EXHIBIT 99.1
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LOAN SALE AGREEMENT
among
GMAC EDUCATION LOAN FUNDING TRUST-I,
as Purchaser
[ELIGIBLE LENDER TRUSTEE NAME],
as Purchaser Trustee
GMAC ELF LLC,
as Seller
and
[ELIGIBLE LENDER TRUSTEE NAME],
as Seller Trustee
Dated as of [DATE]
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TABLE OF CONTENTS
Page
Section 1 Definitions ......................................................1
Section 2 Sale of FFELP Loans ..............................................4
Section 3 Representations, Warranties, and Covenants of the Seller
and the Seller Trustee ...........................................4
Section 4 [Reserved] ......................................................11
Section 5 Conditions of Purchase ..........................................11
Section 6 [Reserved] ......................................................12
Section 7 Repurchase Obligation ...........................................12
Section 8 Notification to Borrowers .......................................15
Section 9 Additional Covenants ............................................15
Section 10 Payment of Expenses and Taxes ...................................16
Section 11 [Reserved] ......................................................16
Section 12 Other Provisions ................................................16
EXHIBIT A LOAN TRANSFER ADDENDUM
EXHIBIT B SELLER'S CLOSING CERTIFICATE
EXHIBIT C BLANKET ENDORSEMENT OF STUDENT LOAN PROMISSORY NOTES
EXHIBIT D ▇▇▇▇ OF SALE
LOAN SALE AGREEMENT
This
Loan Sale Agreement is made and entered into as of [DATE], by and
among GMAC EDUCATION LOAN FUNDING TRUST-I, a Delaware statutory trust (the
"Purchaser"), acting by and through [ELIGIBLE LENDER TRUSTEE NAME], not
individually but solely as eligible lender trustee for the Purchaser (the
"Purchaser Trustee") and
GMAC ELF LLC, a Delaware limited liability company (the
"Seller") acting by and through [ELIGIBLE LENDER TRUSTEE NAME], not individually
but solely as eligible lender trustee for the Seller (the "Seller Trustee").
W I T N E S S E T H :
WHEREAS, the Purchaser, by and through the Purchaser Trustee, desires to
acquire from the Seller (by and through the Seller's Trustee) certain FFELP
Loans (as defined below) to assist students in obtaining a post-secondary
education, title to which will be held by the Purchaser Trustee pursuant to the
Eligible Lender Trust Agreement, and the Seller, by and through the Seller
Trustee, desires to sell certain FFELP Loans to the Purchaser, title to which
will be held by and through the Purchaser Trustee, in accordance with the terms
and conditions of this
Loan Sale Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this
Loan Sale
Agreement hereby agree as follows:
SECTION 1. DEFINITIONS.
"▇▇▇▇ OF SALE" has the meaning set forth in Section 5(b) hereof.
"BLANKET ENDORSEMENT" has the meaning set forth in Section 5(b) hereof.
"BORROWER" means the student or parent obligor under an Eligible Loan.
"BUSINESS DAY" means any day of the week other than Saturday, Sunday, or a
day which shall be a legal holiday in or a day on which national banking
institutions are authorized or obligated by law or executive order to close.
"CONSOLIDATION LOAN REBATE AMOUNT" means the payment due to the Secretary
of Education pursuant to Section 428C(f) of the Higher Education Act.
"DEFECT" has the meaning set forth in Section 7 hereof.
"DELETED LOAN" has the meaning set forth in Section 7 hereof.
"ELIGIBLE LENDER TRUST AGREEMENT" means the Eligible Lender Trust
Agreement, dated as of [DATE], between the Purchaser Trustee and the Purchaser.
"ELIGIBLE LOAN" means a FFELP Loan authorized to be acquired by the
Purchaser by and through the Purchaser Trustee which (a) has been or will be
made to a borrower for post-secondary
education; (b) is Guaranteed; (c) is a consolidation loan which was originated
under Section 428C of the Higher Education Act; (d) qualifies the holder thereof
to receive Interest Subsidy Payments and Special Allowance Payments to the
extent applicable; and (e) in all material respects, complies with each
representation and warranty contained in Section 3(a) hereof, and in all
respects with the requirements of the Federal Family Education Loan Program and
the Higher Education Act, as of the applicable Loan Purchase Date or date of
substitution for a Deleted Loan hereunder, as applicable.
"FEDERAL CONTRACTS" means all agreements between a 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 limited to, reimbursement of amounts paid or payable upon
defaulted Eligible Loans and other student loans insured or guaranteed by any
Guarantee Agency and Interest Subsidy Payments and Special Allowance Payments,
if applicable, to holders of qualifying student loans guaranteed by any
Guarantee Agency.
"FFELP LOANS" means those specific Federal Family Education Loan Program
loans acquired by the Purchaser, by and acting through the Purchaser Trustee,
from the Seller by and acting through the Seller Trustee pursuant to this
Loan
Sale Agreement, including, without limitation, the promissory notes evidencing
such Loans and the related documentation in connection with each such loan.
"GUARANTEE" or "GUARANTEED" means the guarantee by a Guarantee Agency, in
accordance with the terms and conditions of the applicable Guarantee Agreement,
of the principal of and accrued interest on the related FFELP Loan to the
maximum extent permitted under the Higher Education Act on FFELP Loans which
have been originated, held and serviced in full compliance with the Higher
Education Act, and the coverage of such FFELP Loan by the Federal Contracts
providing, among other things, for reimbursement to the Guarantee Agency for
losses incurred by it on defaulted Eligible Loans acquired by the Purchaser
hereunder and guaranteed by such Guarantee Agency to the extent of the maximum
reimbursement allowed by the Federal Contracts.
"GUARANTEE AGENCY" 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 Purchaser Trustee acting on behalf
of the Purchaser.
"GUARANTEE AGREEMENT" means the Federal Contracts, an agreement between a
Guarantee Agency and either the Purchaser Trustee acting on behalf of the
Purchaser or the Seller Trustee acting on behalf of the Seller providing for the
Guarantee by such Guarantee Agency of the principal of and accrued interest on
Eligible Loans to Borrowers, made or acquired by the Purchaser by and acting
through the Purchaser Trustee or the Seller by and acting through the Seller
Trustee from time to time, and any other similar guarantee or agreement issued
by a Guarantee Agency to the Purchaser or the Purchaser Trustee pertaining to
Eligible Loans.
"GUARANTEED LOANS" means FFELP Loans that are Guaranteed.
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"GUARANTEE PROGRAM" means a Guarantee Agency's student loan guaranty
program pursuant to which such Guarantee Agency guarantees or insures student
loans.
"HIGHER EDUCATION ACT" means Title IV, Parts B, F and G, of the Higher
Education Act of 1965, as amended or supplemented and in effect from time to
time, or any successor enactment thereto, and all regulations promulgated
thereunder and any directives issued by the Secretary of Education.
"INTEREST SUBSIDY PAYMENTS" means interest subsidy payments received from
the Secretary of Education pursuant to Section 428 of the Higher Education Act
or similar payments authorized by federal law or regulation.
"LOAN PURCHASE DATE" means each date on which the Purchaser acting by and
through the Purchaser Trustee, acquires Eligible Loans from the Seller acting by
and through the Seller Trustee, as described in Section 2 hereof and the
applicable Loan Transfer Addendum.
"
LOAN SALE AGREEMENT" means this
Loan Sale Agreement, including all
exhibits and schedules attached hereto, and any addenda, supplements or
amendments hereto, including, without limitation, each Loan Transfer Addendum.
"LOAN TRANSFER ADDENDUM" means each Loan Transfer Addendum, in the form set
forth in Exhibit A attached hereto and by this reference made a part hereof that
is executed and delivered by the Seller, the Seller Trustee, the Purchaser and
the Purchaser Trustee.
"LOAN TRANSFER SCHEDULE" means a written schedule in the form attached to
the Loan Transfer Addendum.
"NOTE" means the promissory note of the Borrower and any amendment thereto
evidencing the Borrower's obligation under a FFELP Loan.
"PERSON" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint stock company, trust (including any
beneficiary thereof), unincorporated organization or government or any agency or
political subdivision thereof.
