EXHIBIT 99.1
TRANSFER AND SERVICING AGREEMENT
among
CRESTAR STUDENT LOAN TRUST 1997-1
as Issuer,
CRESTAR BANK
as Transferor, Master Servicer and Administrator
and
STAR BANK, NATIONAL ASSOCIATION
not in its individual capacity but solely
as Eligible Lender Trustee
Dated as of December 1, 1997
TABLE OF CONTENTS
ARTICLE I
Definitions and Usage ................................................... 1
ARTICLE II
Conveyance of Financed Student Loans
SECTION 2.1 Conveyance of Initial Financed
Student Loans............................................ 1
SECTION 2.2 Conveyance of Subsequent Financed Student Loans............. 2
SECTION 2.3 Purchase of Subsequent Financed Student Loans upon Order
of the Transferor........................................ 3
SECTION 2.4 Security Agreement.......................................... 4
ARTICLE III
The Financed Student Loans
SECTION 3.1 Representations, Warranties and Agreements of
Transferor with Respect to the Financed Student Loans.... 5
SECTION 3.2 Repurchase upon Breach; Reimbursement....................... 7
SECTION 3.3 Custody of Financed Student Loan Files...................... 8
SECTION 3.4 Duties of Master Servicer as Custodian...................... 9
SECTION 3.5 Instructions; Authority to Act.............................. 9
SECTION 3.6 Custodian's Indemnification................................. 9
SECTION 3.7 Effective Period and Termination............................ 10
SECTION 3.8 Appointment of Subcustodian................................. 11
SECTION 3.9. Compliance by the Eligible Lender Trustee
with Insurance Agreements with the Secretary
of HHS................................................... 11
ARTICLE IV
Administration and Servicing of Financed Student Loans
SECTION 4.1 Duties of Master Servicer................................... 11
SECTION 4.2 Collection of Financed Student Loan Payments................ 12
SECTION 4.3 Realization upon Financed Student Loans..................... 14
SECTION 4.4 No Impairment............................................... 14
SECTION 4.5 Purchase of Financed Student Loans; Reimbursement........... 14
SECTION 4.6 Servicing Fee............................................... 15
SECTION 4.7 Administrator's Certificate................................. 15
SECTION 4.8 Annual Statement as to Compliance; Notice of ...............
Default.................................................. 16
SECTION 4.9 Annual Independent Certified Public Accountants'
Report or Reports........................................ 16
SECTION 4.10 Access to Certain Documentation and Information
Regarding Financed Student Loans......................... 17
SECTION 4.11 Master Servicer and Administrator Expenses.................. 17
SECTION 4.12 Appointment of Servicer..................................... 17
SECTION 4.13 Subservicing Agreements..................................... 18
SECTION 4.14 Incentive Programs.......................................... 18
ARTICLE V
Distributions; Reserve Account;
Statements to Certificateholders and Noteholders
SECTION 5.1 Establishment of Trust Accounts............................. 18
SECTION 5.2 Collections................................................. 20
SECTION 5.3 Application of Collections.................................. 20
SECTION 5.4 Additional Deposits......................................... 20
SECTION 5.5 Distributions............................................... 21
SECTION 5.6 Reserve Account............................................. 24
SECTION 5.7 Statements to Certificateholders and Noteholders............ 25
SECTION 5.8 Expense Account............................................. 26
SECTION 5.9 Note Distribution Account and Certificate Distribution
Account.................................................. 26
SECTION 5.10 Monthly Advances............................................ 26
SECTION 5.11 Certificate Interest........................................ 27
ARTICLE VI
The Transferor and the Master Servicer
SECTION 6.1 Representations of Transferor and Master Servicer........... 27
SECTION 6.2 Existence................................................... 29
SECTION 6.3 Liability and Indemnities................................... 29
SECTION 6.4 [Reserved].................................................. 31
SECTION 6.5 Merger or Consolidation of, or Assumption of the
Obligations of, the Transferor, the Administrator
or the Master Servicer................................... 31
SECTION 6.6 Limitation on Liability of Transferor, Master Servicer
and Others............................................... 32
SECTION 6.7 Transferor May Own Certificates or Notes.................... 33
SECTION 6.8 Master Servicer Not to Resign............................... 33
ARTICLE VII
The Administrator
SECTION 7.1 Representations of the Administrator........................ 33
SECTION 7.2 Liability and Indemnities................................... 34
SECTION 7.3 Administrator Not to Resign................................. 36
SECTION 7.4 Additional Services......................................... 36
ARTICLE VIII
Default
SECTION 8.1 Master Servicer Default; Administrator Default.............. 36
SECTION 8.2 Appointment of Successor.................................... 38
SECTION 8.3 Notification to Noteholders and Certificateholders.......... 39
SECTION 8.4 Waiver of Past Defaults..................................... 39
ARTICLE IX
Termination
SECTION 9.1 Termination................................................. 40
ARTICLE X
[Reserved]
ARTICLE XI
Miscellaneous
SECTION 11.1 Amendment................................................... 42
SECTION 11.2 Protection of Interests in Trust............................ 43
SECTION 11.3 Notices..................................................... 44
SECTION 11.4 Assignment.................................................. 45
SECTION 11.5 Limitations on Rights of Others............................. 45
SECTION 11.6 Severability................................................ 45
SECTION 11.7 Separate Counterparts....................................... 45
SECTION 11.8 Headings.................................................... 45
SECTION 11.9 Governing .................................................. 45
SECTION 11.10 Assignment to Indenture Trustee............................. 45
SECTION 11.11 Nonpetition Covenants....................................... 45
SECTION 11.12 Limitation of Liability of Eligible Lender Trustee,
Indenture Trustee and Delaware Trustee................... 46
APPENDIX A Definitions and Usage
SCHEDULE A-1 Schedule of Financed Student Loans
SCHEDULE B Location of Financed Student Loan Files
EXHIBIT A Form of Noteholders' Statement
EXHIBIT B Form of to Certificateholders' Statement
EXHIBIT C Form of Administrator's Certificate
EXHIBIT D Assignment for Financed Student Loans
EXHIBIT E Transfer Agreement
EXHIBIT F Officer's Certificate Required by Section 2.2(b)(viii)
of the Transfer and Servicing Agreement
TRANSFER AND SERVICING AGREEMENT (the "Agreement") dated as of December
1, 1997, among CRESTAR STUDENT LOAN TRUST 1997-1, a Delaware business trust (the
"Issuer"), CRESTAR BANK, a Virginia banking corporation (the "Transferor," the
"Master Servicer" or the "Administrator" in such respective capacities), and
STAR BANK, NATIONAL ASSOCIATION, a national banking association, solely as
eligible lender trustee and not in its individual capacity (the "Eligible Lender
Trustee").
WHEREAS the Issuer desires to acquire student loans originated or
acquired by the Transferor in the ordinary course of business;
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 Master Servicer and the Administrator are willing to
service such student loans and undertake certain administrative functions with
respect thereto; and
WHEREAS the Issuer has authorized the issuance of its Notes; and
WHEREAS the parties hereto are entering into this Transfer and
Servicing Agreement in connection with such Notes.
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree, intending to be legally
bound hereby, as follows:
ARTICLE I
Definitions and Usage
Capitalized terms used but not defined herein are defined in Appendix A
hereto, which also contains rules as to usage and construction that shall be
applicable herein.
ARTICLE II
Conveyance of Financed Student Loans
SECTION 2.1. Conveyance of Initial Financed Student Loans. (a) In
consideration of the Issuer's delivery to or upon the order of the Transferor on
the Closing Date of $222,231,660, the Transferor agrees to, and the Transferor
does hereby, as evidenced by a duly executed written assignment in the form of
Exhibit D, contribute, transfer, sell, assign, set over and otherwise convey to
the Eligible Lender Trustee on behalf of the Issuer, without recourse (subject
to the obligations herein):
(i) All right, title and interest in and to the
Financed Student Loans listed on Schedule A-1 to this
Agreement (the "Initial Financed Student Loans") and all
obligations of the Obligors thereunder, including all moneys
paid thereunder (other than Interest Subsidy Payments and
Special Allowance Payments payable to the Cut-off Date), and
all written communications received by the Transferor with
respect thereto and still retained by Transferor in accordance
with its retention policies (including borrower
correspondence, notices of death, disability or bankruptcy and
requests for deferrals or forbearance), on or after the
Cut-off Date;
(ii) all right, title and interest in all funds on
deposit from time to time in the Trust Accounts and in all
investments and proceeds thereof (including all income
thereon); and
(iii) the proceeds of any and all of the foregoing.
(b) On the Closing Date, the Transferor shall have delivered
(A) to the Rating Agencies an Opinion of Counsel with respect to the
transfer of the Initial Financed Student Loans and (B) to the Eligible
Lender Trustee and the Indenture Trustee the Opinion of Counsel
required by Section 11.2(i)(1).
SECTION 2.2. Conveyance of Subsequent Financed Student Loans.
(a) Subject to the conditions set forth in paragraph (b)
below, the Transferor shall contribute, transfer, sell, assign, set
over and otherwise convey to the Eligible Lender Trustee on behalf of
the Issuer, without recourse (subject to the obligations herein), all
right, title and interest in and to each Subsequent Financed Student
Loan, and all obligations of the Obligors thereunder, including all
moneys paid thereunder (other than Interest Subsidy Payments and
Special Allowance Payments payable through the related Subsequent
Cut-off Date), and all written communications received by the
Transferor with respect thereto and still retained by the Transferor in
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accordance with its retention policies (including borrower
correspondence, notices of death, disability or bankruptcy and requests
for deferrals or forbearances), on and after the related Subsequent
Cut-off Date, and the proceeds of any and all of the foregoing, in
consideration of:
(i) the Indenture Trustee's transfer to the
Transferor on the related Subsequent Finance Date of the
Subsequent Financing Purchase Price in immediately available
funds to an account designated in writing by the Transferor to
the Indenture Trustee, if the Transferor exercises its option
pursuant to Section 2.3(a) hereof; and
(ii) the Eligible Lender Trustee's conveyance of
Financed Student Loans on the related Subsequent Finance Date
to the Transferor pursuant to Section 2.3(b) hereof, if the
Transferor exercises its option pursuant to Section 2.3(b).
(b) The Transferor shall transfer to the Issuer the Subsequent
Financed Student Loans for a given Subsequent Finance Date and the
other property and rights related thereto described in paragraph (a)
above only upon the satisfaction of each of the following conditions on
or prior to such Subsequent Finance Date:
(i) the Transferor shall have delivered to the
Eligible Lender Trustee and the Indenture Trustee a duly
executed written assignment (including an acceptance by the
Eligible Lender Trustee and the Indenture Trustee) in
substantially the form of Exhibit E (each, a "Transfer
Agreement"), which shall include supplements to Schedule A-1,
listing such Subsequent Financed Student Loans;
(ii) the Transferor shall have delivered, at least
two days' prior to such Subsequent Finance Date, notice of
such transfer to the Eligible Lender Trustee and the Indenture
Trustee, with a copy to the Rating Agencies, including a
listing of the aggregate principal balance of such Subsequent
Financed Student Loans;
(iii) the Transferor shall, to the extent required by
Section 2.3, have deposited in the Collection Account all
collections received in respect of the Subsequent Financed
Student Loans after each applicable Subsequent Cut-off Date
and all required Adjustment Payments;
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(iv) as of such Subsequent Finance Date, the
Transferor was not insolvent nor will it have been made
insolvent by such transfer nor is it aware of any pending
insolvency;
(v) such transfer will not result in a material
adverse federal or State tax consequence to the Issuer
relating to its tax classification or the Noteholders,
considered as a whole, relating to a change in the
characterization of the Notes;
(vi) no Event of Default shall have occurred and be
continuing as of such Subsequent Finance Date and no Master
Servicer Default or Administrator Default shall have occurred
and be continuing as of such Subsequent Finance
Date;
(vii) the Subsequent Finance Period shall not have
terminated;
(viii) the Transferor shall have delivered to the
Indenture Trustee and the Eligible Lender Trustee an Officers'
Certificate in substantially the form of Exhibit F, confirming
the satisfaction of each condition precedent
specified in this paragraph (b);
(ix) the Transferor shall have taken any action
required to maintain the first perfected ownership interest of
the Issuer in the Trust Estate and the first perfected
security interest of the Indenture Trustee in the Financed
Student Loans; and
(x) no selection procedures believed by the
Transferor to be adverse to the interests of the
Certificateholders or the Noteholders shall have been utilized
in selecting the Subsequent Financed Student Loans; provided,
however, that the Transferor shall not incur any liability as
a result of transferring Subsequent Financed Student Loans on
any Subsequent Finance Date at a time when the condition set
forth in clause (v) was not satisfied, if at the time of such
transfer the Transferor was not aware of any fact that would
reasonably suggest that such condition would not be satisfied
as of such date.
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In the case of a transfer of Financed Student Loans by the Eligible
Lender Trustee pursuant to Section 2.3(b) hereof, upon the satisfaction
of the conditions set forth in this Section 2.2 (b), the Eligible
Lender Trustee shall execute and deliver to the Transferor an
Assignment, substantially in the form of Annex B to the Transfer
Agreement.
SECTION 2.3. Purchase of Subsequent Financed Student Loans upon
Order of the Transferor.
(a) During the Subsequent Finance Period, subject to the
conditions set forth in Section 2.2(b) hereof, the Transferor may, at
its option, transfer to the Eligible Lender Trustee on behalf of the
Trust, Subsequent Financed Student Loans as described in this Section
2.3(a), and direct the Eligible Lender Trustee and the Indenture
Trustee to apply Consolidation Prepayments on deposit in the Collection
Account to pay the Subsequent Financing Purchase Price for such
Subsequent Financed Student Loans. Subsequent Financed Student Loans
that may be transferred by the Transferor pursuant to this Section
2.3(a) include:
(i) A Consolidation Loan or a HEAL Consolidation Loan being
made by the Transferor, provided that in no event shall the
aggregate amount of Subsequent Financed Student Loans that are
Consolidation Loans or HEAL Consolidation Loans transferred
into the Trust exceed $1,000,000; and
(ii) One or more Serial Loans owned by the Transferor that are
serial (i.e., made to the same borrower under the same loan
program and guaranteed by the same Guarantor or insured by the
Department of HHS) to an existing Financed Student Loan owned
by the Trust; provided that each such Subsequent Financed
Student Loan entitles the holder thereof to receive interest
based on the same interest rate index as the Financed Student
Loan to which it is serial, and provided further, that in no
event shall the aggregate amount of Subsequent Financed
Student Loans that are Serial Loans transferred into the Trust
exceed $750,000.
(b) During the Subsequent Finance Period, subject to the
conditions set forth in Section 2.2(b) hereof, the Transferor may, at
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its option, in lieu of depositing into the Collection Account the
Purchase Amount of a Financed Student Loan pursuant to clause (y) of
the second paragraph of Section 3.2 or clause (y) of the second
paragraph of Section 4.5 hereof, transfer to the Eligible Lender
Trustee on behalf of the Trust, a Subsequent Financed Student Loan
which satisfies the following criteria: (A) the Subsequent Financed
Student Loan was originated under the same loan program as the Financed
Student Loan for which it is being exchanged and entitles the holder
thereof to receive interest based on the same interest rate index as
the Financed Student Loan for which it is being exchanged, (B) the
Subsequent Financed Student Loan will not, at any level of such
interest rate index, have an interest rate that is less than the
Financed Student Loan for which it is being exchanged and (C) the
average principal balance per Obligor of the Subsequent Financed
Student Loans that are being transferred into the Trust on each
Subsequent Finance Date and the existing Financed Student Loans for
which they are being exchanged pursuant to this Section 2.3(b) is
within 10% (plus or minus) of the average principal balance per Obligor
of the Financed Student Loans being transferred to the Transferor on
such Subsequent Finance Date.
(c) Upon receipt of written notice (or telephonic or facsimile
notice promptly followed by written notice) from the Master Servicer by
the Eligible Lender Trustee and the Indenture Trustee, the Eligible
Lender Trustee will convey to the Master Servicer (or the Master
Servicer's designee) the Financed Student Loans identified in such
notice, which are to be transferred to a Guarantor or the Department of
HHS in consideration of a related Guarantee Payment or Insurance
Payment. Within one Business Day of its receipt of the related
Guarantee Payment or Insurance Payment, the Master Servicer shall
deposit, or cause to be deposited, into the Collection Account an
amount equal to such Guarantee Payment or Insurance Payment, as payment
of such conveyance.
(d) If on any Subsequent Finance Date the aggregate
outstanding principal balance as of the related Subsequent Cut-off Date
of all the Subsequent Financed Student Loans being exchanged on such
Subsequent Finance Date pursuant to Section 2.3(b) is less than that of
all the Financed Student Loans for which they are being exchanged, an
amount equal to such difference (the "Adjustment Payments") shall be
deposited by the Transferor into the Collection Account on the related
Subsequent Finance Date.
(e) If on any Subsequent Finance Date the aggregate
outstanding principal balance as of the related Subsequent Cut-off Date
of all the Subsequent Financed Student Loans being exchanged on such
Subsequent Finance Date pursuant to Section 2.3(b) is greater than that
of all the Financed Student Loans for which they are being exchanged,
upon written request of the Transferor an amount up to the amount of
such excess (the "Issuer 2.3(b) Payments") shall be remitted by the
Indenture Trustee to the Transferor from Consolidation Prepayments on
deposit in the Collection Account.
SECTION 2.4. Security Agreement. Although it is the intent of the
parties to this Agreement that the conveyance of the Transferor's right, title
and interest in and to the Financed Student Loans pursuant to this Agreement or
any Transfer Agreement shall constitute a contribution and transfer and not a
loan, if such conveyance is deemed to be a loan, it is the intent of the parties
to this Agreement that the Transferor shall be deemed to have Granted to the
Eligible Lender Trustee, on behalf of the Issuer, a first priority perfected
security interest in all of the Transferor's right, title and interest in, to
and under the Financed Student Loans and the proceeds thereof, and that this
Agreement shall constitute a security agreement under applicable law. It is the
further intent of the parties to this Agreement that if the Trust is disregarded
for whatever reason or purpose, the Transferor's foregoing Grant of a first
priority perfected security interest shall be deemed to be directly to, and for
the direct benefit of, the Indenture Trustee.
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ARTICLE III
The Financed Student Loans
SECTION 3.1. Representations, Warranties and Agreements of Transferor
with Respect to the Financed Student Loans. The Transferor hereby makes the
following representations and warranties as to the Financed Student Loans on
which the Issuer is deemed to have relied in acquiring (through the Eligible
Lender Trustee) such Financed Student Loans. Such representations and warranties
speak as of the Closing Date, in the case of the Initial Financed Student Loans,
and as of the applicable Subsequent Finance Dates in the case of the Subsequent
Financed Student Loans, but shall survive the contribution, transfer and
assignment of such Financed Student Loans to the Eligible Lender Trustee on
behalf of the Issuer and the pledge thereof to the Indenture Trustee pursuant to
the Indenture.
(i) Characteristics of Financed Student Loans. Each
Financed Student Loan (A) was originated in the United States
of America, its territories, its possessions or other areas
subject to its jurisdiction to an eligible borrower under
applicable law and agreements and was fully and properly
executed by the parties thereto, (B) was originated or
acquired by the Transferor in the ordinary course of its
business, and (C) provides or, when the payment schedule with
respect thereto is determined, will provide for payments on a
periodic basis that fully amortize the principal amount of
such Financed Student Loan by its maturity and yields interest
at the rate applicable thereto (except as otherwise provided
in Section 4.14), as such maturity may be modified in
accordance with any applicable deferment or forbearance
periods granted in accordance with applicable laws and
restrictions, including those of the Higher Education Act, the
HEAL Act, the HEAL Insurance Contract or any Guarantee
Agreement. Each Financed Student Loan that is a ▇▇▇▇▇▇▇▇ Loan
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qualifies the holder thereof (assuming such holder is an
eligible lender under the Higher Education Act and has a
guarantee agreement with the applicable Guarantor of such
loan) to receive Interest Subsidy Payments and Special
Allowance Payments from the Department of Education. Each
Financed Student Loan that is a Consolidation Loan, a PLUS
Loan, a SLS Loan or an Unsubsidized ▇▇▇▇▇▇▇▇ Loan qualifies
the holder thereof (assuming such holder is an eligible lender
under the Higher Education Act and has a guarantee agreement
with the applicable Guarantor of such loan) to receive Special
Allowance Payments from the Department of Education to the
extent applicable. Each Financed FFELP Loan qualifies the
holder thereof (assuming such holder is an eligible lender
under the Higher Education Act and has a guarantee agreement
with the applicable Guarantor of such loan) to receive
Guarantee Payments from the applicable Guarantor in accordance
with the applicable Guarantee Agreement. Each Financed HEAL
Loan qualifies the holder thereof (assuming such holder is an
eligible lender under the HEAL Act and has an insurance
contract with the Secretary of HHS) to receive Insurance
Payments from the Department of HHS in accordance with the
HEAL Insurance Contract. At all times prior to the transfer of
the Financed Student Loans to the Eligible Lender Trustee on
behalf of the Issuer under this Agreement, the Transferor and
each predecessor originator or holder of the Financed Student
Loans (a) with respect to each Financed FFELP Loan was an
eligible lender under the Higher Education Act and had a
guarantee agreement with the applicable Guarantor of such
loan, and (b) with respect to each Financed HEAL Loan was an
eligible lender under the HEAL Act and had an insurance
contract with the Secretary of HHS.
(ii) Schedule of Financed Student Loans. The
information concerning the Financed Student Loans set forth in
Schedule A-1 to this Agreement and Schedule A of the related
Transfer Agreement is true and correct in all material
respects as of the close of business on the Cut-off Date (with
respect to Schedule A-1 to this Agreement) or each applicable
Subsequent Cut-off Date (with respect thereto), as applicable.
The computer tape or electronic data transmission regarding
the Initial Financed Student Loans is true and correct in all
material respects as of the Cut-off Date and each computer
tape or electronic data transmission regarding the Subsequent
Student Loans will be true and correct in all material
respects as of the related Subsequent Cut-off Date.
(iii) Compliance with Law. Except with respect to any
▇▇▇▇ Service Errors that have been waived by the Department of
Education and the applicable Guarantor, at the time each
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Financed Student Loan was originated or made and at the
execution of this Agreement or the applicable Transfer
Agreement, as the case may be, each Financed Student Loan
complied or complies, and the Transferor and its agents, with
respect to each such Financed Student Loan, have at all times
complied, in all material respects with all requirements of
applicable federal, State and local laws and regulations
thereunder, including the Higher Education Act with respect to
FFELP Loans, the HEAL Act with respect to HEAL Loans, the
Equal Credit Opportunity Act, the Federal Reserve Board's
Regulation B and other applicable consumer credit laws and
equal credit opportunity laws.
(iv) Binding Obligation. Each Financed Student Loan
represents the genuine, legal, valid and binding payment
obligation in writing of the related borrower, enforceable by
or on behalf of the holder thereof against such borrower in
accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance and similar
laws relating to creditors' rights generally and subject to
general principles of equity and no Financed Student Loan has
been satisfied, subordinated or rescinded.
(v) No Defenses. No right of rescission, setoff,
counterclaim or defense has been asserted or, to the
Transferor's knowledge, threatened with respect to any
Financed Student Loan.
(vi) No Default. No Initial Financed Student Loan has
a payment that is more than 90 days overdue as of the Cut-off
Date, and no Subsequent Financed Student Loan will have a
payment that is more than 90 days overdue as of its related
Subsequent Cut-off Date, and, except as permitted in this
paragraph, no default, breach, violation or event permitting
acceleration under the terms of any Financed Student Loan has
occurred; and, except for payment defaults and other
circumstances creating a delinquency continuing for a period
of not more than 90 days, no continuing condition that with
notice or the lapse of time or both would constitute a
default, breach, violation or event permitting acceleration
under the terms of any Financed Student Loan has arisen; and
the Transferor has not waived and shall not waive any of the
foregoing other than as permitted by the Basic Documents.
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(vii) Title. It is the intention of the Transferor
that the transfer and assignment herein contemplated
constitutes a contribution of the Financed Student Loans from
the Transferor to the Eligible Lender Trustee on behalf of the
Issuer and the beneficial interest in and title to such
Financed Student Loans shall not be part of the debtor's
estate in the event of the appointment of a receiver with
respect to the Transferor. No Financed Student Loan has been
transferred, assigned or pledged by the Transferor to any
Person other than the Eligible Lender Trustee on behalf of the
Issuer or any such assignment or pledge has been released.
Immediately prior to the transfer and assignment herein
contemplated, the Transferor had good title to each Financed
Student Loan, free and clear of all Liens and, immediately
upon the transfer thereof, the Eligible Lender Trustee on
behalf of the Issuer shall have good title to each such
Financed Student Loan, free and clear of all Liens, and the
transfer to the Indenture Trustee, shall have been perfected
under the UCC. No Financed Student Loan was subject to a third
party's right of first refusal to the transfers from the
Transferor provided for herein, and the transfer of the
Financed Student Loans as contemplated hereby will not violate
in any material respect the terms of any Subservicing
Agreement or any other material agreement or arrangement to
which the Master Servicer is a party.
(viii) Lawful Assignment. No Financed Student Loan
has been originated in, or is subject to the laws of, any
jurisdiction under which the contribution, transfer and
assignment of such Financed Student Loan under this Agreement
or any Transfer Agreement is unlawful, void or voidable.
(ix) All Filings Made. All filings (including UCC
filings) necessary in any jurisdiction to give the Issuer a
first perfected security interest in the Financed Student
Loans (if, despite the express intention of the parties
hereto, the transfer of the Financed Student Loans is deemed a
loan), and to give the Indenture Trustee a first perfected
security interest therein, shall have been made or have been
delivered for filing.
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(x) One Original. To the best knowledge of the
Transferor, there is only one original executed copy of each
promissory note evidencing a Financed Student Loan.
(xi) Principal Balance. The aggregate principal
balance of the Initial Financed Student Loans set forth on
Schedule A-1 as of the Cut-off Date is $211,956,796.
Additionally, as of the Cut-off Date, the accrued interest on
the Initial Financed Student Loans set forth on Schedule A-1
other than with respect to Interest Subsidy Payments and
Special Allowance Payments is $7,416,340.
(xii) Interest Rate. Except with respect to TP Loans
(as permitted by Section 4.14 hereof), each Financed FFELP
Loan included in the Initial Financed Student Loans bears
interest at the "applicable interest rate" permitted for such
loan under the Higher Education Act. The Financed HEAL Loans
included in the Initial Financed Student Loans bear interest,
calculated on a variable rate basis, that varies every
calendar quarter throughout the life of the loan. Under the
HEAL Act, for each calendar quarter, the Department of HHS
determines the general maximum annual HEAL interest rate by
(i) determining the average of the bond equivalent rates
reported for the 91-day U.S. Treasury bills auctioned for the
preceding calendar quarter, (ii) adding 3 percentage points,
and (iii) rounding that figure to the next higher one-eighth
of one percent. Notwithstanding these general rates, however,
with respect to the Financed HEAL Loans included in the
Initial Financed Student Loans, the maximum amount under
clause (ii) of the preceding sentence is 2.70 percentage
points during the repayment periods, and 1.50 percentage
points (for loans disbursed from October 1, 1991 through
September 30, 1992) or 2.00 percentage points (for loans
disbursed on or after October 1, 1992) during in-school
periods, grace periods and deferment periods. As of the
Cut-off Date, of the Financed HEAL Loans included in the
Initial Financed Student Loans, $5,889,615 aggregate principal
amount bears interest at the rate of 6.75% per annum (applying
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1.50 percentage points), $10,829,651 aggregate principal
amount bears interest at the rate of 7.25% per annum (applying
2.00 percentage points), and $2,322,278 aggregate principal
amount bears interest at the rate of 8.00% per annum (applying
2.70 percentage points).
(xiii) Interest Accruing. Each Financed Student Loan
is accruing interest (whether or not such interest is being
paid currently, by the Obligor or is being capitalized),
except as otherwise expressly permitted by the Basic
Documents.
SECTION 3.2. Repurchase upon Breach; Reimbursement. The Transferor, the
Master Servicer or the Eligible Lender Trustee, as the case may be, shall inform
the other parties to this Agreement and the Indenture Trustee promptly, in
writing, upon the discovery of any breach of the representations and warranties
of the Transferor made pursuant to Sections 3.1 and 6.1 hereof. Unless any such
breach shall have been cured within 120 days following the discovery thereof by
the Transferor or receipt by the Transferor of written notice from the Eligible
Lender Trustee or the Master Servicer of such breach, the Financed Student Loan
in which the interests of the Noteholders or the Certificateholders are
materially and adversely affected by any such breach shall be retransferred,
reassigned, resetover and otherwise reconveyed to the Transferor (a
"repurchase") as of the first day succeeding the end of such 120-day period that
is the last day of a Collection Period; provided that it is understood that any
such breach (other than a breach of Section 3.1(vii)) that has not resulted in
the failure of a Guarantee Agency to make a Guarantee Payment or the Department
of HHS to make an Insurance Payment to the Eligible Lender Trustee will not be
considered to have a material adverse effect for this purpose; and provided
further, however, that in the case of any representation or warranty the breach
of which may be cured by reinstatement of the Guarantor's obligation to
guarantee payment or the Department of HHS's obligation to insure payment, such
cure period shall be 360 days (instead of 120 days), in each case following the
earlier of the date on which such breach is discovered by the Transferor and the
date of the Servicer's receipt of the Guarantor or Department of HHS reject
transmittal form with respect to such Financed Student Loan. Notwithstanding the
foregoing, if as of the last day of any Collection Period the aggregate
principal amount of Financed Student Loans with respect to which claims have
been filed with and rejected by a Guarantor or the Department of HHS as a result
of a breach of a representation or warranty of the Transferor in Sections 3.1 or
Section 6.1 hereof or a breach of the obligations of the Master Servicer under
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Sections 4.1 through 4.4 hereof or with respect to which the Master Servicer
determines that claims cannot be filed pursuant to the Higher Education Act or
the HEAL Act, as the case may be, as a result of such a breach exceeds the
lesser of $250,000 or 0.25% of the Pool Balance as of such date, the Transferor
shall repurchase within 120 days of a written request by the Eligible Lender
Trustee or the Indenture Trustee, affected Financed Student Loans in an
aggregate principal amount such that after such repurchases (or purchases by the
Master Servicer pursuant to Section 4.5 hereof) the aggregate principal amount
of affected Financed Student Loans is equal to or less than the lesser of
$250,000 or 0.25% of the Pool Balance. The Financed Student Loans to be
repurchased by the Transferor pursuant to the preceding sentence (or by the
Master Servicer pursuant to Section 4.5 hereof) will be based on the date of
claim rejection, with the Financed Student Loans with the earliest such dates to
be repurchased or purchased first. In consideration of and simultaneously with
the repurchase of the Financed Student Loan, the Transferor shall remit the
Purchase Amount, in the manner specified in Section 5.4, and the Issuer shall
execute such assignments and other documents reasonably requested by the
Transferor in order to effect such transfer. Upon any such transfer of a
Financed Student Loan, legal title to, and beneficial ownership and control of,
the related Financed Student Loan File and, if applicable, the related
Additional Financed HEAL Loan File will thereafter belong to the Transferor.
