EXHIBIT 4.2.8
FORM OF SERVICING AGREEMENT AMONG THE SERVICER, THE TRUST
AND THE ELIGIBLE LENDER TRUSTEE (STUDENT LOAN)
SERVICING AGREEMENT
among
[___________________________________] STUDENT LOAN TRUST [_______]
as Issuer,
[ ]
as Servicer,
[GS Mortgage Securities Corp.]
as Seller,
and
[ ],
not in its individual capacity but solely
as Eligible Lender Trustee
Dated as of [________________]
SERVICING AGREEMENT dated as of [________________], among
[__________ _________________________] STUDENT LOAN TRUST [_______], a
[____________] trust (the "Issuer"), [_____________________], as Servicer
(the "Servicer"), [GS Mortgage Securities Corp.], as Seller (the "Seller"),
and [________________], a [_______________] solely as eligible lender
trustee and not in its individual capacity (the "Eligible Lender Trustee").
WHEREAS the Issuer desires to purchase from the Seller (and, with
respect to legal title to the student loans, [________________],
("[________________]") as trustee on behalf of the Seller) a portfolio of
federally reinsured student loans purchased in the ordinary course of
business by the Seller; and
WHEREAS the Eligible Lender Trustee is willing to hold legal title
to, and serve as eligible lender trustee with respect to, such student
loans on behalf of the Issuer; and
WHEREAS the Servicer is willing to service such student loans and
undertake certain administrative functions with respect thereto.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
Capitalized terms used but not defined herein are defined in
Appendix A to the Administration Agreement, dated as of [________________],
among the Issuer, the Seller, as Administrator, and
[_____________________], as Indenture Trustee, which also contains rules as
to usage and construction that shall be applicable herein.
ARTICLE II
CUSTODY OF FINANCED STUDENT LOANS
Section 2.01 Custody Of Student Loan Files. To assure uniform
quality in servicing the Financed Student Loans and to reduce
administrative costs, the Issuer hereby revocably appoints the Servicer,
and the Servicer hereby accepts such appointment, to act for the benefit of
the Issuer and the Indenture Trustee as Custodian of the following
documents or instruments which are hereby constructively delivered to the
Indenture Trustee, as pledgee of the Issuer (or will be constructively
delivered to the Indenture Trustee, as pledgee of the Issuer, in the case
of Prefunded Loans, New Loans and Serial Loans, as of the applicable
Transfer Date, in the case of Qualified Substitute Student Loans, as of the
date of the relevant Assignment to the Issuer, in the case of Consolidation
Loans originated during the Revolving Period by the Eligible Lender Trustee
on behalf of the Issuer, as of the applicable date of origination or in the
case of Consolidation Loans the principal balances of which are increased
by the principal balances of any related Add-on Consolidation Loans, as of
the applicable Add-on Consolidation Loan Funding Date) with respect to each
Financed Student Loan:
(a) the original fully executed copy of the note
evidencing the Financed Student Loan (including the original loan
application fully executed by the Borrower); and
(b) any and all other documents and computerized records
that the Servicer shall keep on file, in accordance with its
customary procedures, relating to such Financed Student Loan or
any Obligor with respect thereto.
Section 2.02 Duties Of Servicer As Custodian. (a) Safekeeping. The
Servicer shall maintain custody of the Student Loan Files for the benefit
of the Issuer and the Indenture Trustee on behalf of the Noteholders and
any Swap Counterparties and maintain such accurate and complete accounts,
records and computer systems pertaining to each Student Loan File as shall
enable the Issuer to comply with the Basic Documents. In performing its
duties as custodian, the Servicer shall act with reasonable care, using
that degree of skill and attention that the Servicer exercises with respect
to the student loan files relating to all comparable Student Loans that the
Servicer services and shall ensure that it complies with all applicable
federal and state laws, including the Higher Education Act, with respect
thereto. The Servicer shall conduct, or cause to be conducted, periodic
audits of the Student Loan Files held by it under this Agreement and of the
related accounts, records and computer systems, in such a manner as shall
enable the Issuer, the Indenture Trustee or any Swap Counterparties to
verify the accuracy of the Servicer's record keeping. The Servicer shall
promptly report to the Issuer, the Indenture Trustee and any Swap
Counterparties any failure on its part to hold the Student Loan Files and
maintain its accounts, records and computer systems as herein provided and
promptly take appropriate action to remedy any such failure. Nothing herein
shall be deemed to require an initial review or any periodic review by the
Issuer, the Eligible Lender Trustee or the Indenture Trustee of the Student
Loan Files.
(b) Maintenance Of Records. The Servicer shall maintain
each Student Loan File at one of the locations specified in
Schedule A to this Agreement or at such other office as shall be
specified by written notice to the Issuer, the Indenture Trustee
and any Swap Counterparties not later than 90 days after any
change in location. Upon reasonable prior notice of not less than
three Business Days, the Servicer shall make available to the
Issuer, the Indenture Trustee and any Swap Counterparties or their
respective duly authorized representatives, attorneys or auditors
a list of locations of the Student Loan Files and the related
accounts, records and computer systems maintained by the Servicer.
(c) Release Of Documents. Upon instruction from the
Indenture Trustee, the Servicer shall, as soon as practicable,
release any Student Loan File to the Indenture Trustee, the
Indenture Trustee's agent, or the Indenture Trustee's designee, as
the case may be, at such place or places as the Indenture Trustee
may designate.
Section 2.03 Instructions; Authority To Act. The Servicer shall be
deemed to have received proper instructions with respect to the Student
Loan Files upon its receipt of written instructions signed by a Responsible
Officer of the Indenture Trustee.
Section 2.04 Custodian's Indemnification. The Servicer as
Custodian shall pay for any actual loss, liability or expense, including
reasonable attorneys' fees, that may be imposed on, incurred by or asserted
against the Issuer, the Eligible Lender Trustee or the Indenture Trustee or
any of their officers, directors, employees and agents as a result of any
improper act or omission in any way relating to the maintenance and custody
by the Servicer as Custodian of the Student Loan Files as required by this
Agreement where the final determination that any such improper act or
omission by the Servicer resulted in such loss, liability or expense is
established by a court of law, by an arbitrator, or by way of settlement
agreed to by the Servicer; provided, however, that the amount of any
liability with respect to any Financed Student Loan shall not exceed the
amount that would have been paid if such Student Loan had been accepted and
paid by the related Guarantor as a claim, and provided, further, that the
Servicer shall not be liable to the Eligible Lender Trustee for any portion
of any such amount resulting from the willful misfeasance, bad faith or
negligence of the Eligible Lender Trustee and the Servicer shall not be
liable to the Indenture Trustee for any portion of any such amount
resulting from the willful misfeasance, bad faith or negligence of the
Indenture Trustee. This provision shall not be construed to limit the
Servicer's or any other party's rights, obligations, liabilities, claims or
defenses which arise as a matter of law or pursuant to any other provision
of this Agreement.
Section 2.05 Effective Period And Termination. The appointment of
Loan Services as Custodian shall become effective as of the Closing Date
and shall continue in full force and effect for so long as Loan Services
shall remain the Servicer hereunder. If all the rights and obligations of
Loan Services shall have been terminated under Section 6.01, the
appointment of Loan Services as Custodian shall be terminated
simultaneously with the effectiveness of such termination. As soon as
practicable on or after any termination of such appointment and in any
event within ninety (90) days, Loan Services shall deliver possession of
the Student Loan Files to the Indenture Trustee or the Indenture Trustee's
agent at such place or places as the Indenture Trustee may reasonably
designate. Loan Services will continue to hold the Student Loan Files as
agent of the Indenture Trustee until the Student Loan Files are
transferred.
