EXHIBIT 4.3
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ELIGIBLE LENDER TRUST AGREEMENT
between
GMAC ELF LLC,
as Sponsor
and
ZIONS FIRST NATIONAL BANK,
as Eligible Lender Trustee
Dated as of January 28, 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...............................................................4
ARTICLE II
ACQUISITION OF ELIGIBLE LOANS
Section 2.01. Acquisition of Eligible Loans..............................................................5
Section 2.02. Student Loan Account.......................................................................5
Section 2.03. Revocation and Termination.................................................................6
Section 2.04. Section 2.04...............................................................................6
ARTICLE III
COVENANTS
Section 3.01. Administration.............................................................................6
Section 3.02. Eligible Lender Trustee's Duties and Powers................................................7
Section 3.03. Enforcement of the Guarantee Agreements....................................................8
Section 3.04. Assignment of Eligible Loans; Collection of Payments With Respect to Eligible Loans........8
Section 3.05. Enforcement of Eligible Loans..............................................................8
Section 3.06. Enforcement of Servicing Agreements........................................................9
Section 3.07. Authority of Eligible Lender Trustee.......................................................9
Section 3.08. Power of Attorney to Sponsor...............................................................9
ARTICLE IV
CONCERNING THE ELIGIBLE LENDER TRUSTEE
Section 4.01. Acceptance of the Trusts...................................................................9
Section 4.02. Recitals of Others........................................................................10
Section 4.03. Taxes.....................................................................................10
Section 4.04. Eligible Lender Trustee May Act Through Agents............................................10
Section 4.05. Indemnification of Eligible Lender Trustee................................................10
Section 4.06. Eligible Lender Trustee's Right to Reliance...............................................10
Section 4.07. Compensation of Eligible Lender Trustee...................................................11
Section 4.08. Eligible Lender Trustee Eligibility.......................................................11
Section 4.09. Resignation of Eligible Lender Trustee....................................................12
Section 4.10. Removal of Eligible Lender Trustee........................................................13
Section 4.11. Successor Eligible Lender Trustee.........................................................13
Section 4.12. Assignment; Corporate Changes in Trustee..................................................13
Section 4.13. Limitation with Respect to Examination of Reports.........................................13
Section 4.14. Additional Covenants of Eligible Lender Trustee...........................................14
Section 4.15. Sale of Eligible Loans....................................................................14
ARTICLE V
REPRESENTATIONS AND WARRANTIES.............................................................................14
ARTICLE VI
MISCELLANEOUS
Section 6.01.
Eligible Lender Trust Agreement Binding upon Successors or Assigns of Eligible Lender
Trustee and Sponsor.......................................................................15
Section 6.02. Effect of Legal Holidays..................................................................15
Section 6.03. Partial Invalidity........................................................................15
Section 6.04. Notices...................................................................................15
Section 6.05. Law and Place of Enforcement of
Eligible Lender Trust Agreement; Construction.............16
Section 6.06. Effect of Article and Section Headings and Table of Contents..............................16
Section 6.07. Amendments................................................................................16
Section 6.08. No Petition...............................................................................16
EXHIBIT A TRUSTEE GUARANTEE AGREEMENTS
ii
ELIGIBLE LENDER TRUST AGREEMENT
ELIGIBLE LENDER TRUST AGREEMENT dated as of January 28, 2003 (this
"
Eligible Lender Trust Agreement") entered into between
GMAC ELF LLC, a Delaware
limited liability company (the "Sponsor") and ZIONS FIRST NATIONAL BANK, a
national banking association organized and existing under the laws of the United
States of America, solely in its capacity as eligible lender trustee (the
"Eligible Lender Trustee"):
W I T N E S S E T H :
WHEREAS, the Sponsor is not an eligible lender under the Higher Education
Act and, as such, cannot hold loans reinsured under Title IV of the Higher