In addition, if any such breach does not trigger such a repurchase
obligation but does result in (i) the refusal by the Department of HHS to insure
the applicable portion of the accrued interest with respect to any Financed HEAL
Loan, or (ii) the refusal by a Guarantor to guarantee the applicable portion of
the accrued interest, or the loss of (including any obligation of the Issuer to
repay to the Department of Education) certain Interest Subsidy Payments and
Special Allowance Payments, with respect to a Financed FFELP Loan, then, unless
such breach, if curable, is cured within 120 days following the discovery
thereof by the Transferor or receipt by the Transferor of written notice from
the Eligible Lender Trustee, the Transferor shall, at its option, either (y)
repurchase such Financed Student Loan (but only if an actual failure to pay any
such amount to the Eligible Lender Trustee occurs or the Eligible Lender is
required to repay such an amount which has been previously paid) at the
applicable Purchase Amount, including, by transferring to the Eligible Lender
Trustee a Subsequent Financed Student Loan pursuant to Section 2.3(b) hereof in
lieu of depositing into the Collection Account all or a portion of the Purchase
Amount (equal to the Subsequent Financing Purchase Price of such Subsequent
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Financed Student Loan as of the Subsequent Finance Date) or (z) reimburse the
Issuer by remitting an amount equal to the sum of all amounts that would have
been payable if not for such breach in the manner specified in Section 5.4 not
later than the last day of the Collection Period in which such 120th day occurs
(or, to the extent that all or a portion of such amount is not otherwise due and
payable as of such date, that portion shall be remitted to the Collection
Account on the last day of the Collection Period during which such amount would
otherwise be due and payable).
The sole remedy of the Issuer, the Eligible Lender Trustee, the
Indenture Trustee, the Noteholders or the Certificateholders with respect to a
breach of the representations and warranties of the Transferor pursuant to
Sections 3.1 and 6.1 hereof and the agreement contained in this Section 3.2
shall be to require the Transferor to repurchase Financed Student Loans or to
reimburse the Issuer as provided above pursuant to this Section 3.2, subject to
the conditions contained herein. The Eligible Lender Trustee shall have no duty
to conduct any affirmative investigation as to the occurrence of any condition
requiring the repurchase of any Financed Student Loan or the reimbursement for
any interest penalty pursuant to this Section 3.2.
SECTION 3.3. Custody of Financed Student Loan Files. To assure uniform
quality in servicing the Financed Student Loans and to reduce administrative
costs, the Issuer hereby revocably appoints the Master Servicer as custodian of
the following documents or instruments with respect to each Financed Student
Loan (such documents are referred to collectively as the "Financed Student Loan
File"):
(a) the original fully executed copy of the note evidencing
the Financed FFELP Loan (which may be included in the application)
unless such note is in the custody of a Guarantor;
(b) the original loan application fully executed by the
related borrower (which may be included in the note evidencing a
Financed FFELP Loan); and
(c) any and all other documents and computerized records that
any of the Master Servicer, the Administrator or the Transferor shall
keep on file, in accordance with its customary procedures, relating to
such Financed Student Loan or any Obligor with respect thereto.
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Notwithstanding the foregoing, each Subcustodian appointed pursuant to
Section 3.8 who enters into a Subservicing Agreement may act as a custodian of
the Related Financed Student Loan Files. The custodian for the original fully
executed copy of the note evidencing a Financed HEAL Loan (which may be included
in the application) and the original loan application for a Financed HEAL Loan
fully executed by the related borrower (if included in the note evidencing a
Financed HEAL Loan) (the "Additional Financed HEAL Loan File") shall be selected
by the Indenture Trustee at the request of the Issuer, however, such custodian
shall not be the Master Servicer and such custodian shall not hold such
documents pursuant to this Transfer and Servicing Agreement.
SECTION 3.4. Duties of Master Servicer as Custodian.
(a) Safekeeping. The Master Servicer, as custodian, shall hold
or cause one or more Subcustodians appointed pursuant to Section 3.8,
to (i) hold the Financed Student Loan Files for the benefit of the
Issuer, and (ii) maintain such accurate and complete accounts, records
and computer systems pertaining to each Financed Student Loan File as
shall enable the Issuer to comply with this Agreement and the other
Basic Documents. In performing its duties as custodian, the Master
Servicer shall act with reasonable care and shall ensure that it
complies in all material respects with all applicable federal and State
laws, including the Higher Education Act and the HEAL Act, with respect
thereto. The Master Servicer shall promptly report to the Issuer and
the Indenture Trustee any failure on its part to hold the Financed
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 Financed Student Loan
Files.
(b) Maintenance of and Access to Records. The Master Servicer
shall cause each Subcustodian to maintain the Related Financed Student
Loan Files at the office specified opposite such Subcustodian's name in
Schedule B or shall cause the Financed Student Loan Files to be
maintained at such other offices as shall be specified by written
notice to the Issuer and the Indenture Trustee not later than 60 days
after any change in location. Upon reasonable prior notice, the Master
Servicer shall make available, or cause each Subcustodian to make
available, to the Issuer and the Indenture Trustee or their respective
duly authorized representatives, attorneys or auditors (i) a list of
locations of the Financed Student Loan Files and (ii) the related
accounts, records and computer systems at the locations identified in
the list provided pursuant to clause (i) of this Section 3.4(b) and at
such times which are in accordance with the applicable Subservicing
Agreements.
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SECTION 3.5. Instructions; Authority to Act. The Master Servicer shall
be deemed to have received proper instructions with respect to the Financed
Student Loan Files upon its receipt of written instructions signed by a
Responsible Officer of the Indenture Trustee.
SECTION 3.6. Custodian's Indemnification.
(a) The Master Servicer shall pay from its own funds for any
Indemnifiable Expense that may be imposed on, incurred by or asserted
against the Issuer, the Eligible Lender Trustee, the Delaware Trustee
or the Indenture Trustee or any of their officers, directors, employees
and agents to the extent such Indemnifiable Expense results from the
Master Servicer's failure to perform its duties as specified in this
Article III where the final determination that any such improper act or
omission by the Master Servicer or any Subcustodian resulted in such
Indemnifiable Expense is established by a court of law, by an
arbitrator or by way of settlement agreed to by the Master Servicer;
provided, however, that the Master 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 Master 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 Master 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; provided, however, the Master Servicer shall not be
liable for any such Indemnifiable Expense imposed upon such Person to
the extent that they arise out of or result from such Person's
negligence, willful malfeasance or bad faith or a breach of the
representations and warranties of such Person in this Agreement.
Notwithstanding anything to the contrary contained in this Article III,
in no event shall the Master Servicer be liable under any theory of
tort, contract, strict liability or other legal or equitable theory for
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any lost profits or exemplary, punitive, special, incidental, indirect
or consequential damages, each of which is hereby excluded by agreement
of the parties regardless of whether or not the Master Servicer has
been advised of the possibility of such damages.
(b) Promptly after receipt by an indemnified party under this
Section 3.6 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 3.6, notify the
indemnifying party of the commencement thereof, but the omission so to
notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than under Section
3.6, except to the extent the indemnifying party is materially
prejudiced by such failure. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified
party; provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party, and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnifying party or parties
shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on
behalf of the indemnified party or parties. After notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable
to such indemnified party under this Section 3.6 for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation.
In no event shall the indemnifying party be liable for fees and
expenses for more than one counsel separate from their own counsel for
all indemnified parties in connection with any one action or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances. An indemnifying party will not, without
the prior written consent of the indemnified party, settle or
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compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
The indemnified party will not, without the prior written
consent of the indemnifying party, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in which indemnification may be
sought hereunder.
SECTION 3.7. Effective Period and Termination. The Master Servicer's
appointment as custodian of the Financed Student Loan Files shall become
effective as of the Closing Date and shall continue in full force and effect for
so long as the Master Servicer shall remain the Master Servicer hereunder. If
the Master Servicer or any successor Master Servicer shall resign as Master
Servicer in accordance with the provisions of this Agreement or if all the
rights and obligations of the Master Servicer or any such successor Master
Servicer shall have been terminated under Section 8.1 of this Agreement, the
appointment of the Master Servicer or such successor Master Servicer 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 (i) 10 Business Days, with respect to that
portion of the Financed Student Loan Files consisting of electronic records and
information that is reasonably available and deliverable within 10 Business
Days, and (ii) 30 Business Days, with respect to the remaining portion of the
Financed Student Loan Files), the Master Servicer shall deliver, to the extent
in its possession, the Financed 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.
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SECTION 3.8. Appointment of Subcustodian.
(a) The Master Servicer may at any time appoint one or more
Servicers to act as a subcustodian (each a "Subcustodian") of the
Financed Student Loan Files of the Financed Student Loans being
serviced by such Servicer (the "Related Financed Student Loan Files")
to perform all or any portion of its obligations as custodian
hereunder; provided, however, that the Master Servicer shall remain
obligated and be liable to the Issuer, the Eligible Lender Trustee, the
Indenture Trustee, the Certificateholders and the Noteholders for the
custodial services with respect to the Financed Student Loan Files in
accordance with the provisions hereof without diminution of such
obligation and liability by virtue of the appointment of such
Subcustodian and to the same extent and under the same terms and
conditions as if the Master Servicer alone were performing the
custodial services. The fees and expenses of the Subcustodian shall be
as agreed between the Master Servicer and its Subcustodian from time to
time and none of the Issuer, the Eligible Lender Trustee, the Indenture
Trustee, the Delaware Trustee, the Certificateholders or the
Noteholders shall have any responsibility therefor.
(b) The appointment of a Subcustodian by the Master Servicer
shall become effective as of the date specified in the related
Subservicing Agreement and shall continue in full force and effect with
respect to each such Subcustodian and its Related Financed Student Loan
Files for so long as such Subcustodian is a Servicer of the Financed
Student Loans relating to such Financed Student Loan Files. As soon as
practicable following the occurrence of an event of default as to which
the Master Servicer is aware or has received notice of that is
continuing under a Subservicing Agreement, the Master Servicer shall
cause each applicable Subcustodian to deliver the Financed Student Loan
Files held by it as directed by the Master Servicer.
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SECTION 3.9. Compliance by the Eligible Lender Trustee with Insurance
Agreements with the Secretary of HHS. Pursuant to paragraph 5 of the
Comprehensive Insurance Contract Health Education Assistance Loan Program,
between PHEAA and the Secretary of HHS, dated October 1, 1992 (as amended, the
"1992 Insurance Agreement"), paragraph 4 of the Comprehensive Insurance Contract
Health Education Assistance Loan Program, between PHEAA and the Secretary of
HHS, dated October 1, 1993 (as amended, the "1993 Insurance Agreement"), and
Paragraph 6 of the Secondary Market Insurance Contract Health Education
Assistance Loan Program, between the Transferor and the Secretary of HHS, dated
September 27, 1996 (the "1996 Insurance Agreement"), the Eligible Lender Trustee
agrees to comply, as if it were the lender, with the procedures set forth,
respectively, in paragraph 3 of the 1992 Insurance Agreement, paragraphs 1 and 2
of the 1993 Insurance Agreement and paragraph 6 of the 1996 Insurance Agreement.
ARTICLE IV
Administration and Servicing of Financed Student Loans
SECTION 4.1. Duties of Master Servicer. The Master Servicer, for the
benefit of the Issuer (to the extent provided herein), shall manage, service,
administer and make collections on the Financed Student Loans with reasonable
care. 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 Master 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 in all material respects with all applicable federal and State laws,
including all applicable standards, guidelines and requirements of the Higher
Education Act and any Guarantee Agreement with respect to the Financed FFELP
Loans and of the HEAL Act and the HEAL Insurance Contract with respect to the
Financed HEAL Loans, the failure to comply with which would adversely affect the
eligibility of one or more of the Financed FFELP Loans for Interest Subsidy
Payments, Special Allowance Payments or Guarantee Payments or the eligibility of
one or more of the Financed HEAL Loans for Insurance Payments or would have a
material adverse effect on the Certificateholders or the Noteholders.
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The Master 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 bills or 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 4.2, the Master Servicer shall follow customary standards, policies
and procedures in performing its duties as Master Servicer. Without limiting the
generality of the foregoing, the Master Servicer is authorized and empowered to
execute and deliver, on behalf of itself, the Issuer, the Eligible Lender
Trustee, the Indenture Trustee, the Certificateholders 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 Master 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) except as otherwise provided in Section 4.14,
reschedule, revise, defer or otherwise compromise with respect to payments due
on any Financed Student Loan except pursuant to any applicable deferment or
forbearance periods or otherwise in accordance with all applicable standards,
guidelines and requirements with respect to the servicing of the Financed
Student Loans; provided further, however, that the Master Servicer shall not
agree to any decrease of the interest rate on, or the principal amount payable
with respect to, any Financed Student Loan except as otherwise permitted in
accordance with applicable standards, guidelines and requirements of the Higher
Education Act and any Guarantee Agreement with respect to the Financed FFELP
Loans and by the HEAL Act and the HEAL Insurance Contract with respect to the
Financed HEAL Loans. Notwithstanding the foregoing, the Master Servicer may, in
its sole discretion, without having to obtain the consent or approval of any
other party, (i) not collect late charges that may be due on Financed Student
Loans, and (ii) waive remaining amounts owing under a Financed Student Loan up
to and including $250.00. The Master Servicer also shall be responsible for
advising the Eligible Lender Trustee and the Indenture Trustee of any action
required to be taken to maintain each such Guarantee Agreement and the HEAL
Insurance Contract. The Eligible Lender Trustee on behalf of the Issuer hereby
grants a power of attorney and all necessary authorization to the Master
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Servicer to sign endorsements of the notes relating to the Financed Student
Loans on behalf of the Eligible Lender Trustee in connection with conveyances
pursuant to Section 2.3 hereof and 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 the
Department of HHS for Insurance Payments and taking any steps to enforce such
Financed Student Loan 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 Certificateholders or the Noteholders. The Eligible
Lender Trustee or the Indenture Trustee shall upon the written request of the
Master Servicer or the Administrator furnish the Master Servicer or the
Administrator with any other powers of attorney and other documents reasonably
necessary or appropriate to enable the Master Servicer or the Administrator to
carry out its servicing and administrative duties hereunder.
SECTION 4.2. Collection of Financed Student Loan Payments.
(a) The Master Servicer shall make reasonable efforts
(including all efforts that may be specified under the Higher Education
Act or any Guarantee Agreement with respect to Financed FFELP Loans and
under the HEAL Act and the HEAL Insurance Contract with respect to
Financed HEAL Loans) to collect all payments called for under the terms
and provisions of the Financed Student Loans as and when the same shall
become due. The Master Servicer may in its discretion waive any late
payment charge or any other fees in addition to any fee or waiver
permitted under Section 4.1 that may be collected in the ordinary
course of servicing a Financed Student Loan.
(b) The Master Servicer shall make reasonable efforts to
claim, pursue and collect all Guarantee Payments from the Guarantors
pursuant to the Guarantee Agreements and all Insurance Payments from
the Department of HHS pursuant to the HEAL Insurance Contract with
respect to any of the Financed Student Loans as and when the same shall
become due and payable, and shall comply in all material respects with
all applicable laws and agreements with respect to claiming, pursuing
and collecting such payments. In connection therewith, the Master
Servicer is hereby authorized and empowered to convey to any Guarantor
the note and the related Financed Student Loan File representing any
Financed FFELP Loan in connection with submitting a claim to such
Guarantor for a Guarantee Payment in accordance with the terms of the
applicable Guarantee Agreement and to the Department of HHS the note
and the related Financed Student Loan File representing any Financed
HEAL Loan in connection with submitting a claim to the Department of
HHS for an Insurance Payment in accordance with the terms of the HEAL
Insurance Contract whereupon the Lien of the Indenture Trustee relating
to such Financed Student Loan shall be released without any further
action of any kind.
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(c) The Eligible Lender Trustee shall, with the assistance of
the Master Servicer 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 of Education with
respect to any of the Financed FFELP Loans as and when the same shall
become due and payable, shall comply in all material respects with all
applicable laws and agreements with respect to claiming, pursuing and
collecting such payments. All amounts so collected by the Eligible
Lender Trustee shall constitute Available Funds for the applicable
Collection Period or Collection Periods and shall be deposited into the
Collection Account in accordance with Section 5.4. In connection
therewith, the Master Servicer shall prepare and file with the
Department of Education 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 of
Education. The Eligible Lender Trustee shall, upon the written request
of the Master Servicer, furnish the Master Servicer with any power of
attorney and other documents reasonably necessary or appropriate to
enable the Master Servicer to prepare and file such claims, forms and
other documents and filings.
(d) The Eligible Lender Trustee may permit trusts, other than
the Trust, established by the Transferor to securitize student loans to
use the Department of Education and the Department of HHS lender
identification numbers 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
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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 of Education, any Guarantor
or the Department of HHS 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 of Education,
any Guarantor or the Department of HHS 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 of Education,
any Guarantor or the Department of HHS 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
Master 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. Any amounts assessed against payments due from
the Department of Education, any Guarantor or the Department of HHS to
the Trust as a result of amounts owing to the Department of Education,
any Guarantor or the Department of HHS to the Trust 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 Master 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 4.3. Realization upon Financed Student Loans. For the benefit
of the Issuer, the Master Servicer shall use reasonable efforts consistent with
customary servicing practices and procedures and including all efforts that may
be specified under the Higher Education Act or any Guarantee Agreement with
respect to the Financed FFELP Loans and under the HEAL Act and the HEAL
Insurance Contract with respect to the Financed HEAL Loans in its servicing of
any delinquent Financed Student Loans.
SECTION 4.4. No Impairment. The Master Servicer shall not impair in any
material respect the rights of the Issuer, the Eligible Lender Trustee, the
Indenture Trustee, the Certificateholders or the Noteholders in the Financed
Student Loans, in any Guaranty Agreement or in the HEAL Insurance Contract.
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SECTION 4.5. Purchase of Financed Student Loans; Reimbursement. The
Master Servicer or the Eligible Lender Trustee, as the case may be, shall inform
the other parties to this Agreement and the Indenture Trustee promptly, in
writing, upon the discovery of any breach of an obligation under Section 4.1,
4.2, 4.3 or 4.4 hereof. Unless any such breach shall have been cured within 120
days following the discovery thereof by the Master Servicer or receipt by the
Master Servicer of written notice from the Eligible Lender Trustee of such
breach, the Financed Student Loan in which the interests of the Noteholders or
the Certificateholders are materially and adversely affected by any such breach
shall be transferred, assigned, setover and otherwise conveyed to the Master
Servicer (a "purchase") as of the first day succeeding the end of such 120-day
period that is the last day of a Collection Period; provided that it is
understood that any such breach that has not resulted in the failure of a
Guarantee Agency to make a Guarantee Payment or the Department of HHS to make an
Insurance Payment to the Eligible Lender Trustee will not be considered to have
a material adverse effect for this purpose; and provided further, however, that
in the case of any obligation the breach of which may be cured by reinstatement
of the Guarantor's obligation to guarantee payment or the Department of HHS's
obligation to insure payment, such cure period shall be 360 days (instead of 120
days), in each case following the earlier of the date on which such breach is
discovered by the Master Servicer and the date of the Servicer's receipt of the
Guarantor or Department of HHS reject transmittal form with respect to such
Financed Student Loan. Notwithstanding the foregoing, if as of the last day of
any Collection Period the aggregate principal amount of Financed Student Loans
with respect to which claims have been filed with and rejected by a Guarantor or
the Department of HHS as a result of a breach of a representation or warranty of
the Transferor in Sections 3.1 or Section 6.1 hereof or a breach of the
obligations of the Master Servicer under Sections 4.1 through 4.4 hereof or with
respect to which the Master Servicer determines that claims cannot be filed
pursuant to the Higher Education Act or the HEAL Act, as the case may be, as a
result of such a breach exceeds the lesser of $250,000 or 0.25% of the Pool
Balance as of such date, the Master Servicer shall purchase (or Transferor shall
repurchase pursuant to Section 3.2 hereof) within 120 days of a written request
by the Eligible Lender Trustee or the Indenture Trustee, affected Financed
Student Loans in an aggregate principal amount such that after such purchases or
repurchases the aggregate principal amount of affected Financed Student Loans is
equal to or less than the lesser of $250,000 or 0.25% of the Pool Balance. The
Financed Student Loans to be purchased by the Master Servicer pursuant to the
preceding sentence (or repurchased by the Transferor pursuant to Section 3.2
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hereof) will be based on the date of claim rejection, with the Financed Student
Loans with the earliest such dates to be purchased or repurchased first. In
consideration of and simultaneously with the purchase of the Financed Student
Loan, the Master Servicer shall remit the Purchase Amount, in the manner
specified in Section 5.4, and the Issuer shall execute such assignments and
other documents reasonably requested by the Master Servicer in order to effect
such transfer. Upon any such transfer of a Financed Student Loan, legal title
to, and beneficial ownership and control of, the related Financed Student Loan
File and, if applicable, the related Additional Financed HEAL Loan File will
thereafter belong to the Master Servicer.
In addition, if any such breach does not trigger such a purchase
obligation but does result in (i) the refusal by the Department of HHS to insure
the applicable portion of the accrued interest with respect to any Financed HEAL
Loan, or (ii) the refusal by a Guarantor to guarantee the applicable portion of
the accrued interest, or the loss of (including any obligation of the Issuer to
repay to the Department of Education) certain Interest Subsidy Payments and
Special Allowance Payments, with respect to a Financed FFELP Loan, then, unless
such breach, if curable, is cured within 120 days following the discovery
thereof by the Master Servicer or receipt by the Master Servicer of written
notice from the Eligible Lender Trustee, the Master Servicer shall, at its
option, either (y) purchase such Financed Student Loan (but only if an actual
failure to pay any such amount to the Eligible Lender Trustee occurs or the
Eligible Lender is required to repay such an amount which has been previously
paid) at the applicable Purchase Amount, including (if the Transferor is the
Master Servicer at the time of such purchase) by transferring to the Eligible
Lender Trustee a Subsequent Financed Student Loan pursuant to Section 2.3(b)
hereof in lieu of depositing into the Collection Account all or a portion of the
Purchase Amount (equal to the Subsequent Financing Purchase Price of such
Subsequent Financed Student Loan as of the Subsequent Finance Date) or (z)
reimburse the Issuer by remitting an amount equal to the sum of all amounts that
would have been payable if not for such breach in the manner specified in
Section 5.4 not later than the last day of the Collection Period in which such
120th day occurs (or, to the extent that all or a portion of such amount is not
otherwise due and payable as of such date, that portion shall be remitted to the
Collection Account on the last day of the Collection Period during which such
amount would otherwise be due and payable).
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The sole remedy of the Issuer, the Eligible Lender Trustee, the
Indenture Trustee, the Noteholders or the Certificateholders with respect to a
breach of the obligations of the Master Servicer under Sections 4.1 through 4.4
hereof and the agreement contained in this Section 4.5 shall be to require the
Master Servicer to purchase Financed Student Loans or to reimburse the Issuer as
provided above pursuant to this Section 4.5, subject to the conditions contained
herein. The Eligible Lender Trustee shall have no duty to conduct any
affirmative investigation as to the occurrence of any condition requiring the
purchase of any Financed Student Loan or the reimbursement for any interest
penalty pursuant to this Section 4.5.
SECTION 4.6. Servicing Fee. For its services hereunder, the Master
Servicer shall be entitled to receive the Servicing Fee in the manner set
forth in Section 5.5.
SECTION 4.7. Administrator's Certificate.
(a) On each Distribution Determination Date, the Administrator
shall deliver to the Indenture Trustee and the Eligible Lender Trustee
in writing the applicable Noteholders' Interest Distribution Amount,
the Noteholders Principal Distribution Amount and all amounts to be
paid to Certificateholders on the related Distribution Date. On each
Distribution Determination Date relating to a Quarterly Distribution
Date, the Administrator also shall deliver to the Indenture Trustee and
the Eligible Lender Trustee in writing the estimated Transaction Fees
(separately and in the aggregate) for the calendar quarter in which
such Quarterly Distribution Date occurs. Two Business Days prior to the
25th day of each month, the Administrator will advise the Indenture
Trustee and the Eligible Lender Trustee in writing of the Consolidation
Loan Fees for the preceding calendar month.
(b) On each Distribution Determination Date, the Administrator
also shall deliver to the Eligible Lender Trustee, the Indenture
Trustee and the Transferor (if the Transferor is not also the
Administrator), an Administrator's Certificate containing all
information necessary to make the distributions pursuant to Sections
5.5 and 5.6, if applicable, for the upcoming Distribution Date.
Financed Student Loans to be repurchased by the Transferor or purchased
by the Master Servicer (whether pursuant to Section 2.3(b), 3.2 or
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4.5), or acquired by any Guarantor or by the Department of HHS shall be
identified by the Administrator by borrower social security number with
respect to such Financed Student Loan (as specified in Schedule A-1).
(c) On or before each Distribution Determination Date, the
Administrator shall deliver to the Eligible Lender Trustee, the
Indenture Trustee and the Transferor (if the Transferor is not also the
Administrator), the Administrator's Certificate substantially in the
form of Exhibit C setting forth by component the Available Funds for
the immediately preceding Collection Period (or the three preceding
Collection Periods if the Class A Notes are no longer Outstanding).
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SECTION 4.8. Annual Statement as to Compliance; Notice of Default.
(a) Each of the Master Servicer and the Administrator shall
deliver to the Transferor, the Eligible Lender Trustee and the
Indenture Trustee, on or before April 30 of each year beginning April
30, 1999, an Officer's Certificate of the Master Servicer or the
Administrator, as the case may be, dated as of December 31 of the
preceding year, stating that (i) a review of the activities of the
Master Servicer or the Administrator, as the case may be, during the
preceding 12-month period (or, in the case of the first such
certificate, during the period from the Closing Date to December 31,
1998) and of its performance under this Agreement has been made under
such officers' supervision and (ii) to the best of such officers'
knowledge, based on such review, the Master Servicer or the
Administrator, as the case may be, has fulfilled in all material
respects all its obligations under this Agreement and the
Administration Agreement, respectively, throughout such year or, if
there has been a default in the fulfillment of any such obligation,
specifying each such default known to such officer and the nature and
status thereof. The Eligible Lender Trustee shall send a copy of each
such Officers' Certificate and each report referred to in Section 4.9
to the Rating Agencies. A copy of each such Officers' Certificate and
each report referred to in Section 4.9 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 a
Noteholder or Note Owner. Pursuant to the Indenture, 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 Master Servicer shall deliver to the Eligible Lender
Trustee, the Indenture Trustee, the Transferor and the Rating Agencies,
promptly after having obtained knowledge thereof, but in no event later
than five Business Days thereafter, written notice in an Officer's
Certificate of the Master Servicer of any event which with the giving
of notice or lapse of time, or both, would become a Master Servicer
Default under Section 8.1(a).
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(c) The Administrator shall deliver to the Eligible Lender
Trustee, the Indenture Trustee, the Master Servicer and the Rating
Agencies, promptly after having obtained knowledge thereof, but in no
event later than five Business Days thereafter, written notice in an
Officer's Certificate of the Administrator of any event which with the
giving of notice or lapse of time, or both, would become an
Administrator Default under Section 8.1(b) (l), (2) or (3).
SECTION 4.9. Annual Independent Certified Public Accountants' Report or
Reports. Each of the Master Servicer and the Administrator shall cause KPMG Peat
Marwick LLP, or any other nationally recognized firm of independent certified
public accountants, to deliver to the Transferor, which may also render its
services to the Master Servicer and the Administrator, the Eligible Lender
Trustee, the Indenture Trustee and any Servicer on or before April 30 of each
year beginning April 30, 1999 one or more reports addressed to the Master
Servicer and to the Transferor, the Eligible Lender Trustee and the Indenture
Trustee, to the effect that such accountants have relied upon the assertions by
the Master Servicer's and Administrator's management about the Master Servicer's
and Administrator's compliance with Sections 3.3, 3.4, 4.1, 4.2, 4.3, 4.4, 4.6,
4.7, 5.2, 5.5, 5.6, 5.7 and 5.8 of the Transfer and Servicing Agreement and
Sections 1(B), 1(D), 1(G), 1(U), 2 and 3 of the Administration Agreement during
the preceding calendar year (or, in the case of the first such report(s), during
the period from the Closing Date to December 31, 1998) and in any such
accountant's opinion(s), such assertions are fairly stated in all material
respects, except for (i) such exceptions as any such firm shall believe to be
immaterial and (ii) such other exceptions as shall be set forth in such
report(s). If any such firm requires the Indenture Trustee or the Eligible
Lender Trustee to agree to the procedures performed by such firm, the Master
Servicer shall direct the Indenture Trustee or the Eligible Lender Trustee in
writing to so agree; it being understood and agreed that the Indenture Trustee
or the Eligible Lender Trustee, as applicable, will deliver such letter of
agreement in conclusive reliance upon the direction of the Master Servicer, and
the Indenture Trustee and the Eligible Lender Trustee make no independent
inquiry or investigation as to and shall have no obligation or liability in
respect of, the sufficiency, validity or correctness of such procedures.