ARTICLE III
ADMINISTRATION AND SERVICING OF STUDENT LOANS
Section 3.01 Duties Of Servicer. The Servicer, for the benefit of
the Issuer (to the extent provided herein), the Noteholders and any Swap
Counterparties, shall manage, service, administer and make collections on
the Financed Student Loans with reasonable care, using that degree of skill
and attention that the Servicer exercises with respect to all comparable
Student Loans that it services. Without limiting the generality of the
foregoing or of any other provision set forth in this Agreement and
notwithstanding any other provision to the contrary set forth herein, the
Servicer shall manage, service, administer and make collections with
respect to the Financed Student Loans (other than collection of any
Interest Subsidy Payments and Special Allowance Payments, which the
Eligible Lender Trustee will perform on behalf of the Trust) in accordance
with, and otherwise comply with, all applicable federal and state laws,
including any applicable standards, guidelines and requirements of the
Higher Education Act and the applicable Guarantee Agreement, the failure to
comply with which would adversely affect the eligibility of one or more of
the Financed Student Loans for federal reinsurance or Interest Subsidy
Payments, Special Allowance Payments or Guarantee Payments or would have an
adverse effect on the Noteholders, any Swap Counterparties or the Company.
The Servicer also hereby acknowledges that its obligation to service the
Financed Student Loans includes all Consolidation Loans originated by the
Issuer during the Revolving Period, any Consolidation Loan supplemented
from time to time during and after the Revolving Period by the addition of
the principal balance of any related Add-on Consolidation Loan, any
Qualified Substitute Student Loans conveyed to the Issuer pursuant to
Section 3.02 of the Loan Sale Agreement and those Prefunded Loans, New
Loans and Serial Loans conveyed to the Eligible Lender Trustee on behalf of
the Trust pursuant to Section 2.02 of the Loan Sale Agreement and the
related Transfer Agreement, a copy of which shall be delivered to the
Servicer by the Seller promptly upon execution thereof; provided, however,
that any failure by the Seller to so deliver a Transfer Agreement shall not
affect the Servicer's obligations hereunder to service all the Financed
Student Loans.
The Servicer's duties shall include collection and posting of all
payments, responding to inquiries of borrowers on such Financed Student
Loans, monitoring borrowers' status, making required disclosures to
borrowers, investigating delinquencies, sending payment coupons to
borrowers and otherwise establishing repayment terms, reporting tax
information to borrowers, if applicable, accounting for collections and
furnishing monthly and annual statements with respect thereto to the
Administrator. Subject to the provisions of Section 3.02, the Servicer
shall follow its customary standards, policies and procedures in performing
its duties as Servicer. Without limiting the generality of the foregoing,
the Servicer is authorized and empowered to execute and deliver, on behalf
of itself, the Issuer, the Eligible Lender Trustee, the Indenture Trustee,
the Company and the Noteholders or any of them, instruments of satisfaction
or cancellation, or partial or full release or discharge, and all other
comparable instruments, with respect to such Financed Student Loans;
provided, however, that the Servicer agrees that it will not: (a) permit
any rescission or cancellation of a Financed Student Loan except as ordered
by a court of competent jurisdiction or governmental authority or as
otherwise consented to in writing by the Eligible Lender Trustee and the
Indenture Trustee or (b) reschedule, revise, defer or otherwise compromise
with respect to payments due on any Financed Student Loan except pursuant
to any applicable Deferral or Forbearance periods or otherwise in
accordance with all applicable standards, guidelines and requirements with
respect to the servicing of the Financed Student Loans; and provided,
further, that the Servicer shall not agree to any decrease of the interest
rate on, or the principal amount payable with respect to, any Financed
Student Loan.
The Servicer, for the benefit of the Issuer (to the extent
provided herein) and the Indenture Trustee on behalf of the Noteholders,
shall promptly and routinely furnish the Eligible Lender Trustee and the
Indenture Trustee with copies of all material reports, records, and other
documents and data as required by this Agreement or as may otherwise be
required by the Higher Education Act. All material correspondence received
by the Servicer relating to individual Student Loans shall be maintained in
microcopy form or in summary form in an automated history file established
by the Servicer. The Servicer shall furnish in good condition all forms and
supplies as specified in this Agreement and any Schedules hereto. The
Eligible Lender Trustee and the Indenture Trustee may transmit Financed
Student Loan account data to the Servicer on these forms or by any other
mutually acceptable means. In performing its duties hereunder, the Servicer
will be guided by and comply with the Higher Education Act and applicable
requirements of the related Guarantor. The Servicer agrees to produce a
clear and precise audit trail for each Financed Student Loan and to comply
with such other reporting, servicing, and operating standards as are
contained in this Agreement.
The Eligible Lender Trustee on behalf of the Issuer hereby grants
a power of attorney and all necessary authorization to the Servicer to
maintain any and all collection procedures with respect to the Financed
Student Loans, including filing, pursuing and recovering claims against the
Guarantors for Guarantee Payments and taking any steps to enforce such
Financed Student Loans such as commencing a legal proceeding to enforce a
Financed Student Loan in the name of the Issuer, the Eligible Lender
Trustee, the Indenture Trustee, the Company or the Noteholders. The
Eligible Lender Trustee or the Indenture Trustee shall upon the written
request of the Servicer or the Administrator furnish the Servicer or the
Administrator with any other powers of attorney and other documents
reasonably necessary or appropriate to enable the Servicer or the
Administrator to carry out their servicing and administrative duties
hereunder.
Section 3.02 Collection Of Student Loan Payments. (a) The Servicer
shall make reasonable efforts (including all efforts that may be specified
under the Higher Education Act or any Guarantee Agreement) to collect all
payments called for under the terms and provisions of the Financed Student
Loans as and when the same shall become due and shall follow such
collection procedures as it follows with respect to all comparable Student
Loans that it services. The Servicer shall allocate collections with
respect to the Financed Student Loans between principal and interest in
accordance with the terms of each such loan. The Servicer may in its
discretion waive any late payment charge or any other fees that may be
collected in the ordinary course of servicing a Financed Student Loan.
(b) The Servicer shall make reasonable efforts to claim,
pursue and collect all Guarantee Payments from the Guarantors
pursuant to the Guarantee Agreements with respect to any of the
Financed Student Loans as and when the same shall become due and
payable, shall comply with the Higher Education Act and all other
applicable laws and agreements with respect to claiming, pursuing
and collecting such payments and shall follow such practices and
procedures as it follows with respect to all comparable guarantee
agreements and student loans that it services. In connection
therewith, the Servicer is hereby authorized and empowered to
convey to the related Guarantor the note and the related Student
Loan File representing any Financed Student Loan in connection
with submitting a claim to the applicable Guarantor for a
Guarantee Payment in accordance with the terms of the applicable
Guarantee Agreement.
(c) The Eligible Lender Trustee shall, with the
assistance of the Servicer as set forth below and on behalf of the
Issuer, make reasonable efforts to claim, pursue and collect all
Interest Subsidy Payments and Special Allowance Payments from the
Department with respect to any of the Financed Student Loans as
and when the same shall become due and payable, shall comply with
all applicable laws and agreements with respect to claiming,
pursuing and collecting such payments and shall follow such
practices and procedures as the Servicer follows with respect to
Student Loans serviced by it. All amounts so collected by the
Eligible Lender Trustee with respect to Financed Student Loans
(net, for the first Collection Period, of interest accrued prior
to the Cutoff Date that is not to be capitalized) shall constitute
Monthly Available Funds for the applicable Monthly Collection
Period and Available Funds for the applicable Collection Period,
and shall be deposited into the Collection Account in accordance
with Section 4.01. In connection therewith, the Servicer shall
prepare and file with the Department on a timely basis all claims
forms and other documents and filings necessary or appropriate in
connection with the claiming of Interest Subsidy Payments and
Special Allowance Payments on behalf of the Eligible Lender
Trustee and shall otherwise assist the Eligible Lender Trustee in
pursuing and collecting such Interest Subsidy Payments and Special
Allowance Payments from the Department. The Eligible Lender
Trustee shall upon the written request of the Servicer furnish the
Servicer with any power of attorney and other documents reasonably
necessary or appropriate to enable the Servicer to prepare and
file such claims forms and other documents and filings.
