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EXHIBIT 4.2
Execution Copy
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AMENDED AND RESTATED
TRUST AGREEMENT
between
KEY BANK USA, NATIONAL ASSOCIATION
as Depositor
and
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity but solely
as Eligible Lender Trustee
Dated as of January 1, 1999
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TABLE OF CONTENTS
ARTICLE I
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Definitions and Usage.............................................................................................1
ARTICLE II
Organization
SECTION 2.01. Name......................................................................................1
SECTION 2.02. Office....................................................................................2
SECTION 2.03. Purposes and Powers.......................................................................2
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......................................................................3
SECTION 2.07. Liability of the Certificateholders.......................................................3
SECTION 2.08. Title to Trust Property...................................................................3
SECTION 2.09. Representations and Warranties of the Depositor...........................................4
ARTICLE III
Trust Certificates and Transfer of Interests
SECTION 3.01. Initial Beneficial Ownership..............................................................5
SECTION 3.02. The Trust Certificates....................................................................5
SECTION 3.03. Authentication of Trust Certificates......................................................5
SECTION 3.04. Registration of Transfer and Exchange of Trust Certificates...............................6
SECTION 3.05. Mutilated, Destroyed, Lost or Stolen Trust Certificates...................................7
SECTION 3.06. Persons Deemed Owners.....................................................................7
SECTION 3.07. Access to List of Certificateholders' Names and Addresses.................................7
SECTION 3.08. Maintenance of Office or Agency...........................................................8
SECTION 3.09. Appointment of Certificate Paying Agent...................................................8
SECTION 3.10. Disposition by Depositor..................................................................9
SECTION 3.11. Book-Entry Certificates...................................................................9
SECTION 3.12. Notices to Clearing Agency...............................................................10
SECTION 3.13. Definitive Certificates..................................................................10
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ARTICLE IV
Actions by Eligible Lender Trustee
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SECTION 4.01. Prior Notice to Certificateholders with Respect to Certain Matters.......................11
SECTION 4.02. Action by Certificateholders with Respect to Certain Matters.............................11
SECTION 4.03. Action by Certificateholders with Respect to Bankruptcy..................................12
SECTION 4.04. Restrictions on Certificateholders' Power................................................12
SECTION 4.05. Majority Control.........................................................................12
ARTICLE V
Application of Trust Funds; Certain Duties
SECTION 5.01. Application of Trust Funds...............................................................12
SECTION 5.02. Method of Payment........................................................................13
SECTION 5.03. No Segregation of Moneys; No Interest....................................................13
SECTION 5.04. Accounting and Reports to the Noteholders, Certificateholders, the Internal
Revenue Service and Others.......................................................13
SECTION 5.05. Signature on Returns; Tax Matters Partner................................................14
ARTICLE VI
Authority and Duties of Eligible Lender Trustee
SECTION 6.01. General Authority........................................................................14
SECTION 6.02. General Duties...........................................................................14
SECTION 6.03. Action upon Instruction..................................................................15
SECTION 6.04. No Duties Except as Specified in this Agreement, the Sale and Servicing
Agreement, the Supplemental Sale and Servicing Agreement or in
Instructions.....................................................................16
SECTION 6.05. No Action Except Under Specified Documents or Instructions...............................16
SECTION 6.06. Restrictions.............................................................................16
ARTICLE VII
Concerning the Eligible Lender Trustee
SECTION 7.01. Acceptance of Trusts and Duties..........................................................17
SECTION 7.02. Furnishing of Documents..................................................................18
SECTION 7.03. Representations and Warranties...........................................................18
SECTION 7.04. Reliance; Advice of Counsel..............................................................19
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SECTION 7.05. Not Acting in Individual Capacity........................................................19
SECTION 7.06. Eligible Lender Trustee Not Liable for Trust Certificates or Financed Student
Loans............................................................................20
SECTION 7.07. Eligible Lender Trustee May Own Trust Certificates and Notes.............................20
ARTICLE VIII
Compensation of Eligible Lender Trustee
SECTION 8.01. Eligible Lender Trustee's Fees and Expenses..............................................20
SECTION 8.02. Payments to the Eligible Lender Trustee..................................................20
ARTICLE IX
Termination of Trust Agreement
SECTION 9.01. Termination of Trust Agreement...........................................................21
SECTION 9.02. Dissolution upon Insolvency of the Depositor.............................................22
ARTICLE X
Successor Eligible Lender Trustees and
Additional Eligible Lender Trustees
SECTION 10.01. Eligibility Requirements for Eligible Lender Trustee....................................22
SECTION 10.02. Resignation or Removal of Eligible Lender Trustee.......................................23
SECTION 10.03. Successor Eligible Lender Trustee.......................................................23
SECTION 10.04. Merger or Consolidation of Eligible Lender Trustee......................................24
SECTION 10.05. Appointment of Co-Eligible Lender Trustee or Separate Eligible Lender Trustee...........24
ARTICLE XI
Miscellaneous
SECTION 11.01. Supplements and Amendments..............................................................26
SECTION 11.02. No Legal Title to Trust Estate in Certificateholders....................................27
SECTION 11.03. Limitations on Rights of Others.........................................................27
SECTION 11.04. Notices.................................................................................27
SECTION 11.05. Severability............................................................................27
SECTION 11.06. Separate Counterparts...................................................................27
SECTION 11.07. Successors and Assigns..................................................................28
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SECTION 11.08. No Petition.............................................................................28
SECTION 11.09. No Recourse.............................................................................28
SECTION 11.10. Headings................................................................................29
SECTION 11.11. Governing Law...........................................................................29
EXHIBIT A Certificate
EXHIBIT B Form of Certificate Depository Agreement.
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AMENDED AND RESTATED TRUST AGREEMENT (the "Trust Agreement")
dated as of January 1, 1999, between KEY BANK USA, NATIONAL ASSOCIATION, a
national banking association, as Depositor, and THE FIRST NATIONAL BANK OF
CHICAGO, a national banking association, not in its individual capacity but
solely as Eligible Lender Trustee, amending and restating that certain trust
agreement (the "Original Trust Agreement") dated July 13, 1998 between the
parties hereto.
WHEREAS the Original Trust Agreement was entered into as of
July 13, 1998;
WHEREAS the Original Trust Agreement is hereby amended and
restated in its entirety as of January 1, 1999, in order to, inter alia, change
the name of the Trust from "KeyCorp Student Loan Trust 1998-A" to "KeyCorp
Student Loan Trust 1999-A" and to make such other changes and modifications as
are set forth herein; and
WHEREAS, in connection therewith, the Depositor and the
Eligible Lender Trustee agree that the terms and provisions of the Original
Trust Agreement shall no longer have any force and effect with respect to any
date on or after the date as of which this Amended and Restated Trust Agreement
is being entered into (other than Section 4 thereof to the extent applicable to
the allocation of collections, Interest Subsidy Payments and Special Allowance
Payments accruing during any period prior to the Cutoff Date).
NOW, THEREFORE, the Depositor and the Eligible Lender Trustee
hereby agree as follows:
ARTICLE I
Definitions and Usage
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Capitalized terms used but not defined herein are defined in
Appendix A to the Sale and Servicing Agreement, which also contains rules as to
construction and usage that shall be applicable herein.
ARTICLE II
Organization
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SECTION 2.01. Name. The Trust created under the Original Trust
Agreement shall be known as "KeyCorp Student Loan Trust 1999-A" (which was
formerly named KeyCorp Student Loan Trust 1998-A under the Original Trust
Agreement) 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 ▇▇▇ and be sued.