Such report(s) will also indicate that the firm is independent of the
Master Servicer within the meaning of the Code of Professional Ethics of the
American Institute of Certified Public Accountants.
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SECTION 4.10. Access to Certain Documentation and Information Regarding
Financed Student Loans. Upon reasonable prior notice, the Master Servicer shall,
or shall cause each Servicer to, provide access to the Financed Student Loan
Files and the related accounts, records and computer systems maintained by the
Master Servicer or such Servicer, as the case may be, to (i) the Eligible Lender
Trustee and (ii) the Indenture Trustee and their respective duly authorized
representatives, attorneys or auditors; provided, however, that, except as
otherwise set forth in Section 11.18 of the Indenture, agreed to by the Master
Servicer or required by law, (A) such Persons shall maintain the confidentiality
of the information in such Financed Student Loan Files and the related accounts,
records and computer systems and not use any of such information for any purpose
except in connection with performing their obligations as Eligible Lender
Trustee or Indenture Trustee, and (B) access to the computer systems shall be
limited to obtaining, and only to the extent necessary to obtain, information
relating to the Financed Student Loans for purposes of performing their
obligations as Eligible Lender Trustee or Indenture Trustee. Access shall be
afforded without charge (except that the reasonable cost of photocopying shall
be borne by the party requesting copies), but only upon reasonable request and
during the normal business hours at the respective offices of the applicable
Servicer. Nothing in this Section shall affect the obligation of the Master
Servicer (or a Servicer) to observe any applicable law prohibiting disclosure of
information regarding the Obligors and the failure of the Master Servicer to
provide (or cause each Servicer to provide) access to information as a result of
such obligation shall not constitute a breach of this Section.
SECTION 4.11. Master Servicer and Administrator Expenses. The Master
Servicer and the Administrator shall be severally required to pay all expenses
incurred by them in connection with their respective activities hereunder,
including fees and disbursements of independent accountants, taxes imposed on
the Master Servicer or the Administrator, as the case may be, and expenses
incurred in connection with distributions and reports to the Administrator, the
Noteholders and the Eligible Lender Trustee, as the case may be.
SECTION 4.12. Appointment of Servicer.
(a) The Master Servicer may at any time appoint a Servicer to
perform all or any portion of its obligations as Master Servicer
hereunder; provided, however, that the Rating Agency Condition shall
have been satisfied in connection therewith; provided further, that the
Master Servicer shall remain obligated and be liable to the Issuer, the
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Eligible Lender Trustee, the Indenture Trustee, the Certificateholders
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 Master Servicer alone were
servicing and administering the Financed Student Loans. The fees and
expenses of each Servicer shall be as agreed between the Master
Servicer and such Servicer from time to time and none of the Issuer,
the Eligible Lender Trustee, the Delaware Trustee, the Indenture
Trustee, the Certificateholders and the Noteholders shall have any
responsibility therefor. Notwithstanding the foregoing, PHEAA shall be
deemed an approved Servicer for all purposes hereunder.
(b) The Master Servicer may at any time appoint one or more of
its Affiliates to perform all or any portion of its obligations
hereunder; provided, however, that the Master Servicer shall remain
obligated and liable to the Issuer, the Eligible Lender Trustee, the
Indenture Trustee, the Certificateholders 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 Affiliate and to the
same extent and under the same terms and conditions as if the Master
Servicer alone were servicing and administering the Financed Student
Loans. The fees and expenses of each such Affiliate shall be as agreed
between the Master Servicer and such Affiliate from time to time and
none of the Issuer, the Eligible Lender Trustee, the Delaware Trustee,
the Indenture Trustee, the Certificateholders and the Noteholders shall
have any responsibility therefor.
SECTION 4.13. Subservicing Agreements. The Master Servicer
hereby represents and warrants that: (i) as of the Closing Date it has
entered into a Subservicing Agreement with PHEAA (the "Subservicing
Agreement"); (ii) the Subservicing Agreement requires the Servicer
thereunder to service the Financed Student Loans subject thereto in
accordance in all material respects with all applicable federal and
State laws, including all applicable standards, guidelines and
requirements of the Higher Education Act with respect to Financed FFELP
Loans and the HEAL Act with respect to Financed HEAL Loans.
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SECTION 4.14. Incentive Programs. The Servicer shall be
permitted to reduce the applicable interest rate on a TP Loan by up to
(i) 1.00% per anum for ▇▇▇▇▇▇▇▇ Loans and Unsubsidized ▇▇▇▇▇▇▇▇ Loans
and 0.5% per annum for PLUS Loans, if the Obligor related to such TP
Loan makes 36 consecutive monthly payments of such TP Loan on or prior
to the applicable due dates of such TP Loan, or (ii) such greater
percentage and upon such other conditions for which a Rating Agency
Condition is satisfied.
ARTICLE V
Distributions; Reserve Account;
Statements to Certificateholders and Noteholders
SECTION 5.1. Establishment of Trust Accounts.
(a) The Indenture Trustee, for the benefit of the Noteholders,
shall establish and maintain in the name of the Indenture Trustee each
of the Collection Account, the Note Distribution Account, the Reserve
Account, the Expense Account and the Monthly Advance Account. The
Eligible Lender Trustee, for the benefit of the Certificateholders,
shall establish and maintain in the name of the Eligible Lender Trustee
the Certificate Distribution Account and the Certificate Quarterly
Advance Account. The foregoing accounts are referred to collectively as
the "Trust Accounts." Each such Trust Account shall be an Eligible
Deposit Account and, except for the Certificate Distribution Account
and the Certificate Quarterly Advance Account, shall be entitled as
follows: "[Name of Account] for the benefit of Crestar Student Loan
Trust 1997-1 and Bankers Trust Company, as Indenture Trustee, as their
interests may appear." The Certificate Distribution Account and the
Certificate Quarterly Advance Account shall be entitled as follows:
"Crestar Student Loan Trust 1997-1 Certificate Distribution Account"
and Crestar Student Loan Trust 1997-1 Certificate Quarterly Advance
Account," respectively.
(b) Funds on deposit in the Trust Accounts shall be invested
by the Indenture Trustee and, in the case of the Certificate
Distribution Account and the Certificate Quarterly Advance Account, the
Eligible Lender Trustee in Eligible Investments pursuant to written
instructions from the Administrator, on behalf of the Issuer; provided,
however, it is understood and agreed that the Indenture Trustee and the
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Eligible Lender Trustee shall not be liable for any loss arising from
such investment in Eligible Investments. All such Eligible Investments
shall be held by the Indenture Trustee and the Eligible Lender Trustee
for the benefit of the Issuer; provided that on the Business Day
preceding each Distribution Date all interest and other investment
income (net of losses and investment expenses) on funds on deposit
therein shall be deposited into the Collection Account and shall be
deemed to constitute a portion of the Available Funds for the related
Distribution Date. Funds on deposit in the Trust Accounts shall be
invested in Eligible Investments that will mature or otherwise be
available so that such funds will be available at the close of business
on the Business Day preceding the day on which funds in the applicable
Trust Account may be required to be withdrawn; provided, however, that
funds on deposit in such Trust Accounts may be invested in Eligible
Investments of the Indenture Trustee or of the Eligible Lender Trustee
in the case of the Certificate Distribution Account and Certificate
Quarterly Advance Account which may mature so that such funds will be
available on the following Business Day. Funds deposited in a Trust
Account on a Business Day which immediately precedes a Distribution
Date upon the maturity of any Eligible Investments are not required to
be invested overnight unless otherwise directed by telephone or
facsimile and confirmed within 24 hours in writing by the
Administrator.
(c) (i) The Indenture Trustee (or the Eligible Lender Trustee
with respect to the Certificate Distribution Account and the
Certificate Quarterly Advance Account) shall possess all right, title
and interest in all funds on deposit from time to time in the Trust
Accounts and in all proceeds thereof (including all income thereon) and
all such funds, investments, proceeds and income shall be part of the
Trust Estate. Subject to the Administrator's power to give instructions
pursuant to paragraph (b) above and paragraph (c) (iii) below, the
Trust Accounts shall be under the sole dominion and control of the
Indenture Trustee (or the Eligible Lender Trustee with respect to the
Certificate Distribution Account and the Certificate Quarterly Advance
Account) for the benefit of the Noteholders and Certificateholders. If,
at any time, any of the Trust Accounts ceases to be an Eligible Deposit
Account, the Administrator, on behalf of the Issuer, agrees that it
shall within 10 Business Days (or such longer period, not to exceed 30
calendar days, as to which the Rating Agencies may consent) establish a
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new Trust Account as an Eligible Deposit Account and shall transfer any
cash and/or any investments to such new Trust Account. In connection
with the foregoing, the Administrator, on behalf of the Issuer, agrees
that, if any of the Trust Accounts are not accounts with the Indenture
Trustee (or the Eligible Lender Trustee with respect to the Certificate
Distribution Account and the Certificate Quarterly Advance Account),
the Administrator shall notify the Indenture Trustee and the Eligible
Lender Trustee in writing promptly upon any of such Trust Accounts
ceasing to be an Eligible Deposit Account.
(ii) With respect to the Trust Account Property, the Indenture
Trustee agrees (or, with respect to the Certificate Distribution
Account and the Certificate Quarterly Advance Account, the Eligible
Lender Trustee agrees), by its acceptance thereof, that:
(A) any Trust Account Property that is held in
deposit accounts shall be held solely in Eligible Deposit
Accounts, subject to the last sentence of Section 5.1(c)(i);
and, subject to Section 5.1(b), each such Eligible Deposit
Account shall be subject to the exclusive custody and control
of the Indenture Trustee (or the Eligible Lender Trustee with
respect to the Certificate Distribution Account and the
Certificate Quarterly Advance Account), and the Indenture
Trustee (or the Eligible Lender Trustee with respect to the
Certificate Distribution Account and the Certificate Quarterly
Advance Account) shall have sole signature authority with
respect thereto;
(B) any Trust Account Property that constitutes
Physical Property shall be Delivered to the Indenture Trustee
in accordance with paragraph (a) of the definition of
"Delivery" and shall be held, pending maturity or disposition,
solely by the Indenture Trustee or a financial intermediary
(as such term is defined in Article 8 of the UCC) acting
solely for the Indenture Trustee;
(C) any Trust Account Property that is a book-entry
security held through the Federal Reserve System pursuant to
federal book-entry regulation shall be Delivered in accordance
with paragraph (b) of the definition of "Delivery" and shall
be maintained by the Indenture Trustee, pending maturity or
disposition, through continued book-entry registration of such
Trust Account Property as described in such paragraph; and
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(D) any Trust Account Property that is an
"uncertificated security" under Article VIII of the UCC and
that is not governed by clause (C) above shall be Delivered to
the Indenture Trustee in accordance with paragraph (c) of the
definition of "Delivery" and shall be maintained by the
Indenture Trustee, pending maturity or disposition, through
continued registration of the Indenture Trustee's (or its
nominee's) ownership of such security.
(iii) The Administrator shall have the power, revocable for
cause or upon the occurrence and during the continuance of an
Administrator Default by the Indenture Trustee or by the Eligible
Lender Trustee with the consent of the Indenture Trustee, to instruct
the Indenture Trustee to make withdrawals and payments from the Trust
Accounts (or the Eligible Lender Trustee with respect to the
Certificate Distribution Account and the Certificate Quarterly Advance
Account) for the purpose of permitting the Master Servicer, the
Administrator or the Eligible Lender Trustee to carry out its
respective duties hereunder or under the Trust Agreement or permitting
the Indenture Trustee to carry out its duties under the Indenture.
SECTION 5.2. Collections. The Master Servicer shall cause each Servicer
to remit to the Collection Account, no less frequently than weekly, all payments
by or on behalf of the Obligors with respect to the Financed Student Loans for
which it is acting as Primary Servicer (other than Purchased Student Loans). For
purposes of this Article V, the phrase "payments by or on behalf of Obligors"
shall mean payments made with respect to the Financed Student Loans by or on
behalf of borrowers thereof, the Guarantors and the Department of HHS. The
Master Servicer shall require each Servicer to provide notice by facsimile to
the Indenture Trustee of all wire transfers made by such Servicer to the
Indenture Trustee for deposits to the Collection Account.
SECTION 5.3. Application of Collections. With respect to each Financed
Student Loan, all collections (including all Guarantee Payments and all
Insurance Payments) with respect thereto shall be applied in accordance with
regulations of the Department of Education and the applicable Guarantor in the
case of Financed FFELP Loans and the Department of HHS in the case of Financed
HEAL Loans.
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SECTION 5.4. Additional Deposits. Within two Business Days after
receipt thereof, the Eligible Lender Trustee (or the Master Servicer on its
behalf) shall deposit in the Collection Account the aggregate amount of Interest
Subsidy Payments and Special Allowance Payments received by it with respect to
the Financed Student Loans, and the Transferor shall deposit in the Collection
Account any amount owed pursuant to Section 3.2 no later than the last day of
the Collection Period during which any such amount is owed. The Master Servicer
shall deposit or cause to be deposited in the Collection Account the aggregate
Purchase Amount with respect to Purchased Student Loans and all other amounts to
be paid by the Master Servicer under Section 4.5 when such amounts are due, and
the Transferor shall deposit or cause to be deposited in the Collection Account
the aggregate Purchase Amount with respect to Purchased Student Loans and all
other amounts to be paid by the Transferor under Sections 3.2 or 9.1 when such
amounts are due. The Transferor, the Master Servicer and the Administrator also
shall deposit in the Collection Account all amounts required to be deposited
therein pursuant to, and within the time periods provided by, Section 2.3.
Notwithstanding the foregoing, the Master Servicer shall deposit, or cause to be
deposited, directly into the Reserve Account any payments of or with respect to
principal relating to a Financed Student Loan for which any payment on account
of a Realized Loss was previously distributed (but only up to the amount of such
Realized Loss), and shall deposit, or cause to be deposited, directly into the
Collection Account any payments of or with respect to interest relating to a
Financed Student Loan for which any payment on account of a Realized Loss was
previously distributed.
The Master Servicer also shall, in its sole discretion, deposit into
the Monthly Advance Account the amount of any Monthly Advances determined to be
made by the Master Servicer pursuant to Section 5.10 no later than the
Distribution Determination Date relating to the Distribution Date when such
amounts are to be applied as a payment of interest. On each Distribution Date,
the Indenture Trustee will transfer from the Monthly Advance Account to the
Eligible Lender Trustee, by wire transfer no later than 11:00 a.m. New York
time, for deposit into the Certificate Quarterly Advance Account the portion of
the Monthly Advance, if any, for such Distribution Date allocable to the
Certificates. Pursuant to Section 5.10, if after making a Monthly Advance the
Master Servicer receives the Guarantee Payment, the Special Allowance Payment,
the Interest Subsidy Payment or the Insurance Payment for which such Monthly
Advance was made, the Master Servicer shall be reimbursed immediately from such
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Guarantee Payment, Special Allowance Payment, Interest Subsidy Payment or
Insurance Payment, as the case may be, on deposit in the Collection Account up
to the amount of the related Monthly Advance or, if such Guarantee Payment,
Special Allowance Payment, Interest Subsidy Payment or Insurance Payment is not
received, the Master Servicer may reimburse itself from any funds on deposit in
the Collection Account up to the amount of the related Monthly Advance.
SECTION 5.5. Distributions.
(a) On each Distribution Date, pursuant to the Administrator's
written instructions, the Indenture Trustee will transfer from the
Collection Account, in the following priority and from Available Funds
for each Collection Period from and including the Collection Period
during which the preceding Quarterly Distribution Date occurred through
the Collection Period immediately preceding the month of such
Distribution Date (or with respect to each Distribution Date through
and including the first Quarterly Distribution Date, from the Closing
Date through the Collection Period immediately preceding such
Distribution Date), the required amounts from the Available Funds for
such Collection Periods:
(i) first, to the Expense Account, (A) an amount
equal to the Consolidation Loan Fees with respect to the
calendar month most recently ended and all overdue
Consolidation Loan Fees from any prior months and (B) if such
Distribution Date is a Quarterly Distribution Date, an amount
up to the estimated Transaction Fees for the calendar quarter
commencing in the month of such Quarterly Distribution Date
and all overdue Transaction Fees from prior calendar quarters
(plus (or minus) the difference (or excess) of the actual
Transaction Fees for the immediately preceding calendar
quarter and the Transaction Fees deposited into the Expense
Account on the preceding Quarterly Distribution Date);
(ii) second, to the Note Distribution Account, an
amount up to the aggregate Noteholders' Interest Distribution
Amount for such Distribution Date;
(iii) third, to the Note Distribution Account, an
amount up to the Noteholders' Principal Distribution Amount
for such Distribution Date;
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(iv) fourth, to the Eligible Lender Trustee, for
deposit into the Certificate Distribution Account, an amount
up to the Certificateholders' Interest Distribution Amount for
such Distribution Date; and
(v) fifth, if the Outstanding Amount of the Notes has
been paid in full, to the Eligible Lender Trustee, for deposit
into the Certificate Distribution Account, an amount up to the
Certificateholders' Principal Distribution Amount
for such Distribution Date.
(b) [Reserved]
(c) On each Quarterly Distribution Date (and in the case of
clause (i) below, on the 25th day of each month (or if such day is not
a Business Day, the next succeeding Business Day)), the Indenture
Trustee, pursuant to information contained in the Administrator's
Certificate delivered in accordance with Section 4.7, will distribute
from the Expense Account (in addition to any amounts transferred from
the Reserve Account pursuant to Section 5.6) the following amounts in
the following order of priority:
(i) to the Department of Education, the Consolidation
Loan Fees for the immediately preceding calendar month and all
overdue Consolidation Loan Fees for any prior months,
(ii) to the Master Servicer, the estimated Servicing
Fee for the calendar quarter in which such Quarterly
Distribution Date occurs and all overdue Servicing Fees,
(iii) to the Administrator, the estimated
Administration Fee for the calendar quarter in which such
Quarterly Distribution Date occurs and all overdue
Administration Fees,
(iv) to the Indenture Trustee, the estimated
Indenture Trustee Fee for the calendar quarter in which such
Quarterly Distribution Date occurs and all overdue Indenture
Trustee Fees, and
(v) to the Eligible Lender Trustee and the Delaware
Trustee, the estimated Eligible Lender Trustee Fee and
Delaware Trustee Fee, respectively, for the calendar quarter
in which such Quarterly Distribution Date occurs and all
overdue Eligible Lender Trustee Fees and Delaware Trustee
Fees.
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(d) On each Distribution Date, the Indenture Trustee will
distribute to the Noteholders as of the related Record Date all amounts
transferred to the Note Distribution Account pursuant to Section
5.5(a)(ii) and (iii) (in addition to any amounts transferred from the
Reserve Account, any amounts deposited into the Monthly Advance Account
pursuant to Section 5.4 and any Parity Percentage Payments transferred
from the Collection Account pursuant to Section 5.5(e)) in the
following order of priority:
(i) first, to each Class of Class A Noteholders, the
Class A Noteholders' Interest Distribution Amount (pro rata
based upon the portion thereof allocable to each such Class);
(ii) second, if such Distribution Date is a Quarterly
Distribution Date, to the Class B Noteholders, the Class B
Noteholders' Interest Distribution Amount;
(iii) third, to the Class A-1 Noteholders, the
Noteholders' Principal Distribution Amount until the
Outstanding Amount of the Class A-1 Notes has been reduced to
zero;
(iv) fourth, after the Outstanding Amount of the
Class A-1 Notes has been reduced to zero, to the Class A-2
Noteholders, the Noteholders' Principal Distribution Amount
until the Outstanding Amount of the Class A-2 Notes has been
reduced to zero, and
(v) fifth, after the Outstanding Amount of the Class
A Notes has been reduced to zero, if such Distribution Date is
a Quarterly Distribution Date, to the Class B Noteholders the
remaining Noteholders' Principal Distribution Amount until the
Outstanding Amount of the Class B Notes shall have been
reduced to zero.
On each Quarterly Distribution Date, the Eligible Lender
Trustee will distribute to the Certificateholders as of the related
Record Date all amounts transferred to the Certificate Distribution
Account pursuant to Section 5.5(a) (in addition to any amounts
transferred from the Reserve Account and any amount deposited into the
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Certificate Quarterly Advance Account pursuant to Section 5.4) in the
following order of priority: (i) first, to the Certificateholders, the
Certificateholders' Interest Distribution Amount and (ii) second, to
the Certificateholders, the Certificateholders' Principal Distribution
Amount. The priority of distributions set forth in this Section 5.5(d)
shall be subject to the provisions of Section 5.5(f).
(e) On each Quarterly Distribution Date, after making any and
all required transfers to the Expense Account, the Note Distribution
Account and, if applicable, the Certificate Distribution Account
pursuant to Section 5.5(a), the Indenture Trustee will transfer any
amounts remaining in the Collection Account (other than amounts
representing payments received during the month in which such
Distribution Date occurs) in the following order of priority:
(i) to the Reserve Account, the amount, if any,
necessary to increase the balance thereof to the Specified
Reserve Account Balance,
(ii) to the Note Distribution Account, the Parity
Percentage Payment, if any, for such Distribution Date,
(iii) to the Note Distribution Account, the amount of
any outstanding Noteholders' Interest Carryover, and
(iv) to the Transferor, any amounts remaining on
deposit in the Collection Account other than amounts
representing payments received on or with respect to the
Financed Student Loans during the month of such Quarterly
Distribution Date (amounts transferred to the Transferor
pursuant to this clause (iv) shall be transferred by the
Indenture Trustee to the account specified by the Transferor).
The Transferor shall have the right, at its option, to transfer and
assign, in whole or in part, its right to receive any amounts required
to be paid to it pursuant to clause (iv).
(f) Notwithstanding the foregoing, if (x) on any Distribution
Date following all distributions to be made on such Distribution Date,
the Outstanding Amount of the Class A Notes would exceed the sum of the
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Pool Balance at the end of the immediately preceding Collection Period
plus the aggregate balance on deposit in the Trust Accounts on such
Distribution Date following such distributions, or (y) an Event of
Default has occurred with respect to payment of the Notes,
distributions pursuant to Section 5.5(d) shall be made in the following
priority:
(i) first, to each Class of Class A Noteholders, the
Noteholders' Interest Distribution Amount applicable to each
such Class pro rata based upon the portion thereof
allocable to each such Class;
(ii) second, in the case of
(A) clause (x) above, to the Class A-1
Noteholders, the Noteholders' Principal
Distribution Amount until the Outstanding
Amount of the Class A-1 Notes has been
reduced to zero, and then to the Class A-2
Noteholders, the Noteholders' Principal
Distribution Amount until the Outstanding
Amount of the Class A-2 Notes has been
reduced to zero, and
(B) clause (y) above, to each Class of Class
A Noteholders, the Noteholders' Principal
Distribution Amount applicable to such
Distribution Date, pro rata based upon the
Outstanding Amount of each Class of Class A
Notes until the Outstanding Amount of each
Class of Class A Notes has been paid in
full;
(iii) third, if such Distribution Date is a Quarterly
Distribution Date, to the Class B Noteholders, the
Noteholders' Interest Distribution Amount applicable to the
Class B Notes;
(iv) fourth, after the Outstanding Amount of each of
the Class A Notes has been reduced to zero, if such
Distribution Date is a Quarterly Distribution Date, to the
Class B Noteholders, the Noteholders' Principal Distribution
Amount until the Outstanding Amount of the Class B Notes has
been reduced to zero;
(v) fifth, if such Distribution Date is a Quarterly
Distribution Date, to the Class A Noteholders, the
Noteholders' Interest Carryover applicable to the respective
Class of Class A Notes, pro rata based upon the portion
thereof allocable to each such Class;
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(vi) sixth, if such Distribution Date is a Quarterly
Distribution Date, to the Class B Noteholders, the
Noteholders' Interest Carryover applicable to the Class B
Notes;
(vii) seventh, if such Distribution Date is a
Quarterly Distribution Date, to the Certificateholders, the
Certificateholders' Interest Distribution Amount; and
(viii) eighth, if such Distribution Date is a
Quarterly Distribution Date, to the Certificateholders, the
Certificateholders' Principal Distribution Amount.
All distributions made to the Noteholders of a Class or the
Certificateholders on each Distribution Date shall be made on a pro rata basis
among the Noteholders of such Class and Certificateholders of record as of the
related Record Date based upon the Outstanding Amount of such Class (or, with
respect to payments of principal on such Class of Notes, the applicable
Principal Factor with respect to such Class) or percentage interest of
Certificates so owned.
SECTION 5.6. Reserve Account.
(a) On the Closing Date, the Transferor shall deposit the
Reserve Account Initial Deposit into the Reserve Account.
(b) If the amount on deposit in the Reserve Account on any
Quarterly Distribution Date (after giving effect to all deposits or
withdrawals therefrom on such Quarterly Distribution Date) is greater
than the then applicable Specified Reserve Account Balance, the
Administrator shall instruct the Indenture Trustee in writing to
withdraw such excess from the Reserve Account and
(i) to deposit into the Note Distribution Account, an
amount equal to the lesser of such excess and the amount
described in Section 5.5(e)(iii) for such Distribution Date
(to the extent not otherwise paid to the Note Distribution
Account on such Distribution Date),
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(ii) to deposit into the Note Distribution Account
the lesser of such excess (after giving effect to clause (i)
above) and any amounts required to be paid by the Transferor
or the Master Servicer pursuant to Sections 3.2 or 4.5 as a
result of breaches of representations, warranties and
agreements made in Sections 3.1, 4.1 through 4.4, or 6.1 to
the extent the Transferor or the Master Servicer, as the case
may be, has not made such payments within the required time
period, and
(iii) to distribute the remaining amount of such
excess (after giving effect to clauses (i) and (ii) above) to
the Transferor.
Amounts properly distributed pursuant to this paragraph (b) shall be
deemed released from the Trust Estate and the security interest therein
granted to the Indenture Trustee, and the Transferor shall in no event
thereafter be required to refund any such distributed amounts. The
Transferor shall have the right, at its option, to transfer and assign,
in whole or in part, its right to receive any amounts required to be
paid to it pursuant to clause (iii).
(c) Following the payment in full of the aggregate Outstanding
Amount of the Notes and of all other amounts owing or to be distributed
hereunder or under the Indenture or the Trust Agreement to Noteholders,
Certificateholders, the Master Servicer or the Administrator and the
termination of the Trust, any amount remaining on deposit in the
Reserve Account shall be distributed to the Transferor. The Transferor
shall in no event be required to refund any amounts properly
distributed pursuant to this Section 5.6(c).
(d) (i) If on any Quarterly Distribution Date (and with
respect to Section 5.5(c)(i), the 25th day of each month, or if such
day is not a Business Day the next succeeding Business Day), any
amounts to be distributed as calculated pursuant to Section
5.5(c)(i)-(v) exceed the amount on deposit in the Expense Account
available for such purposes, the Administrator shall instruct the
Indenture Trustee to withdraw from the Reserve Account the lesser of
such excess and the amount on deposit in the Reserve Account (after
giving effect to each withdrawal in the order specified in Section
5.5(c) (i)-(v)) and deposit such withdrawn amount in the Expense
Account for distribution as provided in Section 5.5.
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(ii) If the Noteholders' Distribution Amount for a
Distribution Date exceeds the amount in the Note Distribution Account
for such Distribution Date available for such purposes, the
Administrator shall instruct the Indenture Trustee to withdraw from the
Reserve Account an amount equal to the lesser of such excess, and the
amount on deposit in the Reserve Account (after giving effect to
paragraph (d)(i) above), and deposit such withdrawn amount into the
Note Distribution Account for distribution as provided in Section 5.5.
(iii) If the Certificateholders' Distribution Amount for a
Quarterly Distribution Date exceeds the amount for such Quarterly
Distribution Date available for such purposes, the Administrator shall
instruct the Indenture Trustee on such Quarterly Distribution Date to
withdraw from the Reserve Account an amount equal to the lesser of such
excess, and the amount on deposit in the Reserve Account (after giving
effect to paragraphs (d)(i) and (d) (ii) above), and to deposit such
withdrawn amount in the Certificate Distribution Account for
distribution as provided in Section 5.5.
