EXHIBIT 10.2
GREAT LAKES EDUCATIONAL LOAN SERVICES, INC.
STUDENT LOAN ORIGINATION AND SERVICING AGREEMENT
This Agreement, is made as of April 16, 2003 among GREAT LAKES
EDUCATIONAL LOAN SERVICES, INC. ("Great Lakes"), a Wisconsin corporation, and
FIFTH THIRD BANK, as eligible lender trustee (the "Eligible Lender Trustee") on
behalf of Education Funding Capital Trust-II, a Delaware business trust (the
"Trust"), (the Eligible Lender Trustee and the Trust are collectively referred
to as the "Lender"), Lender # 834042 Portfolio #s 854042, 855042, 856042 and
890042 (and any other subportfolio numbers assigned), an eligible institution
engaged in providing loans ("Student Loans") to students and parents under Title
IV, Part B of the Higher Education Act of 1965, as amended (hereinafter the
"Act") and EDUCATION LENDING SERVICES, INC., as Master Servicer (the "Master
Servicer").
W I T N E S S E T H:
Whereas, Great Lakes has established a program for originating and
servicing Student Loans under the Act; and
Whereas, the Trust has issued and will issue Education Loan Backed Notes
(the "Notes"), pursuant to the Indenture of Trust dated as of April 1, 2003 (the
"Indenture") among the Trust, the Eligible Lender Trustee and Fifth Third Bank
as the Indenture Trustee (the "Indenture Trustee"); and
Whereas, pursuant to the Indenture, the Trust and the Eligible Lender
Trustee have granted a security interest in certain Student Loans (the "Financed
Student Loans") to the Indenture Trustee in order to secure the Trust's
obligation to repay the Notes; and
Whereas, pursuant to a Servicing Agreement among Master Servicer, the
Trust and the Eligible Lender Trustee, Education Lending Services, Inc. has
agreed to act as Master Servicer of the Financed Student Loans and, in
connection therewith, desires to enter into a subservicing agreement with Great
Lakes relating to the servicing of the Financed Student Loans.
Now Therefore, in consideration of the promises and the terms and
conditions set forth herein, the Master Servicer and Great Lakes agree as
follows:
1. STUDENT LOANS TO BE SERVICED.
Great Lakes and the Master Servicer agree that Great Lakes shall service
all Student Loans covered by the Act that are made or purchased by the Eligible
Lender Trustee, on behalf of the Trust, and that are guaranteed by Great Lakes
Higher Education Guaranty Corporation ("GLHEGC") and that are submitted to Great
Lakes by the Master Servicer and accepted by Great Lakes for servicing.
GREAT LAKES' DUTIES AS ORIGINATOR.
Great Lakes covenants and agrees to originate each Financed Student Loan
in compliance with all requirements of the Act, the guaranty agreement between
the Eligible Lender Trustee and GLHEGC (the "Guaranty Agreement") and all other
laws and regulations applicable to its activities hereunder.
(a) Origination of Student Loans. Great Lakes agrees with Master
Servicer to provide the following services and to coordinate processing as
required to enable the guarantee by GLHEGC:
(1) Great Lakes agrees to coordinate with GLHEGC the
processing of all properly completed Student Loan applications within
one business day after receipt of all required information from the
borrower, the school, and, for PLUS loans, the credit bureau. This
standard shall be met if 90% of all Student Loans are processed within
this one day period. Student Loan application forms shall identify the
Lender and shall be sent to a separate post office box, as provided on
the Student Loan application form. Lender has sole authority to
determine the schools from which it will accept borrower applications.
(2) If either the Student Loan application form or the
promissory note are not properly completed, Great Lakes shall promptly
notify the school or the borrower, whomever is appropriate, to resolve
the deficiencies.
(3) Great Lakes will perform a credit check to determine
whether or not PLUS borrowers have adverse credit as required by the
Act. If there is no indication of adverse credit, Great Lakes will
document this finding and will submit the loan information to GLHEGC for
guarantee processing.
If adverse credit is indicated under a strict interpretation of
the federal regulations, Great Lakes will mail a Master Servicer
approved denial notice to the borrower.
(4) If the Student Loan application form and note are
properly completed:
(i) Great Lakes will coordinate GLHEGC's processing
of the Student Loan for guarantee.
(ii) Upon guarantee of the Student Loan, Great Lakes,
as Lender's agent, shall prepare a disclosure statement in
accordance with federal regulations and shall make the required
disbursements of the Student Loan. These disbursement checks
shall be drawn against a checking account maintained by Great
Lakes. The Master Servicer shall cause this account to be funded
on a daily basis by an ACH transfer initiated by Great Lakes to
cover all disbursements made that day. Great Lakes will pay all
transaction costs associated with the account including the cost
of standard checks and will receive all investment earnings on
balances existing from time to
time in the account. Great Lakes will reconcile the account and
will confirm that all disbursements are included in the regular
periodic reports provided to the Master Servicer. Great Lakes
will also manage the payment of guaranty fees on behalf of the
Master Servicer.
(iii) Great Lakes shall mail the check and two copies
of the disclosure statement to the school. One copy of the
disclosure statement will be provided to the student along with
the disbursement check, and the other copy will be retained by
the school. For schools with whom the Master Servicer has
authorized Great Lakes to process Electronic Funds Transfers,
Great Lakes agrees to perform those lender duties and
responsibilities specified in the Common Manual: Unified Student
Loan Policy, as amended from time to time (the "Guarantor's
Common Manual").
