EXHIBIT 4.2
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ELIGIBLE LENDER TRUST AGREEMENT
between
GMAC EDUCATION LOAN FUNDING TRUST-I
AS ISSUER
and
ZIONS FIRST NATIONAL BANK
AS ELIGIBLE LENDER TRUSTEE
Dated as of March 1, 2003
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INTENT OF THE PARTIES HERETO
Section 1.01. Definitions................................................................................2
Section 1.02. Intent of the Parties Hereto...............................................................3
ARTICLE II
ACQUISITION OF ELIGIBLE LOANS
Section 2.01. Acquisition................................................................................4
Section 2.02. Revocation and Termination.................................................................4
ARTICLE III
COVENANTS
Section 3.01. Administration.............................................................................4
Section 3.02. Enforcement of the Trustee Guarantee Agreements............................................5
Section 3.03. Assignment of Eligible Loans; Collection of Payments With Respect to Eligible Loans........5
Section 3.04. Enforcement of Financed Eligible Loans.....................................................5
Section 3.05. Enforcement of Servicing Agreements........................................................5
Section 3.06. Authority of Eligible Lender Trustee.......................................................5
Section 3.07. Power of Attorney to Issuer................................................................6
ARTICLE IV
CONCERNING THE ELIGIBLE LENDER TRUSTEE
Section 4.01. Acceptance of the Trusts...................................................................6
Section 4.02. Recitals of Others.........................................................................6
Section 4.03. Taxes......................................................................................7
Section 4.04. Eligible Lender Trustee May Act Through Agents.............................................7
Section 4.05. Indemnification of Eligible Lender Trustee.................................................7
Section 4.06. Eligible Lender Trustee's Right to Reliance................................................7
Section 4.07. Compensation of Eligible Lender Trustee....................................................8
Section 4.08. Eligible Lender Trustee Eligibility........................................................8
Section 4.09. Resignation of Eligible Lender Trustee.....................................................9
Section 4.10. Removal of Eligible Lender Trustee.........................................................9
Section 4.11. Successor Eligible Lender Trustee..........................................................9
Section 4.12. Limitation with Respect to Examination of Reports..........................................9
Section 4.13. Additional Covenants of Eligible Lender Trustee...........................................10
Section 4.14. Authority of Eligible Lender Trustee......................................................10
Section 4.15. Sale of Eligible Loans....................................................................11
ARTICLE V
MISCELLANEOUS
Section 5.01.
Eligible Lender Trust Agreement Binding upon Successors or Assigns of Eligible
Lender Trustee and Issuer.................................................................11
Section 5.02. Effect of Legal Holidays..................................................................11
Section 5.03. Partial Invalidity........................................................................11
Section 5.04. Notices...................................................................................11
Section 5.05. Law and Place of Enforcement of
Eligible Lender Trust Agreement; Construction.............12
Section 5.06. Effect of Article and Section Headings and Table of Contents..............................12
Section 5.07. Amendments................................................................................12
Section 5.08. Limitation of Liability...................................................................12
Section 5.09. No Petition...............................................................................12
A-2
ELIGIBLE LENDER TRUST AGREEMENT
THIS
ELIGIBLE LENDER TRUST AGREEMENT, dated as of March 1, 2003 (this
"
Eligible Lender Trust Agreement") is entered into between GMAC EDUCATION LOAN
FUNDING TRUST-I, a Delaware statutory trust (the "Issuer") and ZIONS FIRST
NATIONAL BANK, a national banking association organized and operating under the
laws of the United States of America, as eligible lender trustee (the "Eligible
Lender Trustee"):
W I T N E S S E T H:
WHEREAS, the Issuer is conducting and administering a program of acquiring
student loans incurred under the Higher Education Act, under which it issues
notes or other obligations to finance the purchase of such loans; and
WHEREAS, certain contracts and agreements have been and will be entered
into with the Secretary and the Guarantee Agencies to provide an insurance or
guarantee program for student loans incurred under the Higher Education Act; and
WHEREAS, the Guarantee Agencies have entered into agreements with the
Secretary for the payment by the Secretary of amounts authorized to be paid
pursuant to the Higher Education Act, including reimbursement of certain amounts
to be paid upon certain defaulted student loans guaranteed by such Guarantee
Agencies and interest subsidy payments to holders of loans guaranteed by such
Guarantee Agencies; and
WHEREAS, the Eligible Lender Trustee is willing to act as the "eligible
lender" on behalf of the Issuer so that the Issuer may conduct and administer
its program of acquiring Eligible Loans; and
WHEREAS, upon the execution and delivery of this
Eligible Lender Trust
Agreement, the Issuer will acquire Eligible Loans for which the Eligible Lender
Trustee shall be the legal owner and the Issuer shall be the beneficial owner
and the Issuer will finance the acquisition of additional Eligible Loans which
will become Financed Eligible Loans for which the Eligible Lender Trustee shall
be the legal owner and the Issuer shall be the beneficial owner, all of which
Financed Eligible Loans are or will be held under the Indenture; and
WHEREAS, the Eligible Lender Trustee, as trustee for this trust of which
the Issuer is the sole beneficiary, shall be legal owner of the Financed
Eligible Loans and is an "eligible lender" under the Higher Education Act, and
the Issuer shall be the beneficial owner of such Financed Eligible Loans;
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
That the Issuer and the Eligible Lender Trustee in consideration of the
premises and of other good and lawful consideration, the receipt of which is
hereby acknowledged, and the performance and observance of all of the covenants
and conditions herein contained, have executed and delivered this
Eligible
Lender Trust Agreement, and by these presents the Issuer does hereby assign,
transfer, set over and confirm unto the Eligible Lender Trustee, its successor
or successors and its or their assigns, for the benefit of the Issuer, the Trust
Estate, as defined in the Indenture:
ARTICLE I.