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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
holders of the Trust Certificates and 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 the Trust
Certificates pursuant to this Agreement and to sell the Notes and the
Trust Certificates in one or more transactions;
(ii) with the proceeds of the sale of the Notes and the Trust
Certificates, to purchase the Financed Student Loans and to fund the
Pre-Funding Account pursuant to the Sale and Servicing Agreement;
(iii) to assign, grant, transfer, pledge, mortgage and convey the
Trust Estate pursuant to the Indenture and to hold, manage and
distribute to the holders of the Trust Certificates pursuant to the
terms of the Sale and Servicing Agreement any portion of the Trust
Estate released from the Lien of, and remitted to the Trust pursuant
to, the Indenture;
(iv) to enter into and perform its obligations under the Basic
Documents to which it is to be a party;
(v) 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
(vi) 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
holders of the Trust Certificates, the holders of the Notes and the
others specified in Section 5.05 of the Sale and Servicing 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 the rights, powers and duties set
forth herein.
SECTION 2.05. Initial Capital Contribution of Trust Estate.
Pursuant to the Original Trust Agreement, the Depositor has sold, assigned,
transferred, conveyed and set over to the Eligible Lender Trustee, as of the
date thereof, the sum of $1.00. The Eligible Lender Trustee hereby acknowledges
receipt in trust from the Depositor, as of the date thereof, of the foregoing
contribution, which shall constitute the initial Trust Estate and shall be
deposited in the
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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
holders of the Trust Certificates, 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 New York law and that this Agreement constitute
the governing instrument of such trust. It is the intention of the parties
hereto that, solely for income and franchise tax purposes, the Trust shall be
treated as a partnership, with the assets of the partnership being the Financed
Student Loans and other assets held by the Trust, the partners of the
partnership being the holders of the Trust Certificates (including the Depositor
in its capacity as recipient of distributions from the Reserve Account), and the
Notes being debt of the partnership. The parties agree that, unless otherwise
required by appropriate tax authorities, the Trust will file or cause to be
filed annual or other necessary returns, reports and other forms consistent with
the characterization of the Trust as a partnership for such tax purposes.
Effective as of the date hereof, the Eligible Lender Trustee shall have all
rights, powers and duties set forth herein with respect to accomplishing the
purposes of the Trust.
SECTION 2.07. Liability of the Certificateholders. (a) The
Depositor shall be liable directly to and will indemnify the injured party for
all losses, claims, damages, liabilities and expenses of the Trust (including
Expenses, to the extent not paid out of the Trust Estate) to the extent that the
Depositor would be liable if the Trust were a partnership under the Delaware
Revised Uniform Limited Partnership Act in which the Depositor were a general
partner; provided, however, that the Depositor shall not be liable for any
losses incurred by a holder of the Trust Certificates or a Certificate Owner in
the capacity of an investor in the Trust Certificates or a holder of the Notes
or a Note Owner in the capacity of an investor in the Notes. In addition, any
third party creditors of the Trust (other than in connection with the
obligations described in the preceding sentence for which the Depositor shall
not be liable) shall be deemed third party beneficiaries of this paragraph. The
obligations of the Depositor under this paragraph shall be evidenced by the
Trust Certificates described in Section 3.10, which shall be deemed to be
separate classes of Trust Certificates from all other Trust Certificates issued
by the Trust; provided that the rights and obligations evidenced by all Trust
Certificates, regardless of class, except as provided in this Section, shall be
identical.
(b) No holder of a Trust Certificate, other than to the extent
set forth in paragraph (a), shall have any personal liability for any liability
or obligation of the Trust.
SECTION 2.08. Title to Trust Property. Legal title to all 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 that, legal title to the
Financed Student Loans shall be vested at all times in the Eligible Lender
Trustee on behalf of the Trust.
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SECTION 2.09. Representations and Warranties of the Depositor.
The Depositor hereby represents and warrants to the Eligible Lender Trustee
that:
(a) The Depositor is duly organized and validly existing as a
national banking association in good standing under the laws of the
United States of America, with power and authority to own its
properties and to conduct its business as such properties are currently
owned and such business is presently conducted.
(b) The Depositor has the corporate power and authority to
execute and deliver this Agreement and to carry out its terms; the
Depositor has full corporate power and authority to sell and assign the
property to be sold and assigned to and deposited with the Trust (or
with the Eligible Lender Trustee on behalf of the Trust) and the
Depositor has duly authorized such sale and assignment and deposit to
the Trust (or to the Eligible Lender Trustee on behalf of the Trust) by
all necessary corporate action; and the execution, delivery and
performance of this Agreement has been duly authorized by the Depositor
by all necessary corporate action.
(c) This Agreement constitutes a legal, valid and binding
obligation of the Depositor enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization and
similar laws relating to creditors' rights generally or the rights of
creditors of banks the deposit accounts of which are insured by the
FDIC and subject to general principles of equity.
(d) 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, the articles of association or by-laws of the Depositor, or any
indenture, agreement or other instrument to which the Depositor 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 Depositor's
knowledge, any order, rule or regulation applicable to the Depositor of
any court or of any Federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over
the Depositor or its properties.
SECTION 2.10. Federal Income Tax Allocations. Net income of
the Trust with respect to any Loan Group for any Collection Period as determined
for Federal income tax purposes (and each item of income, gain, loss and
deduction entering into the computation thereof) shall be allocated:
(a) among the holders of the Trust Certificates as of the
close of business on the last day of such Collection Period, in
proportion to their ownership of principal amount of Trust Certificates
on such date, an amount of net income up to the sum of (i) the portion
of the Certificateholders' Interest Distribution Amount and the
Certificateholders' Interest Index Carryover if any, for the related
Distribution Date allocable to such Collection
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Period, (ii) interest on the excess, if any, of the Certificateholders'
Interest Distribution Amount for the preceding Distribution Date over
the amount in respect of interest that is actually distributed to such
holders of the Trust Certificates on such preceding Distribution Date,
to the extent permitted by law, at the Certificate Rate for such
Collection Period and (iii) the portion of the market discount on the
Financed Student Loans accrued during such quarter that is allocable to
the excess, if any, of the initial aggregate principal amount of the
Trust Certificates over their initial aggregate issue price; and
(b) to the Depositor, to the extent of any remaining net
income.
If the net income of the Trust for any month is insufficient for the allocations
described in clause (a) above, subsequent net income shall first be allocated to
make up such shortfall before being allocated as provided in the preceding
sentence. Net losses of the Trust if any, for any month as determined for
Federal income tax purposes (and each item of income, gain, loss and deduction
entering into the computation thereof) shall be allocated to the Depositor to
the extent the Depositor is reasonably expected to bear the economic burden of
such net losses, and any remaining net losses shall be allocated among the
remaining holders of the Trust Certificates as of the close of business on the
last day of such month in proportion to their ownership of principal amount of
Trust Certificates on such Record Date. The Depositor is authorized to modify
the allocations in this paragraph if necessary or appropriate, in its sole
discretion, for the allocations to fairly reflect the economic income, gain or
loss to the Depositor or to the holders of the Trust Certificates, or as
otherwise required by the Code.
ARTICLE III
Trust Certificates and Transfer of Interests
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SECTION 3.01. Initial Beneficial Ownership. Upon the formation
of the Trust by the contribution by the Depositor pursuant to Section 2.05 and
until the issuance of the Trust Certificates, the Depositor shall be the sole
beneficial owner of the Trust.
SECTION 3.02. The Trust Certificates. The Trust Certificates
shall be issued in denominations of $1,000 or in integral multiples of $1,000 in
excess thereof; provided, however, that the Trust Certificates issued to the
Depositor pursuant to Section 3.10 may be issued in such denomination as to
include any residual amount. The Trust Certificates shall be in the form of
Exhibit A hereto and shall be executed on behalf of the Trust by manual or
facsimile signature of an authorized officer of the Eligible Lender Trustee.
