EXHIBIT 4.4.6
FORM OF TRUST AGREEMENT AMONG THE DEPOSITOR, THE SELLER AND THE
ELIGIBLE LENDER TRUSTEE (STUDENT LOAN SECURITIES)
TRUST AGREEMENT
among
GS Mortgage Securities Corp.
as depositor,
[ ]
and
[ ],
as Eligible Lender Trustee
Dated as of [ ]
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND USAGE
ARTICLE II ORGANIZATION
Section 2.1 Name............................................................1
Section 2.2 Office..........................................................1
Section 2.3 Purposes and Powers.............................................1
Section 2.4 Appointment of Eligible Lender Trustee..........................2
Section 2.5 Initial Capital Contribution of Trust Estate....................2
Section 2.6 Declaration of Trust............................................2
Section 2.7 [Reserved]......................................................2
Section 2.8 Title to Trust Property.........................................2
Section 2.9 Representations and Warranties of the Seller
and the Company.................................................3
Section 2.10 Tax Treatment..................................................4
Section 2.11 Liability of Noteholders.......................................4
ARTICLE III OWNERSHIP
Section 3.1 Beneficial Ownership............................................4
ARTICLE IV ACTIONS BY ELIGIBLE LENDER TRUSTEE
Section 4.1 Prior Notice to Company with Respect to Certain Matters.........4
Section 4.2 ACTION BY COMPANY WITH RESPECT TO BANKRUPTCY....................6
Section 4.3 Restrictions on Company's Power.................................6
ARTICLE V CERTAIN DUTIES
Section 5.1 No Segregation of Monies; No Interest...........................6
Section 5.2 Accounting and Reports to the Noteholders, the Internal
Revenue Service and Others......................................6
Section 5.3 Incentive Programs..............................................7
ARTICLE VI AUTHORITY AND DUTIES OF ELIGIBLE LENDER TRUSTEE
Section 6.1 General Authority...............................................7
Section 6.2 General Duties..................................................7
Section 6.3 Action Upon Instruction.........................................8
Section 6.4 No Duties Except as Specified in this Agreement, the
Loan Sale Agreement, the Servicing Agreement, the
Administration Agreement or in Instructions.....................9
Section 6.5 No Action Except Under Specified Documents or
Instructions....................................................9
Section 6.6 Restrictions....................................................9
Section 6.7 Origination of Consolidation Loans During the
Revolving Period................................................9
ARTICLE VII CONCERNING THE ELIGIBLE LENDER TRUSTEE
Section 7.1 Acceptance of Trusts and Duties................................11
Section 7.2 Furnishing of Documents........................................12
Section 7.3 Representations and Warranties.................................12
Section 7.4 Reliance; Advice of Counsel....................................12
Section 7.5 Not Acting in Individual Capacity; Responsibility to
Secretary and Guarantors.......................................13
Section 7.6 Eligible Lender Trustee not Liable for Notes or
Student Loans..................................................13
Section 7.7 Eligible Lender Trustee May Own Trust Notes....................15
Section 7.8 Licenses.......................................................15
ARTICLE VIII COMPENSATION OF ELIGIBLE LENDER TRUSTEE
Section 8.1 Eligible Lender Trustee's Fees and Expenses....................15
Section 8.2 Payments to the Eligible Lender Trustee........................15
ARTICLE IX TERMINATION OF TRUST AGREEMENT
Section 9.1 Termination of Trust Agreement.................................15
Section 9.2 [Reserved].....................................................16
ARTICLE X SUCCESSOR AND ADDITIONAL ELIGIBLE LENDER TRUSTEES
Section 10.1 Eligibility Requirements for Eligible Lender Trustee..........16
Section 10.2 Resignation or Removal of Eligible Lender Trustee.............16
Section 10.3 Successor Eligible Lender Trustee.............................17
Section 10.4 Merger or Consolidation of Eligible Lender Trustee............17
Section 10.5 Appointment of Co-Eligible Lender Trustee or Separate
Eligible Lender Trustee.......................................17
ARTICLE XI MISCELLANEOUS
Section 11.1 Supplements and Amendments....................................19
Section 11.2 No Legal Title to Trust Estate In Company.....................20
Section 11.3 Limitations on Rights of Others...............................20
Section 11.4 Notices.......................................................20
Section 11.5 Severability..................................................21
Section 11.6 Separate Counterparts.........................................21
Section 11.7 Successors and Assigns........................................21
Section 11.8 No Petition...................................................21
Section 11.9 No Recourse...................................................21
Section 11.10 Headings.....................................................21
Section 11.11 Governing Law................................................21
Section 11.12 [Reserved]...................................................21
Section 11.13 Third-Party Beneficiaries....................................22
Section 11.14 Consents.....................................................22
TRUST AGREEMENT dated as of [ ], among GS Mortgage Securities
Corp., a Delaware corporation, as depositor (the "Seller"), [ ], a [ ]
corporation (the "Company"), and [ ], a national banking association, not
in its individual capacity but solely as eligible lender trustee (the
"Eligible Lender Trustee").