DEFINITIONS AND INTENT OF THE PARTIES HERETO
SECTION 1.01. DEFINITIONS. Unless the context shall clearly indicate some
other meaning or may otherwise require, the capitalized terms used herein shall,
for all purposes of this
Eligible Lender Trust Agreement and of any agreement or
other instrument amendatory hereof or supplemental hereto, have the meanings
herein specified or have the meanings assigned to them in the Indenture:
"ELIGIBLE LENDER" means any "eligible lender," as defined in the Higher
Education Act, and which has received an eligible lender designation from the
Secretary or from the Guarantee Agency with respect to Eligible Loans.
"EXPRESS DUTIES" means all duties of the Eligible Lender Trustee set forth
herein, including, but not limited to, instructions of the Issuer set forth in
Issuer Requests, Issuer Orders, Issuer Certificates and Issuer Consents.
"FEDERAL CONTRACTS" means, collectively, any agreement between any
Guarantee Agency and the Secretary of Education providing for the payment by the
Secretary of Education of amounts authorized to be paid pursuant to the Higher
Education Act, including but not necessarily limited to reimbursement of amounts
paid or payable upon defaulted Financed Eligible Loans and other student loans
guaranteed by any Guarantee Agency and federal interest subsidy payments and
Special Allowance Payments, if applicable, to holders of qualifying student
loans guaranteed by any Guarantee Agency.
"FISCAL YEAR" means the fiscal year of the Issuer which presently begins
January 1 of each year and ends December 31 of the following year.
"HIGHER EDUCATION ACT" means Title IV, Parts B, F and G of the Higher
Education Act of 1965, as amended or supplemented from time to time, and all
regulations and guidelines promulgated thereunder.
"INDENTURE" means the Indenture of Trust dated as of March 1, 2003, between
the Issuer and the Indenture Trustee, as it may be supplemented or amended.
"INDENTURE TRUSTEE" means Zions First National Bank, in its capacity as
trustee under the Indenture, and its successors and assigns.
"INTEREST BENEFIT PAYMENTS" means interest payments on Eligible Loans
received pursuant to the Higher Education Act and an agreement with the federal
government, or any similar payments.
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"ISSUER REPRESENTATIVE" means those individuals authorized to act for the
Administrator, as set forth in a list of Authorized Officers delivered by the
Administrator to the Indenture Trustee, as such list may be amended from time to
time by the Administrator.
"ISSUER REQUEST," "ISSUER ORDER," "ISSUER CERTIFICATE" and "ISSUER CONSENT"
mean, respectively, a written request, order, certificate or consent signed in
the name of the Issuer by an Issuer Representative and delivered to the Eligible
Lender Trustee by overnight or same-day mail or courier, facsimile, telegram or
other electronic means or by hand delivery.
"PERSON" means any individual, corporation, partnership, joint venture,
association, joint stock corporation, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PROGRAM" means shall mean the Issuer's program for the purchase of
Eligible Loans, as the same may be modified from time to time.
"SECRETARY OF EDUCATION" or "SECRETARY" means the Commissioner of Education
and the Secretary of the United States Department of Education (who succeeded to
the functions of the Commissioner of Education pursuant to the Department of
Education Organization Act), or any successor to the functions thereof under the
Higher Education Act.
"SERVICER" shall have the meaning assigned to such term in the Indenture.
"SERVICING AGREEMENT" shall have the meaning assigned to such term in the
Indenture.
"SPECIAL ALLOWANCE PAYMENTS" shall have the meaning assigned to such term
in the Indenture.
"TRUSTEE GUARANTEE AGREEMENT" means the Eligible Lender Trustee's Guarantee
Agreement with each Guaranty Agency with respect to the Financed Eligible Loans.
