the
Series 2004-1
Notes as the fixed date on which
principal of such Series 2004-1 Notes is due
and payable.
"Student Loan Purchase
Agreement" shall mean a loan purchase agreement
entered into for the purchase of Eligible Loans into the Trust Estate from a
third party seller, substantially in the
form attached as Exhibit K hereto.
"Subaccount" shall mean any of the subaccounts which may be created
and
established within any Account pursuant to
this Indenture.
"Subordinate
Interest Trigger"
shall mean, with respect to any
Distribution Date, the Total Parity Ratio is less than 97% or such other
percentage that satisfies the Rating Agency
Condition,
determined after
giving
effect to the distribution of any amounts in the Collection Fund on such
Distribution Date.
"Subordinate
Obligations" shall
mean the Class B Notes and any
Derivative Product, the priority of payment of which is equal with that of
interest on the Class B Notes.
22
<PAGE>
Exhibit 4.11
"Supplemental
Indenture" shall mean an agreement supplemental hereto
executed pursuant to Article VIII
hereof.
"Supplemental Interest
Deposit Amount" shall mean, for any
Quarterly
Distribution Date and each of the Class
A-1A Supplemental
Interest Account, the
Class A-1B Supplemental Interest Account, the Class A-2 Supplemental
Interest
Account and the Class A-3 Supplemental Interest Account, the amount that
satisfies the Rating Agency Condition obtained in connection with the
remarketing of Non-amortizing Reset Rate Notes. For any
Quarterly
Distribution
Date on which the balance in the
corresponding
Class A-1A Redemption
Account,
Class A-1B Redemption Account, the Class A-2 Redemption
Account or Class
A-3
Redemption Account is zero (after taking into account all deposits and
withdrawals to be made on such Quarterly
Distribution
Date), the
corresponding
Supplemental Interest Deposit Amount will
be zero.
"Supplemental Interest
Fund" shall mean the
Fund by that name created
in Section 5.01(g) hereof and further described in Section 5.08 hereof,
including any Accounts and Subaccounts
created therein.
"Termination Payment" shall mean, with respect to a Derivative
Product,
any termination payment payable by the Issuer under such
Derivative
Product
relating to an early termination of such
Derivative Product after the occurrence
of a termination event or event of default
specified in such Derivative Product,
including any Priority Termination
Payment.
"Total Parity
Ratio" shall mean, with respect to any date or
calculation, the percentage equivalent of a fraction of (a)
aggregate Value of
the Trust Estate, less (i) amounts on
deposit in the Redemption Accounts for the
Series 2004-1 Notes, (ii) amounts that were
received under the Interest Rate Cap
Derivative Agreement, and (iii) amounts on deposit in
the Remarketing Fee Fund
over (b) the Outstanding Amount of the Series 2004-1 Notes, less amounts on
deposit in the Redemption Accounts for the
Series 2004-1 Notes.
"Trust Estate"
shall mean the property described as such in the
granting clauses hereto.
"U.S. Person"
shall have the meaning assigned to such term in
Regulation S.
"Value" on any
calculation date when
required under this Indenture
shall mean the value of the Trust Estate
calculated
by the Issuer with
respect
to clause (a) and by the Indenture Trustee with respect to clauses
(b) and (c)
as follows:
(a) with respect to any Eligible Loan owned by the Issuer as
of the calculation
date, the unpaid
principal amount thereof plus any
accrued but unpaid
interest, Interest
Benefit Payments and Special
Allowance Payments;
(b) with respect to
any funds of the
Issuer held under
this
Indenture and on deposit in any commercial bank or as to any banker's
acceptance or repurchase agreement or investment contract, the amount
thereof plus accrued but unpaid interest; and
(c) with respect to any Investment Securities, the par value
thereof, plus accrued but unpaid interest.
23
<PAGE>
Exhibit 4.11
Words importing the masculine gender include the feminine
gender, and
words importing the feminine gender include the masculine gender. Words
importing persons include firms,
associations and corporations. Words importing
the singular number include the plural
number and vice versa.
Additional terms
are defined in the body of this
Indenture.
ARTICLE II
THE SERIES 2004-1 NOTES
Section 2.01. Series 2004-1 Note Details.