Education Act (as defined herein) as an eligible lender; and
WHEREAS, the Sponsor wishes to become beneficial owner of certain loans
meeting the qualifications described herein made to persons for post-secondary
education at eligible institutions ("Eligible Loans") (hereinafter collectively
referred to as the "Portfolio") by directing, funding, and otherwise causing the
origination and/or acquisition of such loans by the Eligible Lender Trustee on
behalf of the trust created hereunder (the "Trust"); and
WHEREAS, the Sponsor is conducting and administering a program of acquiring
(whether by making or purchasing) student loans incurred under the Higher
Education Act (the "Program"); 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 the 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, upon the execution and delivery of this
Eligible Lender Trust
Agreement, the Eligible Lender Trustee will become the legal owner, and the
Sponsor shall be the beneficial owner, of various Student Loans, and the Sponsor
will finance the acquisition of additional Student Loans for which the Eligible
Lender Trustee shall be the legal owner and the Sponsor shall be the beneficial
owner, all of which Student Loans are anticipated to be sold in the future; and
WHEREAS, the Eligible Lender Trustee is willing to act as the "eligible
lender" on behalf of the Sponsor so that the Sponsor may conduct and administer
its program of acquiring Eligible Loans; and
WHEREAS, subsequent to the execution and delivery of this
Eligible Lender
Trust Agreement, the Sponsor will acquire Eligible Loans for which the Eligible
Lender Trustee shall be the legal owner and the Sponsor shall be the beneficial
owner; and
WHEREAS, the Eligible Lender Trustee shall be legal owner of the Eligible
Loans and is an "eligible lender" under the Higher Education Act, and the
Sponsor shall be the beneficial owner of such Eligible Loans; and
WHEREAS, the Sponsor intends to provide the Eligible Lender Trustee with
written instruction on all aspects of the management of the Portfolio;
NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:
That the Sponsor 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 the covenants and
conditions herein contained, have executed and delivered this
Eligible Lender
Trust Agreement, and by these presents the Sponsor 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 Sponsor, the
Eligible Loans.
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 terms defined in this Section 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 herein:
"COLLECTIONS" means, all revenue and recoveries of principal and interest
and other payments and reimbursements of principal and accrued interest received
with respect to any Eligible Loan and any other collection of cash with respect
to such Eligible Loan (including, but not limited to, Interest Subsidy Payments,
Special Allowance Payments, finance charges and payments representing the
repurchase of any Eligible Loan or rebate of premium thereon pursuant to a
student loan purchase agreement) received or deemed to have been received
pursuant to Section 2.04 hereof.
"ELIGIBLE LENDER" means any "eligible lender," as defined in the Higher
Education Act.
"ELIGIBLE LOAN" means any loan made to finance post-secondary education
that is made under the Higher Education Act.
"EXPRESS DUTIES" means all duties of the Eligible Lender Trustee set forth
herein, including, but not limited to, instructions of the Sponsor set forth in
Sponsor Requests, Sponsor Orders, Sponsor Certificates and Sponsor Consents.
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"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 Eligible Loans guaranteed by any Guarantee Agency
and federal interest subsidy payments and Special Allowance Payments, if
applicable, to holders of Eligible Loans guaranteed by any Guarantee Agency.
"FISCAL YEAR" means the fiscal year of the Sponsor which presently begins
January 1 of each year and ends December 31 of such year.
"GUARANTEE" or "GUARANTEED" means, with respect to an Eligible Loan, the
guarantee by the Guarantee Agency, in accordance with the terms and conditions
of the Guarantee Agreement, of the principal of and accrued interest on the
Eligible Loan to the maximum extent permitted under the Higher Education Act on
Eligible Loans which have been originated, held and serviced in full compliance
with the Higher Education Act, and the coverage of the Eligible Loan by the
Federal Contracts providing, among other things, for reimbursement to the
Guarantee Agency for certain losses incurred by it on defaulted Eligible Loans
guaranteed by it to the extent of the maximum reimbursement allowed by the
Federal Contracts.
"GUARANTEE AGENCY" or "GUARANTEE AGENCIES" means a state agency or a
private nonprofit institution or organization which administers a Guarantee
Program within a State or any successors and assignees thereof administering the
Guarantee Program which has entered into a Guarantee Agreement with the Eligible
Lender Trustee on behalf of the Sponsor.