SECTION 1.02. INTENT OF THE PARTIES HERETO. This
Eligible Lender Trust
Agreement and all documents, agreements, understandings and arrangements
relating to this Eligible Lender Trust Agreement which are executed by the
Eligible Lender Trustee have been executed by the Eligible Lender Trustee solely
for the purpose of having the legal title to the Financed Eligible Loans held by
an "eligible lender" under the Higher Education Act, and the Issuer hereby
agrees that the Eligible Lender Trustee shall be accorded protection
satisfactory to the Eligible Lender Trustee for its limited role herein in
holding legal title to the Financed Eligible Loans pursuant to the indemnity
herein and that the Eligible Lender Trustee (its officers, directors, employees
and agents) shall not have any liability thereunder or hereunder except as
expressly set forth herein, including, without limitation, liability which may
be incurred as a result of actions or inactions of the Issuer and any Servicer,
subject to the terms of applicable laws, rules and regulations. All indicia of
ownership, including but not limited to the management, acquisition, sale,
investment transfer or collection of income and revenue on the Eligible Loans
shall be vested in the Issuer. The Issuer agrees that it will not seek recourse
or commence any action against the Eligible Lender Trustee (or its officers,
directors, employees or agents) or any of their personal assets for the
performance or payment of any obligation thereunder or hereunder; provided that
the Eligible Lender Trustee shall be liable for its negligence and willful
misconduct in the performance of its
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Express Duties hereunder. The parties hereto intend that this Eligible Lender
Trust Agreement is for their benefit only and not for the benefit of any third
party, except that the Issuer shall assign its interest in this Eligible Lender
Trust Agreement to the Indenture Trustee pursuant to the Indenture. The parties
hereto agree that each and every provision of this Eligible Lender Trust
Agreement is subject to this paragraph.
ARTICLE II
ACQUISITION OF ELIGIBLE LOANS
SECTION 2.01. ACQUISITION. The Eligible Lender Trustee shall, from time to
time, acquire Eligible Loans upon receipt of an Issuer Request which shall
contain a certification that the loans to be acquired are Eligible Loans and
which shall identify such loans, with funds provided to the Eligible Lender
Trustee pursuant to the Indenture. Such Issuer Request shall contain a
certification that the loans to be acquired are Eligible Loans under the
Indenture from which such funds are obtained, shall identify such loans, and
shall be substantially in the form attached as Exhibit A to the Indenture. The
Eligible Lender Trustee will hold legal title to such Financed Eligible Loans in
trust hereunder for the sole benefit of the Issuer, but such interest of the
Issuer (and the Eligible Lender Trustee's legal interest therein) have and will
be assigned to the Indenture Trustee under the Indenture. The Issuer hereby
represents and warrants it shall direct the Eligible Lender Trustee to acquire
only Eligible Loans that are Guaranteed by a Guarantee Agency with respect to
which the Eligible Lender Trustee has entered into a Trustee Guarantee
Agreement. Attached, as Exhibit A (which may be amended and supplemented from
time to time upon the written direction of the Issuer) is a listing of the Trust
Guarantee Agreements. The Eligible Lender Trustee shall, to the extent it has
such knowledge within its corporate trust department, notify the Issuer with
respect to rejections and repurchases of such Financed Eligible Loans.
SECTION 2.02. REVOCATION AND TERMINATION. Subject to Section 4.10 hereof,
the Issuer may, by Issuer Order delivered to the Eligible Lender Trustee, revoke
this Eligible Lender Trust Agreement in whole or in part. Upon receipt of such
Issuer Order, the Eligible Lender Trustee shall transfer to the order of the
Issuer all amounts held hereunder, and the trust created hereby shall thereupon
terminate (except that the obligations of the Issuer under Section 4.05 hereof
shall survive such termination).
ARTICLE III
COVENANTS
SECTION 3.01. ADMINISTRATION. The Issuer shall cause the Trust Estate to be
administered so as to allow the Eligible Lender Trustee to obtain the benefits
of the Trustee Guarantee Agreements and Federal Contracts and the right to
receive Interest Benefit Payments and Special Allowance Payments with respect to
Financed Eligible Loans. The Eligible Lender Trustee shall have no liability for
actions taken at the direction of the Issuer. The Eligible Lender Trustee shall
have no liability for any action or inaction hereunder, except for its
negligence or willful misconduct in the performance of its Express Duties
hereunder. The Eligible Lender Trustee shall not be responsible for any action
or inaction of the Issuer or any
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Servicer under this Eligible Lender Trust Agreement. Except as specifically set
forth herein, the Eligible Lender Trustee shall have no obligation to
administer, service or collect the Financed Eligible Loans or to maintain or
monitor the administration, servicing or collection of the Financed Eligible
Loans.
SECTION 3.02. ENFORCEMENT OF THE TRUSTEE GUARANTEE AGREEMENTS. The Issuer
will be responsible for dealing with the Guarantee Agencies with respect to the
rights, benefits and obligations under Trustee Guarantee Agreements as they
relate to Financed Eligible Loans.
