Exhibit 10.1
SERVICING AND ADMINISTRATION AGREEMENT
among
EDUCATION LOANS INCORPORATED,
as Issuer
STUDENT LOAN FINANCE CORPORATION,
as Servicer and Administrator
and
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
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Dated as of February 1, 2004
----------------------------
SERVICING AND ADMINISTRATION AGREEMENT
THIS SERVICING AND ADMINISTRATION AGREEMENT (the "Agreement") entered into
as of the 1st day of February, 2004 by and among Student Loan Finance
Corporation, a corporation organized under the laws of the State of South Dakota
("SLFC," and, in its capacity as servicer hereunder, the "Servicer," and, in its
capacity as administrator hereunder, the "Administrator"), Education Loans
Incorporated, a corporation organized under the laws of the State of Delaware
(the "Issuer"), and U.S. Bank National Association, a national banking
association headquartered in Minneapolis, Minnesota, in its capacity as trustee
under the Indenture hereinafter referred to (the "Trustee").
W I T N E S E T H:
WHEREAS, the Servicer services student loans ("Student Loans") which have
been (1) guaranteed under a guaranty program established by a state or a private
nonprofit corporation pursuant to the requirements of the Higher Education Act
of 1965, as amended from time to time, and the rules and regulations promulgated
thereunder (the "Higher Education Act")(such Student Loans being herein referred
to as "FFELP Loans"), or (2) have been originated under certain loan programs
(the "Alternative Loan Programs") established by SLFC to make amounts available
for the post-secondary education of eligible students in excess of the amounts
available through FFELP Loans (such Student Loans being herein referred to as
"Alternative Loans"); and
WHEREAS, SLFC has established its Student Loan Purchase Program pursuant to
which it acquires or causes the acquisition of certain Student Loans from
lenders ("Lenders") eligible to originate or hold such Student Loans under the
Higher Education Act or under an Alternative Loan Program, as applicable; and
WHEREAS, pursuant to SLFC's Student Loan Purchase Program, the Issuer has
entered into or will enter into Student Loan Purchase Agreements ("Issuer
Student Loan Purchase Agreements") (1) with certain Lenders pursuant to which
the Issuer agrees to cause the purchase of FFELP Loans by the Trustee (for the
account and on behalf of the Issuer) from such Lenders, and (2) with SLFC
pursuant to which the Issuer has agreed to cause the purchase of Alternative
Loans by the Trustee (for the account and on behalf of the Issuer) from SLFC;
and
WHEREAS, pursuant to SLFC's Student Loan Purchase Program, GOAL Funding,
Inc., a Delaware corporation ("GOAL Funding I"), has entered into or will enter
into Student Loan Purchase Agreements ("GOAL Funding I Student Loan Purchase
Agreements") (1) with certain Lenders pursuant to which GOAL Funding I agrees to
cause the purchase of FFELP Loans by U.S. Bank National Association, as trustee
for GOAL Funding I (in such capacity, the "GOAL Funding I Trustee") (for the
account and on behalf of GOAL Funding I) from such Lenders, and (2) with SLFC
pursuant to which GOAL Funding I has agreed to cause the purchase of Alternative
Loans by the GOAL Funding I Trustee (for the account and on behalf of GOAL
Funding I) from SLFC; and
WHEREAS, SLFC, as servicer and administrator (in such capacities, the "GOAL
Funding I Servicer"), has, pursuant to a servicing and administration agreement
with GOAL Funding I and the GOAL Funding I Trustee (the "GOAL Funding I
Servicing Agreement"),
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agreed to service the Student Loans originated on behalf of GOAL Funding I or
purchased by GOAL Funding I under the GOAL Funding I Student Loan Purchase
Agreements while such Student Loans are pledged under GOAL Funding I's warehouse
financing; and
WHEREAS, the Issuer will enter into Transfer Agreements ("GOAL Fuding I
Transfer Agreements") with the Trustee, GOAL Funding I and the GOAL Funding I
Trustee, pursuant to which the Issuer will purchase from GOAL Funding I FFELP
Loans and Alternative Loans previously originated on behalf of GOAL Funding I or
purchased pursuant to GOAL Funding I Student Loan Purchase Agreements ("GOAL
Funding I Student Loans") and will be assigned all right, title and interest of
GOAL Funding I in such agreements with respect to the Student Loans so sold; and
WHEREAS, pursuant to SLFC's Student Loan Purchase Program, GOAL Funding II,
Inc., a Delaware corporation ("GOAL Funding II" and, together with GOAL Funding
I, collectively "GOAL Funding"), has entered into or will enter into Student
Loan Purchase Agreements ("GOAL Funding II Student Loan Purchase Agreements"
and, together with the GOAL Funding I Student Loan Purchase Agreements,
collectively the "GOAL Funding Student Loan Purchase Agreements," and, together
with the Issuer Student Loan Purchase Agreements and the GOAL Funding I Student
Loan Purchase Agreements, collectively the "Student Loan Purchase Agreements")
(1) with certain Lenders pursuant to which GOAL Funding II agrees to cause the
purchase of FFELP Loans by U.S. Bank National Association, as trustee for GOAL
Funding II (in such capacity, the "GOAL Funding II Trustee" and, together with
the GOAL Funding I Trustee, collectively the "GOAL Funding Trustees") (for the
account and on behalf of GOAL Funding II) from such Lenders, and (2) with SLFC
pursuant to which GOAL Funding II has agreed to cause the purchase of
Alternative Loans by the GOAL Funding II Trustee (for the account and on behalf
of GOAL Funding II) from SLFC; and
WHEREAS, SLFC, as servicer and administrator (in such capacities, the "GOAL
Funding II Servicer"), has, pursuant to a servicing and administration agreement
with GOAL Funding II and the GOAL Funding II Trustee (the "GOAL Funding II
Servicing Agreement" and, together with the GOAL Funding I Servicing Agreement,
collectively the "GOAL Funding Servicing Agreements"), agreed to service the
Student Loans originated on behalf of GOAL Funding II or purchased by GOAL
Funding II under the GOAL Funding II Student Loan Purchase Agreements while such
Student Loans are pledged under GOAL Funding II's warehouse financing; and
WHEREAS, the Issuer will enter into Transfer Agreements ("GOAL Funding II
Transfer Agreements" and, together with the GOAL Funding I Transfer Agreements,
collectively the "GOAL Funding Transfer Agreements") with the Trustee, GOAL
Funding II and the GOAL Funding II Trustee, pursuant to which the Issuer will
purchase from GOAL Funding II FFELP Loans and Alternative Loans previously
originated on behalf of GOAL Funding II or purchased pursuant to GOAL Funding II
Student Loan Purchase Agreements ("GOAL Funding II Student Loans" and, together
with the GOAL Funding I Student Loans, collectively the "GOAL Funding Student
Loans") and will be assigned all right, title and interest of GOAL Funding II in
such agreements with respect to the Student Loans so sold; and
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WHEREAS, under certain circumstances, the Issuer also will cause the
origination of Student Loans by the Trustee (for the account and on behalf of
the Issuer) (Student Loans purchased or originated under the Indenture
hereinafter described are herein referred to as "Financed Student Loans"); and
WHEREAS, the Issuer initially will obtain funds necessary to originate and
purchase Student Loans through the issuance, pursuant to an Indenture of Trust,
dated as of February 1, 2004 (as amended or supplemented, the "Indenture"),
between the Issuer and the Trustee, as Trustee, of its Student Loan Asset-Backed
Notes, Senior Series 2004-A1, A2, A3, A4 and A5 and Subordinate Series 2004-B1
(the "Series 2004-1 Notes," and, together with any additional notes issued under
the Indenture, the "Notes"); and
WHEREAS, the principal of and interest on the Notes is to be paid from
repayment of Financed Student Loans and other trust assets pledged under the
Indenture; and
WHEREAS, the Issuer wishes to provide for the origination, acquisition and
servicing of the Financed Student Loans in the manner provided in the Student
Loan Purchase Agreements and the Indenture; and
WHEREAS, copies of (i) the executed Student Loan Purchase Agreements, (ii)
the executed Transfer Agreements and (iii) the Indenture have been or will be
furnished to the Servicer; and
WHEREAS, the Issuer wishes to retain the Servicer to provide services in
connection with the origination, acquisition, servicing and collection of the
Financed Student Loans in accordance with the requirements of the Higher
Education Act, the Guarantee Program, the Alternative Loan Programs, the Student
Loan Purchase Agreements, the Transfer Agreements and the Indenture, and the
Servicer is willing to undertake such obligations on the terms hereinafter
specified; and
WHEREAS, the Issuer wishes to retain the Administrator to perform other
administrative requirements on behalf of the Issuer, including those required to
allow the Issuer to satisfy certain requirements under the Indenture;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto agree as follows:
1. Term. The term of this Agreement shall commence as of the date hereof
and shall continue for so long as any of the Notes shall remain Outstanding,
unless this Agreement is terminated in accordance with the terms hereof.
