Exhibit 4.2
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TRUST AGREEMENT
between
XXXXX FARGO STUDENT LOANS RECEIVABLES I, LLC,
as Depositor,
and
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Eligible Lender Trustee
Dated as of November 1, 2001
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Table of Contents
Page
ARTICLE I
Definitions and Usage
ARTICLE II
Organization
SECTION 2.01. Name........................................................................................1
SECTION 2.02. Office......................................................................................1
SECTION 2.03. Purposes and Powers.........................................................................1
SECTION 2.04. Appointment of Eligible Lender Trustee......................................................2
SECTION 2.05. Initial Capital Contribution of Trust Estate................................................2
SECTION 2.06. Declaration of Trust........................................................................2
SECTION 2.07. [Reserved.].................................................................................2
SECTION 2.08. Title to Trust Property.....................................................................3
SECTION 2.09. Representations and Warranties of the Depositor.............................................3
SECTION 2.10. Tax Treatment...............................................................................4
SECTION 2.11. Liability of Noteholders....................................................................4
ARTICLE III
Ownership
SECTION 3.01. Beneficial Ownership........................................................................4
ARTICLE IV
Actions by Eligible Lender Trustee
SECTION 4.01. Prior Notice to Noteholders with Respect to Certain Matters.................................5
SECTION 4.02. Action by Noteholders with Respect to Bankruptcy............................................6
SECTION 4.03. Restrictions on Noteholders' Power..........................................................7
ARTICLE V
Certain Duties
SECTION 5.01. No Segregation of Monies; No Interest.......................................................7
SECTION 5.02. Accounting and Reports to the Noteholders, the Internal Revenue Service and Others..........7
SECTION 5.03. Incentive Programs..........................................................................7
ARTICLE VI
Authority and Duties of Eligible Lender Trustee
SECTION 6.01. General Authority...........................................................................8
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SECTION 6.02. General Duties..............................................................................8
SECTION 6.03. Action upon Instruction.....................................................................8
SECTION 6.04. No Duties Except as Specified in this Agreement, the Loan Sale Agreement,
the Servicing Agreement, the Administration Agreement or in Instructions....................9
SECTION 6.05. No Action Except under Specified Documents or Instructions.................................10
SECTION 6.06. Restrictions...............................................................................10
SECTION 6.07. Origination of Consolidation Loans during the Funding Period...............................10
ARTICLE VII
Concerning the Eligible Lender Trustee
SECTION 7.01. Acceptance of Trusts and Duties............................................................12
SECTION 7.02. Furnishing of Documents....................................................................13
SECTION 7.03. Representations and Warranties.............................................................13
SECTION 7.04. Reliance; Advice of Counsel................................................................14
SECTION 7.05. Not Acting in Individual Capacity; Responsibility to Secretary and Guarantors..............14
SECTION 7.06. Eligible Lender Trustee Not Liable for Notes or Student Loans..............................15
SECTION 7.07. Eligible Lender Trustee May Own Trust Notes................................................15
SECTION 7.08. Licenses...................................................................................15
ARTICLE VIII
Compensation of Eligible Lender Trustee
SECTION 8.01. Eligible Lender Trustee's Fees and Expenses................................................15
SECTION 8.02. Payments to the Eligible Lender Trustee....................................................16
ARTICLE IX
Termination of Trust Agreement
SECTION 9.01. Termination of Trust Agreement.............................................................16
SECTION 9.02. [Reserved.]................................................................................16
ARTICLE X
Successor Eligible Lender Trustees and Additional Eligible Lender Trustees
SECTION 10.01. Eligibility Requirements for Eligible Lender Trustee.......................................16
SECTION 10.02. Resignation or Removal of Eligible Lender Trustee..........................................17
SECTION 10.03. Successor Eligible Lender Trustee..........................................................18
SECTION 10.04. Merger or Consolidation of Eligible Lender Trustee.........................................18
SECTION 10.05. Appointment of Co-Eligible Lender Trustee or Separate Eligible Lender Trustee..............18
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ARTICLE XI
Miscellaneous
SECTION 11.01. Supplements and Amendments.................................................................20
SECTION 11.02. No Legal Title to Trust Estate in Noteholders..............................................21
SECTION 11.03. Limitations on Rights of Others............................................................21
SECTION 11.04. Notices....................................................................................21
SECTION 11.05. Severability...............................................................................21
SECTION 11.06. Separate Counterparts......................................................................22
SECTION 11.07. Successors and Assigns.....................................................................22
SECTION 11.08. No Petition................................................................................22
SECTION 11.09. No Recourse................................................................................22
SECTION 11.10. Headings...................................................................................22
SECTION 11.11. Governing Law..............................................................................22
SECTION 11.12. Reserved...................................................................................22
SECTION 11.13. Third-Party Beneficiaries..................................................................23
SECTION 11.14. Consents...................................................................................23
EXHIBIT A. Certificate of Trust
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TRUST AGREEMENT (the "Agreement") dated as of November 1, 2001,
between XXXXX FARGO STUDENT LOANS RECEIVABLES I, LLC, a Delaware limited
liability company, as depositor (the "Depositor"), and BANK ONE, NATIONAL
ASSOCIATION ("Bank One"), a national banking association, not in its
individual capacity but solely as eligible lender trustee (the "Eligible
Lender Trustee").
The Depositor and the Eligible Lender Trustee hereby agree as
follows:
ARTICLE I
Definitions and Usage
Capitalized terms used but not defined herein are defined in
Appendix A to the Administration Agreement, dated as of November 1, 2001 among
Xxxxx Fargo Student Loan Trust 2001-1, as Issuer, Xxxxx Fargo Bank Minnesota,
National Association, as Administrator, and JPMorgan Chase Bank, as Indenture
Trustee, which also contains rules as to construction and usage that shall be
applicable herein.
ARTICLE II
Organization
SECTION 2.01. Name. The Trust created hereby shall be known as
"Xxxxx Fargo Student Loan Trust 2001-1", in which name the Eligible Lender
Trustee may conduct the business of the Trust, make and execute contracts and
other instruments on behalf of the Trust and xxx and be sued.
SECTION 2.02. Office. The office of the Trust shall be in care
of the Eligible Lender Trustee at its Corporate Trust Office or at such other
address as the Eligible Lender Trustee may designate by written notice to the
Depositor.
SECTION 2.03. Purposes and Powers. The purpose of the Trust is
to engage in the following activities:
(i) to issue the Notes pursuant to the Indenture and to sell the
Notes in one or more transactions;
(ii) with the proceeds of the sale of the Notes, to purchase the
Initial Financed Student Loans, to deposit the Reserve Account Initial
Deposit in the Reserve Account, to deposit the Prefunding Account Closing
Date Deposit in the Prefunding Account, and to pay the organizational,
start-up and transactional expenses of the Trust and to pay the balance
to the Depositor pursuant to the Loan Sale Agreement;
(iii) to enter into the Swap Agreement;
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(iv) to originate Consolidation Loans during the Funding Period
pursuant to Section 6.07 hereof, to increase the principal balance of
Consolidation Loans by adding the principal balances of any related
Add-on Consolidation Loans to the principal balances of such
Consolidation Loans, to acquire and hold the Prefunded Loans to be
conveyed to the Trust pursuant to the Loan Sale Agreement and to acquire
and hold any Serial Loans to be conveyed to the Trust subsequent to the
Closing Date pursuant to the Loan Sale Agreement;
(v) to assign, grant, transfer, pledge, mortgage and convey the
Trust Estate pursuant to the Indenture;
(vi) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(vii) to engage in those activities, including entering into
agreements, that are necessary, suitable or convenient to accomplish the
foregoing or are incidental thereto or connected therewith; and
(viii) subject to compliance with the Basic Documents, to engage in
such other activities as may be required in connection with conservation
of the Trust Estate and the making of distributions to the Noteholders
and the others specified in Section 2(d) of the Administration Agreement.
The Trust shall not engage in any activity other than in connection with the
foregoing or other than as required or authorized by the terms of this
Agreement or the other Basic Documents.
