Exhibit 10.3
TRUST AGREEMENT
THIS TRUST AGREEMENT, executed as of April 15, 1998 by and between
EMT Corp., an Indiana corporation ("EMT"), and KEYBANK INDIANA, N.A as
Trustee ("Trustee"), WITNESSES:
WHEREAS, EMT is authorized and empowered to acquire education loans made
pursuant to the Higher Education Act of 1965, as amended ("Student Loans");
WHEREAS, EMT requires Student Loans to be acquired and held, IN TRUST, for
the benefit of EMT by a trustee bank acting as an eligible lender trustee as
contemplated by the Higher Education Act of 1965, as amended; and
NOW, THEREFORE, in consideration of these premises and the mutual promises
and covenants contained herein, EMT and the Trustee agree that the Trustee shall
acquire and hold Student Loans as directed by EMT (all hereinafter referred to
as the "Trust Property"), and sell, pledge and distribute the Trust Property in
accordance with the provisions of this Trust Agreement.
ARTICLE I
ACQUISITION OF STUDENT LOANS
(A) The Trustee will from time to time during the term of the Trust acquire
and hold Student Loans designated by EMT under your lender number 833495 with
the Department of Education. EMT shall provide the funds necessary to acquire
such Student Loans and shall cause such funds to be wired directly to the
sellers of such Loans. EMT shall deliver to the Trustee a confirmation of the
identity of the Student Loans acquired.
(B) The Trustee shall hold title to all Student Loans acquired by it for
the benefit of EMT, and shall sell, pledge or otherwise transfer ownership of
such Student Loans in accordance with directions received from EMT from time to
time.
(C) Any funds received by Trustee in respect of Student Loans held as part
of the Trust Property shall be paid and distributed from the Trust to EMT or its
designee upon receipt.
(D) Pending use for the purchase of Student Loans or disbursement to EMT or
its designee as provided above, any funds held by the Trustee shall be invested
in accordance with instructions received by the Trustee from EMT.
(E) All Student Loans to be acquired under the Trust Agreement shall be
acquired pursuant to a Loan Purchase Agreement between EMT and the seller and
the benefits of such Loan Purchase Agreements shall be assigned by EMT to the
Trustee. The Trustee shall assign the benefits of such agreements to pledgees or
transferees of such Student Loans as directed by EMT. The Trustee shall utilize
the remedies provided for in the Loan Purchase Agreements at the direction and
for the benefit of EMT and its pledgees or assignees.
ARTICLE II
REVOCATION; AMENDMENT; SUCCESSOR TRUSTEE
EMT shall have the right at all times and from time to time: (a) to modify
or amend this Trust Agreement; (b) to terminate the trust hereby created in
whole or in part to the extent Student Loans are no longer held by the Trustee
as part of the Trust Property; and (c) to add to or to withdraw any part or all
of the property from the trust. The duties and responsibilities of the Trustee
may not, however, be substantially increased without its written consent. EMT
shall have the right to remove the Trustee for any reason upon 60 days written
notice to the Trustee
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and appoint a successor trustee to whom all the Trust Property shall be
transferred by the Trustee. The Trustee may resign upon sixty (60) days written
notice to EMT, PROVIDED, HOWEVER, the Trustee agrees not to resign for at least
five (5) years except for good cause. Upon receipt of such notice, EMT shall
appoint a successor trustee to whom the Trustee shall transfer the Trust
Property. The Trustee's resignation shall not be effective until a successor
trustee has been appointed and has accepted the Trust Property. The Trustee
warrants that it is a bank in good standing under the laws applicable to it and
is an "eligible lender" as defined in the Higher Education Act of 1965, as
amended, and has been recognized and will remain an "eligible holder" of Student
Loans, so long as it is Trustee.
ARTICLE III
SERVICING OF STUDENT LOANS
All Student Loans held by the Trustee as part of the Trust Property shall
be serviced by EFS Services, Inc., ("EFS") or such other servicer designated
from time to time by EMT pursuant to agreements between EMT and the applicable
servicers as agreed upon by EMT from time to time. The Trustee shall cooperate
with such servicer and as necessary enter into a loan servicing agreement with
such servicer upon terms approved by EMT. The promissory notes representing
Student Loans held as part of the Trust Property shall be held by the servicer
of such Student Loans or such other person as may be designated by EMT. The
servicer shall receive on behalf of the Trustee and EMT all principal, interest,
special allowance payments and other funds paid in respect of such Student Loans
and shall remit such funds to EMT or its designee. EMT shall be responsible for
paying the fees charged by the servicer for servicing such Student Loans. The
Trustee shall have no liability to EMT or others as a result of acts or
omissions by the
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servicer in servicing such Student Loans.