The Eligible Lender Trustee may permit trusts, other than the
Trust, established by the Seller to securitize student loans to use the
Department lender identification number applicable to the Trust. In such
event, the Eligible Lender Trustee may claim and collect Interest Subsidy
Payments and Special Allowance Payments with respect to Financed Student
Loans in the Trust and student loans in such other trusts using such common
lender identification number. Notwithstanding anything herein or in the
Basic Documents to the contrary, any amounts assessed against payments
(including, but not limited to, Interest Subsidy Payments and Special
Allowance Payments) due from the Department to any such other trust using
such common lender identification number as a result of amounts (including,
but not limited to, Consolidation Fees) owing to the Department from the
Trust will be deemed for all purposes hereof and of the Basic Documents
(including for purposes of determining amounts paid by the Department with
respect to the student loans in the Trust and such other trust) to have
been assessed against the Trust and shall be deducted by the Eligible
Lender Trustee or the Servicer and paid to such other trust from any
collections made by them which would otherwise have been payable to the
Collection Account for the Trust. If so specified in the servicing
agreement applicable to any such other trust, any amounts assessed against
payments due from the Department to the Trust as a result of amounts owing
to the Department from such other trust using such common lender
identification number will be deemed to have been assessed against such
other trust and will be deducted by the Eligible Lender Trustee or the
Servicer from any collections made by them which would otherwise be payable
to the collection account for such other trust and paid to the Trust.
Section 3.03 Realization Upon Student Loans. For the benefit of
the Issuer, the Servicer shall use reasonable efforts consistent with its
customary servicing practices and procedures and including all efforts that
may be specified under the Higher Education Act or the applicable Guarantee
Agreement in its servicing of any delinquent Financed Student Loans.
Section 3.04 No Impairment. The Servicer shall not impair the
rights of the Issuer, the Eligible Lender Trustee, the Indenture Trustee,
the Company, the Noteholders or any Swap Counterparties in the Financed
Student Loans.
Section 3.05 Purchase Of Student Loans; Reimbursement. (a) Upon
the discovery by the Servicer, the Eligible Lender Trustee, the Indenture
Trustee or the Seller of any breach pursuant to Sections 3.01, 3.02, 3.03
or 3.04 hereof, the party discovering the breach shall give prompt written
notice to the others. If the breach is not cured within sixty (60) days
after the Servicer becomes aware or receives written notice (whichever is
earlier) of such breach, the Servicer shall purchase or arrange for the
purchase of any Student Loan in which the interests of the Noteholders, the
Issuer, the Indenture Trustee, the Eligible Lender Trustee or any Swap
Counterparties are materially and adversely affected by such breach as of
the first day succeeding the end of such 60-day period that is the last day
of a Monthly Collection Period (it being understood that any such breach
that does not affect the related Guarantor's obligation to guarantee
payment of such Student Loan will not be considered to have a material
adverse effect for this purpose and it being further understood that any
dispute as to whether such Guarantor's obligation has been so affected so
as to create such a material adverse effect, shall be resolved, for so long
as the Notes are Outstanding, by the Indenture Trustee, whose determination
shall be dispositive, and after the Notes are no longer Outstanding, by the
Eligible Lender Trustee, whose determination shall then be dispositive);
provided, however, that during each 12-month period following the Cutoff
Date or an anniversary of the Cutoff Date (each, a "Servicer Liability
Period"), the Servicer will be obligated to purchase Student Loans only to
the extent its total liability incurred during the then current Servicer
Liability Period for such purchases and any other liabilities under this
Agreement exceeds an amount (the "Servicer Liability Limit") equal to 0.15%
of the principal balances of the Financed Student Loans outstanding as of
the Cutoff Date or, after the first anniversary of the Cutoff Date, as of
the preceding July 31.
(b) In consideration of the purchase of any such Student
Loan pursuant to this Section 4.01, the Servicer shall remit, in
the manner specified in the Purchase Amount and the Issuer shall
execute such assignments and other documents reasonably requested
by the Servicer in order to effect the transfer of such Student
Loan to the Servicer or its designee; provided, however, that the
Servicer's total liability for losses for rejected claims by the
Guarantors for any Financed Student Loan based on any breach
pursuant to Sections 3.01, 3.02, 3.03 or 3.04 hereof will not
exceed that amount which the related Guarantor would have been
obligated to pay with respect to such loan had its obligation to
guarantee payment thereof not been affected by the Servicer's
breach. Subject to Section 5.02, the exclusive remedy of the
Noteholders, the Issuer, the Indenture Trustee, and the Eligible
Lender Trustee and the entire liability of Servicer for such a
breach shall be limited to requiring the Servicer to purchase
Financed Student Loans pursuant to this Section 3.05.
Section 3.06 Servicing Fee. The Servicing Fee for each calendar
month (the "Servicing Fee") shall be equal to the lesser of: (a)
one-twelfth of 0.60% or such larger percentage approved by the Rating
Agencies, not to exceed 1.00% (or of 0.50% with respect to any calendar
month beginning with ____________) of the aggregate principal balances of
the Financed Student Loans outstanding as of the last day of the preceding
calendar month and (b) the sum of: (i) one-twelfth of the In-School
Percentage of the principal balance of each Billing Account relating to a
Financed Student Loan as of the last day of the preceding calendar month
which was an In-School Loan on such date or, if the average principal
balance of Billing Accounts relating to In-School Loans as of such date was
$2,500 or less, $1.50 per Billing Account, (ii) one-twelfth of the GRDF
Percentage of the principal balance as of the last day of the preceding
calendar month of each Billing Account relating to a Financed Student Loan
which was a Grace, Repayment, Deferral or Forbearance Student Loan as of
such date or, if the average principal balance of such Billing Accounts as
of such date was $3,000 or less, $3.00 per Billing Account, (iii) a fee of
$1.00 for each notification sent by the Servicer during the preceding
calendar month on behalf of the Trust to a borrower providing information
to such borrower with respect to Federal Consolidation Loan programs, (iv)
a one-time fee of $75.00 for each Federal Consolidation Loan originated by
the Eligible Lender Trustee on behalf of the Trust during the preceding
calendar month, (v) a fee of $25.00 for each Financed Student Loan for
which, during the preceding calendar month, claim documentation was
completed and provided to the Guarantor or for which the Servicer performed
bankruptcy or ineligible Billing Account processing (that, in the case of
ineligible Billing Account processing, resulted in a demand letter being
sent to the borrower), in each case as required by the claims processing
requirements of the Guarantor, (vi) a fee of $.05 per Financed Student Loan
for storing and warehousing the applicable loan documentation for each such
loan during the preceding calendar month, (vii) a one-time fee of $0.40 for
each Billing Account transferred by the Seller to the Trust during the
preceding calendar month, (viii) a fee equal to one-twelfth of the product
of: (A) the aggregate outstanding principal balance of the Financed Student
Loans as of the last day of the preceding calendar month and (B) .05%,
which fee will be payable so long as 34 C.F.R. ss.682.413 or any successor
section remains in effect and (ix) a fee of $70.00 per hour for system
development requests made by the Eligible Lender Trustee on behalf of the
Trust and provided by the Servicer during the preceding calendar month. For
purposes of making the determinations set forth in clauses (i) and (ii) of
the preceding sentence, the "In-School Percentage" and "GRDF Percentage"
shall each be determined based on the average principal balance of the
Billing Accounts relating to the In-School Loans and the Billing Accounts
relating to the Grace, Repayment, Deferral and Forbearance Loans,
respectively, as of the last day of the preceding calendar month, as
follows:
Average Principal Balance In-School Percentage Average Principal Balance GRDF Percentage
--------------------------- -------------------- ------------------------- -----------------
The Servicing Fee (together with any portion of the Servicing Fee that
remains unpaid from prior Monthly Payment Dates) will be payable on each
Monthly Payment Date and will be paid solely out of Monthly Available Funds
in the case of each Monthly Payment Date that is not a Quarterly Payment
Date (and out of Available Funds in the case of each Quarterly Payment
Date) and amounts on deposit in the Reserve Account on such Monthly Payment
Date (including each Quarterly Payment Date) as provided in Sections
2(d)(iv)(A), 2(d)(v)(A) and 2(e)(iv)(A) of the Administration Agreement. To
the extent that, for any Monthly Payment Date, the Servicing Fee is the
amount calculated as described in clause (a) of the first sentence of the
preceding paragraph, then an amount (the "Servicing Fee Shortfall") equal
to the excess of the amount described in clause (b) of such sentence over
the amount described in clause (a) of such sentence shall be payable on the
next succeeding Quarterly Payment Date (or if such Monthly Payment Date is
also a Quarterly Payment Date, on such Quarterly Payment Date) from any
remaining Reserve Account Excess as provided in Section 2(e)(ii) of the
Administration Agreement. To the extent such remaining Available Funds are
insufficient to pay the Servicing Fee Shortfall on any Distribution Date,
the Seller shall be required to pay any unpaid Servicing Fee Shortfall
directly to the Servicer out of its own funds. The Servicer will be
obligated to perform its servicing obligations whether or not it receives
any amounts in respect of Servicing Fee Shortfalls.