SECTION 2.04. Appointment of Eligible Lender Trustee. The
Depositor hereby appoints the Eligible Lender Trustee as trustee of the Trust
effective as of the date hereof, to have all of the rights, powers and duties
set forth herein.
SECTION 2.05. Initial Capital Contribution of Trust Estate. The
Depositor hereby sells, assigns, transfers, conveys and sets over to the
Eligible Lender Trustee, as of the date hereof, the sum of $1.00. The Eligible
Lender Trustee hereby acknowledges receipt in trust from the Depositor, as of
the date hereof, of the foregoing contribution, which shall constitute the
initial Trust Estate and shall be deposited in the Collection Account. The
Depositor shall pay the organizational expenses of the Trust as they may arise
or shall, upon the request of the Eligible Lender Trustee, promptly reimburse
the Eligible Lender Trustee for any such expenses paid by the Eligible Lender
Trustee.
SECTION 2.06. Declaration of Trust. The Eligible Lender Trustee
hereby declares that it will hold the Trust Estate in trust upon and subject
to the conditions set forth herein for the use and benefit of the Depositor,
subject to the obligations of the Trust under the other Basic Documents. It is
the intention of the parties hereto that the Trust constitute a trust under
the Business Trust Statute and that this Agreement constitute the governing
instrument of such trust. Effective as of the date hereof, the Eligible Lender
Trustee shall have all rights, powers and duties set forth herein and in the
Business Trust Statute with respect to
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accomplishing the purposes of the Trust. The Eligible Lender Trustee and the
Delaware Trustee shall file the Certificate of Trust with the Secretary of
State of the State of Delaware pursuant to ss. 3801 of the Business Trust
Statute on or before the Closing Date.
SECTION 2.07. Reserved.
SECTION 2.08. Title to Trust Property. Subject to the Indenture,
legal title to the Trust Estate shall be vested at all times in the Trust as a
separate legal entity except where applicable law in any jurisdiction requires
title to any part of the Trust Estate to be vested in a trustee or trustees,
in which case title shall be deemed to be vested in the Eligible Lender
Trustee, a co-trustee and/or a separate trustee, as the case may be; provided,
however, that legal title to the Financed Student Loans shall be vested at all
times in the Eligible Lender Trustee on behalf of the Trust.
SECTION 2.09. Representations and Warranties of the Depositor.
The Depositor hereby represents and warrants, as to itself, to the Eligible
Lender Trustee that:
(i) It is duly organized and validly existing as a limited liability
company in good standing under the laws of the State of Delaware, with
power and authority to own its properties and to conduct its business as
such properties are currently owned and such business is currently
conducted.
(ii) It is duly qualified to do business as a foreign limited
liability company in good standing, and has obtained all necessary
licenses and approvals in all jurisdictions in which the ownership or
lease of property or the conduct of its business shall require such
qualifications except where failure to do so (both singly and in the
aggregate) will not have a material adverse effect on the conduct of its
business, operations or financial condition.
(iii) It has the power and authority to execute and deliver this
Agreement and to carry out its terms; and the execution, delivery and
performance of this Agreement have been duly authorized by it by all
necessary limited liability company action; the Depositor has full power
and authority to transfer and assign the property to be transferred and
assigned to, and to be deposited with, the Trustee; and the Depositor has
duly authorized such transfer and assignment to the Trust by all
necessary limited liability company action.
(iv) This Agreement constitutes its legal, valid and binding
obligation enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization and similar laws
relating to creditors' rights generally and subject to general principles
of equity.
(v) The consummation of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof do not conflict with,
result in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time or both) a default under, its
certificate of formation or by-laws, or any indenture, agreement or
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other instrument to which it is a party or by which it is bound; nor
result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or
other instrument (other than pursuant to the Basic Documents); nor
violate any law or, to the best of its knowledge, any order, rule or
regulation applicable to it of any court or of any Federal or state
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over it or its properties.
(vi) There are no proceedings or investigations pending or, to its
best knowledge, threatened before any court, regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Depositor or its properties: (A) asserting the
invalidity of this Agreement, (B) seeking to prevent the consummation of
any of the transactions contemplated by this Agreement or (C) seeking any
determination or ruling that might materially and adversely affect the
performance by it of its obligations under, or the validity or
enforceability of, this Agreement.
SECTION 2.10. Tax Treatment. The Depositor has entered into this
Agreement, and the Notes will be issued to and acquired by the Noteholders,
with the intention that, for federal, state, foreign and local income and
franchise tax and usury law purposes, the Notes will be indebtedness of the
Issuer secured by the Trust Estate. The Depositor, by entering into this
Agreement, and each Noteholder, by the acceptance of its Note, agrees to treat
the Notes for purposes of federal, state and local income and franchise taxes
and for any other tax imposed on or measured by income and usury law purposes
as indebtedness of the Trust secured by the Trust Estate. In accordance with
the foregoing, the Eligible Lender Trustee hereby agrees to treat the Trust as
a security device only, and shall not file tax returns or obtain an employer
identification number on behalf of the Trust (except as may be required as a
result of changes in law or as may otherwise be required in the Opinion of
Counsel for the Trust).
SECTION 2.11. Liability of Noteholders. No Noteholder shall have
any personal liability or obligation to or for the Trust.
ARTICLE III
Ownership
SECTION 3.01. Beneficial Ownership. Upon the formation of the
Trust by the contribution by the Depositor pursuant to Section 2.05, the
Depositor shall be the sole beneficial owner of the Trust. For so long as any
Notes remain Outstanding, the Depositor shall not Transfer its ownership
interest in the Trust, in whole or in part, unless (i) either (A) the
Depositor shall have delivered to the Eligible Lender Trustee and the
Indenture Trustee an Opinion of Counsel (with a copy to the Rating Agencies)
that neither the Trust nor the Depositor would be consolidated with the
purchaser of such ownership interest in the event of an Insolvency Event with
respect to such purchaser or (B) the Rating Agency Condition is satisfied with
respect to such Transfer, (ii) the Depositor shall have delivered to the
Eligible Lender Trustee, the Indenture Trustee and the Swap Counterparty an
Opinion of Counsel that such transaction will not result in a material adverse
federal or Delaware state tax consequence to the Issuer or the Noteholders,
and (iii) there is delivered to the Eligible Lender Trustee and the Indenture
Trustee
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an Opinion of Counsel, in form and substance satisfactory to them, that such
Transfer may be made pursuant to an exemption, describing the applicable
exemption and the basis therefor, from the Securities Act and under applicable
state securities laws.
ARTICLE IV
Actions by Eligible Lender Trustee
SECTION 4.01. Prior Notice to Noteholders with Respect to
Certain Matters. With respect to the following matters and subject to the last
paragraph of this Section 4.01, neither the Eligible Lender Trustee nor the
Delaware Trustee shall take any action unless at least 30 days before the
taking of such action, the Eligible Lender Trustee or the Delaware Trustee
shall have notified the Noteholders and the Rating Agencies in writing of the
proposed action and neither the Noteholders nor the Swap Counterparty shall
have notified the Eligible Lender Trustee in writing prior to the 30th day
after such notice is given that the Noteholders or the Swap Counterparty has
withheld consent or the Noteholders has provided alternative direction:
(a) the initiation of any material claim or lawsuit by the Trust
(except claims or lawsuits brought in connection with the collection of
the Financed Student Loans) and the compromise of any material action,
claim or lawsuit brought by or against the Trust (except with respect to
the aforementioned claims or lawsuits for collection of Financed Student
Loans);
(b) the election by the Trust to file an amendment to the
Certificate of Trust, unless such amendment is required under the
Business Trust Statute;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder or the Swap
Counterparty is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder or the Swap
Counterparty is not required and such amendment materially adversely
affects the interests of the Noteholders;
(e) the amendment, change or modification of the Administration
Agreement, except to cure any ambiguity or to amend or supplement any
provision in a manner or add any provision that would not materially
adversely affect the interests of the Noteholders; or
(f) the appointment pursuant to the Indenture of a successor Note
Registrar or Indenture Trustee, or the consent to the assignment by the
Note Registrar or Indenture Trustee of its obligations under the
Indenture;
(g) the consent to the calling or waiver of any default under any
Basic Document;
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(h) the consent to the assignment by the Indenture Trustee or the
Servicer of their respective obligations under any Basic Document;
(i) except as provided in Article IX hereof, dissolve, terminate or
liquidate the Trust in whole or in part;
(j) merge or consolidate the Trust with or into any other entity, or
convey or transfer all or substantially all of the Trust's assets to any
other entity;
(k) cause the Trust to incur, assume or guaranty any indebtedness
other than as set forth in this Agreement or the other Basic Documents;
(l) do any act that conflicts with any other Basic Document;
(m) do any act which would make it impossible to carry on the
ordinary business of the Trust as described in Section 2.03 hereof;
(n) confess a judgment against the Trust;
(o) possess Trust assets, or assign the Trust's right to property,
for other than a Trust purpose;
(p) cause the Trust to lend any funds to any entity; or
(q) change the Trust's purpose and powers from those set forth in
this Agreement.