SECTION 3.03. ASSIGNMENT OF ELIGIBLE LOANS; COLLECTION OF PAYMENTS WITH
RESPECT TO ELIGIBLE LOANS. The Issuer shall diligently or cause a Servicer to
diligently make every effort to make claim for and to collect all principal and
interest payments on all the Financed Eligible Loans, all grants, subsidies,
donations, insurance payments, Interest Benefit Payments and Special Allowance
Payments relating to Financed Eligible Loans and all Guarantee payments on
defaulted Financed Eligible Loans as required under the Indenture with respect
to Financed Eligible Loans. The Issuer shall cause the Servicer to assign such
Financed Eligible Loans to the Eligible Lender Trustee for payment of Guarantee
benefits at the earliest practicable date permitted under applicable law and
regulations. The Issuer will comply with the Higher Education Act and all
statutes, rules and regulations which apply to its Program and to the Financed
Eligible Loans.
The Issuer shall take all reasonable actions within its power to cause the
Secretary to make all Interest Benefit Payments and Special Allowance Payments
with respect to the Financed Eligible Loans, all payments to be made with
respect to the Financed Eligible Loans by the obligors thereof and all payments
to be made under Guarantees of Financed Eligible Loans.
SECTION 3.04. ENFORCEMENT OF FINANCED ELIGIBLE LOANS. The Issuer shall
cause to be diligently enforced, and shall cause to be taken all reasonable
steps, actions and proceedings necessary or appropriate for the enforcement of
all terms, covenants and conditions of all Financed Eligible Loans and
agreements in connection therewith, including the prompt payment of all
principal and interest payments and all other amounts due thereunder, as
provided in the Indenture.
SECTION 3.05. ENFORCEMENT OF SERVICING AGREEMENTS. The Issuer shall cause
to be diligently enforced, and shall cause to be taken all reasonable steps,
actions and proceedings necessary or appropriate for the enforcement of all
terms, covenants and conditions of all Servicing Agreements, including the
prompt payment of all principal and interest payments and all other amounts due
thereunder, including all grants, subsidies, donations, insurance payments,
Interest Benefit Payments and Special Allowance Payments on Financed Eligible
Loans, and all Guarantee payments on defaulted Financed Eligible Loans, as
provided in the Indenture.
The Issuer shall, or shall cause the Servicer to, at least annually (and
upon the written request of the Eligible Lender Trustee) provide the Eligible
Lender Trustee with a list of all Eligible Loans originated, acquired,
maintained or held under Eligible Lender Number _______.
SECTION 3.06. AUTHORITY OF ELIGIBLE LENDER TRUSTEE. Notwithstanding
anything herein, the Eligible Lender Trustee has any and all power, right and
authority, where permitted by law
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and regulation, to realize on any Guarantee of the Financed Eligible Loans under
the Trustee Guarantee Agreement.
SECTION 3.07. POWER OF ATTORNEY TO ISSUER. The Eligible Lender Trustee
hereby does make, constitute and appoint the Issuer as its true and lawful agent
and attorney for it and in its name, place and stead, from time to time, at all
times until this Eligible Lender Trust Agreement is terminated, to exercise and
enforce the rights of the Eligible Lender Trustee to make claim for and collect
all payments due on Financed Eligible Loans pursuant to Section 3.03 hereof
(provided that such payments in respect of collections, go to the Indenture
Trustee) and the Issuer does hereby accept such appointment to exercise and
enforce such rights.
ARTICLE IV
CONCERNING THE ELIGIBLE LENDER TRUSTEE
SECTION 4.01. ACCEPTANCE OF THE TRUSTS. The Issuer hereby appoints the
Eligible Lender Trustee to act as its "eligible lender trustee" to hold legal
title to the Financed Eligible Loans pursuant to the Higher Education Act, the
Indenture and this Eligible Lender Trust Agreement. The Eligible Lender Trustee
shall hold legal title to the Financed Eligible Loans, for the benefit of the
Issuer, subject to the pledge of the Indenture, pursuant to the Higher Education
Act, the Indenture and this Eligible Lender Trust Agreement. The Eligible Lender
Trustee hereby accepts the trusts granted to it by this Eligible Lender Trust
Agreement and agrees to perform said trusts, but only upon and subject to the
following express terms and conditions:
(a) The Eligible Lender Trustee undertakes to perform such
duties and only such duties as are specifically set forth in this Eligible
Lender Trust Agreement, and no implied covenants or obligations shall be
read into this Eligible Lender Trust Agreement against the Eligible Lender
Trustee.