"GUARANTEE AGREEMENT" means the agreement between a Guarantee Agency and
the Eligible Lender Trustee providing for the Guarantee by such Guarantee Agency
of the principal of and accrued interest on Eligible Loans to Borrowers,
acquired by the Eligible Lender Trustee from time to time, and any other similar
guarantee or agreement issued by a Guarantee Agency to the Sponsor or the
Eligible Lender Trustee pertaining to Eligible Loans.
"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.
"INTEREST BENEFIT PAYMENTS" means interest payments on Eligible Loans
authorized by the Higher Education Act or any similar payments.
"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 the Sponsor'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 Secretary of the United
States Department of Education, or any successor to the functions thereof under
the Higher Education Act.
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"SELLERS" means any entity which sells Eligible Loans or participation
interests in Eligible Loans to the Sponsor pursuant to the terms of a student
loan purchase agreement.
"SERVICER" means each of the eligible third party servicers under the
Higher Education Act selected by the Sponsor servicing the Eligible Loans
pursuant to a Servicing Agreement.
"SERVICING AGREEMENT" means each of the contracts for servicing Eligible
Loans executed by the Sponsor pursuant to which Eligible Loans are serviced.
"SPECIAL ALLOWANCE PAYMENTS" means the special allowance payments on
Eligible Loans authorized by the Higher Education Act, or any similar payments.
"SPONSOR REPRESENTATIVE" means those individuals authorized to act for the
Sponsor as set forth in a list of Authorized Officers delivered by the Sponsor
to the Eligible Lender Trustee, as such list may be amended from time to time.
"SPONSOR REQUEST," "SPONSOR ORDER," "SPONSOR CERTIFICATE" and "SPONSOR
CONSENT" mean, respectively, a written request, order, certificate or consent
signed in the name of the Sponsor by a Sponsor 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.
"STATE" means the State of Colorado.
"STUDENT LOAN ACCOUNT" means the Account established pursuant to Section
2.02 hereof.
"TRUST ESTATE" means all right, title and interest in and to any property
contributed to the Trust by the Sponsor or otherwise acquired by the Trust,
including, without limitation, all distributions or payments thereon or proceeds
thereof.
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 Eligible Loans held by an
"eligible lender" under the Higher Education Act, and the Sponsor 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 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 Sponsor and any Servicer, subject to the terms of
applicable laws, rules and regulations. All indicia of beneficial 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 Sponsor. The Sponsor 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 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. The
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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 OF ELIGIBLE LOANS. The Eligible Lender Trustee
shall, from time to time, acquire Eligible Loans upon receipt of a Sponsor
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. The Eligible Lender Trustee will hold legal title to
such Eligible Loans in trust hereunder for the sole benefit of the Sponsor. The
Sponsor 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 Guarantee
Agreement. Attached as Exhibit A (which may be amended and supplemented from
time to time upon the written direction of the Sponsor) is a listing of the
Trust Guarantee Agreements. Not later than 60 days following the end of each
calendar quarter during the term hereof, the Sponsor shall provide to the
Eligible Lender Trustee a report setting forth the total dollar amount of loan
disbursements made or acquired for the Trust Estate during such calendar
quarter.
SECTION 2.02. STUDENT LOAN ACCOUNT. The Sponsor hereby directs the Eligible
Lender Trustee to establish an account, to be maintained by the Eligible Lender
Trustee and designated the
GMAC ELF LLC Student Loan Account (the "Student Loan
Account").
The Eligible Lender Trustee shall deposit all Collections and any amounts
received by it into the Student Loan Account. The Sponsor or its designee shall
deposit amounts in the Student Loan Account from time to time to acquire
Eligible Loans pursuant to Section 2.01. Any Collections received by the
Sponsor, the Trustee, the student loan depositaries or co-depositaries, the
Custodians, the Sellers or the Servicers, or any agent thereof, as the case may
be, are to be transmitted to the Student Loan Account within two Business Days
of receipt. The Sponsor shall direct each Servicer, Seller, Custodian, student
loan depository or co-depositories, or agent thereof, to transmit any
collections it receives with respect to the Eligible Loans directly to the
Eligible Lender Trustee for deposit to the Student Loan Account.