Trust Certificates bearing the manual or facsimile signatures of individuals who
were, at the time when such signatures shall have been affixed, authorized to
sign on behalf of the Trust, shall be valid and binding obligations of the
Trust, notwithstanding that such individuals or any of them shall have ceased to
be so authorized prior to the authentication and delivery of such Trust
Certificates or did not hold such offices at the date of authentication and
delivery of such Trust Certificates.
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SECTION 3.03. Authentication of Trust Certificates.
Concurrently with the initial sale of the Financed Student Loans to the Trust
pursuant to the Sale and Servicing Agreement, the Eligible Lender Trustee shall
cause the Trust Certificates in an aggregate principal amount equal to the
Initial Certificate Balance to be executed on behalf of the Trust, authenticated
and delivered to or upon the written order of the Depositor, signed by its
chairman of the board, its president or any vice president, without further
action by the Depositor, in authorized denominations. No Trust Certificate shall
entitle its holder to any benefit under this Agreement, or shall be valid for
any purpose, unless there shall appear on such Trust Certificate a certificate
of authentication substantially in the form set forth in Exhibit A, executed by
the Eligible Lender Trustee or First Chicago Trust Company of New York, as the
Eligible Lender Trustee's authenticating agent, by manual signature; such
authentication shall constitute conclusive evidence that such Trust Certificate
shall have been duly authenticated and delivered hereunder. All Trust
Certificates shall be dated the date of their authentication. No further Trust
Certificates shall be issued except pursuant to Section 3.04, 3.05 or 3.13
hereunder.
SECTION 3.04. Registration of Transfer and Exchange of Trust
Certificates. The Certificate Registrar shall keep or cause to be kept, at the
office or agency maintained pursuant to Section 3.08, a Certificate Register in
which, subject to such reasonable regulations as it may prescribe, the Eligible
Lender Trustee shall provide for the registration of Trust Certificates and of
transfers and exchanges of Trust Certificates as herein provided. The Eligible
Lender Trustee shall be the initial Certificate Registrar.
Upon surrender for registration of transfer of any Trust
Certificate at the office or agency maintained pursuant to Section 3.08, the
Eligible Lender Trustee shall execute, authenticate and deliver (or shall cause
First Chicago Trust Company of New York as its authenticating agent to
authenticate and deliver), in the name of the designated transferee or
transferees, one or more new Trust Certificates in authorized denominations of a
like aggregate amount dated the date of authentication by the Eligible Lender
Trustee or any authenticating agent. At the option of a holder of the Trust
Certificates, Trust Certificates may be exchanged for other Trust Certificates
of authorized denominations of a like aggregate amount upon surrender of the
Trust Certificates to be exchanged at the office or agency maintained pursuant
to Section 3.08.
Every Trust Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in form satisfactory to the Eligible Lender Trustee and
the Certificate Registrar duly executed by the holder of the Trust Certificates
or his attorney duly authorized in writing, with such signature guaranteed by an
"eligible guarantor institution" meeting the requirements of the Certificate
Registrar, which requirements include membership or participation in Security
Transfer Agent's Medallion Program ("STAMP") or such other "signature guarantee
program" as may be determined by the Certificate Registrar in addition to, or in
substitution for, STAMP, all in accordance with the Exchange Act. Each Trust
Certificate surrendered for registration of transfer or exchange shall be
cancelled and subsequently disposed of by the Eligible Lender Trustee in
accordance with its customary practice.
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No service charge shall be made for any registration of
transfer or exchange of Trust Certificates, but the Eligible Lender Trustee or
the Certificate Registrar may require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with any transfer
or exchange of Trust Certificates.
The preceding provisions of this Section notwithstanding, the
Eligible Lender Trustee shall not be required to make and the Certificate
Registrar need not register transfers or exchanges of Trust Certificates for a
period of 15 days preceding any Distribution Date with respect to the Trust
Certificates.
The Trust Certificates and any beneficial interest in such
Trust Certificates may not be acquired by (a) an employee benefit plan (as
defined in Section 3(3) of ERISA) that is subject to the provisions of Title I
of ERISA, (b) an individual retirement account described in Section 408(a) of
the Code or (c) any entity whose underlying assets include plan assets by reason
of a plan's investment in the entity (each, a "Benefit Plan"). By accepting and
holding a Trust Certificate or an interest therein, the holder of the Trust
Certificates thereof or Certificate Owner thereof shall be deemed to have
represented and warranted that it is not a Benefit Plan.
SECTION 3.05. Mutilated, Destroyed, Lost or Stolen Trust
Certificates. If (a) any mutilated Trust Certificate shall be surrendered to the
Certificate Registrar, or if the Certificate Registrar shall receive evidence to
its satisfaction of the destruction, loss or theft of any Trust Certificate, and
(b) there shall be delivered to the Certificate Registrar and the Eligible
Lender Trustee such security or indemnity as may be required by them to save
each of them harmless, then in the absence of notice that such Trust Certificate
shall have been acquired by a bona fide purchaser, the Eligible Lender Trustee
on behalf of the Trust shall execute and the Eligible Lender Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Trust Certificate, a new Trust Certificate of the same
class in authorized denominations of like aggregate amount. In connection with
the issuance of any new Trust Certificate under this Section, the Eligible
Lender Trustee and the Certificate Registrar may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith. Any duplicate Trust Certificate issued pursuant to this
Section shall constitute conclusive evidence of ownership in the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Trust
Certificate shall be found at any time.
SECTION 3.06. Persons Deemed Owners. Prior to due presentation
of a Trust Certificate for registration of transfer, the Eligible Lender Trustee
or the Certificate Registrar and any agent of any thereof may treat the Person
in whose name any Trust Certificate shall be registered in the Certificate
Register as the owner of such Trust Certificate for the purpose of receiving
distributions pursuant to Section 5.01 and for all other purposes whatsoever,
and neither the Eligible Lender Trustee, the Certificate Registrar nor any agent
of any thereof shall be bound by any notice to the contrary.
SECTION 3.07. Access to List of Certificateholders' Names and
Addresses. The Eligible Lender Trustee shall furnish or cause to be furnished to
the Depositor, within 15 days after receipt by the Eligible Lender Trustee of a
request therefor from the Depositor in writing, a
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list, in such form as the Depositor may reasonably require, of the names and
addresses of the holders of the Trust Certificates as of the most recent Record
Date. If three or more holders of the Trust Certificates or one or more holders
of the Trust Certificates evidencing not less than 25% of the Certificate
Balance apply in writing to the Eligible Lender Trustee, and such application
states that the applicants desire to communicate with other holders of the Trust
Certificates with respect to their rights under this Agreement or under the
Trust Certificates and such application is accompanied by a copy of the
communication that such applicants propose to transmit, then the Eligible Lender
Trustee shall, within five Business Days after the receipt of such application,
afford such applicants access during normal business hours to the current list
of the holders of the Trust Certificates. Upon receipt of any such application,
the Eligible Lender Trustee will promptly notify the Depositor by providing a
copy of such application and a copy of the list of the holders of the Trust
Certificates produced in response thereto. Each holder of the Trust
Certificates, by receiving and holding a Trust Certificate, shall be deemed to
have agreed not to hold any of the Depositor, the Certificate Registrar or the
Eligible Lender Trustee accountable by reason of the disclosure of its name and
address, regardless of the source from which such information was derived.
SECTION 3.08. Maintenance of Office or Agency. The Eligible
Lender Trustee shall maintain in the Borough of Manhattan, The City of New York,
an office or offices or agency or agencies where Trust Certificates may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Eligible Lender Trustee in respect of the Trust
Certificates and the other Basic Documents may be served. The Eligible Lender
Trustee initially designates ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as its principal Corporate Trust Office. The Eligible Lender
Trustee's New York office and its authenticating agent's office are located at
First Chicago Trust Company of New York, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administration. The Eligible Lender
Trustee shall give prompt written notice to the Depositor and to the holders of
the Trust Certificates of any change in the location of the Certificate Register
or any such office or agency.