(a) The aggregate
principal amount of the Series 2004-1 Notes
which may be initially
authenticated and
delivered pursuant to this
Indenture is limited to $1,010,000,000 except for Series 2004-1 Notes
authenticated and delivered upon transfer of, or in exchange for,
or in
lieu of Series 2004-1 Notes pursuant to Sections 2.03 and 2.04
hereof.
The Series 2004-1
Notes shall be issued
in six (6) separate
classes
(each a "Class")
consisting of the
Class A-1A Notes,
the Class A-1B
Notes, Class A-2
Notes, Class A-3
Notes, the Class B-1
Notes and the
Class B-2 Notes. The
Series 2004-1
Notes shall be
issuable only as
fully registered notes in Authorized Denominations. The Series 2004-1
Notes of each Class
shall each be lettered
"R" and shall be
numbered
separately from 1
upwards, respectively.
The Class A-1A
Notes, the
Class A-1B
Notes, the Class A-2 Notes and the Class A-3 Notes
(collectively, the
"Class A Notes") constitute Senior Obligations
hereunder and
the Class B-1 Notes and the Class B-2 Notes
(collectively, the
"Class B Notes") constitute Subordinate Obligations
hereunder.
The Class A Notes (the "Reset Rate Notes") shall be dated as
of the Closing Date
and shall bear
interest from the
Closing Date,
payable on each
Quarterly Distribution
Date, except that Reset Rate
Notes which are issued
upon transfer,
exchange or other
replacement
shall bear interest from the most recent Quarterly Distribution
Date to
which interest has been paid, or if no interest has been paid, from
the
Closing Date.
The Class A-1A
Notes and the Class
A-1B Notes shall
mature on the Quarterly Distribution Date in May of 2019. The Class
A-2
Notes and the Class A-3 Notes shall mature on the Quarterly
Distribution Date in
August of 2030.
Interest on the Reset Rate Notes
shall be computed pursuant to the applicable Day Count Basis. The
terms
of and definitions related to the Reset Rate Notes are found in
Article
I hereof and Appendix A hereto.
The Class B Notes (the "Auction Rate Notes") shall be dated as
of the Closing Date
and shall bear
interest from the
Closing Date,
payable on each
corresponding Auction
Rate Distribution
Date, except
that Auction
Rate Notes which are
issued upon transfer,
exchange or
other replacement shall bear interest from the most recent Auction
Rate
Distribution Date to
which interest has
been paid, or if no
interest
has been paid, from
the Closing Date.
The Auction Rate Notes shall
mature on February 25,
2036. Interest on the
Auction Rate Notes shall
be computed on the basis of a 360-day year and actual days elapsed.
The
terms of and definitions related to the Auction Rate Notes are
found in
Article I hereof and Appendix B hereto.
24
<PAGE>
Exhibit 4.11
The principal of each
Class of the Series 2004-1 Notes due at
its Stated Maturity
or redemption in whole shall be payable at the
Principal Office of
the Indenture Trustee,
or such other location
as
directed by the Indenture Trustee, or at the Principal Office of its
successor in trust
upon presentation
and surrender of such Class of
Series 2004-1
Notes. Payment of interest and principal, including
Principal Reduction
Payments, paid upon a partial redemption or
reduction of any
Series 2004-1
Note shall be made to
the Registered
Owner thereof by check or draft mailed on the applicable Distribution
Date by the Indenture Trustee to the Registered Owner at his
address as
it last appears on the registration books kept by the Indenture
Trustee
at the close of business on the Record Date for such Distribution
Date.
Payment of interest and principal to a Securities Depository or its
nominee shall, and at
the written request
addressed to the
Indenture
Trustee of any
other Registered Owner owning at least $1,000,000
principal amount of
the Series 2004-1
Notes, payments of interest
shall, be paid by wire
transfer within the United States to the
bank
account number filed
no later than the Record Date with the Indenture
Trustee for such purpose. All payments on the Series 2004-1 Notes
shall
be made in lawful money of the United States of America.
(b) The Auction
Rate Notes may be
offered and sold only to
Qualified
Institutional Buyers
in reliance
on Rule 144A.