The Seller, the Company 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 [ ], among the [ ]
Student Loan Trust [ ], as Issuer, the Seller, as Administrator, and [ ],
as Indenture Trustee, which also contains rules as to construction and
usage that shall be applicable herein.
ARTICLE II
ORGANIZATION
Section 2.1 Name. The Trust created hereby shall be known as "[ ]
Student Loan Trust [ ]", 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 2.2 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 Seller.
Section 2.3 Purposes and Powers. The purpose of the Trust is to
engage in the following activities:
(a) to issue the Notes pursuant to the Indenture and to sell the
Notes in one or more transactions;
(b) 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 Seller pursuant to the Loan Sale Agreement;
(c) to enter into any Swap Agreements;
(d) to originate Consolidation Loans during the Revolving 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, to acquire and hold any New Loans to
be conveyed to the Trust during the Revolving Period pursuant to the Loan
Sale Agreement and to acquire and hold any Serial Loans or other Student
Loans to be conveyed to the Trust subsequent to the Closing Date pursuant
to the Loan Sale Agreement;
(e) to assign, grant, transfer, pledge, mortgage and convey the
Trust Estate pursuant to the Indenture;
(f) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(g) 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
(h) 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 2.4 Appointment of Eligible Lender Trustee. The Seller
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 2.5 Initial Capital Contribution of Trust Estate. The
Seller hereby sells, assigns, transfers, conveys and sets over to the
Eligible Lender Trustee, as of the date hereof, the sum of $1. The Eligible
Lender Trustee hereby acknowledges receipt in trust from the Seller, 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
Seller 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 2.6 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
Company, 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
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 2.7 [Reserved]
Section 2.8 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 2.9 Representations and Warranties of the Seller and the
Company. (a) Each of the Company and the Seller hereby represents and
warrants, as to itself, to the Eligible Lender Trustee and any Swap
Counterparties that:
(i) It is duly organized and validly existing as a
corporation in good standing under the laws of the jurisdiction of
its incorporation, with corporate power and authority to own its
properties and to conduct its business as such properties are
currently owned and such business is currently conducted (subject,
with respect to the Seller and its Student Loans, to the vesting
of legal title thereto in [ ] ("[ ]") or another eligible lender,
as trustee for the Seller).
(ii) It is duly qualified to do business as a foreign
corporation 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 corporate 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 corporate action; the
Seller 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 Seller has duly authorized such
transfer and assignment to the Trust by all necessary corporate
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 incorporation or by-laws, or any
indenture, agreement or 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 Seller 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 Seller and the Company have
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 Company secured by the Trust Estate. Each of the
Seller and the Company, 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 Company 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 Company).