Section 3.07 Servicer's Report. On or before the fifteenth day of
each month (or, if any such day is not a Business Day, on the next
succeeding Business Day), the Servicer shall deliver to the Administrator a
servicer's report with respect to the preceding calendar month containing
all information necessary for the Administrator to prepare the
Administrator's Certificate, referred to in Section 2(b)(ii) of the
Administration Agreement, covering such preceding calendar month.
Section 3.08 Annual Statement As To Compliance; Notice Of Default.
(a) The Servicer shall deliver to the Eligible Lender Trustee, the
Indenture Trustee and any Swap Counterparties (with a copy to the Seller),
on or before [_________] of each year beginning [____________], an
Officers' Certificate of the Servicer, dated as of [_________] of the
preceding year, stating that: (i) a review of the activities of the
Servicer during the preceding 12-month period (or, in the case of the first
such certificate, during the period from the Closing Date to [_________]
or, as specified below, to [_________]) and of its performance has been
made under such officers' supervision and (ii) to the best of such
officers' knowledge, based on such review, the Servicer has fulfilled all
its obligations under this Agreement in all material respects throughout
such year (or in the case of the first such Officers' Certificate, such
shorter period) or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officers and
the nature and status thereof; provided, however, that, at the option of
the Servicer, the Servicer may date the initial such Officers' Certificate
as of September 30, [______], and, in such case, shall deliver such
Officer's Certificate on or before December 31, [______] and thereafter
shall deliver such Officer's Certificate, dated as of September 30 of each
succeeding year, on or before December 31 of such year. The Indenture
Trustee shall send a copy of each such Officers' Certificate and each
report referred to in this Section 3.08 to the Rating Agencies. A copy of
each such Officers' Certificate and each report referred to in this Section
3.08 may be obtained by any Noteholder or Note Owner by a request in
writing to the Eligible Lender Trustee addressed to its Corporate Trust
Office, together with evidence satisfactory to the Eligible Lender Trustee
that such Person is one of the foregoing parties. Upon the telephone
request of the Eligible Lender Trustee, the Indenture Trustee will promptly
furnish the Eligible Lender Trustee a list of Noteholders as of the date
specified by the Eligible Lender Trustee.
(b) The Servicer shall deliver to the Eligible Lender
Trustee, the Indenture Trustee, the Seller, any Swap
Counterparties and the Rating Agencies, promptly after having
obtained knowledge thereof, but in no event later than five
Business Days thereafter, written notice in an Officers'
Certificate of the Servicer of any event which with the giving of
notice or lapse of time, or both, would become a Servicer Default
under Section 6.01 or would cause the Servicer to fail to meet any
Rating Agency Condition.
Section 3.09 Annual Independent Certified Public Accountants'
Report. The Servicer shall cause a firm of independent certified public
accountants, which may also render other services to the Servicer, the
Seller or their Affiliates, to deliver to the Eligible Lender Trustee, the
Indenture Trustee and any Swap Counterparties (with a copy to the Seller)
within 180 days of the end of the Servicer's regular fiscal-year ended
September 30 or calendar-year audit period, an audit report that
encompasses the Servicer's portion of the annual Lender Audit (as defined
in the Higher Education Act), or any successor thereto, as required of a
lender under the Higher Education Act, for the preceding year (or, in the
case of the first such report, during the period from the Closing Date to
December 31, [_____] or, as the case may be, to September 30, [_____]). The
Indenture Trustee shall send a copy of each such report to the Rating
Agencies.
Such report will also indicate that the firm is independent of the
Servicer within the meaning of the Code of Professional Ethics of the
American Institute of Certified Public Accountants.
Section 3.10 Access To Certain Documentation And Information
Regarding Financed Student Loans. Upon at least three Business Days' prior
notice, the Servicer shall provide the Noteholders access to the Student
Loan Files in such cases where the Noteholders shall be required by
applicable statutes or regulations to review such documentation, as
demonstrated by evidence satisfactory to the Servicer in its reasonable
judgment. Access shall be afforded without charge, but only upon reasonable
request and during the normal business hours at the respective offices of
the Servicer. Nothing in this Section shall affect the obligation of the
Servicer to observe any applicable law prohibiting disclosure of
information regarding the Obligors and the failure of the Servicer to
provide access to information as a result of such obligation shall not
constitute a breach of this Section.
Section 3.11 Servicer Expenses. The Servicer shall be required to
pay all expenses incurred by it in connection with its activities
hereunder, including fees and disbursements of independent accountants,
taxes imposed on the Servicer, and expenses incurred in connection with
distributions and reports to the Administrator or the Noteholders, as the
case may be.
Section 3.12 Appointment Of Subservicer. (a) The Servicer may at
any time appoint a subservicer to perform all or any portion of its
obligations as Servicer hereunder; provided, however, other than with
respect to the appointment of the Subservicer pursuant to clause (b) below,
that the Rating Agency Condition shall have been satisfied in connection
therewith; and provided, further, that the Servicer shall remain obligated
and be liable to the Issuer, the Eligible Lender Trustee, the Indenture
Trustee and the Noteholders for the servicing and administering of the
Financed Student Loans in accordance with the provisions hereof without
diminution of such obligation and liability by virtue of the appointment of
such subservicer and to the same extent and under the same terms and
conditions as if the Servicer alone were servicing and administering the
Financed Student Loans. The fees and expenses of the subservicer shall be
as agreed between the Servicer and its subservicer from time to time and
none of the Issuer, the Eligible Lender Trustee, the Indenture Trustee or
the Noteholders shall have any responsibility therefor, and
(b) On the Closing Date, the Servicer is appointing the
Subservicer to subservice certain Financed Student Loans pursuant
to the Subservicing Agreement. Neither the Servicer nor any
successor Servicer may terminate the Subservicer without cause
pursuant to the Subservicing Agreement.
ARTICLE IV
DEPOSITS INTO THE COLLECTION ACCOUNT
Section 4.01 Deposits Into The Collection Account. (a) The
Servicer shall deposit into the Collection Account (in the case of clauses
(i) and (ii) within two Business Days of receipt of freely available funds
therefor):
(i) all identifiable payments received by the Servicer
by or on behalf of Obligors on the Financed Student Loans,
including any Guarantee Payments with respect to the Financed
Student Loans;
(ii) all Liquidation Proceeds on the Financed Student
Loans;
(iii) with respect to Purchased Student Loans, the
aggregate Purchase Amounts, when such amounts are due, as provided
in Section 3.05 hereof; and
(iv) all other amounts required to be deposited into
the Collection Account by the Servicer pursuant to the terms
hereof.
(b) The Eligible Lender Trustee shall deposit into the
Collection Account within two Business Days of the receipt
thereof, the aggregate amount of Interest Subsidy Payments and
Special Allowance Payments received by it with respect to the
Financed Student Loans.
(c) The Seller shall deposit into the Collection Account,
the aggregate Purchase Amount with respect to Purchased Student
Loans and all other amounts to be paid by the Seller under Section
3.02 and 5.01 of the Loan Sale Agreement when such amounts are
due, as provided in Section 3.03 of the Loan Sale Agreement.
