EXHIBIT 4.2.7
FORM OF LOAN SALE AGREEMENT AMONG THE SELLER, THE DEPOSITOR,
THE TRUST AND THE ELIGIBLE LENDER TRUSTEE (STUDENT LOAN)
LOAN SALE AGREEMENT
among
[___________________________________] STUDENT LOAN TRUST [______],
as Issuer,
[GS Mortgage Securities Corp.],
as Seller,
[________________________________],
as Trustee for
[__________________________],
and
[______________________________],
not in its individual capacity but solely as Eligible Lender Trustee
Dated as of [_______________]
LOAN SALE AGREEMENT dated as of [_______________], among [_______
______________________]STUDENT LOAN TRUST [______], a Delaware trust (the
"Issuer"), GS Mortgage Securities Corp., as seller (the "Seller"),
[_______________], as Trustee for [_______________], and [_______________], a
national banking association, solely as eligible lender trustee and not in its
individual capacity (the "Eligible Lender Trustee").
WHEREAS the Issuer desires to purchase from the Seller a portfolio of
federally reinsured student loans purchased in the ordinary course of business
by the Seller; and
WHEREAS in order to comply with the requirements of the Higher
Education Act, legal title to the Seller's student loan portfolio is vested in
[_______________], as trustee on behalf of the Seller as the sole beneficiary;
and
WHEREAS the Seller is willing to sell such student loans to the
Eligible Lender Trustee on behalf of the Issuer; and
WHEREAS the Eligible Lender Trustee is willing to hold legal title
to, and serve as eligible lender trustee with respect to, such student loans
on behalf of the Issuer.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
Capitalized terms used but not defined herein are defined in Appendix
A to the Administration Agreement, dated as of [_______________], among the
Issuer, the Seller, as Administrator, and [_______________], as Indenture
Trustee, which also contains rules as to usage and construction that shall be
applicable herein.
ARTICLE II
CONVEYANCE OF FINANCED STUDENT LOANS
SECTION 2.01 Conveyance of Initial Financed Student Loans. (a) In
consideration of the Issuer's delivery to or upon the order of the Seller on
the Closing Date of the net proceeds from the sale of the Notes and the other
amounts to be distributed from time to time to the Seller in accordance with
the terms of this Agreement, the Seller (and, with respect to legal title to
the Financed Student Loans, [_______________] as trustee on behalf of the
Seller) does hereby, as evidenced by a duly executed Xxxx of Sale in the form
of Exhibit A hereto, sell, assign, and otherwise convey to the Issuer and,
with respect to legal title to the Initial Financed Student Loans, to the
Eligible Lender Trustee on behalf of the Issuer) without recourse except as
may be provided herein: (i) all right, title and interest in and to the
Initial Financed Student Loans, and all obligations of the Obligors
thereunder, together with all documents, the related Student Loan Files and
all rights and privileges relating thereto, (ii) all payments on or
collections received thereunder on and after the Cutoff Date net of interest
accrued thereunder prior to the Cutoff Date that is not to be capitalized,
including without limitation, Liquidation Proceeds and Recoveries; (iii) all
of its right, title and interest in all funds on deposit from time to time in
the Trust Accounts, including the Reserve Account Initial Deposit and the
Prefunding Account Closing Date Deposit, and in all investments and proceeds
thereof (including all income thereon); and (iv) all proceeds of any and all
of the foregoing.
(b) In connection with the sale and assignment of Financed Student
Loans to the Eligible Lender Trustee on behalf of the Trust, on the Closing
Date, the Seller shall deposit the Reserve Account Initial Deposit into the
Reserve Account, the Prefunding Account Closing Date Deposit into the
Prefunding Account and the Collection Account Closing Date Deposit into the
Collection Account.
(c) On the Closing Date, the Seller will deposit, or cause to be
deposited, into the Collection Account all amounts or collections received
under the Initial Financed Student Loans on and after the Cutoff Date net of
interest accrued thereunder prior to the Cutoff Date that is not to be
capitalized.
SECTION 2.02 Conveyance of Prefunded Loans, New Loans and Serial
Loans to the Eligible Lender Trustee on Behalf of the Trust. (a) Subject to
the conditions set forth in paragraph (d) below, in consideration of the
Issuer's delivery on the related Transfer Date to or upon the order of the
Seller of the Loan Purchase Amount for each such Prefunded Loan, New Loan or
Serial Loan to be delivered to the Seller, the Seller does hereby sell,
transfer, assign, set over and otherwise convey to the Issuer and with respect
to legal title the Prefunded Loans, New Loans and Serial Loans, to the
Eligible Lender Trustee on behalf of the Issuer, without recourse except as
may be provided herein: (i) all right, title and interest of the Seller in and
to each Prefunded Loan, New Loan and Serial Loan and all obligations of the
Obligors thereunder, together with all documents, the related Student Loan
Files and all rights and privileges relating thereto, (ii) all payments on or
collections received thereunder on and after the related Subsequent Cutoff
Date and (iii) all proceeds of any and all of the foregoing.