SECTION 3.09. Appointment of Certificate Paying Agent. The
Certificate Paying Agent shall make distributions to the holders of the Trust
Certificates from the amounts received from the Indenture Trustee out of the
Trust Accounts pursuant to Section 5.01 and shall report the amounts of such
distributions to the Eligible Lender Trustee. Any Certificate Paying Agent shall
have the revocable power to receive such funds from the Indenture Trustee for
the purpose of making the distributions referred to above. The Eligible Lender
Trustee may revoke such power and remove the Certificate Paying Agent if the
Eligible Lender Trustee determines in its sole discretion that the Certificate
Paying Agent shall have failed to perform its obligations under this Agreement
in any material respect. The Certificate Paying Agent shall initially be the
Eligible Lender Trustee, and any co-paying agent chosen by the Eligible Lender
Trustee, and acceptable to the Administrator (which consent shall not be
unreasonably withheld). The Eligible Lender Trustee shall be permitted to resign
as Certificate Paying Agent upon 30 days' written notice to the Administrator.
In the event that the Eligible Lender Trustee shall no longer be the Certificate
Paying Agent, the Eligible Lender Trustee, shall appoint a successor to act as
Certificate Paying Agent (which shall be a bank or trust company). The Eligible
Lender Trustee shall cause such successor Certificate Paying Agent or any
additional Certificate Paying Agent
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appointed by the Eligible Lender Trustee to execute and deliver to the Eligible
Lender Trustee an instrument in which such successor Certificate Paying Agent or
additional Certificate Paying Agent shall agree with the Eligible Lender Trustee
that as Certificate Paying Agent, such successor Certificate Paying Agent or
additional Certificate Paying Agent will hold all sums, if any, held by it for
payment to the holders of the Trust Certificates in trust for the benefit of the
holders of the Trust Certificates entitled thereto until such sums shall be paid
to such holders of the Trust Certificates. The Certificate Paying Agent shall
return all unclaimed funds to the Eligible Lender Trustee and upon removal of a
Certificate Paying Agent such Certificate Paying Agent shall also return all
funds in its possession to the Eligible Lender Trustee. The provisions of
Sections 7.01, 7.03, 7.04, 7.05 and 8.01 shall apply to the Eligible Lender
Trustee also in its role as Certificate Paying Agent, for so long as the
Eligible Lender Trustee shall act as Certificate Paying Agent and, to the extent
applicable, to any other paying agent appointed hereunder. Any reference in this
Agreement to the Certificate Paying Agent shall include any co-paying agent
unless the context requires otherwise.
SECTION 3.10. Disposition by Depositor. On and after the
Closing Date, the Depositor shall retain beneficial and record ownership of
Trust Certificates representing at least 1% of the Certificate Balance. Any
attempted transfer of any Trust Certificate that would reduce such interest of
the Depositor below 1% of the Certificate Balance shall be void. The Eligible
Lender Trustee shall cause any Trust Certificate issued to the Depositor on the
Closing Date (and any Trust Certificate issued in exchange therefor) to contain
a legend stating "THIS CERTIFICATE IS NONTRANSFERABLE".
SECTION 3.11. Book-Entry Certificates. The Trust Certificates,
upon original issuance, will be issued in the form of a typewritten Trust
Certificate or Trust Certificates representing Book-Entry Certificates, to be
delivered to The Depository Trust Company, the initial Clearing Agency, by, or
on behalf of, the Trust; provided, however, that one Definitive Certificate (as
defined below) may be issued to the Depositor pursuant to Section 3.10. Such
Book-Entry Certificate or Book-Entry Certificates shall initially be registered
on the Certificate Register in the name of Cede & Co., the nominee of the
initial Clearing Agency, and no Certificate Owner (other than the Depositor)
will receive a Definitive Certificate representing such Certificate Owner's
interest in such Trust Certificate, except as provided in Section 3.13. Unless
and until definitive, fully registered Trust Certificates (the "Definitive
Certificates") have been issued to Certificate Owners pursuant to Section 3.13:
(i) the provisions of this Section shall be in full force and
effect;
(ii) the Certificate Registrar and the Eligible Lender Trustee
shall be entitled to deal with the Clearing Agency for all purposes of
this Agreement (including the payment of principal of and interest on
the Trust Certificates and the giving of instructions or directions
hereunder) as the sole holder of the Trust Certificates and shall have
no obligation to the Certificate Owners;
(iii) to the extent that the provisions of this Section conflict
with any other provisions of this Agreement, the provisions of this
Section shall control;
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(iv) the rights of Certificate Owners shall be exercised only
through the Clearing Agency and shall be limited to those established
by law and agreements between such Certificate Owners and the Clearing
Agency and/or the Clearing Agency Participants. Pursuant to the
Certificate Depository Agreement, unless and until Definitive
Certificates are issued pursuant to Section 3.13, the initial Clearing
Agency will make book-entry transfers among the Clearing Agency
Participants and receive and transmit payments of principal of and
interest on the Trust Certificates to such Clearing Agency
Participants; and
(v) whenever this Agreement requires or permits actions to be
taken based upon instructions or directions of the holders of the Trust
Certificates evidencing a specified percentage of the Certificate
Balance, the Clearing Agency shall be deemed to represent such
percentage only to the extent that it has received instructions to such
effect from Certificate Owners and/or Clearing Agency Participants
owning or representing, respectively, such required percentage of the
beneficial interest in the Trust Certificates and has delivered such
instructions to the Eligible Lender Trustee.
SECTION 3.12. Notices to Clearing Agency. Whenever a notice or
other communication to the holders of the Trust Certificates is required under
this Agreement, unless and until Definitive Certificates shall have been issued
to Certificate Owners pursuant to Section 3.13, the Eligible Lender Trustee
shall give all such notices and communications specified herein to be given to
the holders of the Trust Certificates to the Clearing Agency, and shall have no
obligations to the Certificate Owners.
SECTION 3.13. Definitive Certificates. If (i) the
Administrator advises the Eligible Lender Trustee in writing that the Clearing
Agency is no longer willing or able to discharge properly its responsibilities
with respect to the Trust Certificates, and the Administrator is unable to
locate a qualified successor, (ii) the Administrator at its option advises the
Eligible Lender Trustee in writing that it elects to terminate the book-entry
system through the Clearing Agency or (iii) after the occurrence of an Event of
Default, a Servicer Default or an Administrator Default, Certificate Owners
representing beneficial interests aggregating at least a majority of the
Certificate Balance advise the Clearing Agency (which shall then notify the
Eligible Lender Trustee) in writing that the continuation of a book-entry system
through the Clearing Agency is no longer in the best interest of the Certificate
Owners, then the Eligible Lender Trustee shall cause the Clearing Agency to
notify all Certificate Owners of the occurrence of any such event and of the
availability of the Definitive Certificates to Certificate Owners requesting the
same. Upon surrender to the Eligible Lender Trustee of the typewritten Trust
Certificate or Trust Certificates representing the Book-Entry Certificates by
the Clearing Agency, accompanied by registration instructions, the Eligible
Lender Trustee shall execute and authenticate the Definitive Certificates in
accordance with the instructions of the Clearing Agency. Neither the Certificate
Registrar nor the Eligible Lender Trustee shall be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be
protected in relying on, such instructions. Upon the issuance of Definitive
Certificates, the Eligible Lender Trustee shall recognize the registered holders
of the Definitive Certificates as the holders of the Trust Certificates. The
Definitive Certificates shall, at the expense of the Depositor, be printed,
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lithographed or engraved or may be produced in any other manner as is reasonably
acceptable to the Eligible Lender Trustee, as evidenced by its execution
thereof.