In addition the Trust shall not commingle its assets with those
of any other entity. The Trust shall maintain its financial and accounting
books and records separate from those of any other entity. Except as expressly
set forth herein, the Trust shall pay its indebtedness, operating expenses and
liabilities from its own funds, and the Trust shall not pay the indebtedness,
operating expenses and liabilities of any other entity. The Trust shall
maintain appropriate minutes or other records of all appropriate actions and
shall maintain its office separate from the offices of the Depositor and Xxxxx
Fargo Bank South Dakota, National Association.
Neither the Eligible Lender Trustee nor the Delaware Trustee
shall have the power, except upon the direction of the Noteholders, and to the
extent otherwise consistent with the Basic Documents, to (i) remove or replace
the Servicer or the Indenture Trustee, (ii) institute proceedings to have the
Trust declared or adjudicated a bankrupt or insolvent, (iii) consent to the
institution of bankruptcy or insolvency proceedings against the Trust, (iv)
file a petition or consent to a petition seeking reorganization or relief on
behalf of the Trust under any applicable federal or state law relating to
bankruptcy, (v) consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or any similar official) of the Trust or a
substantial portion of the property of the Trust, (vi) make any assignment for
the benefit of the Trust's creditors, (vii) cause the Trust to admit in
writing its inability to pay its debts generally as they
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become due, (viii) take any action, or cause the Trust to take any action, in
furtherance of any of the foregoing (any of the above, a "Bankruptcy Action").
SECTION 4.02. Action by Noteholders with Respect to Bankruptcy.
The Eligible Lender Trustee shall not have the power to commence a voluntary
proceeding in bankruptcy relating to the Trust without the prior approval of a
majority of Noteholders and the delivery to the Eligible Lender Trustee by the
majority of Noteholders of a certificate certifying that they reasonably
believe that the Trust is insolvent.
SECTION 4.03. Restrictions on Noteholders' Power. The
Notehholders shall not direct the Eligible Lender Trustee to take or refrain
from taking any action if such action or inaction would be contrary to any
obligations of the Trust or the Eligible Lender Trustee under the Higher
Education Act, this Agreement or any of the other Basic Documents or would be
contrary to Section 2.03 nor shall the Eligible Lender Trustee be permitted to
follow any such direction, if given.
ARTICLE V
Certain Duties
SECTION 5.01. No Segregation of Monies; No Interest. Monies
received by the Eligible Lender Trustee hereunder need not be segregated in
any manner except to the extent required by law or the Basic Documents and may
be deposited under such general conditions as may be prescribed by law, and
the Eligible Lender Trustee shall not be liable for any interest thereon.
SECTION 5.02. Accounting and Reports to the Noteholders, the
Internal Revenue Service and Others. No federal income tax return shall be
filed on behalf of the Trust unless either (i) the Eligible Lender Trustee
shall receive an Opinion of Counsel that, based on a change in applicable law
occurring after the date hereof, or as a result of a transfer by the Depositor
permitted by Section 3.01, the Code requires such a filing or (ii) the
Internal Revenue Service shall determine that the Trust is required to file
such a return. In the event that the Trust is required to file tax returns,
the Eligible Lender Trustee shall prepare or shall cause to be prepared any
tax returns required to be filed by the Trust and shall remit such returns to
the Depositor at least five (5) days before such returns are due to be filed.
The Depositor shall promptly sign such returns and deliver such returns after
signature to the Eligible Lender Trustee and such returns shall be filed by
the Eligible Lender Trustee with the appropriate tax authorities. In no event
shall the Eligible Lender Trustee or the Depositor be liable for any
liabilities, costs or expenses of the Trust or the Noteholders arising out of
the application of any tax law, including federal, state, foreign or local
income or excise taxes or any other tax imposed on or measured by income (or
any interest, penalty or addition with respect thereto or arising from a
failure to comply therewith) except for any such liability, cost or expense
attributable to any act or omission by the Eligible Lender Trustee or the
Depositor, as the case may be, in breach of its obligations under this
Agreement.
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ARTICLE VI
Authority and Duties of Eligible Lender Trustee
SECTION 6.01. General Authority. The Eligible Lender Trustee is
authorized and directed to execute and deliver the Basic Documents to which
the Trust is to be a party and each certificate or other document attached as
an exhibit to or contemplated by the Basic Documents to which the Trust is to
be a party, in each case, in such form as the Depositor shall approve as
evidenced conclusively by the Eligible Lender Trustee's execution thereof,
and, on behalf of the Trust, to direct the Indenture Trustee to authenticate
and deliver Class A-1 Notes in the aggregate principal amount of $177,254,000,
Class A-2 Notes in the aggregate principal amount of $357,498,000 and
Subordinate Notes in the aggregate principal amount of $19,395,000. The
Eligible Lender Trustee is also authorized and directed on behalf of the Trust
(i) to acquire and hold legal title to the Financed Student Loans from the
Depositor and (ii) to take all actions required pursuant to Section 3.02(c) of
the Servicing Agreement, and otherwise follow the direction of and cooperate
with the Servicer in submitting, pursuing and collecting any claims to and
with the Department with respect to any Interest Subsidy Payments and Special
Allowance Payments relating to the Financed Student Loans.
In addition to the foregoing, the Eligible Lender Trustee is
authorized, but shall not be obligated, to take all actions required of the
Trust pursuant to the Basic Documents. The Eligible Lender Trustee is further
authorized from time to time to take such action as the Administrator directs
or instructs with respect to, and not inconsistent with, the Basic Documents
and is directed to take such action to the extent that the Administrator is
expressly required pursuant to the Basic Documents to cause the Eligible
Lender Trustee to act.
SECTION 6.02. General Duties. It shall be the duty of the
Eligible Lender Trustee to discharge (or cause to be discharged) all its
responsibilities pursuant to the terms of this Agreement and the other Basic
Documents to which the Trust is a party and to administer the Trust, subject
to and in accordance with the provisions of this Agreement and the other Basic
Documents. Notwithstanding the foregoing, the Eligible Lender Trustee shall be
deemed to have discharged its duties and responsibilities hereunder and under
the other Basic Documents to the extent the Administrator has agreed in the
Administration Agreement to perform any act or to discharge any duty of the
Eligible Lender Trustee hereunder or under any other Basic Document, and the
Eligible Lender Trustee shall not be held liable for the default or failure of
the Administrator to carry out its obligations under the Administration
Agreement. Except as expressly provided in the Basic Documents, the Eligible
Lender Trustee shall have no obligation to administer, service or collect the
Financed Student Loans or to maintain, monitor or otherwise supervise the
administration, servicing or collection of the Financed Student Loans.
SECTION 6.03. Action upon Instruction.
(a) Subject to Article IV, Section 7.01 and in accordance with
the terms of the Basic Documents, the Depositor may by written instruction
direct the Eligible Lender Trustee in the management of the Trust. Such
direction may be exercised at any time by written instruction of the Depositor
pursuant to Article IV.
