EXHIBIT 4.6
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GMAC EDUCATION LOAN FUNDING TRUST-I
AMENDED AND RESTATED TRUST AGREEMENT
BY AND BETWEEN
GMAC ELF LLC,
AS INITIAL CERTIFICATEHOLDER AND SPONSOR,
AND
WILMINGTON TRUST COMPANY
AS DELAWARE TRUSTEE
DATED AS OF MARCH 1, 2003
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ARTICLE I
DEFINITIONS
Section 1.01. Definitions.............................................................1
Section 1.02. Other References........................................................4
ARTICLE II
ORGANIZATION OF THE TRUST; AUTHORITY TO EXECUTE AND PERFORM VARIOUS DOCUMENTS;
DECLARATION OF TRUST BY DELAWARE TRUSTEE
Section 2.01. Establishment of the Trust..............................................5
Section 2.02. Name....................................................................5
Section 2.03. Office and Situs of Trust...............................................6
Section 2.04. Authority...............................................................6
Section 2.05. Powers and Authority....................................................6
Section 2.06. Declaration of Trust by Delaware Trustee................................8
Section 2.07. The Indenture...........................................................8
Section 2.08. Title to Trust Estate...................................................8
Section 2.09. Covenants Regarding Operations..........................................9
Section 2.10. Appointment of Delaware Trustee........................................12
Section 2.11. Federal Income Tax Allocations.........................................12
Section 2.12. Limitations on Certificateholders......................................12
Section 2.13. Administration.........................................................12
Section 2.14. Additional Contributions...............................................12
Section 2.15. Principal Place of Business............................................12
Section 2.16. Liability of the Certificateholders and the Delaware Trustee...........12
ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
Section 3.01. Initial Beneficial Ownership...........................................13
Section 3.02. The Certificates.......................................................13
Section 3.03. Authentication of Certificates.........................................13
Section 3.04. Registration of Transfer and Exchange of Certificates..................13
Section 3.05. Mutilated, Destroyed, Lost or Stolen Certificates......................16
Section 3.06. Persons Deemed Owners..................................................16
Section 3.07. Access to List of Certificateholders' Names and Addresses..............16
Section 3.08. Maintenance of Office or Agency........................................17
Section 3.09. Terms of Certificates Binding..........................................17
ARTICLE IV
DISTRIBUTIONS AND PAYMENTS
Section 4.01. Distribution of Payments...............................................17
Section 4.02. Payments From Trust Estate Only........................................18
Section 4.03. Method of Payment......................................................18
Section 4.04. Trust Payment Date Statement...........................................18
ARTICLE V
DUTIES OF
DELAWARE TRUSTEE
Section 5.01. Notice of Default......................................................19
Section 5.02. Action Upon Instruction................................................19
Section 5.03. Indemnification........................................................21
Section 5.04. No Duties Except as Specified in Transaction Documents.................21
Section 5.05. No Action Except Under Specified Documents or Instructions.............21
Section 5.06. Action by Certificateholders with Respect to Bankruptcy................22
Section 5.07. Discharge of Liens.....................................................22
ARTICLE VI
DELAWARE TRUSTEE
Section 6.01. Acceptance of Trusts and Duties........................................22
Section 6.02. Furnishing of Documents................................................24
Section 6.03. No Representations or Warranties as to Trust Estate....................24
Section 6.04. No Segregation of Moneys; No Interest..................................25
Section 6.05. Reliance; Advice of Counsel............................................25
Section 6.06. Not Acting in Individual Capacity......................................25
Section 6.07. Books and Records......................................................25
Section 6.08. Tax Returns............................................................25
ARTICLE VII
ASSUMPTION OF LIABILITY AND PAYMENT FOR
DELAWARE TRUSTEE
Section 7.01. Compensation and Expenses..............................................26
Section 7.02. Indemnification........................................................27
Section 7.03. Certificateholders To Assume Liability.................................27
ARTICLE VIII
TERMINATION OF INDENTURE
Section 8.01. Termination in General.................................................28
Section 8.02. Termination at Option of Certificateholders............................28
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Section 8.03. Termination............................................................28
ARTICLE IX
SUCCESSOR
DELAWARE TRUSTEES, CO-
DELAWARE TRUSTEES AND SEPARATE
DELAWARE TRUSTEES
Section 9.01. Resignation and Successors.............................................28
Section 9.02. Co-Trustees and Separate Trustees......................................29
Section 9.03. Changes in Identity of a Delaware Trustee..............................30
ARTICLE X
MISCELLANEOUS
Section 10.01. Amendment..............................................................30
Section 10.02. No Title to Trust Estate, Etc..........................................31
Section 10.03. Sale of the Trust Estate by Delaware Trustee is Binding................31
Section 10.04. Limitations on Rights of Others........................................32
Section 10.05. Notices, Etc...........................................................32
Section 10.06. Severability...........................................................32
Section 10.07. Separate Counterparts..................................................32
Section 10.08. Successors and Assigns.................................................33
Section 10.09. Governing Law..........................................................33
Section 10.10. No Liability of Certificateholders.....................................33
Section 10.11. Actions by the Certificateholders......................................33
EXHIBIT A. CERTIFICATEHOLDERS' CAPITAL CONTRIBUTIONS
EXHIBIT B. FORM OF STATUTORY TRUST PAYMENT DATE STATEMENT
EXHIBIT C. FORM OF CERTIFICATE
EXHIBIT D. FORM OF TRANSFEROR LETTER
EXHIBIT E. FORM OF INVESTMENT LETTER
EXHIBIT F. FORM OF RULE 144A LETTER
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TRUST AGREEMENT
THIS AMENDED AND RESTATED
TRUST AGREEMENT, dated as of March 1, 2003, is
entered into by and between
GMAC ELF LLC, a Delaware limited liability company,
as the Initial Certificateholder and Sponsor, and WILMINGTON TRUST COMPANY, a
Delaware banking corporation, not in its individual capacity but solely as
Delaware Trustee on behalf of the Trust.
W I T N E S S E T H:
WHEREAS, the Sponsor and the Trust Company have mutually agreed as set
forth herein to create the Trust; and
WHEREAS, the Trust was formed pursuant to the Initial
Trust Agreement (as
defined below); and
WHEREAS, this
Trust Agreement amends and restates in its entirety such
Initial
Trust Agreement.
In consideration of the mutual agreements herein contained and other good
and valuable consideration, the receipt and legal sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.01. DEFINITIONS. All capitalized terms used in this
Trust
Agreement shall have the meanings set forth below and, if not defined herein,
shall have the respective meanings assigned to them in the Indenture:
"ADMINISTRATION AGREEMENT" means that certain Administration Agreement
dated as of March 1, 2003 by and among the Trust, the Administrator, the
Delaware Trustee and the Indenture Trustee.
"ADMINISTRATION FEE" means the fee, if any, from time to time payable to
the Administrator pursuant to the Administration Agreement.
"ADMINISTRATOR" means GMAC Commercial Holding Capital Corp., a Colorado
Corporation, and its successors and assigns.
"AUTHORIZED OFFICER" means, with respect to an entity, the Chairman of the
Board, the President, Chief Operating Officer, any Senior Vice President,
Secretary, Treasurer, any Vice President, any Assistant Vice President or any
Financial Services Officer thereof.
"BANKRUPTCY ACTION" means (i) commencing any case, proceeding or other
action or filing a petition under any existing or future bankruptcy, insolvency
or similar law seeking (A) to
adjudicate the Trust a bankrupt or insolvent, (B) to have an order for relief
entered with respect to the Trust, or (C) reorganization, arrangement,
adjustment, wind-up, liquidation, dissolution, composition or other relief with
respect to the Trust or its debts, (ii) consenting to the institution of
bankruptcy or insolvency proceedings against the Trust, (iii) seeking or
consenting to the appointment of a receiver, custodian, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Trust or a substantial
part of its property, (iv) except as required by law, admitting its inability to
pay its debts generally as they become due, (v) failing generally to pay the
debts of the Trust as such debts become due within the meaning of the Federal
Bankruptcy Code, as determined by a relevant bankruptcy court, (vi) making a
general assignment by the Trust for the benefit of creditors, or (vii)
authorizing, taking any action in furtherance of, consenting to or acquiescing
in any of the foregoing or any similar action or other proceedings under any
United States Federal or state bankruptcy or insolvency or similar law on behalf
of, or with respect to, the Trust, or in connection with any obligations
relating to the Certificates, the Notes, this
Trust Agreement or any of the
other Transaction Documents.
"BENEFICIAL OWNER" means the owners of Certificates as determined for
federal income tax purposes, taking into account the provisions of Treasury
Regulation 1.7704-1(h).
"CERTIFICATE" means a certificate issued by the Trust evidencing the
beneficial ownership interests in the Trust as set forth thereon.
"CERTIFICATEHOLDER" means the Persons or Person in whose name a Certificate
is registered in the Register on the applicable date.
"DELAWARE TRUSTEE" means Wilmington Trust Company, not in its individual
capacity but solely in its capacity as trustee of the Trust under this
Trust
Agreement, and its successors in interest.
"INDENTURE" means the Indenture of Trust dated as of March 1, 2003, by and
among the Trust, Zions First National Bank, as indenture trustee (the "Indenture
Trustee"), and Zions First National Bank, as eligible lender trustee, as
supplemented or amended from time to time, including by The Series 2003-1
Supplemental Indenture of Trust, dated as of March 1, 2003, between the Trust
and the Indenture Trustee.
"INDEPENDENT TRUSTEE" means a Person that (i) is independent and is not a
stockholder or other securityholder (whether direct, indirect or beneficial),
customer or supplier of the Trust or any of its affiliates; (ii) is not a
director, officer, employee, affiliate, member, manager or associate of the
Trust or any of its affiliates (other than in its capacity as the Delaware
Trustee for the Trust); (iii) is not related to any Person referred to in
clauses (i) or (ii); (iv) is not a trustee, conservator or receiver for the
Trust or any of its affiliates (other than in its capacity as Delaware Trustee
for the Trust); and (v) in the ordinary course of its business, acts as a
statutory trustee for other special purpose statutory trusts similar to the
Trust and is otherwise independent from the Trust and its affiliates (except as
provided above); provided that affiliates as used in this sentence does not
include the interests of the Delaware Trustee and its affiliates in each other.
"INITIAL CERTIFICATE HOLDER" means
GMAC ELF LLC.
"INITIAL
TRUST AGREEMENT" means the Trust Agreement dated as of Jamaury 15,
2003, by
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and between
GMAC ELF LLC, as the Sponsor, and Wilmington Trust Company, as
Delaware Trustee.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc., and its successors and
assigns.
"NOTES" shall have the meaning set forth in the Indenture.
"NOTEHOLDER" shall have the meaning set forth in the Indenture.
"NOTICES" has the meaning specified in Section 10.05.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be counsel
for a Certificateholder, which opinion is reasonably acceptable to the Delaware
Trustee.
"PAYMENTS" has the meaning specified in Section 4.01(b).
"PERCENTAGE INTEREST" means with respect to any Certificate the percentage
interest set forth on the face of such Certificate.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint stock company, statutory trust (including any beneficiary
thereof), unincorporated organization or government or any agency or political
subdivision thereof.
"REGISTER" means a register kept by the Registrar in which, subject to such
reasonable regulations as it may prescribe, the Registrar shall provide for the
registration of the Certificates and the registration of transfers of the
Certificates.
"REGISTRAR" means the Delaware Trustee, or its designee, as Registrar
hereunder.
"REQUIRED CERTIFICATEHOLDERS" means the approval of or direction by the
Certificateholders holding a majority of the Percentage Interests unless a
higher Percentage Interest is specifically required by the terms of this Trust
Agreement or applicable law in which case "Required Certificateholders" shall
mean such higher Percentage Interest.
"RULE 144A LETTER" has the meaning set forth in Section 3.04(b).
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SPONSOR" means
GMAC ELF LLC, a Delaware limited liability company.
"STANDARD & POOR'S" means Standard & Poor's Ratings Services, a division of
The ▇▇▇▇▇▇-▇▇▇▇ Companies, and its successors and assigns.
"TRANSACTION DOCUMENTS" has the meaning specified in Section 2.05(a)(i).
"TRUST" means the GMAC Education Loan Funding Trust-I established pursuant
to the Trust Statute.
"TRUST AGREEMENT" means this Amended and Restated Trust Agreement dated as
of
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March 1, 2003, by and between
GMAC ELF LLC, as Initial Certificateholder and
Sponsor, and Wilmington Trust Company, as Delaware Trustee, as amended or
supplemented from time to time.
"TRUST COMPANY" means Wilmington Trust Company, in its individual capacity.
"TRUST ESTATE" means all of the assets, property, and security interests
related thereto contributed, sold, assigned or otherwise transferred to or
acquired by the Trust together with all other assets subject hereto,
constituting the Trust created hereby and to be administered hereunder,
including without limitation, the earnings thereon and products and proceeds
thereof.
"TRUST PAYMENT DATE STATEMENT" has the meaning set forth in Section 4.04
hereof.
"TRUST STATUTE" means Chapter 38 of Title 12 of the Delaware Code, 12 Del.
Code Section 3801 et seq., as the same may be amended from time to time.
"UCC FINANCING STATEMENT" shall have the meaning set forth in Section 2.05
(c) hereof.
SECTION 1.02. OTHER REFERENCES.
(a) As used in this Trust Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Trust Agreement or in any such certificate or other
document, and accounting terms partly defined in this Trust Agreement or in
any such certificate or other document, to the extent not defined, shall
have the respective meanings given to them under generally accepted
accounting principles. To the extent that the definitions of accounting
terms in this Trust Agreement or in any such certificate or other document
are inconsistent with the meanings of such terms under generally accepted
accounting principles, the definitions contained in this Trust Agreement or
in any such certificate or other document shall control.
(b) The definitions contained in this Trust Agreement are applicable
to the singular as well as the plural, the past, the present, the future,
the active and the passive forms of such terms and to the masculine as well
as the feminine and neuter genders of such terms.
(c) Any agreement, instrument or statute defined or referred to herein
or in any instrument or certificate delivered in connection herewith means
such agreement, instrument or statute as from time to time amended,
modified or supplemented and includes (in the case of agreements or
instruments) references to all attachments thereto and instruments
incorporated therein; references to a Person are also to its permitted
successors and assigns.