(b) In the absence of bad faith on its part, the Eligible Lender
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Eligible Lender Trustee and conforming to the
requirements of this Eligible Lender Trust Agreement; but in the case of
any such certificates or opinions which by any provisions hereof are
specifically required to be furnished to the Eligible Lender Trustee, the
Eligible Lender Trustee shall be under a duty to examine the same to
determine whether or not they conform as to form with the requirements of
this Eligible Lender Trust Agreement and whether or not they contain the
statements required under this Eligible Lender Trust Agreement.
(c) The Eligible Lender Trustee, in exercising the rights and
powers vested in it by this Eligible Lender Trust Agreement, shall use the
same degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
SECTION 4.02. RECITALS OF OTHERS. The recitals, statements, and
representations of the Issuer set forth herein shall be taken as the statements
of the Issuer, and the Eligible Lender Trustee assumes no responsibility for the
correctness of the same or for inquiring with respect
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thereto. The Eligible Lender Trustee makes no representations as to the title of
the Issuer in Financed Eligible Loans, and the Eligible Lender Trustee shall
incur no responsibility in respect of such matters.
SECTION 4.03. TAXES. The Eligible Lender Trustee shall not be liable for
failure of the Issuer to pay any tax or taxes in respect of any property, or any
part thereof, or the income therefrom or otherwise, nor shall the Eligible
Lender Trustee be under any duty in respect of any tax which may be assessed
against it in respect of such property or the Financed Eligible Loans.
SECTION 4.04. ELIGIBLE LENDER TRUSTEE MAY ACT THROUGH AGENTS. The Eligible
Lender Trustee may execute any of the trusts or powers hereof and perform any
duty hereunder, either itself or by or through its attorneys, agents, or
employees, and it shall not be answerable or accountable for any default,
neglect, or misconduct of any such attorneys, agents, or employees, if
reasonable care has been exercised in the appointment, supervision, and
monitoring of the work performed.
SECTION 4.05. INDEMNIFICATION OF ELIGIBLE LENDER TRUSTEE. Subject to the
provisions and the limitations set forth in the Indenture, the Issuer agrees to
indemnify the Eligible Lender Trustee for, and to hold it harmless against, any
loss, liability, or expenses incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of
this Eligible Lender Trust Agreement (including without limitation any such
losses, liability or expenses arising from a breach of a representation,
warranty or covenant in any Servicing Agreement or Trustee Guarantee Agreement),
including the costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder.
SECTION 4.06. ELIGIBLE LENDER TRUSTEE'S RIGHT TO RELIANCE. The Eligible
Lender Trustee shall be protected in acting upon any notice, resolution,
request, consent, order, certificate, report, appraisal, opinion, or other paper
or document believed by it to be genuine and to have been signed or presented by
the proper party or parties. The Eligible Lender Trustee may, whenever it
determines in good faith that it must seek further determination or
interpretation of any matters hereunder, consult with experts and with counsel
(who may be counsel for the Issuer, the Indenture Trustee or the Eligible Lender
Trustee), and the opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken or suffered, and in
respect of any determination made by it hereunder in good faith and in
accordance with the opinion of such counsel.
Whenever in the administration hereof the Eligible Lender Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering, or omitting any action hereunder, the Eligible Lender Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon a certificate signed by an Issuer Representative.
The Eligible Lender Trustee shall not be liable for any action taken,
suffered, or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it hereby; provided,
however, that the Eligible Lender Trustee shall be liable for its negligence or
willful misconduct in taking such action.
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The Eligible Lender Trustee is authorized to sell, assign, transfer, convey
or repurchase Eligible Loans in accordance with this Eligible Lender Trust
Agreement and the Indenture, provided that no such Eligible Loan may be sold,
assigned, transferred, or conveyed to any Person who is not an "eligible lender"
under the Higher Education Act. The Eligible Lender Trustee is further
authorized to enter into agreements with other Persons, in its capacity as
Eligible Lender Trustee, in order to carry out or implement the terms and
provisions of this Eligible Lender Trust Agreement.
SECTION 4.07. COMPENSATION OF ELIGIBLE LENDER TRUSTEE. The Issuer shall pay
to the Eligible Lender Trustee, from the Revenue Fund and as defined in the
definition of Trustee Fees, reasonable compensation for all services, reasonable
fees, expenses (including counsel fees), charges and other disbursements
incurred in and about the administration and execution of this Eligible Lender
Trust Agreement. The Eligible Lender Trustee may not change the amount of its
annual compensation with respect to this Eligible Lender Trust Agreement without
giving the Issuer, the Administrator and the Rating Agencies at least 90 days'
written notice prior to the beginning of a Fiscal Year.
SECTION 4.08. ELIGIBLE LENDER TRUSTEE ELIGIBILITY.
(a) There shall at all times be an Eligible Lender Trustee
hereunder which shall be a corporation or national bank association
organized and doing business under the laws of the United States of America
or of any state thereof, authorized under such laws to exercise corporate
trust powers and shall be an Eligible Lender under the Higher Education Act
and the regulations of any Guarantee Agency and acceptable to the Issuer.