The Eligible Lender Trustee shall make disbursements from the Student Loan
Account as directed, in writing, by the Sponsor. The Eligible Lender Trustee may
conclusively rely on the written instructions of the Sponsor without any duty to
determine or examine the same.
Funds on deposit in the Student Loan Account shall be invested from time to
time in accordance with the written direction of the Sponsor and the provisions
of Section 2.04 hereof.
The Sponsor shall maintain records with respect to the use of moneys in the
Student Loan Account, and shall cooperate with the Eligible Lender Trustee with
respect thereto. Upon instruction from the Sponsor, this Eligible Lender Trust
Agreement shall terminate, and, subject to Section 4.02 hereof, all amounts on
deposit hereunder shall be transferred to the Sponsor or its designee. The
Sponsor hereby assigns, transfers and sets over to the Eligible Lender Trustee,
in
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trust for the benefit of the Sponsor, all of Sponsor's right, title and interest
in and to the Eligible Loans that at any time may comprise the Portfolio, and
any other property related thereto placed in the Trust Estate by the Sponsor,
the receipt of which right, tile and interest is hereby acknowledged by the
Eligible Lender Trustee and which trust is hereby accepted by the Eligible
Lender Trustee, upon the following express terms and conditions and with the
powers and limitations hereinafter conferred and set forth.
The Eligible Lender Trustee shall maintain records with respect to the use
of moneys in the Student Loan Account. Upon instruction from the Sponsor, this
Eligible Lender Trust Agreement shall terminate, and, subject to Section 4.01
hereof, all amounts on deposit hereunder shall be transferred to the Sponsor or
its designee.
SECTION 2.03. REVOCATION AND TERMINATION. Subject to Section 4.10 hereof,
the Sponsor may, by Sponsor Order delivered to the Eligible Lender Trustee,
revoke this Eligible Lender Trust Agreement in whole or in part. Upon receipt of
such Sponsor Order, the Eligible Lender Trustee shall transfer to the order of
the Sponsor all amounts held hereunder, and the trust created hereby shall
thereupon terminate (except that the obligations of the Sponsor under Section
4.05 hereof shall survive such termination).
SECTION 2.04. SECTION 2.04. INVESTMENT OF FUNDS HELD BY ELIGIBLE LENDER
TRUSTEE. The Eligible Lender Trustee shall invest any money held for the credit
of the Sponsor hereunder as directed in writing (or orally, confirmed in
writing) by a Sponsor Representative to the fullest extent practicable and
reasonable. If the Eligible Lender Trustee shall not have received direction, it
shall invest any moneys in the AIM Short Term Investment Treasury Fund. The
Eligible Lender Trustee for the account of the Sponsor shall maintain any
earnings with respect to, and any net gain on the disposition of, any such
investments. The Eligible Lender Trustee shall advise the Sponsor in writing, on
or before the fifteenth day of each calendar month (or such later date as
reasonably consented to by the Sponsor), of all investments held for the credit
of the Sponsor as of the end of the preceding month and the value thereof, and
shall list any investments which were sold or liquidated for less than their
value at the time thereof. Notwithstanding the foregoing, the Eligible Lender
Trustee shall not be responsible or liable for any losses on investments made by
it hereunder or for keeping all amounts held by it, fully invested at all times,
its only responsibility being to comply with the investment instructions the
Sponsor or its designee in a non-negligent manner.