SECTION 5.7. Statements to Certificateholders and Noteholders. On each
Distribution Determination Date immediately preceding a Distribution Date, the
Master Servicer or the Administrator shall provide to the Indenture Trustee with
a copy to the Rating Agencies (for the Indenture Trustee to forward on such
succeeding Distribution Date to each Noteholder of the applicable Class of
record and to the Eligible Lender Trustee for the Eligible Lender Trustee to
forward on such succeeding Distribution Date to each Certificateholder (if such
Certificateholder is not the Transferor) of record, a statement substantially in
the form of Exhibits A and B, respectively, setting forth at least the following
information with respect to such Distribution Date or the preceding Collection
Period or Collection Periods, to the extent applicable:
(i) the Principal Factor for each Class of Notes;
(ii) the amount of the distribution allocable to
principal on each Class of Notes;
(iii) the amount of the distribution allocable to
interest on each Class of Notes and on the Certificates,
together with the interest rates applicable with respect
thereto (indicating, whether such interest rates are based on
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the Formula Interest Rate or on the Net Loan Rate with respect
to each Class of the Class A Notes and on the Formula Interest
Rate or on the Net Loan Rate with respect to the Class B
Notes, and specifying what each such interest rate would have
been if it had been calculated using the alternate basis;
provided that no such calculation of the Net Loan Rate will be
required to be made unless the excess of One-Month LIBOR over
the 91-day T-▇▇▇▇ Rate is greater than 100 basis points as of
the preceding Rate Determination Date, or, in the case of the
initial Rate Determination Date, the Closing Date);
(iv) the amount of the distribution, if any,
allocable to any Noteholders' Interest Carryover together with
the outstanding amount, if any, thereof after giving effect to
any such distribution;
(v) the Pool Balance as of the close of business on
the last day of the preceding Collection Period;
(vi) the aggregate outstanding principal amount of
each Class of Notes as of such Distribution Date, after giving
effect to payments allocated to principal reported under
clause (ii) above;
(vii) the amount of the Servicing Fee, the
Administration Fee, the Indenture Trustee Fee, the Delaware
Trustee Fee and the Eligible Lender Trustee Fee to be
allocated on the upcoming Distribution Date;
(viii) the amount of the aggregate Realized Losses,
if any, for the preceding Collection Period and the aggregate
amount, if any, received (stated separately for interest and
principal) during such Collection Period relating to Financed
Student Loans for which a Realized Loss was previously
allocated;
(ix) the amount of the distribution attributable to
amounts in the Reserve Account, the amount of any other
withdrawals from the Reserve Account for such Distribution
Date, the balance of the Reserve Account on such Distribution
Date, after giving effect to changes therein on such
Distribution Date, the then applicable Parity Percentage and
the amount of the distribution, if any, attributable to Parity
Percentage Payments;
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(x) the aggregate amount, if any, paid for Financed
Student Loans purchased from the Trust during the preceding
Collection Period;
(xi) during the Subsequent Finance Period only, the
aggregate Issuer 2.3(b) Payments and Adjustment Payments,
stated separately, for the preceding Collection Period; and
(xii) the number and principal amount of Financed
Student Loans, as of the end of the preceding Collection
Period, that are (A) 31 to 60 days delinquent, (B) 61 to 90
days delinquent, (C) 91 to 120 days delinquent, (D) more than
120 days delinquent and (E) for which claims have been filed
with the appropriate Guarantor or the Department of HHS and
which are awaiting payment.
5.8. Expense Account. The Administrator shall instruct the Indenture
Trustee to deposit funds into, and withdraw funds from, the Expense Account as
set forth in Sections 5.5 and 5.6. Any funds remaining in the Expense Account
upon termination of the Trust shall be distributed to the Master Servicer as
additional servicing compensation.
5.9. Note Distribution Account and Certificate Distribution Account.
The Administrator shall instruct the Indenture Trustee and the Eligible Lender
Trustee to deposit funds into, and withdraw funds from, the Note Distribution
Account and the Certificate Distribution Account, as
applicable, as set forth in Sections 5.5, 5.6 and 5.10.
5.10. Monthly Advances. If the Master Servicer has applied for a
Guarantee Payment from a Guarantor, an Interest Subsidy Payment or a Special
Allowance Payment from the Department of Education or an Insurance Payment from
the Department of HHS, and the Master Servicer has not received the related
payment prior to the end of the Collection Period immediately preceding the
Distribution Date on which such amount would be required to be distributed as a
payment of interest, the Master Servicer may, no later than the Distribution
Determination Date relating to such Distribution Date, in its sole discretion,
deposit into the Monthly Advance Account an amount up to the amount of such
payments applied for but not received (such deposits by the Master Servicer are
referred to herein as "Monthly Advances"). Such Monthly Advances are recoverable
by the Master Servicer (i) first, from the Guarantee Payment, Interest Subsidy
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Payment, Special Allowance Payment or Insurance Payment, as the case may be, for
which such Monthly Advance was made and (ii) second, if such amounts have not
been received, from collections received generally on or with respect to the
Financed Student Loans. The Master Servicer shall have no obligation, legal or
otherwise, to make any Monthly Advance, and the making of or decision to make a
particular Monthly Advance shall not create any obligation on the Master
Servicer, legal or otherwise, to make any future Monthly Advances.
5.11. Certificate Interest. During the initial Interest Period, the
Certificates shall bear interest at the Certificate Initial Rate. Thereafter,
the Certificates shall bear interest during each applicable Interest Period at
the Certificate Rate.
During each Interest Period, interest at the Certificate Rate shall
accrue daily and shall be computed for the actual number of days elapsed on the
basis of a year consisting of 360 days.
The Master Servicer shall calculate One-Month LIBOR on each Rate
Determination Date and shall notify the Eligible Lender Trustee and the
Indenture Trustee of One-Month LIBOR. The determination by the Master Servicer
of One-Month LIBOR shall (in the absence of manifest error) be final and binding
upon all parties.
ARTICLE VI
The Transferor and the Master Servicer
SECTION 6.1. Representations of Transferor and Master Servicer. The
Transferor and Master Servicer make the following representations with respect
to the Transferor and the Master Servicer, respectively, on which the Issuer is
deemed to have relied in acquiring (through the Eligible Lender Trustee) the
Financed Student Loans being conveyed pursuant to this Agreement. The
representations speak as of the Closing Date, in the case of the Initial
Financed Student Loans, and as of the applicable Subsequent Finance Date, in the
case of the Subsequent Financed Student Loans transferred on such Subsequent
Finance Date, but shall survive the contribution, transfer and assignment of the
Financed Student Loans to the Eligible Lender Trustee on behalf of the Issuer
and the pledge thereof to the Indenture Trustee pursuant to the Indenture.
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(a) Organization and Good Standing. Each of the Transferor and
the Master Servicer is duly organized and validly existing as a
Virginia banking corporation with the power and authority to own its
properties and to conduct its business as such properties are currently
owned and such business is presently conducted, except for such power
and authority the absence of which would not have a material adverse
effect on the Master Servicer or Transferor, as the case may be, or
their respective ability to consummate the transactions contemplated by
the Basic Documents, and the Transferor had at all relevant times, and
has, the power, authority and legal right to originate, acquire and own
the Financed Student Loans and the Master Servicer had at all relevant
times, and has the power, authority and legal right to service the
Financed Student Loans.
(b) Due Qualification. The Master Servicer is duly qualified
to do business and has obtained all necessary licenses and approvals in
all jurisdictions in which the ownership and lease of property or the
conduct of its business (including the servicing of the Financed
Student Loans for which it acts as Primary Servicer as required by this
Agreement) shall require such qualifications except for such licenses
and approvals the absence of which would not have a material adverse
effect on the Master Servicer or its ability to consummate the
transactions contemplated by the Basic Documents.
(c) Power and Authority. Each of the Transferor and the Master
Servicer has the requisite corporate power and authority to execute and
deliver this Agreement and to carry out its terms; the Transferor has
requisite corporate power and authority to transfer and assign the
property to be contributed and assigned to and deposited with the
Issuer (or with the Eligible Lender Trustee on behalf of the Issuer)
and the Transferor has duly authorized such transfer and assignment to
the Issuer (or to the Eligible Lender Trustee on behalf of the Issuer)
by all necessary corporate action on Transferor's part; and the
execution, delivery and performance of this Agreement have been duly
authorized by the Transferor and the Master Servicer by all necessary
corporate action on their respective parts.
(d) Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of the Transferor and the Master Servicer,
enforceable against the Transferor and the Master Servicer in
accordance with its terms, subject to applicable bankruptcy,
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insolvency, reorganization, fraudulent conveyance and similar laws
relating to creditors' rights generally or the rights of creditors of
banks the deposit accounts of which are insured by the FDIC and subject
to general principles of equity.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
do not violate, 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 charter or by-laws of the Transferor or the Master
Servicer, or any material indenture, material agreement or other
material instrument to which the Transferor or the Master 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 material indenture, material agreement or other material
instrument (other than pursuant to the Basic Documents); nor violate
any material law or, to the knowledge of either the Transferor or the
Master Servicer, any material order, rule or regulation applicable to
it of any court or of any federal or State regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Transferor or the Master Servicer or its
properties.
(f) No Proceedings. To its best knowledge, there are no
proceedings or investigations pending or threatened against the
Transferor or the Master Servicer, before any court, regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over it or its properties: (i) asserting the invalidity of
this Agreement, the Indenture or any of the other Basic Documents, the
Notes or the Certificates, (ii) seeking to prevent the issuance of the
Notes or the Certificates or the consummation of any of the
transactions contemplated by this Agreement, the Indenture 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 either the Transferor or the Master Servicer of
its obligations under, or the validity or enforceability of, this
Agreement, the Indenture, any of the other Basic Documents, the Notes
or the Certificates or (iv) seeking to affect adversely the federal or
State income tax attributes of the Issuer, the Notes or the
Certificates.
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(g) All Consents. All authorizations, consents, 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 either
the Transferor or the Master Servicer in connection with the execution
and delivery by either the Transferor or the Master Servicer of this
Agreement and the performance by either the Transferor or the Master
Servicer of the transactions expressly contemplated by this Agreement,
have been duly obtained, effected or given and are in full force and
effect, except such as may be required by the blue sky laws of any
jurisdiction in connection with the sale and distribution of the Notes
and the Certificates for which no representation or warranty is being
given.
(h) No Amendment or Waiver. Except as provided in Section
4.14, no provision of a Financed Student Loan has been waived, altered
or modified in any respect, except pursuant to a document, instrument
or writing included in the Financed Student Loan File, and no such
amendment, waiver, alteration or modification causes such Financed
Student Loan not to conform in any material respect to the other
warranties contained in this Section or those of the Transferor
contained in Section 3.1.
(i) Location of Financed Student Loan Files. The Financed
Student Loan Files are kept in accordance with Section 3.4(b).
SECTION 6.2. Existence. Except as permitted by Section 6.5, during the
term of this Agreement, each of the Transferor and the Master Servicer will keep
in full force and effect its existence, rights and franchises as a Virginia
banking corporation under the laws of the jurisdiction of its organization.
SECTION 6.3. Liability and Indemnities.
(a) Each of the Transferor and the Master Servicer shall be
liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Transferor and the Master Servicer, as
the case may be, under this Agreement.
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(b) The Transferor shall indemnify, defend and hold harmless
the Issuer, the Eligible Lender Trustee and the Indenture Trustee and
their officers, directors, employees and agents from and against any
taxes that may at any time be asserted against any such Person with
respect to the transactions contemplated herein (except (i) taxes
arising out of fees paid to the Eligible Lender Trustee or the
Indenture Trustee, (ii) taxes arising out of the transfer of the
Financed Student Loans to the Eligible Lender Trustee, (iii) taxes
arising out of the issuance and sale of the Certificates and the Notes,
(iv) taxes arising out of the ownership of the Financed Student Loans
(including, without limitation, income taxes), and (v) taxes arising
out of distributions on the Certificates and the Notes) and costs and
expenses in defending against the same).
(c) The Transferor shall indemnify, defend and hold harmless
the Issuer, the Eligible Lender Trustee, the Indenture Trustee, and the
Noteholders and the officers, directors, employees and agents of the
Issuer, the Eligible Lender Trustee and the Indenture Trustee from and
against any and all Indemnifiable Expenses arising out of, or imposed
upon such Person through, (i) the Transferor's willful misfeasance, bad
faith or negligence in the performance of its duties under this
Agreement, or by reason of reckless disregard of its obligations and
duties under this Agreement and (ii) the Transferor's or the Issuer's
violation of federal or State securities laws in connection with the
offering and sale of the Notes and the Certificates; provided, however,
the Transferor shall not be liable for any such Indemnifiable Expenses
imposed upon such Person to the extent that they arise out of or result
from such Person's negligence, willful malfeasance or bad faith or a
breach of the representations and warranties of such Person in this
Agreement. Notwithstanding anything to the contrary contained in this
Agreement, in no event shall the Transferor be liable under any theory
of tort, contract, strict liability or other legal or equitable theory
for any lost profits or exemplary, punitive, special, incidental,
indirect or consequential damages, each of which is hereby excluded by
agreement of the parties regardless of whether or not the Transferor
has been advised of the possibility of such damages.
(d) The Transferor shall indemnify, defend and hold harmless
the Eligible Lender Trustee, the Delaware Trustee and the officers,
directors, employees and agents of the Eligible Lender Trustee and the
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Delaware Trustee from and against, Indemnifiable Expenses arising out
of, incurred in connection with or relating to the Trust Agreement, the
other Basic Documents, the Trust Estate, the acceptance or performance
of the trusts and duties set forth herein and in the Trust Agreement or
the action or the inaction of such Person hereunder and under the Trust
Agreement, except to the extent that such Indemnifiable Expenses: (i)
shall be due to the willful misfeasance, bad faith or negligence of
such Person, (ii) shall arise from any breach by such Person of its
covenants under any of the Basic Documents; or (iii) shall arise from
the breach by such Person of any of its representations or warranties
set forth in Section 7.3 of the Trust Agreement. Notwithstanding
anything to the contrary contained in this Agreement, in no event shall
the Transferor be liable under any theory of tort, contract, strict
liability or other legal or equitable theory for any lost profits or
exemplary, punitive, special, incidental, indirect or consequential
damages, each of which is hereby excluded by agreement of the parties
regardless of whether or not the Transferor has been advised of the
possibility of such damages.
(e) The Transferor shall pay any and all taxes levied or
assessed upon all or any part of the Trust Estate (other than those
taxes expressly excluded from the Transferor's responsibilities
pursuant to the parenthetical in paragraph (b) above).
(f) Pursuant to Section 6.7 of the Indenture, and subject to
the limitations therein, the Transferor shall pay reasonable
compensation to the Indenture Trustee and shall reimburse the Indenture
Trustee for all reasonable expenses, disbursements and advances, and
indemnify, defend and hold harmless the Indenture Trustee and its
officers, directors, employees and agents from and against all
Indemnifiable Expenses, to the extent and in the manner provided in the
Indenture. Notwithstanding anything to the contrary contained in this
Agreement, in no event shall the Transferor be liable under any theory
of tort, contract, strict liability or other legal or equitable theory
for any lost profits or exemplary, punitive, special, incidental,
indirect or consequential damages, each of which is hereby excluded by
agreement of the parties regardless of whether or not the Transferor
has been advised of the possibility of such damages.
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(g) The Master Servicer shall indemnify, defend and hold
harmless the Issuer, the Eligible Lender Trustee, the Delaware Trustee,
the Indenture Trustee, the Certificateholders, and the Noteholders and
the officers, directors, employees and agents of the Issuer, the
Eligible Lender Trustee, the Delaware Trustee and the Indenture Trustee
from and against any and all Indemnifiable Expenses arising out of, or
imposed upon such Person through, the Master Servicer's willful
misfeasance, bad faith or negligence in the performance of its 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 or bad faith on the
part of the Master Servicer is established by a court of law, by an
arbitrator or by way of settlement agreed to by the Master Servicer;
provided, however, the Master Servicer shall not be liable for any such
Indemnifiable Expenses imposed upon such Person to the extent that they
arise out of or result from such Person's negligence, willful
malfeasance or bad faith or a breach of the representations and
warranties of such Person in this Agreement. Notwithstanding the
foregoing, if the Master Servicer is rendered unable, in whole or in
part, by a force outside the control of the Master Servicer (including
acts of God, acts of war, severe weather, communications failures or
failures to receive electronic data or labor disputes or strikes,
fires, earthquakes and other disasters) to satisfy its obligations
under this Agreement, the Master 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 Master Servicer
remains unable to perform such obligation as a result of such event.
Notwithstanding anything to the contrary contained in this Agreement,
in no event shall the Master Servicer be liable under any theory of
tort, contract, strict liability or other legal or equitable theory for
any lost profits or exemplary, punitive, special, incidental, indirect
or consequential damages, each of which is hereby excluded by agreement
of the parties regardless of whether or not the Master Servicer has
been advised of the possibility of such damages.
(h) Indemnification under this Section shall survive the
resignation or removal of the Eligible Lender Trustee, the Delaware
Trustee or the Indenture Trustee and the termination of this Agreement
or the Indenture or the Trust Agreement, as applicable, and shall
include reasonable fees and expenses of counsel and expenses of
litigation. If the Transferor or the Master Servicer, as the case may
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be, shall have made any indemnity payments pursuant to this Section and
the Person to or on behalf of whom such payments are made thereafter
shall collect any of such amounts from others, such Person shall
promptly repay such amounts to the Transferor or the Master Servicer,
as the case may be without interest.
(i) Promptly after receipt by an indemnified party under this
Section 6.3 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 6.3, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than under Section
6.3., except to the extent the indemnifying party is materially
prejudiced by such failure. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified
party; provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnifying party or parties
shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on
behalf of the indemnified party or parties. After notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable
to such indemnified party under this Section 6.3 for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation.
In no event shall the indemnifying party be liable for fees and
expenses for more than one counsel separate from their own counsel for
all indemnified parties in connection with any one action or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances. An indemnifying party will not, without
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the prior written consent of the indemnified party, settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
The indemnified party will not, without the prior written
consent of the indemnifying party, settle, compromise or consent to the
entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in which indemnification may be sought
hereunder.
SECTION 6.4. [Reserved]
SECTION 6.5. Merger or Consolidation of, or Assumption of the
Obligations of, the Transferor, the Administrator or the Master Servicer. Any
Person (a) into which the Transferor, the Administrator or the Master Servicer,
as the case may be, may be merged or consolidated, (b) which may result from any
merger or consolidation to which the Transferor, the Administrator or the Master
Servicer, as the case may be, shall be a party or (c) which may succeed to the
properties and assets of the Transferor, the Administrator or the Master
Servicer, as the case may be, substantially as a whole, shall be the successor
to the Transferor, the Administrator or the Master Servicer, as the case may be,
without the execution or filing of any document or any further act by any of the
parties to this Agreement or the Administration Agreement; provided, however,
that each of the Transferor, the Administrator and the Master Servicer hereby
covenants that it will not consummate any of the foregoing transactions except
upon satisfaction of the following: (i) the surviving Transferor, Administrator
or Master Servicer, as the case may be, if other than Crestar Bank or a Crestar
Subsidiary or Crestar Financial Corporation, executes an agreement of assumption
to perform every obligation of the Transferor, the Administrator or the Master
Servicer, as the case may be, under this Agreement and the Administration
Agreement, (ii) immediately after giving effect to such transaction, no Master
Servicer Default (in the case of the Master Servicer) or no Administrator
Default (in the case of the Administrator) shall have occurred and be
continuing, (iii) the Transferor, the Administrator or the Master Servicer, as
the case may be, if other than Crestar Bank or a Crestar Subsidiary or Crestar
Financial Corporation shall have delivered to the Eligible Lender Trustee and
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the Indenture Trustee an Officer's 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, if any,
provided for in this Agreement relating to such transaction have been complied
with, (iv) such transaction will not result in a material adverse federal or
State tax consequence to the Issuer relating to its tax classification, or to
the Noteholders, considered as a whole, relating to a change in the
characterization of the Notes and (v) unless "Crestar Bank" is the name of the
surviving entity, the Transferor, the Administrator or the Master Servicer, as
the case may be, shall have delivered to the Eligible Lender Trustee and the
Indenture Trustee an Opinion of Counsel either (A) stating that, in the opinion
of such counsel, all financing statements and continuation statements and
amendments thereto have been executed and filed that are necessary fully to
preserve and protect the interest of the Eligible Lender Trustee and Indenture
Trustee, respectively, in the Financed Student Loans, or (B) stating that, in
the opinion of such counsel, no such action shall be necessary to preserve and
protect such interests. Nothing in this Agreement or any other Basic Document
shall be deemed to restrict or prohibit, and no consent of Noteholders or
Certificateholders, supplemental agreement, Officer's Certificate (except to the
extent provided in clause (3) below of this Section 6.5) or Opinion of Counsel
(except to the extent provided in clause (v) above of this Section 6.5) shall be
required in the case of, the merger of a Crestar Subsidiary with a Crestar
Subsidiary or Crestar Financial Corporation, the consolidation of a Crestar
Subsidiary and a Crestar Subsidiary or Crestar Financial Corporation, or the
sale or other disposition of all or substantially all of the assets of a Crestar
Subsidiary to another Crestar Subsidiary or Crestar Financial Corporation, if,
in any such case in which the surviving, resulting or acquiring entity is not
Crestar Financial Corporation, Crestar Financial Corporation would own, directly
or indirectly, at least eighty percent (80%) of the voting securities of the
Crestar Subsidiary surviving such merger, resulting from such consolidation or
acquiring such assets. For the purpose of this Section 6.5, "Crestar Subsidiary"
means each of (l) Crestar Bank, (2) any other banking subsidiaries of Crestar
Financial Corporation the consolidated assets of which constitute twenty percent
(20%) or more of the consolidated assets of Crestar Financial Corporation and
its consolidated subsidiaries, (3) any other banking subsidiary of Crestar
Financial Corporation designated as a Crestar Subsidiary pursuant to a Board
Resolution and set forth in an Officer's Certificate delivered to the Eligible
Lender Trustee and the Indenture Trustee, and (4) any subsidiary of Crestar
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Financial Corporation that owns, directly or indirectly any voting securities,
or options, warrants or rights to subscribe for or purchase voting securities of
any Crestar Subsidiary under clauses (l) through (3), and in the case of each of
clauses (1) through (4) their respected successors (whether by consolidation,
merger, conversion, transfer of substantially all their assets and business or
otherwise) so long as any successor is a banking subsidiary (in the case of
clauses (1) through (3)) or a subsidiary (in the case of clause (4)) of Crestar
Financial Corporation. References to Crestar Financial Corporation include any
name change. "Board Resolution" means a copy of a resolution certified by the
Secretary or any Assistant Secretary of Crestar Financial Corporation to have
been duly adopted by the Board of Directors of Crestar Financial Corporation, or
such committee of the Board of Directors or officers of Crestar Financial
Corporation to which authority to act on behalf of the Board of Directors has
been delegated, and to be in full force and effect on the date of such
certification, and delivered to the Eligible Lender Trustee and the Indenture
Trustee.
SECTION 6.6. Limitation on Liability of Transferor, Master Servicer
and Others.
(a) The Transferor, the Master Servicer and any director or
officer or employee or agent of either may rely in good faith on the
advice of counsel or on any document of any kind, prima facie properly
executed and submitted by any Person respecting any matters arising
hereunder.
(b) Neither the Transferor, the Master Servicer nor any of its
directors, officers, employees or agents shall be under any liability
to the Issuer, the Noteholders, the Certificateholders, the Indenture
Trustee or the Eligible Lender Trustee except as provided under this
Agreement or the Administration 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 Transferor or Master 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
their respective duties under this Agreement or the Administration
Agreement.
Except as provided in this Agreement, the Transferor and the
Master Servicer shall not be under any obligation to appear in,
prosecute or defend any legal action that shall not be incidental to
its duties in accordance with this Agreement, and that in its opinion
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may involve it in any expense or liability; provided, however, that the
Transferor or the Master 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 Certificateholders under this Agreement or the Administration
Agreement and the Noteholders under the Indenture.
SECTION 6.7. Transferor May Own Certificate or Notes. The Transferor
and any Affiliate thereof may in its individual or any other capacity become the
owner or pledgee of Certificates or Notes with the same rights as it would have
if it were not the Transferor or an Affiliate thereof, except as expressly
provided herein or in any other Basic Document.
SECTION 6.8. Master Servicer Not to Resign. Subject to the provisions
of Section 6.5, Crestar Bank shall not resign from the obligations and duties
imposed on it as Master Servicer under this Agreement except upon (i)
determination that the performance of its duties under this Agreement shall no
longer be permissible under applicable law or shall violate any final order of a
court or administrative agency with jurisdiction over it or its properties, or
(ii) satisfaction of a Rating Agency Condition with respect to such resignation.
Notice of any such determination permitting resignation shall be communicated to
the Eligible Lender Trustee and the Indenture Trustee 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 and the Indenture Trustee concurrently
with or promptly after such notice. No such resignation shall become effective
until the Indenture Trustee or a successor Master Servicer shall have assumed
the responsibilities and obligations of Crestar Bank in accordance with Section
8.2.
ARTICLE VII
The Administrator
SECTION 7.1. Representations of the Administrator. The Administrator
makes the following representations on which the Issuer is deemed to have relied
in acquiring (through the Eligible Lender Trustee) the Financed Student Loans
being conveyed pursuant to this Agreement. The representations speak as of the
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Closing Date, in the case of the Initial Financed Student Loans, and as of the
applicable Subsequent Finance Date, in the case of the Subsequent Financed
Student Loans being transferred on such Subsequent Finance Date, but shall
survive the contribution, transfer and assignment of the Financed Student Loans
to the Eligible Lender Trustee on behalf of the Issuer and the pledge thereof to
the Indenture Trustee pursuant to the Indenture.
(a) Organization and Good Standing. The Administrator is duly
organized and validly existing as a Virginia banking corporation with
the power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is
presently conducted except for such power and authority the absence of
which would not have a material adverse effect on the Administrator or
its ability to consummate the transactions contemplated by the Basic
Documents, and had at all relevant times, and has, the power, authority
and legal right, to administer the Financed Student Loans.
(b) Power and Authority of the Administrator. The
Administrator has the requisite corporate power and authority to
execute and deliver this Agreement and the Administration Agreement and
to carry out their respective terms; and the execution, delivery and
performance of this Agreement and the Administration Agreement have
been duly authorized by the Administrator by all necessary corporate
action on its part.
(c) Binding Obligation. This Agreement and the Administration
Agreement each constitutes a legal, valid and binding obligation of the
Administrator, enforceable against the Administrator in accordance with
its terms, subject to applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance and similar laws relating to
creditors' rights generally or the rights of creditors of banks the
deposit accounts of which are insured by the FDIC or and subject to
general principles of equity.
(d) No Violation. The consummation of the transactions
contemplated by this Agreement and the Administration Agreement and the
fulfillment of the terms hereof or thereof do not violate, result in
any breach of any of the terms and provisions of, nor constitute (with
or without notice of lapse of time or both) a default under, the
charter or by-laws of the Administrator, or any material indenture,
material agreement or other material instrument to which the
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Administrator is a party or by which it shall be bound; nor result in
the creation or imposition of any Lien upon any of its properties
pursuant to the terms of any such material indenture, material
agreement or other material instrument (other than pursuant to the
Basic Documents); nor violate any material law or, to the knowledge of
the Administrator, any material order, rule or regulation applicable to
it of any court or of any federal or State regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Administrator or its properties.
(e) No Proceedings. To its best knowledge, there are no
proceedings or investigations pending or threatened against the
Administrator, before any court, regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over it or
its properties: (i) asserting the invalidity of this Agreement or the
Administration Agreement, (ii) seeking to prevent the consummation of
any of the transactions contemplated by this Agreement or the
Administration Agreement or (iii) seeking any determination or ruling
that could reasonably be expected to have a material and adverse effect
on the performance by the Administrator, of its obligations under, or
the validity or enforceability of, this Agreement or the Administration
Agreement.
(f) All Consents. All authorizations, consents, 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
Administrator in its capacity as the Administrator in connection with
the execution and delivery by the Administrator of this Agreement or
the Administration Agreement and the performance by the Administrator
in its capacity as the Administrator of the transactions contemplated
by this Agreement or the Administration Agreement, have been duly
obtained, effected or given and are in full force and effect.
SECTION 7.2. Liability and Indemnities.
(a) The Administrator shall be liable in accordance herewith
only to the extent of the obligations specifically undertaken by the
Administrator under this Agreement or the Administration Agreement. The
Administrator and any of its directors, officers, employees or agents
may rely in good faith on the advice of counsel or on any document of
any kind, prima facie properly executed and submitted by any Person.
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Except as provided in this Agreement or the Administration
Agreement, the Administrator shall not be under any obligation to
appear in, prosecute or defend any legal action that shall not be
incidental to its duties to administer the Financed Student Loans and
the Trust in accordance with this Agreement and the Administration
Agreement, and that in its opinion may involve it in any expense or
liability; provided, however, that the Administrator 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 Certificateholders under this Agreement and the
Noteholders under the Indenture.
(b) The Administrator shall indemnify, defend and hold
harmless from its funds, the Issuer, the Eligible Lender Trustee, the
Delaware Trustee, the Indenture Trustee, the Master Servicer, the
Noteholders and the Certificateholders and the officers, directors,
employees and agents of the Issuer, the Eligible Lender Trustee, the
Delaware Trustee, the Indenture Trustee, the Noteholders and the
Certificateholders from and against any and all Indemnifiable Expenses
arising out of, or imposed upon such Person through, the
Administrator's willful misfeasance, bad faith or negligence in the
performance of its duties under this Agreement or the Administration
Agreement, or by reason of reckless disregard of its obligations and
duties under this Agreement or the Administration 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 or bad faith on the part of the Administrator is
established by a court of law, by an arbitrator or by way of settlement
agreed to by the Administrator. Notwithstanding the foregoing, if the
Administrator is rendered unable, in whole or in part, by a force
outside the control of the Administrator (including acts of God, acts
of war, severe weather, communications failures or failures to receive
electronic data or labor disputes or strikes, fires, earthquakes and
other disasters) to satisfy its obligations under this Agreement, the
Administrator 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 Administrator remains unable to perform such
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obligation as a result of such event; provided, however, the
Administrator shall not be liable for any such Indemnifiable Expenses
imposed upon such Person to the extent that they arise out of or result
from such Person' s negligence, willful malfeasance or bad faith or a
breach of the representations and warranties of such Person in this
Agreement or the Administration Agreement. Notwithstanding anything to
the contrary contained in this Agreement or the Administration
Agreement, in no event shall the Administrator be liable under any
theory of tort, contract, strict liability or other legal or equitable
theory for any lost profits or exemplary, punitive, special,
incidental, indirect or consequential damages, each of which is hereby
excluded by agreement of the parties regardless of whether or not the
Administrator has been advised of the possibility of such damages.
(c) Indemnification under this Section shall survive the
resignation or removal of the Eligible Lender Trustee, the Delaware
Trustee or the Indenture Trustee and the termination of this Agreement
or the Indenture or the Trust Agreement, as applicable, and shall
include reasonable fees and expenses of counsel and expenses of
litigation. If the Administrator shall have made any indemnity payments
pursuant to this Section and the Person to or on behalf of whom such
payments are made thereafter shall collect any of such amounts from
others, such Person shall promptly repay such amounts to the
Administrator without interest.