Except as
otherwise provided in this Section, the Auction Rate Notes in the
form
of one global note for
each Stated
Maturity of each Class shall be
registered in the name of the Securities Depository or its nominee and
ownership thereof
shall be maintained in book-entry form by the
Securities Depository for the account of the Agent Members.
Initially,
each Auction Rate Note shall be registered in the name of CEDE & Co.,
as the nominee of DTC.
The Reset Rate Notes may be offered
and sold
only to Qualified Institutional Buyers in reliance on Rule 144A or
to a
Non-U.S. Person
outside the United States of America in reliance
on
Regulation S, as
applicable.
Except as otherwise provided in this
Section, Reset Rate Notes of each Class sold to Qualified
Institutional
Buyers in reliance on Rule 144A will be represented by interests in a
Rule 144A global registered note certificate (a "Rule 144A
Certificate") and
Reset Rates
Notes of each Class
sold to Non-U.S.
Person outside the United States of America in reliance on
Regulation S
will be represented by a Regulation S global registered note
certificate (a "Regulation S Certificate") for each Stated Maturity.
The Rule 144A
Certificate will be
deposited on the
Closing Date with
the Indenture Trustee,
as custodian for DTC
(the "DTC Custodian") and
registered in the name
of CEDE & Co. as initial nominee for DTC. The
aggregate principal amount of the Rule 144A Certificate
representing a
Class of the
Class A Notes
may from time to time be increased or
decreased by adjustments made on the records of the
Indenture Trustee
or DTC or its nominee, as the case may be, as hereinafter provided.
The
Regulation S Certificate will be deposited on the Closing Date with
the
DTC Custodian
and registered in the name of CEDE & Co.
as initial
nominee for DTC for the accounts of Morgan Guaranty Trust Company of
New York, Brussels,
as operator of
Euroclear, and
Clearstream.
The
aggregate principal amount of the Regulation S Certificate
representing
a Class of the Class A
Notes may from
time to time be
increased or
decreased by adjustments made on the records of the
Indenture Trustee
or DTC or its nominee, as the case may be, as hereinafter
provided. At
all times,
there will be only one Rule 144A Certificate and one
Regulation S Certificate for each Class of the Reset Rate Notes. At
all
times, the entire Outstanding Amount of each Class of the Reset
Rate
Notes will be
25
<PAGE>
Exhibit 4.11
allocated
between the
corresponding
Rule
144A Certificate and
Regulation S
Certificate.
Ownership of the Reset
Rate Notes shall be
maintained in
book-entry form by the
Securities
Depository
for the
account of the Agent
Members. Except as
provided in subsection (d) of
this Section, the Series 2004-1 Notes may be transferred,
in whole but
not in part, only to
the Securities
Depository
or a nominee of
such
Securities Depository
or to a successor Securities Depository selected
or approved by the Issuer or to a nominee of such successor
Securities
Depository. Each
global note shall bear a legend substantially to the
following effect: "Except as otherwise provided in the Indenture,
this
global note
may be transferred, in whole but not in part, only to
another nominee
of the Securities Depository or to a successor
Securities Depository
or to a nominee of a successor Securities
Depository."
(c) Except as otherwise provided herein, the Issuer and the
Indenture Trustee
shall have no
responsibility
or obligation with
respect to (i) the accuracy of the records of any Securities
Depository
or any Agent Member with respect to any beneficial ownership interest
in the Series 2004-1
Notes, (ii) the delivery to any Agent Member,
beneficial owner of the Series 2004-1 Notes or other Person, other
than
the Securities
Depository,
of any notice with
respect to the
Series
2004-1 Notes or (iii) the payment to any Agent Member, beneficial
owner
of the Series 2004-1 Notes or other Person, other than the Securities
Depository, of any
amount with respect to the principal of or interest
on the Series 2004-1 Notes. So long as the certificates for the Series
2004-1 Notes issued
under this Indenture
are not issued
pursuant to
subsection (d) of this
Section, the Issuer
and the Indenture
Trustee
may treat the Securities Depository as, and deem the Securities
Depository to be, the absolute owner of the Series 2004-1 Notes for
all
purposes whatsoever,
including, without limitation, (A) the payment of
principal of and
interest on such
Series 2004-1 Notes, (B) giving
notices of redemption
and other matters with respect to such Series
2004-1 Notes and (C) registering transfers with respect to such
Series
2004-1 Notes. In connection with any notice or other communication to
be provided to the Registered Owners pursuant to this Indenture
by the
Issuer or the
Indenture Trustee
with respect to any
consent or other
action to be
taken by the Registered Owners, the Issuer or the
Indenture Trustee,
as the case may be,
shall establish a
record date
for such consent or
other action
and, if the
Securities
Depository
shall hold
all of the Series 2004-1 Notes, give the Securities
Depository notice of such record date not less than 15 calendar
days in
advance of such record date to the extent possible. Such notice to the
Securities
Depository shall
be given only when the Securities
Depository is the sole Registered Owner.