(iv) Great Lakes shall provide and/or coordinate the
mailing of appropriate reports regarding Student Loans to the
Master Servicer, including guarantee activity reports, check
registers, and disbursement reports.
(5) Great Lakes shall respond to all borrower inquiries in a
prompt, courteous and thorough manner.
(b) Document Handling.
(1) Great Lakes shall capture and retain a copy of each
promissory note and each disclosure statement on its image system and
shall store a backup image copy in a remote facility.
(2) Great Lakes shall hold the original Student Loan
documents, including the original promissory note, a copy of the Student
Loan application and the disclosure statement for safekeeping.
2. GREAT LAKES' DUTIES AS SERVICER.
Great Lakes covenants and agrees to service each Financed Student Loan
in compliance with all requirements of the Act, the Guaranty Agreement and all
other laws and regulations applicable to its activities hereunder and to perform
all services and duties customary to the servicing of Student Loans. Without
limiting the foregoing, in fulfillment of its obligations hereunder, Great Lakes
shall do the following.
(a) Great Lakes as servicer of the Student Loans shall perform all
of the Eligible Lender Trustee's and Trust's obligations as holder of Student
Loans as required by the Act and all regulations issued by the U.S. Department
of Education (the "Department") or by GLHEGC to implement the Act. Great Lakes
shall have full power to sign and act on the Trust's and Eligible Lender
Trustee's behalf as their agent in all transactions with borrowers serviced
hereunder. The
Trust and Eligible Lender Trustee do hereby authorize, constitute, and appoint
Great Lakes on its behalf and as its attorney in fact, to endorse those
promissory notes for which a claim has been filed with GLHEGC. Great Lakes will
carry out its responsibilities hereunder in a diligent and lawful manner.
(b) Great Lakes shall complete all forms and reports required by the
U.S. Department of Education and by GLHEGC.
(c) Great Lakes shall prepare a "Lender's Request for Payment of
Interest and Special Allowance" to be used in billing the Department for
interest and the special allowance for all eligible loans on a quarterly basis.
Great Lakes agrees to submit the billing to the Department within 30 days
following the last day of each quarter (March 31, June 30, September 30,
December 31). In the event that Great Lakes does not submit the billing to the
Department within 30 calendar days following the last day of each quarter, and
such failure is not attributable to action or inaction by the Master Servicer,
Eligible Lender Trustee, the Trust, or the Department, the Trust shall be
entitled to payment by Great Lakes of penalty interest. Such penalty interest
shall be calculated on the actual amount of interest subsidies and special
allowance payments that the Eligible Lender Trustee is entitled to receive from
the Department on the Student Loans covered by the billing report and for the
time period between such 30th day through the date that said billing report is
filed with the Department by Great Lakes using the LIBOR rate, as quoted in the
Wall Street Journal, for the period closest in term to the actual number of days
covered by penalty period.
Great Lakes shall accrue and capitalize interest on those Student Loans
not eligible for interest subsidy.
(d) Great Lakes shall verify the current status of all borrowers not
less often than annually through direct contact with each borrower to ensure
correct account information. Great Lakes shall also seek to verify the
borrower's status by direct or indirect contact with educational institutions.
(e) Great Lakes shall respond to all borrower inquiries in a prompt,
courteous and thorough manner.
(f) When a Student Loan becomes due for repayment, Great Lakes shall
prepare a payment schedule and disclosure statement and mail it to the borrower
for signature(s). Prior to the first payment due date, repayment coupons will be
prepared and sent to the borrowers.
(g) Great Lakes shall post to the borrower's account all payments of
principal, interest and other charges.
(h) Great Lakes shall provide reports to the Master Servicer and
Indenture Trustee of all monetary transactions as well as periodic summary and
account information as required in the "Lender Service Manual" including such
items as:
(1) Detailed periodic reports to support all cash
transactions processed;
(2) Monthly portfolio summary reports and supporting data
listings;
(3) A monthly listing of delinquent accounts; and
(4) A quarterly report of xxxxxxxx to the Department for
interest and special allowances.
(i) Great Lakes shall automatically credit the Trust's account
whenever a borrower overpays an account by less than $5.00, and the Master
Servicer, at its discretion, acting on behalf of the Trust, can reimburse the
borrower. When the overpayment is more than $5.00, Great Lakes shall remit the
overpayment directly to the borrower. When a borrower's balance owing is less
than $10.00, Great Lakes may, at its discretion, write-off the balance.
(j) Great Lakes shall handle all required borrower contact functions
and shall meet all servicing "due diligence" requirements, as that term is used
under the Act and implementing regulations. Such functions include, for example,
skip tracing, contacting delinquent borrowers, handling borrower requests for
extensions or deferments, and preparing and processing claims, including death,
disability, default, closed school, false certification and bankruptcy claims.
(k) Great Lakes agrees to prepare and submit all papers and
documents necessary to strictly follow reimbursement procedures specified in the
Guarantor's Common Manual upon default of borrower and further agrees to
promptly remit proceeds to the Indenture Trustee upon receipt from the
Guarantor.
(l) Great Lakes shall capture and retain a copy of each promissory
note and each disclosure statement on its image system and shall store a backup
image copy in a remote facility. Great Lakes shall hold the original Student
Loan documents, including the original promissory note, a copy of the Student
Loan application and the disclosure statement for safekeeping.
(m) Great Lakes shall provide immediate notice to the Master
Servicer and the Indenture Trustee of any proceeding or action filed, asserted
or threatened against Great Lakes that, if decided unfavorably to Great Lakes,
would adversely impact Great Lakes' status as an eligible "third-party
servicer".