(b) The Eligible Lender Trustee, by the execution hereof,
covenants, represents and agrees that:
(1) it is an Eligible Lender as defined in the Higher
Education Act and has received an Eligible Lender designation and
that it will remain an Eligible Lender;
(2) it shall use eligible lender number ______, which
shall be the Eligible Lender Trustee's eligible lender number for
Financed Eligible Loans which it owns as legal owner for the Issuer
as beneficial owner hereunder; and
(3) it shall be responsible for the preservation of the
supporting documents submitted to and received by it relating to
Financed Eligible Loans, if any; provided, however, that the
separate Servicer of the Financed Eligible Loans shall be
responsible for such preservation of the Financed Eligible Loans
and supporting documents in accordance with the Custodian
Agreements to the extent and during the period that the Servicer
holds such documents.
(c) The parties hereto recognize that the Eligible Lender
Trustee has contractual obligations with the Guarantee Agency which must be
maintained and preserved in order for the Eligible Lender Trustee to remain
as Eligible Lender Trustee, and the Eligible Lender Trustee agrees to
maintain the same.
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SECTION 4.09. RESIGNATION OF ELIGIBLE LENDER TRUSTEE. The Eligible Lender
Trustee and any successor to the Eligible Lender Trustee may resign and be
discharged from the trust created by this Eligible Lender Trust Agreement by
giving to the Issuer notice in writing which notice shall specify the date on
which such resignation is to take effect; provided, however, that such
resignation shall only take effect on the day specified in such notice if a
successor Eligible Lender Trustee shall have been appointed pursuant to Section
4.11 hereof (and is qualified to be the Eligible Lender Trustee under the
requirements of Section 4.11 hereof). If no successor Eligible Lender Trustee
has been appointed by the date specified or within a period of 90 days from the
receipt of the notice by the Issuer, the Eligible Lender Trustee may (a) appoint
a temporary successor Eligible Lender Trustee having the qualifications provided
in Section 4.11 hereof or (b) request a court of competent jurisdiction to (i)
require the Issuer to appoint a successor, as provided in Section 4.11 hereof,
within three days of the receipt of citation or notice by the court, or (ii)
appoint an Eligible Lender Trustee having the qualifications provided in Section
4.11 hereof. In no event may the resignation of the Eligible Lender Trustee be
effective until a qualified successor Eligible Lender Trustee shall have been
selected and appointed. In the event a temporary successor Eligible Lender
Trustee is appointed pursuant to clause (a) above, the Issuer may remove such
temporary successor Eligible Lender Trustee and appoint a successor thereto
pursuant to Section 4.11 hereof.
SECTION 4.10. REMOVAL OF ELIGIBLE LENDER TRUSTEE. The Eligible Lender
Trustee or any successor Eligible Lender Trustee may be removed at any time by
the Issuer upon payment to the Eligible Lender Trustee so removed of all money
then due to it hereunder, as set forth in Section 4.07 hereof, and appointment
of a successor thereto by the Issuer and acceptance thereof by said successor.
In the event an Eligible Lender Trustee (or successor Eligible Lender Trustee)
is removed such removal shall not become effective until the Issuer shall have
appointed a successor and the successor Eligible Lender Trustee has accepted
appointment as such.
SECTION 4.11. SUCCESSOR ELIGIBLE LENDER TRUSTEE. In case at any time the
Eligible Lender Trustee or any successor Eligible Lender Trustee shall resign,
be dissolved, or otherwise shall be disqualified to act or be incapable of
acting, or in case control of the Eligible Lender Trustee or of any successor
Eligible Lender Trustee or of its officers shall be taken over by any public
officer or officers, a successor Eligible Lender Trustee may be appointed by the
Issuer by an instrument in writing.
Every successor Eligible Lender Trustee shall be a bank or trust company in
good standing, organized and doing business under the laws of the United States
or of a state therein, which has a reported capital and surplus of not less than
$20,000,000, be authorized under the law to exercise corporate trust powers, be
subject to supervision or examination by a federal or state agency, and be an
Eligible Lender.
SECTION 4.12. LIMITATION WITH RESPECT TO EXAMINATION OF REPORTS. Except as
expressly provided in this Eligible Lender Trust Agreement, the Eligible Lender
Trustee shall be under no duty to examine any report or statement or other
document required or permitted to be filed with it by the Issuer. If the
Eligible Lender Trustee receives any notice or communication of any type,
whether via telephone, facsimile, personal delivery or otherwise, it shall
notify the Issuer by whatever means it chooses, which notice shall be confirmed
in writing, as soon as practicable at the notice address for the Issuer set
forth in Section 5.04. The Eligible Lender
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Trustee shall have no duty to verify whether the information contained in such
notice it receives is accurate, material or relevant, its only duty to pass on
any such notice that it receives.
