EXHIBIT 3.1
TRUST AGREEMENT
THIS TRUST AGREEMENT, dated as of February 6, 2003, by and among Education
Funding Capital I, LLC, a Delaware limited liability company, as Sponsor (the
"Sponsor"), Fifth Third Bank, an Ohio banking corporation, as Co-Owner Trustee
(the "Co-Owner Trustee") and Wilmington Trust Company, a Delaware banking
corporation, as Owner Trustee (the "Owner Trustee," together with the Co-Owner
Trustee, the "Trustees," and individually referred to as a "Trustee"). The
Sponsor and the Trustees hereby agree as follows:
1. Creation of Trust.
(a) The trust created hereby shall be known as Education Funding Capital
Trust-II (the "Trust"), in which name the Trustees, or the Sponsor to the extent
provided for herein, may conduct the business of the Trust, make and execute
contracts on behalf of the Trust, and xxx and be sued.
(b) The Sponsor hereby assigns, transfers, conveys and sets over to the
Co-Owner Trustee the sum of $1.00. The Co-Owner Trustee hereby acknowledges
receipt of such amount in trust from the Sponsor, which amount shall constitute
the initial trust estate. The Co-Owner Trustee hereby declares that it will hold
the trust estate in trust for the Sponsor. It is the intention of the parties
hereto that the Trust created hereby constitute a statutory trust under Chapter
38 of Title 12 of the Delaware Code, 12 Del. C. (S)3801 et seq. and that this
Trust Agreement constitute the governing instrument of the Trust. The Trustees
are hereby authorized and directed to execute and file a certificate of trust
with the Delaware Secretary of State in the form attached hereto as Exhibit A.
(c) The Co-Owner Trustee is hereby authorized and directed to execute
and deliver on behalf of the Trust the Eligible Lender Trust Agreement, dated as
of April 1, 2003, between the Trust and Fifth Third Bank. The Trustees are
further authorized and directed to enter into such other documents and take such
other action as the Sponsor specifically directs in written instructions
delivered to the Trustees; provided, however, the Trustees shall not be required
to take any action (i) if the Trustees shall determine, or shall be advised by
counsel, that such action is likely to result in personal liability or is
contrary to applicable law or any agreement to which the Trustees are a party
and (ii) the Trustees have been provided indemnity satisfactory to them in their
sole discretion.
2. Concerning the Trustees.
(a) Except as otherwise expressly required by Section 1 of this Trust
Agreement or as otherwise required by applicable law or as may be necessary to
obtain any licenses, consents or approvals required by applicable law or
otherwise, the Trustees shall not have any duty or liability with respect to the
administration of the Trust, the investment of the Trust's property or the
payment of dividends or other distributions of income or principal to the
Trust's beneficiaries. and no implied obligations shall be inferred from this
Trust Agreement on the part of the Trustees. The Trustees shall not be liable
for the acts or omissions of the Sponsor
nor shall the Trustees be liable for any act or omission by it in good faith in
accordance with the directions of the Sponsor.
(b) The Trustees accept the trusts hereby created and agree to perform
their duties hereunder with respect to the same but only upon the terms of this
Trust Agreement. The Trustees shall not be personally liable under any
circumstances, except for their own willful misconduct or gross negligence. In
particular, but not by way of limitation:
(i) The Trustees shall not be personally liable for any error of
judgment made in good faith by an officer or employee of the Trustees;
(ii) No provision of this Trust Agreement shall require the
Trustees to expend or risk their personal funds or otherwise incur any financial
liability in the performance of their rights or duties hereunder, if the
Trustees shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is not reasonably
assured or provided to them;
(iii) Under no circumstance shall the Trustees be personally liable
for any representation, warranty, covenant or indebtedness of the Trust;
(iv) The Trustees shall not be personally responsible for or in
respect of the genuineness, form or value of the Trust property, the validity or
sufficiency of this Trust Agreement or for the due execution hereof by the
Sponsor;
(v) In the event that a Trustee is unsure of the course of action
to be taken by it hereunder, a Trustee may request instructions from the Sponsor
and to the extent the Trustee follows such instructions in good faith it shall
not be liable to any person. In the event that no instructions are provided
within the time requested by the Trustee, it shall have no duty or liability for
their failure to take any action or for any action it takes in good faith;
(vi) A11 funds deposited with the Trustees hereunder may be held in
a non-interest bearing trust account and the Trustees shall not be liable for
any interest thereon or for any loss as a result of the investment thereof at
the direction of the Sponsor; and
(vii) To the extent that, at law or in equity, the Trustees has
duties and liabilities relating thereto to the Sponsor or the Trust, the Sponsor
agrees that such duties and liabilities are replaced by the terms of this Trust
Agreement.