(d) The terms "hereof," "herein," "hereby" or "hereunder," unless
otherwise modified by more specific reference, shall refer to this Trust
Agreement in its entirety as amended from time to time. Unless otherwise
indicated in context, the terms "Article," "Section," "Schedule," or
"Exhibit" shall refer to an Article or Section of, or Schedule or Exhibit
to, this Trust Agreement. The headings of sections and paragraphs and the
Table
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of Contents contained in this Trust Agreement are provided for convenience
only. They form no part of this Trust Agreement and shall not affect its
construction or interpretation.
ARTICLE II
ORGANIZATION OF THE TRUST;
AUTHORITY TO EXECUTE AND PERFORM VARIOUS DOCUMENTS;
DECLARATION OF TRUST BY DELAWARE TRUSTEE
SECTION 2.01. ESTABLISHMENT OF THE TRUST. On Janaury 15, 2003, the Sponsor
and the Delaware Trustee established the Trust"), and such Trust Agreement, is
hereby amended and restated in its entirety. The Trust shall be known as GMAC
Education Loan Funding Trust-I. Simultaneously with the execution hereof, the
Sponsor shall make a contribution to the Trust as the Sponsor's contribution, as
described more fully in Exhibit A hereto, and thereafter may transfer and assign
the property described in the granting clauses of the Indenture to the Trust
under the terms of the Loan Sale Agreement and other assignment agreements by
and between the Sponsor, as seller or assignor, and the Trust, as purchaser or
assignee, and may assume certain obligations under and in accordance with the
Transaction Documents. Upon the making of such contribution, the Delaware
Trustee shall record the amount thereof on the books of the Trust and the
investment of the Sponsor therein. It is the intention of the parties hereto
that the Trust shall constitute a statutory trust under the Trust Statute (for
which the Delaware Trustee has filed a certificate of trust with the Secretary
of State of the State of Delaware pursuant to Section 3810(a) of the Delaware
Statutory Trust Act in substantially the form attached to the Initial Trust
Agreement), that this Trust Agreement shall constitute the governing instrument
of such Trust and that the Certificateholders shall hold all of the beneficial
interests in the Trust. The rights of the Certificateholders shall be determined
herein and the relationship between the parties hereto created by this Trust
Agreement shall not constitute indebtedness for any purpose. Subject to Section
2.08 hereof, it is the intention of the parties hereto that, solely for purposes
of federal income taxes, state and local income and franchise taxes, and any
other taxes imposed on, measured by or based upon gross or net income, (i) if
there is only one Certificateholder, the Trust shall be treated as a disregarded
entity separate from its owner pursuant to Treasury Regulation 301.7701-2(c)(2)
and (ii) if there is more than one Certificateholder, the Trust shall be treated
as a partnership, and that the provisions of this Trust Agreement shall be
construed in accordance with such intent. The parties hereto agree to take no
action inconsistent with such treatment, unless required otherwise by applicable
law.
SECTION 2.02. NAME. The name of the Trust shall be GMAC Education Loan
Funding Trust-I, in which name the Delaware Trustee solely in such capacity on
behalf of the Trust may, subject to the terms hereof and the other Transaction
Documents, conduct business, make and execute loans, contracts, security
instruments and other instruments, acquire, pledge, convey and transfer property
and ▇▇▇ or be sued.
SECTION 2.03. OFFICE AND SITUS OF TRUST. The Trust shall be located and
administered in the State of Delaware. The Trust shall not have any employees in
any state other than Delaware; provided, however, that nothing herein shall
restrict or prohibit the Trust Company (in its individual capacity but not as
Delaware Trustee) from having employees within or without the
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State of Delaware. The only office of the Trust shall be the corporate trust
office of the Delaware Trustee in Delaware.
SECTION 2.04. AUTHORITY. Effective as of the date hereof, the Delaware
Trustee shall have all of the rights, powers and duties set forth herein, and to
the extent not inconsistent herewith, in the Trust Statute with respect to
accomplishing the purposes of the Trust.
SECTION 2.05. POWERS AND AUTHORITY.
(a) Subject to Section 2.09 hereof, the Trust has been created for the
purpose of purchasing and owning student loans, issuing Notes from time to
time, pledging its interest in student loans and other collateral under the
terms of the Indenture to secure the Notes and performing activities that
are necessary, suitable or convenient to accomplish those purposes,
including without limitation, the following:
(i) execute and deliver the Basic Documents to which the Trust is
a party (as defined in the Indenture), one or more loan purchase
agreements, note purchase agreements, servicing agreements,
sub-servicing agreements, eligible lender trust agreements, guaranty
agreements, custodial agreements, investment agreements, Custody
Agreement (as defined in the Indenture), Derivative Products (as
defined in the Indenture), and such other documents relating to the
transactions contemplated by the Indenture and hereby, as the Required
Certificateholders or the Administrator may from time to time direct
in writing (collectively, the "Transaction Documents"), in each case
in the respective forms in which the same may be delivered by or on
behalf of the Certificateholders or the Administrator to the Delaware
Trustee from time to time for execution and delivery, and accept any
document that is not signed by the Delaware Trustee, the delivery of
which is provided for under any of the preceding agreements;
(ii) execute and deliver all other documents, certificates,
instruments and agreements that are provided to it and are
contemplated to be executed and delivered by the Delaware Trustee or
the Trust, as applicable, by the documents referred to in clause (i)
above;
(iii) to acquire Student Loans;
(iv) to deposit and apply the proceeds of the sale of the Notes;
(v) to assign, grant, transfer, pledge, mortgage and convey all
or any portion of the Trust Estate pursuant to the Indenture and to
hold, manage and distribute to the Certificateholders pursuant to the
terms of this Trust Agreement any portion of the Trust Estate released
from the lien of, and remitted to the Trust pursuant to, the
Indenture;
(vi) execute and deliver assignments and assumptions with respect
to certain rights and responsibilities under the Transaction
Documents;
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(vii) take, or cause to be taken, all actions deemed necessary or
appropriate by the Sponsor in connection with a public offering,
issuance and sale of securities to be issued by the Trust, including,
without limitation (i) the preparation, execution, delivery and filing
with the Securities and Exchange Commission of a registration
statement for the securities and any and all pre-effective and
post-effective amendments to the registration statement and
applications or other appropriate requests for qualification of the
securities and amendments thereto under applicable State Blue Sky Laws
and (ii) filing, providing or authorizing the filing or provision of
such other documents and information with the National Association of
Securities Dealers, Inc and all other governmental, regulatory and
rating agencies as deemed necessary or appropriate by the Sponsor in
connection with such offer, issuance and sale and (iii) the filing of
periodic reports therewith as deemed necessary or appropriate by the
Sponsor, which actions by the Sponsor on behalf of the Trust may be
taken (A) on and after January 15, 2003 pursuant to the power of
attorney substantially in the form attached to the Initial Trust
Agreement or (B) the Administration Agreement;
(viii) upon the direction of the Required Certificateholders or
the Administrator take whatever action shall be required to be taken
by the Delaware Trustee by the terms of, and to exercise its rights
and perform its duties under, each of the documents referred to in
clauses (i) through (vii) above as set forth therein;
(ix) upon a Certificateholder making or causing to be made
available to the Delaware Trustee the contributions referred to in
Section 2.01 hereof, record the amount thereof on the books of the
Trust as the investment of the Certificateholder therein;
(x) upon a Certificateholder making available to the Delaware
Trustee the amounts necessary to pay the expenses arising with respect
to the Transaction Documents to the extent not paid by a
Certificateholders or pursuant to the Transaction Documents, to pay
such expenses as directed by the Certificateholder or the
Administrator and to note such payment on the books of the Trust;
(xi) pay, remit and distribute monies received by the Trust
pursuant to Section 4.01 hereof;
(xii) subject to the terms of this Trust Agreement and the
Transaction Documents, to engage in such other activities as may be
required in connection with the conservation of the Trust Estate,
payment of the Notes and making distributions to the
Certificateholders;
(xiii) issue, execute and deliver the Certificates in the form
attached hereto;
(xiv) take such other actions as are specified herein or are
incidental to the foregoing; and
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(xv) subject to the terms of this Trust Agreement, take such
other action in connection with the foregoing as the Required
Certificateholders or the Administrator may from time to time direct.
(b) Notwithstanding anything herein to the contrary, the Trust is
neither authorized nor empowered to engage in any activity other than
exercising its rights, powers and authority and performing its obligations
in accordance with the express provisions of Section 2.05(a) hereof. The
Delaware Trustee may establish such trust accounts on its records (or
through the Trust Company) in its discretion as it may deem desirable or
appropriate for the deposit and disbursement of any monies delivered to it
hereunder.
(c) Notwithstanding anything in this Trust Agreement or in any other
Transaction Document to the contrary, the Trust is hereby authorized to
execute, deliver and perform the Indenture, each Loan Sale Agreement and
such financing statements (UCC-1 and UCC-3) evidencing the security
interests granted by the Trust (the "UCC Financing Statement") pursuant to
any of the foregoing agreements and/or the assignment of the Trust's
interests in collateral pledged or assigned to the Trust pursuant to any of
the foregoing documents, and the Delaware Trustee is hereby authorized to
execute and deliver such documents on behalf of the Trust without any
approval, consent or other action by any party hereto, and such execution,
delivery and performance do not and shall be deemed not to conflict with or
violate any provision of this Trust Agreement or any duty or restriction
hereunder of any party hereto.
SECTION 2.06. DECLARATION OF TRUST BY DELAWARE TRUSTEE. The Delaware
Trustee hereby declares that it will hold the Trust Estate upon the trusts set
forth herein for the use and benefit of the Certificateholders and as Delaware
Trustee for the Certificateholders hereunder.
SECTION 2.07. THE INDENTURE. The Certificateholders and the Delaware
Trustee hereby acknowledge that, when executed and delivered, the Indenture
shall create a lien on the Trust Estate, subject to the limitations set forth in
such agreements.
SECTION 2.08. TITLE TO TRUST ESTATE.
(a) Subject to the lien of the Indenture, title to all of the Trust
Estate at all times shall be vested in the Trust as a separate legal entity
except (i) 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 to that part of the Trust Estate shall be vested in the Delaware
Trustee, a co-trustee and/or a separate trustee, as the case may be, and
(ii) except that record title to Student Loans that are part of the Trust
Estate shall be held by an eligible lender trustee pursuant to the terms of
an Eligible Lender Agreement or the Indenture and the Trust Estate shall
have a beneficial interest therein.
(b) The Certificateholders shall not have legal title to any part of
the Trust Estate. No transfer by operation of law or otherwise of any
interest of a Certificateholder shall operate to terminate this Trust
Agreement or the trust hereunder or entitle any transferee to an accounting
or to the transfer to it of any part of the Trust Estate.
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SECTION 2.09. COVENANTS REGARDING OPERATIONS.
(a) Notwithstanding any other provision to the contrary of this Trust
Agreement or any other agreement, document or instrument executed by the
Trust and notwithstanding any prior termination of this Trust Agreement,
the Certificateholders shall not take or authorize any Bankruptcy Action.
(b) So long as the Indenture is in effect, and except as otherwise
provided in the Indenture and the Transaction Documents:
(i) The Trust shall not engage in any business or activity other
than in connection with or relating to the purchase or acquisition and
ownership of the Trust Estate, the grant of such Trust Estate to the
Trustee and the activities specified in Section 2.05.
(ii) The Trust shall not consolidate or merge with or into any
other entity or convey or transfer its properties and assets
substantially as an entirety to any entity, or pledge its assets to
any other entity except as provided in the Transaction Documents.
(iii) The Trust shall not dissolve or liquidate, in whole or in
part.
(iv) The Trust shall not be, become or hold itself out as being
liable for the debts of any other Person, or hold out its credit as
being available to satisfy the obligation of any other Person, and the
Trust and the Sponsor (or any other Certificateholder) will not act as
agents for each other.
(v) The Trust shall not form, or cause to be formed, any
subsidiaries.
(vi) The Trust shall act solely in its Trust name and through its
duly Authorized Officers or agents in the conduct of its business,
shall prepare all Trust correspondence in the Trust name, shall hold
itself out as a separate entity from any other Person, shall conduct
its business so as not to mislead others as to the identity of the
entity with which they are concerned and shall correct any known
misunderstanding regarding its separate identity.
(vii) The Trust shall maintain statutory trust records, accounts
and books of account and shall not commingle its statutory trust
records, accounts and books of account with the organizational or
other records, accounts and books of account of any other corporation
or entity and such records, accounts and books of account shall
reflect the separate existence of the Trust. The books of the Trust
may be kept (subject to any provision contained in any applicable
statutes) inside or outside the State of Delaware at such place or
places as may be designated from time to time by the Trust.
(viii) The Trust shall take such actions as may be necessary to
authorize all of its actions as may be required by law.
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(ix) This Trust Agreement Section shall not be amended, altered,
changed or repealed, except as may be permitted pursuant to the
Transaction Documents.
(x) The Trust shall (1) conduct its business in an office
separate from that of the Certificateholders, (2) maintain stationery,
invoices and checks separate from that of any other Person, (3) pay
all of its own expenses and liabilities from its own funds, (4)
strictly observe all statutory formalities, (5) pay the salaries of
its own employees and maintain a sufficient number of employees in
light of its contemplated business operations, (6) maintain an arm's
length relationship with its affiliates and (7) maintain separate
financial statements from any other Person. The Trust shall not (A)
pledge (except pursuant to the Transaction Documents), lend or advance
any moneys to, or make an investment in or for the benefit of, any
Person, (B) make any capital expenditures, (C) subject to Section
5.06, take any Bankruptcy Action, or (D) guarantee (directly or
indirectly), endorse or otherwise become contingently liable (directly
or indirectly) for, or pay from its funds, the obligations or
indebtedness of, or (except pursuant to the Transaction Documents) own
or purchase any stock, obligations or securities of or any other
interest in, or make any capital contribution to, any other Person.
(xi) The Trust shall allocate fairly and reasonably with any
other Person expenses that are shared with such Person including,
without limitation, any overhead, rent, or other compensation paid for
shared or leased office space.
(xii) The Trust (A) has maintained and shall maintain its valid
existence, rights and franchises in good standing as a statutory trust
under the laws of the State of Delaware and will obtain and preserve
its qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of this Trust Agreement; (B) has observed and shall
observe all procedures required by this Trust Agreement and the laws
of the State of Delaware; and (C) has otherwise complied and shall
otherwise comply with the provisions of this Trust Agreement and the
Trust Statute.