(d) The Indenture Trustee, at the written direction of
the Administrator, shall withdraw from the Prefunding Account or
the Collateral Reinvestment Account, as applicable, and deposit
into the Collection Account on each Determination Date during the
Revolving Period, an amount equal to the Capitalized Interest
Amount for the preceding Collection Period, as provided in Section
2(f) and Section 2(k) of the Administration Agreement.
(e) The Indenture Trustee, at the written direction of
the Administrator, shall withdraw from the Prefunding Account or
the Collateral Reinvestment Account, as applicable, and deposit
into the Collection Account on any date during the Revolving
Period specified by the Administrator, such amounts as the
Administrator may determine are needed to make required
distributions from Monthly Available Funds or Available Funds, as
the case may be, on Monthly Payment Dates.
ARTICLE V
THE SERVICER
Section 5.01 Representations Of Servicer. The Servicer makes the
following representations on which the Issuer is deemed to have relied in
acquiring (through the Eligible Lender Trustee) the Financed Student Loans
and appointing the Servicer as servicer hereunder. The representations
speak as of the execution and delivery of this Agreement and as of the
Closing Date in the case of the Initial Financed Student Loans, and will be
deemed to speak as of the applicable Transfer Date, in the case of
Prefunded Loans, New Loans and Serial Loans, as of the date of the relevant
Assignment in the case of any Qualified Substitute Student Loan, as of the
date of origination in the case of any Consolidation Loan added to the
Trust during the Revolving Period and as of the applicable Add-on
Consolidation Loan Funding Date in the case of any Consolidation Loan the
principal balance of which has been increased by the principal balance of a
related Add-on Consolidation Loan, but shall survive the sale, transfer and
assignment of the Financed Student Loans to the Eligible Lender Trustee on
behalf of the Issuer (and the origination of such Consolidation Loans) and
the pledge thereof to the Indenture Trustee pursuant to the Indenture.
(a) Organization And Good Standing. The Servicer is duly
organized and validly existing as a corporation in good standing
under the laws of the State of [_________], with the power and
authority to own its properties and to conduct its business as
such properties are currently owned and such business is currently
conducted, and has the legal right to service the Financed Student
Loans.
(b) Power And Authority Of The Servicer. The Servicer has
the corporate power and authority to execute and deliver this
Agreement and to carry out its terms, and the execution, delivery
and performance of this Agreement have been duly authorized by the
Servicer by all necessary corporate action.
(c) Binding Obligation. This Agreement constitutes a
legal, valid and binding obligation of the Servicer, enforceable
in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization and similar laws relating to creditors'
rights generally and subject to general principles of equity.
(d) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms
hereof or thereof 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 or both) a default under, the certificate
of incorporation or by-laws of the Servicer, or any indenture,
agreement or other instrument to which the Servicer is a party or
by which it shall be bound; or result in the creation or
imposition of any Lien upon any of its properties pursuant to the
terms of any such indenture, agreement or other instrument; or
violate any law or, to the knowledge of the Servicer, any order,
rule or regulation applicable to the Servicer of any court or of
any federal or state regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over the
Servicer or its properties. Performance by the Servicer of its
servicing duties with respect to the Financed Student Loans, and
compliance by the Servicer with the terms of this Agreement, will
not result in the loss of any Guarantee Payments by the Trust or
any reinsurance payments with respect to any Financed Student Loan
by the applicable Guarantor.
(e) No Proceedings. There are no proceedings or
investigations pending against the Servicer or, to its best
knowledge, threatened against the Servicer, before any court,
regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Servicer or its
properties: (i) asserting the invalidity of this Agreement or any
of the other Basic Documents to which the Servicer is a party,
(ii) seeking to prevent the issuance of the Notes or the
consummation of any of the transactions contemplated by this
Agreement, or any of the other Basic Documents, (iii) seeking any
determination or ruling that could reasonably be expected to have
a material and adverse effect on the performance by the Servicer
of its obligations under, or the validity or enforceability of,
this Agreement, any of the other Basic Documents or the Notes or
(iv) seeking to affect adversely the federal or state income tax
attributes of the Issuer or the Notes.
(f) All Consents. All authorizations, consents, licenses,
orders or approvals of or registrations or declarations with any
court, regulatory body, administrative agency or other government
instrumentality required to be obtained, effected or given by the
Servicer in connection with the execution and delivery by the
Servicer of this Agreement and the performance by the Servicer of
its duties contemplated by this Agreement have in each case been
duly obtained, effected or given and are in full force and effect.
Section 5.02 Indemnities Of Servicer. (a) The Servicer shall be
liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Servicer under this Agreement.
The Servicer shall pay for any loss, liability or expense,
including reasonable attorneys' fees, that may be imposed on, incurred by
or asserted against the Issuer, the Eligible Lender Trustee, the Indenture
Trustee, the Seller, the Administrator or the Noteholders or any of the
officers, directors, employees and agents of the Issuer, the Eligible
Lender Trustee, the Indenture Trustee, the Administrator or the Seller to
the extent that such loss, liability or expense arose out of, or was
imposed upon any such Person through, the negligence, willful misfeasance
or bad faith of the Servicer in the performance of its obligations and
duties under this Agreement or by reason of the reckless disregard of its
obligations and duties under this Agreement, where the final determination
that any such loss, liability or expense arose out of, or was imposed upon
any such Person through, any such negligence, willful misfeasance, bad
faith or recklessness on the part of the Servicer is established by a court
of law, by an arbitrator or by way of settlement agreed to by the Servicer;
provided, however, that the Servicer's obligation arising under this
Section 5.02 shall apply only to the extent that the sum of such obligation
and any other liabilities of the Servicer under this Agreement exceeds the
Servicer Liability Limit for any Servicer Liability Period (as such terms
are defined in Section 3.05). Notwithstanding the foregoing, if the
Servicer is rendered unable, in whole or in part, by a force outside the
control of the parties hereto (including acts of God, acts of war or
terrorism, fires, earthquakes and other disasters) to satisfy its
obligations under this Agreement, the Servicer shall not be deemed to have
breached any such obligation upon delivery of written notice of such event
to the other parties hereto, for so long as the Servicer remains unable to
perform such obligation as a result of such event.
For purposes of this Section, in the event of the termination of
the rights and obligations of Loan Services as Servicer pursuant to Section
6.01, or a resignation by such Servicer pursuant to this Agreement, such
Servicer shall be deemed to be the Servicer pending appointment of a
successor Servicer pursuant to Section 6.02.
Liability of the Servicer under this Section shall survive the
resignation or removal of the Eligible Lender Trustee or the Indenture
Trustee or the termination of this Agreement and shall include reasonable
fees and expenses of counsel and expenses of litigation. If the Servicer
shall have made any indemnity payments pursuant to this Agreement and the
Person to or on behalf of whom such payments are made thereafter collects
any of such amounts from others, such Person shall promptly repay such
amounts to the Servicer, without interest.
(b) Except with respect to liabilities relating to
rejected claims by the Guarantors, the Seller agrees to indemnify
and hold harmless the Servicer from any liability incurred by the
Servicer under subsection (a) above as a result of the Servicer's
ordinary negligence.
Section 5.03 Merger Or Consolidation Of, Or Assumption Of The
Obligations Of, Servicer. The Servicer hereby agrees that, upon: (a) any
merger or consolidation of the Servicer into another Person, (b) any merger
or consolidation to which the Servicer shall be a party resulting in the
creation of another Person or (c) any Person succeeding to the properties
and assets of the Servicer substantially as a whole, the Servicer shall:
(i) cause such Person (if other than the Servicer) to execute an agreement
of assumption to perform every obligation of the Servicer hereunder, (ii)
deliver to the Eligible Lender Trustee, the Indenture Trustee and any Swap
Counterparties an Officers' Certificate and an Opinion of Counsel each
stating that such consolidation, merger or succession and such agreement of
assumption comply with this Section and that all conditions precedent
provided for in this Agreement relating to such transaction have been
complied with, (iii) cause the Rating Agency Condition to have been
satisfied with respect to such transaction and (iv) cure any existing
Servicer Default or any continuing event which, after notice or lapse of
time or both, would become a Servicer Default. Upon compliance with the
foregoing requirements, such Person shall be the successor to the Servicer
under this Agreement without further act on the part of any of the parties
to this Agreement. Notwithstanding anything herein to the contrary,
compliance with clauses (i), (ii), (iii) and (iv) above shall be conditions
to the consummation of any of the transactions referred to in clause (a),
(b) or (c) above.