"PURCHASER" has the meaning set forth in the preamble to this
Loan Sale
Agreement.
"PURCHASE PRICE" with respect to FFELP Loans purchased hereunder, has the
meaning set forth in the Loan Transfer Addendum.
"PURCHASER TRUSTEE" has the meaning set forth in the preamble to this
Loan
Sale Agreement.
"QUALIFIED SUBSTITUTE STUDENT LOAN" means a FFELP Loan being substituted
for a Deleted Loan pursuant to Section 7 hereof that was originated under the
same loan program and is guaranteed by a Guarantee Agency and entitles the
holder thereof to receive interest at a per annum rate of interest that is at
least equal to the per annum rate of interest of such Deleted Loan.
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"SECRETARY OF EDUCATION" means the Secretary of the United States
Department of Education, or any officer, board, body, commission or agency
succeeding to the functions thereof under the Higher Education Act.
"SELLER" has the meaning set forth in the preamble to this Loan Sale
Agreement.
"SELLER TRUSTEE" has the meaning set forth in the preamble to this Loan
Sale Agreement.
"SELLER'S CLOSING CERTIFICATE" has the meaning set forth in Section 5(b)
hereof.
"SPECIAL ALLOWANCE PAYMENTS" means special allowance payments authorized to
be made by the Secretary of Education pursuant to Section 438 of the Higher
Education Act or similar allowances authorized from time to time by federal law
or regulation.
SECTION 2. SALE OF FFELP LOANS.
(a) From time to time, the Seller, in its sole discretion, may
offer to the Purchaser for purchase pursuant to the terms and conditions of
this Loan Sale Agreement and the applicable Loan Transfer Addendum one or
more portfolios of FFELP Loans. The Seller, acting by and through the
Seller Trustee, hereby agrees to sell to the Purchaser acting by and
through the Purchaser Trustee, and the Purchaser, acting by and through the
Purchaser Trustee under the Eligible Lender Trust Agreement, hereby agrees
to purchase from the Seller by and through the Seller Trustee, such
portfolios of FFELP Loans that are Eligible Loans, all pursuant to this
Loan Sale Agreement and as set forth in the applicable Loan Transfer
Addendum.
(b) Although the parties hereto intend that each transfer of the
FFELP Loans hereunder constitutes an absolute assignment and transfer of
ownership of all of the Seller's and Seller Trustee's right, title and
interest in and to the FFELP Loans, and not a loan, if any such assignment
is deemed to be a loan, the parties hereto intend that the rights and
obligations of the parties hereto to such loan shall be established
pursuant to the terms of this Loan Sale Agreement. The parties also intend
and agree that the Seller and the Seller Trustee shall be deemed to have
granted to the Purchaser and the Purchaser Trustee, each as their interests
may appear, and the Seller and the Seller Trustee do hereby grant to the
Purchaser and the Purchaser Trustee, a security interest in such FFELP
Loans and that this Loan Sale Agreement shall constitute a security
agreement under applicable law.
(c) Delivery and payment for the FFELP Loans shall take place at
a location to be reasonably specified by the Purchaser not later than the
applicable Loan Purchase Date set forth in the Loan Transfer Addendum
pertaining to such FFELP Loans.
SECTION 3. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF THE SELLER AND
THE SELLER TRUSTEE.
(a) As an inducement to cause the Purchaser acting by and
through the Purchaser Trustee to purchase the FFELP Loans hereunder from
the Seller acting by and through the Seller Trustee on the Loan Purchase
Date, the Seller makes the following
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representations and warranties on the applicable Loan Purchase Date to the
Purchaser and the Purchaser Trustee on each Loan Purchase Date (or such
other date as is specifically set forth herein) with respect to each FFELP
Loan transferred hereunder on the Loan Purchase Date:
(i) Any information furnished by the Seller to the
Purchaser, or the Purchaser's agents with respect to the FFELP
Loan, including the Loan Transfer Schedule attached to the Loan
Transfer Addendum, is true, complete and correct in all material
respects. Any payments on the FFELP Loans received by the Seller or
its agent that have been allocated to reduction of principal and
interest on such FFELP Loan have been allocated in accordance with
the Higher Education Act.
(ii) The amount of the unpaid principal balance of the
FFELP Loan shown on the Loan Transfer Schedule is correct, and the
FFELP Loan is not subject to any counterclaim, offset, defense or
right to rescission which can be asserted and maintained or which,
with notice, lapse of time or the occurrence or failure to occur of
any act or event could be asserted and maintained, by the Borrower
against the Seller or the Purchaser as assignee thereof. The Seller
shall have taken all reasonable actions to assure that the maker of
the FFELP Loan has not and may not acquire a defense to the payment
thereof. The FFELP Loan does not carry a rate of interest less
than, or in excess of, the applicable rate of interest required by
the Higher Education Act. If the Higher Education Act permits the
Seller to charge an interest rate less than the applicable rate of
interest, the FFELP Loan does not bear interest at a rate lower
than the applicable rate of interest; provided, however, that the
Purchaser may approve, in its sole discretion, in writing, interest
reductions which are part of a borrower repayment incentive program
of the Seller, the terms of which have been fully described in
detail and in writing to the Purchaser.
(iii) Immediately prior to the sale and assignment of the
FFELP Loan pursuant to this Loan Sale Agreement to the Purchaser
and the Purchaser Trustee, the Seller was the sole beneficial owner
of the FFELP Loan, and together the Seller and the Seller Trustee
held good and marketable title to the FFELP Loan, free and clear of
all security interests of any description, liens, charges, claims,
offsets, defenses, counterclaims, or encumbrances of any nature.
(iv) The FFELP Loan has been duly executed and delivered,
is in full force and effect in accordance with its terms, and
constitutes the legal, valid and binding obligation of the maker
(and the endorser, if any) thereof, enforceable in accordance with
its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, moratorium, reorganization or
similar laws in effect which affect the enforcement of creditors'
rights generally, by equitable limitations on the availability of
specific remedies, and by principles of equity.
(v) The FFELP Loan has been properly originated and is
an Eligible Loan.
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(vi) The Seller and any independent servicer have each
exercised and shall continue to exercise, until the applicable Loan
Purchase Date, due diligence and reasonable care in making,
administering, servicing and collecting the FFELP Loan, and, to the
Seller's knowledge, all disclosures of information required to be
made in connection therewith pursuant to the Higher Education Act
have been made.
(vii) The FFELP Loan has been duly made and serviced in
accordance with the provisions of the Higher Education Act and all
other applicable federal and state laws.
(viii) The Seller or the lender that originated the FFELP
Loan, has reported and paid or will pay when due the amount of
origination fees, if any, authorized to be collected with respect
to the loan pursuant to Section 438(c) of the Higher Education Act
to the Secretary of Education for the period in which the fee was
authorized to be collected.
(ix) The Seller or originating lender has made or will
make any refund of an origination fee due and owing in connection
with the FFELP Loan that may be required pursuant to the Higher
Education Act.
(x) The FFELP Loan is Guaranteed; each Guarantee, is in
full force and effect, is freely transferable as an incident to the
transfer of the related FFELP Loan and is valid and binding upon
the parties thereto; all amounts due and payable to the Secretary
of Education or a Guarantee Agency, as the case may be, have been
paid in full by the Seller or a previous beneficial owner of the
FFELP Loan and the FFELP Loan has not at any time been tendered to
either the Secretary of Education or any Guarantee Agency for
payment.
(xi) The FFELP Loan was made in compliance with all
applicable local, state and federal laws, rules and regulations,
including, without limitation, all applicable nondiscrimination,
truth-in-lending, consumer credit and usury laws.
(xii) The FFELP Loan is evidenced by an executed Note
(which may be in electronic form), which Note is a valid and
binding obligation of the Borrower, enforceable by or on behalf of
the holder thereof in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
moratorium, reorganization or similar laws in effect which affect
the enforcement of creditors' rights generally, by equitable
limitations on the availability of specific remedies, and by
principles of equity.