(b) (i) [Reserved].
(ii) During the Revolving Period, upon the tender of Prefunded
Loans, New Loans or Serial Loans by the Seller on the related Transfer
Date and the satisfaction of the conditions set forth in subsection (d)
of this Section 2.02, the Eligible Lender Trustee will so inform the
Administrator and the Indenture Trustee, and the Loan Purchase Amounts
for such Prefunded Loans, New Loans or Serial Loans will be withdrawn
from the Prefunding Account, or the Collateral Reinvestment Account,
subject to the provisions of Section 2(f) and Section 2(k) of the
Administration Agreement, and will be remitted to or upon the order of
the Seller. The Seller covenants to transfer during the Revolving Period
to the Eligible Lender Trustee on behalf of the Issuer pursuant to
paragraph (a) above Prefunded Loans, New Loans or Serial Loans with an
aggregate principal balance which when added to the principal balance of
Consolidation Loans the Seller expects the Issuer to originate to be
substantially equal to the sum of the Prefunding Account Closing Date
Deposit and the amount the Seller expects to be deposited in the
Collateral Reinvestment Account; provided, however, that the Seller shall
have no liability for a breach of the foregoing covenant as a result of
the Seller not having originated or acquired, or having caused to be
originated or acquired, during the Revolving Period New Loans or Serial
Loans equal to the amount specified above. Such transfers shall be made
at such times during the Revolving Period as the Seller may determine in
its discretion, subject to the requirement that the Seller shall make
such transfers at least as frequently as is necessary to avoid the
occurrence of an Early Amortization Event.
(c) After the Revolving Period, upon the tender of Serial Loans by
the Seller on the related Transfer Date and the satisfaction of the conditions
set forth in subsection (d) of this Section 2.02, the Eligible Lender Trustee
will so inform the Administrator and the Indenture Trustee, and that component
of the Loan Purchase Amount for such Serial Loans represented by the Purchase
Collateral Balance thereof will be withdrawn from amounts on deposit in the
Collection Account, as provided in Section 2(d)of the Administration
Agreement, and will be remitted, as provided therein to or upon the order of
the Seller or, alternatively, at the sole discretion of the Seller, the Seller
may determine that the Purchase Collateral Balance due on the related Transfer
Date for any Serial Loans then to be transferred shall be paid by the Issuer's
exchanging with the Seller one or more Exchanged Student Loans held by the
Issuer for such Serial Loans; provided, however, that the component of the
Loan Purchase Amount represented by the Purchase Premium Amounts shall not be
payable with respect to Exchanged Serial Loans and, with respect to purchased
Serial Loans, shall be payable on a deferred basis pursuant to the final
sentence of this paragraph; provided that the principal balance of Exchanged
Serial loans shall not exceed 10% of the Pool Balance on the Closing Date. In
the event Exchanged Student Loans are to be so used: (i) the decision by the
Issuer as to which of those Financed Student Loans then held by the Issuer
that meet the criteria for Exchanged Student Loans are to be selected for such
exchange shall be subject to the sole discretion of the Eligible Lender
Trustee; provided, however, that the Eligible Lender Trustee shall not select
for such purpose any Financed Student Loan that has the same Borrower as any
other Financed Student Loan unless all of the Financed Student Loans of such
Borrower are to be exchanged; (ii) with respect to any Serial Loan to be
delivered on a Transfer Date, only a Financed Student Loan that is an
Exchanged Student Loan with respect to such Serial Loan shall be counted
toward the Purchase Collateral Balance for such Serial Loan; and (iii) in the
event that, with respect to any Purchase Collateral Balance due on the related
Transfer Date, the aggregate principal balance (plus accrued borrower interest
thereon if and to the extent that such interest is not then payable and will,
pursuant to the term of such loan, be capitalized and added to the principal
balance of such loan), as of the related Subsequent Cutoff Date, of the
Exchanged Student Loan or Loans being remitted on such Transfer Date in
satisfaction of such Purchase Collateral Balance is less than such amount due,
the Issuer shall remit funds to cover such difference from amounts on deposit
in the Collection Account as provided in Section 2(d) of the Administration
Agreement. Any Purchase Premium Amounts for Serial Loans conveyed to the Trust
after the Revolving Period will be payable on Quarterly Payment Dates out of
Reserve Account Excess pursuant to Section 2(e) of the Administration
Agreement and such Purchase Premium Amounts will accrue no interest or yield
but will be paid on each Quarterly Payment Date to the extent such excess is
available in the aggregate amount of such premiums incurred but unpaid up to
the end of the related Collection Period; provided, however, that no Purchase
Premium Amounts shall be payable on Exchanged Serial Loans.