(xiii) Financial and operational services, including, without
limitation, maintenance of the books and records of the Trust and
preparation of the financial statements shall be performed on behalf
of the Trust by independent contractors, including, without
limitation, employees of the Administrator or its affiliates. The
entity performing services or incurring expenses in connection with
such services for the Trust shall receive compensation for such
services rendered or expenses incurred in an amount equal to the fair
value of such services and expenses. To the extent that the Trust
leases premises from a Certificateholder or affiliates of a
Certificateholder, the Trust shall pay appropriate compensation or
rental. The Trust shall be directly responsible for the costs of its
own outside legal, auditing and other similar services. The amounts
deposited into the Trust and the cash flow expected to be received by
the Trust under the Indenture is expected to be sufficient to meet the
fees and costs of the Delaware Trustee and the
10
Administrator for the Trust and the reasonably anticipated expenses
and liabilities of the Trust.
(xiv) The annual financial statements of the Trust shall disclose
the effects of these transactions in accordance with generally
accepted accounting principles. The consolidated financial statements
which consolidate the assets and earnings of any Certificateholder
with those of the Trust shall not state that the assets of the Trust
shall be available to creditors of a Certificateholder. The financial
statements (if any) of the Trust shall not state that the assets of
the Trust are or will be available to pay creditors of any
Certificateholder or any other affiliate (other than the obligations
of the Certificateholder to indemnify the Delaware Trustee under this
Trust Agreement).
(xv) The Trust will not guarantee any indebtedness of or make
loans to a Certificateholder or its affiliates.
(xvi) Except for the Delaware Trustee's standard practice
regarding maintenance of funds and assets, the funds and other assets
of the Trust will not be commingled with those of any other Person and
shall be maintained as identifiable funds and assets held in the name
of the Trust.
(xvii) The Trust shall not enter into any contract or agreement
with any of its Certificateholders or their affiliates except on terms
that are intrinsically fair, commercially reasonable, and
substantially similar to those that would be available on an
arms-length basis with third parties, and transact all business with
its Certificateholders and or their affiliates pursuant to written,
enforceable agreements with pricing and material terms established at
the inception that will not be amendable except with written consent
of each of the parties to the agreement).
(xviii) The Trust shall maintain adequate capital for the normal
obligations reasonably foreseeable for the size and character of the
activities of the Trust and in light of its proposed operations and
liabilities (provided that this clause shall not be deemed a
commitment by any Certificateholder to deposit additional amounts into
the Trust).
(xix) The Trust shall not enter into any agreements, written or
otherwise, pursuant to which the Certificateholder agrees to extend
credit or make payment or contributions to or for or assume, guaranty
or otherwise be obligated for the payment or performance of the Trust;
provided, however, that any Certificateholder may make any deposit to
the Trust that such Certificateholder determines to be in the
Certificateholder's best interest).
SECTION 2.10. APPOINTMENT OF DELAWARE TRUSTEE. The Certificateholders
hereby appoint the Delaware Trustee as trustee of the Trust effective as of the
date hereof, to have all of the rights, powers, authority, authorization and
duties set forth herein and in the Trust Statute.
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SECTION 2.11. FEDERAL INCOME TAX ALLOCATIONS. Net income of the Trust for
any 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 to the Certificateholders on a pro rata basis in accordance with
their respective Percentage Interests.
SECTION 2.12. LIMITATIONS ON CERTIFICATEHOLDERS. Each Certificateholder by
accepting an interest in the Trust agrees that it will not enter into any
agreements, written or otherwise, between the Certificateholder and the Trust or
any other party (other than the obligations of the Certificateholder under
Sections 5.03, 6.08 and Article VII hereof) pursuant to which the
Certificateholder agrees to extend credit or make payment or contributions to or
for or assume, guaranty or otherwise be obligated for the payment or performance
of the Trust. This provision shall not prohibit any Certificateholder from
making any capital contributions to the Trust that such Certificateholder
determines to be in the Certificateholder's best interest.
SECTION 2.13. ADMINISTRATION. Unless and until otherwise notified in
writing by the Required Certificateholders, the Delaware Trustee is hereby
authorized and directed to take and receive instructions from the Administrator
pursuant to the Administration Agreement with respect to matters relating to the
Trust to the same extent and with the same effect and protection as if any such
instructions were received from the Required Certificateholders subject to the
provisions hereof. The Administrator shall be entitled to the Administration Fee
for services provided pursuant to the provisions hereof, which compensation is
hereby acknowledged as reasonable compensation by the Administrator and the
Certificateholders. The Administration Fee shall be payable monthly as provided
herein and in the Indenture.
SECTION 2.14. ADDITIONAL CONTRIBUTIONS. Any Certificateholder may make an
additional capital contribution (which capital contribution may be made with
funds advanced to the Certificateholder from the Administrator) to the Trust to
enable the Trust to carry out any instructions of such Certificateholder that
are permitted by the Transaction Documents, including an optional capital
contribution to enable the Trust to effect A PURCHASE OF NOTES. If such
Certificateholder makes such a capital contribution, the Delaware Trustee shall
establish a separate trust account designated for the deposit of such capital
contributions. If a Certificateholder makes a capital contribution to enable the
Trust to take any action, any proceeds that result from such action in an amount
up to the amount of the capital contribution shall, if so directed by the
Certificateholder, be credited to such separate account and shall be distributed
to the Certificateholder that made such capital contribution.
SECTION 2.15. PRINCIPAL PLACE OF BUSINESS. The Trust shall maintain its
principal place of business and chief executive office in the State of Delaware.
SECTION 2.16. LIABILITY OF THE CERTIFICATEHOLDERS AND THE DELAWARE TRUSTEE.
To the fullest extent permitted by law, no Certificateholder shall have any
personal liability for any liability or obligation of the Trust for any losses,
claims, damages, liabilities and expenses of the Trust. The Delaware Trustee
shall not have any liability or obligation with respect to the
Certificateholders except as otherwise provided herein.
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ARTICLE III
TRUST CERTIFICATES AND TRANSFER OF INTERESTS
SECTION 3.01. INITIAL BENEFICIAL OWNERSHIP. Upon the formation of the Trust
by the contribution by the Sponsor pursuant to Section 2.01 and until the
issuance of Certificates, the Sponsor shall be the sole beneficial owner of the
Trust.
SECTION 3.02. THE CERTIFICATES.
(a) The Certificates are issuable in fully registered form in minimum
Percentage Interests of 10%. Each Certificate shall be substantially in the
form set forth in Exhibit C to this Trust Agreement. All Certificates may
have set forth thereon such information, legends, and text as may be
necessary or appropriate to conform to any applicable rules and regulations
of any governmental authority or any usage or requirement of law with
respect thereto. The Certificates shall be executed on behalf of the Trust
by manual or facsimile signature of an Authorized Officer of the Delaware
Trustee. 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 Delaware Trustee, shall be
duly authorized, validly issued and entitled to the benefits of this Trust
Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and delivery of such
Certificates or did not hold such offices at the date of authentication and
delivery of such Certificates.
(b) A transferee of a Certificate shall become a Certificateholder and
shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder upon such transferee's acceptance of a
Certificate duly registered in such transferee's name pursuant to Section
3.04.
SECTION 3.03. AUTHENTICATION OF CERTIFICATES. No Certificate shall entitle
its Certificateholder to any benefit under this Trust Agreement or be valid for
any purpose unless there shall appear on such Certificate a certificate of
authentication substantially in the form set forth in Exhibit C, executed by the
Trust by manual signature of the Delaware Trustee; such authentication shall
constitute conclusive evidence that such Certificate has been duly authenticated
and delivered hereunder. All Certificates shall be dated the date of their
authentication.
SECTION 3.04. REGISTRATION OF TRANSFER AND EXCHANGE OF CERTIFICATES.
(a) The Delaware Trustee shall keep or cause to be kept, at the office
or agency maintained pursuant to Section 3.08, a Register in which, subject
to such reasonable regulations as it may prescribe, the Registrar shall
provide for the registration of Certificates and of transfers and exchanges
of Certificates as herein provided.
(b) The Certificates have not been and will not be registered under
the Securities Act and will not be listed on any exchange. No transfer of a
Certificate shall be made unless such transfer is made pursuant to an
effective registration statement under the Securities Act and any
applicable state securities laws or is exempt from the registration
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requirements under the Securities Act and such state securities laws. In
the event that a transfer is to be made in reliance upon an exemption from
the Securities Act and state securities laws, in order to assure compliance
with the Securities Act and such laws, the Certificateholder desiring to
effect such transfer and such Certificateholder's prospective transferee
shall each certify to the Trust, the Delaware Trustee, the Administrator
and the transferring Certificateholder in writing the facts surrounding the
transfer in substantially the forms set forth in Exhibit D (the "Transferor
Letter") and Exhibit E (the "Investment Letter") or Exhibit F (the "Rule
144A Letter"), as applicable. Except in the case of a transfer as to which
the proposed transferee has provided a Rule 144A Letter with respect to a
Rule 144A transaction, there shall also be delivered to the Trust an
Opinion of Counsel to the effect that such transfer may be made pursuant to
an exemption from the Securities Act, which Opinion of Counsel shall not be
an expense of the Trust, the Delaware Trustee (unless it is the transferee
from whom such opinion is to be obtained) or of the Administrator. Each
Certificateholder of a Certificate desiring to effect such a transfer
shall, and does hereby agree to, indemnify the Trust, the Delaware Trustee
and the Administrator against any liability that may result if the transfer
is not so exempt or is not made in accordance with federal and state
securities laws.
(c) No transfer, sale, pledge or other disposition of the Certificates
shall be made unless prior to such transfer, sale, pledge or other
disposition, the Trust shall have received either (i) a representation
letter from the transferee of such Certificate, acceptable to and in form
and substance satisfactory to the Trust, to the effect that such a
transferee is not an employee benefit plan subject to Section 406 of ERISA
or Section 4975 of the Code, or a person acting on behalf of any such plan
or (ii) in the case of any Certificate presented for registration in the
name of an employee benefit plan subject to ERISA or Section 4975 of the
Code (or comparable provisions of any subsequent enactments), or a trustee
of any such plan or any other person acting on behalf of any such plan, an
Opinion of Counsel satisfactory to the Trust, the Delaware Trustee and the
Administrator to the effect that the purchase or holding of such
Certificate will not result in the Trust or the Trust Estate being deemed
to be "plan assets" and subject to the prohibited transaction provisions of
ERISA and the Code and will not subject the Trust, Delaware Trustee, the
Administrator or the transferring Certificateholder to any obligation in
addition to those undertaken in this Trust Agreement. Notwithstanding
anything else to the contrary herein, in the event any purported transfer
of any Certificate is made without delivery of the representation letter
referred to above, such representation shall be deemed to have been made by
the transferee by its acceptance of such Certificate. In addition, any
purported transfer of a Certificate to or on behalf of an employee benefit
plan subject to ERISA or to the Code without the delivery to the Trust, the
Delaware Trustee, and the Administrator of an Opinion of Counsel as
described above shall be void and of no effect. Any certificate or Opinion
of Counsel furnished pursuant to this Section 3.04 may be relied on
conclusively by the Trust, Delaware Trustee, the Administrator and the
transferring Certificateholder in determining whether the provisions hereof
have been complied with.
(d) No transfer shall be effective if immediately after such transfer
there would be more than one hundred Beneficial Owners of Certificates. Any
purported transfer in violation of the provisions of this Section 3.04(d)
shall be VOID AB INITIO and the Delaware
14
Trustee shall have no liability in connection with a transfer in violation
of the provisions of this Section 3.04(d).
(e) The foregoing provisions shall not prevent the assignment by a
Certificateholder of all or any part of its right to receive distributions
in respect of its interest in its Certificate, but such assignment shall
effect no change in ownership of the Trust.
(f) The preparation and delivery of the certificate and opinions
referred to in this Section 3.04 shall not be an expense of the Trust, the
Delaware Trustee or the Administrator.
(g) Upon surrender for registration of transfer of any Certificate at
the office or agency maintained pursuant to Section 3.08, the Delaware
Trustee shall execute, authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Certificates in
authorized denominations stating the aggregate amount and Percentage
Interest so transferred dated the date of authentication by the Delaware
Trustee. At the option of a Certificateholder, Certificates may be
exchanged for other Certificates of authorized Percentage Interests and
denominations of a like aggregate amount upon surrender of the Certificates
to be exchanged at the office or agency maintained pursuant to Section
3.08.
(h) Every Certificate presented or surrendered for registration of
transfer or exchange shall be accompanied by a written instrument of
transfer in form satisfactory to the Trust and duly executed by the
Certificateholder or such Certificateholder's attorney duly authorized in
writing. Each Certificate surrendered for registration of transfer or
exchange shall be cancelled and subsequently disposed of by the Trust in
accordance with its customary practice.
(i) No service charge shall be made for any registration of transfer
or exchange of Certificates, but the Trust or the Delaware Trustee 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
Certificates.
(j) Notwithstanding any other provision herein or elsewhere, the
Trust, the Delaware Trustee and the Administrator (i) shall not have any
obligation to determine whether any transfer or exchange of a Certificate
is permitted under or in accordance with this Trust Agreement; (ii) shall
not have any personal liability to any person in connection with any
transfer or exchange or proposed or purported transfer or exchange (and/or
registration thereof) that is not permitted under or in accordance with
this Trust Agreement; (iii) shall be entitled to rely (and shall be fully
justified and protected in so relying) on the Register as to the identity
of the Certificateholders and as to the Certificates and the Percentage
Interests and denominations thereof evidenced thereby.
(k) Notwithstanding anything contained herein to the contrary, the
Delaware Trustee shall not be responsible for ascertaining whether any
transfer complies with the registration provisions or exemptions from the
Securities Act of 1933, as amended, the
15
Securities Act of 1934, as amended, applicable state securities law or the
Investment Company Act; PROVIDED, HOWEVER, that if a certificate is
specifically required to be delivered to the Delaware Trustee by a
purchaser or transferee of a Certificate, the Delaware Trustee shall be
under a duty to examine the same to determine whether it conforms to the
requirements of this Trust Agreement and shall promptly notify the party
delivering the same if such certificate does not so conform.