2. Definitions. In addition to terms elsewhere defined in this Agreement,
and except as otherwise provided herein or as the context may otherwise require
or suggest, initially capitalized terms used herein shall have the meanings
assigned thereto in the Indenture, or if not defined therein, in the Student
Loan Purchase Agreements. Any reference in this Agreement to GOAL Funding shall
be to GOAL Funding I or GOAL Funding II or both, as applicable, and any
reference in this Agreement to GOAL Funding Student Loan Purchase Agreement,
GOAL Funding Trustee, GOAL Funding Servicing Agreement, GOAL Funding Transfer
Agreement or
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GOAL Funding Student Loans shall be to such agreements, trustee or loans of GOAL
Funding I or GOAL Funding II or both, as applicable.
3. Agreement to Provide Services with respect to Financed Student Loans;
Cooperation.
a. The Servicer shall provide services to the Issuer in connection with
the origination and acquisition of Student Loans to be Financed in
accordance with this Agreement. The Servicer shall commence servicing
the Financed Student Loans as of the day they are Financed and shall
service the Financed Student Loans in accordance with this Agreement.
The Servicer may perform all or part of its origination, acquisition,
and servicing activities hereunder through a subcontractor. The
Servicer shall perform or shall cause its subcontractor to perform all
services hereunder in compliance with the Higher Education Act,
applicable requirements of each Guarantee Agency and each Alternative
Loan Program and all other applicable federal, state and local laws
and regulations. The Servicer shall be responsible for the performance
of its obligations hereunder, whether such obligations are performed
by the Servicer or by its subcontractor, and the Servicer shall be
responsible for any fees and payments required by the subcontractor. A
subcontractor shall agree to reasonable audits, examinations and
inspections with respect to the performance of its activities on
behalf of the Servicer. The Servicer shall provide the Issuer and the
Trustee with prior written notice of any subcontractor relationship
(other than the existing relationships with Educational Assistance
Service Company, Inc. and Great Lakes Educational Loan Services,
Inc.). No such subcontractor relationship (other than the existing
relationships with Educational Assistance Service Company, Inc. and
Great Lakes Educational Loan Services, Inc.) shall be entered into
unless the Trustee has received written confirmation from each Rating
Agency that such relationship will not result in the reduction or
withdrawal of the rating on any Note.
b. The Issuer and the Trustee shall, in accordance with the provisions of
the Indenture, cooperate with the Servicer in delivering or causing to
be delivered Financed Student Loans to the Servicer for origination,
acquisition and servicing in accordance with this Agreement.
4. Acquisition Process. The Issuer, the Trustee and the Servicer agree
that:
a. Unless and until otherwise directed in writing by the Issuer, the
Servicer shall provide to the Trustee all certificates and directions
required to be delivered by the Issuer to the Trustee under the
Indenture in connection with the Financing through acquisition of
Eligible Loans and Student Loans thereunder.
b. (1) Pursuant to the Issuer Student Loan Purchase Agreements, the
Servicer will, on behalf of the Issuer and the Trustee, require that
each Lender (in the case of FFELP Loans) or SLFC (in the case of
Alternative Loans) transfer to the Servicer or the Servicer's bailee
(or, in the case of the promissory notes relating to Alternative
Loans, to the Trustee or a custodian designated by the Trustee or, to
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the extent not required under the Indenture to be transferred to the
Trustee, to the Servicer or the Servicer's Bailee), on or before each
applicable Loan Purchase Date, physical custody and possession of
documentation and information relating to Student Loans scheduled to
be sold to the Trustee on behalf of the Issuer on each such Loan
Purchase Date. Such documentation and information so transferred will
include (i) the documents described in Exhibit A (in the case of
Issuer Student Loan Purchase Agreements relating to Alternative Loans)
or Exhibit B (in the case of Issuer Student Loan Purchase Agreements
relating to FFELP Loans) attached to the Issuer Student Loan Purchase
Agreements (the "Loan Documents"), and (ii) such additional
documentation or information relating to the Student Loans as the
Servicer shall reasonably require for the purpose of allowing the
Student Loans to be properly serviced by the Servicer.
(2) Pursuant to the Transfer Agreements, the Servicer will, on behalf
of the Issuer and the Trustee, require that GOAL Funding transfer, or
cause to be transferred, to the Servicer or the Servicer's bailee (or,
in the case of the promissory notes relating to Alternative Loans, to
the Trustee or a custodian designated by the Trustee or, to the extent
not required under the Indenture to be transferred to the Trustee, to
the Servicer or the Servicer's Bailee), on or before each applicable
Loan Purchase Date (which term, as used in this Agreement with respect
to the purchase of Financed GOAL Funding Student Loans, means the date
of purchase of such loans under the applicable Transfer Agreement),
physical custody and possession of documentation and information
relating to Student Loans scheduled to be sold to the Trustee on
behalf of the Issuer on each such Loan Purchase Date. Such
documentation and information so transferred will include (i) the
documents described in Exhibit A (in the case of GOAL Funding Student
Loan Purchase Agreements relating to Alternative Loans) or Exhibit B
(in the case of GOAL Funding Student Loan Purchase Agreements relating
to FFELP Loans) attached to the GOAL Funding Student Loan Purchase
Agreements (the "Loan Documents"), and (ii) such additional
documentation or information relating to the Student Loans as the
Servicer shall reasonably require for the purpose of allowing the
Student Loans to be properly serviced by the Servicer.
c. Within a reasonable period after delivery to the Servicer (but in no
event longer than 10 Business Days unless otherwise expressly agreed)
of the documentation and information relating to the Student Loans
identified in Section 4(b) above, the Servicer shall (i) establish and
maintain all records delivered to the Servicer with respect to each
Financed Student Loan, and complete records of the Servicer's
servicing of the Financed Student Loan from the date such servicing
commenced, (ii) maintain possession of the loan documents described in
Section 6(p) and (r) hereof that it receives as required hereunder,
and (iii) image, microfilm or otherwise reproduce such documents and
cause such reproductions to be stored at a separate location.
d. In the course of establishing the records relating to each Financed
Student Loan as described in Section 4(c) hereof, the Servicer shall
make note of any item which comes to the attention of the Servicer
during the establishment process (it being
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understood that the Servicer will not be conducting a complete file
and note examination of each Student Loan to be Financed) which would
make it appear that any Student Loan has not been properly originated,
disbursed and documented or has not had due diligence exercised with
respect thereto, in the origination, disbursement, administration,
servicing and collection thereof, in accordance with the requirements
of the Higher Education Act, the Guarantee Program or Alternative Loan
Program, as appropriate, and the applicable Student Loan Purchase
Agreement. The Servicer shall give Lenders (in the case of FFELP
Loans) or SLFC (in the case of Alternative Loans), as appropriate, a
reasonable opportunity (but in no event longer than 30 days or such
greater period of time as the Trustee shall consent to in writing) to
correct any exceptions or problems identified by the Servicer and to
provide such documentation and information to the Servicer as shall be
necessary to correct such exceptions or problems. Except as otherwise
permitted under the Indenture, if such exceptions or problems are not
corrected, the Servicer shall return to the Lenders (in the case of
FFELP Loans) or SLFC (in the case of Alternative Loans), as
appropriate, in accordance with procedures and under the conditions
specified in the sections of the Student Loan Purchase Agreements
relating to the rejection or repurchase of Student Loans, any
documents and information related to Student Loans which have
exceptions or problems resulting in such loans not being Eligible
Loans.