(xiii) The FFELP Loan has no payment that is more than
[___] days overdue and no default, breach, violation or event
permitting acceleration under the terms of the FFELP Loan has
arisen; and neither the Seller nor any predecessor holder of the
FFELP Loan has waived any of the foregoing other than as approved
in writing by the Purchaser.
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(xiv) The FFELP Loan is accruing interest (whether or not
such interest is being paid currently, either by the Borrower or
the Secretary of Education, or is being capitalized).
(xv) Other than in connection with this Loan Sale
Agreement: (i) the Seller has not pledged, assigned, transferred,
granted a security interest in, or otherwise conveyed the FFELP
Loan and (ii) the Seller has not authorized the filing of and is
not aware of any financing statements filed against the Seller that
include a description of collateral covering the FFELP Loan other
than any financing statement relating to transfer of the FFELP Loan
pursuant to this Loan Sale Agreement. The Seller is not aware of
any judgment or tax lien filings against the Seller.
(xvi) The Note evidencing the FFELP Loan has no marks or
notations indicating that they have been pledged, assigned or
otherwise conveyed to any Person other than the Purchaser. There is
only one original executed copy of the Note evidencing the FFELP
Loan. The parties acknowledge that the Seller has not independently
reviewed the Note.
(xvii) The Borrower under the FFELP Loan is not noted in
the related loan file as a debtor in a bankruptcy proceeding.
(xviii) All Consolidation Loan Rebate Amounts with respect
to the FFELP Loan due through the end of the month preceding the
Loan Purchase Date have been or will be paid as required by the
Higher Education Act on or before the date due.
(b) As an inducement to cause the Purchaser acting by and
through the Purchaser Trustee to purchase the FFELP Loans hereunder from
the Seller acting by and through the Seller Trustee on each Loan Purchase
Date, the Seller makes the following representations and warranties on the
applicable Loan Purchase Date to the Purchaser and the Purchaser Trustee on
each Loan Purchase Date (or such other date as is specifically set forth
herein):
(i) The Seller is duly organized, validly existing and
in good standing under the laws of its applicable jurisdiction of
organization and has the power and authority to own its assets and
carry on its business as now being conducted.
(ii) The Seller has, and its officers acting on its
behalf have, full legal power and authority to execute and deliver,
and to perform in accordance with, this Loan Sale Agreement.
(iii) The execution and delivery of this Loan Sale
Agreement, the consummation of the transactions herein contemplated
and compliance with the terms, conditions and provisions of this
Loan Sale Agreement do not and will not (A) result in the breach of
any terms or provisions of the Certificate of Formation or the
Limited Liability Company Agreement of the Seller or (B) conflict
with or result in a breach of any of the terms, conditions or
provisions of any agreement
7
or instrument to which the Seller is a party or its property is
subject or by which it is bound or constitute a default or result
in an acceleration of any obligation thereunder. The Seller is not
a party, and neither it nor its property are subject, to or bound
by any agreement or instrument or subject to any charter or other
limited liability company restriction, or judgment, order, writ,
injunction, or decree of any court, or law, or rule, regulation,
order or demand of any federal, state, municipal or governmental
agency that would materially and adversely affect the condition
(financial or other) or operations of the Seller, the ability of
the Seller to perform its obligations under this Loan Sale
Agreement or the ownership of the Purchaser or the Purchaser
Trustee of the FFELP Loans purchased hereunder.
(iv) This Loan Sale Agreement constitutes a valid and
binding obligation of the Seller enforceable against it in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and
other similar laws relating to or affecting creditors' rights
generally and court decisions with respect thereto.
(v) All actions, approvals, consents, waivers,
exemptions, variances, franchises, orders, permits, authorizations,
rights and licenses required of Seller to be taken, given or
obtained, as the case may be, by or from any federal, state or
other governmental authority or agency, that are necessary or
advisable in connection with the sale of the FFELP Loans hereunder
and the execution and delivery by the Seller of this Loan Sale
Agreement and related documents (i) have been duly taken, given or
obtained, as the case may be, are in full force and effect on the
date hereof, (ii) are not subject to any pending proceedings or
pending or possible future appeals (administrative, judicial or
otherwise) and (iii) are adequate to authorize the consummation and
performance of the transactions contemplated by this Loan Sale
Agreement and the related documents on the part of the Seller.
(vi) There are no proceedings or investigations pending
or, to the Seller Trustee's best knowledge, threatened before any
court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller or its
properties: (A) asserting the invalidity of this Loan Sale
Agreement; (B) seeking to prevent the consummation of any of the
transactions contemplated by this Loan Sale Agreement or (C)
seeking any determination or ruling that might materially and
adversely affect the performance by the Seller Trustee of its
obligations under, or the validity or enforceability of, this Loan
Sale Agreement.
(vii) There is no action, suit, proceeding, or
investigation pending or, to the best of the Seller's knowledge,
threatened against the Seller which, if determined adversely to the
Seller, either in any one instance or in the aggregate, (i) may
result in any material adverse change in the business, operations,
financial condition, properties or assets of the Seller, or in any
material impairment of the right or ability of the Seller to carry
on its business substantially as now conducted, or in any material
liability on the part of the Seller, or prohibit or
8
prevent any action taken or to be taken by the Seller in connection
with its obligations contemplated herein, or which would be likely
to impair materially the ability of the Seller to perform under the
terms of this Loan Sale Agreement or (ii) would draw into question
the validity of this Loan Sale Agreement, the FFELP Loans sold
hereunder, or the title or interest of the Seller in the FFELP
Loans.
(viii) Seller has not employed or otherwise engaged any
broker or finder in connection with the negotiation or execution of
this Loan Sale Agreement. Seller has not conducted the negotiations
with respect to this Loan Sale Agreement or the transactions to be
effected pursuant to this Loan Sale Agreement in such a manner as
to give rise to any claims against Purchaser for any brokerage
commission, finder's fee or similar payment.
(ix) The transfer, assignment and conveyance of the FFELP
Loans by the Seller pursuant to this Loan Sale Agreement are not
subject to the bulk transfer or any similar statutory provisions in
effect in any applicable jurisdiction. The Seller is not
transferring the FFELP Loans with an actual intent to hinder, delay
or defraud any of its creditors. The Seller is solvent and will not
be rendered insolvent by the sale of the FFELP Loans hereunder.
(x) To the best knowledge of the Seller, the
consideration received by the Seller for the sale of the FFELP
Loans equals the fair market value of such FFELP Loans. The Seller
has received fair consideration and reasonably equivalent value in
exchange for the sale of the FFELP Loans pursuant to this Loan Sale
Agreement.
(xi) Seller does not believe, nor does it have any reason
or cause to believe, that it cannot perform each and every covenant
contained in this Agreement.
(xii) All amounts due to the servicer of the FFELP Loans
on behalf of the Seller have been paid or will be paid, or caused
to be paid, when due by the Seller.
(c) As an inducement to cause the Purchaser acting by and
through the Purchaser Trustee to purchase the FFELP Loans hereunder from
the Seller acting by and through the Seller Trustee on each Loan Purchase
Date, the Seller acting by and through Seller Trustee makes the following
representations and warranties on the applicable Loan Purchase Date to the
Purchaser and the Purchaser Trustee on each Loan Purchase Date (or such
other date as is specifically set forth herein):
(i) The Seller Trustee is duly organized, validly
existing as a [national banking association] [state chartered
banking corporation] with full power and authority to own its
properties and to conduct its business as such properties are
currently owned and such business is presently conducted.
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(ii) The Seller Trustee has the power and authority to
execute and deliver this Loan Sale Agreement and to carry out its
terms, and the execution, delivery and performance of this Loan
Sale Agreement have been duly authorized by the Seller Trustee by
all necessary corporate action.
(iii) This Loan Sale Agreement constitutes a valid and
binding obligation of the Seller Trustee enforceable against it in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and
other similar laws relating to or affecting creditors' rights
generally and court decisions with respect thereto.
(iv) The consummation of the transactions contemplated by
this Loan Sale Agreement and the fulfillment of the terms hereof do
not conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of
time) a default under, the articles of organization or bylaws of
the Seller Trustee or any agreement or other instrument to which
the Seller Trustee is a party or by which it is bound.