(d) The Seller (and with respect to legal title to the Prefunded
Loans, New Loans and Serial Loans, [_______________] as trustee on behalf of
the Seller) shall transfer to the Issuer the Prefunded Loans, New Loans and
Serial Loans for a given Transfer 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 Transfer Date:
(i) the Seller (and with respect to legal title to the Prefunded
Loans, New Loans and Serial Loans, [_______________] as trustee on behalf
of the Seller) shall have delivered to the Eligible Lender Trustee and
the Indenture Trustee a duly executed transfer agreement (including
executed signature pages by the other parties thereto) in substantially
the form of Exhibit B hereto (each, a "Transfer Agreement"), which shall
include supplements to Schedule A hereto, listing such Prefunded Loans,
New Loans and Serial Loans;
(ii) the Seller shall have delivered, at least two days prior to
such Transfer Date, notice of such transfer to the Eligible Lender
Trustee, the Indenture Trustee and the Rating Agencies, including a
listing of the designation and the aggregate principal balance of such
Prefunded Loans, New Loans and Serial Loans;
(iii) the Seller shall have deposited in the Collection Account
all amounts on or collections received in respect of the Prefunded Loans,
New Loans and Serial Loans on and after each applicable Subsequent Cutoff
Date;
(iv) as of the Transfer Date, the Seller was not insolvent nor
will it have been made insolvent by such transfer nor is it aware of any
pending insolvency;
(v) such addition will not result in a material adverse federal
or state tax consequence to the Issuer or the Noteholders;
(vi) the Seller shall have delivered to the Indenture Trustee
and the Eligible Lender Trustee an Officers' Certificate confirming the
satisfaction of each condition precedent specified in this paragraph (d);
(vii) the Seller shall have delivered on each [ ] and [ ],
commencing [____]: (A) to the Rating Agencies an Opinion of Counsel with
respect to the transfer of the Prefunded Loans, New Loans and Serial
Loans transferred to the Issuer since the later of the Closing Date or
the prior [ ] or [ ] substantially in the form of the Opinion of Counsel
delivered to the Rating Agencies on the Closing Date, and (B) to the
Eligible Lender Trustee and the Indenture Trustee the Opinion of Counsel
as required by Section 6.02(f)(1) hereof; provided, however, that,
notwithstanding the foregoing, no opinion shall be required under
subclause (B) and, if the Revolving Period has terminated, no opinion
shall be required under subclause (A), unless the Seller, the Eligible
Lender Trustee or the Indenture Trustee determines that, with regard to
the most recent opinion on the matters described in either such subclause
that was delivered with respect to the Financed Student Loans (whether on
the Closing Date or thereafter under this subsection or under another
provision of the Basic Documents), the conclusion of, or the reasoning
underlying, such opinion is no longer correct in all material respects
due to a change in law or regulations or the ruling of a court, an
administrative tribunal or a regulatory or other governmental authority;
upon making any such determination, whichever of the Seller, the Eligible
Lender Trustee and the Indenture Trustee makes such determination shall
notify the others and the Rating Agencies; and provided, further, that
neither the Eligible Lender Trustee nor the Indenture Trustee shall have
any obligation to monitor changes in laws or regulations or the rulings
of courts or other governmental agencies for the purpose of making any
determination described in the preceding proviso;
(viii) with respect to any New Loan which is guaranteed by an
Additional Guarantor, such Additional Guarantor shall have entered into a
Guarantee Agreement with the Eligible Lender Trustee which guarantees
such New Loan in substantially the form of the Guarantee Agreements
between the Initial Guarantors and the Eligible Lender Trustee;
(ix) the Seller 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
Collateral;
(x) no selection procedures believed by the Seller to be adverse
to the interests of the Noteholders shall have been utilized in selecting
the New Loans or the Serial Loans or in selecting Exchanged Student Loans
or the Exchanged Serial Loans;
(xi) no Default or Event of Default shall have occurred under
the Indenture, no Servicer Default shall have occurred under the
Servicing Agreement and no Administrator Default shall have occurred
under the Administration Agreement; and
(xii) for each Transfer Date occurring after the Revolving
Period, after giving effect to the conveyance of Serial Loans on such
Transfer Date, the amount of funds remitted for the purchase of Serial
Loans on such Transfer Date, and on each Transfer Date since the
preceding Quarterly Payment Date, shall not exceed the Net Principal Cash
Flow Amount for such Transfer Date minus the sum of: (i) all amounts paid
to prepay any Add-on Consolidation Loan not held by the Issuer since the
last Quarterly Payment Date pursuant to Section 2(d)(iii)(A) of the
Administration Agreement and (ii) all amounts which the Administrator
reasonably estimates will be required to prepay Add-on Consolidation
Loans pursuant to Section 2(d)(iii)(A) of the Administration Agreement
during the remainder of the Collection Period;
provided, however, that the Seller shall not incur any liability as a result
of transferring Serial Loans on any Transfer Date at a time when the condition
set forth in clause (v) was not satisfied, if at the time of such transfer the
Authorized Officers of the Seller, after reasonable inquiry of counsel to the
Seller, were not aware of any fact that would reasonably suggest that such
condition would not be satisfied as of such date.