(n) Great Lakes shall maintain a complete and separately identified
record for the Financed Student Loans of each borrower, inclusive of all
documentation and correspondence related to the Financed Student Loans.
(o) Great Lakes shall prepare and maintain accounting records with
respect to the Financed Student Loans; process refunds and other adjustments;
process address changes and maintain address records.
(p) Great Lakes shall collect all payments with respect to Financed
Student Loans and deliver all such payments to the Indenture Trustee, including
without limitation guarantee payments, with respect to the Financed Student
Loans. Great Lakes shall remit collected funds by automated clearing house
within three (3) business days of receipt to the Indenture Trustee.
(q) Great Lakes shall retain summary records of contacts, follow-ups
and collections efforts, and records of written correspondence relating to the
Financed Student Loans of each borrower sufficient to ensure claim payment.
(r) Great Lakes shall process adjustments including NSF checks,
status changes, forbearances, deferments and Financed Student Loans paid in
full.
(s) Great Lakes shall at all times identify the Trust and the
Eligible Lender Trustee as the owners of the Financed Student Loans and identify
the Indenture Trustee as a party which has a security interest in the Financed
Student Loans.
(t) Great Lakes shall establish and maintain a method for charging
and collecting late payment fees in accordance with provisions of the Act and
all other applicable laws and regulations.
(u) Great Lakes shall act as custodian and bailee with respect to
all original documents and hold them subject to the lien of the Indenture in
favor of the Indenture Trustee and pursuant to a bailment in a form satisfactory
to Great Lakes, the Master Servicer, and the Eligible Lender Trustee.
(v) If any Financed Student Loan has lost its guarantee and/or
insurance due to the actions of any prior issuer, servicer or holder of the
Financed Student Loan, Great Lakes will, at the written request of the Master
Servicer, use its best efforts to reinstate such guarantee or insurance;
provided, however, that Great Lakes makes no representation that such
reinstatement will occur. Such services shall be provided at the cost agreed
upon by the Master Servicer and Great Lakes.
(w) Great Lakes shall provide, or cause to be provided to the Master
Servicer, on a monthly basis, information needed to determine the monthly rebate
fees.
4. DUE DILIGENCE.
Great Lakes covenants and agrees that in discharging its obligations
hereunder it shall:
a. Exercise due diligence in the servicing and collection of all
Financed Student Loans as the term "due diligence" is used in
the Act and further defined in the regulations of the applicable
guarantor.
b. Exercise reasonable care and diligence in the administration and
collection of all Financed Student Loans utilizing practices in
accordance with all federal and state
laws and regulations promulgated thereunder that are applicable
to its activities conducted with respect to Financed Student
Loans that are authorized under the Act.
c. Administer and service the Financed Student Loans in a
competent, diligent and orderly fashion, and in accordance with
the requirements of the Act.
5. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF GREAT LAKES.
Great Lakes makes the following representations, warranties and
covenants to the Master Servicer on the date of this Agreement.
(a) Great Lakes (i) is duly incorporated, validly existing, and in
good standing under the laws of the jurisdiction in which it is
incorporated; (ii) is duly qualified to transact business and is
in good standing as a foreign corporation in each jurisdiction
where the nature and extent of its business and properties
require due qualification and good standing; (iii) possesses all
requisite authority, permits and power to conduct its business
as contemplated by this Agreement including, without limitation,
eligibility as a third-party servicer under the Act; and (iv) is
in compliance with all applicable federal and state laws and
regulations.
(b) The execution and delivery by Great Lakes of this Agreement and
the performance of its obligations hereunder (i) are within its
corporate power, (ii) have been duly authorized by all necessary
corporate action, (iii) require no action by or filing with any
governmental agency, except for any action or filing that has
been taken or made on or before the date of this Agreement; and
(iv) do not violate any provision of its articles of
incorporation or bylaws.
(c) Great Lakes will maintain in effect all qualifications required
in order to service the Financed Student Loans and comply in all
material respects with all requirements of law if a failure to
comply would have a materially adverse effect its ability to
service the Financed Student Loans.
(d) Great Lakes will not permit any rescission or cancellation of a
Financed Student Loan except as ordered by a court or other
government authority, as consented to by the Eligible Lender
Trustee and the Indenture Trustee, or as permitted under Section
3(i) of this Agreement.
(e) Great Lakes will not reschedule, revise, defer or otherwise
compromise payments due on any Financed Student Loan except
during any applicable interest only, deferral or forbearance
periods or otherwise in accordance with all applicable standards
and requirements for servicing of the Financed Student Loans.
(f) All Great Lakes financial statements delivered to the Master
Servicer were prepared according to U.S. generally accepted
accounting principles ("GAAP") consistently applied and present
fairly, in all material respects, the financial condition,
results of operations and cash flows of Great Lakes.
(g) No event which could cause a material adverse effect on Great
Lakes' financial condition has occurred, and if such event shall
occur, Great Lakes shall promptly give the Master Servicer and
the Indenture Trustee notice thereof.
(h) Great Lakes is not subject to, or aware of the threat of, any
litigation that is reasonably likely to be determined adversely
to it and that, if so adversely determined, would have a
material adverse effect on its financial condition or its
ability to meet its obligations under this Agreement and no
outstanding or unpaid judgments against Great Lakes exist, and
if such event shall occur, Great Lakes shall promptly give the
Master Servicer notice thereof.