(d) Promptly after receipt by an indemnified party under this
Section 7.2 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 7.2, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than under Section
7.2., except to the extent the indemnifying party is materially
prejudiced by such failure. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified
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party; provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnifying party or parties
shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on
behalf of the indemnified party or parties. After notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable
to such indemnified party under this Section 7.2 for any legal or other
expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation.
In no event shall the indemnifying party be liable for fees and
expenses for more than one counsel separate from their own counsel for
all indemnified parties in connection with any one action or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances. An indemnifying party will not, without
the prior written consent of the indemnified party, settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or
action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
The indemnified party may not, without the prior written
consent of the indemnifying party, settle, compromise or consent to the
entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in which indemnification may be sought
hereunder.
SECTION 7.3. Administrator Not to Resign. Subject to the provisions of
Section 6.5, Crestar Bank shall not resign from the obligations and duties
imposed on it as Administrator under this Agreement except upon (i)
determination that the performance of its duties under this Agreement shall no
longer be permissible under applicable law or shall violate any final order of a
court or administrative agency with jurisdiction over it or its properties, or
(ii) satisfaction of a Rating Agency Condition with respect to such resignation.
Notice of any such determination permitting resignation shall be communicated to
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the Eligible Lender Trustee and the Indenture Trustee 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 and the Indenture Trustee concurrently
with or promptly after such notice. No such resignation shall become effective
until the Indenture Trustee or a successor Administrator shall have assumed the
responsibilities and obligations of Crestar Bank in accordance with Section 8.2.
SECTION 7.4. Additional Services. Notwithstanding anything in the
Administration Agreement to the contrary, the Administrator is authorized and
directed to prepare, execute on behalf of the Trust in its capacity as
Administrator, and file any and all reports required to be filed under the
Exchange Act by the Trust as a result of the registration of the Notes under the
Securities Act. The Trust hereby ratifies and confirms as actions of the Trust
the execution by the Administrator on behalf of the Trust of the Registration
Statement on Form S-3, Registration No. 333-35825, and each amendment thereto,
and any related correspondence with Securities and Exchange Commission, the
Current Report on Form 8-K dated as of December 11, 1997, and the Letter of
Representations to The Depository Trust Company with respect to the Notes.
ARTICLE VIII
Default
SECTION 8.1. Master Servicer Default; Administrator Default.
(a) If any one of the following events (a "Master Servicer Default")
shall occur and be continuing:
(1) any failure by the Master Servicer to deliver to
the Indenture Trustee for deposit in any of the Trust Accounts
at the time required for such deposit any collections,
Guarantee Payments, Insurance Payments or other amounts
received by the Master Servicer with respect to the Financed
Student Loans, which failure continues unremedied for three
Business Days after written notice of such failure is received
by the Master Servicer from the Eligible Lender Trustee, the
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Indenture Trustee or the Administrator or after discovery of
such failure by an officer of the Master Servicer; or
(2) any failure by the Master Servicer duly to
observe or to perform in any material respect any other
covenants or agreements of the Master Servicer set forth in
this Agreement or any other Basic Document, which failure
shall (i) materially and adversely affect the rights of
Noteholders and Certificateholders and (ii) continue
unremedied for a period of 60 days after the date on which
written notice of such failure, requiring the same to be
remedied, shall have been given (A) to the Master Servicer by
the Indenture Trustee, the Eligible Lender Trustee, or the
Administrator or (B) to the Master Servicer and to the
Indenture Trustee and the Eligible Lender Trustee by the
holders of Directing Notes, representing not less than 25% of
the Outstanding Amount of the Directing Notes or
(3) an Insolvency Event occurs with respect to the
Master Servicer; or
(4) any limitation, suspension or termination by the
Department of Education or the Department of HHS of the Master
Servicer's eligibility to service Student Loans which
materially and adversely affects the Master Servicer's ability
to service the Financed Student Loans;
then, and in each and every case, so long as the Master Servicer
Default shall not have been remedied, the Indenture Trustee or the
holders of Directing Notes evidencing not less than 25% of the
Outstanding Amount of the Directing Notes, by notice then given in
writing to the Master 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 6.3 hereof) of the Master Servicer under this Agreement. On or
after the receipt by the Master Servicer of such written notice, all
authority and power of the Master Servicer under this Agreement,
whether with respect to the Notes, the Certificates or the Financed
Student Loans or otherwise, shall, without further action, pass to and
be vested in the Indenture Trustee or such successor Master Servicer as
may be appointed under Section 8.2, and, without limitation, the
Indenture Trustee and the Eligible Lender Trustee are hereby authorized
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and empowered to execute and deliver, for the benefit of the
predecessor Master 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 Master Servicer shall cooperate with the successor Master
Servicer, the Indenture Trustee and the Eligible Lender Trustee in
effecting the termination of the responsibilities and rights of the
predecessor Master Servicer under this Agreement, including the
transfer to the successor Master Servicer for administration by it of
all cash amounts that shall at the time be held by the predecessor
Master 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 Financed Student Loan Files from a current Master Servicer to the
successor Master Servicer and amending this Agreement and any other
Basic Documents to reflect such succession as Master Servicer pursuant
to this Section shall be paid by the predecessor Master Servicer upon
presentation of reasonable documentation of such costs and expenses.
Upon receipt of notice of the occurrence of a Master Servicer Default,
the Eligible Lender Trustee shall give notice thereof to the Rating
Agencies.
Notwithstanding the termination of the Master Servicer and the
engagement of a successor Master Servicer, each Servicer shall continue
to serve in its capacity as Servicer or subservicer, unless it is in
breach of the related Servicing or Subservicing Agreement.
(b) Administrator Default. If any one of the following
events (an "Administrator Default") shall occur and be continuing:
(1) any failure by the Administrator to direct the
Indenture Trustee or the Eligible Lender Trustee, as
applicable, to make any required distributions from any of the
Trust Accounts, which failure continues unremedied for three
Business Days after written notice of such failure is received
by the Administrator from the Indenture Trustee or the
Eligible Lender Trustee or after discovery of such failure by
an officer of the Administrator; or
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(2) any failure by the Administrator duly to observe
or to perform in any material respect any other covenants or
agreements of the Administrator set forth in this Agreement,
the Administration Agreement or any other Basic Document,
which failure shall (i) materially and adversely affect the
rights of Noteholders and (ii) continue unremedied for a
period of 60 days after the date on which written notice of
such failure, requiring the same to be remedied, shall have
been given (A) to the Administrator by the Indenture Trustee
or the Eligible Lender Trustee or (B) to the Administrator and
to the Indenture Trustee and the Eligible Lender Trustee by
the holders of Directing Notes representing not less than 25%
of the Outstanding Amount of the Directing Notes;
(3) an Insolvency Event occurs with respect to the
Administrator;
then, and in each and every case, so long as the Administrator Default shall not
have been remedied, the Indenture Trustee or the holders of Directing Notes
evidencing not less than 25% of the Outstanding Amount of the Directing Notes,
by notice then given in writing to the Administrator (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 Sections 6.3 and 7.2 hereof) of the Administrator under this Agreement and
the Administration Agreement. On or after the receipt by the Administrator of
such written notice, all authority and power of the Administrator under this
Agreement and the Administration Agreement, whether with respect to the Notes,
the Certificates or the Financed Student Loans or otherwise, shall, without
further action, pass to and be vested in the Indenture Trustee or such successor
Administrator as may be appointed under Section 8.2; 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
Administrator, 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. The
predecessor Administrator shall cooperate with the successor Administrator, the
Indenture Trustee and the Eligible Lender Trustee in effecting the termination
of the responsibilities and rights of the predecessor Administrator under this
Agreement and the Administration Agreement. All reasonable costs and expenses
(including attorneys' fees) incurred in connection with amending this Agreement
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and the Administration Agreement to reflect such succession as Administrator
pursuant to this Section shall be paid by the predecessor Administrator upon
presentation of reasonable documentation of such costs and expenses. Upon
receipt of notice of the occurrence of an Administrator Default, the Eligible
Lender Trustee shall give notice thereof to the Rating Agencies.
SECTION 8.2. Appointment of Successor.
(a) Upon receipt by the Master Servicer or the Administrator,
as the case may be, of notice of termination pursuant to Section 8.1,
or the resignation by the Master Servicer or the Administrator, as the
case may be, in accordance with the terms of this Agreement, the
predecessor Master Servicer or the Administrator, as the case may be,
shall continue to perform its functions as Master Servicer or
Administrator, as the case may be, under this Agreement and the
Administration Agreement, as the case may be, 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 (x) 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 (y) the date upon which the predecessor Master
Servicer or Administrator, as the case may be, shall become unable to
act as Master Servicer or Administrator, as the case may be, as
specified in the notice of resignation and accompanying Opinion of
Counsel. In the event of the termination hereunder of the Master
Servicer or the Administrator, as the case may be, the Issuer shall
appoint a successor Master Servicer or Administrator, as the case may
be, acceptable to the Indenture Trustee, and the successor Master
Servicer or Administrator, as the case may be, shall accept its
appointment by a written assumption in form acceptable to the Indenture
Trustee. If a successor Master Servicer or Administrator, as the case
may be, has not been appointed at the time when the predecessor Master
Servicer or Administrator, as the case may be, has ceased to act as
Master Servicer or Administrator, as the case may be, in accordance
with this Section, the Indenture Trustee without further action shall
automatically be appointed the successor Master Servicer or
Administrator, as the case may be, and the Indenture Trustee shall be
entitled to the Master Servicing Fee or the Administration Fee, as the
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case may be in accordance with the provisions of the Basic Documents.
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 whose
regular business shall include the servicing of student loans, as the
successor to the Master Servicer or Administrator, as the case may be,
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 Master Servicer or
Administrator, as the case may be (including the Indenture Trustee
acting as successor Master Servicer or Administrator as the case may
be), shall be the successor in all respects to the predecessor Master
Servicer or Administrator, as the case may be, and shall be subject to
all the responsibilities, duties and liabilities arising thereafter
relating thereto placed on the predecessor Master Servicer or
Administrator, as the case may be, and shall be entitled to an amount
agreed to by such successor Master Servicer or Administrator as the
case may be, in accordance with the provisions of the Basic Documents
(which shall not exceed the Master Servicing Fee or Administration Fee,
as the case may be, unless such compensation arrangements will not
result in a downgrading of the Notes by any Rating Agency) and all the
rights granted to the predecessor Master Servicer or Administrator, as
the case may be, by the terms and provisions of this Agreement.
(c) Neither the Master Servicer nor the Administrator may
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 Master
Servicer or Administrator, as the case may be, pursuant hereto shall be
entitled to resign to the extent a qualified successor Master Servicer
or Administrator, as the case may be, has been appointed and has
assumed all the obligations of the Master Servicer or Administrator, as
the case may be, in accordance with the terms of this Agreement and the
other Basic Documents.
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(d) Any successor Master Servicer shall assume all the
obligations and responsibilities of the Master Servicer under each
Subservicing Agreement with a Servicer and shall only be able to modify
or terminate such Subservicing Agreements pursuant to the provisions
thereof.
SECTION 8.3. Notification to Noteholders and Certificateholders. Upon
any termination of, or appointment of a successor to, the Master Servicer or
Administrator, as the case may be, pursuant to this Article VIII, the Eligible
Lender Trustee shall give prompt written notice thereof to Certificateholders
and the Indenture Trustee shall give prompt written notice thereof to
Noteholders 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 8.4. Waiver of Past Defaults. The holders of Directing Notes
evidencing not less than a majority of the Outstanding Amount of the Directing
Notes may, on behalf of all Noteholders and Certificateholders, waive in writing
any default by the Master Servicer or Administrator, as the case may be, in the
performance of its obligations hereunder and any consequences thereof, except a
default in making any required payments from any of the Trust Accounts (or
giving instructions regarding the same) in accordance with this Agreement. Upon
any such waiver of a past default, such default shall cease to exist, and any
Master Servicer Default or Administrator Default, as the case may be, 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.
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ARTICLE IX
Termination
SECTION 9.1. Termination.
(a) Optional Purchase of All Financed Student Loans. As of the
last day of any Collection Period immediately preceding a Quarterly
Distribution Date as of which the then outstanding Pool Balance is 10%
or less of the Initial Pool Balance, the Transferor shall have the
option to purchase the Indenture Trust Estate, other than the Trust
Accounts. To exercise such option, the Transferor shall deposit
pursuant to Section 5.4 in the Collection Account an amount equal to
the aggregate Purchase Amount for the Financed Student Loans and the
related rights with respect thereto, plus the appraised value of any
such other property held by the Trust, such value to be determined by
an appraiser mutually agreed upon by the Transferor, the Eligible
Lender Trustee and the Indenture Trustee, and shall succeed to all
interests in and to the Trust; provided, however, that the Transferor
may not effect such purchase if the aggregate Purchase Amount to be so
deposited in the Collection Account does not equal or exceed an amount
equal to the sum of (x) the unpaid principal balance of the Notes plus
accrued and unpaid interest thereon at the related Class Interest Rate
to the last day of the Collection Period during which such purchase
occurs and (y) the unpaid Transaction Fees, if any.
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(b) Auction of Financed Student Loans. Any Financed Student
Loans remaining in the Trust as of February 28, 2007 will be offered
for sale by the Indenture Trustee on or prior to the April 2007
Distribution Date if the then outstanding Pool Balance is 10% or less
of the Initial Pool Balance. The Transferor, its Affiliates and
unrelated third parties may offer bids to purchase such Financed
Student Loans on or prior to such Distribution Date. If PHEAA is a
Servicer of the Financed Student Loans at such time, the Indenture
Trustee shall notify PHEAA of the auction and invite PHEAA to submit a
bid. If at least two bids are received, the Indenture Trustee will
accept the highest bid equal to or in excess of the greater of (x) the
aggregate Purchase Amounts of such Financed Student Loans as of the end
of the Collection Period immediately preceding such Distribution Date
or (y) an amount that would be sufficient to (i) reduce the outstanding
principal amount of the Notes on such Distribution Date to zero and
(ii) pay to the Noteholders the Noteholders' Interest Distribution
Amount payable on such Distribution Date (the "Minimum Purchase
Price"). If at least two bids are not received or the highest bid is
not equal to or in excess of the Minimum Purchase Price, the Indenture
Trustee will not consummate such sale. The proceeds of any such sale
will be used to redeem any outstanding Notes on such Distribution Date.
The proceeds of any sale will be applied in the order and priority set
forth in 5.4(b) of the Indenture. If the sale is not consummated in
accordance with the foregoing, the Indenture Trustee may, but shall not
be under any obligation to, solicit bids to purchase the Financed
Student Loans on future Distribution Dates upon terms similar to those
described above.
(c) Insolvency of Transferor . Upon any sale of the assets of
the Trust pursuant to Section 9.2 of the Trust Agreement, the Master
Servicer shall instruct the Indenture Trustee to deposit the net
proceeds from such sale after all payments and reserves therefrom
(including the expenses of such sale) have been made (the "Insolvency
Proceeds") in the Collection Account. On the applicable Distribution
Date, or, if such proceeds are not so deposited on a Distribution Date,
on the first Distribution Date following the date on which the
Insolvency Proceeds are deposited in the Collection Account, the Master
Servicer shall instruct the Indenture Trustee to make the following
distributions (after the application on such Distribution Date of the
amount of Available Funds and amounts on deposit in the Reserve Account
pursuant to Sections 5.5 (other than pursuant to Section 5.5(a) (ii))
and 5.6) from the Insolvency Proceeds and any funds remaining on
deposit in the Reserve Account (including the proceeds of any sale of
investments therein as described in the following sentence):
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(i) to the Department of Education, the Indenture
Trustee, the Delaware Trustee and the Eligible Lender Trustee,
any unpaid Consolidation Loan Fees, Indenture Trustee Fees,
Delaware Trustee Fees and Eligible Lender Trustee Fees,
respectively, and other amounts owed the Indenture Trustee,
the Delaware Trustee or the Eligible Lender Trustee hereunder
or under any other Basic Document and not otherwise paid on
such Distribution Date;
(ii) to each Class of Class A Noteholders, pro rata
based upon the portion thereof allocable to each such Class,
any portion of the Noteholders' Interest Distribution Amount
applicable to the Class A Noteholders not otherwise
distributed to such Class A Noteholders on such Distribution
Date;
(iii) to each Class of Class A Noteholders, pro rata
based upon the Outstanding Amount of such Class (after giving
effect to the reduction in the Outstanding Amount of such
Class resulting from the distributions to such Class on such
Distribution Date and on prior Distribution Dates) until the
Outstanding Amount of each Class of Class A Notes has been
reduced to zero;
(iv) to the Class B Noteholders, any portion of the
Noteholders' Interest Distribution Amount applicable to the
Class B Noteholders not otherwise distributed to the Class B
Noteholders on such Distribution Date;
(v) after the Outstanding Amount of the Class A Notes
has been reduced to zero, to the Class B Noteholders, the
Outstanding Amount of the Class B Notes (after giving effect
to the reduction in the Outstanding Amount of the Notes
resulting from the distributions to Noteholders on such
Distribution Date and on prior Distribution Dates);
(vi) to the Master Servicer, any unpaid Servicing Fee
and other amounts owed to the Master Servicer hereunder or
under any other Basic Document and not otherwise paid on such
Distribution Date;
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(vii) to the Class A-1 Noteholders and the Class A-2
Noteholders, any portion of the Noteholders' Interest
Carryover applicable to any such Class, pro rata based upon
the portion thereof allocable to each such Class not otherwise
distributed to the Class A Noteholders on such Distribution
Date;
(viii) to the Class B Noteholders, any portion of the
Noteholders' Interest Carryover applicable to the Class B
Noteholders not otherwise distributed to the Class B
Noteholders on such Distribution Date;
(ix) to the Certificateholders, any portion of the
Certificateholders' Interest Distribution amount not otherwise
distributed to the Certificateholders on such Distribution
Date; and
(x) to the Certificateholders, the Certificate
Balance (after giving effect to the reduction in the
Certificate Balance to result from the distributions to
Certificateholders on such Distribution Date).
Any investments on deposit in the Reserve Account which will not mature
on or before the Distribution Date when needed shall be sold by the
Indenture Trustee at such time as will result in the Indenture Trustee
receiving the proceeds from such sale not later than the Business Day
preceding such Distribution Date. Any Insolvency Proceeds remaining
after the deposits described above shall be paid to the Transferor.
(d) Notice. Notice of any termination of the Trust shall be
given by the Administrator to the Master Servicer, the Eligible Lender
Trustee, the Indenture Trustee and the Rating Agencies as soon as
practicable after the Administrator has received notice thereof.
(e) Succession. Following the satisfaction and discharge of
the Indenture and the payment in full of the principal of and interest
on the Notes, the Certificateholders will succeed to the rights of the
Noteholders hereunder other than Section 5.6(b) and the Eligible Lender
Trustee will succeed to the rights of, and assume the obligations of,
the Indenture Trustee pursuant to this Agreement and any other Basic
Documents.
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ARTICLE X
[Reserved]
ARTICLE XI
Miscellaneous
SECTION 11.1. Amendment.
(a) This Agreement may be amended by the Transferor, the
Master Servicer and the Eligible Lender Trustee, with the prior consent
of the Indenture Trustee (which consent shall not be unreasonably
withheld) 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 or the Certificateholders; 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.
(b) This Agreement may also be amended from time to time by
the Transferor, the Master Servicer and the Eligible Lender Trustee,
with the prior consent of the Indenture Trustee and the consent of the
holders of Directing Notes evidencing not less than a majority of the
Outstanding Amount of the Directing Notes, 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 or the Certificateholders; provided, however, that
no such amendment shall (i) 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 the
Certificateholders or (ii) reduce the aforesaid percentage of the
Outstanding Amount of the Notes and the Certificate Balance, the
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Noteholders and the Certificateholders of which are required to consent
to any such amendment, without the consent of all outstanding
Noteholders and Certificateholders affected thereby.
(c) Promptly after the execution of any amendment pursuant to
clause (ii) above, the Eligible Lender Trustee shall furnish written
notification of the substance of such amendment or consent to each
Certificateholder and the Indenture Trustee.
(d) It shall not be necessary for the consent of
Certificateholders or 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.
(e) Prior to the execution of any amendment to this Agreement,
the Eligible Lender Trustee and the Indenture Trustee 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 11.2(i)(l).
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.
Notwithstanding anything to the contrary contained in this Section
11.1, neither this Agreement nor the Indenture may be amended unless such
amendment satisfies the Rating Agency Condition.
SECTION 11.2. Protection of Interests in Trust.
(a) The Transferor shall execute and file such financing
statements and cause to be executed and filed such continuation
statements, all in such manner and in such places as may be required by
law fully to preserve, maintain, and protect the interest of the
Issuer, the Eligible Lender Trustee and the Indenture Trustee in the
Financed Student Loans and in the proceeds thereof. The Transferor
shall deliver (or cause to be delivered) to the Eligible Lender Trustee
and the Indenture Trustee file-stamped copies of, or filing receipts
for, any document filed as provided above, as soon as available
following such filing.
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(b) Neither the Transferor nor the Master Servicer shall
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 paragraph (a) above seriously
misleading within the meaning of ss. 9-402(7) of the UCC, unless it
shall have given the Eligible Lender Trustee and the Indenture Trustee
at least five days' prior written notice thereof and shall have
promptly filed appropriate amendments to all previously filed financing
statements or continuation statements.
(c) Each of the Transferor and the Master Servicer shall have
an obligation to give the Eligible Lender Trustee and the Indenture
Trustee at least 30 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 Master 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.
(d) The Master Servicer shall maintain, or cause the Servicers
to maintain, accounts and records as to each Financed Student Loan for
which it is the Primary Servicer (or provide access to such accounts
and records being serviced by a Servicer) 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.
(e) The Master Servicer shall cause each Subcustodian to
maintain its computer systems so that, from and after the time of
transfer under this Agreement of the Financed Student Loans, each
Subcustodian's master computer records (including any backup archives)
that refer to a Financed Student Loan shall indicate clearly the
interest of the Issuer and the Indenture Trustee in such Financed
Student Loan and that such Financed Student Loan has been assigned by
the Transferor to the Issuer and has been pledged to the Indenture
Trustee. Indication of the Issuer's and the Indenture Trustee's
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interest in a Financed Student Loan shall be deleted from or modified
on the applicable Subcustodian's computer systems when, and only when,
the related Financed Student Loan shall have been paid in full or
repurchased.
(f) If at any time the Transferor shall propose to contribute,
grant a security interest in, or otherwise transfer any interest in
Financed Student Loans to any prospective purchaser, lender or other
transferee, the Master Servicer shall give notice to such prospective
purchaser, lender or other transferee that such Financed Student Loan
has been assigned to the Issuer and has been pledged to the Indenture
Trustee.
(g) Upon reasonable notice, the Master Servicer shall permit
the Indenture Trustee and its agents once each calendar year (unless
there is a Servicer Default, in which case at any time) during normal
business hours to inspect, audit and make copies of and abstracts from
the Master Servicer's records regarding any Financed Student Loan.
(h) 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 Master Servicer shall furnish
to the Eligible Lender Trustee or to the Indenture Trustee, within
twenty Business Days following the receipt by the Master Servicer and
the Servicer of such a request, a list of all Financed Student Loans
(by borrower social security number and date of issuance) then held as
part of the Trust, and a comparison of such list to the list of the
Initial Financed Student Loans set forth in Schedule A 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.
(i) The Transferor shall deliver to the Eligible Lender
Trustee and the Indenture Trustee:
(l) promptly after the execution and delivery of this
Agreement and of each amendment thereto an Opinion of Counsel
either (A) stating that, in the opinion of such counsel, all
financing statements and continuation statements have been
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executed and filed that are necessary to preserve and perfect
the interest of the Eligible Lender Trustee and the Indenture
Trustee in the Financed Student Loans, and reciting the
details of such filings or referring to prior Opinions of
Counsel in which such details are given, or (B) stating that,
in the opinion of such counsel, no such action shall be
necessary to preserve and maintain such interest; and
(2) within 120 days after the beginning of each
calendar year beginning with the first calendar year beginning
more than three months after the Closing Date, an Opinion of
Counsel, dated as of a date during such 120-day period, either
(A) stating that, in the opinion of such counsel, all
financing statements and continuation statements have been
executed and filed that are necessary to preserve and perfect
the interest of the Eligible Lender Trustee and the Indenture
Trustee in the Financed Student Loans, and reciting the
details of such filings or referring to prior Opinions of
Counsel in which such details are given, or (B) stating that,
in the opinion of such counsel, no such action shall be
necessary to preserve and maintain such interest; provided
that a single Opinion of Counsel may be delivered in
satisfaction of the foregoing requirement and that of Section
3.6 of the Indenture.
Each Opinion of Counsel referred to in clause (l) or (2) above
shall specify (as of the date of such opinion and given all applicable
laws as in effect on such date) any action necessary to be taken in the
following year to preserve and protect such interest.
(j) The Administrator shall file all reports with respect to
the Notes and the Certificates as may be required by the Commission or
state securities authorities.
SECTION 11.3. Notices. All demands, notices and communications upon
or to the Transferor, the Master Servicer, the Administrator, the Eligible
Lender Trustee or the Indenture Trustee under this Agreement shall be in
writing, personally delivered or mailed by certified mail or overnight
courier, return receipt requested or overnight courier (or in the form of
telex or facsimile notice, followed by written notice delivered as aforesaid)
and shall be deemed to have been duly given upon receipt (a) in the case of
the Transferor, the Master Servicer or Administrator, two copies, one to
Crestar Bank, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President - Securitizations Manager; (telephone: (804)
▇▇▇-▇▇▇▇; facsimile: (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to Crestar Bank, ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Senior Vice
President and General Counsel (facsimile (▇▇▇) ▇▇▇-▇▇▇▇); (b) in the case of
the Issuer or the Eligible Lender Trustee, at the Corporate Trust Office of
the Eligible Lender Trustee, (c) in the case of the Indenture Trustee, at its
Corporate Trust Office; (d) in the case of Moody's, to ▇▇▇▇▇'▇ Investors
Service, Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
Structured Finance Department / Student Loans (telephone: (▇▇▇) ▇▇▇ ▇▇▇▇;
facsimile: (▇▇▇) ▇▇▇ ▇▇▇▇): (e) in the case of Standard & Poor's, to Standard
& Poor's Ratings Service, ▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇▇ ▇▇▇▇▇), ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Asset Backed Surveillance Department (telephone: (▇▇▇) ▇▇▇-▇▇▇▇;
facsimile: (▇▇▇) ▇▇▇ ▇▇▇▇); (f) in the case of Fitch, to Fitch IBCA, Inc., ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Asset-Backed
Securities Group (telephone (▇▇▇) ▇▇▇-▇▇▇▇; facsimile: (▇▇▇) ▇▇▇-▇▇▇▇); or, as
to each of the foregoing, at such other address as shall be designated by
written notice to the other parties.
SECTION 11.4. Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Section 4.12 and in Section 6.5 and as
provided in the provisions of this Agreement concerning the resignation of the
Master Servicer, this Agreement may not be assigned by the Transferor or the
Master Servicer. This Agreement may only be assigned by the Eligible Lender
Trustee to its permitted successor pursuant to the Trust Agreement.
SECTION 11.5. Limitations on Rights of Others. The provisions of this
Agreement are solely for the benefit of the Transferor, the Master Servicer, the
Issuer and the Eligible Lender Trustee and for the benefit of the
Certificateholders, the Indenture Trustee, the Delaware 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.
SECTION 11.6. 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.
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SECTION 11.7. 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 11.8. 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 11.9. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of New York, 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 11.10. Assignment to Indenture Trustee. The Transferor hereby
acknowledges and consents to any mortgage, pledge, assignment and grant by the
Issuer to the Indenture Trustee pursuant to the Indenture for the benefit of the
Noteholders of a security interest in all right, title and interest of the
Issuer in, to and under the Financed Student Loans and/or the assignment of any
or all of the Issuer's rights and obligations hereunder to the Indenture
Trustee.
SECTION 11.11. Nonpetition Covenants. Notwithstanding any prior
termination of this Agreement, the Master Servicer, the Administrator and the
Transferor shall not, prior to the date that is one year after the termination
of this Agreement, with respect to the Issuer acquiesce, petition or otherwise
invoke or cause the Issuer to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against the Issuer
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 11.12. Limitation of Liability of Eligible Lender Trustee,
Indenture Trustee and Delaware Trustee.
(a) Notwithstanding anything contained herein to the contrary,
this Agreement has been signed by Star Bank, National Association not
in its individual capacity but solely in its capacity as Eligible
Lender Trustee of the Issuer and in no event shall Star Bank, National
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Association in its individual capacity or 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 of which recourse shall be had solely to the assets of
the Issuer.
Notwithstanding any provision in this Agreement or the Basic
Documents, nothing in such Agreement and Basic Documents shall be
construed to limit the Eligible Lender Trustee's responsibility to (i)
the U.S. Secretary of Education or a Guarantor in its capacity as
Eligible Lender Trustee for any violations of statutory or regulatory
requirements that may occur with respect to loans held in the Trust,
pursuant to 34 CFR 682.203(b) or any successor provision thereto, or
(ii) the Department of HHS in its capacity as Eligible Lender Trustee
for any violations of statutory or regulatory requirements that may
occur with respect to loans held in the Trust, pursuant to the HEAL
Act.
(b) Notwithstanding anything contained herein to the contrary,
this Agreement has been accepted by Bankers Trust Company not in its
individual capacity but solely as Indenture Trustee and in no event
shall Bankers Trust Company 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.
(c) In no event shall the Delaware Trustee 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.
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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.