e. The Servicer shall (i) establish a course of communication with each
Lender (in the case of FFELP Loans), SLFC (in the case of Alternative
Loans) and the GOAL Funding Servicer (in the case of Financed GOAL
Funding Student Loans) sufficient to ensure that the Servicer receives
notice from each Lender, SLFC and the GOAL Funding Servicer of all
transactions with respect to each Student Loan prior to the required
time of delivery by the Servicer to the Trustee of the documents
required by Section 4(a) hereof, and (ii) load all information
necessary for servicing Financed Student Loans into its servicing
system so that servicing and collection of Financed Student Loans on
the basis of "simple interest" can commence as of the Loan Purchase
Date or purchase date as required by Section 3 hereof. If interest has
been collected on any Student Loan to be purchased by the Trustee (for
the account and on behalf of the Issuer) on the basis of the "rule of
78's," the Servicer shall cause the Lender (in the case of FFELP
Loans), SLFC (in the case of Alternative Loans) or GOAL Funding or the
GOAL Funding Servicer (in the case of Financed GOAL Funding Student
Loans) wishing to sell such loan to convert the remaining repayment
schedule for each such Student Loan so that it may be collected on the
basis of "simple interest."
f. The Issuer and the Trustee shall promptly after each Loan Purchase
Date, upon request by the Servicer, provide to the Servicer any
additional documentation or information related to the Financed
Student Loans which either of them may have in their possession or may
reasonably be able to obtain.
g. The Servicer shall, promptly after each Loan Purchase Date, notify the
Borrower under each Financed Student Loan purchased on such Loan
Purchase Date of the assignment and transfer to the Trustee (for the
account and on behalf of the
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Issuer) of the Lender's (in the case of FFELP Loans), SLFC's (in the
case of Alternative Loans) or GOAL Funding's (in the case of Financed
GOAL Funding Student Loans) interest in each such Financed Student
Loan and shall direct each such Borrower thereafter to make all
payments on such Financed Student Loan directly to the Servicer until
otherwise notified by the Trustee. If a Financed Student Loan has been
converted from repayment under the rule of 78's to repayment under the
simple interest method, as required by Section 4(e) hereof, the Lender
(in the case of FFELP Loans), SLFC (in the case of Alternative Loans)
or GOAL Funding or the GOAL Funding Servicer (in the case of Financed
GOAL Funding Student Loans) shall notify the Borrower and shall obtain
the written consent of the Borrower and take whatever additional
action may be necessary to effect such conversion of repayment method
in accordance with applicable legal requirements. Each Borrower
notification shall include any information required to be included by
the Higher Education Act and the requirements of the Guarantee Agency
or Alternative Loan Program, as appropriate.
h. The assignment of each Financed FFELP Loan to the Trustee (for the
account and on behalf of the Issuer) shall be reported by the Servicer
promptly after each applicable Loan Purchase Date to the Secretary of
Education and/or the Guarantee Agency, as appropriate, and the
Trustee, by a properly completed Loan Transfer Report in the form
required by the Secretary of Education and/or the Guarantee Agency.
i. If the Servicer at any time becomes aware of an event which would (i)
allow the Issuer to reject a Student Loan under the applicable Student
Loan Purchase Agreement, or (ii) allow the Issuer to require a Lender
(in the case of FFELP Loans) or SLFC (in the case of Alternative
Loans) to repurchase a Financed Eligible Loan or Financed Student Loan
or to substitute an Eligible Loan under the applicable Student Loan
Purchase Agreement, then the Servicer shall so notify the Issuer. If
the Servicer or the Issuer determine that such a Student Loan should
be rejected or repurchased, the Trustee shall take such action as
shall be necessary to allow the Issuer and the Trustee to enforce
their respective rights under the applicable Student Loan Purchase
Agreement.
5. Origination Process. The Issuer, the Trustee and the Servicer agree
that:
a. Unless and until otherwise directed in writing by the Issuer, the
Servicer shall provide to the Trustee all certificates and directions
required to be delivered by the Issuer to the Trustee under the
Indenture in connection with the Financing through origination of
Eligible Loans and Student Loans thereunder.
b. The Servicer shall provide disbursement and origination services in
connection with the origination and disbursement of Eligible Loans
under the Indenture. The Servicer shall perform all services and
duties customary to the origination and disbursement of Student Loans
in accordance with generally accepted industry standards and practices
and in compliance with the Higher Education Act,
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applicable requirements of the Guarantor and each Alternative Loan
Program and all other applicable federal, state and local laws and
regulations.
6. Servicing. The Servicer agrees that each of the Financed Student
Loans, while held under the Indenture, shall be serviced by it in accordance
with the procedures established in the Higher Education Act, the Guarantee
Program regulations and, where applicable, each Alternative Loan Program.
Additionally, the Servicer shall perform at least the following minimum duties,
obligations and functions in connection with its servicing of such Financed
Student Loans:
a. Maintain a complete and separate file concerning each Financed Student
Loan, which file (i) shall include, without limitation, the Loan
Documents, and at least the following information relating to each of
the Financed Student Loans: name and social security number of
Eligible Borrower, actual or estimated graduation date of the student,
payment status, days delinquent, number of payments made, next payment
due date, date of last payment received, total amount disbursed,
beginning of deferments and forbearances, and ending of deferments and
forbearances; and (ii) shall be maintained in a manner sufficient to
allow separate identification of the Financed Student Loans securing
the Notes from other loans serviced or owned by the Servicer
(including those owned by or on behalf of the Issuer).
b. Take all steps necessary to maintain the Guarantee coverage on each
Financed FFELP Loan in full force and effect at all times.
c. Exercise reasonable discretion in approving borrower requests for
forbearance (as permitted under the Higher Education Act and the
Guarantee Program regulations or the applicable Alternative Loan
Program, as appropriate) where such approval will not adversely affect
the financial viability of the Issuer and will not violate the
covenants set forth in the Indenture.
d. Exercise due diligence (within the meaning of the Higher Education
Act, the Guarantee Program regulations and the Alternative Loan
Programs) in the servicing, administration and collection of all
Financed Student Loans.
e. Attempt to collect or cause to be collected all payment of principal
and interest, Special Allowance Payments, and Guarantee payments with
respect to each Financed Student Loan and, with respect thereto, (A)
(i) cause all interest subsidy payments and Special Allowance Payments
to be forwarded by the Secretary of Education directly to the Trustee
for immediate deposit into the appropriate Fund or Account under the
Indenture and (ii) deposit all other such payments within two (2)
Business Days of receipt thereof by the Servicer into the Revenue Fund
established under the Indenture. Upon submission by the Servicer to
the Secretary of Education of a billing for interest subsidy payments
or Special Allowance Payments, the Servicer shall, upon request,
provide to the Trustee and the Issuer a written statement indicating
(a) the amount billed for interest subsidy payments and (b) the
principal amount in each Special Allowance Payment
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category for which the billing is submitted, for use by the Trustee
and the Issuer in verifying amounts billed for and received with
respect thereto from the Secretary of Education. In the event of
discrepancies or disputes with the Secretary of Education, the
Servicer shall be responsible for representing the interests of the
Issuer and the Trustee in effecting a settlement with the Secretary of
Education of such discrepancies or disputes. The Servicer shall direct
the transfer from time to time of the balances in the Revenue Fund for
transfer to the appropriate Fund or Account under the Indenture. On or
before the date of any transfer, the Servicer shall deliver by
facsimile, hand or mail by U.S. express mail (or other substantially
equivalent means acceptable to the Trustee) a statement to the Trustee
indicating the portion of the payments transferred on such date which
represents (x) principal payments from any source with respect to
Financed Student Loans, and (y) interest payments from any source with
respect to Financed Student Loans.
f. Retain summary records of all contacts, follow-ups and collection
efforts (showing at least the date and subject of each communication
with the Borrower or endorser for collection of each delinquent
Financed Student Loan) and records of all correspondence (including,
without limitation, changes for which records are required to be
maintained by the Higher Education Act, the Guarantee Program
regulations and, where applicable, each Alternative Loan Program)
relating to each Financed Student Loan.
g. Prepare and maintain all appropriate accounting records with respect
to all transactions related to each Financed Student Loan, including,
but not limited to, accounting for all payments of principal,
interest, and Guarantee payments with respect to each Financed Student
Loan and Special Allowance Payments relating to all Financed FFELP
Loans.
h. Handle the processing of all adjustments including, without
limitation, forbearances, reinstatements, deferments, refunds and
loans paid in full.
i. Handle the processing of all address changes and the updating of the
address records accordingly.
j. In the case of defaulted Financed FFELP Loans, take all steps
necessary to file and prove a claim for loss with the Secretary of
Education or the Guarantee Agency, as the case may be and as required,
and assume responsibility for all necessary communication and contact
with the Secretary of Education or the Guarantee Agency, as the case
may be and as required, to recover on such defaulted Financed FFELP
Loans within the time required by the Higher Education Act and the
requirements of the Guarantee Agency. In the case of defaulted
Financed Alternative Loans, take all steps necessary to recover on
such defaulted Financed Alternatives Loans in accordance with the
requirements of the applicable Alternative Loan Program.
