EXHIBIT 99.5
CUSTODIAN AGREEMENT
THIS CUSTODIAN AGREEMENT dated as of ________ __, 200_ (this "Custodian
Agreement"), is by and among GMAC EDUCATION LOAN FUNDING TRUST-I (the "Issuer"),
ZIONS FIRST NATIONAL BANK, as eligible lender trustee (the "Trustee"), and [NAME
OF SUBSERVICER], as custodian (the "Custodian").
WHEREAS, the Issuer will acquire, from time to time, loans originated under
Title IV, Part B of the Higher Education Act of 1965, as amended or supplemented
(the "Loans"), pursuant to various loan purchase agreements; and
WHEREAS, the Trustee will act as the eligible lender on behalf of the
Issuer and will hold legal title to the Loans pursuant to an Eligible Lender
Trust Agreement dated as of March 1, 2003, between the Trustee and the Issuer;
and
WHEREAS, the Issuer has entered into a Servicing Contractor Agreement dated
as of March 1, 2003 (the "Servicing Contractor Agreement"), by and between the
Issuer and GMAC Commercial Holding Capital Corp. (the "Contractor"), pursuant to
which the Contractor will arrange for the Loans to be serviced by third party
servicers; and
WHEREAS, [NAME OF SUBSERVICER] will act as servicer of certain of the Loans
for the Issuer and the Trustee pursuant to the [DESCRIBE SUBSERVICING AGREEMENT]
(the "Servicing Agreement"), by and between the Contractor and [NAME OF
SUBSERVICER], as servicer. [NAME OF SUBSERVICER] will hold the promissory notes
for the Loans it services pursuant to the Servicing Agreement as custodian (in
such capacity, a "Custodian") pursuant to this Custodian Agreement; and
WHEREAS, the Issuer desires to contract with the Custodian to provide the
custodial services set forth herein; and
WHEREAS, the Issuer will from time to time in the future deliver, or cause
the Trustee to deliver, to the Custodian, Loans to be serviced by the Custodian,
as servicer;
NOW, THEREFORE, the Trustee and the Issuer hereby authorize the Custodian
to so hold all Deposited Loans (as defined below) as bailee and agent of the
Trustee and authorize the Custodian to perform the following functions, and
duties in connection therewith, and the Custodian agrees to perform such
functions and duties (in the case of the custodian, as bailee and agent of the
Trustee):
1. DEFINITIONS. Unless otherwise defined herein, all capitalized terms
used herein, including the premises thereof, shall have the meanings ascribed to
such terms in the Servicing Agreement.
"DEPOSITED LOANS" means all Loans which now or at any time hereafter are
serviced by or in the possession and control of the Custodian, as servicer,
pursuant to the Servicing Agreement as well as all records and other instruments
and documents relating thereto.
2. SAFEKEEPING OF THE DEPOSITED LOANS. The Custodian hereby agrees to act
as bailee and agent to perform the following services for the Trustee and the
Issuer with respect to the Deposited Loans:
(a) To hold in its fireproof storage vault and under its exclusive
control the following documents with respect to each of the Deposited Loans
and shall use due care to preserve and protect the same:
(i) copy of the original student loan application (with all
required supplements);
(ii) the original promissory note or copies of the master
promissory note and related documentation;
(iii) evidence of insurance guarantee and disbursement; and
(iv) any other documentation provided to the Custodian pursuant
to the Servicing Agreement;
provided, however, that to the extent permitted in accordance with the
rules and regulations of the Secretary or Education (the "Secretary")
and/or the applicable Guarantor, the Custodian may retain any of such
documentation (other than original promissory notes) on microfilm or other
electronic, image or similar storage system.
(b) To identify Deposited Loans on its computer system as being held
by the Custodian as agent and bailee for the Trustee pursuant to this
Agreement.
(c) Upon the written demand of the Issuer or the Trustee, the
Custodian shall deliver and immediately release to the Trustee or the agent
representative of the Trustee any and all of the Deposited Loans at the
time held by Custodian, as well as all related information and documents
required to be held under the Servicing Agreement. The Issuer shall be
liable for the servicing removal fees specified in the Servicing Agreement.
(d) To furnish the Trustee and the Issuer monthly a list containing
the names and social security numbers of the obligors of the Deposited
Loans, the unpaid principal balance of all Deposited Loans of each of said
obligors, and such other information with respect to the Deposited Loans
which is reasonably requested by the Trustee or the Issuer.