CRESTAR STUDENT LOAN TRUST 1997-1
By: STAR BANK, NATIONAL ASSOCIATION,
not in its individual
capacity but solely as
Eligible Lender Trustee on
behalf of the Trust
By:__________________________________
_____________________________________
Name:
Title:
CRESTAR BANK
Transferor, Master Servicer and
Administrator
By:__________________________________
_____________________________________
Name:
Title:
Acknowledged as of the day
and year first above written:
BANKERS TRUST COMPANY, not
in its individual capacity
but solely as Indenture Trustee
By:____________________________________
Name: _________________
Title: Vice President
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APPENDIX A
TO THE
TRANSFER AND SERVICING AGREEMENT
DEFINITIONS AND USAGE
Usage
The following rules of construction and usage shall be applicable to
any instrument that is governed by this Appendix:
(a) All terms defined in this Appendix shall have the defined meanings
when used in any instrument governed hereby and in any certificate or other
document made or delivered pursuant thereto unless otherwise defined therein.
(b) As used herein, in any instrument governed hereby and in any
certificate or other document made or delivered pursuant thereto, accounting
terms not defined in this Appendix or in any such instrument, certificate or
other document, and accounting terms partly defined in this Appendix or in any
such instrument, certificate or other document to the extent not defined, shall
have the respective meanings given to them under generally accepted accounting
principles as in effect on the date of such instrument. To the extent that the
definitions of accounting terms in this Appendix or in any such instrument,
certificate or other document are inconsistent with the meanings of such terms
under generally accepted accounting principles, the definitions contained in
this Appendix or in any such instrument, certificate or other document shall
control.
(c) The words "hereof", "herein", "hereunder" and words of similar
import when used in an instrument refer to such instrument as a whole and not to
any particular provision or subdivision thereof; references in an instrument to
"Article", "Section" or another subdivision or to an attachment are, unless the
context otherwise requires, to an article, section or subdivision of or an
attachment to such instrument; and the term "including" means "including without
limitation".
(d) The definitions contained in this Appendix are equally applicable
to both the singular and plural forms of such terms and to the masculine as well
as to the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to below
or in any agreement or instrument that is governed by this Appendix means such
agreement or instrument or statute as from time to time amended, modified or
supplemented, including (in the case of agreements or instruments) by waiver or
consent and (in the case of statutes) by succession of comparable successor
statutes and includes (in the case of agreements or instruments) references to
all attachments thereto and instruments incorporated therein. References to a
Person are also to its permitted successors and assigns.
Definitions
"Act" has the meaning specified in Section 11.3(a) of the Indenture.
"Additional Financed HEAL Loan File" has the meaning set forth in
section 3.3 of the Transfer and Servicing Agreement.
"Adjustment Payments" has the meaning set forth in Section 2.3(d) of
the Transfer and Servicing Agreement.
"Administration Agreement" means the Administration Agreement dated as
of December 1, 1997, among the Issuer, the Indenture Trustee and the
Administrator, as amended from time to time.
"Administration Fee" has the meaning specified in Section 3 of the
Administration Agreement.
"Administrator" means Crestar Bank, in its capacity as administrator of
the Issuer and the Financed Student Loans, or any successor as Administrator
under the Transfer and Servicing Agreement.
"Administrator Default" has the meaning specified in Section 8.1(b)
of the Transfer and Servicing Agreement.
"Administrator's Certificate" means an Officer's Certificate of the
Administrator delivered pursuant to Section 4.7 of the Transfer and Servicing
Agreement, substantially in the form of Exhibit C thereto and as the
Administrator and the Indenture Trustee may agree.
"Affiliate" means, with respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, "control" when used with respect to
any specified Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
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"Authenticating Agent" means the Person appointed by the Indenture
Trustee at the request of the Issuer as Authenticating Agent for the Notes
pursuant to the Indenture, and any successor Authenticating Agent for the Notes.
"Authorized Officer" means (i) with respect to the Issuer, any officer
of the Eligible Lender Trustee who is authorized to act for the Eligible Lender
Trustee in matters relating to the Issuer pursuant to the Basic Documents and
who is identified on the list of Authorized Officers delivered by the Eligible
Lender Trustee to the Indenture Trustee on the Closing Date (as such list may be
modified or supplemented from time to time thereafter), (ii) with respect to the
Administrator, any officer of the Administrator who is authorized to act for the
Administrator in matters relating to itself or to the Issuer and to be acted
upon by the Administrator pursuant to the Basic Documents and who is identified
on the list of Authorized Officers delivered by the Administrator to the
Indenture Trustee on the Closing Date (as such list may be modified or
supplemented from time to time thereafter), (iii) with respect to the
Transferor, any officer of the Transferor who is authorized to act for the
Transferor in matters relating to or to be acted upon by the Transferor pursuant
to the Basic Documents and who is identified on the list of Authorized Officers
delivered by the Transferor to the Indenture Trustee on the Closing Date (as
such list may be modified or supplemented from time to time thereafter) and (iv)
with respect to a Servicer, any officer of such Servicer who is authorized to
act for such Servicer in matters relating to or to be acted upon by such
Servicer pursuant to the Basic Documents and who is identified on the list of
Authorized officers delivered by such Servicer to the Indenture Trustee, or the
Closing Date (as such list may be modified or supplemented from time to time
thereafter).
"Available Funds" means, with respect to any Collection Period, the
excess of (A) the sum, without duplication, of the following amounts with
respect to such Collection Period: (i) all collections received by the Master
Servicer or any Servicer on the Financed Student Loans (including any Guarantee
Payments and Insurance Payments received with respect to the Financed Student
Loans) during such Collection Period; (ii) any payments, including without
limitation Interest Subsidy Payments and Special Allowance Payments, received by
the Eligible Lender Trustee during such Collection Period with respect to
Financed Student Loans; (iii) all proceeds from any sales of Financed Student
Loans by the Trust during such Collection Period; (iv) any payments of or with
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respect to interest received by the Master Servicer or a Servicer during such
Collection Period with respect to a Financed Student Loan for which a Realized
Loss was previously allocated; (v) the aggregate Purchase Amounts received for
those Financed Students Loans purchased by the Transferor or the Master Servicer
during the related Collection Period; (vi) the aggregate amounts, if any,
received from the Transferor or the Master Servicer as reimbursement of
non-guaranteed or uninsured interest amounts (which shall not include, with
respect to Financed FFELP Loans, the portion of such interest amounts (i.e., 2%)
for which the Guarantor did not have an obligation to make a Guarantee Payment),
or lost Interest Subsidy Payments and Special Allowance Payments, with respect
to the Financed Student Loans pursuant to Sections 3.2 or 4.5, respectively, of
the Transfer and Servicing Agreement (vii) all Adjustment Payments, if any,
received from the Transferor during such Collection Period and (viii)
Investments Earnings for such Collection Period over (B) the Issuer 2.3(b)
Payments for such Collection Period; provided, however, that Available Funds
will exclude all payments and proceeds of any Financed Student Loans the
Purchase Amount of which has been included in Available Funds for a prior
Collection Period, which payments and proceeds shall be paid to the Transferor,
and amounts used to reimburse the Master Servicer for Monthly Advances pursuant
to Section 5.4 of the Transfer and Servicing Agreement.
"Basic Documents" means the Trust Agreement, the Master Indenture, the
Terms Supplement, the Transfer and Servicing Agreement, the Administration
Agreement, the Note Depository Agreement, the Guarantee Agreements, the HEAL
Insurance Contract, the Underwriting Agreement and other documents and
certificates delivered in connection with any thereof and all amendments and
supplements thereto.
"Benefit Plan" means any employee benefit plan, retirement arrangement,
individual retirement account or ▇▇▇▇▇ Plan subject to either Title I of ERISA
or Section 4975 of the Code, or any entity (including an insurance company
general account) whose underlying assets include plan assets by reason of a
plan's investment in the entity.
"Book-Entry Note" means a beneficial interest in the Notes, ownership
and transfers of which shall be through book entries by a Securities Depository
as described in Section 2.14 of the Indenture.
"Business Day" means any day other than a Saturday, a Sunday or a day
on which national banking associations or banking institutions or trust
companies in New York, Ohio, Pennsylvania or Virginia are authorized or
obligated by law, regulation or executive order to remain closed.
-4-
"Certificate" means a certificate evidencing the beneficial interest of
a Certificateholder in the Trust, substantially in the form of Exhibit A to the
Trust Agreement.
"Certificate Balance" equals, initially, the Initial Certificate
Balance and, thereafter, equals the Initial Certificate Balance reduced by all
amounts previously distributed to Certificateholders as principal. In
determining whether the Certificateholders which hold Certificates representing
the requisite Certificate Balance have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or under any other Basic
Document, the Certificate Balance shall not include the principal balance of
Certificates owned by the Transferor or any Affiliate of the Transferor.
"Certificate Distribution Account" means the account designated as
such, established and maintained pursuant to Section 5.1 of the Transfer and
Servicing Agreement.
"Certificate Paying Agent" means any paying agent or co-paying agent
appointed pursuant to Section 3.10 of the Trust Agreement, which shall initially
be the Eligible Lender Trustee.
"Certificate Initial Rate" means 7.48% per annum.
"Certificate Quarterly Advance Account" means the account designated as
such, established and maintained pursuant to Section 5.1 of the Transfer and
Servicing Agreement.
"Certificate Rate" means One-Month LIBOR plus 1.50% per annum.
"Certificate Register" and "Certificate Registrar" means the register
mentioned and the registrar appointed pursuant to Section 3.4 of the Trust
Agreement.
"Certificateholder" means a Person in whose name a Certificate is
registered in the Certificate Register.
"Certificateholders' Distribution Amount" means, as to any Class of
Certificates, with respect to any Quarterly Distribution Date, the
Certificateholders' Interest Distribution Amount for such Quarterly Distribution
Date plus, for each Quarterly Distribution Date on and after which the Notes
have been paid in full, the Certificateholders' Principal Distribution Amount
for such Quarterly Distribution Date.
-5-
"Certificateholders' Interest Shortfall" means, as to any Class of
Certificates, with respect to any Quarterly Distribution Date, the excess, if
any, of (i) the sum of the related Certificateholders' Interest Distribution
Amount on the preceding Quarterly Distribution Date and any outstanding
Certificateholders' Interest Shortfall on such preceding Quarterly Distribution
Date over (ii) the amount of interest actually distributed to the
Certificateholders of such Class on such preceding Quarterly Distribution Date,
plus interest on the amount of such excess interest due to the
Certificateholders of such Class, to the extent permitted by law, at the related
Certificate Rate from such preceding Quarterly Distribution Date to the current
Quarterly Distribution Date.
"Certificateholders' Interest Distribution Amount" means, as to any
Class of Certificates, with respect to any Quarterly Distribution Date relating
to such Certificates, the sum of (i) the amount of interest accrued at One Month
LIBOR plus 1.50% per annum for each related Interest Period since the last
Quarterly Distribution Date (or, in the case of the first Quarterly Distribution
Date, the Closing Date) on the outstanding principal amount of such Certificates
on the immediately preceding Quarterly Distribution Date, after giving effect to
all distributions of principal to Certificateholders of such Class on such
Quarterly Distribution Date (or, in the case of the first Quarterly Distribution
Date, on the Closing Date) and (ii) the Certificateholders' Interest Carryover
Shortfall relating to such Certificates for such Quarterly Distribution Date.
"Certificateholders' Principal Carryover Shortfall" means, as of the
close of any Quarterly Distribution Date relating to a Class of Certificates on
or after which the Notes have been paid in full, the excess, if any, of (i) the
sum of the Certificateholders' Principal Distribution Amount on such Quarterly
Distribution Date and any outstanding Certificateholders' Principal Carryover
Shortfall for the preceding Quarterly Distribution Date over (ii) the amount of
principal actually distributed to the Certificateholders on such Quarterly
Distribution Date.
"Certificateholders' Principal Distribution Amount" means, on each
Quarterly Distribution Date occurring after the principal balance of each Class
of Notes has been paid in full, the sum of (i) the Principal Distribution Amount
for the three Collection Periods preceding such Quarterly Distribution Date, and
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(ii) the Certificateholders' Principal Carryover Shortfall as of the close of
the preceding Quarterly Distribution Date; provided, however, that the
Certificateholders' Principal Distribution Amount will in no event exceed the
outstanding principal balance of the applicable class of Certificates. Further,
on the first Quarterly Distribution Date occurring on or after the Distribution
Date on which the principal balance of the last outstanding Class of Notes is
paid in full, the Certificateholders' Principal Distribution Amount also will
include the excess, if any, of the amount of principal available to be
distributed on such Distribution Date over the amount of principal paid on the
Notes on such date.
"Class" means any class of Notes.
"Class A Notes" means the Class A-1 Notes and the Class A-2 Notes.
"Class A-1 Notes" means Notes of the Issuer designated as "Crestar
Student Loan Trust 1997-1, Senior LIBOR Rate Class A-1 Student Loan Asset
Backed Notes."
"Class A-1 Noteholder" means any Noteholder of the Class A-1 Notes.
"Class A-2 Notes" means Notes of the Issuer designated as "Crestar
Student Loan Trust 1997-1, Senior LIBOR Rate Class A-2 Student Loan Asset
Backed Notes."
"Class A-2 Noteholder" means any Noteholder of the Class A-2 Notes.
"Class B Notes" means Notes of the Issuer designated as "Crestar
Student Loan Trust 1997-1, Subordinate LIBOR Rate Class B Student Loan Asset
Backed Notes."
"Class B Noteholder" means any Noteholder of the Class B Notes.
"Class Initial Rate" means, with respect to any Class of Notes, the
rate identified as such in the Terms Supplement.
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"Class Interest Rate" means, with respect to any Class of Notes, the
interest rate determined as set forth in the Terms Supplement.
"Closing Date" means December 17, 1997.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and Treasury Regulations promulgated thereunder.
"Collection Account" means the account designated as such, established
and maintained pursuant to Section 5.1 of the Transfer and Servicing Agreement.
"Collection Period" means, initially, with respect to each of the
Initial Financed Student Loans, the period beginning on the Closing Date and
ending on December 31, 1997, inclusive, and thereafter, the Collection Period
means the calendar month immediately following the end of the previous
Collection Period.
"Commission" means the Securities and Exchange Commission.
"Consolidation Loan" means a FFELP Loan designated as such, made by the
Transferor to an eligible borrower that represents the refinancing of student
loans to such borrower and his or her spouse in accordance with the applicable
terms and provisions of the Higher Education Act.
"Consolidation Loan Fees" means, as to any Collection Period, an amount
equal to 1.05% per annum of the outstanding principal balances of and accrued
interest on the Consolidation Loans owned by the Trust as of the last day of
such Collection Period.
"Consolidation Prepayments" means, on any Subsequent Finance Date, the
amount of principal then on deposit in the Collection Account representing
payments received as a result of Financed Student Loans being repaid with the
proceeds of Consolidation Loans or HEAL Consolidation Loans (provided, however,
if a Subsequent Finance Date occurs during the month of a Distribution Date,
Consolidation Prepayments shall not include amounts received during the month of
such Distribution Date).
"Corporate Trust Office" means (i) with respect to the Indenture
Trustee, the principal office of the Indenture Trustee at which at any
particular time its corporate trust business shall be administered, which office
on the Closing Date is located at Four ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust and Agency Group, Structured Finance Group
(telephone: (212) ▇▇▇- ▇▇▇▇; facsimile: (▇▇▇) ▇▇▇-▇▇▇▇) or at such other address
as the Indenture Trustee may designate from time to time by notice to the
Noteholders, the Certificateholder and the Transferor, or the principal
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corporate trust office of any successor Indenture Trustee (the address of which
the successor Indenture Trustee will notify the Noteholders and the Transferor)
and (ii) with respect to the Eligible Lender Trustee, the principal corporate
trust office of the Eligible Lender Trustee located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, telephone: (▇▇▇) ▇▇▇-▇▇▇▇;
facsimile (▇▇▇) ▇▇▇-▇▇▇▇; or at such other address as the Eligible Lender
Trustee may designate by notice to the Certificateholders and the Transferor, or
the principal corporate trust office of any successor Eligible Lender Trustee
(the address of which the successor Eligible Lender Trustee will notify the
Certificateholders and the Transferor).
"Crestar Subsidiary" has the meaning specified in Section 6.5 of the
Transfer and Servicing Agreement.
"Cut-off Date" means for the Financed Student Loans set forth on
Schedule A-1 to the Transfer and Servicing Agreement, November 25, 1997.
"Default" means any occurrence that is, or with notice or the lapse of
time or both would become, an Event of Default.
"Deferment Period" means certain deferment periods authorized by the
Higher Education Act and the HEAL Act during which the related borrower's
scheduled payments are deferred.
"Deferral Phase" means the period during which the related borrower is
in school and for certain authorized periods as described in the Higher
Education Act.
"Delaware Trustee" means Delaware Trust Capital Management, Inc., not
in its individual capacity but solely as the Delaware Trustee under the Trust
Agreement, and its successors and assigns in such capacity.
"Delaware Trustee Fee" has the meaning specified in Section 8.3 of
the Trust Agreement.
"Definitive Notes" has the meaning specified in Section 2.14 of the
Indenture.
"Delivery" when used with respect to Trust Account Property means:
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(a) with respect to bankers' acceptances, commercial paper,
negotiable certificates of deposit and other obligations that
constitute "instruments" within the meaning of Section 9-105(l) (i) of
the UCC and are susceptible of physical delivery, transfer thereof to
the Indenture Trustee or its nominee or custodian by physical delivery
to the Indenture Trustee or its nominee or custodian endorsed to, or
registered in the name of, the Indenture Trustee or its nominee or
custodian or endorsed in blank, and, with respect to a certificated
security (as defined in Section 8-102 of the UCC) transfer thereof (i)
by delivery of such certificated security endorsed to, or registered in
the name of, the Indenture Trustee or its nominee or custodian or
endorsed in blank to a financial intermediary (as defined in Section
8-313) of the UCC) and the making by such financial intermediary of
entries on its books and records identifying such certificated
securities as belonging to the Indenture Trustee or its nominee or
custodian and the sending by such financial intermediary of a
confirmation of the purchase of such certificated security by the
Indenture Trustee or its nominee or custodian, or (ii) by delivery
thereof to a "clearing corporation" (as defined in Section 8-102(3) of
the UCC) and the making by such clearing corporation of appropriate
entries on its books reducing the appropriate securities account of the
transferor and increasing the appropriate securities account of a
financial intermediary by the amount of such certificated security, the
identification by the clearing corporation of the certificated
securities for the sole and exclusive account of the financial
intermediary, the maintenance of such certificated securities by such
clearing corporation or a "custodian bank" (as defined in Section
8-102(4) of the UCC) or the nominee of either subject to the clearing
corporation's exclusive control, the sending of a confirmation by the
financial intermediary of the purchase by the Indenture Trustee or its
nominee or custodian of such securities and the making by such
financial intermediary of entries on its books and records identifying
such certificated securities as belonging to the Indenture Trustee or
its nominee or custodian (all of the foregoing, "Physical Property"),
and, in any event, any such Physical Property in registered form shall
be in the name of the Indenture Trustee or its nominee or custodian;
and such additional or alternative procedures as may hereafter become
appropriate to effect the complete transfer of ownership of any such
Trust Account Property to the Indenture Trustee or its nominee or
custodian, consistent with changes in applicable law or regulations or
the interpretation thereof;
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(b) with respect to any securities issued by the U.S.
Treasury, the Federal Home Loan Mortgage Corporation or by the Federal
National Mortgage Association that is a book-entry security held
through the Federal Reserve System pursuant to federal book-entry
regulations, the following procedures, all in accordance with
applicable law, including applicable federal regulations and Articles 8
and 9 of the UCC: book-entry registration of such Trust Account
Property to an appropriate book-entry account maintained with a Federal
Reserve Bank by a financial intermediary which is also a "depository"
pursuant to applicable federal regulations and issuance by such
financial intermediary of a deposit advice or other written
confirmation of such book-entry registration to the Indenture Trustee
or its nominee or custodian of the purchase by the Indenture Trustee or
its nominee or custodian of such book-entry securities; the making by
such financial intermediary of entries in its books and records
identifying such book-entry security held through the Federal Reserve
System pursuant to federal book-entry regulations as belonging to the
Indenture Trustee or its nominee or custodian and indicating that such
custodian holds such Trust Account Property solely as agent for the
Indenture Trustee or its nominee or custodian; and such additional or
alternative procedures as may hereafter become appropriate to effect
complete transfer of ownership of any such Trust Account Property to
the Indenture Trustee or its nominee or custodian, consistent with
changes in applicable law or regulations or the interpretation thereof;
and
(c) with respect to any item of Trust Account Property that is
an uncertificated security under Article 8 of the UCC and that is not
governed by clause (b) above, registration on the books and records of
the issuer thereof in the name of the financial intermediary, the
sending of a confirmation by the financial intermediary of the purchase
by the Indenture Trustee or its nominee or custodian of such
uncertificated security, the making by such financial intermediary of
entries on its books and records identifying such uncertificated
certificates as belonging to the Indenture Trustee or its nominee or
custodian.
"Department of Education" means the United States Department of
Education.
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"Department of HHS" means the United States Department of Health and
Human Services.
"Depositor" means Crestar Bank in its capacity as Depositor under the
Trust Agreement.
"Directing Notes" means the Class A Notes while any such Notes are
Outstanding, and, when no Class A Notes remain Outstanding, the Class B Notes.
"Distribution" means, with respect to any Financed Student Loan, the
amount of the monthly remittance payable to the holder of such Financed Student
Loan in accordance with its terms.
"Distribution Date" means, the 25th day of each month or if such day is
not a Business Day in New York, the next succeeding Business Day in New York,
commencing January 26, 1998.
"Distribution Determination Date" means, with respect to any
Distribution Date, the third Business Day immediately preceding such
Distribution Date.
"Eligible Deposit Account" means either (a) a segregated account with
an Eligible Institution or (b) a segregated trust account with the corporate
trust department of a depository institution organized under the laws of the
United States of America or any one of the States (or any domestic branch of a
foreign bank), having corporate trust powers and acting as trustee for funds
deposited in such account, so long as any of the securities of such depository
institution have a credit rating from each Rating Agency in one of its generic
rating categories which signifies investment grade. An Eligible Deposit Account
may not be evidenced by a certificate of deposit, passbook or other instrument.
"Eligible Institution" means an entity which is an institution whose
deposits are insured by the FDIC and the unsecured and uncollateralized
long-term debt obligations of which shall be rated "AA-" or better by Standard &
Poor's, A2 or better by Moody's and, if rated by Fitch, "AA-" or better by Fitch
or the highest short-term rating by Standard & Poor's, the highest short term
rating by Moody's, and, if rated by Fitch, the highest short term rating by
Fitch which is either (i) a federal savings association duly organized, validly
existing and in good standing under the federal banking laws, (ii) an
institution duly organized, validly existing and in good standing under the
-12-
applicable banking laws of any state, (iii) a national banking association duly
organized, validly existing and in good standing under the federal banking laws,
or (iv) a principal subsidiary of a bank holding company.
"Eligible Investments" As used herein, Eligible Investments shall
include the following:
(1) Cash (insured at all times by the Federal Deposit Insurance
Corporation);
(2) Direct obligations of (including obligations issued or held in
book entry form on the books of) the Department of the
Treasury of the United States of America;
(3) obligations of any of the following federal agencies which
obligations represent the full faith and credit of the United
States of America, including:
- Export-Import Bank
- Farm Credit System Financial Assistance Corporation
- Farmers Home Administration
- General Services Administration
- U.S. Maritime Administration
- Small Business Administration
- Government National Mortgage Association (GNMA)
- U.S. Department of Housing & Urban Development
(PHA's)
- Federal Housing Administration;
(4) senior debt obligations rated "AAA" by Standard & Poor's,
"Aaa" by Moody's and, if rated by Fitch, "AAA" by Fitch issued
by the Federal National Mortgage Association or the Federal
Home Loan Mortgage Corporation;
(5) U.S. dollar denominated deposit accounts, federal funds and
banker's acceptances with domestic commercial banks which
have a rating on their short term certificates of deposit on
the date of purchase of "A-1+" by Standard & Poor's, "P-1"
by Moody's and, if rated by Fitch, "F-1+" by Fitch and
maturing no more than 360 days after the date of purchase
(ratings on holding companies not being considered the
rating of the bank);
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(6) commercial paper which is rated at the time of purchase in the
single highest classification, "A-1+" by Standard & Poor's,
"P-1" by Moody's and, if rated by Fitch, "F-1+" by Fitch and
which matures not more than 270 days after the date of
purchase;
(7) Investments in money market funds (including, but not limited
to, money market mutual funds) rated "AAAm" or "AAAm-G" or
better by Standard & Poor's and, if rated by Fitch, "AAA" by
Fitch;
(8) investment agreements acceptable to the Rating Agencies,
written confirmation of which shall be furnished to the
Indenture Trustee prior to any such investment; and
(9) other forms of investments acceptable to the Rating Agencies,
written confirmation of which shall be furnished to the
Indenture Trustee prior to any such investment.
Notwithstanding anything in this Agreement or the Basic Documents to
the contrary, for so long as the Transferor is a Certificateholder, all
investments of the Trust shall be made in investments permissible for a national
bank.
The value of the above investments shall be determined as follows:
a) as to investments the bid and asked prices of which are
published on a regular basis in The Wall Street Journal (or,
if not there, then in The New York Times): the average of the
bid and asked prices for such investments so published on or
most recently prior to such time of determination;
b) as to investments the bid and asked prices of which are not
published on a regular basis in The Wall Street Journal or
The New York Times: the average bid price at such time of
determination for such investments by any two nationally
recognized government securities dealers (selected by the
Administrator in its absolute discretion) at the time making
a market in such investments or the bid price published by a
nationally recognized pricing service;
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c) as to certificates of deposit and bankers acceptances: the
face amount thereof, plus accrued interest; and
d) as to any investment not specified above: the value thereof
established by prior agreement between the Issuer and the
Administrator.
"Eligible Lender Trustee" means Star Bank, National Association not in
its individual capacity but solely as Eligible Lender Trustee under the Trust
Agreement, and its successors and assigns in such capacity.
"Eligible Lender Trustee Fee" has the meaning specified in Section 8.1
of the Trust Agreement.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Event of Default" has the meaning specified in Section 5.1 of the
Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Executive Officer" means, with respect to any corporation, the Chief
Executive Officer, Chief Operating Officer, Chief Financial Officer, President,
any Executive Vice President, any Senior Vice President, any Vice President, the
Secretary, the Controller or the Treasurer of such corporation; and with respect
to any partnership, any general partner thereof.
"Expense Account" means the account designated as such pursuant to
Section 5.1 of the Transfer and Servicing Agreement.
"Expenses" means any and all liabilities, obligations, losses, damages,
taxes, claims, actions and suits, and any and all reasonable costs, expenses and
disbursements (including reasonable legal fees and expenses) of any kind and
nature whatsoever which may at any time be imposed on, incurred by, or asserted
against the Eligible Lender Trustee or any of its officers, directors or agents
in any way relating to or arising out of the Trust Agreement, the other Basic
Documents, the Trust Estate, the administration of the Trust Estate or the
action or inaction of the Eligible Lender Trustee under the Trust Agreement or
the other Basic Documents.
"FDIC" means the Federal Deposit Insurance Corporation.
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"FFELP Loan" means a student loan which is a PLUS Loan, SLS Loan,
Consolidation Loan, ▇▇▇▇▇▇▇▇ Loan or Unsubsidized ▇▇▇▇▇▇▇▇ Loan.
"FHLMC" means Federal Home Loan Mortgage Corporation, a corporate
instrumentality of the United States created and existing under Title III of the
Emergency Home Finance Act of 1970, as amended, or any successor thereto.
"Final Maturity Date" means, with respect to any Note, the date on
which the entire unpaid principal amount of such Note becomes due and payable as
provided in the Terms Supplement.
"Financed FFELP Loan" means a Financed Student Loan that also is a
FFELP Loan.
"Financed HEAL Loan" means a Financed Student Loan that also is a HEAL
Loan.
"Financed Student Loan" means the FFELP Loans and HEAL Loans set forth
in Schedule A-1 to the Transfer and Servicing Agreement and Schedule A to each
Transfer Agreement, as amended or supplemented from time to time by the Master
Servicer to accurately reflect the Financed Student Loans then subject to the
Lien of the Indenture. The Schedule of Financed Student Loans may be in the form
of microfiche or other form of electronic media.
"Financed Student Loan Files" means the documents specified in Section
3.3 of the Transfer and Servicing Agreement.
"Fitch" means Fitch IBCA, Inc., and its successors and assigns.
"FNMA" means Federal National Mortgage Association, a federally
chartered and privately owned corporation organized and existing under the
Federal National Mortgage Association Charter Act, or any successor thereto.
"Formula Interest Rate" means, with respect to any Class of Notes, the
interest rate determined as set forth in the Terms Supplement.
"Grace Period" means certain grace periods authorized by the Higher
Education Act and the HEAL Act during which the related borrower's scheduled
payments are deferred.
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"Grant" means mortgage, pledge, hypothecate, bargain, sell, warrant,
alienate, remise, release, convey, assign, transfer, create, and ▇▇▇▇▇ ▇ ▇▇▇▇
upon and a security interest in and right of set-off against, deposit, set over
and confirm pursuant to the Indenture. A Grant of the Trust Estate or of any
other agreement or instrument shall include all rights, powers and options (but
none of the obligations) of the Granting party thereunder, including the
immediate and continuing right to claim for, collect, receive and give receipt
for principal and interest payments in respect of the Trust Estate and all other
moneys payable thereunder, to give and receive notices and other communications,
to make waivers or other agreements, to exercise all rights and options, to
bring Proceedings in the name of the Granting party or otherwise and generally
to do and receive anything that the Granting party is or may be entitled to do
or receive thereunder or with respect thereto.
"Guarantee Agreements" means each agreement entered into between the
Eligible Lender Trustee and a Guarantor pursuant to which such Guarantor
guarantees payments on Financed FFELP Loans.
"Guarantee Payment" means any payment made by a Guaranty Agency
pursuant to a Guarantee Agreement in respect of a Financed FFELP Loan.