ARTICLE III
COVENANTS
SECTION 3.01. ADMINISTRATION. The Sponsor shall cause the Eligible Loans to
be administered so as to allow the Eligible Lender Trustee to obtain the
benefits of the Guarantee Agreements and Federal Contracts and the right to
receive Interest Benefit Payments, Special Allowance Payments, scheduled
payments of principal, interest, late fees and penalties by borrowers,
prepayments of principal and interest by borrowers, all grants, subsidies,
donations and all default and other claim payments made by any Guarantor with
respect to Eligible Loans. The Eligible Lender Trustee shall have no liability
for actions taken at the direction of the Sponsor. The Eligible Lender Trustee
shall have no liability for any action or inaction
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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 Sponsor or any 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 Eligible Loans or to maintain or monitor the administration,
servicing or collection of the Eligible Loans.
SECTION 3.02. ELIGIBLE LENDER TRUSTEE'S DUTIES AND POWERS. The Eligible
Lender Trustee and any successor trustee or trustees shall have only the
following powers and duties:
(a) Upon receipt of written instructions from the Sponsor, the
Eligible Lender Trustee shall execute and deliver all written instruments
and take any and all other actions that Sponsor may direct in order to (i)
maintain all Federal Contracts covering the Portfolio, (ii) enter into and
take other actions with respect to further agreements as required by the
Sponsor for the benefit of the Trust, and (iii) enforce the rights of the
Eligible Lender Trustee under all such Federal Contracts and other
agreements.
(b) Upon receipt of written instructions from the Sponsor, the
Eligible Lender Trustee shall execute and deliver all written instruments
and take any and all other actions as may be, in the judgment of the
Sponsor, required from time to time in connection with the application for
and receipt of all payments described in this Eligible Lender Trust
Agreement.
(c) Upon receipt of written instructions from the Sponsor, the
Eligible Lender Trustee shall sell, exchange or liquidate all or any
portion of the Trust Estate. The Eligible Lender Trustee shall dispose of
any proceeds of such sale, exchange or liquidation, as the Sponsor shall,
by written instructions to the Eligible Lender Trustee, direct.
(d) The Eligible Lender Trustee shall report to the Sponsor all
claims for which it has received written notice of, for taxes, insurance
premiums and other legal assessments, debts, charges or claims of any type
made against any money or other assets belonging to the Trust Estate, or
which may be due and owing in connection with the Trust. When directed in
writing by the Sponsor, the Eligible Lender Trustee shall satisfy approved
claims out of any money belonging to the Trust Estate, but the Sponsor
expressly reserves the right to satisfy Trust debts with non-Trust assets.
(e) Upon receipt of written instructions from the Sponsor, the
Eligible Lender Trustee shall compromise, settle, arbitrate or defend any
claim or demand in favor of or against the Trust or the Trust Estate, and
shall enter upon such contracts and agreements and make such compromises of
debts, claims or controversies respecting the Trust Estate as Sponsor shall
direct by written instructions to Eligible Lender Trustee.
(f) Subject to the other provisions of this Eligible Lender
Trust Agreement, without the Eligible Lender Trustee's express written
consent, the Sponsor may not assign, pledge, hypothecate, encumber or
otherwise transfer, directly or indirectly, all or any part of its interest
in the Trust, voluntarily or involuntarily.
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(g) Upon receipt of written instructions from the Sponsor the
Eligible Lender Trustee shall pay to the Sponsor, any and all deposits,
Collections, income and payments received by the Eligible Lender Trustee in
connection with the Trust Estate.
The Eligible Lender Trustee shall have no liability for actions taken at
the direction of the Sponsor. 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 Sponsor or any 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 Eligible Loans or to maintain
or monitor the administration, servicing or collection of the Eligible Loans.
The Eligible Lender Trustee shall not be required to expend any of its own funds
in connection with this Eligible Lender Trust Agreement or its duties hereunder
or under any related documents or agreements pertaining to the Trust Estate.
The Eligible Lender Trustee shall, to the extent it has received actual
written knowledge within its corporate trust department, notify the Sponsor with
respect to rejections and repurchases of such Eligible Loans, all claims for
taxes, insurance premiums and other legal assessments, debts, charges or claims
of any type made against any money or other assets belonging to the Trust, or
which may be due and owing in connection with the Trust Estate.