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k. In the case of a claim for loss being denied by the Secretary of
Education or the Guarantee Agency, as the case may be, under
circumstances resulting in a Lender being required by a Student Loan
Purchase Agreement to repurchase a Financed FFELP Loan, take such
action as shall be necessary to allow the Issuer or the Trustee to
cause such Lender to repurchase such Financed FFELP Loan or to
substitute a different Eligible Loan in accordance with the
requirements of the applicable Student Loan Purchase Agreement.
l. Prepare and file with the Secretary of Education or the Guarantee
Agency, as the case may be and as required, a Lender's manifest of
Financed FFELP Loans on all new accounts, accounts paid in full and
accounts converted to a repayment basis.
m. Prepare and furnish to the Issuer and the Trustee by the l0th day of
each month the following reports with respect to activity concerning
each Financed Student Loan during the preceding month:
(1) upon request, computer generated reports showing, in reasonable
detail, all transactions during such preceding month concerning
each Financed Student Loan serviced by the Servicer;
(2) upon request, a report showing the unpaid principal balance of
each Financed Student Loan as of the last day of such preceding
month;
(3) upon request, with respect to Financed Student Loans in
repayment, a delinquency report or reports showing all accounts
past due as of the last day of such preceding month in categories
of 0-30 days, 31-60 days, 61-90 days, 91-120 days, 121-150 days,
151-180 days, 181-270 days and over 270 days;
(4) upon request, a report of Financed Student Loans paid in full
during such preceding month;
(5) a report specifying the number of and the aggregate unpaid
principal amount of claims made during such preceding month on
defaulted Financed Student Loans and during the then current
fiscal year of the Issuer and the number and aggregate amount of
such claims which were rejected by the Guarantee Agency, if any,
during such month and during the then current fiscal year of the
Issuer, the number and aggregate unpaid principal amount of
Financed Student Loans being serviced by the Servicer as of the
last day of such preceding month, and the aggregate unpaid
principal amount of defaulted Financed Student Loans as of the
last day of such preceding month; and
(6) copies of all formal reports filed by the Servicer with respect
to Financed Student Loans with any person or entity and such
other reports which are available to the Servicer and which may
be reasonably requested from time to time by the Issuer or the
Trustee.
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n. With respect to Financed Student Loans in repayment, prepare and
furnish to the Issuer and the Trustee upon request, copies of all file
updates and transactions listings, including, without limitation,
credits applied, Financed Student Loans paid and exceptions listings.
o. Identify on the servicing system the Notes as the source of financing
for each such Financed Student Loan.
p. Maintain a duplicate or copy of the file or record (which may be on
microfilm or computer tape) pertaining to each Financed Student Loan
at a location separate and apart from that at which the original of
such file is maintained (such duplicate file to include, without
limitation, a copy of each loan application, interim and payout
note(s) if applicable, Guarantee Agreement, disclosure statement and
Secretary of Education Loan Transfer Statement, where applicable).
q. Maintain the original promissory note pertaining to each Financed
Student Loan (other than Financed Alternative Loans held by the
Trustee or a custodian designated by the Trustee) to be maintained in
secure storage facilities to protect, to the extent reasonable and
possible under the circumstances, such original file concerning such
Financed Student Loan.
r. Obtain and maintain imaged or microfilm copies and/or back-up computer
tapes (but in any case a copy of the promissory note relating to each
Financed Student Loan) at a separate location adequate to ensure
against loss or damage to the files pertaining to the Financed Student
Loans by reason of any casualty or theft; obtain and maintain in force
adequate insurance for loss or damage to the file pertaining to the
Financed Student Loans by reason of any casualty or theft; and the
Servicer shall be liable for any costs associated with, or loss to the
Issuer resulting from, the reconstruction of data related to the
Financed Student Loans in the event of natural disaster or the
malfunction of any computer systems.
s. Maintain in force fidelity bonds upon all personnel of the Servicer
insuring against any loss of money or other property which the
Trustee, the Issuer or the Servicer might suffer as a consequence of
any fraudulent or dishonest act of such personnel, in an amount
required by any supervisory agency of federal or state government
having jurisdiction, but if not so required, then in an amount equal
to at least the Servicer's current coverage amounts and deductibles
(as evidenced by the insurance certificate delivered to the Issuer
herewith) or such lesser amount as shall be in writing determined from
time to time by the Issuer, with the approval of the Trustee, to be
sufficient.
t. Answer all lawful inquiries received by the Servicer from Lenders (in
the case of FFELP Loans), SLFC (in the case of Alternative Loans), the
GOAL Funding Servicer (in the case of Financed GOAL Funding Student
Loans), Borrowers, Eligible Institutions, the Secretary of Education,
the Guarantee Agency, the Issuer or the Trustee pertaining to Financed
Student Loans, school status or refunds, and cooperate to the extent
necessary to gather the information needed to answer such
11
inquiries; provided, however, that such inquiries may be referred to
the Eligible Institution which a student attended or is attending, if
necessary, and the Servicer shall have no responsibility with respect
to disputes between a Borrower and such Eligible institution regarding
tuition or registration.
u. Any communication received by the Servicer which is in the nature of a
complaint, shall be immediately answered by the Servicer.
v. File with the Secretary of Education in an accurate, timely and
complete manner "Lender's Interest and Special Allowance Request and
Report (LaRS)", or such other form or request for payment directly to
the Trustee of interest subsidy payments and Special Allowance
Payments as the Secretary of Education may require, from time to time
but in no event later than fifteen (15) Business Days after the end of
each calendar quarter.
In addition, the Servicer agrees that it will, for the fees specified in Section
18 hereof, perform all servicing obligations relating to Financed Student Loans
required of the Issuer or the Trustee, or which the Issuer or the Trustee is
required to cause the Servicer to perform.
7. Due Diligence. The Servicer agrees that in discharging its obligations
hereunder it shall:
a. Exercise due diligence in the origination, disbursement,
administration, servicing and collection of all Financed Student Loans
as the term "due diligence" is used in the Higher Education Act and
the Guarantee Program regulations;
b. Exercise reasonable care and diligence in the origination,
disbursement, acquisition, administration and collection of all
Financed Student Loans;
c. Attempt to collect or cause to be collected the Financed Student Loans
in a competent, diligent and orderly fashion, and in a manner
substantially in accordance with the requirements of the Higher
Education Act, the Secretary-of Education, the Guarantee Agency, the
Indenture (including specifically but without limitation the
provisions of Sections 5.5 through 5.8 of the Indenture), the
Alternative Loan Programs, the Student Loan Purchase Agreements and
each applicable Federal Reimbursement Contract and Guarantee
Agreement; and
d. Exercise reasonable prudence in those aspects of the administration of
the Program which are within its area of responsibility.
8. Liaison with Lenders, SLFC, GOAL Funding, Eligible Institutions and
Other Parties. The Servicer shall maintain one or more toll-free WATS telephone
lines to provide telephone access to its Student Loan servicing office in
Aberdeen, South Dakota, by the Issuer, the Trustee, Lenders, SLFC, GOAL Funding,
Borrowers and Eligible Institutions. The applicable numbers for such telephone
lines shall be provided in writing to the Issuer and the Trustee and to each
Borrower. The Issuer, the Trustee and each such Borrower shall be promptly
advised in writing of each change to such telephone number.