SECTION 3.05. MUTILATED, DESTROYED, LOST OR STOLEN CERTIFICATES. If (i) any
mutilated Certificate is surrendered to the Trust and the Registrar or the Trust
receives evidence to its satisfaction of the destruction, loss or theft of the
Certificate, and (ii) there is delivered to the Registrar, the Trust, the
Delaware Trustee and the Administrator such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Registrar or the Trust that the Certificate has been acquired by a
protected purchaser, the Delaware Trustee shall execute and the Delaware Trustee
or the Registrar shall authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Certificate, a new Certificate of
like tenor, amount and Percentage Interest but bearing a number not
contemporaneously outstanding. Upon the issuance of any new Certificate under
this Section 3.05, the Trust or the Delaware Trustee may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any transfer or exchange of the Certificate and any
other reasonable expenses (including the reasonable fees and expenses of the
Trust, Delaware Trustee, the Administrator and the Registrar) connected
therewith. Any duplicate Certificate issued pursuant to this Section 3.05 shall
constitute complete and indefeasible evidence of ownership in the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
SECTION 3.06. PERSONS DEEMED OWNERS. Prior to due presentation of a
Certificate for registration of transfer, the Trust, Delaware Trustee, the
Administrator and the Registrar may treat the Person in whose name any
Certificate is registered in the Register as the owner of such Certificate for
the purpose of receiving distributions pursuant to Section 4.01(b) and for all
other purposes whatsoever, and none of the Trust, Delaware Trustee, the
Administrator or the Registrar shall be bound by any notice to the contrary.
SECTION 3.07. ACCESS TO LIST OF CERTIFICATEHOLDERS' NAMES AND ADDRESSES.
The Trust shall furnish or cause to be furnished to the Administrator or a
Certificateholder, within 15 days after receipt by the Delaware Trustee of a
written request therefor from the Administrator or the Certificateholder, a
list, in such form as the Administrator or the Certificateholder may reasonably
require, of the names and addresses of the Certificateholders then registered in
the Register as the owner of Certificates. Each Certificateholder, by receiving
and holding a Certificate, shall be deemed to have agreed not to hold any of the
other Certificateholders, the Trust, the Delaware Trustee, the Administrator, or
the Registrar 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 Trust will maintain an
office or agency in Wilmington, Delaware where Certificates may be surrendered
for registration of transfer or exchange. The Trust will maintain an office at
the address stated in Section 10.05
16
hereof where notices and demands to or upon the Trust, the Delaware Trustee, the
Administrator, and the Registrar in respect of this Trust Agreement may be
served.
SECTION 3.09. TERMS OF CERTIFICATES BINDING. Each Certificateholder, by
assenting to the acquisition by it of a Certificate, agrees to be bound by the
terms and conditions of the Certificates and of this Trust Agreement, including
any supplements or amendments thereto or hereto, and to perform the obligations
of a Certificateholder as set forth therein or herein, in all respects as if it
were a signatory hereto. This undertaking is made for the benefit of the Trust,
the Delaware Trustee, the Administrator, the Registrar, and all other
Certificateholders, if any.
ARTICLE IV
DISTRIBUTIONS AND PAYMENTS
SECTION 4.01. DISTRIBUTION OF PAYMENTS.
(a) Until the Trust shall have received written notice from the
Indenture Trustee that the Indenture shall have been discharged pursuant to
its terms, all revenues and receipts of any kind whatsoever generated by,
remitted in respect of or relating to the Trust Estate and other payments
and receipts of any kind with respect to the Trust Estate or otherwise
included in the Trust Estate shall, if received directly by the Delaware
Trustee, forthwith after receipt, be paid over by the Delaware Trustee to
the Indenture Trustee without deduction, set-off or adjustment of any kind
for distribution in accordance with the provisions of the Indenture;
provided, that neither the making of such payments to, nor the receipt of
such payments by, the Indenture Trustee or any other person shall ever be
deemed to constitute the Indenture Trustee or any such person as an income
beneficiary hereunder, it being understood that all such payments will be
made pursuant to contractual obligations under the Indenture; and provided,
further, that the Delaware Trustee shall not be required to turn over any
such amounts received from the Trustee, or received on account of any
amounts referred to in clause FIRST of Section 4.01(b) hereof or Article
VII.
(b) Except as otherwise provided in paragraph (a) of this Section, (i)
all payments and amounts actually received by or on behalf of the Delaware
Trustee from the Trust Estate sources pursuant to the Indenture and (ii)
all other revenues, receipts and other payments of any kind whatsoever
generated by, remitted or received in respect of or relating to the Trust
Estate or otherwise included in the Trust Estate and not pledged or
required to be pledged pursuant to the Indenture or released from the lien
of the Indenture (all to the extent not previously distributed)
(collectively, the "Payments"), each to the extent received by or on behalf
of the Delaware Trustee, shall be distributed forthwith upon receipt by the
Delaware Trustee in the following order of priority: FIRST, so much of such
Payments as shall be required to pay or reimburse the Trust Company and the
Delaware Trustee for any fees, expenses, indemnities or other amounts not
otherwise paid or reimbursed to the Trust Company or the Delaware Trustee
pursuant to the Indenture or otherwise as to which such Person is entitled
to be paid or reimbursed hereunder shall be retained by the Delaware
Trustee; SECOND, so much of the remainder of such Payments as shall be
required to pay or reimburse the Administrator in performing its
responsibilities
17
hereunder and under the Administration Agreement for any Administration
Fee, expenses, indemnities or other amounts not otherwise paid or
reimbursed to the Administrator pursuant to the Indenture or otherwise as
to which such Person is entitled to be paid or reimbursed shall be paid or
reimbursed to the Administrator; and THIRD, the balance, if any, of such
Payment or amount remaining thereafter shall be promptly distributed to the
Certificateholders, pro rata based on their respective Percentage
Interests, without deduction, set-off or adjustment of any kind; provided,
that neither the making of such Payments to, nor the receipt of such
Payments by, a Certificateholder or any other Person shall ever be deemed
to constitute a Certificateholder or any such Person as an income
beneficiary hereunder, and provided further, that the Delaware Trustee
shall not be required to turn over any such Payment as compensation or
reimbursement of expenses.
SECTION 4.02. PAYMENTS FROM TRUST ESTATE ONLY. All payments to be made by
the Delaware Trustee under this Trust Agreement or by the Trust (other than
payments made pursuant to Sections 2.05(a)(ix), 2.12 and 2.14 with funds to be
provided by a Certificateholder) shall be made only from the Trust Estate and
the income and proceeds from or related to the Trust Estate and only to the
extent that Delaware Trustee shall have actually received such income or
proceeds from the Trust Estate and such proceeds are not required to be remitted
to the Indenture Trustee pursuant to Section 4.01(a) hereof or the Indenture.
Each Certificateholder agrees that it will look solely to the Trust Estate to
the extent available for payment as herein provided and that, except as
specifically provided in Section 6.01 hereof, the Trust Company shall not be
liable in its individual capacity to any Certificateholder for any amounts
payable under this Trust Agreement and shall not be subject to any liability in
its individual capacity under this Trust Agreement. This Section is intended
solely to limit the liability of the Delaware Trustee and shall have no effect
on the obligations of the Certificateholders under this Trust Agreement. This
Section 4.02 does not limit the liability of the Delaware Trustee set forth in
Section 6.01 hereof.
SECTION 4.03. METHOD OF PAYMENT. Unless otherwise directed by a
Certificateholder, all amounts payable to the Certificateholder pursuant to this
Trust Agreement shall be paid to it in immediately available funds by transfer
to a banking institution with bank wire transfer facilities for the account of
the Certificateholder, as the Delaware Trustee may be instructed from time to
time in writing by the Certificateholder.
SECTION 4.04. TRUST PAYMENT DATE STATEMENT.
(a) Based on the reports received by the Delaware Trustee pursuant to
the Indenture, the Delaware Trustee, or the Administrator if requested by
the Delaware Trustee pursuant to the Administration Agreement, shall
prepare, or shall cause to be prepared for each payment or distribution
made to the Delaware Trustee, Administrator, or Certificateholders pursuant
to Section 4.01(b) a statement substantially in the form of Exhibit B
attached hereto (the "Trust Payment Date Statement"). In connection with
any payments or distributions to the Delaware Trustee, the Administrator or
the Certificateholders pursuant to Section 4.01(b), the Delaware Trustee,
or the Administrator if requested by the Delaware Trustee pursuant to the
Administration Agreement, shall deliver the Trust Payment Date Statement to
each Certificateholder or
18
as instructed by the Certificateholder in a written Notice to the Delaware
Trustee and the Administrator.
(b) The Delaware Trustee makes no representations or warranties as to
the accuracy of the information contained in the reports generated by the
Trust or the Administrator pursuant to the Indenture or, to the extent that
the Trust Payment Date Statement contains or relies upon information
provided by the reports provided by the Trust or the Administrator pursuant
to the Indenture, the Trust Payment Date Statement. The Delaware Trustee
shall not be bound to make any investigation as to the facts stated in the
reports provided by the Trust pursuant to the Indenture, and may rely upon
each of the reports provided by the Trust pursuant to the Indenture
delivered to it by or on behalf of the Trustee.
ARTICLE V
DUTIES OF DELAWARE TRUSTEE
SECTION 5.01. NOTICE OF DEFAULT. In the event the Delaware Trustee shall
have actual knowledge of an Event of Default under the Indenture, the Delaware
Trustee shall give prompt telephonic notice (to the extent telephone numbers are
on file with the Delaware Trustee) followed by, or in the alternative, written
notice by facsimile or overnight courier for receipt within 48 hours of
discovery thereof to the Sponsor and the Indenture Trustee. Subject to the terms
of Section 5.03 hereof, the Delaware Trustee shall take or refrain from taking
such action as the Delaware Trustee shall be instructed in writing by the
Required Certificateholders. If the Delaware Trustee shall not have received
such instructions within 20 days after giving written notice of such event to
the Certificateholders (or within such shorter period of time as may be
specified in such notice or required under the circumstances), the Delaware
Trustee, subject to instructions subsequently received from the Required
Certificateholders pursuant to the preceding sentence, may, but shall be under
no duty to, take or refrain from taking any action with respect thereto as the
Delaware Trustee shall deem advisable and in the best interests of the
Certificateholders and shall not have liability to any Person for any action or
inaction. For all purposes of this Trust Agreement, in the absence of actual
knowledge of an officer of the Delaware Trustee at its address specified in
Section 10.05 hereof, the Delaware Trustee shall not be deemed to have knowledge
of any event referred to in the first sentence of this Section unless it
receives written notice thereof from a Certificateholder or the Indenture
Trustee.
SECTION 5.02. ACTION UPON INSTRUCTION.
(a) Whenever the Delaware Trustee is (i) unable to decide between
alternative courses of action permitted or required by the terms of this
Trust Agreement or under any Transaction Document, (ii) unsure as to the
application of any provision of this Trust Agreement or any Transaction
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 (iii)
in the event that this Trust Agreement permits any determination by the
Delaware Trustee or is silent or is incomplete as to the course of action
that the Delaware Trustee is required to take with respect to a particular
set of facts, the Delaware Trustee may give Notice (in such form as shall
be appropriate under the circumstances) to the
19
Certificateholders and the Administrator requesting instruction and, to the
extent that the Delaware Trustee acts or refrains from acting in good faith
in accordance with any such instruction received from the Required
Certificateholders or the Administrator, the Delaware Trustee shall not be
liable, on account of such action or inaction, to any Person. If the
Delaware 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 Transaction
Documents, as it shall deem to be in the best interests of the
Certificateholders, and shall not have liability to any Person for such
action or inaction.
(b) Notwithstanding anything in this Trust Agreement to the contrary,
neither the Delaware Trustee nor any of its respective agents, shall be
required to take or refrain from taking any action under this Trust
Agreement, the Transaction Documents or any other agreement, or exercise
any of their respective rights and powers, if the Delaware Trustee shall
reasonably determine (without any obligation to make any such
determination), or shall have been advised by counsel, that such action or
inaction (i) is contrary to the terms of this Trust Agreement, the terms of
the Transaction Documents or any other agreement to which the Delaware
Trustee or the Trust is a party, (ii) is likely to result in a breach of
its duties hereunder or those of the Trust Company, (iii) to the actual
knowledge of an officer of the Delaware Trustee that is responsible for the
administration of the Trust, would adversely affect the tax status of the
Trust, or (iv) is otherwise contrary to applicable law.
(c) The Delaware Trustee shall not be required to expend or risk its
own funds or otherwise incur financial liability in the performance of any
of its respective duties hereunder, or in the exercise of any of its
respective rights or powers, if there is reasonable ground for believing
that the repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to the Delaware Trustee and none of the
provisions contained in this Trust Agreement shall in any event require the
Delaware Trustee to perform, or be responsible for the manner of
performance of, any of the obligations of any other party under this Trust
Agreement.
(d) Subject to the terms of Sections 5.01, 5.03 and 5.06 hereof and
the Administration Agreement, the Required Certificateholders or the
Administrator may by written instruction direct the Delaware Trustee in the
management of the Trust. Such direction may be exercised at any time by
written instruction of the Required Certificateholders or the
Administrator. Prior to taking any action on behalf of the Trust under this
Trust Agreement or the Transaction Documents, the Delaware Trustee may
request and, if so requested, shall receive written instructions of the
Required Certificateholders or the Administrator specifying the manner in
which the Delaware Trustee shall take such action. The Delaware Trustee
shall not be liable for any action it takes or omits to take in good faith
in reliance on the instructions of such Required Certificateholders or the
Administrator.
(e) The Certificateholders agree to not provide any direction to the
Delaware Trustee to take any action that is contrary to the terms of this
Trust Agreement, the
20
Transaction Documents, any other agreements to which the Delaware Trustee
or the Trust is a party, or is otherwise contrary to applicable law.
(f) The Delaware Trustee shall not have the power, except upon the
direction of each Certificateholder, to (a) remove or replace the Eligible
Lender Trustee, any Servicer, the Administrator or any other administrator
or (b) except as expressly provided in the Transaction Documents, sell the
Financed Student Loans after the termination of the Indenture. The Delaware
Trustee shall take the actions referred to in the preceding sentence only
upon written instructions signed by the Certificateholders.