(e) To permit inspection, in accordance with the Servicing Agreement,
at all reasonable times and upon reasonable advance notice by the Issuer or
the Trustee, the Guarantors, the Secretary and any governmental agency
having jurisdiction or their respective agents (including auditors) of the
Deposited Loans and the records of the Custodian relating thereto, such
inspection to include the right to examine and make copies of any documents
relating to the Deposited Loans and to interview personnel involved in the
servicing of the Deposited Loans.
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(f) To furnish the Issuer or the Trustee from time to time upon
written request, a list of all Deposited Loans submitted for claim and the
date of submission and the amount claimed.
(g) To furnish to the Issuer or the Trustee, upon the acquisition of
Deposited Loans, a confirmation that all records, documents and other
instruments described in clause (a) above with respect to such Deposited
Loans have been received by the Custodian.
(h) To take any and all such other action with respect to the
Deposited Loans as the Issuer, the Contractor or the Trustee may,
consistent with its rights and obligations under the Servicing Agreement,
reasonably request. Any actual costs incurred by the Custodian due to
extraordinary requests by the Issuer, the Contractor or the Trustee beyond
the scope of normal business practices shall be borne by the Contractor
pursuant to the terms of the Servicing Agreement.
The Trustee hereby appoints the Custodian as its agent solely to take
physical possession and custody of the Deposited Loans and the proceeds thereof
in accordance with the terms of this Custodian Agreement. The Custodian hereby
accepts such appointment and agrees to service the Deposited Loans on behalf of
the Issuer and for the benefit of the Trustee in accordance with the Servicing
Agreement.
3. PAYMENTS IN RESPECT OF DEPOSITED LOANS. The parties hereto agree that
amounts received in respect of the Deposited Loans (including, without
limitation, payments from any obligors on Deposited Loans, claim payments from
any Guarantor and Interest Benefit Payments and Special Allowance Payments, if
applicable) shall be promptly paid over and deposited with the Trustee as
directed by the Contractor in accordance with the Servicing Agreement.
4. RELEASE OF COLLATERAL. The Custodian may release Deposited Loans and
all related information and documentation held by the Custodian only as follows:
(a) the Custodian may release to the applicable borrower at any time
any Deposited Loan that has been paid in full;
(b) the Custodian may release to an applicable Guarantor any
Deposited Loan which is eligible for claim payment and with respect to
which a claim is (or is to be) filed;
(c) the Custodian may, in accordance with the provisions of this
Custodian Agreement ("Safekeeping of the Deposited Loans"), release to the
Trustee the Deposited Loans and any records, documents and instruments
relating thereto, subject to the provisions of the Servicing Agreement; and
(d) the Custodian may release any Deposited Loan if such release is
required in compliance with a subpoena or other legal process served on the
Custodian.
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Except as described in this paragraph and except upon termination of this
Custodian Agreement, the Custodian will not release any Deposited Loans unless
the Custodian is in receipt of written authorization from the Contractor, the
Issuer or the Trustee.
5. NO TRUSTEE LIABILITY. The Trustee shall not have any responsibility
for loss or damage suffered by the Issuer with respect to any Deposited Loan
delivered or released pursuant to this Custodian Agreement.
6. TERMINATION OF THIS CUSTODIAN AGREEMENT. This Custodian Agreement
shall remain in effect until the date on which the Servicing Agreement shall
have expired or otherwise been terminated. Upon termination of this Custodian
Agreement, the Deposited Loans and materials (as set forth in clause 2(a)
herein) relating thereto in the possession of the Custodian shall be forthwith
delivered to the party designated by the Contractor, subject to the terms of the
Servicing Agreement. This Custodian Agreement shall not be subject to
termination other than as specifically provided in this paragraph.
7. INSPECTION RIGHTS. To the extent permitted by law, all records
maintained by the Custodian with respect to the Deposited Loans shall be
available for inspection or audit pursuant to the Servicing Agreement from time
to time by the Trustee, the Contractor and the Issuer (or their respective
designees) upon request of the Trustee, the Contractor or the Issuer, made with
reasonable advance notice to the Custodian, such availability to include the
right to examine and make copies of any documents relating to the Deposited
Loans, with costs of same to be paid for by the Issuer or Contractor.
8. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE CUSTODIAN.
(a) The Custodian agrees to accept delivery of the promissory notes
and other documents pertaining to the Deposited Loans and to have and
maintain continuous and exclusive possession and control over all documents
evidencing the Deposited Loans delivered to it under this Custodian
Agreement.