(d) If at any time the
Securities
Depository
notifies the
Issuer and the
Indenture Trustee
that it is
unwilling or unable to
continue as Securities
Depository
with respect to any or all of the
Series 2004-1 Notes or if at any time the Securities Depository shall
no longer be
registered
or in good
standing under the Securities
Exchange Act or other applicable statute or regulation and a
successor
Securities Depository
is not appointed by the Issuer
within 90 days
after the Issuer receives notice or becomes aware of such
condition, as
the case may be, subsections (b) and (c) of this Section shall no
longer be applicable
and the Issuer shall
execute and the
Indenture
Trustee shall
authenticate and deliver certificates representing the
Series 2004-1 Notes as
provided below.
In addition, the Issuer may
determine at any time
that the Series 2004-1
Notes
26
<PAGE>
Exhibit 4.11
shall no longer be
represented by
Global Certificates and that the
provisions of
subsections (b) and
(c) of this Section shall no longer
apply to the Series
2004-1 Notes.
In such event, the Issuer shall
execute
and the Indenture Trustee shall authenticate and deliver
certificates
representing the
Series 2004-1 Notes as provided below.
Certificates for the
Series 2004-1
Notes issued in exchange for a
Global Certificate
pursuant to this subsection (d) shall be registered
in such names and Authorized Denominations as the Securities
Depository,
pursuant to
instructions
from the Agent Members or
otherwise, shall
instruct in writing to
the Issuer and the
Indenture
Trustee, and upon
which written instructions the Indenture Trustee may
rely without
investigation.
The Indenture Trustee shall promptly
deliver such
certificates
representing the Series 2004-1 Notes to the
Persons in whose names such Series 2004-1 Notes are so
registered.
(e) Any Series 2004-1 Notes issued to Qualified Institutional
Buyers who are
U.S. Persons and are not affiliates of the Issuer
pursuant to Rule 144A
will be issued as Rule
144A Certificates.
Any
Reset Rate Notes issued to Non-U.S. Persons pursuant to Regulation S
will be issued as Regulation S Certificate.
Section 2.02. Execution of Series 2004-1 Notes. The Series 2004-1
Notes
shall be executed in the name and on behalf of the Issuer by the manual or
facsimile signature of any of its Authorized
Officers. Any Series 2004-1 Note
may be signed manually or by facsimile or attested on behalf of the
Issuer by
any person who, at the date of such act, shall hold the proper office,
notwithstanding that at the date of
authentication,
issuance or delivery,
such
person may have ceased to hold such office.
The Indenture Trustee shall upon
Issuer Order authenticate and deliver the
Series 2004-1 Notes for original issue
in an aggregate principal amount of $1,010,000,000. The aggregate principal
amount of the Series 2004-1 Notes Outstanding at any time may not exceed
such
amount. Each Series 2004-1 Note shall be
dated the date of its
authentication.
On each Spread Determination Date, upon receipt of an Issuer Order, the
Indenture Trustee shall deliver a revised
Schedule A for the Reset Rate Notes to
the DTC Custodian.
Section 2.03.
Registration,
Transfer and
Exchange of Series
2004-1
Notes; Persons Treated as Registered
Owners.
(a) The Issuer shall cause books for the registration and for
the transfer of the Series 2004-1 Notes as provided in this
Indenture
to be kept by the
Indenture Trustee
which is hereby appointed the
registrar and transfer agent of the Issuer for the Series 2004-1
Notes.