Section 2.11 Liability of Noteholders. No Noteholder shall have
any personal liability or obligation to or for the Trust and the
Certificate of Trust shall be fully paid and nonassessable.
ARTICLE III
OWNERSHIP
Section 3.1 Beneficial Ownership. Upon the formation of the Trust
by the contribution by the Seller pursuant to Section 2.05, the Seller
shall be the sole beneficial owner of the Trust. Concurrently with the
transfer of the Initial Financed Student Loans to the Eligible Lender
Trustee on behalf of the Trust pursuant to the Loan Sale Agreement, the
Seller does hereby irrevocably assign to the Company all of its right,
title and interest in and to the Trust, and thereupon (subject to the
Company's right to transfer pursuant to the next succeeding sentence) the
Company shall be the sole beneficial owner of the Trust. For so long as any
Notes remain Outstanding, the Company shall not Transfer its ownership
interest in the Trust, in whole or in part, unless: (i) either: (A) the
Company shall have delivered to the Eligible Lender Trustee, the Indenture
Trustee and any Swap Counterparties an Opinion of Counsel (with a copy to
the Rating Agencies) that neither the Trust nor the Company 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 Company
shall have delivered to the Eligible Lender Trustee, the Indenture Trustee
and any Swap Counterparties an Opinion of Counsel that such transaction
will not result in a material adverse federal or [ ] or [ ] state tax
consequence to the Issuer or the Noteholders, and (iii) there is delivered
to the Eligible Lender Trustee and the Indenture Trustee 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 4.1 Prior Notice to Company with Respect to Certain
Matters. With respect to the following matters, 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 Company, the Rating Agencies and
any Swap Counterparties in writing of the proposed action and neither the
Company 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 Company or any Swap Counterparties has withheld consent or the Company
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;
(c) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder or any Swap
Counterparties is required;
(d) the amendment of the Indenture by a supplemental indenture in
circumstances where the consent of any Noteholder or any Swap
Counterparties is not required and such amendment materially adversely
affects the interests of the Company;
(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 Company; 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;
(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 Seller, the Company and Loan Services.
Neither the Eligible Lender Trustee nor the Delaware Trustee shall
have the power, except upon the direction of the Company with the consent
of any Swap Counterparties, 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 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"). So long as
the Indenture and the Insurance Agreement remain in effect, the Company
shall not have the power to take, and shall not take, any Bankruptcy Action
with respect to the Trust or direct the Eligible Lender Trustee to take any
Bankruptcy Action with respect to the Trust.
Section 4.2 ACTION BY COMPANY 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 the Company and the delivery to the Eligible Lender Trustee by the
Company of a certificate certifying that it reasonably believes that the
Trust is insolvent.
Section 4.3 Restrictions on Company's Power. The Company 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 5.1 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 5.2 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
Company 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 Company at least five (5) days before such returns are
due to be filed. The Company 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, the Company
or the Seller 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, the Company or the Seller, as the case may be,
in breach of its obligations under this Agreement.
Section 5.3 Incentive Programs. Subject to compliance by the
Administrator with Section 2(i) of the Administration Agreement, the Trust
shall offer each Incentive Program to all qualified Borrowers except any
Incentive Program which the Administrator terminates pursuant to Section
2(i) of the Administration Agreement. Upon the effective date specified in
the notice of termination required by Section 2(i) of the Administration
Agreement, the Trust shall cease offering the terminated Incentive Program
to Borrowers affected by the termination.
ARTICLE VI
AUTHORITY AND DUTIES OF ELIGIBLE LENDER TRUSTEE
Section 6.1 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 Seller 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 $[ ], Class A-2 Notes in the aggregate principal amount of $[ ] and
Subordinate Notes in the aggregate principal amount of $[ ]. 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
Seller 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 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 6.2 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 6.3 Action Upon Instruction. (a) Subject to Article IV,
Section 7.01 and in accordance with the terms of the Basic Documents, the
Company 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 Company pursuant to Article IV.