(b) The Custodian shall exercise reasonable care and diligence in the
possession, retention and protection of the Deposited Loans delivered to it
hereunder. The Custodian accepts the custodial duties and responsibilities
imposed upon it hereunder and agrees to perform such custodial duties and
responsibilities in a sound and prudent manner consistent in all respects
with sound custodial practices and principles.
(c) The Custodian shall at all times during the term of this
Custodian Agreement maintain insurance which shall include, but not be
limited to, dishonesty of employees or other crimes resulting in the loss
of the Deposited Loans and comprehensive general liability, including
personal injury and loss or damage to documents.
(d) The Custodian shall at all times maintain records indicating the
borrower name and Social Security number, original note amount and date and
maturity date, at a minimum, of all Deposited Loans which are delivered to
it to hold as Custodian pursuant to this Custodian Agreement and indicating
that such Deposited Loans have been pledged to the Trustee.
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(e) The Custodian makes no representation, express or implied, as to
the effectiveness of the bailment hereunder for any purpose, including
without limitation the perfection of any security interest.
9. LIMITATION OF CUSTODIAN'S LIABILITY. The Custodian's liability under
or with respect to this Agreement, and any duties set forth herein, or any
certificate or document issued hereunder, shall be subject to the limitations of
the Custodian's liability set forth in the Servicing Agreement with respect to
the Custodian's servicing of the Deposited Loans.
10. MISCELLANEOUS.
(a) No amendment, modification, termination or waiver of any
provision of this Agreement shall be effective unless the same shall be in
writing and signed by the parties and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given. No amendment of any other agreement or instrument shall affect the
Custodian or its duties hereunder.
(b) This Custodian Agreement shall be binding upon the parties hereto
and their successors, transferees and assigns, and shall inure to the
benefit of and be enforceable by all parties hereto and their respective
successors, transferees and assigns provided that the Custodian may not
transfer, assign or terminate all or any part of this Agreement without the
prior written consent of the Issuer and the Trustee. However, this Section
10(b) does not apply to instances wherein the Custodian assigns or
transfers this Agreement to an affiliated company.
(c) The Custodian acknowledges and agrees that its services under
this Custodian Agreement are in addition to, and not in lieu of its
services as servicer of the Deposited Loans under and pursuant to the
Servicing Agreement.
(d) This Custodian Agreement may be executed and delivered in any
number of counterparts, each of which, when so executed and delivered,
shall be an original; provided, however, that such counterparts shall
together constitute but one and the same instrument.
(e) Any provision of this Custodian Agreement which is prohibited,
unenforceable or not authorized in any jurisdiction shall, as to such
jurisdiction, be effective to the extent of such prohibition,
unenforceability or nonauthorization without invalidating the remaining
provisions hereof or affecting the validity or enforceability or legality
of such provision in any other jurisdiction.
(f) THIS CUSTODIAN AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF COLORADO.
(g) All notices, requests, demands and other communications under or
in respect of this Custodian Agreement shall be in writing or shall be
delivered or mailed, first class, postage prepaid, or sent by facsimile
machine, to the parties at the following
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addresses (or at such other address for a party as shall be specified by
the party to whom addressed):
If to the Issuer: GMAC Education Loan Funding Trust-I
c/o Wilmington Trust Company, Delaware Trustee
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Corporate Trust Administration
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to the Administrator:
GMAC Commercial Holding Capital Corp.
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxxx X. Page
Telephone: (303) 000- 0000
Facsimile: (000) 000-0000
If to the Trustee: Zions First National Bank
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Corporate Trust Department
Telephone: (720) 000- 0000
Facsimile: (000) 000-0000
If to the Custodian: [CUSTODIAN CONTACT INFORMATION]
Attention:________________
Telephone: (___) _________
Facsimile: (___) __________
(h) It is expressly understood and agreed by the parties hereto that
(a) this Custodian 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 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
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obligations, representation, warranty or covenant made or undertaken by the
Issuer under this Custodian Agreement.
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IN WITNESS WHEREOF, the parties have signed this Custodian Agreement as of
the date first written above.
ZIONS FIRST NATIONAL BANK, as Eligible Lender
Trustee
By
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Name
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Title
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[NAME OF CUSTODIAN], as Custodian
By
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Name
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Title
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GMAC EDUCATION LOAN FUNDING TRUST-I, as Issuer
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Delaware
Trustee
By
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Name
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Title
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