SECTION 3.03. ENFORCEMENT OF THE GUARANTEE AGREEMENTS. Except as otherwise
required by the Higher Education Act, the Sponsor will be responsible for
dealing with the Guarantee Agencies with respect to the rights, benefits and
obligations under Guarantee Agreements as they relate to Eligible Loans.
SECTION 3.04. ASSIGNMENT OF ELIGIBLE LOANS; COLLECTION OF PAYMENTS WITH
RESPECT TO ELIGIBLE LOANS. The Sponsor 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 Eligible Loans, all grants, subsidies, donations,
insurance payments, Interest Benefit Payments and Special Allowance Payments
relating to Eligible Loans and all Guarantee payments on defaulted Eligible
Loans with respect to Eligible Loans. The Sponsor shall cause the Servicer to
assign such Eligible Loans to the Eligible Lender Trustee for payment of
Guarantee benefits at the earliest practicable date permitted under applicable
law and regulations. The Sponsor will comply with the Higher Education Act and
all statutes, rules and regulations that apply to its Program and to the
Eligible Loans.
The Sponsor 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 Eligible Loans, all payments to be made with respect to the
Eligible Loans by the obligors thereof and all payments to be made under
Guarantees of Eligible Loans to be made to the Eligible Lender Trustee.
SECTION 3.05. ENFORCEMENT OF ELIGIBLE LOANS. The Sponsor 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 Eligible Loans and
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agreements in connection therewith, including the prompt payment of all
principal and interest payments and all other amounts due thereunder.
SECTION 3.06. ENFORCEMENT OF SERVICING AGREEMENTS. The Sponsor 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 Eligible Loans, and
all Guarantee payments on defaulted Eligible Loans.
The Sponsor shall, or shall cause the Servicer to provide the Eligible
Lender Trustee with a list of all Eligible Loans originated, acquired,
maintained or held under Eligible Lender Number 834012 on a quarterly basis (and
upon the written request of the Eligible Lender Trustee).
SECTION 3.07. AUTHORITY OF ELIGIBLE LENDER TRUSTEE. Notwithstanding
anything herein, the Eligible Lender Trustee has any and all power, right and
authority, where permitted by law and regulation, to realize on any Guarantee of
the Eligible Loans under the Guarantee Agreement.
SECTION 3.08. POWER OF ATTORNEY TO SPONSOR. The Eligible Lender Trustee
hereby does make, constitute and appoint the Sponsor 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 Eligible Loans pursuant to Section 3.04 hereof
and to take any other action that the Sponsor may direct the Eligible Lender
Trustee to take hereunder and the Sponsor does hereby accept such appointment.
ARTICLE IV
CONCERNING THE ELIGIBLE LENDER TRUSTEE
SECTION 4.01. ACCEPTANCE OF THE TRUSTS. The Sponsor hereby appoints the
Eligible Lender Trustee to act as its "eligible lender trustee" to hold legal
title to the Eligible Loans pursuant to the Higher Education Act and this
Eligible Lender Trust Agreement. The Eligible Lender Trustee shall hold legal
title to the Eligible Loans, for the benefit of the Sponsor pursuant to the
Higher Education Act 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.
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(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.
(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 Sponsor set forth herein shall be taken as the statements
of the Sponsor, and the Eligible Lender Trustee assumes no responsibility for
the correctness of the same or for inquiring with respect thereto. The Eligible
Lender Trustee makes no representations as to the title of the Sponsor in
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 Sponsor 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 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. The Sponsor
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, including, without limitation, reasonable attorney fees
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 Custodian Agreement, 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. Such indemnification by Sponsor shall survive the
termination of this Agreement and/or the resignation of the Eligible Lender
Trustee and shall include, without limitation, any loss, liability, expense or
advance incurred or made by the Eligible Lender Trustee as a result of the acts
or omissions of any servicer in the origination or servicing of any of the
Eligible Loans.
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
10
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 Sponsor 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 a Sponsor 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.