The Issuer covenants, represents and agrees that it shall, on behalf of the
Eligible Lender Trustee, be responsible for the preservation of the supporting
documents submitted to and received by it relating to the Eligible Loans.
SECTION 4.13. ADDITIONAL COVENANTS OF ELIGIBLE LENDER TRUSTEE. The Eligible
Lender Trustee, by the execution hereof, covenants, represents and agrees that:
(a) this Eligible Lender Trust Agreement and all documents,
agreements, understandings and arrangements relating to this Eligible
Lender Trust Agreement which are executed by the Eligible Lender Trustee
have been executed by the Eligible Lender Trustee solely for the purpose of
having the legal title to the Financed Eligible Loans held by an "eligible
lender" under the Higher Education Act, and the Issuer hereby agrees that
the Eligible Lender Trustee shall be accorded the protection set forth in
Section 4.05 hereof for its limited role herein pursuant to the indemnity
herein and that the Eligible Lender Trustee (its officers, directors,
employees and agents) shall not have any liability thereunder or hereunder
except as expressly set forth herein, including, without limitation,
liability which may be incurred as a result of actions or inactions of the
Issuer or the Servicer of the Financed Eligible Loans, subject to the terms
of applicable laws, rules and regulations;
(b) it will comply with the Higher Education Act and the
regulations promulgated thereunder and will, upon written notice from the
Issuer, the Secretary, or the Guarantee Agency, and upon receipt of an
Issuer Order directing the Eligible Lender Trustee, shall cause this
Eligible Lender Trust Agreement to be amended if the Higher Education Act
or regulations promulgated thereunder are hereafter amended so as to be
contrary to the terms of this Eligible Lender Trust Agreement;
(c) it will, from and after it shall have either entered into,
or succeeded to the rights and interests of any Eligible Lender under any
Guarantee Agreement covering Financed Eligible Loans, maintain the same and
diligently enforce its rights thereunder, and not consent to or permit any
rescission of or consent to any amendment thereto or otherwise take any
action under or in connection therewith which in any manner would adversely
affect the rights of the Issuer or the parties secured by the Indenture;
and
(d) notwithstanding any other provision of this Eligible Lender
Trust Agreement or other documents pertaining to the Notes or the Financed
Eligible Loans, nothing herein or therein shall be construed to limit the
responsibility of the Eligible Lender Trustee to the Secretary of Education
or a Guarantor as required under, or to comply with its obligations under,
the Higher Education Act and the regulations promulgated thereunder.
SECTION 4.14. AUTHORITY OF ELIGIBLE LENDER TRUSTEE. Notwithstanding
anything herein, the Eligible Lender Trustee has any and all power, right and
authority, where permitted by law
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and regulation, to realize on any Guarantee Agreement with respect to any
Financed Eligible Loan.
SECTION 4.15. SALE OF ELIGIBLE LOANS. At the written direction of the
Issuer (so long as the Issuer certifies no Event of Default exists under the
Indenture), or if an Event of Default exists under the Indenture as directed by
the Indenture Trustee, the Eligible Lender Trustee shall sell Financed Eligible
Loans to designated purchasers. The Financed Eligible Loans shall not be sold to
any Person unless such Person is an Eligible Lender.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. ELIGIBLE LENDER TRUST AGREEMENT BINDING UPON SUCCESSORS OR
ASSIGNS OF ELIGIBLE LENDER TRUSTEE AND ISSUER. All the terms, provisions,
conditions, covenants, warranties and agreements contained in this Eligible
Lender Trust Agreement shall be binding upon the successors and assigns of the
Issuer and the Eligible Lender Trustee, and shall inure to the benefit of the
Eligible Lender Trustee and its successor and assigns and the Issuer, its
successors or substitutes in trust and assigns. The Eligible Lender Trustee
acknowledges that the Issuer may assign its beneficial rights hereunder in
financed eligible loans and payments related thereto to the Indenture Trustee
without consent of the Eligible Lender Trustee.
SECTION 5.02. EFFECT OF LEGAL HOLIDAYS. Whenever this Eligible Lender Trust
Agreement requires any action to be taken on a day which is not a Business Day,
such action shall be taken on the next succeeding Business Day with the same
force and effect as if taken on such day.
SECTION 5.03. PARTIAL INVALIDITY. If any one or more of the covenants or
agreements or portion thereof provided in this Eligible Lender Trust Agreement
on the part of the Issuer or the Eligible Lender Trustee to be performed should
be determined by a court of competent jurisdiction to be contrary to law, then
such covenant or covenants, or such agreement or agreements, or such portions
thereof, shall be deemed severable from the remaining covenants and agreements
provided in this Eligible Lender Trust Agreement and the invalidity thereof
shall in no way affect the validity of the other provisions of this Eligible
Lender Trust Agreement hereunder and under any applicable provisions of law.