(i) Until all Financed Student Loans serviced hereunder have been
repaid in full, or paid as a claim the Guarantor, or transferred
to another servicer, Great Lakes agrees as follows:
(i) Great Lakes shall cause to be furnished to the Master
Servicer its financial statements within one hundred
twenty (120) days after the end of each fiscal year
audited by nationally recognized independent certified
public accountants.
(ii) Great Lakes shall maintain books, records and accounts
necessary to prepare financial statements according to
GAAP and maintain adequate internal financial controls.
(iii) Great Lakes shall maintain all licenses, permits, and
franchises necessary for its business.
(j) This Agreement will, upon execution and delivery by all parties
thereto, constitute a legal and binding obligation of Great
Lakes, enforceable against Great Lakes according to its terms.
(k) The above representations, warranties and covenants, or any
breach thereof, shall not independently give rise to any cause
of action or claim for damages in the absence of monetary loss
or other material breach by Great Lakes of the terms and
conditions of this Agreement.
6. GREAT LAKES DEFAULT.
Each of the following constitutes a "Great Lakes Default"
hereunder:
(a) any failure by Great Lakes to deliver to the Indenture Trustee
any payment required pursuant to Section 3(p) of this Agreement,
which failure continues unremedied for three (3) business days
after written notice of such failure is received by Great Lakes
from the Eligible Lender Trustee, the Indenture Trustee or the
Master Servicer or after discovery of such failure by an officer
of Great Lakes;
(b) any material breach of a representation or warranty of Great
Lakes contained in Section 5 of this Agreement or like failure
by Great Lakes duly to observe or to perform in any material
respect any term, covenant or agreement set forth in this
Agreement, which breach or failure shall (i) materially and
adversely affect the rights of Noteholders or any Counterparties
(for purposes of this Agreement "Noteholders" and
Counterparties" shall have such meaning as is set forth in the
Indenture) and (ii) continue unremedied for a period of sixty
(60) days after the date of discovery of such failure by an
officer of Great Lakes or after written notice of such breach or
failure, requiring the same to be remedied, shall have been
given to Great Lakes, by the Indenture Trustee, the Eligible
Lender Trustee or the Master Servicer;
(c) Great Lakes shall have commenced a voluntary case or other
proceeding seeking liquidation, reorganization, or other relief
with respect to itself or its debts under any bankruptcy,
insolvency, or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator,
custodian, or other similar official of it or any substantial
part of its property, or shall have made a general assignment
for the benefit of creditors, or shall have declared a
moratorium with respect to its debts or shall have failed
generally to pay its debts as they become due, or shall have
taken any action to authorize any of the foregoing; or an
involuntary case or other proceeding shall have been commenced
against Great Lakes seeking liquidation, reorganization, or
other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver,
liquidator, custodian, or other similar official of it or any
substantial part of its property, provided such action or
proceeding is not dismissed within 60 days.
(d) any failure by Great Lakes to comply with any requirements under
the Act resulting in a loss of its eligibility as a third-party
servicer.
7. RIGHTS UPON GREAT LAKES DEFAULT.
In each and every case, so long as the Great Lakes Default shall not
have been remedied, the Master Servicer, by notice then given in writing to
Great Lakes may terminate all the rights and
obligations (other than the rights and obligations set forth in Section 10
hereof) of Great Lakes under this Agreement.
As of the effective date of termination of Great Lakes, all authority
and power of Great Lakes under this Agreement, whether with respect to the
Financed Student Loans or otherwise, shall, without further action, pass to and
be vested in the Master Servicer or such successor servicer as may be appointed,
and all files shall be disposed of pursuant to the procedures proscribed by
Section 13(b) hereof.
8. MASTER SERVICER'S RESPONSIBILITIES.
Master Servicer agrees to promptly notify Great Lakes in such form as
may from time to time be specified by Great Lakes, of any transactions involving
the Lender and the borrower and/or changes in status or demographic data on any
of its accounts if received from sources other than Great Lakes. Master Servicer
specifically agrees to promptly notify Great Lakes of any bankruptcy action
taken with respect to any Student Loan.
9. FEES.
The Master Servicer agrees to pay Great Lakes the fees established by
Great Lakes from time to time for services rendered pursuant to this Agreement.
The current fee schedule is attached to this Agreement as Schedule A. Increases
or decreases in such schedule may be made from time to time; provided, however,
that the Master Servicer shall be given 60 days written notice prior to the
effective date of any change in the fee schedule. Such effective date shall be
the beginning of a calendar quarter (April 1, July 1, October 1, January 1).
Statements for services rendered will be provided on a monthly basis and are
payable upon receipt.
10. LIABILITY.
(a) Great Lakes shall exercise care and due diligence in performing
the services required by this Agreement. To the extent that Great Lakes is
required to appear in, or is made a defendant in any legal action or other
proceeding commenced by a party other than Master Servicer with respect to any
matter arising hereunder, Master Servicer shall indemnify and hold Great Lakes
harmless from all loss, liability and expense (including reasonable attorney's
fees) except for any loss, liability or expense arising out of or relating to
Great Lakes' acts or omissions with regard to the performance of services
hereunder.
(b) Subject to paragraph 18 below, Great Lakes shall indemnify and
hold Master Servicer, Trust (and its assigns, including the Noteholders) and the
Eligible Lender Trustee and their respective officers, directors, employees and
agents harmless from all loss, liability and expense (including reasonable
attorney's fees) arising out of or relating to Great Lakes' acts or omissions
with regard to the performance of services hereunder; provided, however, that
Great Lakes shall not be liable in the performance of such services except for
its negligence or misconduct and provided
further that in no event shall Great Lakes be responsible or liable for any
consequential damages with respect to any matter whatsoever arising out of this
Agreement.