The Eligible Lender Trustee shall upon the written instruction of the
Sponsor sell, assign, transfer, convey or repurchase Eligible Loans in
accordance with this Eligible Lender Trust Agreement. The Eligible Lender
Trustee is further authorized to enter to 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 Eligible Lender
Trustee shall be entitled to reasonable compensation for all services rendered
by it in the execution of the Trust created hereunder and in the exercise and
performance of any of the powers and duties of the Eligible Lender Trustee
hereunder. Such compensation shall be as set forth in the fee letter dated
December 20, 2002, and shall be paid immediately upon execution of this Eligible
Lender Trust Agreement. For each succeeding calendar year, an annual
administration fee shall be paid on or before the first day of such calendar
year pursuant to an invoice submitted by the Eligible Lender Trustee to the
Sponsor. The Eligible Lender Trustee shall also be entitled to reimbursement
from the Sponsor for all reasonable costs and out-of-pocket expenses incurred by
the Eligible Lender Trustee. Such costs and expenses shall be billed to the
Sponsor at the cost of the Eligible Lender Trustee. Such expenses shall include
all expenses, disbursements and advances incurred or made by the Eligible Lender
Trustee in accordance with the duties required under any of the provisions of
this Eligible Lender Trustee Agreement (including the reasonable compensation
and the expenses and disbursements of its counsel and of all persons not
regularly in its employ) and those duties expressly required by law which may
not be transferred to the Sponsor.
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 Sponsor.
11
(b) The Eligible Lender Trustee, by the execution hereof,
covenants, represents and agrees that:
(i) it is an Eligible Lender as defined in the Higher
Education Act and that it will remain an Eligible Lender;
(ii) it shall use eligible lender number 834012, which
shall be the Eligible Lender Trustee's eligible lender number for
Eligible Loans which it owns as legal owner for the Sponsor as
beneficial owner hereunder; and
(iii) it shall be responsible for the preservation of the
supporting documents submitted to and received by it relating to
Eligible Loans, if any; provided, however, that the separate
Servicer of the Eligible Loans shall be responsible for such
preservation of the 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.
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 Sponsor 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 Sponsor, the Eligible Lender Trustee may (a)
appoint a temporary successor Eligible Lender Trustee reasonably acceptable to
the Sponsor having the qualifications provided in Section 4.11 hereof; or (b)
request a court of competent jurisdiction to (i) require the Sponsor 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 reasonably acceptable to the Sponsor 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 Sponsor may remove
such temporary successor Eligible Lender Trustee and appoint a successor thereto
pursuant to Section 4.11 hereof.
The Eligible Lender Trustee agrees to provide all reasonable cooperation
and assistance to the Sponsor in the event of appointment of a successor
Eligible Lender Trustee to ensure a smooth transition, including, without
limitation, executing such documents and providing such consents as are
reasonably necessary to facilitate the continued processing of Eligible Loans
during such transition and the assignment to the successor Eligible Lender
Trustee for continued
12
use in connection with the Trust created hereunder of all lender identification
numbers assigned by the Secretary to the Eligible Lender Trustee and used in
connection with such Trust.
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 Sponsor upon payment to the Eligible Lender Trustee so removed of all money,
fees and expenses then due to it hereunder, as set forth in Section 4.07 hereof,
and appointment of a successor thereto by the Sponsor 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
Sponsor 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
Sponsor 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. ASSIGNMENT; CORPORATE CHANGES IN TRUSTEE. Any bank,
corporation or other entity into which the Eligible Lender Trustee may be merged
or converted or with which it may be consolidated; any bank, corporation or
other entity resulting from any merger, conversion or consolidation to which the
Eligible Lender Trustee shall be a party; and any bank, corporation or other
entity to which the Eligible Lender Trustee's rights and obligations hereunder
are assigned, shall be the Eligible Lender Trustee under this Eligible Lender
Trust Agreement without any further act; provided the resulting bank,
corporation, assignee or other entity at all times meets the qualifications set
forth herein.
SECTION 4.13. 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 Sponsor. If the
Eligible Lender Trustee receives any notice or communication of any type,
whether via telephone, facsimile, personal delivery or otherwise, it shall
promptly notify the Sponsor by whatever means it chooses, which notice shall be
confirmed in writing, as soon as practicable at the notice address for the
Sponsor set forth in Section 6.04. 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.