ARTICLE IV
Actions by Eligible Lender Trustee
----------------------------------
SECTION 4.01. Prior Notice to Certificateholders with Respect
to Certain Matters. With respect to the following matters, the Eligible Lender
Trustee shall not take action unless at least 30 days before the taking of such
action, the Eligible Lender Trustee shall have notified the holders of the Trust
Certificates in writing of the proposed action and the holders of the Trust
Certificates shall not have notified the Eligible Lender Trustee in writing
prior to the 30th day after such notice is given that such holders of the Trust
Certificates have withheld consent or 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 amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any holder of the Notes is
required;
(c) the amendment of the Indenture by a supplemental indenture
in circumstances where the consent of any holder of the Notes is not
required and such amendment materially adversely affects the interest
of the holders of the Trust Certificates;
(d) 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 holders of the
Trust Certificates; or
(e) the appointment pursuant to the Indenture of a successor
Note Registrar, Certificate Paying Agent or Indenture Trustee or
pursuant to this Agreement of a successor Certificate Registrar, or the
consent to the assignment by the Note Registrar, Certificate Paying
Agent or Indenture Trustee or Certificate Registrar of its obligations
under the Indenture or this Agreement, as applicable.
SECTION 4.02. Action by Certificateholders with Respect to
Certain Matters. The Eligible Lender Trustee shall not have the power, except
upon the direction of the holders of the Trust Certificates, to (a) remove the
Servicer or the Administrator under the Sale and Servicing Agreement pursuant to
Section 8.01 thereof or (b) except as expressly provided in the Basic Documents,
sell the Financed Student Loans after the termination of the Indenture. The
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Eligible Lender Trustee shall take the actions referred to in the preceding
sentence only upon written instructions signed by the holders of the Trust
Certificates.
SECTION 4.03. Action by Certificateholders 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 unanimous
prior approval of all holders of the Trust Certificates and the delivery to the
Eligible Lender Trustee by each such holder of the Trust Certificates of a
certificate certifying that such holder of the Trust Certificates reasonably
believes that the Trust is insolvent.
SECTION 4.04. Restrictions on Certificateholders' Power. The
holders of the Trust Certificates 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 or 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.
SECTION 4.05. Majority Control. Except as expressly provided
herein, any action that may be taken by the holders of the Trust Certificates
under this Agreement may be taken by the holders of Trust Certificates
evidencing not less than a majority of the sum of the Certificate Balances.
Except as expressly provided herein, any written notice of the holders of the
Trust Certificates delivered pursuant to this Agreement shall be effective if
signed by holders of the Trust Certificates evidencing not less than a majority
of the Certificate Balance at the time of the delivery of such notice.
ARTICLE V
Application of Trust Funds; Certain Duties
------------------------------------------
SECTION 5.01. Application of Trust Funds. (a) On each
Distribution Date, the Eligible Lender Trustee will distribute to holders of the
Certificates, on a pro rata basis, amounts received from the Indenture Trustee
pursuant to Sections 5.05 and 5.06 of the Sale and Servicing Agreement on such
Distribution Date.
(b) On each Distribution Date, the Eligible Lender Trustee
shall send to each holder of the Trust Certificates the statement
provided to the Eligible Lender Trustee by the Administrator pursuant
to Section 5.07 of the Sale and Servicing Agreement on such
Distribution Date.
(c) In the event that any withholding tax is imposed on the
Trust's payment (or allocations of income) to a holder of the Trust
Certificates, such tax shall reduce the amount otherwise distributable
to such holder in accordance with this Section. The Eligible Lender
Trustee is hereby authorized and directed to retain from amounts
otherwise distributable to the holders of the Trust Certificates
sufficient funds for the payment of any tax that is legally owed by the
Trust (but such authorization shall not
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prevent the Eligible Lender Trustee from contesting any such tax in
appropriate proceedings, and withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings). The amount
of any withholding tax imposed with respect to a holder of the Trust
Certificates shall be treated as cash distributed to such holder of the
Trust Certificates at the time it is withheld by the Trust to be
remitted to the appropriate taxing authority. If there is a possibility
that withholding tax is payable with respect to a distribution (such as
a distribution to a non-U.S. holder of the Trust Certificates), the
Eligible Lender Trustee in its sole discretion may (but unless
otherwise required by law shall be obligated to) withhold such amounts
in accordance with this paragraph (c). In the event that a holder of
the Trust Certificates wishes to apply for a refund of any such
withholding tax, the Eligible Lender Trustee shall reasonably cooperate
with such holder in making such claim so long as such holder of the
Trust Certificates agrees to reimburse the Eligible Lender Trustee for
any out-of-pocket expenses incurred.
SECTION 5.02. Method of Payment. Subject to Section 9.01(c),
distributions required to be made to the holders of the Trust Certificates on
any Distribution Date shall be made to each such holder of record on the
preceding Record Date either by wire transfer, in immediately available funds,
to the account of such holder at a bank or other entity having appropriate
facilities therefor, if such holder shall have provided to the Certificate
Registrar appropriate written instructions signed by two authorized officers, if
any, at least five Business Days prior to such Distribution Date and such
holder's Trust Certificates in the aggregate evidence a denomination of not less
than $1,000,000, or, if not, by check mailed to such holder at the address of
such holder appearing in the Certificate Register; provided, however, that,
unless Definitive Certificates have been issued pursuant to Section 3.13, with
respect to Trust Certificates registered on the Record Date in the name of the
nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
distributions will be made by wire transfer in immediately available funds to
the account designated by such nominee. Notwithstanding the foregoing, the final
distribution in respect of any Trust Certificate (whether on its Final Maturity
Date or otherwise) will be payable only upon presentation and surrender of such
Trust Certificate at the Corporate Trust Office of the Eligible Lender Trustee
or such other location specified in writing to the holder thereof.
SECTION 5.03. No Segregation of Moneys; No Interest. Subject
to Section 5.01, moneys received by the Eligible Lender Trustee hereunder need
not be segregated in any manner, except to the extent required by law or the
Sale and Servicing Agreement 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 5.04. Accounting and Reports to the Noteholders,
Certificateholders, the Internal Revenue Service and Others. The Eligible Lender
Trustee shall (a) maintain (or cause to be maintained) the books of the Trust on
a calendar year basis on the accrual method of accounting, (b) deliver to each
holder of the Trust Certificates (and to each Person who was a holder of the
Trust Certificates at any time during the applicable calendar year), as may be
required by the Code and applicable Treasury Regulations, such information as
may be required
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(including Schedule K-1) to enable each such holder of the Trust Certificates to
prepare its Federal and state income tax returns, (c) file such tax returns
relating to the Trust (including a partnership information return, Internal
Revenue Service Form 1065), and make such elections as may from time to time be
required or appropriate under any applicable state or Federal statute or rule or
regulation thereunder so as to maintain the Trust's characterization as a
partnership for Federal income tax purposes, (d) cause such tax returns to be
signed in the manner required by law and (e) collect or cause to be collected
any withholding tax as described in and in accordance with Section 5.01(c) with
respect to income or distributions to the holders of the Trust Certificates. The
Eligible Lender Trustee shall elect under Section 1278 of the Code to include in
income currently any market discount that accrues with respect to the Financed
Student Loans. The Eligible Lender Trustee shall not make the election provided
under Section 754 of the Code.
SECTION 5.05. Signature on Returns; Tax Matters Partner. (a)
The Eligible Lender Trustee shall sign on behalf of the Trust the tax returns of
the Trust, unless applicable law requires a holder of the Trust Certificates to
sign such documents, in which case such documents shall be signed by the
Depositor.
(b) The Depositor shall be designated the "tax matters
partner" of the Trust pursuant to Section 6231(a)(7)(A) of the Code and
applicable Treasury Regulations.