"Guarantor" means the Department of Education, Educational Credit
Management Corporation, a Minnesota non-profit corporation (formerly known as
Transitional Guaranty Agency, Inc.), PHEAA, United Student Aid Funds, Inc., a
Delaware non-profit corporation, the Florida Department of Education, an agency
of the State of Florida, New York Higher Education Services Corporation, an
agency of the State of New York, and Texas Guaranteed Student Loan Corporation,
a Texas nonprofit corporation, and their respective successors and assigns.
"Guaranty Agency" means any agency which has an agreement with the
Department of Education of Education to be a guarantor of FFELP Loans.
"HEAL Act" means Title VII, ss.ss.701-720 of the Public Health Services
Act, as amended, 42 U.S.C. ▇▇.▇▇. 292-292p, together with any rules and
regulations promulgated thereunder by the Department of HHS.
"HEAL Consolidation Loan" means a HEAL Loan that is designated as such
that is made under the HEAL Act.
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"HEAL Insurance Contract" means the HEAL Insurance Contract entered
into between the Eligible Lender Trustee and the Department of HHS pursuant to
which the Department of HHS insures payments on Financed HEAL Loans.
"Higher Education Act" means Title IV, Part B of the Higher Education
Act of 1965, as amended, together with any rules and regulations promulgated
thereunder by the Department of Education or the Guarantors.
"Indemnifiable Expenses" means any and all liabilities, obligations,
losses, damages, taxes, claims, actions and suits, and any and all reasonable
costs, expenses and disbursements (including reasonable legal fees and expenses)
of any kind and nature whatsoever which may at any time be imposed on, incurred
by, or asserted against a Person (or any of its officers, directors, employees
or agents) who is entitled to be indemnified.
"Indenture" means the Master Indenture and the Terms Supplement, each
as amended or supplemented from' time to time.
"Indenture Trust Estate" means all money, instruments, rights and other
property that are, from time to time, subject or intended to be subject to the
Lien and security interest of the Indenture for the benefit of the Noteholders
(including all property and interests Granted to the Indenture Trustee),
including all proceeds thereof.
"Indenture Trustee" means Bankers Trust Company, not in its individual
capacity but solely as Indenture Trustee under the Indenture and its successors
and assigns in such capacity.
"Indenture Trustee Fee" has the meaning specified in Section 6.7 of the
Master Indenture, as may be amended pursuant to any amendment to the Terms
Supplement.
"Independent" means, when used with respect to any specified Person,
that the Person (a) is in fact independent of the Issuer, any other obligor upon
the Notes, the Transferor and any Affiliate of any of the foregoing Persons, (b)
does not have any direct financial interest or any material indirect financial
interest in the Issuer, any such other obligor, the Transferor or any Affiliate
of any of the foregoing Persons and (c) is not connected with the Issuer, any
such other obligor, the Transferor or any Affiliate of any of the foregoing
Persons as an officer, employee, promoter, underwriter, trustee, partner,
director or person performing similar functions.
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"Independent Certificate" means a certificate or opinion to be
delivered to the Indenture Trustee under the circumstances described in, and
otherwise complying with, the applicable requirements of Section 11.1 of the
Master Indenture, made by an Independent appraiser or other expert appointed by
an Issuer Order and approved by the Indenture Trustee in the exercise of
reasonable care, and such opinion or certificate shall state that the signer has
read the definition of "Independent" and that the signer is Independent within
the meaning thereof.
"Individual Note" means a Note of an initial principal amount equal to
$50,000. A Note of an original principal amount in excess thereof shall be
deemed to be a number of Individual Notes equal to the quotient obtained by
dividing such initial principal amount by $50,000, without regard to fractions.
"Initial Financed Student Loans" has the meaning specified in Section
2.1 of the Transfer and Servicing Agreement.
"Initial Certificate Balance" means $1,000, representing the
Certificate Balance as of the Closing Date.
"Initial Pool Balance" means $211,956,796 representing the sum of Pool
Balance for the Initial Financed Student Loans set forth on Schedule A-1 as of
the Cut-off Date.
"Insolvency Event" means, with respect to a specified Person, (a) the
filing of a decree or order for relief by a court having jurisdiction in the
premises in respect of such Person or any substantial part of its property in an
involuntary case under any applicable federal or State bankruptcy, insolvency or
other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official for
such Person or for any substantial part of its property, or ordering the
winding-up or liquidation of such Person's affairs, and such decree or order
shall remain unstayed and in effect for a period of 60 consecutive days; or (b)
the commencement by such Person of a voluntary case under any applicable federal
or State bankruptcy, insolvency or other similar law now or hereafter in effect,
or the consent by such Person to the entry of an order for relief in an
involuntary case under any such law, or the consent by such Person to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official for such Person or for any
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substantial part of its property, or the making by such Person of any general
assignment for the benefit of creditors, or the failure by such Person generally
to pay its debts as such debts become due, or the taking of action by such
Person in furtherance of any of the foregoing.
"Insurance Payment" means any payment made by the Department of HHS
pursuant to the HEAL Insurance Contract in respect of a Financed HEAL Loan.
"Interest Payment Period" has the meaning set forth in the Terms
Supplement.
"Interest Period" has the meaning set forth in the Terms Supplement.
"Interest Subsidy Payments" means payments, designated as such,
consisting of interest subsidies by the Department of Education in respect of
the Financed Student Loans to the Eligible Lender Trustee on behalf of the Trust
in accordance with the Higher Education Act.
"Investment Earnings" means, with respect to any Distribution Date, the
investment earnings (net of losses and investment expenses) on amounts on
deposit in the Trust Accounts to be deposited into the Collection Account on or
prior to such Distribution Date pursuant to Section 5.1(b) of the Transfer and
Servicing Agreement.
"Issuer" means Crestar Student Loan Trust 1997-1.
"Issuer 2.3(b) Payments" has the meaning set forth in Section 2.3(e) of
the Transfer and Servicing Agreement.
"Issuer Order" and "Issuer Request" means a written order or request
signed in the name of the Issuer by any one of its Authorized Officers and
delivered to the Indenture Trustee.
"LIBOR Rate" means, with respect to the Notes or the Certificates, the
related Class Interest Rate or Certificate Rate, as the case may be, that
results from a determination based on One-Month LIBOR and is determined as
described in the Terms Supplement, the Transfer and Servicing Agreement or the
Trust Agreement, as the case may be.
"Lien" means a security interest, lien, charge, pledge, equity or
encumbrance of any kind, other than tax liens and any other liens, if any, which
attach to the respective Financed Student Loan by operation of law as a result
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of any act or omission by the related Obligor or obligations under Subservicing
Agreements in effect as of the Closing Date.
"London Banking Day" means any business day on which dealings in
deposits in United States dollars are transacted in the London interbank market.
"Majority Certificateholder" means the holders of more than 50% of the
Certificate Balance of the Certificates without regard to the Certificates held
by the Depositor.
"Margin" has the meaning set forth in the Terms Supplement.
"Master Indenture" means the Indenture dated as of December 1, 1997
between the Issuer and the Indenture Trustee, as amended or supplemented from
time to time.
"Master Servicer" means Crestar Bank, and its permitted successors and
assigns, as Master Servicer of the Financed Student Loans and the Transfer and
Servicing Agreement.
"Master Servicer Default" means an event specified in Section 8.1(a) of
the related Transfer and Servicing Agreement or Supplemental Transfer and
Servicing Agreement.
"Minimum Purchase Price" has the meaning set forth in Section 9.1(b) of
the Transfer and Servicing Agreement.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Monthly Advance" means the amount, if any, advanced by the Master
Servicer pursuant to Section 5.10 of the Transfer and Servicing Agreement with
respect to Guarantee Payments or Interest Subsidy Payments applied for but not
received as of the end of the Collection Period immediately preceding the date
such Monthly Advance is made.
"Monthly Advance Account" means the account designated as such,
established and maintained pursuant to Section 5.1 of the Transfer and Servicing
Agreement.
"Net Loan Rate" shall have the meaning set forth in the Terms
Supplement.
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"91-day T-▇▇▇▇ Rate" shall have the meaning set forth in the Terms
Supplement.
"Notes" means the notes designated as the Issuer's Student Loan
Asset-Backed Notes, issued pursuant to the terms of the Master Indenture and the
Terms Supplement and having an original principal amount equal to $222,900,000.
"Note Depository Agreement" means the agreement dated as of the Closing
Date relating to the Notes among the Issuer, the Indenture Trustee, the
Administrator and the Depository Trust Company, as the initial Securities
Depository.
"Note Distribution Account" means the account designated as such,
established and maintained pursuant to Section 5.1 of the Transfer and Servicing
Agreement.
"Note Owner" means, with respect to a Book Entry Note, the Person who
is the owner of such Book Entry Note, as reflected on the books of the
Securities Depository, or on the books of a Person maintaining an account with
such Securities Depository (directly as Securities Depository Participant or as
an indirect participant, in each case in accordance with the rules of such
Securities Depository).
"Note Register" and "Note Registrar" have the respective meanings
specified in Section 2.6 of the Indenture.
"Noteholder" means the Person in whose name a Note is registered in
the Note Register.
"Noteholders' Distribution Amount" means, as to any Class of Notes,
with respect to any Distribution Date, the sum of the related Noteholders'
Interest Distribution Amount and the Noteholders' Principal Distribution
Amount for such Distribution Date.
"Noteholders' Interest Carryover" has the meaning set forth in the
Terms Supplement.
"Noteholders' Interest Shortfall" means, as to any Class of Notes, with
respect to any Distribution Date (which, for the Class B Notes, shall be a
Quarterly Distribution Date), the excess of (i) the sum of the related
Noteholders' Interest Distribution Amount on the preceding Distribution Date for
such Class of Notes and any Noteholders' Interest Shortfall on such preceding
Distribution Date for such Class of Notes over (ii) the amount of interest
actually allocated to such Noteholders on such preceding Distribution Date for
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such Class of Notes, plus interest on the amount of such excess interest due to
the Noteholders, to the extent permitted by law, at the related Class Interest
Rate from such preceding Distribution Date for such Class of Notes to the
current Distribution Date for such Class of Notes.
"Noteholders' Interest Distribution Amount" means, as to any Class of
Notes, with respect to any Distribution Date (which, for the Class B Notes,
shall be a Quarterly Distribution Date), the sum of (i) the amount of interest
accrued at the respective Class Interest Rate for each Interest Period since the
last Distribution Date for such Class of Notes (or, in the case of the first
Distribution Date for such Class of Notes, the Closing Date) on the outstanding
principal balance of such Class of Notes on the immediately preceding
Distribution Date for such Class of Notes after giving effect to all principal
distributions to holders of Notes of such Class on such date (or, in the case of
the first Distribution Date for such Class of Notes, on the Closing Date) and
(ii) the Noteholders' Interest Shortfall for such Class of Notes for such
Distribution Date; provided, however, that the Noteholders' Interest
Distribution Amount will not include any Noteholders' Interest Carryover.
"Noteholders' Principal Carryover Shortfall" means, as of the close of
any Distribution Date, the excess of (i) the sum of the Noteholders' Principal
Distribution Amount on such Distribution Date and any outstanding Noteholders'
Principal Carryover Shortfall for the preceding Distribution Date over (ii) the
amount of principal actually allocated to the Noteholders on such Distribution
Date.
"Noteholders' Principal Distribution Amount" means, (A) as to any
Distribution Date on or after February 25, 1998 and on or before the
Distribution Date on which the Class A Notes are paid in full, the sum of (i)
the Principal Distribution Amount for the Collection Period immediately
preceding the month of such Distribution Date (and, in the case of the February
25, 1998 Distribution Date, all preceding Collection Periods), (ii) any Parity
Percentage Payments to be made on such Distribution Date, (iii) the Noteholders'
Principal Carryover Shortfall as of the close of the preceding Distribution Date
and (iv) the amount, if any, remaining on deposit in the Note Distribution
Account following the preceding Distribution Date, and (B) as to any Quarterly
Distribution Date after the Distribution Date on which the Class A Notes are
paid in full, the sum of (i) the Principal Distribution Amount for the three
Collection Periods immediately preceding the month of such Quarterly
Distribution Date, (ii) any Parity Percentage Payments to be made on such
Quarterly Distribution Date, (iii) the Noteholders' Principal Carryover
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Shortfall as of the close of the preceding Quarterly Distribution Date and (iv)
the amount, if any, remaining on deposit in the Note Distribution Account
following the preceding Quarterly Distribution Date; provided, however, that the
Noteholders' Principal Distribution Amount allocable to a Class of Notes will
not exceed the outstanding principal balance of such Class of Notes. In
addition, with respect to each Class of Notes, on the related Final Maturity
Date the Noteholders' Principal Distribution Amount will include the amount
required to reduce the outstanding principal balance of such Notes to zero.
"Obligor" on a Financed Student Loan means the borrower or co-borrowers
of such Financed Student Loan and any other Person who owes payments in respect
of such Financed Student Loan, including (i) the Guaranty Agency thereof with
respect to a Financed FFELP Loan and the Department of HHS with respect to a
Financed HEAL Loan, and (ii) with respect to any Interest Subsidy Payment or
Special Allowance Payment, if any, thereon, the Department of Education.
"Officer's Certificate" means (i) in the case of the Issuer, a
certificate signed by an Authorized Officer of the Issuer, under the
circumstances described in, and otherwise complying with, the applicable
requirements of Section 11.1 of the Indenture, and delivered to the Indenture
Trustee, (ii) in the case of the Transferor, the Master Servicer or the
Administrator, a certificate signed by an Authorized Officer of the Transferor,
the Master Servicer or the Administrator, as appropriate and (iii) in the case
of the Servicer, a certificate signed by an Authorized Officer of the Servicer.
"One-Month LIBOR" means the rate of interest per annum equal to the
London interbank offered rate for deposits in U.S. dollars having a maturity of
one month commencing on the related Rate Determination Date (the "Index
Maturity") which appears on Telerate Page 3750 as of 11:00 a.m., London time, on
such Rate Determination Date. If such rate does not appear on Telerate Page
3750, the rate for that day will be determined on the basis of the Reuters
Screen LIBOR Page. If such rate does not appear on Telerate Page 3750 or the
Reuters Screen LIBOR Page, the rate for that day will be determined on the basis
of the rates at which deposits in U.S. dollars, having the Index Maturity and in
a principal amount of not less than U.S. $1,000,000, are offered at
approximately 11:00 a.m., London time, on such Rate Determination Date to prime
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banks in the London interbank market by the Reference Banks. The Master Servicer
will request the principal London office of each of such Reference Banks to
provide a quotation of its rate. If at least two such quotations are provided,
One-Month LIBOR for that day will be the arithmetic mean (rounded upwards, if
necessary, to the nearest .01%) of the quotations. If fewer than two quotations
are provided, One-Month LIBOR for that day will be the arithmetic mean (rounded
upwards, if necessary, to the nearest .01%) of the rates quoted by three major
banks in New York City, selected by the Master Servicer, or by the Trustee, as
applicable, at approximately 11:00 a.m., New York City time, on such Rate
Determination Date for loans in U.S. dollars to leading European banks having
the Index Maturity and in a principal amount equal to an amount of not less than
U.S. $1,000,000; provided, however, that if the banks selected as aforesaid are
not quoting as mentioned in this sentence, One-Month LIBOR in effect for the
applicable Interest Period will be One-Month LIBOR in effect for the previous
Interest Period.
"Opinion of Counsel" means (i) with respect to the Issuer, one or more
written opinions of counsel who may, except as otherwise expressly provided in
the Master Indenture, be employees of or counsel to the Issuer or Administrator
or any of their Affiliates and who shall be reasonably satisfactory to the
Indenture Trustee, and which opinion or opinions shall be addressed to the
Indenture Trustee as Indenture Trustee, shall comply with any applicable
requirements of Section 11.1 of the Master Indenture, and shall be in form and
substance reasonably satisfactory to the Indenture Trustee and (ii) with respect
to the Transferor, the Administrator or the Master Servicer, one or more written
opinions of counsel who may be an employee of or counsel to the Transferor, the
Administrator or the Master Servicer, which counsel shall be reasonably
acceptable to the Indenture Trustee and the Eligible Lender Trustee.
"Outstanding" means, as of the date of determination, all Notes
theretofore authenticated and delivered under the Indenture except:
(i) Notes theretofore canceled by the Note Registrar or
delivered to the Note Registrar for cancellation;
(ii) Notes or portions thereof the payment for which money in
the necessary amount has been theretofore deposited with the Indenture
Trustee or any Paying Agent in trust for the Noteholders thereof
(provided, however, that if such Notes are to be redeemed, notice of
such redemption has been duly given or irrevocably provided for
pursuant to the Indenture); and
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(iii) Notes in exchange for or in lieu of other Notes which
have been authenticated and delivered pursuant to the Indenture unless
proof satisfactory to the Indenture Trustee is presented that any such
Notes are held by a bona fide purchaser;
provided that in determining whether the Noteholders of the requisite
Outstanding Amount of the Notes have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or under any other Basic
Document, Notes owned by the Issuer, any other obligor upon the Notes, the
Transferor or any Affiliate of any of the foregoing Persons shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Indenture Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes that a
Responsible Officer of the Indenture Trustee either actually knows to be so
owned or has received written notice thereof shall be do disregarded. Notes so
owned that have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Indenture Trustee the pledgee's
right so to act with respect to such Notes and that the pledgee is not the
Issuer, any other obligor upon the Notes, the Transferor or any Affiliate of any
of the foregoing Persons.
"Outstanding Amount" means the aggregate principal amount of all Notes,
or Class of Notes or Certificates, as applicable, Outstanding at the date of
determination.
"Parity Percentage" means, as of any date of determination, the
fraction expressed as a percentage, the numerator of which is the sum of (i) the
then Pool Balance plus accrued interest thereon due from borrowers, and accrued
Interest Subsidy Payments and Special Allowance Payments, if any, as of the end
of the preceding Collection Period, and (ii) all amounts on deposit (including
any accrued interest thereon) in the Collection Account and the Reserve Account
and the denominator of which is the sum of the aggregate Outstanding Amount of
the Notes and the Certificates, accrued and unpaid interest thereon plus accrued
and unpaid Transaction Fees and Consolidation Loan Fees.
"Parity Percentage Payment" means, with respect to any Distribution
Date, the amount, if any, to be transferred from the Collection Account to the
Note Distribution Account pursuant to Section 5.5(e) of the Transfer and
Servicing Agreement, up to the amount necessary for the Parity Percentage to
equal 101.50% after giving effect to all distributions to be made on such
Distribution Date.
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"Participant" means a Securities Depository Participant.
"Paying Agent" means the Indenture Trustee or any other Person that
meets the eligibility standards for the Indenture Trustee specified in Section
6.12 of the Master Indenture and is authorized by the Issuer to make the
payments to and distributions from the Collection Account and payments of
principal of and interest and any other amounts owing on the Notes on behalf of
the Issuer.
"Person" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, trust (including any beneficiary
thereof), unincorporated organization or government or any agency or political
subdivision thereof.
"PHEAA" means Pennsylvania Higher Education Assistance Agency.
"Physical Property" has the meaning assigned to such term in the
definition of "Delivery" above.
"Pledged Account or Fund" means the Collection Account, the Reserve
Account, the Note Distribution Account and the Certificate Distribution
Account.
"PLUS Loan" means a FFELP Loan made pursuant to the provisions of the
PLUS program established under Section 428B of the Higher Education Act (or
predecessor provisions).
"Pool Balance" means, at any time, the aggregate principal balance of
the Financed Student Loans at the end of the preceding Collection Period
(including accrued interest thereon to the extent such interest was capitalized
as of the end of such Collection Period), after giving effect to the following,
without duplication: (i) all payments in respect of principal received by the
Trust during such Collection Period from or on behalf of borrowers and
Guarantors and, with respect to certain payments on certain Financed Student
Loans, the Department of Education and the Department of HHS, (ii) the principal
portion of all Purchase Amounts received by the Trust for such Collection Period
and (iii) any Subsequent Financed Student Loans conveyed to the Trust and any
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Financed Student Loans conveyed by the Trust in exchange for such Subsequent
Financed Student Loan during such Collection Period, in each case pursuant to
Sections 2.2 and 2.3 of the Transfer and Servicing Agreement.
"Predecessor Note" means, with respect to any particular Note, every
previous Note evidencing all or a portion of the same debt as that evidenced by
such particular Note; and, for the purpose of this definition, any Note
authenticated and delivered under Section 2.7 of the Master Indenture and in
lieu of a mutilated, lost, destroyed or stolen Note shall be deemed to evidence
the same debt as the mutilated, lost, destroyed or stolen Note.
"Primary Servicer" means, with respect to any Financed Student Loan,
the entity responsible for the primary servicing of such Financed Student Loan
on a day to day basis, it being understood that where a subservicer appointed in
accordance with the terms of the Transfer and Servicing Agreement has
responsibility for servicing a Financed Student Loan, such subservicer and not
the Master Servicer shall be the Primary Servicer with respect such Financed
Student Loan.
"Principal Distribution Amount" means, with respect to any Collection
Period, the amount, if any, by which the Pool Balance as of the last day of such
Collection Period is exceeded by the Pool Balance as of the last day of the
preceding Collection Period (or, in the case of the initial Collection Period,
the Cut-off Date).
"Principal Factor" means, as of any Distribution Date for each Class of
Notes, a seven-digit decimal figure equal to the Outstanding Amount of such
Class of Notes (after giving effect to any payments of principal made on such
Distribution Date) divided by the original Outstanding Amount of such Class. The
Principal Factor will be 1.0000000 for each Class of Notes as of the Closing
Date; thereafter, the Principal Factor for each Class of Notes will decline to
reflect reductions in the outstanding principal balance of such Class.
"Proceeding" means any suit in equity, action at law or other
judicial or administrative proceeding.
"Purchase Amount" means, as to any Financed Student Loan on any date of
determination, the amount required to prepay in full the outstanding principal
balance of such Financed Student Loan as of the last day of the most recently
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completed Collection Period, including all accrued but unpaid interest thereon
(including interest to be capitalized) through the last day of the Collection
Period in which such Financed Student Loan is being purchased.
"Purchased Student Loan" means a Financed Student Loan purchased
pursuant to Section 4.5 of the Transfer and Servicing Agreement or repurchased
pursuant to Section 3.2 of the Transfer and Servicing Agreement.
"Qualified Letter of Credit" means a letter of credit delivered or to
be delivered to the Indenture Trustee in lieu of a deposit of cash or Eligible
Investments in the Reserve Account for such Class, which letter of credit shall
(a) be irrevocable and name the Indenture Trustee, in its
capacity as such, as the sole beneficiary thereof;
(b) be issued by a bank whose credit standing is acceptable to each of
the rating agencies which are rating or have rated the Notes of such
Class;
(c) provide that if at any time the then current credit standing of the
issuing bank is such that the continued reliance on such letter of
credit for the purpose or purposes for which it was originally
delivered to the Indenture Trustee would result in a downgrading of any
rating of the Notes of such Class, the Indenture Trustee may either
draw under such letter of credit any amount up to and including the
entire amount then remaining available for drawing thereunder or
terminate such letter of credit;
(d) be transferable to any successor trustee hereunder with
respect to such Class; and
(e) meet such other standards as may be specified in the Terms
Supplement.
"Qualified Institutional Buyer" has the meaning ascribed to such term
in Rule 144A under the Securities Act.
"Quarterly Distribution Date" means the Distribution Date in each
January, April, July and October, commencing April 27, 1998.
"Rate Adjustment Date" has the meaning set forth in the Terms
Supplement.
-29-
"Rate Determination Date" means for the Notes and the Certificates, the
date which is both two Business Days (in New York and Virginia) and two London
Banking Days preceding the related Rate Adjustment Date.
"Rating Agency" means ▇▇▇▇▇'▇, Fitch and Standard & Poor's. If no such
organization or successor is any longer in existence, "Rating Agency" shall be a
nationally recognized statistical rating organization or other comparable Person
designated by the Transferor, notice of which designation shall be given to the
Indenture Trustee, the Eligible Lender Trustee and the Servicer.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have been given 10 days' prior notice thereof and that each
of the Rating Agencies shall have notified the Transferor, the Master Servicer,
the Eligible Lender Trustee and the Indenture Trustee in writing that such
action will not result in and of itself in a reduction or withdrawal of the then
current ratings of each Class of Notes.
"Realized Loss" means, for each Financed Student Loan submitted to a
Guarantor for a Guarantee Payment or the Department of HHS for an Insurance
Payment, the excess, if any, of (i) the unpaid principal balance of such
Financed Student Loan on the date it was first submitted to a Guarantor for a
Guarantee Payment or the Department of HHS for an Insurance Payment over (ii)
all amounts received on or with respect to principal on such Financed Student
Loan (including amounts received pursuant to Section 3.2 and 4.5 of the Transfer
and Servicing Agreement) up through the earlier to occur of (A) the date a
related Guarantee Payment or Insurance Payment is made or (B) the last day of
the Collection Period occurring 12 months after the date the claim for such
Guarantee Payment or Insurance Payment is first denied.
"Record Date" means, with respect to a Distribution Date, the close of
business on the second Business Day (in New York) preceding such Distribution
Date.
"Reference Banks" means four leading banks, selected by the Master
Servicer, or by the Trustee, as applicable, (i) engaged in transactions in
Eurodollar deposits in the international Eurocurrency market, (ii) not an
Affiliate of the Master Servicer, the Administrator or the Transferor and (iii)
and having an established place of business in London.
-30-
"Related Financed Student Loan File" has the meaning specified in
Section 3.8(a) of the Transfer and Servicing Agreement.
"Repayment Phase" means the period during which the related borrower is
required to make payments of principal and interest on the related Financed
Student Loan.
"Requisite Amount" has the meaning set forth in the Terms Supplement.
"Reserve Account" means the account designated as such, established and
maintained pursuant to Section 5.1 of the related Transfer and Servicing
Agreement.
"Reserve Account Initial Deposit" means, $2,190,464.
"Responsible Officer" means, with respect to the Indenture Trustee, any
officer within the Corporate Trust Office of the Indenture Trustee with direct
responsibility for the administration of the Indenture and the other Basic
Documents on behalf of the Indenture Trustee, including any Managing Director,
Vice President, Assistant Vice President, Assistant Treasurer, Assistant
Secretary, or any other officer of the Indenture Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge of and familiarity with the
particular subject.
"Reuters Screen LIBOR Page" will be the display designated as page
"LIBOR" on the Reuters Monitor Money Rates Service (or such other page as may
replace the LIBOR page for the purposes of displaying London interbank offered
rates of major banks).
"Schedule of Financed Student Loans" means the master listing of the
Financed Student Loans set forth in Schedule A-1 to the Transfer and Servicing
Agreement and Schedule A to each Transfer Agreement, in each case as from time
to time amended or supplemented to reflect the Financed Student Loans then
subject to the Lien of the Indenture. The Schedule of Financed Student Loans may
be in the form of microfiche or in the form of electronic media.
"Securities Act" means the Securities Act of 1933, as amended.
-31-
"Securities Depository" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Exchange Act.
"Securities Depository Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Securities
Depository effects book-entry transfers and pledges of securities deposited with
the Securities Depository.
"Senior Notes" means the Class A Notes.
"Senior Noteholder" means the holder of a Senior Note.
"Serial Loan" means a Student Loan that is owned by a third party that
is serial to a Financed Student Loan.
"Servicer" means PHEAA or, subject to satisfying the Rating Agency
Condition, another entity appointed by the Master Servicer to service the
Financed Student Loans, in its capacity as servicer of the Financed Student
Loans.
"Servicer's Report" means any report of the Master Servicer delivered
pursuant to Section 4.8(a) of the Transfer and Servicing Agreement,
substantially in the form acceptable to the Administrator.
"Servicing Fee" means a quarterly fee in an amount equal to (i) 0.70%
per annum of the average of the Pool Balance as of the last day of the calendar
quarter and the last day of the immediately preceding calendar quarter (or the
Cut-off Date with respect to the calendar quarter ending March 31, 1998), or
(ii) such greater amount for which a Rating Agency Condition is satisfied.
"SLS Loan" means a FFELP Loan designated as such that is made under the
Supplemental Loans for Students Program pursuant to the Higher Education Act.
"Special Allowance Payments" means payments, designated as such, by the
Department of Education in respect of the Financed FFELP Loans to the Eligible
Lender Trustee on behalf of the Trust in accordance with the Higher Education
Act.
-32-
"Specified Reserve Account Balance" means, with respect to any
Distribution Date, an amount equal to the greater of (i) 1.00% of the sum of the
Outstanding Amount of the Notes and the Certificate Balance on such Distribution
Date, after giving effect to all payments to be made on such date; or (ii)
$500,000; provided, however, that such balance shall not exceed the sum of the
aggregate Outstanding Amount of the Notes and the Certificate Balance.
"▇▇▇▇▇▇▇▇ Loan" means a student loan designated as such that is made
under ss. 428 of the Higher Education Act (excluding Unsubsidized ▇▇▇▇▇▇▇▇
Loans).
"Standard & Poor's" means Standard & Poor's Rating Services, a division
of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its successors and assigns.
"State" means any one of the ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇ or the District of Columbia.
"Subcustodian" has the meaning specified in Section 3.8 of the
Transfer and Servicing Agreement.
"Subordinated Notes" means the Class B Notes.
"Subordinated Noteholder" means any Noteholder of a Subordinated Note.
"Subsequent Cut-off Date" means the day as to which principal and
interest accruing with respect to an Subsequent Financed Student Loan are
transferred to the Eligible Lender Trustee on behalf of the Issuer pursuant to
Section 2.2 of the Transfer and Servicing Agreement.
"Subsequent Finance Date" means, with respect to any Subsequent
Financed Student Loans, the date specified as such in the related Transfer
Agreement.
"Subsequent Finance Period" means the period commencing on the Closing
Date and ending on December 31, 2002.
"Subsequent Financed Student Loan" means any FFELP Loan or HEAL Loan
transferred to the Eligible Lender Trustee on behalf of the Issuer during the
Subsequent Finance Period pursuant to Section 2.2 of the Transfer and Servicing
Agreement.