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(b) The Eligible Lender Trustee shall not be required to take
any action hereunder or under any other Basic Document if the Eligible Lender
Trustee shall have reasonably determined, or shall have been advised by
counsel, that such action is likely to result in liability on the part of the
Eligible Lender Trustee or is contrary to the terms hereof or of any other
Basic Document or is otherwise contrary to law.
(c) Whenever the Eligible Lender Trustee is unable to determine
the appropriate course of action between alternative courses of action
permitted or required by the terms of this Agreement or under any other Basic
Document, the Eligible Lender Trustee shall promptly give notice (in such form
as shall be appropriate under the circumstances) to the Depositor requesting
instruction as to the course of action to be adopted, and to the extent the
Eligible Lender Trustee acts in good faith in accordance with any written
instruction of the Depositor received, the Eligible Lender Trustee shall not
be liable on account of such action to any Person. If the Eligible Lender
Trustee shall not have received appropriate instruction within 10 days of such
notice (or within such shorter period of time as reasonably may be specified
in such notice or may be necessary under the circumstances) it may, but shall
be under no duty to, take or refrain from taking such action, not inconsistent
with this Agreement or the other Basic Documents, as it shall deem to be in
the best interests of the beneficial owner, and shall have no liability to any
Person for such action or inaction.
(d) In the event that the Eligible Lender Trustee is unsure as
to the application of any provision of this Agreement or any other Basic
Document or any such provision is ambiguous as to its application, or is, or
appears to be, in conflict with any other applicable provision, or in the
event that this Agreement permits any determination by the Eligible Lender
Trustee or is silent or is incomplete as to the course of action that the
Eligible Lender Trustee is required to take with respect to a particular set
of facts, the Eligible Lender Trustee may give notice (in such form as shall
be appropriate under the circumstances) to the Depositor requesting
instruction from the Depositor and, to the extent that the Eligible Lender
Trustee acts or refrains from acting in good faith in accordance with any such
instruction received, the Eligible Lender Trustee shall not be liable, on
account of such action or inaction, to any Person. If the Eligible Lender
Trustee shall not have received appropriate instruction within 10 days of such
notice (or within such shorter period of time as reasonably may be specified
in such notice or may be necessary under the circumstances) it may, but shall
be under no duty to, take or refrain from taking such action, not inconsistent
with this Agreement or the other Basic Documents, as it shall deem to be in
the best interests of the Depositor and shall have no liability to any Person
for such action or inaction.
(e) On the Closing Date, the Eligible Lender Trustee shall
execute and deliver on behalf of the Trust the Swap Agreement with the Swap
Counterparty. The Eligible Lender Trustee shall execute and deliver on behalf
of the Trust, with the consent of the Indenture Trustee, an amendment to the
Swap Agreement with the Swap Counterparty for the sole purpose to cure any
ambiguity to the Swap Agreement; provided, that the Eligible Lender Trustee
determines and the Indenture Trustee agrees in writing, that that amendment
will not adversely affect the interest of the Noteholders. Notwithstanding the
foregoing, the cumulative notional
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amount of the Swap Agreement may never exceed the outstanding principal
balance of the Notes.
SECTION 6.04. No Duties Except as Specified in this Agreement,
the Loan Sale Agreement, the Servicing Agreement, the Administration Agreement
or in Instructions. The Eligible Lender Trustee shall not have any duty or
obligation to manage, make any payment with respect to, register, record,
sell, service, dispose of or otherwise deal with the Trust Estate, or to
otherwise take or refrain from taking any action under, or in connection with,
any document contemplated hereby to which the Eligible Lender Trustee is a
party, except as expressly provided by the terms of this Agreement, the Loan
Sale Agreement, the Servicing Agreement, the Administration Agreement or in
any document or written instruction received by the Eligible Lender Trustee
pursuant to Section 6.03; and no implied duties or obligations shall be read
into this Agreement or any other Basic Document against the Eligible Lender
Trustee. The Eligible Lender Trustee shall have no responsibility for filing
any financing or continuation statement in any public office at any time or to
otherwise perfect or maintain the perfection of any security interest or lien
granted to it hereunder or to prepare or file any Commission filing for the
Trust or to record this Agreement or any other Basic Document. The Eligible
Lender Trustee nevertheless agrees that it will, at its own cost and expense,
promptly take all action as may be necessary to discharge any liens on any
part of the Trust Estate that result from actions by, or claims against, Bank
One in its individual capacity or as the Eligible Lender Trustee that are not
related to the ownership or the administration of the Trust Estate.
SECTION 6.05. No Action Except under Specified Documents or
Instructions. The Eligible Lender Trustee shall not manage, control, use,
sell, service, dispose of or otherwise deal with any part of the Trust Estate
except (i) in accordance with the powers granted to and the authority
conferred upon the Eligible Lender Trustee pursuant to this Agreement, (ii) in
accordance with the other Basic Documents to which it is a party and (iii) in
accordance with any document or instruction delivered to the Eligible Lender
Trustee pursuant to Section 6.03.
SECTION 6.06. Restrictions. The Eligible Lender Trustee shall
not take any action (a) that is inconsistent with the purposes of the Trust
set forth in Section 2.03 or (b) that, to the actual knowledge of the Eligible
Lender Trustee, would result in the Trust's becoming taxable as a corporation
for Federal income tax purposes.
SECTION 6.07. Origination of Consolidation Loans during the
Funding Period.
(a) From time to time during the Funding Period, the Servicer
will identify those Financed Student Loans as to which a Borrower qualifies to
receive a Consolidation Loan under the Federal Consolidation Loan Program from
the Eligible Lender Trustee and will inform the Administrator of the identity
of such loans. The Servicer will determine, in accordance with customary
industry standards, whether a Consolidation Loan should be offered to such
Borrower; provided, however, that a Consolidation Loan will not be offered to
a Borrower if any Student Loan of such Borrower which is not beneficially
owned by the Issuer and which is proposed to be discharged by the making of
such Consolidation Loan is past due more than 30 days; and provided, further,
that a Consolidation Loan will not be offered to a Borrower if the
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aggregate principal balances of all Consolidation Loans originated pursuant to
this Section would thereby exceed the limitations set forth in Section
6.07(d).
(b) If the Servicer determines that it is appropriate to offer a
Consolidation Loan to a Borrower in accordance with this Section, it will send
the necessary documentation to such Borrower and will process such
documentation on behalf of the Eligible Lender Trustee, all in accordance with
industry standards, the Higher Education Act and the related Guarantee
Agreement. The Servicer will inform the Eligible Lender Trustee of the
completion of the loan underwriting process and the necessary documentation,
whereupon the Eligible Lender Trustee, on behalf of the Trust, will execute
any documents required to be executed by it to complete the origination of
such loan and to subject such loan to the related Guarantee Agreement. The
Servicer will not permit any Consolidation Loan to be originated which would
violate the representations and warranties and other restrictions of Section
3.01 of the Loan Sale Agreement. Any Consolidation Loan which is determined to
violate any of such representations and warranties and other restrictions will
be subject to purchase or repurchase by the Seller as provided in Section 3.02
of the Loan Sale Agreement.
(c) Each Consolidation Loan originated pursuant to this Section
6.07 shall be owned by the Issuer and be part of the Trust Estate and the
Collateral from and after the time of such origination. Upon origination of
such loan and such loan becoming part of the Trust Estate and the Collateral,
the Servicer will instruct the Administrator, pursuant to Section 2(f) of the
Administration Agreement, to authorize the transfer from the Prefunding
Account of an amount sufficient to prepay in full any Student Loan that is to
be consolidated through such origination, including any Add-on Consolidation
Loan that is prepaid in full as a result of the principal balance of such
Add-on Consolidation Loan being added to the principal balance of a related
Consolidation Loan held as part of the Trust Estate. The Servicer will cause
to be taken all actions, and the Eligible Lender Trustee will cooperate with
the Servicer in the execution of any instruments or documents, required to
establish and maintain the ownership interest of the Trust and the first
perfected security interest of the Indenture Trustee in each Consolidation
Loan originated pursuant to this Section.