(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 Company
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 Company 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 Company, 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 Company
and any Swap Counterparties requesting instruction from the Company 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 Company and shall have no liability to any Person for such
action or inaction.
(e) Upon the satisfaction of the Rating Agency Swap Condition, if
the Administrator so directs, the Eligible Lender Trustee shall enter into,
from time to time, Swap Agreements. Upon satisfaction of the Rating Agency
Swap Condition, if the Administrator directs, the Eligible Lender Trustee
shall enter into an amendment to a Swap Agreement with a Swap Counterparty
for the sole purpose to cure any ambiguity to the Swap Agreement or to
change the notional amount of a Swap Agreement. Notwithstanding the
foregoing, the cumulative notional amount of any Swap Agreements may never
exceed the outstanding principal balance of the Notes.
Section 6.4 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, [ ] 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 6.5 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 6.6 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. The Company shall not direct
the Eligible Lender Trustee to take action that would violate the
provisions of this Section.
Section 6.7 Origination of Consolidation Loans During the
Revolving Period. (a) From time to time during the Revolving 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 Administrator 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 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 Administrator determines that it is appropriate to
offer a Consolidation Loan to a Borrower in accordance with this Section,
it will so inform the Servicer who 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 and upon the direction of the
Administrator, 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 Administrator will instruct the Indenture Trustee, pursuant
to Section 2(f) or Section 2(k) of the Administration Agreement, to
authorize the transfer from the Collateral Reinvestment Account or 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 Administrator will cause to be taken all actions, and the
Eligible Lender Trustee will cooperate with the Administrator 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 $[ ]
(including the addition of the principal balances of any Add-on
Consolidation Loans) in the aggregate during the Revolving Period;
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 [ ] if at the time of such origination the aggregate principal
balance of all Consolidation Loans held as part of the Trust Estate that
have a scheduled maturity date after [ ] exceeds, or after giving effect to
such origination, would exceed $[ ]; 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 Revolving 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
Revolving Period, upon the addition of the principal balance of such Add-on
Consolidation Loan, and such amounts becoming part of the Trust Estate and
the Collateral, the Administrator 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 7.1 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 or the Company;
(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 Seller 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 or to the Company, 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 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 the Company, unless the Company has
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 7.2 Furnishing of Documents. The Eligible Lender Trustee
shall furnish to the Company and each 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 7.3 Representations and Warranties. The Eligible Lender
Trustee hereby represents and warrants to each of the Seller, the Company
and any Swap Counterparties, 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.
(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 7.4 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.
Section 7.5 Not Acting in Individual Capacity; Responsibility to
Secretary and Guarantors. Except as provided in this Article VII, in
accepting the trusts hereby created, [ ] 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 7.6 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 Seller, 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:
(a) the existence and contents of any computer or other record of
any Financed Student Loan;
(b) the validity of the assignment of any Financed Student Loan to
the Trust; the completeness of any Financed Student Loan;
(c) the performance or enforcement (except as expressly set forth
in any Basic Document) of any Financed Student Loan;
(d) the compliance by the Seller or the Servicer with any warranty
or representation made under any Basic Document or in any related document;
or
(e) 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 7.7 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 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 7.8 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 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 8.1 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 Seller 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 8.2 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 9.1 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 earlier of: (i) 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 and (ii) the
expiration of 21 years from the death of the last survivor of the
descendants of Xxxxxx X. Xxxxxxx, the late Senator from the State of New
York, living on the date hereof.
(b) Neither the Seller nor the Company 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 Company and any
Swap Counterparties mailed within [ ] 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 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.
Section 9.2 [Reserved]
ARTICLE X
SUCCESSOR AND ADDITIONAL ELIGIBLE LENDER TRUSTEES
Section 10.1 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 Initial Guarantor and
any Additional 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, if rated 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 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 10.2 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 any Swap Counterparties. 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 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 any Swap Counterparties and to
each of the Rating Agencies.