(c) Either party shall have the right to mitigate its liability
under this Agreement by taking such actions as may be appropriate, including but
not limited to reperformance.
(d) Except as to Student Loans originated by Great Lakes, (i) Great
Lakes does not assume, and acceptance for servicing shall not result in, any
responsibility for the correctness or completeness of Student Loan-related
papers transmitted to Great Lakes as a part of or in conjunction with the
commitment of any Student Loans to Great Lakes for servicing under this
Agreement or under a separate Servicing Agreement with Education Lending
Services, Inc. or any affiliate of Education Lending Services, Inc., and (ii)
Great Lakes shall not be responsible for any procedural errors or omissions
(including due diligence violations) which may have occurred prior to initiation
of servicing of a Student Loan by Great Lakes under this Agreement or under a
separate Servicing Agreement with Education Lending Services, Inc. or any
affiliate of Education Lending Services, Inc.
(e) If a Financed Student Loan is denied the guarantee by GLHEGC or
the loss of federal interest, special allowance, and/or insurance benefits,
Great Lakes shall have the right to take any action not prohibited by law or
regulation to reduce its losses, if any, hereunder, including but not limited to
curing, at its own expense (to the extent such expenses exceed Great Lakes
standard servicing fee), any origination, due diligence or other servicing
violation under this Agreement or under a separate Servicing Agreement with
Education Lending Services, Inc. or any affiliate of Education Lending Services,
Inc. . If any lost guarantee is not reinstated within twelve (12) months of the
date Great Lakes learns of the loss of the guarantee on a Financed Student Loan,
Great Lakes shall take actions which make the Trust whole with respect to the
Financed Student Loan while maintaining the eligibility for future reinstatement
of the guarantee; provided, however, Great Lakes may delay taking such actions
by giving written notice to the Master Servicer not less often than each ninety
(90) days that Great Lakes has reason to believe that the guarantee will be
reinstated within time frames permitted by regulations. If Great Lakes gives
notice of such delay, Great Lakes agrees to pay any accrued interest on the
Financed Student Loans that may be uninsured.
(f) Master Servicer shall enforce its rights under this Section 10
on behalf of the Trust. The parties hereby agree that the Indenture Trustee or
the Trust, for the benefit of the Noteholders, may enforce the Master Servicer's
rights under this Section 10 in the event that the Master Servicer shall fail to
enforce such rights.
11. CONFIDENTIALITY.
Information about each borrower furnished to Great Lakes hereunder is
furnished upon the express condition that the information will be kept
confidential by Great Lakes. All such information, except as may be otherwise
required by statute, by court order or as may be necessary in Great Lakes'
reasonable judgment to the performance of the services required under this
Agreement,
shall be held in confidence by Great Lakes. Great Lakes, in its capacity as
subservicer, shall comply with all applicable requirements of Xxxxx-Xxxxx Xxxxxx
Act.
12. EXAMINATION OF RECORDS.
The Trust, the Master Servicer, the Eligible Lender Trustee, the
Indenture Trustee or any governmental agency having jurisdiction over any of the
same, or their designated representatives may at any time during Great Lakes'
regular business hours examine and audit, at the sole expense of the Master
Servicer, the records which Great Lakes maintains on the Lender's Student Loans.
13. TERMINATION.
(a) This Agreement shall remain in full force and effect until
terminated or modified as provided herein. This Agreement may be terminated (i)
in accordance with Section 7 hereof or (ii) at the end of a calendar quarter
(March 31, June 30, September 30, December 31), if written notice is given: (A)
by the Master Servicer (subject to Section 20(e)) to Great Lakes at least 30
days prior to the end of a calendar quarter, or (B) by Great Lakes to the Master
Servicer and the Indenture Trustee at least 180 days prior to the end of a
calendar quarter.
(b) In the event that this Agreement is terminated as provided in
subsection (a) above, Great Lakes shall continue its full servicing until the
date of termination and shall provide to the Master Servicer and the Indenture
Trustee a full set of periodic reports, adjusted through the date of
termination. Great Lakes shall retain all notes, records and papers, as well as
a copy of all computer stored data relating to the Lender's accounts as required
by the Act. Great Lakes shall make available to the Master Servicer, the
Indenture Trustee, and the Eligible Lender Trustee on demand, copies of all
computer records relating to the Lender's accounts. Such copies of the computer
records will be provided and updated at the times desired by Master Servicer and
the Indenture Trustee in order to facilitate a transfer to another servicing
agent. The Master Servicer agrees to pay Great Lakes the servicing removal fee
identified on Schedule A. Upon the Master Servicer's request, Great Lakes may
agree to provide servicing removal services beyond those identified in this
section. Such agreement between Great Lakes and the Master Servicer shall
include sufficient additional charges to cover Great Lakes' costs. Great Lakes
agrees that Master Servicer shall be entitled to injunctive relief to enforce
the provisions of this subsection.
(c) The Master Servicer shall be liable for all charges incurred for
services performed pursuant to this Agreement up to the termination date.
(d) Great Lakes shall continue to be liable for all acts or failures
to act which occur prior to termination (or the following loan transactions:
sale or transfer to another lender, servicing transfer to Master Servicer or
another servicer, purchase by the guarantor or payment in full), but shall not
be liable for post-termination activities except that Great Lakes shall be
obligated to remit to the Master Servicer any collections received by Great
Lakes subsequent to termination and to provide the reports and records herein
required.