(d) In no event shall the Issuer or the Eligible Lender Trustee
on behalf of the Issuer originate Consolidation Loans in excess of $40,000,000
(including the addition of the principal balances of any Add-on Consolidation
Loans) in the aggregate; additionally, no Consolidation Loan may be originated
by the Issuer or the Eligible Lender Trustee on behalf of the Issuer having a
scheduled maturity after July 31, 2035; provided, however, that the Eligible
Lender Trustee will be permitted to fund the addition of the principal balance
of any Add-on Consolidation Loan in excess of such amounts, if the Eligible
Lender Trustee is required to do so by the Higher Education Act. In addition,
in no event shall the Issuer or the Eligible Lender Trustee on behalf of the
Issuer make Consolidation Loans after the Funding Period; provided, however,
that the Eligible Lender Trustee may increase the principal balance of any
Consolidation Loan by the principal balance of any related Add-on
Consolidation Loan during the Add-on Period if the Eligible Lender Trustee is
required to do so by the Higher Education Act. After the Funding Period but no
later than October 31, 2003, upon the addition of the principal balance of
such Add-on Consolidation Loan, and such amounts becoming part of the
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Trust Estate and the Collateral, the Servicer will instruct the Indenture
Trustee, pursuant to Section 2(d)(iii)(A) of the Administration Agreement, to
authorize the transfer from the Collection Account of an amount sufficient to
prepay in full such Add-on Consolidation Loan.
(e) All Consolidation Fees payable with respect to Consolidation
Loans originated and the principal balances of any Add-on Consolidation Loans
added to the Trust pursuant to this Section will be payable by the Issuer as
provided in Section 2(d)(ii) of the Administration Agreement. All other costs
or fees incurred in originating Consolidation Loans (or in adding the
principal balances of any Add-on Consolidation Loans) shall be payable by the
Administrator.
ARTICLE VII
Concerning the Eligible Lender Trustee
SECTION 7.01. Acceptance of Trusts and Duties. The Eligible
Lender Trustee accepts the trusts hereby created and agrees to perform its
duties hereunder with respect to such trusts but only upon the terms of this
Agreement. The Eligible Lender Trustee also agrees to disburse all monies
actually received by it constituting part of the Trust Estate upon the terms
of this Agreement and the other Basic Documents. The Eligible Lender Trustee
shall not be answerable or accountable hereunder or under any other Basic
Document under any circumstances, except (i) for its own willful misconduct or
negligence or (ii) in the case of the inaccuracy of any representation or
warranty contained in Section 7.03 expressly made by the Eligible Lender
Trustee. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
(a) the Eligible Lender Trustee shall not be liable for any error of
judgment made by a responsible officer of the Eligible Lender Trustee;
(b) the Eligible Lender Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in accordance with the
direction or instructions of the Administrator, the Depositor or the
Noteholders;
(c) no provision of this Agreement or any other Basic Document shall
require the Eligible Lender Trustee to expend or risk funds or otherwise
incur any financial liability in the performance of any of its rights or
powers hereunder or under any other Basic Document, if the Eligible
Lender Trustee shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured or provided to it;
(d) under no circumstances shall the Eligible Lender Trustee be
liable for indebtedness evidenced by or arising under any of the Basic
Documents, including the principal of and interest on the Notes;
(e) the Eligible Lender Trustee shall not be responsible for or in
respect of the validity or sufficiency of this Agreement or for the due
execution hereof by the Depositor
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or for the form, character, genuineness, sufficiency, value or validity
of any of the Trust Estate or for or in respect of the validity or
sufficiency of the Basic Documents, and the Eligible Lender Trustee shall
in no event assume or incur any liability, duty, or obligation to any
Noteholder, other than as expressly provided for herein and in the other
Basic Documents;
(f) the Eligible Lender Trustee shall not be liable for the action
or inaction, default or misconduct of the Administrator, the Depositor,
the Seller, the Indenture Trustee or the Servicer under any of the other
Basic Documents or otherwise and the Eligible Lender Trustee shall have
no obligation or liability to perform the obligations of the Trust under
this Agreement or the other Basic Documents that are required to be
performed by the Administrator under the Administration Agreement, the
Indenture Trustee under the Indenture or the Servicer under the Servicing
Agreement; and
(g) the Eligible Lender Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Agreement, or
to institute, conduct or defend any litigation under this Agreement or
otherwise or in relation to this Agreement or any other Basic Document,
at the request, order or direction of any of the Noteholders, unless the
Noteholders have offered to the Eligible Lender Trustee security or
indemnity satisfactory to it against the costs, expenses and liabilities
that may be incurred by the Eligible Lender Trustee therein or thereby.
The right of the Eligible Lender Trustee to perform any discretionary act
enumerated in this Agreement or in any other Basic Document shall not be
construed as a duty, and the Eligible Lender Trustee shall not be
answerable for other than its negligence or willful misconduct in the
performance of any such act.
SECTION 7.02. Furnishing of Documents. The Eligible Lender Trustee
shall furnish to the Noteholders and the Swap Counterparty, if any, promptly
upon receipt of a written request therefor, duplicates or copies of all
reports, notices, requests, demands, certificates, financial statements and
any other instruments furnished to the Eligible Lender Trustee under the Basic
Documents.
SECTION 7.03. Representations and Warranties. The Eligible Lender
Trustee hereby represents and warrants to each of the Depositor, the
Noteholders and the Swap Counterparty, that:
(a) It is a national banking association duly organized and validly
existing in good standing under the laws of the United States. It has all
requisite corporate power and authority to execute, deliver and perform
its obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will
be executed and delivered by one of its officers who is duly authorized
to execute and deliver this Agreement on its behalf.
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(c) Neither the execution nor the delivery by it of this Agreement,
nor the consummation by it of the transactions contemplated hereby nor
compliance by it with any of the terms or provisions hereof will
contravene any federal or state law, governmental rule or regulation
governing the banking or trust powers of the Eligible Lender Trustee or
any judgment or order binding on it, or constitute any default under its
charter documents or by-laws or any indenture, mortgage, contract,
agreement or instrument to which it is a party or by which any of its
properties may be bound.
(d) It is an "eligible lender" as such term is defined in Section
435(d) of the Higher Education Act, for purposes of holding legal title
to the Financed Student Loans and originating Consolidation Loans as
contemplated by this Agreement and the other Basic Documents, has
obtained a lender identification number with respect to the Trust from
the Department, has in effect a Guarantee Agreement with the Initial
Guarantor with respect to the Initial Financed Student Loans and will
have the requisite power and authority to enter into Guarantee Agreements
with Additional Guarantors, if any.
(e) In originating each Consolidation Loan on behalf of the Trust,
as provided in Section 6.07, it shall comply with all applicable
provisions of the Higher Education Act, and it will not create or cause
to be created any lien, charge or encumbrance on any such Consolidation
Loan or in any way cause the Trust to not have good title thereto.
SECTION 7.04. Reliance; Advice of Counsel.
(a) The Eligible Lender Trustee shall incur no liability to anyone in
acting upon any signature, instrument, direction, notice, resolution, request,
consent, order, certificate, report, opinion, bond, or other document or paper
believed by it to be genuine and believed by it to be signed by the proper
party or parties. The Eligible Lender Trustee may accept a certified copy of a
resolution of the board of directors or other governing body of any corporate
party as conclusive evidence that such resolution has been duly adopted by
such body and that the same is in full force and effect. As to any fact or
matter the method of the determination of which is not specifically prescribed
herein, the Eligible Lender Trustee may for all purposes hereof rely on a
certificate, signed by the president or any vice president or by the treasurer
or other authorized officers of the relevant party, as to such fact or matter
and such certificate shall constitute full protection to the Eligible Lender
Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement or the
other Basic Documents, the Eligible Lender Trustee (i) may act directly or
through its agents or attorneys pursuant to agreements entered into with any
of them, and the Eligible Lender Trustee shall not be liable for the conduct
or misconduct of such agents or attorneys if such agents or attorneys shall
have been selected by the Eligible Lender Trustee with reasonable care, and
(ii) may consult with counsel, accountants and other skilled persons to be
selected with reasonable care and employed by it. The Eligible Lender Trustee
shall not be liable for anything done, suffered or omitted in good faith by it
in accordance with the written opinion or advice of any such counsel,
accountants or other such persons and not contrary to this Agreement or any
other Basic Document.