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The Sponsor 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 4.14. 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 Eligible Loans held by an "eligible lender"
under the Higher Education Act, and the Sponsor 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
Sponsor or the Servicer of the 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
Sponsor, the Secretary, or the Guarantee Agency, and upon receipt of a
Sponsor 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; and
(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 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 Sponsor.
SECTION 4.15. SALE OF ELIGIBLE LOANS. At the written direction of the
Sponsor, the Eligible Lender Trustee shall sell Eligible Loans to designated
purchasers. The Sponsor covenants that in the event it intends to direct the
sale of the Eligible Loans, it shall give written notice thereof to the Eligible
Lender Trustee not later than two Business Days prior to the proposed sale. The
Sponsor certifies to the Eligible Lender Trustee that Eligible Loans shall not
be sold to any Person unless such Person is an Eligible Lender.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Each party hereto represents and warrants to the other party (a) that it is
authorized to enter into and perform its obligations under this Eligible Lender
Trust Agreement; (b) that the official
14
executing this Eligible Lender Trust Agreement on behalf of such party is
authorized to bind such party hereto; (c) that execution and performance of this
Eligible Lender Trust Agreement does not violate any other agreement by which it
is bound, or constitute a default under any other such agreement, and will not,
with the passage of time, constitute such a default; and (d) that this Eligible
Lender Trust Agreement constitutes a valid agreement of such party binding and
enforceable against such party in accordance with its terms.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. ELIGIBLE LENDER TRUST AGREEMENT BINDING UPON SUCCESSORS OR
ASSIGNS OF ELIGIBLE LENDER TRUSTEE AND SPONSOR. 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
Sponsor and the Eligible Lender Trustee, and shall inure to the benefit of the
Eligible Lender Trustee and its permissible successor and assigns and the
Sponsor, its successors or substitutes in trust and assigns. The Eligible Lender
Trustee acknowledges that the Sponsor may assign its beneficial rights hereunder
in Eligible Loans and payments related thereto with the consent of the Eligible
Lender Trustee, which consent shall not be unreasonably withheld.
SECTION 6.02. 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 6.03. 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 Sponsor 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 6.04. 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 βββ βββββββββββ ββββββ, βββββ βββ,
ββββββ, ββββββββ βββββ Attention: Corporate Trust Department (telephone (720)
βββ-ββββ, facsimile (βββ) βββ-ββββ), or at such other address as may have been
filed in writing by the Eligible Lender Trustee; if to the Sponsor, to Education
Loan Funding LLC, ββββ ββββββββββ ββββββ, βββββ ββββ, ββββββ, ββββββββ βββββ,
Attention: ββββββ ββββ (telephone (βββ) βββ-ββββ; facsimile (βββ) βββ-ββββ), or
to the Sponsor at such other address as may have been filed in writing by the
Sponsor. 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
15
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 Sponsor by whatever means it chooses, which notice shall be confirmed
in writing, as soon as practicable at the notice address for the Sponsor 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 6.05. 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 6.06. 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 6.07. AMENDMENTS. The Sponsor and the Eligible Lender Trustee, from
time to time, may amend this Eligible Lender Trust Agreement subject to any
provisions to the contrary herein.
SECTION 6.08. NO PETITION. The Eligible Lender Trustee will not at any time
institute against the Sponsor 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.
16
IN WITNESS WHEREOF,
GMAC ELF LLC has caused this Eligible Lender Trust
Agreement to be signed in its name and on its behalf by its manager and Zions
First National Bank, as Eligible Lender Trustee 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 ELF LLC
By
------------------------------------------
ββββββ β. Page, Vice President
ZIONS FIRST NATIONAL BANK, as Eligible
Lender Trustee
By
------------------------------------------
βββββ β. ββββ, Vice President
17
EXHIBIT A
TRUSTEE GUARANTEE AGREEMENTS
[TO BE PROVIDED.]