Section 5.04 Limitation On Liability Of Servicer And Others.
Neither the Servicer nor any of the directors, officers, employees or
agents of the Servicer shall be under any liability to the Issuer or the
Noteholders, except as provided under this Agreement, for any action taken
or for refraining from the taking of any action pursuant to this Agreement
or for errors in judgment; provided, however, that this provision shall not
protect the Servicer or any such Person against any liability that would
otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in the performance of duties or by reason of reckless disregard
of obligations and duties under this Agreement. The Servicer and any
director, officer, employee or agent of the Servicer may rely in good faith
on any document of any kind prima facie properly executed and submitted by
any person respecting any matters arising under this Agreement.
Except as provided in this Agreement, the Servicer shall not be
under any obligation to appear in, prosecute or defend any legal action
that shall not be incidental to its duties to service the Student Loans in
accordance with this Agreement and that in its opinion may involve it in
any expense or liability; provided, however, that the Servicer may
undertake any reasonable action that it may deem necessary or desirable in
respect of this Agreement and the other Basic Documents and the rights and
duties of the parties to this Agreement and the other Basic Documents and
the interests of the Noteholders under the Indenture.
Section 5.05 Loan Services Not To Resign As Servicer. Subject to
the provisions of Section 5.03, Loan Services shall not resign from the
obligations and duties hereby imposed on it as Servicer under this
Agreement except upon determination that the performance of its duties
under this Agreement shall no longer be permissible under applicable law.
Notice of any such determination permitting the resignation of Loan
Services shall be communicated to the Eligible Lender Trustee, the
Indenture Trustee, the Rating Agencies and any Swap Counterparties at the
earliest practicable time (and, if such communication is not in writing,
shall be confirmed in writing at the earliest practicable time) and any
such determination shall be evidenced by an Opinion of Counsel to such
effect delivered to the Eligible Lender Trustee, the Indenture Trustee and
any Swap Counterparties concurrently with or promptly after such notice. No
such resignation shall become effective until the Indenture Trustee or a
Successor Servicer shall have assumed the responsibilities and obligations
of Loan Services in accordance with Section 6.02.
ARTICLE VI
DEFAULT
Section 6.01 Servicer Default. If any one of the following events
(each, a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to deliver to the
Indenture Trustee for deposit in any of the Trust Accounts any
payment required by the Basic Documents, which failure continues
unremedied for five Business Days after written notice of such
failure is received by the Servicer from the Eligible Lender
Trustee, the Indenture Trustee or the Administrator or after
discovery of such failure by an officer of the Servicer; or
(b) any failure by the Servicer duly to observe or to
perform in any material respect any other covenants or agreements
of the Servicer set forth in this Agreement or any other Basic
Document, which failure shall: (i) materially and adversely affect
the rights of Noteholders or any Swap Counterparties and (ii)
continue unremedied for a period of thirty (30) days after the
date of discovery of such failure by an officer of the Servicer or
on which written notice of such failure, requiring the same to be
remedied, shall have been given: (A) to the Servicer, by the
Indenture Trustee, the Eligible Lender Trustee or (B) to the
Servicer, the Indenture Trustee, the Administrator and the
Eligible Lender Trustee by Noteholders representing not less than
25% of the Outstanding Amount of the Notes; or
(c) any limitation, suspension or termination by the
Department of the Servicer's eligibility to service Student Loans
which materially and adversely affects its ability to service the
Financed Student Loans; or
(d) an Insolvency Event occurs with respect to the
Servicer;
then, and in each and every case, so long as the Servicer Default shall not
have been remedied, either the Indenture Trustee or the Noteholders of
Notes evidencing not less than 75% of the Outstanding Amount of the Notes
by notice then given in writing to the Servicer (and to the Indenture
Trustee and the Eligible Lender Trustee if given by the Noteholders) may
terminate all the rights and obligations (other than the obligations set
forth in Section 5.02) of the Servicer under this Agreement. On or after
the receipt by the Servicer of such written notice, all authority and power
of the Servicer under this Agreement, whether with respect to the Notes,
the Financed Student Loans or otherwise, shall, without further action,
pass to and be vested in the Indenture Trustee or such successor Servicer
as may be appointed under Section 6.02; and, without limitation, the
Indenture Trustee and the Eligible Lender Trustee are hereby authorized and
empowered to execute and deliver, for the benefit of the predecessor
Servicer, as attorney-in-fact or otherwise, any and all documents and other
instruments, and to do or accomplish all other acts or things necessary or
appropriate to effect the purposes of such notice of termination, whether
to complete the transfer and endorsement of the Financed Student Loans and
related documents, or otherwise. The predecessor Servicer shall cooperate
with the successor Servicer, the Indenture Trustee and the Eligible Lender
Trustee in effecting the termination of the responsibilities and rights of
the predecessor Servicer under this Agreement, including the transfer to
the successor Servicer for administration by it of all cash amounts that
shall at the time be held by the predecessor Servicer for deposit, or shall
thereafter be received by it with respect to a Financed Student Loan. All
reasonable costs and expenses (including attorneys' fees) incurred in
connection with transferring the Student Loan Files to the successor
Servicer and amending this Agreement and any other Basic Documents to
reflect such succession as Servicer pursuant to this Section shall be paid
by the predecessor Servicer upon presentation of reasonable documentation
of such costs and expenses. Upon receipt of notice of the occurrence of a
Servicer Default, the Eligible Lender Trustee shall give notice thereof to
the Rating Agencies.
Section 6.02 Appointment Of Successor. (a) Upon receipt by the
Servicer of notice of termination pursuant to Section 6.01, or the
resignation by the Servicer in accordance with the terms of this Agreement,
the predecessor Servicer shall continue to perform its functions as
Servicer under this Agreement, in the case of termination, only until the
date specified in such termination notice or, if no such date is specified
in a notice of termination, until receipt of such notice and, in the case
of resignation, until the later of: (i) the date 120 days from the delivery
to the Eligible Lender Trustee, and the Indenture Trustee of written notice
of such resignation (or written confirmation of such notice) in accordance
with the terms of this Agreement and (ii) the date upon which the
predecessor Servicer shall become unable to act as Servicer as specified in
the notice of resignation and accompanying Opinion of Counsel. In the event
of the termination hereunder of the Servicer, the Issuer shall appoint a
successor Servicer acceptable to the Indenture Trustee, and the successor
Servicer shall accept its appointment by a written assumption in form
acceptable to the Indenture Trustee and the Administrator. In the event
that a successor Servicer has not been appointed at the time when the
predecessor Servicer has ceased to act as Servicer in accordance with this
Section, the Indenture Trustee without further action shall automatically
be appointed the successor Servicer and the Indenture Trustee shall be
entitled to the Servicing Fee. Notwithstanding the above, the Indenture
Trustee shall, if it shall be unwilling or legally unable so to act,
appoint or petition a court of competent jurisdiction to appoint, any
established institution the regular business of which shall include the
servicing of student loans, as the successor to the Servicer under this
Agreement; provided, however, that such right to appoint or to petition for
the appointment of any such successor Servicer shall in no event relieve
the Indenture Trustee from any obligations otherwise imposed on it under
the Basic Documents until such successor has in fact assumed such
appointment.