Notwithstanding such
appointment and with the prior written consent of
the Issuer, the
Indenture Trustee is hereby authorized to make any
arrangements with
other institutions which it deems necessary or
desirable in order
that such institutions
may perform the duties of
registrar and
transfer agent for the Series 2004-1 Notes. Upon
surrender for
transfer of any Series
2004-1 Note at the designated
corporate trust office
of the Indenture
Trustee, duly endorsed for
transfer or
accompanied
by an assignment duly executed by the
Registered Owner or his attorney duly authorized in writing, the
Issuer
shall execute and the Indenture Trustee shall authenticate and deliver
in the name of the
transferee or
transferees a new
fully registered
Series 2004-1 Note or Series 2004-1 Notes of the same interest rate
and
for a like Class
27
<PAGE>
Exhibit 4.11
and aggregate
principal amount of the same Stated Maturity. The
transfer of each Series 2004 Note shall be subject to the
restrictions
set forth in Appendix C hereto.
Series 2004-1
Notes may be exchanged at the designated
corporate trust office
of the Indenture
Trustee for a like
aggregate
principal amount of
fully registered
Series 2004-1 Notes of
the same
Class, interest rate
and Stated Maturity in Authorized Denominations.
The Issuer shall execute and the Indenture Trustee shall authenticate
and deliver Series 2004-1 Notes which the Registered Owner making the
exchange is entitled to receive, bearing numbers not
contemporaneously
outstanding. The execution by the Issuer of any fully registered
Series
2004-1 Note of any authorized denomination shall constitute full and
due authorization of
such denomination and the Indenture Trustee shall
thereby be authorized to authenticate and deliver such fully
registered
Series 2004-1 Note.
The Indenture
Trustee shall not be required to transfer or
exchange any Series
2004-1 Note during the period of 15 Business Days
next preceding the mailing of notice of redemption as herein
provided.
After the giving of such notice of redemption, the Indenture Trustee
shall not be required to transfer or exchange any Series 2004-1 Note,
which Series
2004-1 Note or portion thereof has been called for
redemption.
As to any Series
2004-1 Note, the person in whose name the
same shall be
registered shall be
deemed and regarded as the absolute
owner thereof for all
purposes, and payment of either principal or
interest on any fully registered Series 2004-1 Note shall be made
only
to or upon the written
order of the
Registered Owner
thereof or his
legal
representative
but such registration may be changed as
hereinabove provided. All such payments shall be valid and
effectual to
satisfy and discharge the liability upon such Series 2004-1 Note to
the
extent of the sum or sums paid.
The Indenture
Trustee shall require the payment by any
Registered Owner
requesting
exchange or transfer
of any tax or other
governmental charge
and all expenses and
charges of the Issuer and of
the Indenture Trustee required to be paid with respect to such
exchange
or transfer. The Registered Owner for any such transfer or exchange
may
be required to pay all
taxes and governmental
charges in
connection
with such transfer or exchange.
For so long as any Class of Series 2004-1 Notes are
"restricted
securities" within the
meaning of Rule
144(a)(3) of the
Securities Act,
(i) the Administrator will provide or cause to be
provided to any holder of such Series 2004-1 Notes and any
prospective
purchaser thereof designated by such a holder, upon the request of
such
holder or prospective purchaser, the information required to be
provided to such holder or prospective purchaser by Rule 144A(d)(4)
under the Securities Act; and (ii) the Administrator shall update such
information from time to time in order to prevent such information
from
becoming false and
misleading and will
take such other actions as are
necessary to
ensure that the safe harbor exemption from the
registration
requirements of the Securities Act under Rule 144A is and
will be available for resales of such Series 2004-1 Notes
conducted in
accordance with Rule 144A.
28
<PAGE>
Exhibit 4.11
(b) Notwithstanding
any provision to the
contrary herein, so
long as a Global
Certificate is held by or on behalf of DTC, transfers
of a Global
Certificate, in whole
or in part, shall
only be made in
accordance with Section 2.01(b) and this subsection (b).
(i) Global
Certificates. Subject
to clauses
(ii),
(iii) and (iv) of this subsection (b), transfers of a Global
Certificate shall be
limited to transfers of such Global Note
in whole, but not in part, to nominees of DTC or to a
successor of DTC or such successor's nominee.