14. AMENDMENTS.
Except as provided in Section 9, this Agreement may be amended by Great
Lakes at anytime upon 30 days written notice to the Master Servicer and the
Indenture Trustee, provided that the provisions of this Agreement shall at all
times be consistent with the Act and applicable regulations. In the event of any
such modification by Great Lakes, the Master Servicer (with the consent of the
Indenture Trustee) has 30 days in which to accept or reject the modification by
notice in writing. In the event of rejection of proposed modification, either
party may exercise its right to terminate as provided in Section 13. In the
event of termination for this reason, such modification shall not apply to the
Master Servicer.
15. GOVERNING LAW.
This Agreement shall be interpreted under the laws of the State of
Wisconsin.
16. NO IMPLIED WAIVER.
Any waiver or modification, expressed or implied, by Great Lakes or by
the Master Servicer of any breach of this Agreement shall not be construed to be
a waiver of any such breach or any acquiescence thereto; nor shall any delay or
omission by Great Lakes or by the Master Servicer to exercise any right arising
from any such breach affect or impair the respective party's right to such
breach or any future breach.
17. ARBITRATION.
In the event that the parties hereto shall fail to agree regarding any
provision of this Agreement, such disputes shall be resolved by arbitration
procedures established by the American Arbitration Association. The decision of
any arbitrator under this paragraph shall be final and binding upon the parties.
18. LIMITATION OF LIABILITY.
Great Lakes, the Master Servicer, Trust and Eligible Lender Trustee
recognize that Great Lakes' servicing program is separate and distinct from
GLHEGC's guarantee program. The Master Servicer, Trust and Eligible Lender
Trustee specifically agree to look only to Great Lakes in its capacity as a
servicing agent for any claims under this Agreement relating to its functions as
servicing agent. Each of the Master Servicer, Trust and Eligible Lender Trustee
specifically waives any claim against GLHEGC's Guarantee Fund as defined in 34
CFR 682.410(a)(1) and against GLHEGC's Federal Reserve Fund and Administrative
Operating Fund and all other escrows required under the Act for claims under
this Agreement.
19. ASSIGNMENT.
Master Servicer may assign this Agreement to any affiliate or to the
Indenture Trustee and Great Lakes may assign this Agreement to any affiliate.
Except as provided herein, this Agreement may not be assigned without the prior
consent of the non-assigning party and the Indenture Trustee.
20. NOTICES.
All notices, requests, demands or other instruments which may or are
required to be given by any party to any other party shall be in writing and
such shall be deemed to have been properly given when served personally on an
officer of the entity to which such notice is to be given, or upon expiration of
a period of 48 hours from and after the postmark thereof when mailed postage
prepaid by registered or certified mail, requesting return receipt, addressed as
follows:
If intended for Great Lakes Educational Loan Services, Inc.:
Chief Servicing Officer
Great Lakes Higher Education Servicing Corporation
0000 Xxxxxxxxxxxxx Xxxx
X.X. Xxx 0000
Xxxxxxx, XX 00000
If intended for Master Servicer or Trust:
Education Lending Services, Inc.
0 Xxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxx
If intended for the Eligible Lender Trustee:
Fifth Third Bank
Corporate Trust Administration
00 Xxxxxxxx Xxxxxx Xxxxx XX00XX00
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
If intended for the Indenture Trustee:
Fifth Third Bank
Corporate Trust Administration
00 Xxxxxxxx Xxxxxx Xxxxx XX00XX00
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
21. THIRD PARTY AUDIT.
Great Lakes shall provide the Master Servicer within one hundred twenty
days (120) days of the end of Great Lakes' accounting period, a copy of its
annual servicer compliance audit report required by federal regulations, or if a
federal audit requirement is not in effect at the time, an equivalent compliance
audit report performed by an independent third party.
22. INSURANCE COVERAGE.
Great Lakes will keep in force and effect computer services and software
errors and omissions coverage of not less than $2,000,000, an umbrella liability
policy of not less than $15,000,000, employee crime (including fidelity)
insurance of not less than $1,000,000 and business interruption insurance of not
less than $1,000,000. Great Lakes will furnish proof of such coverage to the
Master Servicer from time to time upon request by Master Servicer. Should the
Insurance Coverage, or any portion thereof, be voluntarily terminated or
modified by Great Lakes or involuntarily terminated or modified without Great
Lakes' consent, Great Lakes shall, if available, replace such terminated or
modified portions of the Insurance Coverage prior to final termination or
modification, or as soon thereafter as commercially reasonable. In the event of
any termination or reduction in coverage, voluntary or involuntary, Great Lakes
shall notify Master Servicer immediately, but in no event later than five (5)
business days following receipt of notice of the termination or modification or,
with respect to voluntary termination or modification, contemporaneously with
Great Lakes' giving notice to the insurer.
23. SECURITY INTEREST OF INDENTURE TRUSTEE.
(a) Great Lakes acknowledges and agrees that all or a portion of the
right, title and interest of the Trust and Master Servicer under this Agreement
and the Eligible Lender Trustee under the Financed Student Loans serviced
hereunder have been or may be assigned to the Indenture Trustee for the benefit
of the Noteholders and the other secured parties (collectively, the "Secured
Parties") pursuant to the Indenture and that Great Lakes shall hold all original
promissory notes evidencing such Financed Student Loans and related
documentation as bailee on behalf of the Indenture Trustee as holder of a
security interest in such Financed Student Loans under the terms and conditions
of the Indenture.