(v) There are no proceedings or investigations pending
or, to the Seller Trustee's best knowledge, threatened before any
court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Seller Trustee or its
properties: (A) asserting the invalidity of this Loan Sale
Agreement; (B) seeking to prevent the consummation of any of the
transactions contemplated by this Loan Sale Agreement or (C)
seeking any determination or ruling that might materially and
adversely affect the performance by the Seller Trustee of its
obligations under, or the validity or enforceability of, this Loan
Sale Agreement.
(vi) All actions, approvals, consents, waivers,
exemptions, variances, franchises, orders, permits, authorizations,
rights and licenses required of the Seller Trustee to be taken,
given or obtained, as the case may be, by or from any federal,
state or other governmental authority or agency, that are necessary
in connection with the sale of the FFELP Loans hereunder and the
execution and delivery by the Seller Trustee of this Loan Sale
Agreement and related documents (i) have been duly taken, given or
obtained, as the case may be, are in full force and effect on the
date hereof, (ii) are not subject to any pending proceedings or
pending or possible future appeals (administrative, judicial or
otherwise) and (iii) are adequate to authorize the consummation and
performance of the transactions contemplated by this Loan Sale
Agreement and the related documents on the part of the Seller
Trustee.
(vii) The Seller Trustee is not a party, and neither it
nor its property are subject, to or bound by any agreement or
instrument or subject to any charter or other corporation
restriction, or judgment, order, writ, injunction, or decree of any
court, or law, or rule, regulation, order or demand of any federal,
state, municipal or governmental agency which might have
consequences that would materially and adversely affect the ability
of the Seller Trustee to perform its obligations
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under this Loan Sale Agreement or the ownership of the Purchaser or
the Purchaser Trustee of the FFELP Loans purchased hereunder.
(viii) The Seller Trustee has not received written notice
of any adverse claim (as such terms are used in Delaware UCC
Section 8-302) with respect to the FFELP Loans.
(ix) The Seller Trustee is an eligible lender or other
qualified holder of loans originated pursuant to the Federal Family
Education Loan Program established under the Higher Education Act.
(x) The Seller Trustee has in its possession a copy of
the endorsement and Loan Transmittal Summary Form identifying the
Note that constitute or evidence each FFELP Loan sold and assigned
hereunder on the applicable Loan Transfer Date.
(xi) With respect to each FFELP Loan sold and assigned
hereunder on the applicable Loan Transfer Date, and other than in
connection with this Loan Sale Agreement or in connection with a
transfer of the FFELP Loan to the Seller with respect to which the
Seller Trustee was an eligible lender trustee acting on behalf of
the transferor of such FFELP Loan to the Seller: (i) the Seller
Trustee has not pledged, assigned, transferred, granted a security
interest in, or otherwise conveyed the FFELP Loan and (ii) the
Seller Trustee has not authorized the filing of and is not aware of
any financing statements filed against the Seller Trustee that
include a description of collateral covering the FFELP Loan.
(xii) With respect to each FFELP Loan sold and assigned
hereunder on the applicable Loan Transfer Date, immediately prior
to the sale and assignment of the FFELP Loan pursuant to this Loan
Sale Agreement to the Purchaser and the Purchaser Trustee, the
Seller Trustee held good and indefeasible legal title to the FFELP
Loan for the benefit of the Seller, which legal title was free and
clear of all security interests of any description, liens, charges,
claims, offsets, defenses, counterclaims, or encumbrances of any
nature.
(d) Each representation, warranty, certification, covenant and
agreement contained in this Loan Sale Agreement shall survive each Loan
Purchase Date.
SECTION 4. [RESERVED]
SECTION 5. CONDITIONS OF PURCHASE. The Purchaser's obligation to acquire
and pay for the FFELP Loans hereunder by and through the Purchaser Trustee as of
any Loan Purchase Date shall be subject to each of the following conditions
precedent:
(a) All representations and warranties by or on behalf of the
Seller contained in this Loan Sale Agreement shall be true in all material
respects on the applicable Loan Purchase Date (or such other date as is
specifically set forth herein with respect to any such representation or
warranty).
11
(b) Execution (where required) and delivery by the Seller and
the Seller Trustee to the Purchaser and the Purchaser Trustee on or before
the Loan Purchase Date of the following completed documentation: (i) the
Loan Transfer Addendum; (ii) a Seller's Closing Certificate dated as of the
Loan Purchase Date substantially in the form of Exhibit B attached hereto
and by this reference made a part hereof (and delivery of the documents
described in Exhibit B) (a "Seller's Closing Certificate"); (iii) a Blanket
Endorsement dated as of the Loan Purchase Date substantially in the form
set forth in Exhibit C attached hereto and by this reference made a part
hereof (a "Blanket Endorsement"); (iv) a ▇▇▇▇ of Sale dated as of the Loan
Purchase Date substantially in the form set forth in Exhibit D attached
hereto and by this reference made a part hereof (a "▇▇▇▇ of Sale"); (v)
UCC-1 Financing Statements evidencing the transfer from the Seller and the
Seller Trustee to the Purchaser Trustee on behalf and at the written
direction of the Purchaser and UCC lien searches sufficiently in advance of
the Loan Purchase Date so as to permit review thereof by the Purchaser to
its satisfaction, if either or both are requested by the Purchaser; and
(vi) UCC termination statements or releases, if any, requested by the
Purchaser releasing any security interest in one or more FFELP Loans to be
purchased on the Loan Purchase Date.
(c) Any notification to or approval by the Secretary of
Education or a Guarantee Agency required by the Higher Education Act or a
Guarantee Agreement as a condition to the assignment of the FFELP Loans
shall have been made or received and evidence thereof delivered to the
Purchaser.
(d) The entire interest of the Seller in each FFELP Loan shall
have been duly assigned pursuant to a Blanket Endorsement, such endorsement
to be without recourse except as provided in Section 7 hereof.
(e) Physical custody and possession of the FFELP Loans
(including, without limitation, all information and documentation which is
described in a Seller's Closing Certificate) shall be transferred in the
manner directed by the Purchaser.
SECTION 6. [RESERVED]
SECTION 7. REPURCHASE OBLIGATION.
(a) Following the purchase of a FFELP Loan hereunder, any of the
following shall be deemed a "Defect" with respect to such FFELP Loan
notwithstanding any review of the FFELP Loans by the Purchaser or its
representative hereunder:
(i) any representation or warranty made or furnished by
the Seller or the Seller Trustee pursuant to Section 3(a) of this
Loan Sale Agreement was untrue or incorrect as of the date made in
any material respect, including, without limitation, in any respect
that materially and adversely affects the value of, or the
interests of the Purchaser or the Purchaser Trustee in, the one or
more of the related FFELP Loans purchased on the Loan Purchase Date
or on all Loan Purchase Dates, either individually or in the
aggregate;
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(ii) the Secretary of Education or a Guarantee Agency, as
the case may be, refuses to honor all or part of a claim filed with
respect to a FFELP Loan, including any claim for Interest Subsidy
Payments, Special Allowance Payments, insurance, reinsurance or
Guarantee payments on account of any circumstance or event that
occurred prior to the sale of such FFELP Loan to the Purchaser by
and through the Purchaser Trustee pursuant to this Loan Sale
Agreement;
(iii) on account of any wrongful or negligent act or
omission of the Seller, the originating lender or its or their
servicing agents, that occurred prior to the sale of a FFELP Loan
to the Purchaser pursuant to this Loan Sale Agreement, a defense
customarily and commonly understood to be valid and not frivolous
that could make the loan unenforceable is asserted by a Borrower,
maker or endorser, if any, of the FFELP Loan with respect to his or
her obligation to pay all or any part of the FFELP Loan; or
(iv) the instrument that Seller purports to be a FFELP
Loan is not, in fact, a FFELP Loan.