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9. Right of Inspection; Availability of Records; Audits.
a. Subject to any restrictions of applicable law, the Issuer, the
Trustee, each Guarantee Agency, the Secretary or any successor
thereto, the Comptroller of the Currency and/or any governmental
agency having jurisdiction over the Issuer or the Trustee (and, in
each case, such entities' representatives) (any such entity being
referred to herein as the "Examiner"), shall have the right, at any
time and from time to time, during normal business hours, and upon
reasonable notice to the Servicer (which may be less than 5 days), to
examine and audit any and all of the Servicer's records or accounts
pertaining to any Financed Student Loan. Under the preceding sentence,
the Examiner shall have the right to examine and make copies of any
documents related to Financed Student Loans and to interview personnel
involved in the servicing. Subject to any access restrictions in any
agreement for provision of computer or data processing equipment or
related services, the Servicer shall make available to the Examiner
without charge all manuals, forms, files and descriptions of the
software necessary to enable the Examiner to interpret and analyze the
information and reports produced by the system, it being understood
that the Servicer shall retain all title, rights and interest thereto
and therein.
b. The Issuer and the Trustee shall each have the right to require the
Servicer to furnish such documents as it in its sole discretion from
time to time deems necessary to determine that the Servicer has
complied with the provisions of this Agreement, the Student Loan
Purchase Agreements and the Indenture, including, without limitation,
Sections 5.5 through 5.8 of the Indenture.
c. If and to the extent required by the Higher Education Act and the
Guarantee Program regulations, the Servicer shall cause to have
prepared and shall submit to the Secretary of Education and the
Guarantee Agencies on or before the respective due dates thereof:
(1) any third-party servicer compliance audits and audited financial
statements required under the Higher Education Act and the
Guarantee Program regulations relating to the Servicer and its
servicing of Financed FFELP Loans; and
(2) any lender compliance audits required under the Higher Education
Act and the Guarantee Program regulations relating to the Trustee
(as the holder of the Financed FFELP Loans) and the Financed
FFELP Loans.
The Servicer shall provide to the Issuer and the Trustee promptly
after it becomes available (and in no event later than 10
Business Days) a copy of each such audit and any other audit or
report required by the Secretary of Education, any Guaranty
Agency or other third party in connection with the Servicer's
activities in originating, acquiring and servicing the Financed
FFELP Loans.
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d. The Servicer shall provide to the Issuer and the Trustee copies of its
annual third party (SAS70) audit reports, if such reports are
prepared, promptly following the Servicer's receipt thereof.
e. The Servicer shall provide to the Issuer and the Trustee its annual
financial statements, audited by a firm of independent certified
public accountants, within one hundred twenty (120) days of the end of
each fiscal year of the Servicer; and its quarterly unaudited
financial statements, within forty-five (45) days of the end of each
fiscal quarter of the Servicer.
f. If reports are not prepared and submitted under Section 9(c) hereof or
if the Trustee determines it is necessary as part of a request under
Section 9(b) hereof, upon the request of the Trustee or the Issuer,
the Servicer shall undergo an annual audit, examination and review
conducted by a firm of independent public accountants with experience
in auditing student loan program operations under the Higher Education
Act, independently selected by the Issuer (or the Trustee if the
Issuer fails to make such selection), of its systems, programs,
procedures, services and operations to determine the Servicer's
compliance with this Agreement. If any such audit, examination and
review shall indicate to the Issuer or the Trustee that the Servicer
is not in material compliance with its obligations under this
Agreement, this Agreement may be terminated by the Issuer or the
Trustee on the basis of Section 11(a)(3) hereof (an audit, examination
or review under this subsection, however, is not required for a
termination under Section 11(a)(3)).
g. The costs of audits and reports prepared under subsections (c) through
(f) above shall be paid by the Servicer.
10. Amendments; Benefits; Termination. This Agreement (a) may be amended,
supplemented or modified only by written instrument duly executed by all parties
hereto and only upon the receipt of a written certificate from the Issuer and
the Trustee that such amendment, supplement or modification will not deprive any
Holder of the Notes in any material respect of the security afforded by this
Agreement, (b) shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns, and (c) except as
provided in Section 11 hereof, may not be terminated (except for cause) or
assigned by any party hereto without the prior written consent of the other
parties hereto; provided that the Trustee may make an assignment to its
successor as trustee under the Indenture if the Trustee shall cease serving as
trustee under the Indenture.
11. Termination.
a. This Agreement shall terminate with respect to the Servicer (in the
case of any of the following events relating solely to the Servicer)
or the Administrator (in the case of any of the following events
relating solely to the Administrator) or both (in the case of any of
the following events relating to both the Servicer and the
Administrator):
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(1) upon the expiration of the term stated in Section 1 hereof;
(2) if the Servicer or the Administrator shall:
(a) admit in writing its inability to pay its debts generally as
they become due;
(b) consent to the appointment of a custodian (as that term is
defined in the federal Bankruptcy Code) for or assignment to
a custodian of the whole or any substantial part of the
property of the Servicer or the Administrator, as the case
may be, or f ail to stay, set aside or vacate within sixty
(60) days from the date of entry thereof any order or decree
entered by a court of competent jurisdiction ordering such
appointment or assignment;
(c) commence any proceeding or file a petition under the
provisions of the federal Bankruptcy Code for liquidation,
reorganization or adjustment of debts, or under any
insolvency law or other statute or law providing for the
modification or adjustment of the rights of creditors, or
fail to stay, set aside or vacate within sixty (60) days
from the date of entry thereof any order or decree entered
by a court of competent jurisdiction pursuant to an
involuntary proceeding, whether under federal or state law,
providing for liquidation or reorganization of the Servicer
or the Administrator, as the case may be, or modification or
adjustment of the rights of creditors; or
(d) contest in writing the validity or enforceability of this
Agreement as a whole or deny in writing that this Agreement
as a whole is binding upon the Servicer or the
Administrator, as the case may be;
(3) upon written notice by the Issuer or the Trustee to the Servicer
or the Administrator, as applicable, if the Servicer or the
Administrator materially breaches its obligations, or any
representation or warranty, under this Agreement or upon written
notice by the Issuer or the Trustee to the Servicer on the basis
of Section 9(f) hereof; or
(4) upon written notice by the Issuer or the Trustee to the Servicer,
if at any time the Guarantee Agency or the Department of
Education has issued a notice of suspension or termination
against the Servicer, or has suspended or terminated the payment
of all claims with respect to Financed FFELP Loans or, in the
case of the Department of Education, all Special Allowance
Payments or interest benefit payments with respect to Financed
FFELP Loans as a result of actions or omissions of the Servicer
(it being understood that the cessation of less than all such
claims or payments may constitute a breach under Section 11(a)(3)
hereof).
15
Notwithstanding the foregoing, any termination pursuant to clauses (3)
or (4) of this subsection (a) will be subject to the following
conditions. If such breach under clause (3) or suspension or
termination under clause (4) is capable of being cured within ninety
(90) days without, in the judgment of the Trustee, adversely affecting
the security provided to the Noteholders by the Financed Student Loans
and the related Guarantee payments, Special Allowance Payments and
interest subsidy payments, the Servicer or the Administrator, as the
case may be, shall have the right to cure such breach, within ninety
(90) days of the date the Servicer or the Administrator, as the case
may be, learns of such breach or receives notice of such breach from
the Issuer or the Trustee, prior to such termination. If such breach
is not capable of being cured in the manner specified above, no
termination pursuant to clause (3) or (4) shall occur if, in the
judgment of the Trustee, such breach or suspension or termination will
not adversely affect the security provided the Noteholders by the
Financed Student Loans and any related Guarantee, Special Allowance
Payments and interest subsidy payments.
Each of the Servicer and the Administrator agrees to promptly notify
the Trustee, the Issuer and each Rating Agency of any occurrence or
condition which constitutes (or which with the passage of time or the
giving of notice or both would constitute) an event permitting the
termination of this Agreement.
b. If this Agreement shall be terminated with respect to the Servicer
under subsection (a), or if any Financed Student Loan is sold or
otherwise transferred by the Trustee (for the account and on behalf of
the Issuer) to another person, then any Financed Student Loans then
being serviced hereunder (or the particular Financed Student Loans
that are sold or otherwise transferred, as the case may be) shall be
transferred by the Servicer to a servicing system of the Issuer, the
Trustee or their designee and (i) the Servicer shall promptly provide
the Issuer and the Trustee with every reasonable and necessary
assistance, including data processing support, to timely transfer the
Financed Student Loans and all promissory notes and all records
related to the Financed Student Loans (including system records),
together with all necessary or proper assignments, transfers and
documents of authority, and (ii) the actual documented costs and
expenses of such transfer and of the conversion by the replacement
servicer of such Financed Student Loans to such replacement servicing
system shall be paid by the Servicer if such termination is by the
Issuer or the Trustee by reason of the occurrence of an event
described in Section 11(a)(2), (3) or (4). There shall be no
additional charge to the Issuer or the Trustee for the Servicer's
handling of assignments and transfers of Financed Student Loans in the
ordinary course.
c. If this Agreement shall be terminated with respect to the Servicer or
the Administrator, or both, under subsection (a), the terminated party
agrees that it shall continue to perform all its obligations under
this Agreement until a successor servicer or administrator, as the
case may be, has been appointed or until otherwise directed in writing
by the Trustee.