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SECTION 7.05. Not Acting in Individual Capacity; Responsibility to
Secretary and Guarantors. Except as provided in this Article VII, in accepting
the trusts hereby created, Bank One acts solely as Eligible Lender Trustee
hereunder and not in its individual capacity and all Persons having any claim
against the Eligible Lender Trustee by reason of the transactions contemplated
by this Agreement or any other Basic Document shall look only to the Trust
Estate for payment or satisfaction thereof.
Notwithstanding any other provision in this Agreement or the other
Basic Documents, nothing in this Agreement or the other Basic Documents shall
be construed to limit the legal responsibility of the Eligible Lender Trustee
or the Indenture Trustee, to the U.S. Secretary of Education or a Guarantor
for any violations of statutory or regulatory requirements that may occur with
respect to loans held by the Eligible Lender Trustee or the Indenture Trustee
pursuant to, or to otherwise comply with their obligations under, the Higher
Education Act or implementing regulations.
SECTION 7.06. Eligible Lender Trustee Not Liable for Notes or Student
Loans. The recitals contained herein (other than the representations and
warranties in Section 7.03) shall be taken as the statements of the Depositor,
and the Eligible Lender Trustee assumes no responsibility for the correctness
thereof. The Eligible Lender Trustee makes no representations as to the
validity or sufficiency of this Agreement or any other Basic Document or the
Notes, or of any Financed Student Loan or related documents. The Eligible
Lender Trustee shall at no time have any responsibility (or liability except
for willfully or negligently terminating or allowing to be terminated either
of the Guarantee Agreements, in a case where the Eligible Lender Trustee knows
of any facts or circumstances which will or could reasonably be expected to
result in any such termination) for or with respect to the legality, validity,
enforceability and eligibility for Guarantee Payments, Interest Subsidy
Payments or Special Allowance Payments, as applicable, of any Financed Student
Loan, or for or with respect to the sufficiency of the Trust Estate or its
ability to generate the payments to be distributed to the Noteholders under
the Indenture, including: the existence and contents of any computer or other
record of any Financed Student Loan; the validity of the assignment of any
Financed Student Loan to the Trust; the completeness of any Financed Student
Loan; the performance or enforcement (except as expressly set forth in any
Basic Document) of any Financed Student Loan; the compliance by the Depositor,
the Seller or the Servicer with any warranty or representation made under any
Basic Document or in any related document or the accuracy of any such warranty
or representation or any action or inaction of the Administrator, the
Indenture Trustee or the Servicer or any subservicer taken in the name of the
Eligible Lender Trustee.
SECTION 7.07. Eligible Lender Trustee May Own Trust Notes. The
Eligible Lender Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may deal with the Depositor, the Seller, the
Administrator, the Indenture Trustee and the Servicer in banking transactions
with the same rights as it would have if it were not the Eligible Lender
Trustee.
SECTION 7.08. Licenses. The Eligible Lender Trustee shall cause the
Trust to use its best efforts to obtain and maintain the effectiveness of any
licenses required in connection with this Agreement and the other Basic
Documents and the transactions contemplated hereby
15
and thereby until such time as the Trust shall terminate in accordance with
the terms hereof. The Eligible Lender Trustee shall receive from the
Administrator the information necessary to comply with this Section.
ARTICLE VIII
Compensation of Eligible Lender Trustee
SECTION 8.01. Eligible Lender Trustee's Fees and Expenses. The
Eligible Lender Trustee shall receive as compensation for its services
hereunder such fees as have been separately agreed upon before the date hereof
between the Depositor and the Eligible Lender Trustee, and the Eligible Lender
Trustee shall be entitled to be reimbursed by the Seller for its other
reasonable expenses hereunder, including the reasonable compensation, expenses
and disbursements of such agents, representatives, experts and counsel as the
Eligible Lender Trustee may employ in connection with the exercise and
performance of its rights and duties hereunder. The Eligible Lender Trustee
shall have no recourse to the Issuer for its fees and expenses hereunder.
SECTION 8.02. Payments to the Eligible Lender Trustee. Any amounts
paid to the Eligible Lender Trustee pursuant to Section 8.01 hereof or
pursuant to Section 4.03 of the Loan Sale Agreement or pursuant to Section 24
of the Administration Agreement shall be deemed not to be a part of the Trust
Estate immediately after such payment.
ARTICLE IX
Termination of Trust Agreement
SECTION 9.01. Termination of Trust Agreement.
(a) This Agreement (other than Article VIII) and the Trust shall
terminate and be of no further force or effect upon the final distribution by
the Eligible Lender Trustee of all monies or other property or proceeds of the
Trust Estate in accordance with the terms of the Indenture and the Servicing
Agreement and the termination of the Indenture.
(b) Neither the Seller nor the Depositor shall be entitled to revoke
or terminate the Trust.
(c) Notice of any termination of the Trust, shall be given promptly
by the Eligible Lender Trustee by letter to the beneficial owner and the Swap
Counterparty mailed within five Business Days of receipt of notice of such
termination from the Administrator given pursuant to Section 2(b)(vii) of the
Administration Agreement.
(d) Upon the winding up of the Trust and its termination, the
Eligible Lender Trustee shall cause the Certificate of Trust to be canceled by
executing and filing a certificate of cancellation with the Secretary of State
of the State of Delaware in accordance with the provisions of Section 3810 of
the Business Trust Statute.
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SECTION 9.02. Reserved.
ARTICLE X
Successor Eligible Lender Trustees and Additional Eligible Lender Trustees
SECTION 10.01. Eligibility Requirements for Eligible Lender Trustee.
The Eligible Lender Trustee shall at all times be a corporation or association
(i) qualifying as an "eligible lender" as such term is defined in Section
435(d) of the Higher Education Act for purposes of holding legal title to the
Financed Student Loans and originating Consolidation Loans on behalf of the
Trust, with a valid lender identification number with respect to the Trust
from the Department; (ii) being authorized to exercise corporate trust powers
and hold legal title to the Financed Student Loans; (iii) having in effect
Guarantee Agreements with the Guarantors; (iv) having a combined capital and
surplus of at least $50,000,000 and being subject to supervision or
examination by Federal or state authorities; and (v) having (or having a
parent which has) a rating of at least "Baa3" by Xxxxx'x, "BBB" by S&P, if
rated by S&P and "BBB" by Fitch, if rated by Fitch. If the Eligible Lender
Trustee shall publish reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority,
then for the purpose of this Section, the combined capital and surplus of the
Eligible Lender Trustee shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published. In case at
any time the Eligible Lender Trustee shall cease to be eligible in accordance
with the provisions of this Section, the Eligible Lender Trustee shall resign
immediately in the manner and with the effect specified in Section 10.02. In
addition, at all times the Eligible Lender Trustee or a co-trustee shall be a
Person that satisfies the requirements of Section 3807(a) of the Business
Trust Statute (the "Delaware Trustee").
SECTION 10.02. Resignation or Removal of Eligible Lender Trustee. The
Eligible Lender Trustee may at any time resign and be discharged from the
trusts hereby created by giving written notice thereof to the Administrator
and the Swap Counterparty. Upon receiving such notice of resignation, the
Administrator shall promptly appoint a successor Eligible Lender Trustee
meeting the eligibility requirements of Section 10.01 by written instrument,
in duplicate, one copy of which instrument shall be delivered to the resigning
Eligible Lender Trustee and one copy to the successor Eligible Lender Trustee.
If no successor Eligible Lender Trustee shall have been so appointed and have
accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Eligible Lender Trustee may petition any court of
competent jurisdiction for the appointment of a successor Eligible Lender
Trustee; provided, however, that such right to appoint or to petition for the
appointment of any such successor shall in no event relieve the resigning
Eligible Lender Trustee from any obligations otherwise imposed on it under the
Basic Documents until such successor has in fact assumed such appointment.