SECTION 5.03. INDEMNIFICATION. The Delaware Trustee shall not be required
to take or refrain from taking any action under this Trust Agreement, the
Transaction Documents or any other agreement (other than the actions specified
in the first sentence of Section 5.01 hereof) if the Delaware Trustee shall
reasonably determine, or shall have been advised by counsel, that such actions
may result in personal liability of the Trust Company or require it to risk or
advance its own funds unless the Trust Company and the Delaware Trustee shall
have been indemnified by Certificateholders, in manner and form reasonably
satisfactory to the Trust Company and the Delaware Trustee, against any
liability, fee, cost or expense (including reasonable legal fees and expenses)
which may be incurred or charged in connection therewith; and if the Required
Certificateholders shall have directed the Delaware Trustee to take or refrain
from taking any such action, the Certificateholders so directing the Delaware
Trustee agree to furnish such indemnity as shall be required and, in addition,
to the extent not otherwise paid pursuant to the provisions of this Trust
Agreement, to pay the reasonable compensation of the Delaware Trustee for the
services performed or to be performed by it pursuant to such direction.
SECTION 5.04. NO DUTIES EXCEPT AS SPECIFIED IN TRANSACTION DOCUMENTS. The
Delaware Trustee shall have no duty or obligation to manage, control, use, make
any payment in respect of, register, record, sell, dispose of or otherwise deal
with any of the Trust Estate, or otherwise to take or refrain from taking any
action as Delaware Trustee or on behalf of the Trust whatsoever under or in
connection with this Trust Agreement or the Transaction Documents except as (i)
expressly provided by the terms hereof or (ii) to the extent not so provided, as
expressly provided in written instructions received pursuant to Section 5.01 or
5.02 hereof; and no implied duties or obligations shall be read into this Trust
Agreement against the Delaware Trustee. The Delaware Trustee shall not in any
instance have any duty to inspect any of the Trust Estate or any records
pertaining thereto.
SECTION 5.05. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR INSTRUCTIONS.
The Delaware Trustee shall have no authority to manage, control, use, make any
payment in respect of, register, record, sell, dispose of or otherwise deal with
any part of the Trust Estate except (i) as required by the terms of this Trust
Agreement, (ii) in accordance with the powers granted to or the authority
conferred upon the Delaware Trustee pursuant to this Trust Agreement, or (iii)
in accordance with the express terms hereof or written instructions received
pursuant to Section 5.01 or 5.02 hereof.
SECTION 5.06. ACTION BY CERTIFICATEHOLDERS WITH RESPECT TO BANKRUPTCY. The
Delaware Trustee shall not follow any direction of the Certificateholders to
take any Bankruptcy Action. The consent of the Delaware Trustee shall be
required prior to the commencement by
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the Trust of any Bankruptcy Action. To the fullest extent permitted by
applicable law, the Delaware Trustee shall not be required to consent to the
commencement by the Trust of any Bankruptcy Action unless it has received a
certificate signed by a nationally recognized accounting firm (the "Accountant's
Certificate") certifying that such accounting firm reasonably believes that the
Trust is insolvent. The Delaware Trustee may conclusively rely upon the
Accountant's Certificate.
SECTION 5.07. DISCHARGE OF LIENS. Notwithstanding anything in this Trust
Agreement to the contrary, the Delaware Trustee agrees that it will, at its own
cost and expense (and not at the expense of the Trust), promptly take all action
as may be necessary to discharge any liens on any part of the Trust Estate which
are attributable to actions by or claims against the Trust Company that are not
related to the ownership of the Trust Estate or the administration of the Trust
Estate or the transactions contemplated by this Trust Agreement.
ARTICLE VI
DELAWARE TRUSTEE
SECTION 6.01. ACCEPTANCE OF TRUSTS AND DUTIES. The Trust Company accepts
the trusts hereby created and agrees to perform the same but only upon the terms
of this Trust Agreement. The Delaware Trustee is authorized and directed to
execute and deliver the Transaction Documents to which the Trust is to be party
and each certificate or other document attached as an exhibit to or contemplated
by the Transaction Documents to which the Trust is to be a party, as evidenced
conclusively by the Delaware Trustee's execution thereof. In addition to the
foregoing, the Delaware Trustee is authorized, but shall not be obligated, to
take all actions required of the Trust pursuant to the Transaction Documents.
Subject to Sections 2.09 and 5.06, the Delaware Trustee is further authorized
from time to time to take such action as the Required Certificateholders
instruct in writing with respect to the Transaction Documents. The Delaware
Trustee declares that it shall hold the Trust Estate, and all amounts received
by it thereunder and hereunder in trust, upon the terms herein set forth, on
behalf of the Trust for the use and benefit of all present and future
Certificateholders. The Delaware Trustee also agrees to receive and disburse all
money actually received by it constituting part of the Trust Estate upon the
terms hereof. Notwithstanding anything in this Trust Agreement to the contrary,
the Trust Company shall not be liable, answerable or accountable in its
individual capacity to any Person under any circumstances, except that such
limitation shall not limit the liability, if any, of the Trust Company to the
Certificateholders (i) for the Trust Company's own willful misconduct, bad
faith, gross negligence or reckless disregard of the duties involved in the
conduct of its offices hereunder or the willful misconduct, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of its
offices hereunder performed through its agent not appointed with due care, (ii)
in the case of the inaccuracy of any of the Trust Company's representations or
warranties contained in Section 6.03 hereof, (iii) for taxes, fees or other
charges on, based on or measured by any fees, commissions or compensation
received by it for acting as Delaware Trustee in connection with any of the
transactions contemplated by this Trust Agreement or any other agreement
contemplated by this Trust Agreement, or (iv) the failure to use ordinary care
to disburse in accordance with the terms hereof money actually received by it.
In particular, but not by way of limitation:
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(a) the Trust Company shall not be liable for any error of judgment
made in good faith by any officer of the Delaware Trustee;
(b) under no circumstances shall the Trust Company be personally
liable hereunder for any indebtedness of the Trust;
(c) the Trust Company shall not be personally liable for the payment
of any tax imposed on the Trust or amounts that are includable in the
federal gross income of the Certificateholders
(d) no provision of this Trust Agreement shall require the Trust
Company to expend or risk funds or otherwise incur any financial liability
in the performance of any of the Delaware Trustee's duties or powers
hereunder, if the Trust Company believes or is advised by its legal counsel
that repayment of such funds or adequate indemnity against such risk or
liability is not assured or provided to its reasonable satisfaction;
(e) under no circumstance shall the Trust Company be liable for any
representation, warranty, covenant, or obligation or indebtedness of the
Trust hereunder or under the Transaction Documents or any other agreement,
document or certificate contemplated by the foregoing;
(f) the Trust Company shall not be liable with respect to any action
taken or omitted to be taken by the Administrator and the Trust Company
shall not be I liable for performing or supervising the performance of any
obligations or duties under this Trust Agreement, the Administration
Agreement or the Indenture, or under any other document contemplated hereby
or thereby, which are to be performed by the Administrator or any other
Person under such documents;
(g) the Trust Company shall not be responsible for or in respect of
the recitals herein, the validity or sufficiency of this Trust Agreement,
or for the due execution hereof by the Sponsor or the Administrator 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
Indenture or any other document contemplated thereby to which the Trust
Company is not a party, and the Trust Company shall in no event assume or
incur any liability, duty or obligation to the Trustee, the
Certificateholders, or the Administrator other than is expressly provided
for herein;
(h) notwithstanding anything contained herein or in any of the
Transaction Documents to the contrary, neither the Trust Company nor the
Delaware Trustee shall be required to take any action in any jurisdiction
other than in the State of Delaware if the taking of such action will (i)
require the consent or approval or authorization or order of or the giving
of notice to, or the registration with or taking of any action in respect
of, any state or other governmental authority or agency of any jurisdiction
other than the State of Delaware; (ii) result in any fee, tax or other
governmental charge under the laws of any jurisdiction or any political
subdivisions thereof in existence on the date hereof other than the State
of Delaware becoming payable by the Trust Company; or (iii) subject the
Trust Company to personal jurisdiction in any jurisdiction other than the
State of Delaware for
23
causes of action arising from acts unrelated to the consummation of the
transactions by the Trust Company or the Delaware Trustee, as the case may
be, contemplated hereby;
(i) no provision of this Trust Agreement shall require the Trust
Company to monitor or otherwise supervise the actions or inactions of or
the performance by the Administrator or any sub-administrators;
(j) the Delaware Trustee shall be deemed to have discharged its duties
and responsibilities hereunder and under the other Transaction Documents to
the extent the Administrator or any other administrator has agreed in the
Administration Agreement or the related administration agreement, as
applicable, to perform any act or to discharge any duty of the Delaware
Trustee hereunder or under any other Transaction Document, and the Delaware
Trustee shall not be held liable for the default or failure of the
Administrator or any other administrator to carry out its obligations under
the Administration Agreement or related administration agreement, as
applicable;
(k) the Delaware 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; and
(l) notwithstanding anything contained herein to the contrary, any
funds and assets held by the Delaware Trustee on behalf of the Trust
hereunder may be maintained and accounted for in the record-keeping and
asset custody systems utilized by the Trust Company on behalf of the
Delaware Trustee.
SECTION 6.02. FURNISHING OF DOCUMENTS. The Delaware Trustee will furnish to
the Certificateholders, promptly upon receipt, duplicates or copies of all
reports, notices, requests, demands, certificates, financial statements and any
other writings furnished to the Delaware Trustee. The Delaware Trustee shall
have no duty or obligation to examine or review such items received by it.
SECTION 6.03. NO REPRESENTATIONS OR WARRANTIES AS TO TRUST ESTATE. Neither
the Trust Company nor the Delaware Trustee makes (i) any representation or
warranty as to the title, value or merchantability of the Trust Estate or any
other representation or warranty, express or implied, with respect to the Trust
Estate whatsoever, and (ii) any representation or warranty as to the validity or
enforceability of the Transaction Documents or any other agreement contemplated
by any of the foregoing, or as to the correctness of any statement contained in
any thereof, except that the Trust Company represents and warrants to the
Certificateholders and the Administrator that this Trust Agreement and, assuming
that this Trust Agreement has been duly authorized, executed and delivered by
the Sponsor and the Administrator, each of the Transaction Documents and each
other document which contemplates execution thereof by the Delaware Trustee on
behalf of the Trust has been or will be executed and delivered by its officers
who are or will be duly authorized to execute and deliver such document on its
behalf, and that under Delaware law (excluding Delaware securities laws), this
Trust Agreement constitutes the legal, valid and binding obligation of the Trust
Company, enforceable against the Trust Company in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization,
24
moratorium and other similar laws affecting the enforcement of creditors' rights
generally and to general principles of equity.
SECTION 6.04. NO SEGREGATION OF MONEYS; NO INTEREST. Except as otherwise
provided herein or in written instructions from the Required Certificateholders,
moneys received by the Delaware Trustee hereunder need not be segregated in any
manner, except to the extent required by applicable law and Section 2.09 hereof,
and may be deposited under such general conditions as may be prescribed by law,
and neither the Trust Company nor the Delaware Trustee shall be liable for any
interest thereon.
SECTION 6.05. RELIANCE; ADVICE OF COUNSEL. The Delaware Trustee shall not
incur any liability to anyone in acting in reliance upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report,
opinion, bond, direction 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 Delaware
Trustee may accept a copy of a resolution of the board of directors or other
governing body of any party, certified by the secretary or a senior officer
thereof, 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 manner of ascertainment of which is not specifically prescribed
herein, the Delaware Trustee may for all purposes hereof rely on a certificate
of the relevant person as to such fact or matter, and such certificate shall
constitute full protection to the Delaware Trustee for any action taken,
suffered or omitted by it in good faith in reliance thereon. In the
administration of the trusts created hereby, the Delaware Trustee may execute
any of the trusts or powers hereof and perform any of its powers and duties,
including, if applicable, the holding of title to all or any part of the Trust
Estate, hereunder directly or through agents or attorneys and may consult with
counsel, accountants and other skilled persons, at the expense of the Trust, to
be selected and employed by it, and the Delaware Trustee shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the
advice or opinion within the scope of such person's competence of any such
counsel, accountants or other skilled persons selected by it with due care.
SECTION 6.06. NOT ACTING IN INDIVIDUAL CAPACITY. Except as otherwise
provided in this Article, in accepting the trusts hereby created, the Trust
Company acts solely as Delaware Trustee hereunder and not in its individual
capacity, and all persons having any claim against the Delaware Trustee by
reason of the transactions contemplated hereby and by the Indenture shall look
only to the Trust Estate (or a part thereof, as the case may be) for payment or
satisfaction thereof, but subject to the lien created by Indenture.
SECTION 6.07. BOOKS AND RECORDS. The Delaware Trustee shall be responsible
for the keeping of all customary and appropriate books and records relating to
the receipt and disbursement of all money which it may receive hereunder or
under any agreement contemplated hereby.
SECTION 6.08. TAX RETURNS. The Delaware Trustee is hereby advised that the
Certificateholders intend that as long as the Trust has a single
Certificateholder, the entity created under this Trust Agreement shall be
treated for purposes of federal income tax, state and local income and franchise
taxes, and any other taxes imposed on, measured by or based upon gross or net
income, as a disregarded entity separate from its owner. However, if there is
more
25
than one Certificateholder, the parties hereto intend that the entity
created under this Trust Agreement shall be treated as a partnership for federal
income tax purposes. The Trust shall, at the expense of the Certificateholders
pro rata based on their respective Percentage Interests, shall cause a firm of
independent public accountants selected by the Administrator to prepare any tax
returns or other forms certified by such accounting firm to be all, to the best
of such accounting firm's knowledge, of the tax returns or forms required to be
filed by the Trust; the Delaware Trustee shall cooperate with such accounting
firm in providing any information in its possession which is necessary or
advisable in the preparation of such tax returns and shall execute such tax
returns presented to it in execution form in a timely manner to enable the
Certificateholders to timely file such tax returns. The Delaware Trustee in its
capacity as Delaware Trustee shall sign all appropriate federal returns
presented to it in execution form; provided, however, that the Trust shall send
a copy of any such return and related information to a Certificateholder at such
times as the Certificateholder may request. In no event shall the Delaware
Trustee be liable for any liabilities, costs or expenses of the Trust, the
Administrator, or the Certificateholders arising out of the application of any
tax law, including federal, state, foreign or local income or excise taxes or
any other tax imposed on or measured by income (or any interest, penalty or
addition with respect thereto or arising from a failure to comply therewith)
except for any such liability, cost or expense attributable to any act or
omission by the Delaware Trustee, as the case may be, in breach of its
obligations under this Trust Agreement. The Delaware Trustee shall keep copies
of all returns delivered to it or filed by it. Any reports, returns, records,
filings or books, other than those customary books and records or any report or
return specifically referenced in this Section 6.08, shall be the sole
responsibility and obligation of the Administrator and the Certificateholders,
and the Delaware Trustee shall have no obligation or responsibility with respect
thereto.