(b) With respect to a FFELP Loan purchased or substituted
hereunder having a Defect, the Seller shall:
(i) cure such Defect or cause such Defect to be cured
within a period of [___] days from the date the Seller discovers or
receives notice from the Purchaser or its assignee of the existence
of such Defect; provided that, if the cure for a Defect includes an
adjustment to the Purchase Price, the Purchaser and the Seller
shall use their best efforts to agree to, and the applicable party
shall pay, such adjustment within a period of [___] days from the
first date of discovery by the Seller or receipt of notice of the
existence of such Defect; or
(ii) in the event such Defect is not cured or, cannot be
cured within the period specified in Section 7(b)(i) hereof, within
a period of [___] days from the earlier of the date the Seller
discovers or receives notice from the Purchaser of such Defect,
repurchase the related FFELP Loan from the Purchaser at a price
equal to (1) the unpaid principal balance of such FFELP Loan at the
date of repurchase, plus (2) any accrued and unpaid interest at the
rate of interest borne by such FFELP Loan to the date of the
repurchase, plus (3) any premium paid by the Purchaser for the
outstanding balance of such FFELP Loan, plus (4) any amounts owed
to the Secretary of Education by the Purchaser with respect to such
FFELP Loan arising as a result of the action or inaction of the
Seller, plus (5) any attorneys' fees, legal expenses, court costs,
servicing fees or other expenses incurred by the Purchaser and the
Purchaser Trustee in connection with such FFELP Loan, minus (6) any
accrued Consolidation Loan Rebate Amount from the beginning of the
calendar month of repurchase to and including the date of
repurchase. The repurchase proceeds for a FFELP Loan repurchased
pursuant to this Section 7 shall be remitted by the Seller on the
date of repurchase as instructed by the Purchaser; or
13
(iii) at Seller's option, in its sole discretion, in the
event such Defect is not cured or, cannot be cured within the
period specified in Section 7(b)(i) hereof, substitute a Qualified
Substitute Student Loan pursuant to Section 7(c) hereof for the
FFELP Loan to which the Defect relates within the time period
required in this Loan Sale Agreement for repurchase of such FFELP
Loan.
(c) In lieu of repurchasing any FFELP Loan pursuant to
Section 7(b)(ii) hereof, the Seller may, at its option, substitute a
Qualified Substitute Student Loan for such FFELP Loan (the "Deleted Loan")
in the manner described below. Such substitution shall be effected by the
Seller delivering a ▇▇▇▇ of Sale substantially in the form of Exhibit D
hereto and such other documents as are required in connection with the
purchase of a FFELP Loan hereunder to the Purchaser or its designee. Upon
such substitution, (i) the Qualified Substitute Student Loan shall be
subject to this Loan Sale Agreement in all respects; (ii) with respect to
the Qualified Substitute Student Loan the Seller and the Seller Trustee
shall deliver to the Purchaser and the Purchaser Trustee a completed and
executed Blanket Endorsement and ▇▇▇▇ of Sale, each dated as of the date of
substitution; and (iii) the Seller shall be deemed to have made each of the
representations and warranties included in Section 3(a) hereof with respect
to such Qualified Substitute Student Loan as of the date of substitution.
On the date of substitution, the Seller shall pay to the Purchaser an
amount equal to (A) the excess, if any, between the then outstanding
principal balance of the Deleted Loan and the Qualified Substitute Student
Loan and any premium paid by the Purchaser on such excess, plus (B) accrued
and unpaid interest on the Deleted Loan minus accrued and unpaid interest
on the Qualified Substitute Student Loan that is transferred to the
Purchaser, plus (C) any amounts owed to the Secretary of Education by the
Purchaser with respect to the Deleted Loan arising as a result of the
action or inaction of the Seller, plus (D) any amounts due to the Purchaser
attributable to any difference in amount of the Consolidation Loan Rebate
Amount accrued and unpaid from the beginning of the calendar month of
substitution to and including the date of substitution as between the
Deleted Loan and the Qualified Substitute Student Loan. Upon compliance by
the Seller with all of the terms of this Section 7 with respect to an
Qualified Substitute Student Loan, the Purchaser shall promptly thereafter
effect or cause to be effected the reconveyance to the Seller of the
Deleted Loan, without recourse.
(d) Upon repurchase by the Seller of a FFELP Loan or the
substitution of a Qualified Substitute Student Loan for a Deleted Loan in
compliance with all of the terms of this Section 7, (i) the Purchaser and
the Purchaser Trustee agree to and do hereby sell, transfer, assign, and
otherwise convey to the Seller and the Seller Trustee, without recourse,
all right, title and interest of the Purchaser and the Purchaser Trustee in
and to such FFELP Loan or Deleted Loan, as applicable, (ii) the Purchaser
and the Purchaser Trustee each as to itself represents and warrants that it
(A) is conveying its respective rights, titles, and interests in and to
such FFELP Loan or Deleted Loan, as applicable subject to no encumbrances
imposed or suffered by it and (B) it has full power and authority to so
convey such rights, titles, and interests, and (iii) the Seller and the
Seller Trustee do hereby accept such sale, transfer, assignment and
conveyance.
14
(e) Upon repurchase by the Seller of a FFELP Loan or the
substitution of a Qualified Substitute Student Loan for a Deleted Loan
hereunder, the Purchaser or the Purchaser's Trustee if so directed by the
Purchaser: (1) shall remit to the Seller (or as directed by the Seller) all
interest payments (including Interest Subsidy Payments and Special
Allowance Payments) with respect to the applicable FFELP Loan or Deleted
Loan collected by the Purchaser on or after the related Loan Purchase Date,
(2) shall return to the Seller (or as otherwise directed by the Seller) all
documents related to the applicable FFELP Loan or Deleted Loan, including
all documents delivered by Seller to Purchaser in accordance with this Loan
Sale Agreement, (3) shall transmit to the Seller (or as otherwise directed
by the Seller) any written communication (including letters, notices or
death or disability, adjudication of bankruptcy and similar documents and
forms requesting deferment of repayment or loan cancellations) received by
the Purchaser or the Purchaser Trustee after the applicable Loan Purchase
Date with respect to the FFELP Loan, the Deleted Loan or the related
Borrower, and (4) shall execute any documents, instruments, or assignments
necessary to effect the transfer and assignment of all of the Purchaser
Trustee's and Purchaser's right, title and interest in and to the FFELP
Loans (or purported FFELP Loan) or Deleted Loan (including any right to
accrued interest thereon and any Special Allowance Payments and Interest
Subsidy Payments) to the Seller (or the Seller Trustee on its behalf) and
shall release or terminate any liens in effect with respect to any such
FFELP Loan (or purported FFELP Loans) or the Deleted Loan.
(f) The sole remedy of the Purchaser and the Purchaser Trustee
with respect to the occurrence of a Defect, and the agreement contained in
this Section, shall be to require the Seller acting through the Seller
Trustee to repurchase the related FFELP Loan or substitute a Qualified
Substitute Student Loan for the Deleted Loan as provided pursuant to this
Section.
SECTION 8. NOTIFICATION TO BORROWERS. The servicing agent on behalf of the
Seller shall notify Borrowers under the FFELP Loans as required by the Higher
Education Act of the assignment and transfer to the Purchaser Trustee of the
Seller's and the Seller Trustee's interests in such FFELP Loans and the Seller
or its agent shall direct each Borrower to make all payments thereon directly to
the Purchaser or as it may otherwise designate.
SECTION 9. ADDITIONAL COVENANTS.
(a) The Seller shall promptly remit, or cause to be remitted, to
the Purchaser all funds received by the Seller after the Loan Purchase Date
which constitute payments of principal, interest, Interest Subsidy Payments
or Special Allowance Payments accrued after the Loan Purchase Date with
respect to any FFELP Loan; provided, however, that the Seller shall be
entitled to retain such Interest Subsidy Payments or Special Allowance
Payments to the extent accrued (i) with respect to a repurchased FFELP
Loan, after the date of repurchase pursuant to Section 7(b)(ii) hereof or
(ii) with respect to a Deleted Loan, after the date of substitution for a
Qualified Substitute Student Loan pursuant to Sections 7(b)(ii) and 7(c)
hereof.