SECTION 5.04. NOTICES. Except as otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including facsimile communication) and mailed or delivered or sent by
facsimile, if to the Eligible Lender Trustee, at the corporate trust office of
the Eligible Lender Trustee in Denver, Colorado which at the date of this
Eligible Lender Trust Agreement is located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention: Corporate Trust Department (telephone (720)
▇▇▇-▇▇▇▇, facsimile (▇▇▇) ▇▇▇-▇▇▇▇), or at such other address as may have been
filed in writing by the Eligible Lender Trustee; if to the Issuer, to c/o
Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust Administration (telephone
(▇▇▇) ▇▇▇-▇▇▇▇; facsimile (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to the Administrator,
GMAC Commercial Holding Capital Corp., Attention: ▇▇▇▇▇▇ ▇. Page, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (telephone (▇▇▇) ▇▇▇-▇▇▇▇; facsimile (303)
294-3280), or to the Issuer at such other address as may have been filed in
writing by the Issuer. All such notices and communications shall be effective
(a) if given by facsimile, when transmitted, (b) if given by mail, when
deposited in the mail addressed as aforesaid, and (c) if given by other means,
when delivered at the address specified as aforesaid. Any notice required to be
given in writing shall be deemed to be in writing if given by telex, facsimile
or other method which produces a written record. If the Eligible Lender Trustee
receives any notice or communication of any type, whether via telephone,
facsimile, personal delivery or otherwise, it shall notify the Issuer by
whatever means it chooses, which notice shall be confirmed in writing, as soon
as practicable at the notice address for the Issuer set forth in this Section
5.04. The Eligible Lender Trustee shall have no duty to verify whether the
information contained in such notice it receives is accurate, material or
relevant, its only duty to pass on any such notice that it receives.
SECTION 5.05. LAW AND PLACE OF ENFORCEMENT OF ELIGIBLE LENDER TRUST
AGREEMENT; CONSTRUCTION. This Eligible Lender Trust Agreement shall be construed
and interpreted in accordance with the laws of the State of Colorado.
SECTION 5.06. EFFECT OF ARTICLE AND SECTION HEADINGS AND TABLE OF CONTENTS.
The heading or titles of the several Articles and Sections hereof, and any table
of contents appended hereto, shall be solely for convenience of reference and
shall not affect the meaning or construction, interpretation or effect of this
Eligible Lender Trust Agreement.
SECTION 5.07. AMENDMENTS. The Issuer and the Eligible Lender Trustee, from
time to time, may amend this Eligible Lender Trust Agreement subject to any
provisions to the contrary herein and after giving 30 days written notice to the
Rating Agencies.
SECTION 5.08. LIMITATION OF LIABILITY. It is expressly understood and
agreed by the parties hereto that (a) this Eligible Lender Trust Agreement is
executed and delivered by Wilmington Trust Company, not individually or
personally but solely as Delaware Trustee of the Issuer, in the exercise of the
powers and authority conferred and vested in it; (b) each of the
representations, undertakings and agreement herein made on the part of the
Issuer is made and intended not as personal representations, undertakings and
agreements by Wilmington Trust Company but is made and intended for the purpose
of binding only the Issuer; (c) nothing herein contained shall be construed as
creating any liability on Wilmington Trust Company, individually or personally,
to perform any covenant either expressed or implied contained herein, all such
liability, if any, being expressly waived by the parties hereto and by any
Person claiming by, through or under the parties hereto; and (d) under no
circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Issuer or be liable for the
breach or failure of any obligations, representation, warranty or covenant made
or undertaken by the Issuer under this Eligible Lender Trust Agreement.
SECTION 5.09. NO PETITION. The Eligible Lender Trustee will not at any time
institute against the Issuer any bankruptcy proceeding under any United States
federal or State bankruptcy or similar law in connection with any obligations of
the Issuer under this Eligible Lender Trust Agreement.
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IN WITNESS WHEREOF, GMAC EDUCATION LOAN FUNDING TRUST-I has caused this
Eligible Lender Trust Agreement to be signed in its name and on its behalf by
the Delaware Trustee and ZIONS FIRST NATIONAL BANK, to evidence its acceptance
of the trusts hereby created, and has caused this Eligible Lender Trust
Agreement to be signed in its name and on its behalf by one of its officers
thereunto duly authorized.
GMAC EDUCATION LOAN FUNDING TRUST-I
By: WILMINGTON TRUST COMPANY, not
in its individual capacity but solely as
Delaware Trustee
By
-----------------------------------------
Name
---------------------------------------
Title
--------------------------------------
ZIONS FIRST NATIONAL BANK, as
Eligible Lender Trustee
By
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
Vice President
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EXHIBIT A
TRUSTEE GUARANTEE AGREEMENTS
[TO BE PROVIDED.]
A-1