(ii) Rule
144A Certificate to Regulation S
Certificate. If a
holder of a beneficial
interest in a Rule
144A Certificate
representing the Reset
Rate Notes wishes at
any time to exchange its interest in such Rule 144A
Certificate for an interest in the corresponding Regulation S
Certificate, or to
transfer its interest in such Rule 144A
Certificate to a Person who wishes to take delivery thereof in
the form of an
interest in the
corresponding
Regulation
S
Certificate, such
holder may, subject to the immediately
succeeding sentence and the rules and procedures of Euroclear,
Clearstream or DTC, as
the case may be,
exchange or transfer
or cause the exchange
or transfer
of such interest for an
equivalent
beneficial
interest in
the Regulation S
Certificate.
Upon receipt
by the Indenture Trustee, as
registrar, of:
(A) instructions
given in accordance
with
Euroclear, Clearstream
or DTC's procedures,
as the
case may be, from an Agent Member to instruct DTC to
cause to be credited a
beneficial
interest in the
Regulation S
Certificate
in an amount equal to
the
beneficial interest in
the Rule 144A
Certificate to
be exchanged or transferred; and
(B) a written order given in accordance with
DTC's procedures containing information regarding the
participant account
of DTC and the Euroclear and
Clearstream
account to
be credited with such
increase,
then the Indenture Trustee, as registrar, will instruct DTC to
(1) reduce the principal amount of the Rule 144A
Certificate
and increase
the principal amount of the Regulation S
Certificate by
the aggregate principal amount of the
beneficial interest
in the Rule 144A Certificate to be
exchanged or
transferred,
and (2) credit or cause to be
credited
to the account of the Person specified in such
instructions a
beneficial
interest
in the Regulation S
Certificate equal to
the reduction in the principal amount of
the Rule 144A Certificate.
(iii) Regulation
S Certificate to Rule 144A
Certificate. If
a holder of a beneficial interest in a
Regulation S
Certificate
representing
the Reset Rate
Notes
wishes at any time to exchange its interest in such Regulation
S Certificate for an interest in a Rule 144A Certificate or to
transfer its interest in such Regulation S Certificate to a
Person who wishes to take delivery thereof in the form of an
interest in the
corresponding
Rule 144A Certificate, such
holder may, subject to the immediately succeeding sentence and
the rules and procedures of Euroclear and Clearstream or DTC,
as the case may be, exchange or transfer or cause the
29
<PAGE>
Exhibit 4.11
exchange or
transfer of such interest for an equivalent
beneficial interest in the Rule 144A Certificate. Upon receipt
by the Indenture Trustee, as registrar, of:
(A) instructions
given in accordance
with
DTC's procedure
from an Agent
Member to instruct
Euroclear or
Clearstream
to cause to be
credited a
beneficial interest
in the Rule 144A Certificate
equal to the beneficial interest in the Regulation S
Certificate to be exchanged or transferred, and
(B) a written order given in accordance with
DTC's procedures containing information regarding the
participant account with DTC to be credited with such
increase,
then Euroclear or
Clearstream or the
Indenture Trustee,
as
registrar, as the case may be, will instruct DTC to (i) reduce
the Regulation S Certificate and increase the principal amount
of the Rule 144A Certificate by the aggregate principal amount
of the beneficial
interest in the Regulation S Certificate to
be transferred
or exchanged,
and (ii) credit or
cause to be
credited to the
account of the Person specified in such
instructions a
beneficial
interest
in the Rule 144A
Certificate equal to
the reduction in the principal amount of
the Regulation S Certificate.
(iv) Certificated
Securities.
In the event
that a
Global Certificate is exchanged for the Series 2004-1 Notes in
definitive registered form without interest coupons, pursuant
to Section 2.01(d)
hereof such Series 2004-1 Notes may be
exchanged for
one another only in accordance with such
procedures and restrictions as are substantially consistent as
determined by the Issuer and the Indenture Trustee to insure
that such transfers comply with Rule 144A, or, with respect to
the Reset Rate Notes,
are to Non-U.S.