15
(b) With respect to a FFELP Loan or the Borrower under such a
FFELP Loan, the Seller shall immediately transmit to the Purchaser any
communication received by the Seller after the related Loan Purchase Date
with respect to the FFELP Loan or the Borrower. Such communications shall
include, but not be limited to, letters, notices of death or disability,
adjudication of bankruptcy and similar documents and forms requesting
deferment of repayment or loan cancellations.
(c) The Seller shall not organize under the law of any
jurisdiction other than the state under which it is organized as of the
initial Loan Purchase Date (whether changing its jurisdiction of
organization or organizing under an additional jurisdiction) without giving
at least [___] days prior written notice of such action to the Purchaser.
Before effecting such change, the Seller shall prepare and file in the
appropriate filing office any financing statements or other statements
necessary to continue the perfection of the Purchaser's interests in the
FFELP Loans.
SECTION 10. PAYMENT OF EXPENSES AND TAXES. The Seller and the Purchaser
shall pay its own expenses and that of the Seller Trustee and Purchaser Trustee,
as applicable, incurred in connection with the preparation, execution and
delivery of this Loan Sale Agreement and the transactions herein contemplated,
including, but not limited to, the fees and disbursements of counsel; provided,
however, that Seller shall pay any transfer or other taxes and recording or
filing fees payable in connection with the sale of the FFELP Loans pursuant to
this Loan Sale Agreement.
SECTION 11. [RESERVED]
SECTION 12. OTHER PROVISIONS.
(a) At any time, and from time to time hereafter, upon the
reasonable request of the Purchaser, and without payment of further
consideration to the Seller, the Seller will do, execute, acknowledge and
deliver, and will cause to be done, executed, acknowledged and delivered,
all such further acts, deeds, assignments, transfers, conveyances, powers
of attorney, recordings and assurances as may be required in order to
better assign, transfer, grant, convey, assure and confirm to the
Purchaser, or to permit the Purchaser to collect and reduce to possession,
any or all of the FFELP Loans sold hereunder.
(b) The Seller shall furnish to the Purchaser such information
related to the origination and servicing of the FFELP Loans that is
reasonably available to the Seller.
(c) Each of the Seller and the Seller Trustee hereby irrevocably
appoint the Purchaser and the Purchaser Trustee as their true and lawful
attorney-in-fact, with full power of substitution, in their respective
names and stead and on their respective behalves, for the purpose of taking
any action with respect to, or effectuating any further sale, assignment,
transfer or delivery of, any FFELP Loan or any part thereof or any interest
therein pursuant to the terms of this Loan Sale Agreement, the Seller and
the Seller Trustee hereby ratifying and confirming all that such
attorney-in-fact or any substitute shall lawfully do by virtue hereof.
16
(d) This Loan Sale Agreement sets forth the entire understanding
among the parties hereto as to the subject matter set forth herein. The
provisions of this Loan Sale Agreement cannot be waived or modified unless
such waiver or modification be in writing and signed by parties hereto.
Inaction or failure to demand strict performance shall not be deemed a
waiver.
(e) This Loan Sale Agreement shall be governed by the laws of
the State of
Colorado, without giving effect to principles of conflicts of
law. The parties acknowledge that there are substantial contacts between
the parties and the transactions contemplated herein and the State of
Colorado. For purposes of any action or proceeding arising out of this Loan
Sale Agreement, the parties hereto hereby expressly submit to the
jurisdiction of all federal and state courts located in the City and County
of Denver in the State of
Colorado and the parties hereto consent that they
may be served with any process or paper by registered mail at the address
set forth in Section 11(i) hereof, or by personal service within or without
the State of
Colorado in accordance with applicable law. Furthermore, the
parties waive and agree not to assert in any such action, suit or
proceeding that it is not personally subject to the jurisdiction of such
courts, that the action, suit or proceeding is brought in an inconvenient
forum or that venue of the action, suit or proceeding is improper.
(f) All covenants and agreements herein contained shall extend
to and be obligatory upon all successors of the respective parties hereto.
(g) This Loan Sale Agreement may be simultaneously executed in
several counterparts, each of which shall be an original and all of which
shall constitute but one and the same instrument.
(h) If any provision of this Loan Sale Agreement shall be held,
deemed to be or shall, in fact, be inoperative or unenforceable as applied
in any particular situation, such circumstances shall not have the effect
of rendering the provision in question inoperative or unenforceable in any
other situation or of rendering any other provision or provisions herein
contained invalid, inoperative or unenforceable to any extent whatsoever.
The invalidity of any one or more phrases, sentences, clauses or paragraphs
herein contained shall not affect the remaining portions of this Loan Sale
Agreement or any part hereof.
(i) All notices, requests, demands or other instruments which
may or are required to be given by either party to the other shall be in
writing, and each shall be deemed to have been properly given when served
personally on an officer of the party to whom such notice is given or upon
expiration of a period of 48 hours from and after the postmark thereof when
mailed, postage prepaid, by registered or certified mail, requesting return
receipt, by overnight courier, or by telecopy, addressed as follows:
17
If to the Purchaser:
GMAC EDUCATION LOAN FUNDING TRUST-I
c/o GMAC Commercial Holding Capital Corp.
[ADDRESS]
Attention: [NAME]
Telephone: [NUMBER]
Facsimile: [NUMBER]
with a copy to the Purchaser Trustee at:
[ELIGIBLE LENDER TRUSTEE NAME]
[ADDRESS]
Attention: [Corporate Trust Department]
Telephone: [NUMBER]
Facsimile: [NUMBER]
If to the Seller:
GMAC ELF LLC
[ADDRESS]
Attention: [NAME]
Telephone: [NUMBER]
Facsimile: [NUMBER]
with a copy to the Seller Trustee at:
[ELIGIBLE LENDER TRUSTEE NAME]
[ADDRESS]
Attention: [Corporate Trust Department]
Telephone: [NUMBER]
Facsimile: [NUMBER]
Any party may change the address and name of the addressee to which
subsequent notices are to be sent to it by notice to the others given as
aforesaid, but any such notice of change, if sent by mail, shall not be
effective until the fifth day after it is mailed.
(j) The Seller acknowledges that the Purchaser and, upon request
of the Purchaser, the Purchaser Trustee may assign or otherwise transfer
any or all of the FFELP Loans at any time without the consent of the Seller
or the Seller Trustee.
(k) All of the terms and conditions of this Loan Sale Agreement
shall be binding upon and inure to the benefit of the Purchaser, the
Purchaser Trustee, the Seller, the Seller Trustee and their respective
successors and assigns; provided, however, that no party to this agreement
shall assign or delegate any of their respective rights, privileges or
duties arising under this Loan Sale Agreement without the prior written
consent of the other parties hereto (which consent shall not be
unreasonably withheld), and any
18
attempted or purported assignment or delegation without such prior consent
shall be (i) null and void AB INITIO and (ii) constitute a material breach
and default by assigning party of its respective obligations under this
Loan Sale Agreement.
(l) Subject to Section 7(f) hereof, no remedy by the terms of
this Loan Sale Agreement conferred upon or reserved to a party hereto is
intended to be exclusive of any other remedy, but each and every such
remedy shall be cumulative and in addition to every other remedy given
under this Loan Sale Agreement or existing at law or in equity (including,
without limitation, the right to such equitable relief by way of
injunction) or by statute on or after the date of this Loan Sale Agreement.
(m) Acts to be taken by the Purchaser with respect to acquiring
and holding title to FFELP Loans hereunder shall be taken by the Purchaser
Trustee as directed by the Purchaser in writing, which qualifies as an
"eligible lender" trustee under the Higher Education Act, and all
references herein to the Purchaser shall incorporate by this reference the
fact that the Purchaser Trustee will be acquiring and holding title to
FFELP Loans on behalf of the Purchaser, all as required under the Higher
Education Act.
(n) Acts to be taken by the Seller with respect to acquiring and
holding title to FFELP Loans hereunder shall be taken by the Seller Trustee
as directed by the Seller in writing, which qualifies as an "eligible
lender" trustee under the Higher Education Act, and all references herein
to the Seller shall incorporate by this reference the fact that the Seller
Trustee will be acquiring and holding title to FFELP Loans on behalf of the
Seller, all as required under the Higher Education Act.