If at any time the Eligible Lender Trustee shall cease to be eligible
in accordance with the provisions of Section 10.01 and shall fail to resign
after written request therefor by the Administrator, or if at any time the
Eligible Lender Trustee shall be legally unable to act, or an Insolvency Event
with respect to the Eligible Lender Trustee shall have occurred and be
continuing, then the Administrator may remove the Eligible Lender Trustee. If
the Administrator shall remove the Eligible Lender Trustee under the authority
of the immediately preceding
17
sentence, the Administrator shall promptly appoint a successor Eligible Lender
Trustee by written instrument, in duplicate, one copy of which instrument
shall be delivered to the outgoing Eligible Lender Trustee so removed and one
copy to the successor Eligible Lender Trustee and payment of all fees owed to
the outgoing Eligible Lender Trustee.
Any resignation or removal of the Eligible Lender Trustee and
appointment of a successor Eligible Lender Trustee pursuant to any of the
provisions of this Section shall not become effective until acceptance of
appointment by the successor Eligible Lender Trustee pursuant to Section 10.03
and payment of all fees and expenses owed to the outgoing Eligible Lender
Trustee. The Administrator shall provide notice of such resignation or removal
of the Eligible Lender Trustee to the Swap Counterparty and to each of the
Rating Agencies.
SECTION 10.03. Successor Eligible Lender Trustee. Any successor
Eligible Lender Trustee appointed pursuant to Section 10.02 shall execute,
acknowledge and deliver to the Administrator, to its predecessor Eligible
Lender Trustee an instrument accepting such appointment under this Agreement,
and thereupon the resignation or removal of the predecessor Eligible Lender
Trustee shall become effective and such successor Eligible Lender Trustee,
without any further act, deed or conveyance, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor under this
Agreement, with like effect as if originally named as Eligible Lender Trustee.
The predecessor Eligible Lender Trustee shall upon payment of its fees and
expenses deliver to the successor Eligible Lender Trustee all documents,
statements, monies and properties held by it under this Agreement and shall
assign, if permissible, to the successor Eligible Lender Trustee the lender
identification number obtained from the Department on behalf of the Trust; and
the Administrator and the predecessor Eligible Lender Trustee shall execute
and deliver such instruments and do such other things as may reasonably be
required for fully and certainly vesting and confirming in the successor
Eligible Lender Trustee all such rights, powers, duties and obligations.
No successor Eligible Lender Trustee shall accept appointment as
provided in this Section unless at the time of such acceptance such successor
Eligible Lender Trustee shall be eligible pursuant to Section 10.01.
Upon acceptance of appointment by a successor Eligible Lender Trustee
pursuant to this Section, the Administrator shall mail notice of the successor
of such Eligible Lender Trustee to the Indenture Trustee, the Noteholders, the
Rating Agencies and the Swap Counterparty. If the Administrator shall fail to
mail such notice within 10 days after acceptance of appointment by the
successor Eligible Lender Trustee, the successor Eligible Lender Trustee shall
cause such notice to be mailed at the expense of the Administrator.
SECTION 10.04. Merger or Consolidation of Eligible Lender Trustee.
Any corporation into which the Eligible Lender Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Eligible Lender
Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Eligible Lender Trustee,
shall, without the execution or filing of any instrument or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding, be the successor of the Eligible Lender Trustee
18
hereunder; provided that such corporation shall be eligible pursuant to
Section 10.01; provided further that the Eligible Lender Trustee shall mail
notice of such merger or consolidation to the Rating Agencies and the Swap
Counterparty not less than 10 Business Days prior to the closing date of such
merger or consolidation.
SECTION 10.05. Appointment of Co-Eligible Lender Trustee or Separate
Eligible Lender Trustee. Notwithstanding any other provisions of this
Agreement, at any time, for the purpose of meeting any legal requirements of
any jurisdiction in which any part of the Trust may at the time be located,
the Administrator and the Eligible Lender Trustee acting jointly (and with
written notice to the Swap Counterparty) shall have the power and shall
execute and deliver all instruments to appoint one or more Persons approved by
the Eligible Lender Trustee, which, except in the case of any Delaware
Trustee, shall meet the eligibility requirements of clauses (i) through (iii)
of Section 10.01, to act as co-trustee, jointly with the Eligible Lender
Trustee, or separate trustee or separate trustees, of all or any part of the
Trust Estate, and to vest in such Person, in such capacity, such title to the
Trust Estate, or any part thereof, and, subject to the other provisions of
this Section, such powers, duties, obligations, rights and trusts as the
Administrator and the Eligible Lender Trustee may consider necessary or
desirable. If the Administrator shall not have joined in such appointment
within 15 days after the receipt by it of a request so to do, the Eligible
Lender Trustee alone shall have the power to make such appointment. Pursuant
to the Co-Trustee Agreement, dated as of November 1, 2001, among the
Depositor, the Eligible Lender Trustee and Bank One Delaware Inc., the
Eligible Lender Trustee shall appoint Bank One Delaware, Inc. as a co-trustee
hereunder for the purpose of its acting as Delaware Trustee and such agreement
is hereby incorporated herein by reference. If the Delaware Trustee shall
become incapable of acting, resign or be removed, unless the Trustee is
qualified to act as Delaware Trustee, a successor co-trustee shall promptly be
appointed in the manner specified in this Section 10.05 to act as Delaware
Trustee. No co-trustee or separate trustee under this Agreement shall be
required to meet the terms of eligibility as a successor trustee pursuant to
clauses (iv) and (v) of Section 10.01 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 10.03.
Each separate trustee and co-trustee shall, to the extent permitted
by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties, and obligations conferred or imposed
upon the Eligible Lender Trustee shall be conferred upon and exercised or
performed by the Eligible Lender Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Eligible
Lender Trustee joining in such act), except to the extent that under any
law of any jurisdiction in which any particular act or acts are to be
performed, the Eligible Lender Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties, and obligations (including the holding of title to the
Trust Estate or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee,
solely at the direction of the Eligible Lender Trustee;
19
(ii) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
(iii) the Administrator and the Eligible Lender Trustee acting
jointly may at any time accept the resignation of or remove any separate
trustee or co-trustee.
Any notice, request or other writing given to the Eligible Lender
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to this
Agreement and the conditions of this Article. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Eligible Lender Trustee or separately, as may be provided
therein, subject to all the provisions of this Agreement, specifically
including every provision of this Agreement relating to the conduct of,
affecting the liability of, or affording protection to, the Eligible Lender
Trustee. Each such instrument shall be filed with the Eligible Lender Trustee
and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the
Eligible Lender Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or
in respect of this Agreement on its behalf and in its name. If any separate
trustee or co-trustee shall die, become incapable of acting, resign or be
removed, all its estates, properties, rights, remedies and trusts shall vest
in and be exercised by the Eligible Lender Trustee, to the extent permitted by
law, without the appointment of a new or successor trustee, except as
otherwise provided in this Section 10.05 in regard to the Delaware Trustee.
ARTICLE XI
Miscellaneous
SECTION 11.01. Supplements and Amendments. This Agreement may be
amended by the Depositor and the Eligible Lender Trustee, with the prior
written consent of the Swap Counterparty and with prior written notice to the
Rating Agencies, without the consent of any of the Noteholders, to cure any
ambiguity, to correct or supplement any provisions in this Agreement or for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions in this Agreement or of modifying in any
manner the rights of the Noteholders; provided, however, that such action
shall not, as evidenced by an Opinion of Counsel, adversely affect in any
material respect the interests of any Noteholder.
This Agreement may also be amended from time to time by the Depositor
and the Eligible Lender Trustee, with prior written consent of the Swap
Counterparty and with prior written notice to the Rating Agencies, with the
consent of the Noteholders of Notes evidencing not less than a majority of the
Outstanding Amount of the Notes, for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this
Agreement or of modifying in any manner the rights of the Noteholders;
provided, however, that no such amendment shall (a) increase or reduce in any
manner the amount of, or accelerate or delay the timing of, collections of
payments on Financed Student Loans or distributions that shall be
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required to be made for the benefit of the Noteholders or (b) reduce the
aforesaid percentage of the Outstanding Amount of the Notes and required to
consent to any such amendment, without the consent of all the outstanding
Noteholders.