ARTICLE VII
ASSUMPTION OF LIABILITY AND PAYMENT
FOR DELAWARE TRUSTEE
SECTION 7.01. COMPENSATION AND EXPENSES. The Delaware Trustee shall receive
from the Trust as compensation (which shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust) for its
services hereunder such fees as may heretofore and from time to time hereafter
be agreed upon in a separate fee agreement between the Sponsor and the Delaware
Trustee. The Delaware Trustee shall be entitled to be reimbursed from the
Payments for its reasonable expenses hereunder, including, without limitation,
the reasonable compensation, expenses and disbursements of such agents,
representatives, accountants, experts and counsel as the Delaware Trustee may
employ in connection with the exercise and performance of its rights and duties
under this Trust Agreement, the Transaction Documents or any other agreement
contemplated by any of the foregoing, whether or not the transactions
contemplated hereby and thereby are consummated and to be paid as additional
reasonable compensation (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust) for any
extraordinary services rendered hereunder. Such compensation and reimbursement
shall be paid first by a transfer of funds from the Revenue Fund to the
Operating Fund pursuant to the Indenture to the extent and in the priority set
forth in the Indenture and then from the Payments as set forth in Section
4.01(b) hereof.
26
SECTION 7.02. INDEMNIFICATION. The Trust agrees, to the fullest extent
permitted by applicable law, to assume liability for, and hereby indemnifies and
holds harmless the Trust Company, its officers, directors and employees and the
Delaware Trustee from and against any and all liabilities, obligations, losses,
damages, taxes, claims, actions, suits, costs, expenses and disbursements
(including reasonable legal fees and expenses) of any kind and nature whatsoever
which may be imposed on, incurred by or asserted at any time against the Trust
Company, its officers, directors and employees or the Delaware Trustee in any
way relating to or arising out of the Trust Estate, any of the properties
included therein, the acceptance, termination or administration of the Trust
Estate or the Trust or any action or inaction of the Delaware Trustee or the
Trust hereunder or under the Transaction Documents or any other agreement
contemplated by any of the foregoing or any certificate of a Certificateholder,
except only that the Trust shall not be required so to assume liability for any
of the matters described in the seventh sentence of Section 6.01 hereof and
provided that the Trust and the Delaware Trustee agree that such assumption of
liability for liabilities, obligations, losses, damages, taxes, claims, actions,
such costs expenses or disbursements of any kind shall be direct and primary and
not that of a guarantor. If any item assumed by the Trust under this Section
7.02 is also subject to indemnification by another party to any of the documents
specifically referenced herein, the Trust Company or the Delaware Trustee shall
first make demand on such party for indemnification of any such item but shall
not be obligated to exhaust its remedies thereunder. The indemnities contained
in this Section 7.02 shall survive the resignation or removal of the Delaware
Trustee and shall survive the termination of the Trust and this Trust Agreement.
Such indemnification and reimbursement shall be paid solely from the Payments as
set forth in Section 4.01(b) hereof.
SECTION 7.03. CERTIFICATEHOLDERS TO ASSUME LIABILITY. To the extent not
paid pursuant to Section 4.01(b) and to the fullest extent permitted by
applicable law, the Certificateholders, pro rata based on their respective
Percentage Interests, shall pay or cause to be paid (or reimburse the Delaware
Trustee for) (a) all reasonable fees and expenses of the Delaware Trustee
hereunder, including, without limitation, the reasonable compensation, expenses
and disbursements of such agents, representatives, accountants, experts and
counsel as the Delaware Trustee may employ in connection with the exercise and
performance of its rights and duties under this Trust Agreement, the Transaction
Documents or any other agreement contemplated by any of the foregoing, whether
or not the transactions contemplated hereby and thereby are consummated and (b)
all amounts required to be paid by Section 7.02 and not paid by the Trust. The
liabilities and indemnities contained in this Section 7.03 are for the benefit
of the Trust Company, in its individual capacity and its officers, directors and
employees and shall not be construed as imposing any liabilities on any
Certificateholder or any affiliate thereof for any expense or liability of the
Trust to third parties. Neither the Certificateholders nor the Administrator
shall have liabilities for the expenses and liabilities of the Trust (except as
otherwise provided in this Trust Agreement with respect to the Trust Company, in
its individual capacity) and all such expenses and liabilities shall be payable
solely from the Trust Estate. Indemnification under this Article VII shall
survive the resignation of the Delaware Trustee or the termination of this Trust
Agreement.
27
ARTICLE VIII
TERMINATION OF INDENTURE
SECTION 8.01. TERMINATION IN GENERAL. After the termination of the
Indenture in accordance with its terms, this Trust Agreement and the Trust shall
terminate and be of no further force or effect upon the final distribution by
the Delaware Trustee of all monies or other property or proceeds of the Trust
Estate in accordance with the terms of this Trust Agreement. The bankruptcy,
liquidation, dissolution, death or incapacity of any Certificateholder shall not
(a) operate to terminate this Trust Agreement or the Trust, (b) entitle such
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for partition or winding up of all or
any part of the Trust or the Trust Estate or (c) otherwise affect the rights,
obligations and liabilities of the parties hereto. Subject to Section 8.02, none
of the Certificateholders shall be entitled to revoke or terminate the Trust.
SECTION 8.02. TERMINATION AT OPTION OF CERTIFICATEHOLDERS. Notwithstanding
Section 8.01 hereof, the Trust shall dissolve and the remaining assets of the
Trust shall be distributed to the Certificateholders pro rata in accordance with
their respective Percentage Interests and the Trust Statute, and this Trust
Agreement shall be of no further force and effect, upon the election of all of
the Certificateholders by written notice to the Delaware Trustee, if such notice
shall be accompanied by the written agreement (in form and substance
satisfactory to the Delaware Trustee) of all of the Certificateholders assuming
all the obligations of the Trust and the Delaware Trustee and releasing the
Delaware Trustee therefrom; provided, however, that until the termination of the
Indenture in accordance with its terms and full and final payment of all
Obligations outstanding thereunder, the Certificateholders may not so terminate
this Trust Agreement or the Trust.
SECTION 8.03. TERMINATION. Upon the completion of winding up of the Trust,
including the payment or the making reasonable provision for payment of all
obligations of the Trust in accordance with Section 3808(e) of the Trust
Statute, the Delaware Trustee shall file a certificate of cancellation with the
Delaware Secretary of State in accordance with Section 3810 of the Trust
Statute, at which time the Trust and this Agreement (other than Article VII)
shall terminate. The Administrator shall act as the liquidator of the Trust and
shall be responsible for directing the Delaware Trustee to take all required
actions in connection with winding up the Trust.
ARTICLE IX
SUCCESSOR DELAWARE TRUSTEES, CO-DELAWARE TRUSTEES
AND SEPARATE DELAWARE TRUSTEES
SECTION 9.01. RESIGNATION AND SUCCESSORS. The Delaware Trustee or any
successor may resign at any time without cause by giving at least 60 days' prior
written notice to the Certificateholders. The Required Certificateholders, may
at any time remove the Delaware Trustee without cause by written notice to the
Delaware Trustee, any such resignation or removal to be effective upon the
acceptance of appointment by a successor Delaware Trustee as hereinafter
provided. In the event of the resignation or removal of the Delaware Trustee,
the
28
Required Certificateholders shall appoint a successor by written instrument. If
a successor Delaware Trustee shall not have been appointed within 60 days after
the giving of such notice, the Delaware Trustee or the Required
Certificateholders may apply to any court of competent jurisdiction in the
United States to appoint a successor Delaware Trustee to act until such time, if
any, as a successor shall have been appointed as provided above. Any successor
so appointed by such court shall immediately and without further act be
superseded by any successor by the Required Certificateholders. Any successor,
however appointed, shall execute and deliver to its predecessor Delaware Trustee
an instrument accepting such appointment, and thereupon such successor, without
further act, shall become vested with all the estates, properties, rights,
powers, duties and trusts of the predecessor Delaware Trustee in the trusts
hereunder with like effect as if originally named "Delaware Trustee" herein; but
upon the written request of such successor, and upon payment to the predecessor
Delaware Trustee of all amounts due to it under this Trust Agreement, such
predecessor shall execute and deliver an instrument transferring to such
successor, upon the trusts herein expressed, all the estates, properties,
rights, powers, duties and trusts of such predecessor, and such predecessor
shall duly assign, transfer, deliver and pay over to such successor all moneys
or other property then held by such predecessor upon the trusts herein
expressed. Any right of the Certificateholders against the predecessor Delaware
Trustee, in its individual capacity, shall not be prejudiced by the appointment
of any successor Delaware Trustee and shall survive the termination of the
trusts created hereby. Any successor, however appointed, shall be a bank or a
trust company incorporated or organized and doing business within the United
States of America that is an Independent Trustee and either (a) having a
combined capital and surplus of at least $50,000,000 and being subject to
supervision or examination by federal banking authorities and (b) having (or
having its obligations hereunder guaranteed by a trust company that has) a
long-term unsecured debt rating of at least BBB- by Standard & Poor's, Baa3 by
▇▇▇▇▇'▇ or at least the equivalent rating from another nationally recognized
statistical rating organization, if there is such an institution willing, able
and legally qualified to perform the duties of the Delaware Trustee hereunder
upon reasonable or customary terms. Any corporation into which the Delaware
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
Delaware Trustee shall be a party, or any corporation to which substantially all
the corporate trust business of the Delaware Trustee may be transferred, shall,
subject to the preceding sentence, be the "Delaware Trustee" under this Trust
Agreement without further act. Any successor Delaware Trustee, however
appointed, shall be competent and qualified to (i) serve as a trustee of a
Delaware statutory trust, (ii) take all action required by the Delaware Trustee
pursuant to the Transaction Documents, this Trust Agreement and any other
agreement contemplated by any of the foregoing, and (iii) until termination of
the Indenture in accordance with its terms, be an Independent Trustee. There
shall be at all times at least one "Delaware Trustee" that meets the
requirements of the laws of the State of Delaware. Notwithstanding anything
herein to the contrary, the resignation or removal of the Delaware Trustee shall
not be effective unless and until the Required Certificateholders appoint a
successor Delaware Trustee meeting the requirements specified above.
SECTION 9.02. CO-TRUSTEES AND SEPARATE TRUSTEES. Whenever the Delaware
Trustee or the Required Certificateholders shall deem it necessary or prudent in
order either to conform to any law of any jurisdiction in which all or any part
of the Trust Estate shall be situated or to make any claim or bring any suit
with respect to the Trust Estate or the Indenture, or the Delaware Trustee or
the Required Certificateholders shall be advised by counsel satisfactory to it
29
or them that it is so necessary or prudent, the Delaware Trustee and the
Certificateholders shall execute and deliver an agreement supplemental hereto
and all other instruments and agreements, and shall take all other action,
necessary or proper to constitute one or more persons (and the Delaware Trustee
may appoint one or more of its officers) either as co-trustee or co-trustees
jointly with the Delaware Trustee of all or any part of the Trust Estate, or as
separate trustee or separate trustees of all or any part of the Trust Estate,
and to vest in such persons, in such capacity, such title to the Trust Estate or
any part thereof and such rights or duties as may be necessary or desirable, all
for such period and under such terms and conditions as are satisfactory to the
Delaware Trustee and the Required Certificateholders and, until the termination
of the Indenture in accordance with its terms as are reasonably satisfactory to
the Trustee. In case any co-trustee or separate trustee shall dissolve, die,
become incapable of acting, resign or be removed, the title to the Trust Estate
and all rights and duties of such co-trustee or separate trustee shall, so far
as permitted by law, vest in and be exercised by the Delaware Trustee, without
the appointment of a successor to such co-trustee or separate trustee.
SECTION 9.03. CHANGES IN IDENTITY OF A DELAWARE TRUSTEE. Upon the change of
identity of a Delaware Trustee or the addition or deletion of a Delaware
Trustee, whose identity is required to be disclosed under applicable law, the
Delaware Trustee or Delaware Trustees shall cause such filings to be made in
Delaware if required by the Trust Statute, and, at the direction of the
Certificateholders, shall cause such filings to be made, if any, as may be
required in accordance with the provisions of other applicable law, indicating
the change with respect to such Delaware Trustee's identity or such addition or
deletion of a Delaware Trustee.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. AMENDMENT.
(a) Subject to Section 2.09(b)(ix) hereof, this Trust Agreement may be
amended by a written instrument signed by the Delaware Trustee and the
Required Certificateholders to (i) cure any ambiguity or correct any
provision of the Trust Agreement or (ii) with the consent of each
Certificateholder the interests of which in its Certificates or the Trust
would be adversely affected in any material respect thereby, supplement,
add, eliminate, or change in any manner one or more provisions of this
Trust Agreement or modify in any manner the rights of the
Certificateholders; provided, however, that such action, as evidenced by an
Opinion of Counsel, shall not adversely affect in any material respect the
interests of the Trustee, or the Noteholders taken as a whole, except that
no such Opinion of Counsel will be required if each rating agency then
rating any of the Notes provides prior written confirmation that the
proposed amendment will not result in the withdrawal, downgrade or
qualifications of the then current ratings of the obligations; provided
further, if in the opinion of the Delaware Trustee any amendment adversely
affects any right, duty or liability of, or immunity or indemnity in favor
of, it or the Trust Company under this Trust Agreement, the Transaction
Documents or any of the documents contemplated hereby or thereby to which
it or the Trust is a party, or would cause or result in any conflict with
or breach of or default under any terms, conditions or provisions of its
charter documents or bylaws or any document
30
contemplated hereby or thereby to which it is a party, the Delaware Trustee
may in its sole discretion decline to enter into such amendment.
(b) Promptly after the execution of any such amendment or consent, the
Trust shall furnish written notification of the substance of such amendment
or consent to each Rating Agency then rating any of the Notes and the
Certificateholders.
(c) It shall not be necessary for the consent of the
Certificateholders pursuant to this Section 10.01 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 Certificateholders provided
for in this Trust Agreement) and of evidencing the authorization of the
execution thereof by the Certificateholders shall be subject to such
reasonable requirements as the Delaware Trustee may prescribe.
(d) Nothing contained in this Section 10.01 shall be construed as a
delegation by a Certificateholder to the Delaware Trustee of the right of
the Certificateholder to consent to any amendment, waiver, modification or
supplement to the provisions of this Trust Agreement.