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 Notes
in the aggregate principal amount of $830,400,000. 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 4.02(c) of the Sale and Servicing
Agreement, and otherwise follow the direction of and cooperate with the
Administrator 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 Federal 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.
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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 in the
interest of the holders of the Trust Certificates, subject to and in accordance
with the provisions of this Agreement and the other Basic Documents. Without
limiting the foregoing, the Eligible Lender Trustee shall on behalf of the Trust
file and prove any claim or claims that may exist on behalf of the Trust against
the Depositor in connection with any claims paying procedure as part of an
insolvency or a receivership proceeding involving the Depositor. 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
holders of the Trust Certificates 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 holders of the Trust Certificates
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 holders of the Trust Certificates 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 holders of the Trust Certificates 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 holders of the Trust
Certificates, and shall have no liability to any Person for such action
or inaction.
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(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 holders of the Trust
Certificates requesting instruction 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 holders of the Trust Certificates, and shall
have no liability to any Person for such action or inaction.
SECTION 6.04. No Duties Except as Specified in this Agreement,
the Sale and Servicing Agreement, the Supplemental Sale and Servicing 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 Sale and
Servicing Agreement, the Supplemental Sale and Servicing 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, The First National Bank
of Chicago 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.
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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. The holders of the Trust Certificates shall not
direct the Eligible Lender Trustee to take action that would violate the
provisions of this Section.
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 moneys
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 any holder
of the Trust Certificates;
(c) subject to Section 7.07 hereof, 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 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, other than the certificate of authentication on the Trust
Certificates, and the Eligible Lender
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Trustee shall in no event assume or incur any liability, duty, or
obligation to any holder of the Notes or to any holder of the Trust
Certificates, other than as expressly provided for herein and in the
other Basic Documents;
(f) subject to Section 7.07 hereof, 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
any 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 Sale and Servicing Agreement, the Supplemental Sale and
Servicing Agreement or the Administration Agreement, the Indenture
Trustee under the Indenture or any Servicer under the Sale and
Servicing Agreement or the Supplemental Sale and 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 holders of
the Trust Certificates, unless such holders 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 holders of the Trust Certificates 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 the Depositor, for the benefit
of the holders of the Trust Certificates, that:
(a) It is a national banking association duly organized and
validly existing in good standing under the laws of the United States
and having an office located within the State of New York. 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 New York 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 as contemplated by
this Agreement and the other Basic Documents, has obtained a lender
identification number with respect to the Trust from the Department and
has in effect a Guarantee Agreement with each of the Guarantors with
respect to the Financed Student Loans.
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.
SECTION 7.05. Not Acting in Individual Capacity. Except as
provided in this Article VII, in accepting the trusts hereby created THE FIRST
NATIONAL BANK OF CHICAGO 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
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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 Trust
Certificates or Financed Student Loans. The recitals contained herein and in the
Trust Certificates (other than the signature and countersignature of the
Eligible Lender Trustee on the Trust Certificates) 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, the Trust
Certificates or any other Basic Document (other than the signature and
countersignature of the Eligible Lender Trustee on the Trust Certificates) or
the Notes, or of any Financed Student Loan or related documents. Subject to
Section 7.07 hereof, the Eligible Lender Trustee shall at no time have any
responsibility (or liability except for willfully or negligently terminating or
allowing to be terminated any 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,
federal reinsurance, 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 holders of the Trust Certificates under this Agreement or the
holders of the Notes 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 Eligible Lender Trustee on
behalf of 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 or any 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 any Servicer
or any subservicer taken in the name of the Eligible Lender Trustee.
SECTION 7.07. Eligible Lender Trustee May Own Trust
Certificates and Notes The Eligible Lender Trustee in its individual or any
other capacity may become the owner or pledgee of Trust Certificates or Notes
and may deal with the Depositor, the Administrator, the Indenture Trustee and
any Servicer in banking transactions with the same rights as it would have if it
were not Eligible Lender Trustee.
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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 Depositor, to the extent provided in such
separate agreement, for its other reasonable 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 6.03 or 6.04 of the Sale and Servicing 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 earlier of (i) the final distribution by the
Eligible Lender Trustee of all moneys or other property or proceeds of the Trust
Estate in accordance with the terms of the Indenture, the Sale and Servicing
Agreement and Article V, (ii) the expiration of 21 years from the death of the
last survivor of the descendants of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the late Ambassador of
the United States to the Court of St. ▇▇▇▇▇, living on the date hereof, and
(iii) the time provided in Section 9.02. The bankruptcy, liquidation,
dissolution, death or incapacity of any holder of the Trust Certificates, other
than the Depositor as described in Section 9.02, shall not (x) operate to
terminate this Agreement or the Trust, nor (y) entitle such holder's legal
representatives or heirs to claim an accounting or to take any action or
proceeding in any court for a partition or winding up of all or any part of the
Trust or Trust Estate nor (z) otherwise affect the rights, obligations and
liabilities of the parties hereto.
(b) Except as provided in Section 9.01(a), neither the
Depositor nor any holder of the Trust Certificates shall be entitled to
revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the
Distribution Date upon which the holders of the Trust Certificates
shall surrender their Trust Certificates to the Certificate Paying
Agent for payment of the final distribution and cancellation, shall be
given promptly by the Eligible Lender Trustee by letter to the holders
of the Trust Certificates mailed within five Business Days of receipt
of notice of such termination from the Administrator given pursuant to
Section 9.01(d) of the Sale and Servicing Agreement, stating (i) the
Distribution Date upon which final payment of the Trust Certificates
shall be made upon presentation and surrender of the Trust Certificates
at the office of the Certificate Paying Agent therein designated, (ii)
the amount of any such final
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payment and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon
presentation and surrender of the Trust Certificates at the office of
the Certificate Paying Agent therein specified. The Eligible Lender
Trustee shall give such notice to the Certificate Registrar (if other
than the Eligible Lender Trustee) and the Certificate Paying Agent at
the time such notice is given to the holders of the Trust Certificates.
Upon presentation and surrender of the Trust Certificates, the
Certificate Paying Agent shall cause to be distributed to the holders
of the Trust Certificates amounts distributable to such holders on such
Distribution Date pursuant to Section 5.01.
In the event that all the holders of the Trust Certificates
shall not surrender their Trust Certificates for cancellation within six months
after the date specified in the above-mentioned written notice, the Eligible
Lender Trustee shall give a second written notice to the remaining holders of
the Trust Certificates to surrender their Trust Certificates for cancellation
and receive the final distribution with respect thereto. If within one year
after the second notice all the Trust Certificates shall not have been
surrendered for cancellation, the Eligible Lender Trustee may take appropriate
steps, or may appoint an agent to take appropriate steps, to contact the
remaining holders of the Trust Certificates concerning surrender of their Trust
Certificates, and the cost thereof shall be paid out of the funds and other
assets that shall remain subject to this Agreement. Any funds remaining in the
Trust after exhaustion of such remedies and no later than five years after the
first such notice shall be distributed by the Eligible Lender Trustee to the
Depositor.