(b) Upon appointment, the successor Servicer (including
the Indenture Trustee acting as successor Servicer) shall be the
successor in all respects to the predecessor Servicer and shall be
subject to all the responsibilities, duties and liabilities placed
on the predecessor Servicer that arise thereafter or are related
thereto and shall be entitled to an amount agreed to by such
successor Servicer (which shall not exceed the Servicing Fee,
unless such compensation arrangements will not result in a
downgrading of the Class A-1 Notes, the Class A-2 Notes or the
Subordinate Notes by any Rating Agency) and all the rights granted
to the predecessor Servicer by the terms and provisions of this
Agreement.
(c) The Servicer may not resign unless it is prohibited
from serving as such by law as evidenced by an Opinion of Counsel
to such effect delivered to the Indenture Trustee and the Eligible
Lender Trustee. Notwithstanding the foregoing or anything to the
contrary herein or in the other Basic Documents, the Indenture
Trustee, to the extent it is acting as successor Servicer pursuant
hereto, shall be entitled to resign to the extent a qualified
successor Servicer has been appointed and has assumed all the
obligations of the Servicer in accordance with the terms of this
Agreement and the other Basic Documents.
Section 6.03 Notification To Noteholders And The Company. Upon any
termination of, or appointment of a successor to, the Servicer pursuant to
this Article VI, the Indenture Trustee shall give prompt written notice
thereof to Noteholders, the Administrator, the Company, the Eligible Lender
Trustee and the Rating Agencies (which, in the case of any such appointment
of a successor, shall consist of prior written notice thereof to the Rating
Agencies).
Section 6.04 Waiver Of Past Defaults. The Noteholders of Notes
evidencing not less than a majority of the Outstanding Amount of the Notes
may, on behalf of all Noteholders, waive in writing any default by the
Servicer in the performance of its obligations hereunder, and any
consequences thereof, except a default in making any required deposits to
or payments from any of the Trust Accounts (or giving instructions
regarding the same) in accordance with this Agreement to the extent
provided in such waiver. Upon any such waiver of a past default, such
default shall cease to exist, and any Servicer Default arising therefrom
shall be deemed to have been remedied for every purpose of this Agreement.
No such waiver shall extend to any subsequent or other default or impair
any right consequent thereto.
ARTICLE VII
MISCELLANEOUS
Section 7.01 Amendment. This Agreement may be amended by the
Servicer and the Eligible Lender Trustee, with the prior written consent of
the Indenture Trustee, but without the consent of any of the Noteholders,
to cure any ambiguity, to correct or supplement any provisions in this
Agreement or for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions in this Agreement or of
modifying in any manner the rights of the Noteholders; provided, however,
that such action shall not, as evidenced by an Opinion of Counsel delivered
to the Eligible Lender Trustee and the Indenture Trustee, adversely affect
in any material respect the interests of any Noteholder.
This Agreement may also be amended from time to time by the
Servicer and the Eligible Lender Trustee, with the prior written consent of
the Indenture Trustee, the Noteholders of Notes evidencing not less than a
majority of the Outstanding Amount of the Notes and any Swap
Counterparties, for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Noteholders; provided, however,
that no such amendment shall: (a) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, collections of payments
with respect to Financed Student Loans or distributions that shall be
required to be made for the benefit of the Noteholders or (b) reduce the
aforesaid percentage of the Outstanding Amount of the Notes, the
Noteholders of which are required to consent to any such amendment, without
the consent of all outstanding Noteholders; provided further, that the
prior written consent of any Swap Counterparties shall not be required if
an Opinion of Counsel is delivered to any Swap Counterparties stating that
the proposed amendment to this Agreement will not adversely affect in any
material respect the interests of the Noteholders or any Swap
Counterparties.
Promptly after the execution of any such amendment or consent (or,
in the case of the Rating Agencies, five Business Days prior thereto), the
Eligible Lender Trustee shall furnish written notification of the substance
of such amendment or consent to the Indenture Trustee and each of the
Rating Agencies.
It shall not be necessary for the consent of Noteholders pursuant
to this Section to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the
substance thereof.
Prior to the execution of any amendment to this Agreement, the
Eligible Lender Trustee, the Indenture Trustee and any Swap Counterparties
shall be entitled to receive and rely upon an Opinion of Counsel stating
that the execution of such amendment is authorized or permitted by this
Agreement and the Opinion of Counsel referred to in Section 6.02(f) of the
Loan Sale Agreement. The Eligible Lender Trustee and the Indenture Trustee
may, but shall not be obligated to, enter into any such amendment which
affects the Eligible Lender Trustee's or the Indenture Trustee's, as
applicable, own rights, duties or immunities under this Agreement or
otherwise.
Section 7.02 Protection Of Interests In Trust. (a) The Servicer
shall not change its name, identity or corporate structure in any manner
that would, could or might make any financing statement or continuation
statement filed in accordance with Section 6.02(a) of the Loan Sale
Agreement seriously misleading within the meaning of ss.9-507 of the UCC,
unless it shall have given the Eligible Lender Trustee, the Indenture
Trustee, any Swap Counterparties and the Rating Agencies at least five
days' prior written notice thereof and shall have promptly filed
appropriate amendments to all previously filed financing statements or
continuation statements.
(b) The Servicer shall have an obligation to give the
Eligible Lender Trustee, the Indenture Trustee and any Swap
Counterparties at least sixty (60) days' prior written notice of
any relocation of its principal executive office if, as a result
of such relocation, the applicable provisions of the UCC would
require the filing of any amendment of any previously filed
financing or continuation statement or of any new financing
statement and shall promptly file any such amendment. The Servicer
shall at all times maintain each office from which it shall
service Financed Student Loans, and its principal executive
office, within the United States of America.
(c) The Servicer shall maintain accounts and records of
each Student Loan accurately and in sufficient detail to permit:
(i) the reader thereof to know at any time the status of such
Financed Student Loan, including payments and recoveries made and
payments owing (and the nature of each) and (ii) reconciliation
between payments or recoveries on (or with respect to) each
Financed Student Loan and the amounts from time to time deposited
in the Collection Account in respect of such Financed Student
Loan.
(d) The Servicer shall, by use of a distinct
identification code, maintain its computer systems so that, from
and after the time of sale under this Agreement of the Financed
Student Loans, the Servicer's master computer records (including
any backup archives) that refer to a Student Loan shall indicate
clearly the interest of the Issuer, the Eligible Lender Trustee
and the Indenture Trustee in such Student Loan and that such
Student Loan is owned by the Eligible Lender Trustee on behalf of
the Issuer and has been pledged to the Indenture Trustee.
Indication of the Issuer's, the Eligible Lender Trustee's and the
Indenture Trustee's interest in a Student Loan shall be deleted
from or modified on the Servicer's computer systems when, and only
when, the related Financed Student Loan shall have been paid in
full or repurchased.
(e) If at any time the Servicer shall propose to sell,
grant a security interest in, or otherwise transfer any interest
in student loans to any prospective purchaser, lender or other
transferee, the Servicer shall give to such prospective purchaser,
lender or other transferee computer tapes, records or printouts
(including any restored from backup archives) that, if they shall
refer in any manner whatsoever to any Financed Student Loan, shall
indicate clearly that such Financed Student Loan has been sold and
is owned by the Eligible Lender Trustee on behalf of the Issuer
and has been pledged to the Indenture Trustee.
(f) The Servicer shall permit the Indenture Trustee and
any Swap Counterparties and their respective agents at any time
during normal business hours to inspect, audit and make copies of
and abstracts from the Servicer's records regarding any Financed
Student Loan; provided, however, that the Servicer is given
reasonable prior notice of at least three (3) Business Days.
(g) Upon request, at any time the Eligible Lender Trustee
or the Indenture Trustee shall have reasonable grounds to believe
that such request would be necessary in connection with its
performance of its duties under the Basic Documents, the Servicer
shall furnish to the Eligible Lender Trustee or the Indenture
Trustee (in each case, with a copy to the Administrator), within
five (5) Business Days, a list of all Financed Student Loans (by
borrower social security number, type of loan and date of
issuance) then held as part of the Trust, and shall cause the
Administrator to furnish to the Eligible Lender Trustee or to the
Indenture Trustee, within 20 Business Days thereafter, a
comparison of such list to the list of Initial Financed Student
Loans set forth in Schedule A to the Loan Sale Agreement as of the
Closing Date, and, for each Financed Student Loan that has been
added to or removed from the pool of loans held by the Eligible
Lender Trustee on behalf of the Issuer, information as to the date
as of which and circumstances under which each such Financed
Student Loan was so added or removed.