The Eligible Lender Trustee shall furnish ten (10) Business Days'
prior written notification of the substance of any such amendment or consent
to the Indenture Trustee, each of the Rating Agencies and the Swap
Counterparty.
It shall not be necessary for the consent of the Noteholders or the
Indenture Trustee pursuant to this Section to approve the particular form of
any proposed amendment or consent, but it shall be sufficient if such consent
shall approve the substance thereof. The manner of obtaining such consents
shall be subject to such reasonable requirements as the Eligible Lender
Trustee may prescribe.
Promptly after the execution of any amendment to the Certificate of
Trust, the Eligible Lender Trustee shall cause the filing of such amendment
with the Secretary of State of the State of Delaware. The Eligible Lender
Trustee shall furnish the Rating Agencies with ten Business Days' prior
written notice of any amendment to the Certificate of Trust unless such
amendment is required under the Business Trust Statute.
Prior to the execution of any amendment to this Agreement, the
Eligible Lender Trustee shall be entitled to receive and rely upon an Opinion
of Counsel stating that the execution of such amendment is authorized or
permitted by this Agreement. The Eligible Lender Trustee may, but shall not be
obligated to, enter into any such amendment which affects the Eligible Lender
Trustee's own rights, duties or immunities under this Agreement or otherwise.
SECTION 11.02. No Legal Title to Trust Estate in Depositor. The
Depositor shall not have legal title to any part of the Trust Estate. The
Depositor shall be entitled to receive distributions with respect to its
ownership interest therein only in accordance with the Indenture, the
Administration Agreement and the Servicing Agreement. No transfer, by
operation of law or otherwise, of any right, title, or interest of the
Depositor to and in its beneficial ownership interest in the Trust Estate
shall operate to terminate this Agreement or the trusts hereunder or entitle
any transferee to an accounting or to the transfer to it of legal title to any
part of the Trust Estate. If, contrary to this Section, the Depositor is
deemed to have legal title to any part of the Trust Estate, the Depositor
shall be deemed to have granted, and in such event does hereby grant to the
Issuer, a first priority security interest in all of the Depositor's right,
title and interest in the Trust Estate, other than in the distributions
referred to in the second sentence of this Section 11.02, and this Agreement
shall be deemed to constitute a security agreement under applicable law with
respect to the Trust Estate.
SECTION 11.03. Limitations on Rights of Others. Except for Section
2.07, the provisions of this Agreement are solely for the benefit of the
Eligible Lender Trustee, the Delaware Trustee, the Depositor, the
Administrator, the Swap Counterparty and, to the extent expressly provided
herein, the Indenture Trustee and the Noteholders, and nothing in this
Agreement (other than Section 2.07), whether express or implied, shall be
construed to give to
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any other Person any legal or equitable right, remedy or claim in the Trust
Estate or under or in respect of this Agreement or any covenants, conditions
or provisions contained herein.
SECTION 11.04. Notices. Unless otherwise expressly specified or
permitted by the terms hereof, all notices shall be in writing (or in the form
of facsimile notice, followed by written notice) and shall be deemed given
upon receipt by the intended recipient, if to the Eligible Lender Trustee,
addressed to its Corporate Trust Office; if to the Depositor, addressed to
Xxxxx Fargo Student Loans Receivables I, LLC, Sixth and Marquette,
Xxxxxxxxxxx, XX 00000 Attention: Xxxx Xxxxxxxxx (telephone: (000) 000-0000;
facsimile: (000) 000-0000), and if to the Swap Counterparty, addressed to the
Swap Counterparty at the address indicated in the Swap Agreement or, as to
each party, at such other address as shall be designated by such party in a
written notice to each other party.
SECTION 11.05. Severability. Any provision of this Agreement that as
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
SECTION 11.06. Separate Counterparts. This Agreement may be executed
by the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 11.07. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Seller, the Depositor, the Eligible Lender Trustee and their respective
successors and permitted assigns, all as herein provided.
SECTION 11.08. No Petition.
(a) The Depositor will not at any time institute against the Trust or
the Depositor any bankruptcy proceedings under any United States federal or
state bankruptcy or similar law in connection with any obligations relating to
the Notes, this Agreement or any of the other Basic Documents.
(b) The Eligible Lender Trustee, by entering into this Agreement, and
the Indenture Trustee and each Noteholder by accepting the benefits of this
Agreement, hereby covenant and agree that they will not at any time institute
against the Depositor or the Trust, or join in any institution against the
Depositor or the Trust of, any bankruptcy, reorganization, arrangement,
insolvency, receivership or liquidation proceedings, or other proceedings
under any United States federal or state bankruptcy or similar law in
connection with any obligations relating to the Notes, this Agreement or any
of the other Basic Documents.
(c) The Noteholders will not at any time institute against the Trust
or the Depositor or approve of the institution by the Eligible Lender Trustee
of any bankruptcy
22
proceedings under any United States Federal or state bankruptcy or similar law
in connection with any obligations relating to the Notes, the Agreement or any
of the other Basic Documents.
SECTION 11.09. No Recourse. The Depositor acknowledges that its
ownership interest in the Trust represents a beneficial interest in the Trust
only and does not represent an interest in or obligation of the Depositor, the
Servicer, the Administrator, the Eligible Lender Trustee, the Indenture
Trustee or any Affiliate thereof or any officer, director or employee of any
thereof and no recourse may be had against such parties or their assets,
except as may be expressly set forth or contemplated in this Agreement or the
other Basic Documents.
SECTION 11.10. Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 11.11. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 11.12. Reserved.
SECTION 11.13. Third-Party Beneficiary. The parties hereto
acknowledge that the Swap Counterparty is an express third-party beneficiary
hereof entitled to enforce the provisions hereof as if it were an actual party
hereto; provided, however, that such right to enforcement and the right to
provide consents or waivers pursuant to the provisions hereof or to take other
actions as provided herein are conditioned upon its not being in default under
the Swap Agreement.
SECTION 11.14. Consents. With respect to any action to be taken
hereunder that requires the consent of a party hereto or of the Indenture
Trustee or the Swap Counterparty. such consent shall not be unreasonably
withheld, delayed or conditioned.
[Signatures Follow on Next Page]
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IN WITNESS WHEREOF, the parties hereto have caused this Trust
Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
BANK ONE, NATIONAL ASSOCIATION, not in
its individual capacity but solely as
Eligible Lender Trustee
By: /s/ Xxxxxx XxXxxxx
---------------------------------------------
Name: Xxxxxx XxXxxxx
Title: Vice President
XXXXX FARGO STUDENT LOANS RECEIVABLES I, LLC,
as Depositor
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxx
Title: President and Chief Executive
Officer
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CERTIFICATE OF TRUST OF
XXXXX FARGO STUDENT LOAN TRUST 2001-1
THIS Certificate of Trust of Xxxxx Fargo Student Loan Trust 2001-1
(the "Trust"), dated as of November [o], 2001 is being duly executed and filed
by Bank One, National Association, a national banking association, and Bank
One Delaware, Inc., a Delaware business corporation, as trustees, to form a
business trust under the Delaware Business Trust Act (12 Del. Code, ss. 3801
et seq.).
1. Name. The name of the business trust formed hereby is Xxxxx Fargo
Student Loan Trust 2001-1.
2. Delaware Trustee. The name and business address of the trustee of
the Trust resident in the State of Delaware is Bank One Delaware, Inc., [o]
3. This Certificate of Trust will be effective [o].
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IN WITNESS WHEREOF, the undersigned, being the sole trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
BANK ONE, NATIONAL ASSOCIATION,
not in its individual capacity but solely as
trustee of the Trust
By:
--------------------------------------
Name:
Title:
BANK ONE DELAWARE, INC.
not in its individual capacity but solely
as trustee of the Trust
By:
-------------------------------------
Name:
Title:
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