SECTION 9.02. Dissolution upon Insolvency of the Depositor. In
the event that an Insolvency Event shall occur with respect to the Depositor,
this Agreement shall be terminated in accordance with Section 9.01 90 days after
the date of such Insolvency Event, unless, before the end of such 90-day period,
the Eligible Lender Trustee shall have received written instructions from the
holders of the Trust Certificates (other than the Depositor) representing more
than 50% of the Certificate Balance (not including the principal amount of Trust
Certificates held by the Depositor), to the effect that each such party
disapproves of the liquidation of the Financed Student Loans and termination of
the Trust, in which event the Trust shall continue in accordance with the Basic
Documents. Promptly after the occurrence of any Insolvency Event with respect to
the Depositor, (i) the Depositor shall give the Indenture Trustee and the
Eligible Lender Trustee written notice of such Insolvency Event, (ii) the
Eligible Lender Trustee shall, upon the receipt of such written notice from the
Depositor, give prompt written notice to the holders of the Trust Certificates
and the Indenture Trustee, of the occurrence of such event and (iii) the
Indenture Trustee shall, upon receipt of written notice of such Insolvency Event
from the Eligible Lender Trustee or the Depositor, give prompt written notice to
the holders of the Notes of the occurrence of such event; provided, however,
that any failure to give a notice required by this sentence shall not prevent or
delay, in any manner, a termination of the Trust pursuant to the first sentence
of this Section 9.02. Upon a termination pursuant to this Section, the Eligible
Lender Trustee shall direct the Indenture Trustee promptly to sell the assets of
the Trust (other than the Trust Accounts) in a commercially reasonable manner
and on commercially reasonable terms.
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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 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 each of
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; (v) incorporated or authorized to do business in the State of New
York or which is a national bank having an office located within the State of
New York; and (vi) having (or having a parent which has) a rating of at least
Baa3 by ▇▇▇▇▇'▇. 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.
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. 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 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
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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 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 and 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, moneys 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 all holders of the Trust
Certificates, the Indenture Trustee, all holders of the Notes and the Rating
Agencies. 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
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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.
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 shall have the
power and shall execute and deliver all instruments to appoint one or more
Persons approved by the Eligible Lender Trustee, meeting 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. 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
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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.
ARTICLE XI
Miscellaneous
-------------
SECTION 11.01. Supplements and Amendments. This Agreement may
be amended by the Depositor and the Eligible Lender Trustee, with prior written
notice to the Rating Agencies, without the consent of any of the holders of the
Notes or the holders of the Trust Certificates, 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
holders of the Notes or the holders of the Trust Certificates; provided,
however, that such action shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of any holder of the
Notes or holder of the Trust Certificates.
This Agreement may also be amended from time to time by the
Depositor and the Eligible Lender Trustee, with prior written notice to the
Rating Agencies, (i) with the consent of the holders of Notes evidencing not
less than a majority of the Outstanding Amount of the Notes and (ii) with the
consent of the holders of the Trust Certificates evidencing not less than a
majority of the Certificate Balance 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 holders of the Notes or the
holders of the Trust Certificates; 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 holders
of any class of Notes or the holders of any class of Trust Certificates or (b)
reduce the aforesaid percentage of the Outstanding Amount of the Notes and the
Certificate Balances required to consent to any such amendment,
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without the consent of all the outstanding holders of the Notes and holders of
the Trust Certificates.
Promptly after the execution of any such amendment or consent,
the Eligible Lender Trustee shall furnish written notification of the substance
of such amendment or consent to each holder of the Trust Certificates, the
Indenture Trustee and each of the Rating Agencies.
It shall not be necessary for the consent of the holders of
the Trust Certificates, the holders of the Notes 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 (and any other
consents of the holders of the Trust Certificates provided for in this Agreement
or in any other Basic Document) and of evidencing the authorization of the
execution thereof by holders of the Trust Certificates shall be subject to such
reasonable requirements as the Eligible Lender Trustee may prescribe.
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
Certificateholders. The holders of the Trust Certificates shall not have legal
title to any part of the Trust Estate. The holders of the Trust Certificates
shall be entitled to receive distributions with respect to their undivided
beneficial ownership interest therein only in accordance with Articles V and IX.
No transfer, by operation of law or otherwise, of any right, title, or interest
of the holders of the Trust Certificates to and in their 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.
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 Depositor, the holders of the Trust Certificates,
the Administrator and, to the extent expressly provided herein, the Indenture
Trustee and the holders of the Notes, 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 11.04. Notices. (a) Unless otherwise expressly
specified or permitted by the terms hereof, all notices shall be in writing and
shall be deemed given upon receipt by the intended recipient or three Business
Days after mailing if mailed by certified mail, postage prepaid (except that
notice to the Eligible Lender Trustee shall be deemed given only upon actual
receipt by the Eligible Lender Trustee), if to the Eligible Lender Trustee,
addressed to its Corporate Trust Office; if to the Depositor, addressed to Key
Bank USA, National Association,
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▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: Senior Vice President,
Education Lending, or, as to each party, at such other address as shall be
designated by such party in a written notice to each other party.
(b) Any notice required or permitted to be given to a holder
of the Trust Certificates shall be given by first-class mail, postage
prepaid, at the address of such holder as shown in the Certificate
Register. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given,
whether or not such holder receives such notice.
SECTION 11.05. Severability. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 11.06. 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 Depositor and its successors, the Eligible Lender Trustee and its
successors, each holder of the Trust Certificates and its successors and
permitted assigns, all as herein provided. Any request, notice, direction,
consent, waiver or other instrument or action by a holder of the Trust
Certificates shall bind the successors and assigns of such holder.
SECTION 11.08. No Petition. (a) The Depositor will not at any
time institute against the Trust any bankruptcy proceedings under any United
States Federal or state bankruptcy or similar law in connection with any
obligations relating to the Trust Certificates, the Notes, this Agreement or any
of the other Basic Documents.
(b) The Eligible Lender Trustee (not in its individual
capacity but solely as Eligible Lender Trustee), by entering into this
Agreement, each holder of the Trust Certificates, by accepting a Trust
Certificate, and the Indenture Trustee and each holder of the Notes 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 Trust Certificates, the Notes,
this Agreement or any of the other Basic Documents.
SECTION 11.09. No Recourse. Each holder of the Trust
Certificates by accepting a Trust Certificate acknowledges that such holder's
Trust Certificates represent beneficial interests in the Trust only and do not
represent interests in or obligations of the Seller,
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any 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, the Trust
Certificates 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 New York, without
reference to its conflict of law provisions, and the obligations, rights and
remedies of the parties hereunder shall be determined in accordance with such
laws.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amended and Restated Trust Agreement to be duly executed by their respective
officers hereunto duly authorized, as of the day and year first above written.
THE FIRST NATIONAL BANK OF CHICAGO, not
in its individual capacity but solely
as Eligible Lender Trustee,
By:
-----------------------------------
Name:
Title:
KEY BANK USA, NATIONAL ASSOCIATION,
Depositor,
By:
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
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EXHIBIT A
TO THE TRUST AGREEMENT
[FORM OF TRUST CERTIFICATE]
SEE REVERSE FOR CERTAIN DEFINITIONS
Unless this Trust Certificate is presented by an authorized
representative of The Depository Trust Company, a New York Corporation ("DTC"),
to the Issuer (as defined below) or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of
Cede & Co. or in such other name as is requested by an authorized representative
of DTC (and any payment is made to Cede & Co. or to such other entity as is
requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
THIS TRUST CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF A
BENEFIT PLAN (AS DEFINED BELOW). THIS CERTIFICATE IS NOT GUARANTEED OR INSURED
BY ANY GOVERNMENTAL AGENCY.
[THIS TRUST CERTIFICATE IS NONTRANSFERABLE.](1)
NUMBER
R- $
-----------
CUSIP NO.
KEYCORP STUDENT LOAN TRUST 1999-A
FLOATING RATE ASSET BACKED CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined
below, the property of which includes a pool of law school, medical
school, dental school, graduate business school and other graduate
school student loans sold to the Trust by Key Bank USA, National
Association.
(This Trust Certificate does not represent an interest in or obligation
of Key Bank USA, National Association, the Servicer (as defined below),
the Eligible Lender Trustee (as defined below) or any of their
respective affiliates, except to the extent described below.)
---------------
1 To be included only on the Certificates issued to the Seller (as
defined below) on the Closing Date and any Certificates issued in
exchange therefor.