(o) [The parties hereto acknowledge that [NAME] shall be third
party beneficiaries of this Loan Sale Agreement with the power and right to
enforce the provisions hereof, and that [NAME] may become an assignee of
the Purchaser. The foregoing creates a permissive right on the part of such
third party beneficiaries, and such third party beneficiaries shall be
under no duties or obligations hereunder.]
(p) All forms specified by the text hereof or by reference to
exhibits attached hereto shall be substantially as set forth herein,
subject to such changes agreed to between the Purchaser and the Seller, or
as may be required by applicable laws hereafter enacted.
(q) The expiration or termination of this Loan Sale Agreement
shall not terminate or otherwise affect any obligations of the parties
hereto under this Loan Sale Agreement relating to events prior to such
termination or expiration (including, without limitation, (i) obligations
with respect to FFELP Loans previously sold and assigned hereunder until
each such FFELP Loan has been paid or otherwise satisfied in full, or (ii)
any breach prior to such termination of any covenant, agreement or warranty
contained herein). Each and every representation, warranty and covenant
herein shall survive and remain continuing, operative and in full force and
effect regardless of (x) any investigation made by or on behalf of the
Seller, the Seller Trustee, the Purchaser, or the Purchaser Trustee, (y)
the observance or performance of any covenant, agreement or obligation
hereunder or (z) the conveyance of the FFELP Loans purchased hereunder.
There shall be no merger of the representations and warranties of the
Seller or the Seller
19
Trustee into any closing documents or otherwise under any circumstances,
but instead each shall be independently enforceable, and, until each FFELP
Loan has been paid or otherwise satisfied in full, each and every covenant,
representation and warranty of the parties hereto in this Loan Sale
Agreement applicable to the FFELP Loan shall continue and survive the
purchase of the FFELP Loan hereunder and its delivery to the Purchaser and
the Purchaser Trustee.
[Signature Page Follows]
20
IN WITNESS WHEREOF, the undersigned has caused this Loan Sale Agreement to
be executed and delivered as of the date first above written by an officer
hereunto duly authorized.
GMAC ELF LLC
By
------------------------------------------
Name:
Title:
[ELIGIBLE LENDER TRUSTEE NAME], not
in its individual capacity but solely as
Seller Trustee
By
------------------------------------------
Name:
Title:
GMAC EDUCATION LOAN FUNDING TRUST-I
By
------------------------------------------
Name:
Title:
[ELIGIBLE LENDER TRUSTEE NAME], not
in its individual capacity but solely as
Purchaser Trustee
By
------------------------------------------
Name:
Title:
21
EXHIBIT A
LOAN TRANSFER ADDENDUM
This Loan Transfer Addendum (the "Addendum") is made and entered into as of
the ____ day of _________, 20__, by and among GMAC EDUCATION LOAN FUNDING
TRUST-I (the "Purchaser") acting by and through [ELIGIBLE LENDER TRUSTEE NAME],
not individually but solely as eligible lender trustee (the "Purchaser Trustee")
and
GMAC ELF LLC (the "Seller") acting by and through [ELIGIBLE LENDER TRUSTEE
NAME], not individually but solely as eligible lender trustee (the "Seller
Trustee").
WHEREAS, the parties hereto entered into the Loan Sale Agreement, dated as
of [DATE] (the "Loan Sale Agreement "), and the Seller wishes to sell a
portfolio of FFELP Loans (as defined in the Loan Sale Agreement) to the
Purchaser, pursuant to and in accordance with the terms and conditions of the
Loan Sale Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants herein contained, the parties hereto agree as follows:
1. DEFINITIONS. All capitalized terms in this Addendum shall have the
same meanings given to them in the Loan Sale Agreement, unless otherwise
specifically stated herein.
2. SALE OF FFELP LOANS. Subject to the terms and conditions of the
Loan Sale Agreement, as of the Loan Purchase Date, the Seller and the Seller
Trustee do hereby sell, transfer, assign, set over, and otherwise convey to the
Purchaser and the Purchaser Trustee on the Loan Purchase Date, without recourse,
all of their respective right, title and interest in and to the portfolio of
FFELP Loans identified in the Loan Transfer Schedule attached hereto as Annex A
to this Addendum, having an aggregate outstanding principal balance of
approximately $____________ (the "Purchased Portfolio"). Subject to the terms
and conditions of the Loan Sale Agreement and in reliance upon the
representations, warranties and covenants as set forth in the Loan Sale
Agreement, the Purchaser Trustee, as trustee under the Eligible Lender Trust
Agreement on behalf of the Purchaser and the Purchaser, as their respective
interest may appear, do hereby purchase the Purchased Portfolio.
3. PURCHASE PRICE.
(a) Subject to the terms and conditions of the Loan Sale
Agreement, the Purchaser shall pay to the Seller with respect to the
purchase of the FFELP Loans in the Purchased Portfolio a purchase price
(the "Purchase Price") equal to [the sum of (i) the percentage of the
aggregate unpaid principal balance thereon described in Annex B to this
Loan Transfer Addendum][____% of the aggregate unpaid principal balance
thereon], plus (ii) [____%] of the accrued and unpaid interest thereon,
each as of the Loan Purchase Date set forth in Section 4 hereof, minus
(iii) [____%] of the accrued and unpaid Consolidation Loan Rebate Amount
from the beginning of the calendar month in which the Loan Purchase Date
occurs to and including the Loan Purchase Date. The Purchaser shall pay the
Purchase Price to the Seller on the Loan Purchase Date by wire transfer or
as otherwise mutually agreed by the parties, in immediately available
funds.
A-1
(b) Upon written notice given by one party hereto to the other
party hereto no later than [___] calendar days following the Loan Purchase
Date, the Purchase Price shall be adjusted to reflect changes resulting
from miscalculations of interest, principal, or repayment schedules, or
other data or reporting errors, with respect to one or more FFELP Loans
purchased hereunder that, in the reasonable judgment of the party receiving
the notice, would have changed the original Purchase Price for the related
FFELP Loans. The party benefiting from such errors (the "Paying Party")
shall pay an amount sufficient to correct and reconcile the Purchase Price
and shall provide such documentation as is reasonable and necessary to
satisfy the other party that the Purchase Price has been corrected and
reconciled. Such payment shall be made by the Paying Party within [___]
calendar days following the date on which the written notice required by
this Section was first received by the Paying Party.
4. LOAN PURCHASE DATE. The Loan Purchase Date shall be no later than
_________ __, 20__.
5. REPRESENTATIONS AND WARRANTIES. The Seller hereby makes the
representations and warranties set forth in Sections 3(a) and (b) of the Loan
Sale Agreement as of the Loan Purchase Date (or such other date as is
specifically set forth in the representations and warranties). The Seller
Trustee hereby makes the representations and warranties set forth in Section
3(c) of the Loan Sale Agreement as of the Loan Purchase Date (or such other date
as is specifically set forth in the representations and warranties).
6. CONTINUATION OF BORROWER BENEFITS.
(a) With respect to the Purchased Portfolio [and each Qualified
Substitute Student Loan received in substitution therefore], for so long as
Purchaser or an affiliate of Purchaser owns such FFELP Loans, Purchaser agrees,
and, for so long as Purchaser Trustee is the eligible lender trustee with
respect to such FFELP Loans, Purchaser Trustee agrees, to continue in full force
and effect the Borrower Benefits applicable to such FFELP Loans.
(b) With respect to the Purchased Portfolio [and each Qualified
Substitute Student Loan received in substitution therefore], the term "Borrower
Benefits" shall mean [____________].
7. LOAN SALE AGREEMENT.
(a) This Addendum sets forth the terms of sale solely with
respect to the Purchased Portfolio. This Addendum shall have no effect upon
any other sale of any FFELP Loans consummated or contemplated prior to or
after the Loan Purchase Date, and all other terms, conditions and
agreements contained in the Loan Sale Agreement shall remain in full force
and effect. Prior or subsequent sales of FFELP Loans shall each be governed
by a separate Loan Transfer Addendum.