Persons and
non-U.S.
residents (as
determined
for purposes of the Investment
Company Act), or
otherwise comply with
Regulation S, as
the
case may be.
(v) Transfer of Interests in the Global Certificate.
Notwithstanding anything herein to the contrary, transfers of
interests in
a Global Certificate may be made (A) by
book-entry
transfer of
beneficial
interests
within the
relevant Securities
Depository
or (B)(1) in the case of
transfers of
interests in a Rule 144A Certificate, in
accordance with
subsection (b)(ii) of
this Section or (2) in
the case of transfers of interest in a Regulation S
Certificate, in
accordance with subsection (b)(iii); provided
that in the case of any such transfer of interests pursuant to
clause (A) or (B) above, such transfer is made in accordance
with subsection (vi) below.
(vi) Restrictions on Transfers.
(A) Transfers of interests in a Regulation S
Certificate to a U.S.
Person or a U.S.
resident (as
determined for
purposes of the
Investment
Company
Act) shall be made by
delivery of an
interest in a
Rule 144A Certificate and shall be limited to
transfers made
pursuant
to the
30
<PAGE>
Exhibit 4.11
provisions of
subsection
(b)(iii) of this
Section.
Beneficial interests
in a Regulation S
Certificate
may only be held through Euroclear and Clearstream.
(B) Any transfer
of an interest in a Rule
144A Certificate to a U.S. Person or a U.S. resident
(as determined for purposes of the Investment Company
Act) that is not a Qualified Institutional Buyer
shall be null and void and shall not be given effect
for any purpose hereunder, and the Indenture Trustee
shall hold
any funds conveyed by the intended
transferee of
such interest in such Rule 144A
Certificate in trust
for the transferor and shall
promptly reconvey
such funds to such Person in
accordance
with the written instructions thereof
delivered to the
Indenture Trustee at its address
listed in Section 9.01 hereof
Section 2.04. Lost,
Stolen, Destroyed and Mutilated Series 2004-1
Notes. Upon receipt by the Indenture
Trustee of evidence
satisfactory to it
of
the ownership of and the loss, theft, destruction or mutilation of any Series
2004-1 Note and, in the case of a lost,
stolen or destroyed
Series 2004-1 Note,
of indemnity satisfactory to it, and upon surrender and cancellation of the
Series 2004-1 Note, if mutilated, (a) the Issuer shall execute, and the
Indenture Trustee shall authenticate and deliver,
a new Series 2004-1
Note of
the same Class, interest rate, Stated Maturity and Authorized
Denomination in
lieu of such lost, stolen, destroyed or mutilated Series
2004-1 Note or (b) if
such lost, stolen, destroyed or mutilated Series
2004-1 Note shall have matured
or have been called for redemption, in lieu of executing and
delivering a new
Series 2004-1 Note as aforesaid, the Issuer
may pay such Series 2004-1 Note. Any
such new Series 2004-1 Note shall bear a number not contemporaneously
outstanding. The Registered Owner for any such new Series
2004-1 Note may be
required to pay all taxes and governmental
charges and all
expenses and charges
of the Issuer and of the Indenture
Trustee in
connection
with the issuance
of
such Series 2004-1 Note. All Series 2004-1 Notes shall be held and
owned upon
the express condition that, to the extent permitted by law, the foregoing
conditions are exclusive with respect to the replacement and payment of
mutilated, destroyed, lost or stolen Series
2004-1 Notes, negotiable instruments
or other securities.
Section 2.05. Forms of
Series 2004-1 Notes. The Class A Notes shall be
in substantially the form set forth in Exhibit A hereto, each with such
variations, omissions and insertions as may be necessary. The Class B Notes
shall be in substantially the form set forth in Exhibit B hereto, with such
variations, omissions and insertions as may
be necessary.
Section 2.06.