ARTICLE IV
PLEDGE OF STUDENT LOANS
All or a large portion of the funds to be used to acquire Student Loans
will be funds borrowed by EMT pursuant to certain notes, bonds, commercial paper
or other financings. Repayment of such borrowed funds will typically be secured
by a pledge of the Student Loans and proceeds thereof, acquired with such
borrowed funds. To facilitate and secure these financings, the Trustee (pursuant
to directions received from EMT) shall pledge the Student Loans and proceeds and
revenues thereof to the trustees for various EMT financings. The Trustee shall
execute such pledge agreements, UCC forms, assignments and other documents and
instruments and do such other acts as EMT shall request from time to time in
order to perfect these pledges.
ARTICLE V
POWERS; GOVERNING LAW
In the administration of the trust created by this Trust Agreement, in
addition to the powers granted by law, the Trustee shall, subject to the
provisions of this Trust Agreement, have the following powers, duties,
authority, responsibilities and discretion:
(a) The Trustee shall keep and maintain all the records and books of
account of such trust.
(b) The Trustee shall, with the consent of and upon terms and conditions
directed by EMT, at any time and from time to time, to sell, assign, transfer,
lease, mortgage, pledge and convey, any part or all of the Trust Property,
without any appraisement or notice or bond or any
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other formalities, and without any authorizing or confirming order or orders of
court, at public or private sale, and with or without notice, for cash or upon
credit, or for part cash and part credit. No purchaser of any securities or
other real or personal property sold by the Trustee, while purporting to
exercise any power under this Trust Agreement, shall be under any duty of
diligence as respects either the application of the proceeds or the propriety or
wisdom of such sale.
(c) No bond shall be required of the Trustee and no liability shall attach
to the Trustee for any act by the Trustee, or for any losses which may be
sustained or shrinkages in value which may occur in the administration of the
trust, except in the event of a negligent, reckless or willful breach of trust.
(d) The Trustee may employ such attorneys as are, in the judgment of the
Trustee necessary, may consult with such attorneys and shall be protected in any
action taken or omitted to be taken in accordance with, and in reliance upon,
the opinion of counsel so retained.
(e) The Trustee shall be permitted to conclusively rely on any certificate,
statement or document it believes to be genuine. The Trustee shall have no duty
to monitor or investigate the activities of EMT, except as set forth herein.
This Trust Agreement and all of the parties' and beneficiaries' rights and
duties hereunder shall be governed by the laws of the State of Indiana. Except
for a negligent, reckless or willful breach of trust, the Trustee shall not be
liable for any loss incurred by reason of any action or lack of action mandated
by EMT's direction to the Trustee. The duties of the Trustee under this
Agreement are only such duties as are imposed herein and no other duties,
expressed or implied, shall be imposed or imputed to the Trustee.
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ARTICLE VI
RECORDS, REPORTS AND INSPECTIONS
EMT or the servicer of the Student Loans shall keep accurate books and
records with respect to the Student Loans held in trust and shall deliver to the
Trustee within ten (10) days following the end of each calendar month an
accounting of material transactions relating to such Student Loans. The Trustee
shall have the right and privilege, at all reasonable hours and upon reasonable
notice, to have access to and to examine the books and records of EMT and the
servicer of the Student Loans and the promissory notes evidencing the Student
Loans, which shall be held by the servicer or other person designated by EMT.
ARTICLE VII
FEES
The Trustee shall periodically xxxx EMT for its fees and expenses for
serving as Trustee, and EMT shall be responsible for paying such amounts.
ARTICLE VIII
NOTICES
Except as provided below, all notices, requests, demands, consents,
waivers and other communications given under this Trust Agreement shall be in
writing and shall be delivered, or mailed, first class postage prepaid,
addressed as follows:
If to EMT: 0000 Xxxxxxxxx Xxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: President
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If to Trustee: KeyBank Indiana, N.A.
900 Market Tower
00 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Corporate Trust Department
Directions given to the Trustee by EMT may be by telephone, telecopy or in
writing delivered to the Trustee but if given orally shall be subsequently
confirmed in writing.
ARTICLE IX
BINDING EFFECT
This Agreement shall be binding upon and shall inure to the benefit of the
parties and their successors and assigns.
IN WITNESS WHEREOF, EMT CORP. AND KEYBANK INDIANA, N.A. have duly
authorized and executed this Trust Agreement.
EMT CORP.
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------
Printed: Xxxx X. Xxxxxxxxx
Title: President
"EMT"
KEYBANK INDIANA, N.A.
By:/s/ Xxxxx X. Xxxxxxx
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Printed: Xxxxx X. Xxxxxxx
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Title: Trust Adminstrator
-----------------------------
"Trustee"
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