"Subsequent Financing Purchase Price" means, as to any Subsequent
Financed Student Loan, the principal amount of such Subsequent Financed Student
Loan as of the Subsequent Cut-off Date for such loan and all accrued and unpaid
interest on (including interest to be capitalized) such Subsequent Financed
-33-
Student Loan (other than Interest Subsidy Payments and Special Allowance
Payments payable through the Subsequent Cut-Off Date) through the Subsequent
Cut-off Date for such loan.
"Subservicing Agreement" has the meaning specified in Section 4.13 of
the Transfer and Servicing Agreement.
"Successor Administrator" has the meaning specified in Section 3.7(e)
of the Indenture.
"Successor Master Servicer" has the meaning specified in Section
3.7(e) of the Indenture.
"Telerate Page 3750" means the display page so designated on the Dow
▇▇▇▇▇ Telerate Service (or such other page as may replace that page on that
service for the purpose of displaying comparable rates or prices).
"Terms Supplement" means, the Terms Supplement to the Indenture dated
as of December 1, 1997 between the Issuer and the Indenture Trustee.
"TP Loans" means all ▇▇▇▇▇▇▇▇ Loans, Unsubsidized ▇▇▇▇▇▇▇▇ Loans and
PLUS Loans with a first disbursement made by the Transferor on or after November
l, 1996.
"TP Program" means the Crestar Bank Top Performer Program and any
similar program with respect to which a Rating Agency Condition is satisfied.
"Transaction Fees" means, collectively, the Servicing Fee, the
Administration Fee, the Indenture Trustee Fee, the Delaware Trustee Fee and
the Eligible Lender Trustee Fee.
"Transfer Agreement" has the meaning set forth in Section 2.2(b) of
the Transfer and Servicing Agreement.
"Transfer and Servicing Agreement" means the Transfer and Servicing
Agreement dated as of December 1, 1997, among the Issuer, the Transferor, the
Administrator, the Eligible Lender Trustee and the Master Servicer, as amended
from time to time.
"Transferor" means Crestar Bank.
"Treasury Regulations" means regulations, including proposed or
temporary regulations, promulgated under the Code. References in any document or
-34-
instrument to specific provisions of proposed or temporary regulations shall
include analogous provisions of final Treasury Regulations or other successor
Treasury Regulations.
"Trust" means the Issuer, established pursuant to the Trust Agreement.
"Trust Account Property" means the Trust Accounts, all amounts and
investments held from time to time in any Trust Account (whether in the form of
deposit accounts, Physical Property, book-entry securities, uncertificated
securities or otherwise), including the Reserve Account Initial Deposit, if any,
and all proceeds of the foregoing.
"Trust Accounts" has the meaning specified in Section 5.1 of the
Transfer and Servicing Agreement.
"Trust Agreement" means the Trust Agreement dated as of December 1,
1997, among the Depositor, the Eligible Lender Trustee and the Delaware Trustee,
as amended and supplemented from time to time.
"Trust Certificate" means a Certificate.
"Trust Certificateholder" means a person in whose name a Trust
Certificate is registered in the Certificate Register.
"Trust Estate" means all right, title and interest of the Trust (or the
Eligible Lender Trustee on behalf of the Trust) in and to (i) the property and
rights assigned to the Trust pursuant to Article II of the Transfer and
Servicing Agreement and each Transfer Agreement, (ii) all funds on deposit from
time to time in the Trust Accounts and (iii) all other property of the Trust
from time to time, including any rights of the Eligible Lender Trustee and the
Trust pursuant to the Transfer and Servicing Agreement, the Administration
Agreement and the other Basic Documents.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939 as
in force on the date hereof, unless otherwise specifically provided.
"UCC" means, unless the context otherwise requires, the Uniform
Commercial Code, as in effect in the relevant jurisdiction, as amended from time
to time.
-35-
"Unsubsidized ▇▇▇▇▇▇▇▇ Loan" means a FFELP Loan designated as such that
is made under ss. 428H of the Higher Education Act.
"▇▇▇▇ Service Errors" has the meaning assigned to such term in the
letter to the Transferor, dated March 7, 1996, from the Department of Education.
-36-
SCHEDULE A-1
TO THE
TRANSFER AND SERVICING AGREEMENT
Schedule of Financed Student Loans
Schedule of Financed Student Loans was delivered to Trustee and is not
included herein.
A-1
SCHEDULE B
TO THE
TRANSFER AND SERVICING AGREEMENT
Location of Financed Student Loan Files
Name of subcustodian Location of Related Financed
Student Loan Files
Pennsylvania Higher ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
Education Assistance ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Agency
B-1
EXHIBIT A
TO THE
TRANSFER AND SERVICING AGREEMENT
Form of Noteholders' Statement
pursuant to Section 5.7(a) of Transfer and
Servicing Agreement (capitalized terms used
herein are defined in Appendix A thereto)
Distribution Date:____________________
(i) Principal Factor
(a) Class A-1 Notes: _________________
(b) Class A-2 Notes: _________________
(c) Class B Notes: _________________
(ii) Amount of principal being paid or distributed:
(a) Class A-1 Notes: _________________
(b) Class A-2 Notes: _________________
(c) Class B Notes: _________________
(d) Certificates: _________________
(iii) (a) Amount of interest being paid or distributed:
(1) Class A-1 Notes: $__ (based on [Formula Interest Rate]
[Net Loan Rate])
(2) Class A-2 Notes: $___(based on [Formula Interest Rate]
[Net Loan Rate])
(3) Class B Notes: $___(based on [Formula Interest Rate]
[Net Loan Rate])
(4) Certificates: $____ (based on [One-Month LIBOR]
[Net Loan Rate])
(b) Applicable Interest Rate:
A-1
(1) Class A-1 Notes: ______%
(2) Class A-2 Notes: ______%
(3) Class B Notes: ______%
(4) Certificates: ______%
(iv) Amount of distribution allocable to any Noteholders' Interest Carryover:
(a) Class A-1 Notes: $____________
(b) Class A-2 Notes: $____________
(c) Class B Notes: $____________
(v) Pool Balance at end of preceding Collection Period: __________
(vii) After giving effect to distributions on this Distribution Date:
(a) outstanding principal amount of Class A-1 Notes: $____________
(b) outstanding principal amount of Class A-2 Notes: $____________
(c) outstanding principal amount of Class B Notes: $____________
(d) Certificate Balance: $____________
(vii) Amount of Servicing Fee, Administration Fee, Indenture Trustee
Fee, Delaware Trustee Fee and Eligible Lender Trustee Fee to be
allocated for the upcoming Distribution Date: ($____________)
(viii) Aggregated amount of Realized Losses (if any) for the Collection
Period immediately preceding the Distribution Date: ____________
(ix) (a) Amount of distribution attributable to amounts
in the Reserve Account: $____________
(b) Amount of other withdrawals from the Reserve Account $____________
(c) Reserve Account Balance $____________
(d) Parity percentage _____%
(e) Amount of Parity Percentage Payments $____________
A-2
(x) The aggregate Purchase Amount paid for Financed Student Loans
purchased from the trust during the immediately preceding
Collection Period: ____________
(xi) During the Subsequent Finance Period only, the aggregate
Issuer 2.3(b) Payments and Adjustment Payments, stated
separately, for the immediately preceding Collection Period:
$____________
(xii) Amount of Financed Student Loans:
(a) that are 31 to 60 days delinquent: $____________
(b) that are 61 to 90 days delinquent: $____________
(c) that are 91 to 120 days delinquent: $____________
(d) that are 120 days delinquent: $____________
(e) for which claims have been filed with the
appropriate Guarantor or the Department
of HHS and which are awaiting payment $____________
A-3
EXHIBIT B
TO THE
TRANSFER AND SERVICING AGREEMENT
Form of Certificateholders' Statement
pursuant to Section 5.7(a) of
Transfer and Servicing Agreement
(capitalized terms used herein are
defined in Appendix A thereto)
Distribution Date:____________________
(i) Principal Factor
(a) Class A-1 Notes: _________________
(b) Class A-2 Notes: _________________
(c) Class B Notes: _________________
(ii) Amount of principal being paid or distributed:
(a) Class A-1 Notes: _________________
(b) Class A-2 Notes: _________________
(c) Class B Notes: _________________
(d) Certificates: _________________
(iii) (a) Amount of interest being paid or distributed:
(1) Class A-1 Notes: $__ (based on [Formula Interest Rate]
[Net Loan Rate])
(2) Class A-2 Notes: $__ (based on [Formula Interest Rate]
[Net Loan Rate])
(3) Class B Notes: $__ (based on [Formula Interest Rate]
[Net Loan Rate])
(4) Certificates: $____ (based on [One-Month LIBOR]
[Net Loan Rate])
(b) Applicable Interest Rate:
B-1
(1) Class A-1 Notes: ______%
(2) Class A-2 Notes: ______%
(3) Class B Notes: ______%
(4) Certificates: ______%
(iv) Amount of distribution allocable to any Noteholders' Interest Carryover:
(a) Class A-1 Notes: $____________
(b) Class A-2 Notes: $____________
(c) Class B Notes: $____________
(v) Pool Balance at end of preceding Collection Period: __________
(vii) After giving effect to distributions on this Distribution Date:
(a) outstanding principal amount of Class A-1 Notes: $____________
(b) outstanding principal amount of Class A-2 Notes: $____________
(c) outstanding principal amount of Class B Notes: $____________
(d) Certificate Balance: $____________
(vii) Amount of Servicing Fee, Administration Fee, Indenture Trustee
Fee, Delaware Trustee Fee and Eligible Lender Trustee Fee to be
allocated for the upcoming Distribution Date: ($____________)
(viii) Aggregated amount of Realized Losses (if any) for the Collection
Period immediately preceding the Distribution Date: $____________
(ix) (a) Amount of distribution attributable to amounts in the
Reserve Account: $____________
(b) Amount of other withdrawals from the Reserve Account $____________
(c) Reserve Account Balance $____________
(d) Parity percentage _____%
(e) Amount of Parity Percentage Payments $____________
B-2
(x) The aggregate Purchase Amount paid for Financed Student Loans
purchased from the Trust during the immediately preceding
Collection Period: ____________
(xi) During the Subsequent Finance Period only, the aggregate
Issuer 2.3(b) Payments and Adjustment Payments, stated
separately, for the immediately preceding Collection Period:
$____________
(xii) Amount of Financed Student Loans:
(a) that are 31 to 60 days delinquent: $____________
(b) that are 61 to 90 days delinquent: $____________
(c) that are 91 to 120 days delinquent: $____________
(d) that are 120 days delinquent: $____________
(e) for which claims have been filed with the
appropriate Guarantor or the Department
of HHS and which are awaiting payment $____________
B-3
EXHIBIT C
TO THE
TRANSFER AND SERVICING AGREEMENT
Form of Administrator's Certificate
[To be provided by the Administrator pursuant to
Section 4.7 of the Transfer and
Servicing Agreement]
EXHIBIT D
TO THE
TRANSFER AND SERVICING AGREEMENT
ASSIGNMENT FOR
FINANCED STUDENT LOANS
For value received, in accordance with the Transfer and Servicing
Agreement (the "Transfer and Servicing Agreement") dated as of December 1, 1997,
among the undersigned, as transferor (the "Transferor"), as master servicer (the
"Master Servicer") and as administrator (the "Administrator"), Crestar Student
Loan Trust 1997-1 (the "Trust"), and Star Bank, National Association, not in its
individual capacity but solely as Eligible Lender Trustee (the "Eligible Lender
Trustee"), the undersigned does hereby contribute, assign, transfer and
otherwise convey unto the Eligible Lender Trustee on behalf of the Trust,
without recourse (subject to the obligations set forth in the Transfer and
Servicing Agreement), all right, title and interest of the undersigned in and to
(i) the FFELP Loans and the HEAL Loans set forth on Schedule A-1 to the Transfer
and Servicing Agreement and all obligations of the Obligors thereunder,
including all monies paid or payable thereunder (other than Interest Subsidy
Payments and Special Allowance Payments to the Cut-off Date) on or after the
Cut-off Date, including the right to enforce such FFELP Loans and HEAL Loans in
the same manner and to the same extent as the Transferor would have the power to
do but for the execution and delivery of the Transfer and Servicing Agreement,
(ii) all funds on deposit from time to time in the Trust Accounts and in all
investments and proceeds thereof (including all income thereon) and (iii) the
proceeds of any and all of the foregoing. The foregoing contribution,
assignment, transfer and conveyance does not constitute and is not intended to
result in any assumption by the Eligible Lender Trustee or the Trust of any
obligation of the Transferor to the borrowers of Initial Financed Student Loans
or any other person in connection with the Financed Student Loans or any
agreement or instrument relating to any of them, except to the extent required
by the Higher Education Act or the HEAL Act, as the case may be.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Transfer and Servicing Agreement and is to be governed by the Transfer and
Servicing Agreement.
D-1
Capitalized terms used but not defined herein shall have the meaning
assigned to them in Appendix A to the Transfer and Servicing Agreement, which
also contains rules as to usage that shall be applicable herein.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed as of [_______,] 1997.
CRESTAR BANK,
as Transferor
By:______________________________
Name:
Title:
D-2
EXHIBIT E
TO THE
TRANSFER AND SERVICING AGREEMENT
TRANSFER AGREEMENT
TRANSFER AGREEMENT No. ___dated as of ,_____, among CRESTAR STUDENT
LOAN TRUST 1997-1, a Delaware business trust (the "Issuer"), CRESTAR BANK, a
Virginia banking corporation, as transferor (the "Transferor"), and STAR BANK,
NATIONAL ASSOCIATION, a national banking association, not in its individual
capacity but solely as Eligible Lender Trustee of the Issuer (the "Eligible
Lender Trustee").
WITNESSETH:
WHEREAS the Issuer, the Transferor, the Eligible Lender Trustee, the
Administrator and the Master Servicer (as defined in the Appendix A to the
Transfer and Servicing Agreement) are parties to the Transfer and Servicing
Agreement dated as of December 1, 1997 (as amended or supplemented, the
"Transfer and Servicing Agreement");
WHEREAS pursuant to the Transfer and Servicing Agreement, the
Transferor wishes to convey the FFELP Loans [and HEAL Loans] referred to in
Section 2 hereof (the "Subsequent Financed Student Loans") to the Eligible
Lender Trustee on behalf of the Issuer; and
WHEREAS, the Eligible Lender Trustee and the Issuer are willing to
accept such conveyance subject to the terms and conditions hereof.
NOW, THEREFORE, the parties hereto hereby agree, intending to be
legally bound hereby, as follows:
1. Definitions and Usage. Unless otherwise defined herein, capitalized
terms used herein shall have the meanings ascribed to them in Appendix A to the
Transfer and Servicing Agreement, which also contains rules of construction and
usage that shall be applicable herein.
In addition, the following terms have the following meanings:
E-1
"Subsequent Finance Date" means, with respect to the
Subsequent Financed Student Loans, [_______].
"Subsequent Cut-Off Date" means, with respect to each Subsequent
Financed Student Loan, the date specified as such on Schedule A hereto.
2. Schedule of Subsequent Financed Student Loans. Attached
hereto as Schedule A is a supplement to the Schedule of Financed Student
Loans listing the Subsequent Financed Student Loans to be conveyed on
the Subsequent Finance Date to the Eligible Lender Trustee on behalf of
the Issuer pursuant to this Agreement. Attached hereto as Schedule B is
a list of Financed Student Loans conveyed to the Transferor by the
Eligible Lender Trustee on behalf of the Issuer in exchange for the
Subsequent Financed Student Loans conveyed pursuant to Section 2.3(b) of
the Transfer and Servicing Agreement, which Schedule B shall be deemed
to modify the Schedule of Financed Student Loans to delete therefrom
such Financed Student Loans being so conveyed to the Transferor.
3. Conveyance of Subsequent Financed Student Loans. In
consideration of the payment of the Subsequent Financing Purchase Price
or, with respect to a conveyance of Subsequent Financed Student Loans
pursuant to Section 2.3(b) of the Transfer and Servicing Agreement, the
Issuer's delivery to or upon the order of the Transferor of the Financed
Student Loans listed on Schedule B attached hereto, the Transferor does
hereby contribute, transfer, assign, set over and otherwise convey,
without recourse (subject to the obligations set forth in the Transfer
and Servicing Agreement), to the Eligible Lender Trustee on behalf of
the Issuer:
(a) all right, title and interest in and to each
Subsequent Financed Student Loan, and all obligations of the
Obligors thereunder, including all moneys paid thereunder
(other than Interest Subsidy Payments and Special Allowance
Payments payable through the Subsequent Cut-Off Date), and all
written communications received by the Transferor with respect
thereto and still retained by the Transferor in accordance with
its retention policies (including borrower correspondence,
notices of death. disability or bankruptcy and requests for
deferments or forbearances), on and after the Subsequent
Cut-Off Date; and
(b) the proceeds of any and all of the foregoing.
E-2
4. Representations and Warranties of the Transferor. The Transferor
hereby represents and warrants to the Issuer as of the date of this Agreement
and as of the Subsequent Finance Date that:
(a) Organization and Good Standing. The Transferor is duly
organized and validly existing as a Virginia banking corporation with
the power and authority to own its properties and to conduct its
business as such properties are currently owned and such business is
presently conducted, except for such power and authority the absence of
which would not have a material adverse effect on the Transferor or its
ability to consummate the transactions contemplated by this Agreement
and the Transferor had at all relevant times, and has, the power,
authority and legal right to originate, acquire and own the Subsequent
Financed Student Loans.
(b) Power and Authority. The Transferor has the requisite
corporate power and authority to execute and deliver this Agreement and
to carry out its terms; the Transferor has requisite corporate power
and authority to transfer and assign the property to be contributed and
assigned to and deposited with the Issuer (or with the Eligible Lender
Trustee on behalf of the Issuer) and the Transferor has duly authorized
such transfer and assignment to the Issuer (or to the Eligible Lender
Trustee on behalf of the Issuer) by all necessary corporate action on
the Transferor's part; and the execution, delivery and performance of
this Agreement have been duly authorized by the Transferor by all
necessary corporate action.
(c) Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of the Transferor enforceable against the
Transferor in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance and
similar laws relating to creditors' rights generally or the rights of
creditors of banks the deposit accounts of which are insured by the
FDIC 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
do not violate, result in any breach of any of the terms and provisions
of, nor constitute (with or without notice or lapse of time or both) a
default under, the charter or by-laws of the Transferor, or any
material indenture, material agreement or other material instrument to
which the Transferor is a party or by which it shall be bound; nor
E-3
result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such material indenture,
material agreement or other material instrument (other than pursuant to
the Basic Documents); nor violate any material law or, to the knowledge
of the Transferor, any material order, rule or regulation applicable to
it of any court or of any federal or State regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Transferor or its properties.
(e) No Proceedings. To its best knowledge, there are no
proceedings or investigations pending or threatened against the
Transferor, before any court, regulatory body, administrative agency or
other governmental instrumentality having jurisdiction over it or its
properties: (i) asserting the invalidity of this Agreement, (ii)
seeking to prevent the consummation of any of the transactions
contemplated by this Agreement, (iii) seeking any determination or
ruling that could reasonably be expected to have a material and adverse
effect on the performance by the Transferor of its obligations under,
or the validity or enforceability of, this Agreement or (iv) seeking to
affect adversely the federal or State income tax attributes of the
Issuer, the Notes or the Certificates.
(f) All Consents. All authorizations, consents, 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
Transferor in connection with the execution and delivery by the
Transferor of this Agreement and the performance by the Transferor of
the transactions contemplated by this Agreement have been duly
obtained, effected or given and are in full force and effect.
(g) Principal Balances. (i) The aggregate principal balance of
the Consolidation Loans, the HEAL Consolidation Loans, the Serial Loans
and the Student Loans transferred by the Transferor pursuant to Section
2.3(b) of the Transfer and Servicing Agreement that are Subsequent
Financed Student Loans listed on Schedule A attached hereto and
conveyed to the Eligible Lender Trustee on behalf of the Issuer
pursuant to this Agreement as of their respective Subsequent Cut-Off
Dates is $________, $________, $_______ and $________, respectively;
(ii) the aggregate principal balance of the Financed Student Loans
E-4
listed on Schedule B attached hereto and to be conveyed to the
Transferor pursuant to Section 2.3(b) of the Transfer and Servicing
Agreement is $_______ ; (iii) the Consolidation Prepayments on deposit
in the Collection Account is $________; (iv) the Issuer 2.3(b) Payments
for the Subsequent Finance Date is $__________; and (v) the Adjustment
Payment for the Subsequent Finance Date is $________.
5. Conditions Precedent. The obligation of the Issuer to acquire the
Subsequent Financed Student Loans hereunder is subject to the satisfaction, on
or prior to the Subsequent Finance Date, of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Transferor in Section 4 of
this Agreement and the representations and warranties made with respect
to the Subsequent Financed Student Loans in Section 3.1 of the Transfer
and Servicing Agreement shall be true and correct in all material
respects as of the date of this Agreement and as of the Subsequent
Finance Date.
(b) Transfer and Servicing Agreement Conditions. Each of the
conditions set forth in Section 2.2(b) of the Transfer and Servicing
Agreement shall have been satisfied.
(c) Delivery of Assignment. The Transferor shall have
delivered an Assignment substantially in the form of Annex A hereto.
Upon the satisfaction of the conditions set forth in this Section 5,
the Eligible Lender Trustee shall have executed and delivered to the Transferor
an Assignment, substantially in the form of Annex B hereto, with respect to any
Financed Student Loans to be conveyed to the Transferor pursuant to Section
2.3(b) of the Transfer and Servicing Agreement, and direct the Indenture Trustee
to transfer to the Transferor the Subsequent Financing Purchase Price in
immediately available funds to an account designated in writing by the
Transferor to the Indenture Trustee.
6. Ratification of Agreement. As supplemented by this Agreement, the
Transfer and Servicing Agreement is in all respects ratified and confirmed and
the Transfer and Servicing Agreement as so supplemented by this Agreement shall
be read, taken and construed as one and the same instrument.
7. Counterparts. This Agreement may be executed in separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute but one and the same instrument.
E-5
8. Governing Law. This Agreement shall be construed in accordance with
the laws of the State of New York, 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.
9. Headings. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective duly authorized officers as of
the day and the year first above written.
CRESTAR STUDENT LOAN TRUST
1997-1
By: STAR BANK, NATIONAL
ASSOCIATION, not in its
individual capacity but
solely as Eligible Lender
Trustee
By:______________________________________________________
Name:
Title:
STAR BANK, NATIONAL
ASSOCIATION,
not in its individual
capacity but solely as
Eligible Lender Trustee
By:
----------------------------
Name:
Title:
▇-▇
▇▇▇▇▇▇▇ ▇▇▇▇, as
Transferor
By:
-----------------------------
Name:
Title:
Acknowledged and accepted as of the date first above written:
BANKERS TRUST COMPANY,
not in its individual capacity but solely as
Indenture Trustee
By _________________________________________________
Name:
Title:
E-7
ANNEX A
TO THE TRANSFER AGREEMENT
ASSIGNMENT
For value received, in accordance with the Transfer and Servicing
Agreement (the "Transfer and Servicing Agreement") dated as of December 1, 1997,
among the undersigned, as transferor (the "Transferor"), as master servicer and
as administrator, Crestar Student Loan Trust 1997-1 (the "Trust"), Star Bank,
National Association, not in its individual capacity but solely as Eligible
Lender Trustee (the "Eligible Lender Trustee"), and the Transfer Agreement No.
__ dated as of____, (the "Transfer Agreement") among the Transferor, the Trust
and the Eligible Lender Trustee, the undersigned does hereby contribute, assign,
transfer and otherwise convey unto the Eligible Lender Trustee on behalf of the
Trust, without recourse (subject to the obligations set forth in the Transfer
and Servicing Agreement), all right, title and interest of the undersigned in
and to (i) the Subsequent Financed Student Loans and all obligations of the
Obligors thereunder, including all moneys paid or payable thereunder (other than
Interest Subsidy Payments and Special Allowance Payments through the related
Subsequent Cut-Off Date) after the related Subsequent Cut-Off Date and (ii) the
proceeds of any and all of the foregoing. The foregoing contribution,
assignment, transfer and conveyance does not constitute and is not intended to
result in any assumption by the Eligible Lender Trustee or the Trust of any
obligation of the Transferor to the borrowers of such Subsequent Financed
Student Loans or any other person in connection with the Subsequent Financed
Student Loans or any agreement or instrument relating to any of them, except to
the extent required by the Higher Education Act or the HEAL Act, as the case may
be.
In addition, the undersigned, by execution of this instrument, hereby
endorses the promissory notes evidencing each Subsequent Financed Student Loan
described in Schedule A to the Transfer Agreement in favor of the Eligible
Lender Trustee on behalf of the Trust, without recourse (subject to the
obligations set forth in the Transfer and Servicing Agreement) against the
undersigned. This endorsement may be effected by attaching a facsimile hereof to
each or any of such promissory notes.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Transfer and Servicing Agreement and the Transfer Agreement and is to be
governed by the Transfer and Servicing Agreement and the Transfer Agreement.
A-1
Capitalized terms used but not defined herein shall have the meaning
assigned to them in the Transfer Agreement or in Appendix A to the Transfer and
Servicing Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to
be duly executed as of______
CRESTAR BANK,
as Transferor
By:
-----------------------------------
Name:
Title:
A-2
ANNEX B
TO THE TRANSFER AGREEMENT
ASSIGNMENT
For value received, in accordance with the Transfer and Servicing
Agreement (the "Transfer and Servicing Agreement") dated as of December 1, 1997,
among the undersigned, (the "Trust"), as Master Servicer and as Administrator
(the "Transferor"), and Star Bank, National Association, not in its individual
capacity but solely as Eligible Lender Trustee (the "Eligible Lender Trustee"),
and the Transfer Agreement No. __ dated as of ____________, ____ (the "Transfer
Agreement") among the Transferor, the Trust and the Eligible Lender Trustee, the
undersigned does hereby contribute, assign, transfer and otherwise convey unto
the Transferor, without recourse (subject to the obligations set forth in the
Transfer and Servicing Agreement), all right, title and interest of the
undersigned in and to (i) the Financed Student Loans set forth on Schedule B to
the Transfer Agreement and all obligations of the Obligors thereunder, including
all moneys paid or payable thereunder (other than Interest Subsidy Payments and
Special Allowance Payments through the related Subsequent Cut-off Date) after
the related Subsequent Cut-off Date and (ii) the proceeds of any and all of the
foregoing. The foregoing contribution, assignment. transfer and conveyance does
not constitute and is not intended to result in any assumption by the Transferor
of any obligation of the Eligible Lender Trustee or the Trust to the borrowers
of such Financed Student Loans or any other person in connection with such
Financed Student Loans or any agreement or instrument relating to any of them,
except to the extent required by the Higher Education Act or the HEAL Act, as
the case may be.
In addition, the undersigned, by execution of this instrument, hereby
endorses the promissory notes evidencing each Financed Student Loan described in
Schedule B to the Transfer Agreement in favor of the Transferor, without
recourse, against the undersigned. This endorsement may be effected by attaching
a facsimile hereof to each or any of such promissory notes.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the
Transfer and Servicing Agreement and the Transfer Agreement and is to be
governed by the Transfer and Servicing Agreement and the Transfer Agreement.
B-1
Capitalized terms used but not defined herein shall have the meaning
assigned to them in the Transfer Agreement or in Appendix A to the Transfer and
Servicing Agreement.
IN WITNESS WHEREOF, the undersigned has caused this Assignment to
be duly executed as of______
CRESTAR STUDENT LOAN TRUST
1997-1
By: STAR BANK, NATIONAL
ASSOCIATION,
not in its individual
capacity but solely as
Eligible Lender Trustee
on behalf of the Trust
By:
---------------------------
Name:
Title:
B-2
B-4
SCHEDULE A
TO THE TRANSFER AGREEMENT NO.____
[List of Subsequent Financed Student Loans and
their related Subsequent Cut-Off Dates]
B-1
SCHEDULE B
TO THE TRANSFER AGREEMENT NO.___
[List of Financed Student Loans
to be Conveyed to the Transferor]
B-2
EXHIBIT F
TO THE
TRANSFER AND SERVICING AGREEMENT
OFFICER'S CERTIFICATE
REQUIRED BY SECTION 2.2(b)(viii) OF THE TRANSFER AND SERVICING AGREEMENT
The undersigned, _____________________, a _____________ of Crestar Bank
(the "Transferor"), hereby certifies for and on behalf of the Transferor as
follows:
1. this Certificate is given pursuant to Section 2.2(b)(viii) of the
Transfer and Servicing Agreement (the "Transfer and Servicing Agreement"), dated
as of December 1, 1997, among the Transferor, Crestar Student Loan Trust 1997-1
(the "Trust"), and Star Bank, National Association, not in its individual
capacity but solely as Eligible Lender Trustee (the "Eligible Lender Trustee"),
and the Transfer Agreement No. __ dated as of____________, ____ (the "Transfer
Agreement") among the Transferor, the Trust and the Eligible Lender Trustee, in
connection with the transfer of certain Subsequent Financed Student Loans on the
date hereof;
2. any words or phrases capitalized in this Certificate but not
defined herein shall have the meaning assigned thereto in the Transfer and
Servicing Agreement;
3. the undersigned is an Authorized Officer of the Transferor; and
4. with respect to the transfer on the date hereof of Subsequent
Financed Student Loans and the other property and rights related thereto as
described in Section 2.2(a) of the Transfer and Servicing Agreement, each of the
conditions precedent set forth in Section 2.2(b) of the Transfer and Servicing
Agreement have been satisfied on or prior to the date hereof.
IN WITNESS WHEREOF, the undersigned, being duly authorized, has caused
this certificate to be executed and delivered as of this ____ day of ________,
____.
CRESTAR BANK
B-3
By:
---------------------------
-----------------------
Its ___________________
DOC # 106573 V1