(e) Prior to its execution of any amendment to this Agreement, the
Delaware Trustee shall be entitled to receive an Opinion of Counsel that
such amendment is permitted by the Transaction Documents and that all
conditions precedent have been met.
SECTION 10.02. NO TITLE TO TRUST ESTATE, ETC. Notwithstanding anything
herein to the contrary, and pursuant to Section 3805 of the Trust Statute, a
Certificateholder shall have only an undivided beneficial interest in the Trust
Estate. Each Certificateholder's indirect interest in the Trust Estate shall be
limited and governed in all respects by the provisions of this Trust Agreement.
The Certificateholders shall not have title to or any other interest in any part
of the Trust Estate. The Certificateholders shall be entitled to receive
distributions with respect to its individual beneficial ownership interest
herein only in accordance with this Trust Agreement. No transfer, by operation
of law or otherwise, of any right, title or interest of a Certificateholder in
and to the Trust Estate or hereunder shall operate to terminate this Trust
Agreement, the Trust or the trusts hereunder or entitle any successor or
transferee to an accounting or to the transfer to it of legal title to any part
of the Trust Estate. Any obligation of the Delaware Trustee hereunder or of the
Trust under the Indenture or any other document contemplated hereby or thereby
may be performed, under extraordinary circumstances, by one or more of the
Certificateholders and any such performance shall not be construed as a
revocation of the trusts created hereby. The Certificateholders shall not have
any liability for the performance of this Trust Agreement except as expressly
set forth herein.
SECTION 10.03. SALE OF THE TRUST ESTATE BY DELAWARE TRUSTEE IS BINDING. Any
sale or other conveyance of the Trust Estate or any part thereof by the Delaware
Trustee made pursuant to the terms of this Trust Agreement or the Indenture
shall bind the Certificateholders and shall be effective to transfer or convey
all right, title and interest of the Trust, the Delaware Trustee and the
Certificateholders in and to the Trust Estate or such part thereof. No purchaser
or other grantee shall be required to inquire as to the authorization,
necessity, expediency or regularity of
31
such sale or conveyance or as to the application of any sale or other proceeds
with respect thereto by the Delaware Trustee.
SECTION 10.04. LIMITATIONS ON RIGHTS OF OTHERS. Except as provided in
Section 10.10, nothing in this Trust Agreement, whether express or implied,
shall be construed to give to any person other than the Trust Company, the
Delaware Trustee, the Sponsor, the Certificateholders and the Indenture Trustee
any legal or equitable right, remedy or claim under the Trust or in respect of
this Trust Agreement, any covenants, conditions or provisions contained herein.
SECTION 10.05. NOTICES, ETC. All notices, requests, demands, consents and
other communications ("Notices") required or contemplated by the provisions
hereof shall refer on their face to this Trust Agreement (although failure to do
so shall not make such Notice ineffective), shall, unless otherwise stated
herein, be in writing and sent by telecopy, telegram, cable, mail (by certified
or registered mail, return receipt requested) or by reputable overnight courier
to the following addresses:
if to the Delaware Trustee: Wilmington Trust Company
▇▇▇▇▇▇ Square North
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Sponsor:
GMAC ELF LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. Page
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Indenture Trustee: To such Person and at such address as may
be specified in the Indenture.
or at such other address as shall be designated in written notice to the
Delaware Trustee by the Persons entitled to receive notices pursuant to this
Trust Agreement. All such notices shall be effective when received.
SECTION 10.06. SEVERABILITY. Any provision of this Trust Agreement which 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 10.07. SEPARATE COUNTERPARTS. This Trust 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.
32
SECTION 10.08. SUCCESSORS AND ASSIGNS. All covenants and agreements
contained herein shall be binding upon and inure to the benefit of the Delaware
Trustee, the Certificateholders, the Administrator and the Trustee and their
respective successors and assigns, all as herein provided. Any request, notice,
direction, consent, waiver or other writing or action by a Certificateholder
shall bind its successors and assigns.
SECTION 10.09. GOVERNING LAW. This Trust Agreement shall be governed by,
and construed in accordance with, the substantive laws of the State of Delaware
(without regard to conflict of law provisions) applicable to contracts to be
performed entirely within such state, including all matters of construction,
validity and performance.
SECTION 10.10. NO LIABILITY OF CERTIFICATEHOLDERS. Except as provided in
Sections 5.03, 6.07, 6.08 and Article VII, or in any other document, agreement
or instrument executed by the Certificateholders, neither the Certificateholders
nor the Administrator shall be liable for any losses, claims, damages,
liabilities and expenses of the Trust (including expenses, to the extent not
paid out of the Trust Estate).
SECTION 10.11. ACTIONS BY THE CERTIFICATEHOLDERS. Any actions required to
be taken by the Certificateholders shall, unless otherwise specified herein, be
taken with the consent of the Certificateholders then holding a majority of the
Percentage Interests.
[SIGNATURE PAGE TO FOLLOW]
33
IN WITNESS WHEREOF, the parties hereto have caused this Amended and Restated
Trust Agreement to be duly executed by their respective officers as of the day
and year first above written.
GMAC ELF LLC, as Sponsor
By
-----------------------------------------------
▇▇▇▇▇▇ ▇. Page, Vice President
WILMINGTON TRUST COMPANY, in its individual
capacity and in its capacity as Delaware Trustee
By
-----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
34
EXHIBIT A
CERTIFICATEHOLDERS' CAPITAL CONTRIBUTIONS
Sponsor Percentage Interest
------- -------------------
GMAC ELF LLC 100%
(Aggregate principal amount of
Trust Estate)
TOTAL 100%
EXHIBIT B
FORM OF TRUST PAYMENT DATE STATEMENT
For the Payment Date dated ______ ___, _____
GMAC Education Loan Funding Trust-I
(1) Amount received from the Indenture Trustee under the
Indenture on the Payment Date: $___________
(2) Amount, if any, deducted pursuant to Section 4.01 of
the Trust Agreement: $___________
(a) Trust Company and Delaware Trustee
fees and expenses: $___________
(b) Administrator fees and expenses: $___________
Total $___________
(3) Total amount to be remitted
to Certificateholders
(Item (1) minus Item (2)): $___________
EXHIBIT C
FORM OF CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY
NOT BE RESOLD OR TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND
LAWS OR IS SOLD OR TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM
REGISTRATION UNDER SUCH ACT AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN
ACCORDANCE WITH THE PROVISIONS OF THE TRUST AGREEMENT REFERRED TO HEREIN.
THE TRUST CERTIFICATE DOES NOT REPRESENT DEPOSITS OR OBLIGATIONS OF OR ANY
INTEREST IN THE ADMINISTRATOR OR WILMINGTON TRUST COMPANY.
Certificate No. ____________
Percentage Interest
evidenced by this Certificate: ____%
CERTIFICATE
Issued by GMAC Education Loan Funding Trust-I
This Certificate (the "Certificate") is not guaranteed or insured by any
governmental agency or instrumentality and does not represent deposits or
obligations of or any interest in the Administrator or Wilmington Trust Company.
This Certificate certifies that ______________ is the Noteholder (the
"Certificateholder") of the Percentage Interest evidenced by this Certificate
specified above in the GMAC Education Loan Funding Trust-I (the "Trust"). The
Trust was created pursuant to an initial Trust Agreement dated as of January 15,
2003, by and between
GMAC ELF LLC, as the Sponsor (the "Sponsor"), and
Wilmington Trust Company, a Delaware banking corporation, not in its individual
capacity but solely as Delaware Trustee on behalf of the Trust (the "Delaware
Trustee"), as amended and restated by that Amended and Restated Trust Agreement
dated as of March 1, 2003 (the "Trust Agreement") by and between the Sponsor,
and the Delaware Trustee. To the extent not defined herein, the capitalized
terms used herein have the meanings assigned in the Trust Agreement. This
Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, to which Trust Agreement the
Certificateholder by virtue of the acceptance hereof assents and by which such
Certificateholder is bound.
This Certificate has not and will not be registered under the Securities
Act and will not be listed on any exchange. In addition to other restrictions on
transfer set forth in the Trust Agreement, no transfer of this Certificate shall
be made to a Person or entity unless such transfer is made pursuant to an
effective registration statement under the Securities Act and any applicable
state securities laws or is exempt from the registration requirements under the
Securities Act and such laws.
In the event that a transfer is to be made in reliance upon an exemption
from the Securities Act and state securities laws, in order to assure compliance
with the Securities Act and such laws, the Certificateholder desiring to effect
such transfer and such Certificateholder's prospective transferee shall each
certify to the Trust, Delaware Trustee, the Administrator and the transferring
Certificateholder in writing the facts surrounding the transfer in substantially
the forms required by the Trust Agreement. Except in the case of a transfer as
to which the proposed transferee has provided a Rule 144A Letter with respect to
a Rule 144A transaction, there shall also be delivered to the Trust an Opinion
of Counsel to the effect that such transfer may be made pursuant to an exemption
from the Securities Act, which Opinion of Counsel shall not be an expense of the
Trust, the Delaware Trustee (unless it is the transferee from whom such opinion
is to be obtained) or of the Administrator. The Certificateholder desiring to
effect such a transfer shall, and does hereby agree to, indemnify the Trust, the
Delaware Trustee and the Administrator against any liability that may result if
the transfer is not so exempt or is not made in accordance with federal and
state securities laws.
No transfer, sale, pledge or other disposition of this Certificate shall be
made unless prior to such transfer, sale, pledge or other disposition, the Trust
shall have received either (i) a representation letter from the transferee of
such Certificate, acceptable to and in form and substance satisfactory to the
Delaware Trustee, to the effect that such a transferee is not an employee
benefit plan subject to Section 406 of ERISA or Section 4975 of the Code, or a
person acting on behalf of any such plan, or (ii) in the case of any Certificate
presented for registration in the name of an employee benefit plan subject to
ERISA or Section 4975 of the Code (or comparable provisions of any subsequent
enactments), or a trustee of any such plan or any other person acting on behalf
of any such plan, an Opinion of Counsel satisfactory to the Trust, the Delaware
Trustee and the Administrator to the effect that the purchase or holding of such
Certificate will not result in the Trust or the Trust Estate being deemed to be
"plan assets" and subject to the prohibited transaction provisions of ERISA and
the Code and will not subject the Trust, Delaware Trustee, the Administrator or
the transferring Certificateholder to any obligation in addition to those
undertaken in the Trust Agreement. Notwithstanding anything else to the contrary
herein, in the event any purported transfer of a Certificate is made without
delivery of the representation letter referred to above, such representation
shall be deemed to have been made by the transferee by its acceptance of such
Certificate. In addition, any purported transfer of a Certificate to or on
behalf of an employee benefit plan subject to ERISA or to the Code without the
delivery to the Trust, the Delaware Trustee and the Administrator of an Opinion
of Counsel as described above shall be void and of no effect.
This Certificate is one of a duly authorized issue of Certificates
representing a beneficial undivided ownership interest in the Trust created by
the Trust Agreement. This Certificate shall not be entitled to any benefit under
the Trust Agreement or be valid for any purpose unless manually countersigned by
an Authorized Officer of the Delaware Trustee.
The Certificateholder, by its acceptance of this Certificate, agrees that
it will look solely to the Trust Estate for payment hereunder and that neither
the Delaware Trustee nor the Administrator is liable to the Certificateholders
for any amount distributable under this Certificate or the Trust Agreement,
except as expressly provided in the Trust Agreement.
C-2
This Certificate does not purport to summarize the Trust Agreement and
reference is made to the Trust Agreement for the interests, rights and
limitations of rights, benefits, obligations and duties evidenced thereby, and
the rights, duties and immunities of the Delaware Trustee and the Administrator.
Pursuant to the terms of the Trust Agreement, a distribution on all
Certificates issued by the Trust will be made as provided in the Trust Agreement
to the Person in whose name such Certificates are then registered. Such
distribution will be made pro rata to the holders based on their respective
Percentage Interests.
Distributions on this Certificate shall be made by wire transfer to the
Certificateholder entitled thereto as its name appears on the Register. The
final distribution on the Certificate will be made in like manner, but only upon
presentment and surrender of such Certificate at the office or agency of the
Trust specified in the notice to Certificateholders of such final distribution.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Certificate is registrable in the
Register upon surrender of this Certificate for registration of transfer at the
office maintained by the Trust accompanied by a written instrument of transfer
in form satisfactory to the Trust duly executed by the Certificateholder hereof
or such Certificateholder's attorney duly authorized in writing, and thereupon
one or more new Certificates in authorized denominations and evidencing the same
aggregate ownership in the Certificates are issuable only as registered
Certificates without coupons in denominations specified in the Trust Agreement.
As provided in the Trust Agreement and subject to certain limitations therein
set forth, Certificates are exchangeable for new Certificates in authorized
denominations and evidencing the same aggregate Percentage Interest, as
requested by the Certificateholder surrendering the same.
The Trust shall keep or cause to be kept, at the office or agency
maintained pursuant to the Trust Agreement, a Register in which, subject to such
reasonable regulations as it may prescribe, the Registrar shall provide for the
registration of Certificates and of transfers and exchanges of Certificates as
herein provided.
Prior to due presentation of a Certificate for registration of transfer,
the Trust, Delaware Trustee, the Administrator and the Registrar may treat the
Person in whose name any Certificate is registered in the Register as the owner
of such Certificate for the purpose of receiving distributions pursuant to the
Trust Agreement and for all other purposes whatsoever, and none of the Trust,
Delaware Trustee, the Administrator and the Registrar shall be bound by any
notice to the contrary.
THE TRUST AGREEMENT CONSTITUTES THE CONTRACT GOVERNING THE RIGHTS AND
OBLIGATIONS OF THE CERTIFICATEHOLDERS. THIS CERTIFICATE IS ONLY EVIDENCE OF SUCH
CONTRACT AND, AS SUCH, IS SUBJECT IN ALL RESPECT SO THE TERMS OF THE TRUST
AGREEMENT, WHICH SUPERCEDES ANY INCONSISTENT STATEMENTS IN THIS CERTIFICATE.
C-3
IN WITNESS WHEREOF, the Trust has caused this Certificate to be duly
executed.
Dated: _____________, _________
GMAC Education Loan Funding Trust-I
By: Wilmington Trust Company, not in its
individual capacity but solely in its capacity as
Delaware Trustee of the GMAC Education Loan
Funding Trust-I:
By
-----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
This is one of the Certificates
referenced in the within-mentioned
Trust Agreement:
By
-------------------------------------------------
Authorized Signatory of Wilmington Trust Company,
not in its individual capacity but solely in its
capacity as Delaware Trustee of the GMAC Education
Loan Funding Trust-I
C-4
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
the Percentage Interest evidenced by the within Certificate and hereby
authorizes the transfer of registration of such Percentage Interest to assignee
on the Register of the Trust.