(b) The terms and provisions of the Loan Sale Agreement form a
part of, and are incorporated by this reference into, this Loan Transfer
Addendum.
A-2
IN WITNESS WHEREOF, the undersigned has caused this Loan Transfer Addendum
to be executed and delivered as of the date first above written by an officer
hereunto duly authorized.
GMAC ELF LLC
By
-----------------------------------------
Name:
Title:
[ELIGIBLE LENDER TRUSTEE NAME], not
in its individual capacity but solely as
Seller Trustee
By
-----------------------------------------
Name:
Title:
GMAC EDUCATION LOAN FUNDING TRUST-I
By
-----------------------------------------
Name:
Title:
[ELIGIBLE LENDER TRUSTEE NAME], not
in its individual capacity but solely as
Purchaser Trustee
By
-----------------------------------------
Name:
Title:
A-3
ANNEX A TO LOAN TRANSFER ADDENDUM
LOAN TRANSFER SCHEDULE
A-4
EXHIBIT B
SELLER'S CLOSING CERTIFICATE
GMAC ELF LLC (the "Seller") does hereby certify that all representations,
warranties and statements by or on behalf of the Seller contained in the Loan
Sale Agreement, dated as of [DATE] (the "Loan Sale Agreement"), by and among the
Seller, acting by and through [ELIGIBLE LENDER TRUSTEE NAME], not individually
but solely as eligible lender trustee (the "Seller Trustee") and GMAC EDUCATION
LOAN FUNDING TRUST-I (the "Purchaser") acting by and through [ELIGIBLE LENDER
TRUSTEE NAME], not individually but solely as eligible lender trustee (the
"Purchaser Trustee"), are true and correct on and as of _________ __, 20__ [LOAN
PURCHASE DATE], (or such other date as is specifically set forth in such
representations, warranties or statements) without exception or qualification
whatsoever;
FURTHERMORE, the Seller does hereby certify that the following documents,
where applicable to each FFELP Loan (as defined in the Loan Sale Agreement)
acquired under the Loan Sale Agreement, have heretofore been furnished to the
Purchaser or are simultaneously herewith delivered in accordance with the
instructions of the Purchaser, pursuant to Section 5(d) of the Loan Sale
Agreement:
(a) Department of Education application or Guarantee Agency
application, as supplemented;
(b) Note(s) for each Loan;
(c) Disclosure and Loan information statement;
(d) Guarantee Agreement, Agreement for Participation in the
Guaranteed Loan Program and Notification of Loan Approval by the Guarantee
Agency with respect to each Guaranteed Loan (or certified copy thereof);
(e) Any other documentation held by the Seller relating to the
history of such Eligible Loan;
(f) Secretary of Education and Guarantee Agency Loan Transfer
Statements;
(g) Uniform Commercial Code financing statement, if any,
securing any interest in an Eligible Loan to be Financed, and an executed
termination statement related thereto;
(h) Evidence of Loan disbursement; and
(i) Any other document required to be submitted with a claim to
the Guarantee Agency.
IN WITNESS WHEREOF, the undersigned has caused this Certificate to be
executed and delivered as of ______ __, 20__ by an officer hereunto duly
authorized.
B-1
GMAC ELF LLC
By
-----------------------------------------
Name:
Title:
B-2
EXHIBIT C
BLANKET ENDORSEMENT OF
STUDENT LOAN PROMISSORY NOTES
[ELIGIBLE LENDER TRUSTEE NAME], not individually but solely as eligible
lender trustee (the "Seller Trustee") for
GMAC ELF LLC ("Seller"), by execution
of this instrument, hereby endorses each promissory note (collectively, the
"Promissory Notes") acquired on the date set forth below by [ELIGIBLE LENDER
TRUSTEE NAME], as eligible lender trustee (the "Purchaser Trustee") for GMAC
EDUCATION LOAN FUNDING TRUST-I (the "Purchaser") pursuant to the Loan Sale
Agreement, dated as of [DATE] (the "Loan Sale Agreement"), by and among the
Seller, the Seller Trustee, the Purchaser, and the Purchaser Trustee. This
endorsement is in blank, unrestricted form and is in favor of [ELIGIBLE LENDER
TRUSTEE NAME] as the Purchaser Trustee on behalf of the Purchaser. This
endorsement is without recourse, except as provided under the terms of the Loan
Sale Agreement. All right, title, and interest of Seller in and to the
promissory notes and related documentation [identified in the attached loan
ledger][loans identified in the Loan Transfer Schedule attached to the Loan
Transfer Addendum dated as of _________ and executed and delivered pursuant to
the Loan Sale Agreement by the parties thereto] are transferred and assigned to
Purchaser Trustee on behalf of the Purchaser.
This endorsement may be further manifested by attaching this instrument or
a facsimile hereof to each or any of the Promissory Notes and related
documentation acquired by the Purchaser Trustee on behalf of the Purchaser from
Seller or Seller Trustee, or by attaching this instrument to the loan ledger
schedule, as the Purchaser may require or deem necessary.
Notwithstanding the foregoing, Seller Trustee agrees to individually
endorse each Promissory Note in the form provided by Purchaser or Purchaser
Trustee as Purchaser or Purchaser Trustee may from time to time require or if
such individual endorsement is required by the guarantor of the Promissory Note.
Dated this ___ day of, _________, 20__.
C-1
GMAC ELF LLC
By
-----------------------------------------
Name:
Title:
[ELIGIBLE LENDER TRUSTEE NAME], not
in its individual capacity but solely as
Seller Trustee
By
-----------------------------------------
Name:
Title:
C-2
EXHIBIT D
▇▇▇▇ OF SALE
FOR VALUE RECEIVED, pursuant to the terms and conditions of the Loan Sale
Agreement, dated as of [DATE] (the "Loan Sale Agreement"), by and among the GMAC
ELF LLC (the "Seller"), acting by and through [ELIGIBLE LENDER TRUSTEE NAME],
not individually but solely as eligible lender trustee (the "Seller Trustee")
and GMAC EDUCATION LOAN FUNDING TRUST-I (the "Purchaser") acting by and through
[ELIGIBLE LENDER TRUSTEE NAME], not individually but solely as eligible lender
trustee (the "Purchaser Trustee"), the Seller and the Seller Trustee, as their
respective interest may appear, each does hereby grant, sell, assign, transfer
and convey to [ELIGIBLE LENDER TRUSTEE NAME], solely in its capacity as the
Purchaser Trustee on behalf of the Purchaser and its successors and assigns, all
right, title and interest of the Seller and the Seller Trustee in and to the
following:
(i) The loans described in [ANNEX A, attached hereto]
[the Loan Transfer Schedule attached to the Loan Transfer Addendum
dated as of _________ and executed and delivered pursuant to the
Loan Sale Agreement by the parties thereto] (the "Loans");
(ii) All promissory notes and related documentation
evidencing the indebtedness represented by such Loans; and
(iii) All proceeds of the foregoing including, without
limitation, all payments made by the obligor thereunder or with
respect thereto, all guarantee payments made by any guarantee
agency with respect thereto, and all interest benefit payments and
special allowance payments with respect thereto made under Title
IV, Part B, of the Higher Education Act of 1965, as amended, and
all rights to receive such payments, but excluding any proceeds of
the sale and contribution made hereby.
TO HAVE AND TO HOLD the same unto the Purchaser Trustee on behalf of the
Purchaser, its successors and assigns, forever. This ▇▇▇▇ of Sale is made
pursuant to and is subject to the terms and provisions of the Loan Sale
Agreement, and is without recourse, except as provided in the Loan Sale
Agreement.
IN WITNESS WHEREOF, the Seller has caused this instrument to be executed by
one of its officers duly authorized to be effective as of the ____ day of
________, 20__.
D-1
GMAC ELF LLC
By
-----------------------------------------
Name:
Title:
[ELIGIBLE LENDER TRUSTEE NAME], not
in its individual capacity but solely as
Seller Trustee
By
-----------------------------------------
Name:
Title:
D-2