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12. Disposition of Files on Termination. Upon termination of this
Agreement with respect to the Servicer or the Administrator, all files and
information held by the Servicer or the Administrator, as the case may be, in
connection herewith (including computer information) will be turned over to the
Issuer or its designee in such form (which may include microfilm) as the Issuer
may reasonably request, upon reimbursement by the Issuer for reasonable costs,
except as otherwise specified in Section 11(b) above.
13. Servicer and Administrator Not Agents. Neither the Servicer nor the
Administrator is, nor shall they hold themselves out to be, the agent of the
Issuer or the Trustee except for the specific limited purposes set forth in this
Agreement. Except as set forth in this Agreement, the Issuer and the Trustee may
not direct the methods or means by which the Servicer or the Administrator shall
accomplish its duties under this Agreement.
14. Maintenance of Records.
a. The Servicer shall retain information and documentation pertaining to
the Financed Student Loans (including, but not limited to, the
information and documentation to be delivered to the Servicer in
accordance with Section 3 hereof) which comes into the physical
custody or possession of the Servicer as a result of this Agreement or
by the servicing of the Financed Student Loans by the Servicer, unless
and until the Trustee shall notify the Servicer in writing to the
contrary, whereupon such physical custody and possession shall be
transferred in the manner directed by the Trustee. Nevertheless, the
Trustee shall retain possession of the original Student Loan Note with
respect to each Alternative Loan and may elect to retain such other
original documentation as it may, upon the advice of Counsel, consider
necessary or advisable to protect its first security interest in the
Financed Student Loans.
b. The Servicer shall maintain original documentation and system records
for each Financed Student Loan, segregated from any other loans or
assets of the Servicer or any other party and clearly labeled so as to
identify the Financed Student Loans as property of the Trustee (for
the account and on behalf of the Issuer) and as security for the
Notes, provided that the Servicer may combine original documentation
and system records for each consolidated serial loan so long as the
Servicer does so in a manner which will ensure that each Financed
Student Loan comprising such a consolidated serial loan may be
separately identified and transferred or sold. The Servicer shall hold
such documentation and records subject to this Agreement and the
Indenture. From time to time the Servicer shall, upon request by the
Trustee or the Issuer and the Trustee, submit such information and
take such action as may be reasonably required by the Trustee or the
Issuer and the Trustee, to assure that the Financed Student Loans are
maintained in a proper and secure condition.
c. Except as required by law and permitted by Section 6(t) hereof, the
Servicer shall maintain the confidentiality of the information
provided hereunder and shall not disclose or in any way communicate
such information to third parties without the express written consent
of the Issuer and the Trustee. The Servicer shall provide
17
a proper security system for access to original documents and to its
computer system.
d. With respect to the original promissory note relating to each Financed
Student Loan held by the Servicer or its bailee, the obligations of
the Servicer shall be only to the Trustee during the time the Notes
are Outstanding and the Issuer shall have no authority during the time
the Notes are Outstanding to direct the Servicer in its activities
with respect to such original promissory notes.
15. Representations, Warranties and Agreements. SLFC hereby represents,
warrants and agrees as follows:
a. SLFC is duly organized and validly existing as a corporation in good
standing under the laws of the State of South Dakota and is duly
qualified to conduct its business in good standing in the State of
South Dakota and is qualified to do business in all other States where
action by SLFC is required to carry out the obligations of the
Servicer and the Administrator under this Agreement.
b. SLFC has the power and authority (corporate and other) to own its
assets and carry on its business as now being conducted and to enter
into, and perform in accordance with the terms of, this Agreement.
c. SLFC has, and its officers acting on its behalf have, full legal
authority to engage in the transactions contemplated by this
Agreement; the execution and delivery of this Agreement, the
consummation of the transactions herein contemplated and compliance
with the terms, conditions and provisions of this Agreement do not and
will not conflict with or result in a breach of any of the terms,
conditions or provisions of the articles of incorporation or bylaws of
SLFC or any agreement or instrument to which SLFC is a party or by
which it is bound, or constitute a default thereunder; SLFC is not a
party to or bound by any agreement or instrument or subject to any
charter or other corporate restriction or judgment, order, writ,
injunction, decree, law, rule or regulation which may materially and
adversely affect the ability of SLFC to perform its obligations under
this Agreement, and this Agreement constitutes a valid and binding
obligation of SLFC enforceable against it in accordance with its
terms, and no consent, approval, license, exemption or authorization
of, or filing or registration with, any government or governmental
body (i) which has not been made or obtained is required in connection
with the execution and delivery of this Agreement, and (ii) which has
not been or will not be made or obtained is or will be required in
connection with the consummation of the transactions herein
contemplated.
16. Notification to Borrowers. The parties hereto acknowledge and agree
that each Student Loan Purchase Agreement provides that the Lender (in the case
of FFELP Loans) or SLFC (in the case of Alternative Loans), as the case may be,
which is a party thereto, and that each Transfer Agreement provides that GOAL
Funding, shall, to the extent required by the Higher Education Act and the
Guarantee Program regulations or the Alternative Loan Program, as appropriate,
notify, or cause to be notified, each Borrower under each Financed Student Loan
18
of the assignment and transfer to the Trustee (but for the account and on behalf
of the Issuer) of the Lender's, SLFC's or GOAL Funding's interest in such
Financed Student Loan and shall direct the Borrower to make all payments thereon
directly to the Servicer until otherwise notified by the Trustee. To the extent
permitted by the Higher Education Act and the Guarantee Program regulations or
the Alternative Loan Program, as appropriate, the Servicer may, on behalf of the
Issuer, waive this requirement of any Lender (in the case of FFELP Loans), SLFC
(in the case of Alternative Loans) or GOAL Funding (in the case of Financed GOAL
Funding Student Loans) if the notice is sent by the Servicer on behalf of such
Lender, SLFC or GOAL Funding.
17. Obligations to Forward Payments. The parties hereto acknowledge and
agree that each Student Loan Purchase Agreement provides that if the Lender (in
the case of FFELP Loans) or SLFC (in the case of Alternative Loans), as the case
may be, which is a party thereto, and that each Transfer Agreement provides that
if GOAL Funding, after any Loan Purchase Date, is the recipient of any funds,
from whatever source received, which constitute payment of principal, interest
or Special Allowance Payments accrued with respect to any Financed Student Loan
for any period subsequent to such Loan Purchase Date, such Lender, SLFC or GOAL
Funding shall promptly remit, or cause to be remitted, all such funds to the
Servicer or in such manner as the Trustee may otherwise direct. If any such
funds shall he received by the Trustee or by a person to whom the Trustee has
directed such funds to be remitted, the Trustee shall furnish the Servicer with
prompt advice as to the receipt thereof.
18. Fees; No Petition. Subject to the following paragraph, the Issuer
shall pay, or shall cause the Trustee to pay, from funds available for such
purpose under the Indenture, to the Servicer and the Administrator, for the
performance of the Servicer's and the Administrator's functions under this
Agreement, a monthly fee in an amount each month equal to .075% of the
outstanding principal balance of all Financed Student Loans as of the last day
of the immediately preceding month; provided that if, and for so long as, the
then-current total principal amount of Liquidated Alternative Loans exceeds 20%
of the aggregate principal amount, as of the date such Student Loans were
financed, of all Alternative Loans Financed under the Indenture, such monthly
servicing rate shall be reduced to .0583%; and further provided that such
monthly fee shall be reduced by an amount equal to the Administrative Expenses
incurred by the Issuer for employee compensation, subject to a maximum amount
for each calendar year of $50,000, unless the Servicer agrees to a higher
amount. Such fee shall be paid to the Servicer on a monthly basis within fifteen
(15) days of receipt by the Trustee of an itemized written monthly billing
statement from the Servicer. The Servicer shall promptly remit to the
Administrator its allocable portion (equal to one-fourth) of such fee. If the
Servicer or the Administrator believes that it is necessary to increase the
monthly fee payable hereunder, it shall provide a written request to the Issuer
and the Trustee of its need for an increase in such fee, together with all
information required under the Indenture for the Trustee to approve an increase
in the fees payable hereunder. Each of the Servicer and the Administrator
acknowledges that such fee shall not be increased unless the conditions for
increasing such fee under the Indenture have been satisfied.