1
37
THIS CERTIFIES THAT _______________ is the registered owner of
dollars nonassessable, fully-paid, fractional undivided interest in the KeyCorp
Student Loan Trust 1999-A (the "Trust"), a trust formed under the laws of the
State of New York by Key Bank USA, National Association, a national banking
association (the "Seller"). The Trust was created pursuant to a Trust Agreement
dated as of July 13, 1998, as amended and restated as of January 1, 1999 (the
"Trust Agreement"), between the Seller and The First National Bank of Chicago, a
national banking association, not in its individual capacity but solely as
eligible lender trustee on behalf of the Trust (the "Eligible Lender Trustee"),
a summary of certain of the pertinent provisions of which is set forth below. To
the extent not otherwise defined herein, the capitalized terms used herein have
the meanings assigned to them in Appendix A to the Sale and Servicing Agreement
(the "Sale and Servicing Agreement") dated as of January 1, 1999, among the
Trust, the Eligible Lender Trustee, the Seller, Pennsylvania Higher Education
Assistance Agency, as servicer ( "Servicer"), EFS Services, Inc., as servicer
("Servicer"), and Key Bank USA, National Association, as administrator (the
"Administrator"); such Appendix A also contains rules as to usage that shall be
applicable herein.
This Certificate is one of the duly authorized Certificates
designated as "Floating Rate Asset Backed Certificates" (herein called the
"Trust Certificates"). Issued under the Indenture dated as of January 1, 1999,
between the Trust and Bankers Trust Company, as Indenture Trustee, are Notes
designated as "Floating Rate Asset Backed Notes" (the "Notes"). This Trust
Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, to which Trust Agreement the holder of this
Trust Certificate by virtue of the acceptance hereof assents and by which such
holder is bound. The property of the Trust includes a pool of law school,
medical school, dental school, graduate business school and other graduate
school student loans (the "Financed Student Loans"), all moneys paid thereunder
(except from the proceeds on any Guarantee Payments made by ▇▇▇▇) on or after
January 1, 1999 (or, in the case of Financed Student Loans that constitute
Additional Student Loans, on or after the respective Subsequent Cutoff Dates),
certain bank accounts and the proceeds thereof and certain other rights under
the Trust Agreement and the Sale and Servicing Agreement and all proceeds of the
foregoing. The rights of the holders of the Trust Certificates to the assets of
the Trust are subordinated to the rights of the holders of the Notes, as set
forth in the Sale and Servicing Agreement.
Under the Trust Agreement, to the extent of funds available
therefor, interest on the Certificate Balance of this Trust Certificate at the
Certificate Rate for this Trust Certificate, and principal and certain other
amounts will be distributed on the twenty-seventh day of each March, June,
September and December (or, if such twenty-seventh day is not a Business Day,
the next succeeding Business Day) (each a "Distribution Date"), commencing on
June 28, 1999 to the person in whose name this Trust Certificate is registered
at the close of business on the twenty-sixth day of the calendar month in which
such Distribution Date occurs (the "Record Date"), in each case to the extent of
such holder's fractional undivided interest in the amount or amounts to be
distributed to the holders of the Trust Certificates on such Distribution Date
pursuant to the Sale and Servicing Agreement.
38
The Trust Certificates may be paid in part, in certain
circumstances on a pro rata basis among all holders of Securities, on June 28,
1999 to the extent the Subsequent Pool Pre-Funded Amount is greater than
$10,000,000 as of the Special Determination Date after giving effect to the
purchase of any Subsequent Pool Student Loans on such date.
Each holder of this Trust Certificate acknowledges and agrees
that its rights to receive distributions in respect of this Trust Certificate
from Available Funds and amounts on deposit in the Reserve Account are
subordinated to the rights of the holders of the Notes as described in the Sale
and Servicing Agreement and the Indenture.
It is the intent of the Seller, each Servicer, the
Administrator, the holders of the Trust Certificates and the Certificate Owners
that, for purposes of Federal income, state and local income and franchise and
any other income taxes, the Trust will be treated as a partnership and the
holders of the Trust Certificates (including the Depositor in its capacity as
recipient of distributions from the Reserve Account) will be treated as partners
in that partnership. The Depositor and the other holders of the Trust
Certificates by acceptance of a Trust Certificate (and the Certificate Owners by
acceptance of a beneficial interest in a Trust Certificate), agree to treat, and
to take no action inconsistent with the treatment of, the Trust Certificates for
such tax purposes as partnership interests in the Trust.
Each holder of a Trust Certificate or Certificate Owner, by
its acceptance of a Trust Certificate or, in the case of a Certificate Owner, a
beneficial interest in a Trust Certificate, covenants and agrees that such
holder or Certificate Owner, as the case may be, will not at any time institute
against the Seller or the Trust, or join in any institution against the Seller
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 Trust Certificates, the Notes, the Trust Agreement
or any of the other Basic Documents.
The Trust Certificates do not represent an obligation of, or
an interest in, the Seller, any Servicer, the Administrator, the Eligible Lender
Trustee or any affiliates of any of them, and no recourse may be had against
such parties or their assets, except as may be expressly set forth or
contemplated herein, in the Trust Agreement or in the other Basic Documents. In
addition, this Trust Certificate is not guaranteed by any governmental agency or
instrumentality and is limited in right of payment to certain collections with
respect to the Financed Student Loans, all as more specifically set forth in the
Sale and Servicing Agreement. A copy of each of the Sale and Servicing Agreement
and the Trust Agreement may be examined during normal business hours at the
principal office of the Seller, and at such other places, if any, designated by
the Seller, by any holder of the Trust Certificates upon request.
The Trust Certificates (including any beneficial interests
therein) may not be acquired by or for the account of (i) an employee benefit
plan (as defined in Section 3(3) of ERISA) that is subject to the provisions of
Title I of ERISA, (ii) an individual retirement account described in Section
408(a) of the Internal Revenue Code of 1986, as amended, or (iii) any entity
whose underlying assets include plan assets by reason of a plan's investment in
the entity (each, a
39
"Benefit Plan"). By accepting and holding this Trust Certificate, the Holder
hereof shall be deemed to have represented and warranted that it is not a
Benefit Plan.
This Trust Certificate shall be construed in accordance with
the laws of the State of New York, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws.
Unless the certificate of authentication hereon shall have
been executed by an authorized officer of the Eligible Lender Trustee or its
authenticating agent, by manual signature, this Trust Certificate shall not
entitle the holder hereof to any benefit under the Trust Agreement or the Sale
and Servicing Agreement or be valid for any purpose.
IN WITNESS WHEREOF, the Eligible Lender Trustee on behalf of
the Trust and not in its individual capacity has caused this Trust Certificate
to be duly executed as of the date set forth below.
KEYCORP STUDENT LOAN TRUST 1999-A
By: THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity but
solely as Eligible Lender Trustee,
By:
-----------------------------
Authorized Signatory
Date: February , 1999
--
40
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Certificates referred to in the within-mentioned Trust
Agreement.
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity but
solely as Eligible Lender Trustee,
By:
------------------------------
Authorized Signatory
OR
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity but
solely as Eligible Lender Trustee,
By: FIRST CHICAGO TRUST COMPANY OF
NEW YORK, as Authenticating
Agent,
By:
------------------------------
Authorized Signatory
Date: February , 1999
--
41
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
--------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
--------------------------------------------------------------------------------
the within Trust Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
__________________________________ Attorney to transfer said Trust Certificate
on the books of the Certificate Registrar, with full power of substitution in
the premises.
Dated:
-------------------------- *
Signature Guaranteed:
-------------------------- *
* NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Trust Certificate in every particular,
without alteration, enlargement or any change whatever. Such signature must be
guaranteed by a member firm of the New York Stock Exchange or a commercial bank
or trust company.