Section 7.03 Notices. Unless otherwise agreed by the recipient,
all demands, notices and communications upon or to the Seller,
[________________], the Servicer, the Eligible Lender Trustee, the
Indenture Trustee, the Administrator, the Rating Agencies or any Swap
Counterparties under this Agreement shall be in writing, personally
delivered or mailed by certified mail, return receipt requested (or in the
form of telex or facsimile notice, followed by written notice delivered as
aforesaid or postage prepaid, first class mail), and shall be deemed to
have been duly given upon receipt;
(a) in the case of the Seller, to
[----------------]
[----------------]
[----------------]
Attention: [________________]
Telephone: [________________]
Telecopy: [________________];
with a copy to:
Office of the General Counsel
[----------------]
[----------------]
[----------------]
Attention: [________________]
Telephone: [________________]
Telecopy: [________________];
(b) in the case of [________________], to
[____________________],
as trustee for [________________]
[----------------]
[----------------]
[----------------]
Attention: [________________]
Telephone: [________________]
Telecopy: [________________];
(c) in the case of the Servicer, to
[----------------]
[----------------]
[----------------]
Attention: [________________]
Telephone: [________________]
Telecopy: [________________];
with a copy to:
Office of the Deputy General Counsel
[----------------]
[----------------]
[----------------]
Attention: [________________]
Telephone: [________________]
Telecopy: [________________];
(d) in the case of the Issuer, to
[----------------]
[----------------]
[----------------]
[----------------]
[----------------]
with a copy to the Eligible Lender Trustee
at the Corporate Trust Office of the
Eligible Lender Trustee;
(e) in the case of the Eligible Lender Trustee, at the
Corporate Trust Office of the Eligible Lender Trustee;
(f) in the case of the Indenture Trustee, at its
Corporate Trust Office;
(g) in the case of the Administrator, to
[----------------]
[----------------]
[----------------]
Attention: [________________]
Telephone: [________________]
Telecopy: [________________];
with a copy to:
Office of the General Counsel
[----------------]
[----------------]
[----------------]
Attention: [________________]
Telephone: [________________]
Telecopy: [________________];
(h) in the case of Moody's, to βββββ'β Investors Service,
Inc., ββ ββββββ ββββββ βββ ββββ, βββ ββββ βββββ Attention: [ABS
Monitoring Department], Telephone: (βββ) βββ-ββββ Facsimile: (212)
553-1350;
(i) in the case of Fitch, to Fitch Inc., βββ βββββ ββββββ
βββββ, βββ ββββ, βββ ββββ βββββ, Attention: [Asset Backed
Monitoring Unit], Telephone: (βββ) βββ-ββββ, Facsimile: (212)
635-0295; and
(j) in the case of Standard & Poor's, a division of The
ββββββ-ββββ Companies, Inc., to Standard & Poor's ββ βββββ ββββββ,
ββββ βββββ, βββ ββββ, ββ βββββ, Attention: [Asset Backed
Surveillance Department], Telephone: (βββ) βββ-ββββ, Facsimile:
(βββ) βββ-ββββ
(k) in the case of any Swap Counterparties, to the
addresses set forth in any Swap Agreements
or, as to each of the foregoing, at such other address as shall be
designated by written notice to the other parties.
Section 7.04 Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in the succeeding sentence, as
provided in Section 5.03 and as provided in the provisions of this
Agreement concerning the resignation of the Servicer, this Agreement may
not be assigned by the Servicer. This Agreement may only be assigned by the
Eligible Lender Trustee to its permitted successor pursuant to the Trust
Agreement.
Section 7.05 Limitations On Rights Of Others. The provisions of
this Agreement are solely for the benefit of the Servicer, the Issuer and
the Eligible Lender Trustee and for the benefit of the Administrator, the
Indenture Trustee and the Noteholders, as third party beneficiaries, and
nothing in this Agreement, whether express or implied, shall be construed
to give to any other Person any legal or equitable right, remedy or claim
in the Trust Estate or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein. The Indenture Trustee
and any Swap Counterparties are express third-party beneficiaries and may
enforce the provisions of this Agreement as if they were parties hereto;
provided, however, that in the case of any Swap Counterparties, such right
to enforcement and the right to provide consents or waivers pursuant to the
provisions hereof or to take other actions as provided herein are
conditioned upon its not being in default under any Swap Agreements.
Section 7.06 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any such prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
Section 7.07 Separate Counterparts. This Agreement may be executed
by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
Section 7.08 Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
Section 7.09 Governing Law. This Agreement shall be construed in
accordance with the laws of the State of [____________], without reference
to its conflict of law provisions, and the obligations, rights and remedies
of the parties hereunder shall be determined in accordance with such laws.
Section 7.10 Non-Petition Covenants. Notwithstanding any prior
termination of this Agreement, the Servicer shall not, prior to the date
which is one year and one day after the termination of this Agreement with
respect to the Issuer or the Company, acquiesce, petition or otherwise
invoke or cause the Issuer or the Company to invoke the process of any
court or government authority for the purpose of commencing or sustaining a
case against the Issuer or the Company under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Issuer or any substantial part of its property, or ordering the winding up
or liquidation of the affairs of the Issuer.
Section 7.11 Limitation Of Liability Of Eligible Lender Trustee
And Indenture Trustee. (a) [Reserved].
(b) Notwithstanding anything contained herein to the
contrary (other than pursuant to subsection (d)), this Agreement
has been signed by [________________], National Association not in
its individual capacity but solely in its capacity as Eligible
Lender Trustee of the Issuer and in no event shall
[________________], not in its individual capacity or, except as
expressly provided in the Trust Agreement, as beneficial owner of
the Issuer have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder
or in any of the certificates, notices or agreements delivered
pursuant hereto as to all or which recourse shall be had solely to
the assets of the Issuer.
(c) Notwithstanding anything contained herein to the
contrary (other than pursuant to subsection (d)), this Agreement
has been accepted by [________________] not in its individual
capacity but solely as Indenture Trustee and in no event shall
[_____________________] have any liability for the
representations, warranties, covenants, agreements or other
obligations of the Issuer hereunder or in any of the certificates,
notices or agreements delivered pursuant hereto, as to all of
which recourse shall be had solely to the assets of the Issuer.
(d) Notwithstanding any other provision in this Agreement
or the other Basic Documents, nothing in this Agreement or the
other Basic Documents shall be construed to limit the legal
responsibility of the Eligible Lender Trustee or the Indenture
Trustee, to the U.S. Secretary of Education or a Guarantor for any
violations of statutory or regulatory requirements that may occur
with respect to loans held by the Eligible Lender Trustee or the
Indenture Trustee pursuant to, or to otherwise comply with their
obligations under, the Higher Education Act or implementing
regulations.
[Signatures Follow on Next Page]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their respective officers as of the day and year
first above written.
[___________________________________]
STUDENT LOAN TRUST [ ],
By: [ ],
not in its individual capacity but solely as
Eligible Lender Trustee on behalf of the Trust
By:
Name:
Title:
[GS Mortgage Securities Corp.]
By:
Name:
Title:
[ ]
By:
Name:
Title:
[ ]
not in its individual capacity but solely
as Eligible Lender Trustee
By:
Name:
Title:
Acknowledged and accepted as of
the day and year first above written:
[ ],
not in its individual capacity but
solely as Indenture Trustee
By:
Name:
Title:
SCHEDULE A
The Servicer shall maintain each Student Loan File at one of the locations
listed below:
(a) [__________________________]
[ ]
[ ]
(b) [__________________________]
[ ]
[ ]
[ ]