Indenture Trustee's Authentication Certificate. The
Indenture Trustee's authentication certificate upon the Series 2004-1 Notes
shall be substantially in the forms provided in Exhibits A and B hereto,
respectively. No Series 2004-1 Note shall be
secured hereby or
entitled to the
benefit hereof, or shall be valid or obligatory for any purpose, unless a
certificate of authentication, substantially in such form, has been duly
executed by the Indenture Trustee; and such
certificate of the Indenture Trustee
upon any Series 2004-1 Note shall be
conclusive evidence
and the only competent
evidence that such Series 2004-1 Note has been authenticated and delivered
hereunder. The Indenture Trustee's
certificate of authentication shall be deemed
to have been duly executed by it if
manually signed by an authorized officer of
the
31
<PAGE>
Exhibit 4.11
Indenture Trustee, but it shall not be necessary that
the same person sign the
certificate of authentication on all of the Series 2004-1 Notes issued
hereunder.
Section 2.07.
Cancellation and
Destruction of Series
2004-1 Notes by
the Indenture Trustee. Whenever any Outstanding Series 2004-1 Notes shall be
delivered to the Indenture Trustee for the
cancellation thereof pursuant to this
Indenture, upon payment of the principal amount and interest represented
thereby, or for replacement pursuant to Section 2.03 hereof,
such Series 2004-1
Notes shall be promptly cancelled and, within a reasonable time, cremated or
otherwise destroyed by the Indenture
Trustee and
counterparts of a certificate
of destruction evidencing such cremation or
other destruction shall be furnished
by the Indenture Trustee to the Issuer upon
request.
Section 2.08. Temporary Series 2004-1 Notes. Pending the
preparation of
definitive Series 2004-1 Notes, the Issuer
may execute and the Indenture Trustee
shall authenticate and deliver temporary
Series 2004-1 Notes.
Temporary Series
2004-1 Notes shall be issuable as fully
registered notes without coupons, of any
denomination, and substantially in the form of the definitive Series 2004-1
Notes but with such omissions, insertions and variations as may
be appropriate
for temporary Series 2004-1 Notes, all as
may be determined by the Issuer. Every
temporary Series 2004-1 Note shall be executed by the Issuer and be
authenticated by the Indenture Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive Series
2004-1 Notes. As promptly as practicable the Issuer shall execute and shall
furnish definitive Series 2004-1 Notes and thereupon
temporary Series 2004-1
Notes may be surrendered in exchange
therefor without charge at the
designated
corporate trust office of the Indenture
Trustee, and the Indenture Trustee shall
authenticate and deliver in exchange for such
temporary Series 2004-1 Notes a
like aggregate principal amount of definitive Series 2004-1 Notes. Until so
exchanged the temporary Series 2004-1 Notes shall be entitled to the same
benefits under this Indenture as definitive
Series 2004-1 Notes.
Section 2.09.
Redemption of and
Principal Reduction
Payments on the
Series 2004-1 Notes.
(a) Optional Redemption of the Reset Rate Notes. Each Class of
the Reset Rate Notes is subject to optional redemption,
in whole only,
at the option of the Issuer, from any source of funds on any Reset
Date
for such Class of the Reset Rate Notes on or after August 1, 2005,
at a
redemption price equal
to the principal amount thereof being redeemed,
plus accrued
interest, if any, and any Reset Rate Notes
Carry-over
Amounts (and any
accrued interest thereon) due and payable on such
Class of the Reset Rate Notes (as described in Appendix A hereto) to
such Reset Date.
(b) Optional
Redemption
of Reset Rate Notes Upon a Failed
Remarketing. Upon a sale of a Pro rata Portion of the Financed
Eligible
Loans after the declaration of a Failed Remarketing for a Class of the
Reset Rate Notes as provided in Section 2.05(c) or 2.07(a) of Appendix
A hereto, such Class
of the Reset Rate Notes is subject to redemption,
in whole only,
on any Reset
Date on or after
August 1, 2005, at a
redemption price equal
to the principal amount thereof being redeemed,
plus accrued
interest, if any, and any Reset Rate Notes
Carry-over
Amounts (and any
accrued interest thereon) due
32
<PAGE>
Exhibit
4.11
and payable on such
Class of the Reset
Rate Notes (as
described in
Appendix A hereto) to such Reset Date.
(c) Optional Redemption of Auction Rate Notes. Subject to the
provisions of subsection (j) of this Section, each Class of the
Auction
Rate Notes is subject to redemption at the option of the Issuer,
from
any source
of funds, in whole or in part, on any Auction Rate
Distribution Date
for such Class of the Auction Rate Notes, at a