(c) The Trustees shall incur no liability to anyone in acting upon any
document believed by it to be genuine and believed by it to be signed by the
proper party or parties. The Trustees may accept a certified copy of a
resolution of the board of directors or other governing body of any corporate
party as conclusive evidence that such resolution has been duly adopted by such
body and that the same is in full force and effect. As to any fact or matter the
manner of ascertainment of which is not specifically prescribed herein, the
Trustees may for all purposes hereof rely on a certificate, signed by the
Sponsor, as to such fact or matter, and such certificate shall constitute full
protection to the Trustees for any action taken or omitted to be taken by it in
good faith in reliance thereon.
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(d) In the exercise or administration of the trusts hereunder, the
Trustees (i) may act directly or, at the expense of the Trust, through agents or
attorneys, and the Trustees shall not be liable for the default or misconduct of
such agents or attorneys if such agents or attorneys shall have been selected by
the Trustees in good faith, and (ii) may, at the expense of the Sponsor, consult
with counsel, accountants and other experts, and it shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the
advice or opinion of any such counsel, accountants or other experts.
(e) In accepting and performing the trusts hereby created, each Trustee
acts solely as a Trustee hereunder and not in its individual capacity, and all
persons having any claim against a Trustee by reason of the transactions
contemplated by this Trust Agreement shall look only to the Trust property for
payment or satisfaction thereof:
3. Compensation and Indemnification.
(a) The Sponsor agrees to (i) compensate the Trustees in accordance with
a separate fee agreement with the Trustees. (ii) reimburse the Trustees for all
reasonable expenses (including reasonable fees and expenses of counsel and other
experts) and (iii) indemnify, defend and hold harmless the Trustees and any of
the officers, directors, employees and agents of the Trustees (the "Indemnified
Persons") from and against any and all losses, damages, liabilities. claims,
actions, suits, costs, expenses, disbursements (including the reasonable fees
and expenses of counsel), taxes and penalties of any kind and nature whatsoever
(collectively, "Expenses"), to the extent that such Expenses arise out of or are
imposed upon or asserted at any time against such Indemnified Persons with
respect to the performance of this Trust Agreement, the creation, operation or
termination of the Trust or the transactions contemplated hereby; provided,
however, that the Sponsor shall not be required to indemnify any Indemnified
Person for any Expenses which are a result of the willful misconduct or gross
negligence of such Indemnified Person.
(b) To the fullest extent permitted by law, Expenses to be incurred by
an Indemnified Person shall, from time to time, be advanced by, or on behalf of,
the Sponsor prior to the final disposition of any matter, upon receipt by the
Sponsor of an undertaking by, or on behalf of, such Indemnified Person to repay
such amount if it shall be determined that the Indemnified Person is not
entitled to be indemnified under this Trust Agreement.
(c) The obligations of the Sponsor under this Section 3 shall survive
the termination of this Trust Agreement.
4. Either Trustee may resign upon thirty days prior notice to the Sponsor.
If no successor has been appointed within such thirty day period, the Trustee
may, at the expense of the Sponsor, petition a court to appoint a successor
Trustee. Any person into which a Trustee may be merged or with which it may be
consolidated, or any person resulting from any merger or consolidation to which
a Trustee shall be a party, or any person which succeeds to all or substantially
all of the corporate trust business of a Trustee, shall be the successor
Trustees under this Trust Agreement without the execution, delivery or filing of
any paper or instrument or further act to be done on the part of the parties
hereto, except as may be required by applicable law.
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5. This Trust Agreement represents the entire agreement between the parties
hereto with respect to the subject matter hereof, and supersedes all prior
agreements and understandings between the parties, whether written or oral.
6. This Trust Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without reference to its conflict of law
provisions, and the obligations, rights and remedies of the parties hereunder
shall be determined in accordance with such laws. Sections 3540 and 3561 of
Title 12 of the Delaware Code shall not apply to the Trust.
7. This Trust Agreement may be executed in two or more counterparts, each
of which shall be an original. but all such counterparts shall together
constitute one and the same agreement.
8. The Sponsor and the Trustees will enter into an Amended and Restated
Trust Agreement, satisfactory to each such party, to provide for the
contemplated operation of the Trust created hereby. This Trust Agreement may be
amended and restated by the parties hereto as necessary to provide for the
operation of the Trust; provided, however, that the Trustees shall not be
required to enter into any amendment hereto which adversely affects the rights,
duties or immunities of the Trustees.
(signature page follows)
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to
be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
WILMINGTON TRUST COMPANY,
as Owner Trustee
By: /s/ Xxxxxx X. XxxXxxxxx
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Name: Xxxxxx X. XxxXxxxxx
Title: Vice President
EDUCATION FUNDING CAPITAL I, LLC,
as Sponsor
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Senior VP Finance
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FIFTH THIRD BANK,
as Co-Owner Trustee
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: AVP & Sr. Trust Officer
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