(b) In order for Master Servicer to direct Great Lakes to transfer
any such Financed Student Loan from the account of Lender (to the Secured
Parties, another secondary market authority, an eligible lender, another
indenture account of Lender or Master Servicer, or a successor servicer,
pursuant to the Indenture or otherwise), Great Lakes must first receive a
Request to Transfer Student Loans form which shall not be valid without the
signature of the Indenture Trustee.
(c) The security interest of the Secured Parties and the provisions
of this Section 23, shall not be amended or revoked without the written consent
of the Indenture Trustee.
(d) Great Lakes hereby acknowledges and agrees that the security
interest of the Secured Parties in the Financed Student Loans under the
Indenture, shall be and is hereby prior to any lien Great Lakes may have in such
Financed Student Loans (other than its fees due hereunder), and Great Lakes
agrees to execute and deliver to the Indenture Trustee all financing statements,
notices and other instruments reasonably requested in connection with this
Agreement by the Indenture Trustee.
(e) Great Lakes acknowledges that upon the occurrence of certain
events of default under the Indenture (each a "Default") pursuant to which
Financed Student Loans are financed, the Indenture Trustee shall have the right
to exercise the termination rights of Master Servicer set forth in Section 13.
Notwithstanding anything in this Section 23 to the contrary, Great Lakes shall,
within a reasonable time frame after receipt of a written request by the
Indenture Trustee, release any and all Financed Student Loans to the Indenture
Trustee.
24. ELIGIBLE LENDER TRUSTEE.
Great Lakes acknowledges that the Eligible Lender Trustee has entered
into this Agreement solely in its capacity as Eligible Lender Trustee for
Education Funding Capital Trust-II and not acting in its individual capacity.
The representations, warranties, and covenants of the Eligible Lender
Trustee herein (other than any representations, warranties and covenants
relating to the Eligible Lender Trustee's authority, good standing execution of
this Agreement) are made solely at the direction of Education Funding Capital
Trust-II without independent investigation of the Eligible Lender Trustee, and
the Eligible Lender Trustee has undertaken only the duties required of it under
its trust agreement with Education Funding Capital Trust-II. All recourse and
remedies of Great Lakes hereunder shall be available only against Education
Funding Capital Trust-II and the assets of such trust estate and not against the
Eligible Lender Trustee, or in its individual capacity.
25. DISASTER RECOVERY PLAN/FORCE MAJEURE.
Great Lakes will timely implement, if it has not already, and maintain
the Great Lakes' disaster recovery plan, a summary of which is attached hereto
as Appendix 1 as the same may be updated from time to time (the "Disaster
Recovery Plan"). Throughout the term of this Agreement, Great Lakes shall (i)
maintain the Disaster Recovery Plan and the capacity to execute such plan (ii)
test the Disaster
Recovery Plan at least annually (iii) not change the Disaster Recovery Plan in
any manner that will materially lessen its backup procedures, data restoration
ability, or recovery preparedness or capabilities without providing prior
written notice to the Master Servicer and (iv) upon written request of Master
Servicer, Great Lakes shall provide Master Servicer with an executive summary of
any changes to the Disaster Recovery Plan. Subject to the foregoing, no party
hereto shall be responsible for, or in breach of this Agreement if it is unable
to perform as a result of delays or failures due to any cause beyond its
control, howsoever arising.
26. SUBSERVICING FOR AFFILIATES.
Upon request of the Master Servicer, Great Lakes agrees to provide
services pursuant to this Agreement for and on behalf of one or more
corporations or limited liability companies that are controlled by or under
common control with Education Lending Group, Inc. ("ELG") and trusts that are
established by ELG or any of such corporations or limited liability companies
(herein an "Affiliate") with respect to Student Loans originated by Great Lakes,
guaranteed by GLHEGC and owned by such Affiliate. To initiate Great Lakes
obligation to provide services for any Affiliate, the Master Servicer shall
identify such Affiliate in writing and Great Lakes, the Master Servicer, the
Affiliate and the Eligible Lender Trustee on behalf of the Affiliate shall
execute and deliver a Subservicing Addendum in substantially the form attached
hereto as Appendix 2. Upon execution and delivery of the Subservicing Addendum,
Great Lakes shall provide services to such Affiliate in accordance with this
Agreement and such Subservicing Addendum.
[Signature Page Follows]
In Witness Whereof, the parties hereto have executed this Agreement as of the
and year first above written.
EDUCATION LENDING SERVICES, INC. GREAT LAKES EDUCATIONAL
LOAN SERVICES, INC.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxx
------------------------- ----------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx
---------------------- -------------------------
Title: Senior V. P. Finance Title: Chief Servicing Officer
---------------------- -------------------------
FIFTH THIRD BANK, as Eligible EDUCATION FUNDING CAPITAL TRUST-II
Lender Trustee for Education By: Fifth Third Bank as Co-Owner Trustee
Funding Capital Trust-II
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxx
------------------------- ----------------------------
Name: Xxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxxx
---------------------- -------------------------
Title: AVP & SR. TRUST OFFICER Title: AVP & SR. TRUST OFFICER
----------------------- -------------------------
ACH AUTHORIZATION AGREEMENT
Lender Name: ________________________________________________
Tax ID No.: ________________________________________________
We hereby authorize Great Lakes Educational Loan Services, Inc., hereinafter
called Great Lakes, to initiate debit/credit entries to our demand deposit
account indicated at the depository named below to fund new loan disbursements
originated by Great Lakes.