Section 10.3 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 Company, the Indenture
Trustee, the Noteholders, the Rating Agencies and any Swap Counterparties.
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 10.4 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 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 any Swap Counterparties not less than [ ] Business Days prior
to the closing date of such merger or consolidation.
Section 10.5 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 any Swap Counterparties) 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 [ ] 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 [ ] between
[ ] and [ ] Eligible Lender Trustee shall appoint [ ] 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 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;
(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 and any Swap Counterparties.
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 11.1 Supplements and Amendments. This Agreement may be
amended by the Seller, the Company and the Eligible Lender Trustee, with
the prior written consent of any Swap Counterparties 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
Seller, the Company and the Eligible Lender Trustee, with prior written
consent of any Swap Counterparties 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 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 [ ] Business Days' prior
written notification of the substance of any such amendment or consent to
the Indenture Trustee, each of the Rating Agencies and any Swap
Counterparties.
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 and any Swap
Counterparties with [ ] Business Days' prior written notice of any
amendment to the Certificate of Trust.
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 11.2 No Legal Title to Trust Estate In Company. The
Company shall not have legal title to any part of the Trust Estate. The
Company 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
Company 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
Company is deemed to have legal title to any part of the Trust Estate, the
Company 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
Company'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 11.3 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 Seller, the Company, the Administrator, any
Swap Counterparties 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 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 11.4 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 Seller,
addressed to [ ], 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: [ ]
(telephone: [ ]; facsimile: [ ]), with a copy to Office of the General
Counsel, [ ], Attention: [ ] (telephone: [ ]; facsimile: [ ]); if to the
Company, addressed to [ ], [ ], Attention: [ ] (telephone: [ ]; facsimile:
[ ]), with a copy to [ ], [ ], and a copy to Office of the General Counsel,
[ ], [ ], Attention: [ ] (telephone: [ ]; facsimile: [ ]); and if to any
Swap Counterparty, addressed to each Swap Counterparty at the address
indicated in the related 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 11.5 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 11.6 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 11.7 Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Seller, the Company, the Eligible Lender Trustee and their respective
successors and permitted assigns, all as herein provided.
Section 11.8 No Petition. (a) The Seller will not at any time
institute against the Trust or the Company 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 Seller, the Company or the Trust, or join in any
institution against the Seller, the Company 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 Company will not at any time institute against the Trust
or the Seller or approve of the institution by the Eligible Lender Trustee
of any bankruptcy 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 11.9 No Recourse. The Company 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
Seller, the Servicer, the Seller, 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 Beneficiaries. The parties hereto
acknowledge that any Swap Counterparties are express third-party
beneficiaries hereof entitled to enforce the provisions hereof as if they
were actual parties 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 related Swap
Agreements.
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 any Swap Counterparties, such consent shall not be unreasonably
withheld, delayed or conditioned.
[Signatures Follow on Next Page]
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.
[ ], not in its
individual capacity but solely as
Eligible Lender Trustee
By:
---------------------------------------
Name:
Title:
GS Mortgage Securities Corp., as depositor
By:
---------------------------------------
Name:
Title:
[ ]
By:
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Name:
Title:
CERTIFICATE OF TRUST OF
[ ] STUDENT LOAN TRUST [ ]
THIS Certificate of Trust of [ ] Student Loan Trust [ ] (the
"Trust"), dated as of [ ], is being duly executed and filed by [ ], a
national banking association, and [ ], a Delaware banking 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
_______________________.
2. Delaware Trustee. The name and business address of the trustee
of the Trust in the State of Delaware is __________________________,
[Address].
3. This Certificate of Trust shall be effective on _________, 200_.
IN WITNESS WHEREOF, the undersigned, being the sole trustee of the
Trust, has executed this Certificate of Trust as of the date first-above
written.
__________________________, not in its
individual capacity but solely as
Owner Trustee under a Trust Agreement dated
as of _____________, 20__.