I (We) further direct the Delaware Trustee to issue a new Certificate of a
like denomination, to the above named assignee and deliver such Certificate to
the following address:
Dated:___________
--------------------------------------------------
Signature by or on behalf of assignor
DISTRIBUTION INSTRUCTIONS
The assignee should include the following for purposes of distribution:
Distributions shall be made, by wire transfer or otherwise, in immediately
available funds to______________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
_____for the account of ________________________________________________________
_____account number __________. Applicable statements should be mailed to ______
________________________________________________________________________________
________________________________________________________________________________
_____
This information is provided by ____________________, the assignee named above,
or ____________________, as its agent.
C-5
EXHIBIT D
FORM OF TRANSFEROR LETTER
[DATE]
[Name and Address of Addressees]
Re: GMAC Education Loan Funding Trust-I formed pursuant to the
Trust Agreement dated as of March 1, 2003 by and between GMAC ELF
LLC, as Initial Certificateholder and Sponsor, and Wilmington
Trust Company, as Delaware Trustee (the "Trust Agreement")
Transferor Certificates Number[s]: ___
Transferee Certificates Number[s]: ___
Ladies and Gentlemen:
In connection with our disposition of Certificates issued by the
above-referenced Trust, we certify that (a) we understand that such Certificates
have not been registered under the Securities Act of 1933, as amended (the
"Act"), and are being disposed by us in a transaction that is exempt from the
registration requirements of the Act, (b) the disposition of the Certificates is
subject to restrictions and requirements set forth in the Trust Agreement, and
(c) we have not transferred, pledged, offered, sold or otherwise disposed of any
Certificate or any interest in any Certificate to, or solicited offers to buy or
accept a transfer, pledge or other disposition of any Certificate or any
interest in any Certificate from, any person, or otherwise approved or
negotiated with any person with respect thereto, in a manner that would be
deemed, or taken any other action which would result in, a violation of Section
5 of the Act.
Very truly yours,
[NAME OF TRANSFEROR]
By
-----------------------------------------------
Authorized Officer
EXHIBIT E
FORM OF INVESTMENT LETTER
[DATE]
[Name and Address of Addressees]
Re: GMAC Education Loan Funding Trust-I formed pursuant to
the Trust Agreement dated as of March 1, 2003 by and between
GMAC ELF LLC, as Initial Certificateholder and Sponsor, and
Wilmington Trust Company, as Delaware Trustee (the "Trust
Agreement")
Transferor Certificates Number[s]: ___
Transferee Certificates Number[s]: ___
Ladies and Gentlemen:
In connection with our acquisition of Certificates issued by the
above-referenced Trust, we certify that (a) we understand that the Certificates
are not being, and have not been, registered under the Securities Act of 1933,
as amended (the "Act"), or any state securities laws and are being, and are
required to be, transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we are an
"accredited investor," as defined in Regulation D under the Act, and have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates and based
upon our present and projected net income and net worth, we believe that we can
bear the economic risk of an immediate or future loss of its entire investment
in the Certificates, (c) we have had the opportunity to ask questions of and
have receive answers from the Trust, the Delaware Trustee, the Administrator and
the transferring Certificateholder concerning the Trust and the purchase of the
Certificates and all matters relating thereto or any additional information
deemed necessary to our decision to purchase the Certificates, (d) we are
acquiring the Certificates for investment for our own account and not with a
view to any distribution of such Certificates (but without prejudice to our
right at all times to sell or otherwise dispose of the Certificates in
accordance with clause (h) below), (e) we have not transferred, pledged,
offered, sold or otherwise disposed of any Certificate or any interest in any
Certificate to, or solicited offers to buy or accept a transfer, pledge or other
disposition of any Certificate or any interest in any Certificate from, any
person, or otherwise approached or negotiated with any person with respect
thereto, in a manner that would be deemed, or taken any other action which would
result in, a violation of Section 5 of the Act, nor have we authorized or will
authorize any person to act in such manner with respect to any Certificate or
any interest in any Certificate (f) we are not prohibited from purchasing the
Certificates pursuant to the Trust Agreement, (g) we have reviewed and are
familiar with the form of the Certificates, including, without limitation, the
legends thereon, and (h) we will not sell, transfer or
otherwise dispose of any Certificates unless (i) such sale, transfer or other
disposition is made pursuant to an effective registration statement under the
Act or is exempt from such registration requirements, (ii) we have provided at
our expense such opinions of counsel (A) requested by the Delaware Trustee as
are satisfactory to the Delaware Trustee or (B) as are required by the Trust
Agreement, (ii) the purchaser or transferee of such Certificate has executed and
delivered to you a Letter to substantially the same effect as this Letter, and
(iii) the purchaser or transferee has otherwise complied with any conditions for
transfer set forth in the Trust Agreement.
Capitalized terms used in this Letter, and not defined herein shall have
the meanings set forth in the Trust Agreement.
Very truly yours,
[NAME OF TRANSFEREE]
By
----------------------------------------
Authorized Officer
E-2
EXHIBIT F
FORM OF RULE 144A LETTER
[DATE]
[Name and Address of Addressees]
Re: GMAC Education Loan Funding Trust-I formed pursuant to the
Trust Agreement dated as of March 1, 2003 by and between GMAC ELF
LLC, as Initial Certificateholder and Sponsor, and Wilmington
Trust Company, as Delaware Trustee (the "Trust Agreement")
Transferor Certificates Number[s]: ___
Transferee Certificates Number[s]: ___
Ladies and Gentlemen:
In connection with our disposition of Certificates issued by the above
referenced Trust, we certify that (a) we understand that the Certificates are
not being registered under the Securities Act of 1933, as amended (the "Act"),
or any state securities laws and are being transferred to us in a transaction
that is exempt from the registration requirements of the Act and any such laws,
(b) we have had the opportunity to ask questions of and receive answers from the
Delaware Trustee, the Administrator and the transferring Certificateholder
concerning the purchase of the Certificates and all matters relating thereto or
any additional information deemed necessary to our decision to purchase the
Certificates, (c) we are not prohibited from acquiring the Certificates pursuant
to the Trust Agreement, (d) we have not, nor has anyone acting on our behalf
offered, transferred, pledged, sold or otherwise disposed of the Certificates or
any interest in the Certificates to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Certificates or any interest in the
Certificates from, or otherwise approached or negotiated with respect to the
Certificates, any interest in the Certificates or any other similar security
with, any person in any manner, or made any general solicitation by means of
general advertising or in any other manner, or taken any other action, that
would constitute a distribution of the Certificates under the Securities Act or
that would render the disposition of the Certificates a violation of Section 5
of the Securities Act or require registration pursuant thereto, nor will act,
nor has authorized or will authorize any person to act, in such manner with
respect to the Certificates, (e) we are a "qualified institutional buyer" as
that term is defined in Rule 144A under the Securities Act and have completed
either of the forms of certification to that effect attached hereto as Annex 1
or Annex 2. We are aware that the sale to us is being made in reliance on Rule
144A. We are acquiring the Certificates for our own account or for resale
pursuant to Rule 144A and further, understand that such Certificates may be
resold, pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or
(ii) pursuant to a registration, or another exemption from registration, under
the Securities Act and in compliance with the requirements and restrictions set
forth in the Trust Agreement.
Very truly yours,
[NAME OF TRANSFEREE]
By:
------------------------------------
Authorized Officer
F-2
ANNEX 1 TO EXHIBIT F
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Letter to which this certification
relates with respect to the Certificates described therein:
i. As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive officer of the
Buyer.
ii. In connection with purchases by the Buyer, the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because (i) the Buyer owned
and/or invested on a discretionary basis $______(1) in securities (except for
the excluded securities referred to below) as of the end of the Buyer's most
recent fiscal year (such amount being calculated in accordance with Rule 144A)
and (ii) the Buyer satisfies the criteria in the category marked below.
CORPORATION, ETC. The Buyer is a corporation (other than a bank,
savings and loan association or similar institution), Massachusetts or
similar statutory trust, partnership, or charitable organization
described in Section 501(c)(3) of the Internal Revenue Code of 1986,
as amended.
BANK. The Buyer (a) is a national bank or banking institution
organized under the laws of any State, territory or the District of
Columbia, the business of which is substantially confined to banking
and is supervised by the State or territorial banking commission or
similar official or is a foreign bank or equivalent institution, and
(b) has an audited net worth of at least $25,000,000 as demonstrated
in its latest annual financial statements, A COPY OF WHICH IS ATTACHED
HERETO.
SAVINGS AND LOAN. The Buyer (a) is a savings and loan
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised and
examined by a State or Federal authority having supervision over any
such institutions or is a foreign savings and loan association or
equivalent institution and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest annual financial statements,
A COPY OF WHICH IS ATTACHED HERETO.
----------
(1) Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.
BROKER-DEALER. The Buyer is a dealer registered pursuant to
Section 15 of the Securities Exchange Act of 1934.
INSURANCE COMPANY. The Buyer is an insurance company whose
primary and predominant business activity is the writing of insurance
or the reinsuring of risks underwritten by insurance companies and
which is subject to supervision by the insurance commissioner or a
similar official or agency of a State, territory or the District of
Columbia.
STATE OR LOCAL PLAN. The Buyer is a plan established and
maintained by a State, its political subdivisions, or any agency or
instrumentality of the State or its political subdivisions, for the
benefit of its employees.
ERISA PLAN. The Buyer is an employee benefit plan within the
meaning of Title I of the Employee Retirement Income Security Act of
1974.
INVESTMENT ADVISOR. The Buyer is an investment advisor registered
under the Investment Advisors Act of 1940.
SMALL BUSINESS INVESTMENT COMPANY. Buyer is a small business
investment company licensed by the U. S. Small Business Administration
under Section 301(c) or (d) of the Small Business Investment Act of
1958.
BUSINESS DEVELOPMENT COMPANY. Buyer is a business development
company as defined in Section 202(a)(22) of the Investment Advisors
Act of 1940.
iii. The term "SECURITIES" as used herein DOES NOT INCLUDE (i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer is
a dealer, (iii) securities issued or guaranteed by the U. S. or any
instrumentality thereof, (iv) bank deposit notes and certificates of deposit,
(v) loan participations, (vi) repurchase agreements, (vii) securities owned but
subject to a repurchase agreement and (viii) currency, interest rate and
commodity swaps.
iv. For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the Buyer, the Buyer used the
cost of such securities to the Buyer and did not include any of the securities
referred to in the preceding paragraph, except (i) where the Buyer reports its
securities holdings in its financial statements on the basis of their market
value, and (ii) no current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding sentence applies,
the securities may be valued at market. Further, in determining such aggregate
amount, the Buyer may have included securities owned by subsidiaries of the
Buyer, but only if such subsidiaries are consolidated with the Buyer in its
financial statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed under the
Buyer's
F-1-2
direction. However, such securities were not included if the Buyer is a
majority-owned, consolidated subsidiary of another enterprise and the Buyer is
not itself a reporting company under the Securities Exchange Act of 1934, as
amended.
v. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the Certificates
are relying and will continue to rely on the statements made herein because one
or more sales to the Buyer may be in reliance on Rule 144A.
vi. Until the date of purchase of the Rule 144A Securities, the Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of the Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if the Buyer is a
bank or savings and loan is provided above, the Buyer agrees that it will
furnish to such parties updated annual financial statements promptly after they
become available.
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Print Name of Buyer
By:
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Name:
Title:
Date:
F-1-3
ANNEX 2 TO EXHIBIT F
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Buyer") hereby certifies as follows to the
parties listed in the Rule 144A Transferee Letter to which this certification
relates with respect to the Certificates described therein:
1. As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Buyer or, if the Buyer is a
"qualified institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933, as amended ("Rule 144A") because Buyer is part of a
Family of Investment Companies (as defined below), is such an officer of the
adviser to such Family of Investment Companies.
2. In connection with purchases by Buyer, the Buyer is a "qualified
institutional buyer" as defined in SEC Rule 144A because (i) the Buyer is an
investment company registered under the Investment Company Act of 1940, as
amended and (ii) as marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities (other than the
excluded securities referred to below) as of the end of the Buyer's most recent
fiscal year. For purposes of determining the amount of securities owned by the
Buyer or the Buyer's Family of Investment Companies, the cost of such securities
was used, except (i) where the Buyer or the Buyer's Family of Investment
Companies reports its securities holdings in its financial statements on the
basis of their market value, and (ii) no current information with respect to the
cost of those securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market.
The Buyer owned $_______ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
The Buyer is part of a Family of Investment Companies which owned
in the aggregate $_______ in securities (other than the excluded
securities referred to below) as of the end of the Buyer's most recent
fiscal year (such amount being calculated in accordance with Rule
144A).
3. The term "FAMILY OF INVESTMENT COMPANIES" as used herein means two
or more registered investment companies (or series thereof) that have the same
investment adviser or investment advisers that are affiliated (by virtue of
being majority owned subsidiaries of the same parent or because one investment
adviser is a majority owned subsidiary of the other).
4. The term "SECURITIES" as used herein does not include (i)
securities of issuers that are affiliated with the Buyer or are part of the
Buyer's Family of Investment Companies, (ii) securities issued or guaranteed by
the U.S. or any instrumentality thereof, (iii) bank deposit notes and
certificates of deposit, (iv) loan participations, (v) repurchase agreements,
(vi) securities owned but subject to a repurchase agreement and
(vii) currency, interest rate and commodity swaps.
5. The Buyer is familiar with Rule 144A and understands that the
parties listed in the Rule 144A Transferee Letter to which this certification
relates are relying and will continue to rely on the statements made herein
because one or more sales to the Buyer will be in reliance on Rule 144A. In
addition, the Buyer will only purchase for the Buyer's own account.
6. Until the date of purchase of the Certificates, the undersigned
will notify the parties listed in the Rule 144A Transferee Letter which this
certification relates of any changes in the information and conclusions herein.
Until such notice is given, the Buyer's purchase of the Certificates will
constitute a reaffirmation of this certification by the undersigned as of the
date of such purchase.
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Print Name of Buyer or Adviser
By:
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Name:
Title:
IF AN ADVISER:
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Print Name of Buyer
Date:__________
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