Depository Name: _______________________________________________________
City: __________________________ State: ________________ Zip: _____
Transit ABA No: __________________ Account No: ________________________
This authority is to remain in full force and effect until Great Lakes has
received written notification from us of its termination in such time and in
such manner as to afford Great Lakes a reasonable time to act on it.
------------------------------
Signature
------------------------------
Name
------------------------------
Title
------------------------------
Date
Appendix 1
Disaster Recovery Plan
Appendix 2
GREAT LAKES EDUCATIONAL LOAN SERVICES, INC.
STUDENT LOAN ORIGINATION AND SERVICING AGREEMENT
SUBSERVICING ADDENDUM
THIS SUBSERVICING ADDENDUM is made this ___ date of ___________, ______
(the "Subservicing Addendum"), by and among GREAT LAKES EDUCATIONAL LOAN
SERVICES, INC. ("Great Lakes"), EDUCATION LENDING SERVICES, INC. ("Master
Servicer"), __________________________ ("Affiliate") and
_______________________________ as the eligible lender trustee on behalf of the
Affiliate ("Affiliate Eligible Lender Trustee").
This Subservicing Addendum is an addendum to that certain Student Loan
Origination and Servicing Agreement among Great Lakes, Master Servicer,
Education Funding Capital Trust-II (the "Trust") and Fifth Third Bank as
eligible lender trustee on behalf of the Trust (the "Trust ELT") dated as of
_____________, 2003, including all amendments, addenda, attachments, exhibits
and schedules thereto (herein the "Subservicing Agreement").
Capitalized terms used in this Subservicing Addendum without definitions
shall have the meanings ascribed to such terms in the Subservicing Agreement.
WHEREAS, Master Servicer desires Great Lakes to provide the services set
forth in the Subservicing Agreement for the Affiliate and the Affiliate Eligible
Lender Trustee; and
WHEREAS, Great Lakes agrees to provide the services set forth in the
Subservicing Agreement with respect to Student Loans owned by the Affiliate and
held by the Affiliate Eligible Lender Trustee acting on its behalf under the
terms of the Subservicing Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained herein
and other valuable consideration, and intending to be legally bound, Great
Lakes, Master Servicer, Affiliate and Affiliate Eligible Lender Trustee agree as
follows:
(1) Great Lakes and Master Servicer agree to amend the existing
Subservicing Agreement by adding this Subservicing Addendum to the Agreement.
For purposes of construing the Subservicing Agreement in order to carry out the
intention of this Subservicing Addendum, (i) each reference to the Trust in the
Subservicing Agreement shall mean the Affiliate; (ii) each reference to the
Eligible Lender Trustee in the Subservicing Agreement shall mean the Affiliate
Eligible Lender Trustee; (iii) each reference to the Lender in the Subservicing
Agreement shall mean ___________________; and (iv) each reference to the
Indenture in the Subservicing Agreement shall mean ____________________.
(2) Great Lakes agrees to perform its duties and obligations for the
Affiliate and the Affiliate Eligible Lender Trustee in accordance with the terms
and conditions set forth in the Subservicing Agreement, as amended, for Student
Loans owned by the Affiliate and held by the Affiliate Eligible Lender Trustee.
Master Servicer, Affiliate and Affiliate's Eligible Lender Trustee agree to
perform their respective duties and obligations in accordance with the terms and
conditions set forth in the Subservicing Agreement, as amended.
(3) Master Servicer shall be responsible for and agrees to pay all
fees due to Great Lakes for services rendered to the Affiliate and the Affiliate
Eligible Lender Trustee by Great Lakes under the Subservicing Agreement with
respect to the Student Loans owned by the Affiliate.
(4) Master Servicer and Great Lakes each shall have the right to
terminate the Subservicing Agreement with respect to the services provided to
the Affiliate and the Affiliate Eligible Lender Trustee on the terms and
conditions set forth in the Subservicing Agreement.
(5) All notices or other communications by one of the parties hereto
to the Affiliate shall be addressed as follows:
_____________________________________; and to the Affiliate Eligible Lender
Trustee as follows: _______________________________________, or such other
address as may be indicated from time to time by such party.
(6) This Subservicing Addendum shall be effective as of the first
date written above.
(7) This Subservicing Addendum may be simultaneously executed in
several counterparts, each of which shall be an original and all of which shall
constitute one and the same instrument.
(8) By signing this Subservicing Addendum, each party certifies that
it has the power and authority to execute and deliver this Subservicing Addendum
and to carry out its terms and the terms of the Subservicing Agreement, and the
execution, delivery and performance of this Subservicing Addendum has been duly
authorized by each respective entity.
IN WITNESS WHEREOF, the parties hereto caused this instrument to be duly
executed as of the month, day and the year of this Subservicing Addendum.
GREAT LAKES EDUCATIONAL LOAN
SERVICES, INC.
as Servicer
By:
------------------------------------
Name:
---------------------------------
Title:
---------------------------------
EDUCATION LENDING SERVICES, INC.
as Master Servicer
By:
------------------------------------
Name:
---------------------------------
Title:
---------------------------------
[___________________________________]
as Affiliate
By:
-----------------------------------
Name:
---------------------------------
Title:
---------------------------------
[___________________________________]
as Affiliate Eligible Lender Trustee
By:
------------------------------------
Name:
---------------------------------
Title:
---------------------------------