Notwithstanding the provisions of the preceding paragraph, 1/7th of the
monthly fee otherwise payable pursuant to such paragraph will be deferred (any
such fees herein referred to as "Deferred Fees") if and for so long as any Notes
are Outstanding and either of the following conditions (a "Fee Deferral
Condition") exist:
19
(1) as of the first Monthly Payment Date following a calendar
quarter, (a) the ▇▇▇ Spread (as hereinafter defined) shall have been
greater than 1% per annum for the preceding three (3) consecutive calendar
quarters, and (b) the Trustee shall not have received, within five (5)
Business Days after such Monthly Payment Date, a Corporation Certificate
that, based on a Cash Flow Projection (a copy of which shall be provided to
each Rating Agency), continuing to pay the full monthly fees hereunder will
not materially adversely affect the Issuer's ability to pay Debt Service on
the Outstanding Notes and Outstanding Other Obligations, Carry-Over Amounts
(including accrued interest thereon) with respect to Outstanding Notes,
Administrative Expenses or Note Fees or to make the required deposits to
the credit of the Indemnification Fund; or
(2) as of the last day of the preceding month, the Subordinate
Percentage is equal to or less than 96%.
Any Deferred Fees will become payable at such time as the applicable Fee
Deferral Condition ceases to exist and will be paid at the rate of 1/12th of the
Deferred Fees for each of the following twelve (12) months, or at such other
rate as will not, based on a Cash Flow Projection (a copy of which shall be
provided to each Rating Agency), materially adversely affect the Issuer's
ability to pay Debt Service on the Outstanding Notes and Outstanding Other
Obligations, Carry-Over Amounts (including accrued interest thereon) with
respect to Outstanding Notes, Administrative Expenses or Note Fees or to make
the required deposits to the credit of the Indemnification Fund. As used in this
paragraph, "▇▇▇ Spread" means, for any calendar quarter, the amount by which the
average of One-Month LIBOR for each Business Day during such quarter exceeds the
average of the bond equivalent yields of the 91-day U.S. Treasury Bills
auctioned during such calendar quarter. The Trustee shall determine the ▇▇▇
Spread for each calendar quarter no later than the first Monthly Payment Date
following such calendar quarter. The Servicer shall determine the Subordinate
Percentage as of the end of each month and shall include such percentage in the
monthly report prepared and submitted to the Trustee in accordance with the
first sentence of Section 21(d) hereof.
Each of the Servicer and the Administrator acknowledges that the Issuer and
the Trustee contemplate paying all fees payable under this Agreement solely from
funds available for such purpose in the Administration Fund created under the
Indenture, which funds are primarily dependent upon collection by the Servicer
and receipt by the Trustee of payments with respect to the Financed Student
Loans. Each of the Servicer and the Administrator covenants and agrees to
continue to be bound by the terms and provisions of this Agreement relating to
the Financed Student Loans in all respects, and to perform for a period of one
hundred twenty (120) days its obligations hereunder, regardless of the receipt
or non-receipt on a timely basis by it of any payments in respect of fees under
this Agreement.
Each of the Servicer and the Administrator, by entering into this
Agreement, covenants and agrees that it will not at any time institute against
the Issuer, or join in any institution against the Issuer of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States Federal or state bankruptcy or similar law
in connection with any obligation relating to this Agreement.
20
19. Cooperation. Each party covenants and agrees to fully cooperate with
the other parties hereto to facilitate the transactions contemplated hereunder
and by the Student Loan Purchase Agreements and the Indenture.
20. Payment of Expenses. Each party to this Agreement shall pay its own
expenses incurred in connection with the preparation, execution and delivery of
this Agreement, including, but not limited to, the fees and expenses of legal
counsel.
21. Administrative Functions to be Performed by Servicer and
Administrator. The Issuer, the Trustee and the Servicer agree that the Servicer
shall perform the following administrative functions on behalf of the Issuer as
part of its responsibilities under this Agreement.
a. Provide all necessary personnel, facilities, equipment, forms and
supplies for operating the Program in accordance with Sections 5. 5
through 5.8 of the Indenture;
b. Disseminate information on the Program to Lenders and to student
financial aid officers in Eligible Institutions and to other persons
as necessary;
c. Maintain accurate and complete records on all aspects of the Program,
which records shall be available for inspection at any time by any
director or officer of the Issuer and by auditors employed by the
Issuer; and
d. Prepare and submit to the Trustee on or before the 25th day of each
month (and if such day is not a Business Day, on the next succeeding
Business Day), the monthly reports required to be delivered to the
Noteholders pursuant to Section 5.23 of the Indenture, the form of
which is included as Exhibit A hereto. The Servicer also shall (i)
determine the Net Loan Rate and notify the Trustee and the Auction
Agent thereof at the times required by the Indenture, and (ii) prepare
for filing, and provide such other assistance as is required by the
Issuer to file, any other reports required to be filed by the Issuer
under the Higher Education Act and any Alternative Loan Program.
The Issuer, the Trustee and the Administrator agree that the Administrator
shall, on behalf of the Issuer and as part of its responsibilities under this
Agreement, cause the duties and responsibilities of the Issuer under the
Indenture to be performed, including, but not limited to, the actions set forth
below. The Administrator shall advise the Issuer when action by the Issuer is
necessary to comply with the Issuer's duties under the Indenture and the
agreements relating thereto. The Administrator shall prepare, or shall cause the
preparation by other appropriate persons of, all such documents, reports,
filings, instruments, certificates and opinions (other than those to be prepared
by the Servicer as part of its responsibilities under this Agreement) as it
shall be the duty of the Issuer to prepare, file or deliver pursuant to the
Indenture. In furtherance of the foregoing, the Administrator shall take all
appropriate action, including but not limited to, the following:
1. obtaining and preserving the Issuer's qualification to do
business in each jurisdiction in which such qualification is or
shall be necessary to protect
21
the validity and enforceability of the Indenture, the Notes and
each instrument and agreement included in the Trust Estate;
2. preparing all supplements, amendments, financing statements,
continuation statements, instruments of further assurance and
other instruments, in accordance with the relevant provisions of
the Indenture, necessary to protect the Trust Estate;
3. arranging for the delivery of any opinions of counsel and
certificates of officers of the Issuer and other statements
required under the relevant provisions of the Indenture;
4. preparing and obtaining documents and instruments required for
the release of the Issuer from its obligations under the
Indenture;
5. monitoring the Issuer's obligations as to the satisfaction and
discharge of the Indenture;
6. preparing, obtaining or filing the instruments and other
documents required for the release of Trust Estate from the lien
of the Indenture;
7. taking such actions as may be required of the Issuer under the
Indenture upon the occurrence and continuance of a default or an
Event of Default thereunder;
8. causing the directions of the Issuer to be carried out in
connection with opening one or more accounts in the Issuer's
name, preparing any orders of the Issuer and other documents
required, and taking all other actions necessary, with respect to
investment and reinvestment of funds in the Funds and Accounts
established under the Indenture in accordance with the investment
criteria and requirements of the Indenture and the investment
policies adopted by the Issuer from time to time;
9. preparing or coordinating the obtaining of all documents required
with respect to any requests by the Issuer of the Trustee to take
any action under the Indenture;
10. preparing orders of the Issuer and obtaining all documents as
necessary or required for the execution of any amendments or
supplements to the Indenture;
11. preparing and delivering to the Trustee any agreements with
respect to notice provisions; and
12. taking such actions as may be required of the Issuer under any
agreement between the Issuer and other parties relating to the
Indenture.
22
13. The Servicer, on behalf of itself and on behalf of the Issuer, as
the case may be, shall provide all notices and perform all other
activities required of the Servicer or of the Issuer to comply
with the requirements of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act and
regulations promulgated thereunder in connection with the
origination, acquisition, holding and servicing of the Financed
Student Loans and in connection with otherwise performing
services hereunder.
22. Servicer as Bailee.
a. The Servicer, in holding Loan Documents relating to the Financed
Student Loans, holds such Loan Documents as bailee for and on behalf
of the Trustee.
b. No Loan Documents held by the Servicer on behalf of the Trustee
hereunder shall be released or delivered to the Issuer or any other
person (other than claim filings in the ordinary course with the
Guaranty Agencies and sales or transfers permitted under the
Indenture) without the prior written consent of the Trustee.
c. The Servicer shall maintain all Loan Documents in a manner which
clearly identifies them as being held by the Servicer as bailee for
and on behalf of the Trustee and not for or on behalf of the Issuer or
any other person.
d. No assignment or purported assignment by the Issuer or any other
person (other than the Trustee) of any Loan Documents held by the
Servicer on behalf of the Trustee hereunder shall be recognized by the
Servicer, and the Servicer shall provide immediate notice to the
Trustee upon receiving notice of any such assignment or purported
assignment.
e. The Servicer hereby represents, warrants and acknowledges that the
Servicer, in serving as bailee under this Section, is acting
exclusively as the bailee and agent of the Trustee, and not of the
Issuer or any other person, with respect to the Loan Documents.
f. The Servicer hereby waives any lien which the Servicer might have
pursuant to statute or otherwise available at law or in equity on the
Financed Student Loans and the Loan Documents held by the Servicer on
behalf of the Trustee hereunder, including all monies and proceeds
derived therefrom or relating thereto.
23. Indemnification. The Servicer and the Administrator shall each
indemnify and hold harmless the Issuer and the Trustee from and against any
loss, cost, damage or expense, including reasonable attorney's fees, to the
extent that such loss, cost, damage or expense arises out of the failure of the
Servicer or the Administrator, as the case may be, to perform its obligations
under this Agreement. In addition, and without limiting the generality of the
foregoing, the Servicer and the Administrator shall each defend and indemnify
the Issuer and the Trustee against, and hold each harmless from, all claims,
losses, liabilities and expenses (including reasonable attorneys' fees) arising
from or in connection with:
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a. any claim of infringement of any patent, trade secret, copyright,
trademark, service ▇▇▇▇, trade name or other proprietary right alleged
to have occurred as a result of the performance of services hereunder
by the Servicer or the Administrator, as the case may be; or
b. any claim by an employee of the Servicer or the Administrator, as the
case may be, arising in consequence of, or relating to, the employee's
employment by the Servicer or the Administrator, as applicable.
24. Miscellaneous.
a. Any material written communication received at any time by the Issuer
or the Trustee with respect to a Financed Student Loan or the Borrower
under such a Financed Student Loan shall be immediately transmitted by
the Issuer or the Trustee, as the case may be, to the Servicer. Such
communications shall include, but not be limited to, letters, notices
of death or disability, adjudications of bankruptcy and like
documents, and forms requesting forbearance, deferment of repayment or
loan cancellations.
b. This Agreement shall be governed by the laws of the State of South
Dakota.
c. All covenants and agreements herein contained shall extend to and be
obligatory upon all successors and assigns of the respective parties
hereto.
d. This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original and all of which shall be deemed to
constitute but one and the same instrument.
e. If any provisions of this Agreement shall be held, or deemed to be, or
shall, in fact, be inoperative or unenforceable as applied in any
particular situation, such circumstance shall not have the effect 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 Agreement or
any part hereof.
f. All notices, requests, demands or other instruments which may or are
required to be given by any party to another party, shall be in
writing, and each shall be deemed to have been properly given when
served personally on an officer of the party to which such notice is
to be given, or upon expiration of a period of forty-eight (48) hours
(excluding weekends and holidays) from and after the postmark thereof
when mailed postage prepaid by registered or certified mail,
requesting return receipt, addressed as follows:
if intended for the Issuer:
Education Loans Incorporated
Suite 200
24
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
if intended for the Trustee:
U.S. Bank National Association
EP-MN-WS3D
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Department
if intended for the Servicer or the Administrator:
Student Loan Finance Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Any party may change the address 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 business day after it is mailed.
g. This Agreement may not be terminated by any party hereto except in the
manner and with the effect herein specifically provided.
h. Time is of the essence in this Agreement.
i. No remedy by the terms of this Agreement conferred upon or reserved to
the Trustee or the Issuer 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 Agreement or existing
at law or in equity or by statute on or after the date of this
Agreement, including, without limitation, the right to such equitable
relief by way of injunction, mandatory or prohibitory, to prevent the
breach or threatened breach of any of the provisions of this Agreement
or to enforce the performance hereof.
j. This Agreement has been made and entered into not only for the benefit
of the Issuer, the Trustee, the Servicer and the Administrator, but
also for the benefit of all Noteholders, and its provisions may be
enforced not only by the parties to this Agreement but also by each
Noteholder in the manner and to the extent such Noteholders may
enforce provisions of the Indenture. The Servicer specifically
acknowledges the rights of the Trustee pursuant to Section 6.3 of the
Indenture.
k. Any information required by this Agreement to be provided by the
Servicer with respect to a Financed Student Loan may in the case of
Financed Student Loans that have been consolidated be provided with
respect to a consolidated Financed
25
Student Loan, provided that such information at a minimum meets the
requirements of the Secretary of Education and the Guarantee Agency,
as the case may be, for the collection by the Trustee of interest
subsidy payments, Special Allowance Payments, and claim payments, and
provides sufficient information as requested by the Issuer to enable
the Issuer to comply with any arbitrage requirements under the
Internal Revenue Code of 1986, as amended, and the regulations
thereunder.
l. SLFC specifically acknowledges that the Issuer will be making
representations and warranties regarding the Student Loans to be
Financed as part of the proposed public offering of the Notes based in
part on the accuracy of SLFC's and warranties in this Agreement. SLFC
agrees to cooperate with the Issuer and to furnish all information in
its possession appropriate for inclusion in the Issuer's Prospectus.
SLFC agrees to indemnify and save the Trustee, the Issuer and the
underwriters for the Notes harmless of, from and against any and all
loss, cost, damage or expense, including reasonable attorneys' fees,
incurred by reason of any breach of SLFC's warranties or
representations hereunder or any false or misleading representations
of SLFC or any failure to disclose any matter which makes the
warranties and representations herein misleading or any inaccuracy in
any information furnished by SLFC in connection herewith.
m. It is hereby acknowledged and agreed that the Trustee will be serving
as "Eligible Lender Trustee" under the Indenture and that (i) legal
title to all Financed Student Loans constituting FFELP Loans will,
pursuant to the applicable FFELP Loan Purchase Agreement, be
transferred to the Trustee in such capacity for the benefit of the
Issuer, and (ii) upon such transfer, the Trustee will be the legal
owner and the Issuer will be the beneficial owner of such FFELP Loans.
25. Indemnification with respect to Prior Servicing. Pursuant to the
Series 2004-1 Transfer Agreements, (as such term is defined in the Indenture),
the Issuer and the Trustee have purchased or will purchase student loans
described therein (the "Initially Transferred Student Loans") from GOAL Funding
and the GOAL Funding Trustee, which Initially Transferred Student Loans were,
prior to such purchase, serviced by the Servicer under the GOAL Funding
Servicing Agreement. Pursuant to other Transfer Agreements to be entered into,
the Issuer and the Trustee will purchase student loans described therein (the
"Subsequent Transferred Student Loans") from GOAL Funding and the GOAL Funding
Trustee, which Subsequent Transferred Student Loans will, prior to such
purchase, have been serviced by the Servicer under the GOAL Funding Servicing
Agreement. The Servicer hereby agrees to indemnify and hold harmless the Issuer
and the Trustee from and against any loss, cost, damage or expense, including
reasonable attorney's fees, to the extent that such loss, cost, damage or
expense arises out of the failure of the Servicer to have performed its
obligations under the GOAL Funding Servicing Agreement.
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IN WITNESS WHEREOF, the parties have hereunto set their hands by their
officers thereunto duly authorized and executed this Agreement as of the day and
year first above written.
EDUCATION LOANS INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
President
STUDENT LOAN FINANCE CORPORATION,
as Servicer and Administrator
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
President
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Its Vice President
------------------------------------
[Signature Page for SLFC Servicing Agreement]
EXHIBIT A
Student Loan Finance Corporation
Monthly Statement Pursuant to Section 5.23 of the Indenture and Section 21 of
the Servicing and Administration Agreement (Unaudited)
Education Loans Incorporated
Student Loan Asset-Backed Notes
Report for the Month Ended _____________, ____ [sample for _____, 2004]
1