SECTION 2.03 Treatment as a Security Agreement. The parties intend
that the conveyance of the Seller's (and, with respect to legal title to the
loans, [______________]) right, title and interest in and to the Initial
Financed Student Loans pursuant to this Agreement and any Prefunded Loans, New
Loans and Serial Loans pursuant to a related Transfer Agreement shall
constitute a valid purchase and sale and not a loan. If such conveyance is
deemed to be a loan and not a sale, then the parties also intend and agree
that the Seller (and, with respect to legal title to loans, [_______________])
shall be deemed to have granted, and in such event do hereby grant to the
Issuer, a first priority security interest in all of the Seller's and
[___________] right, title and interest in, to and under the Initial Financed
Student Loans and any Prefunded Loans, New Loans or Serial Loans and the other
items specified in Sections 2.01 and 2.02, and that this Agreement (with
respect to the Initial Financed Student Loans) and any applicable Transfer
Agreement (with respect to the Prefunded Loans, New Loans or Serial Loans
conveyed thereby) shall each constitute a security agreement under applicable
law with respect to such loans. If such conveyance is deemed to be a loan and
not a sale, the Issuer may, to secure the Issuer's own borrowings under the
Indenture, repledge all or any portion of such loans and the other items
specified in Sections 2.01 and 2.02 hereof pledged to the Issuer and not
released from the security interest of this Agreement at the time of such
pledge. Such a repledge may be made by the Issuer with or without a repledge
by the Issuer of its rights under this Agreement, and without further notice
to or acknowledgment from the Seller or [________]. Each of the Seller and
[________] waives, to the extent permitted by applicable law, all claims,
causes of action and remedies whether legal or equitable (including any rights
of set-off) against the Issuer or any assignee of the Issuer relating to such
action by the Issuer in connection with the transactions contemplated by this
Agreement, each Transfer Agreement and the other Basic Documents.
SECTION 2.04 Endorsement. The Seller (and, with respect to legal
title to the Financed Student Loans, [_______________] as trustee on behalf of
the Seller) hereby appoint each of the Eligible Lender Trustee and the
Indenture Trustee as the Seller's (and [_______________]) true and lawful
attorney-in-fact with full power of substitution to endorse the Seller's (and
[_______________]) name on any promissory note evidencing the Initial Financed
Student Loans and any Prefunded Loans, New Loans or Serial Loans transferred
to the Eligible Lender Trustee on behalf of the Trust pursuant to Sections
2.01 and 2.02. The Seller (and, with respect to legal title to the Financed
Student Loans, [_______________] as trustee on behalf of the Seller)
acknowledge and agree that this power of attorney shall be construed as a
power coupled with an interest, shall be irrevocable as long as the Trust
Agreement remains in effect and shall continue in effect until the Trust
Agreement terminates.
ARTICLE III
THE FINANCED STUDENT LOANS
SECTION 3.01 Representations and Warranties of Seller With Respect to
the Financed Student Loans. The Seller represents and warrants with respect to
the Financed Student Loans as set forth in Exhibit C hereto. Such
representations and warranties speak as of the execution and delivery of this
Agreement and as of the Closing Date, in the case of the Initial Financed
Student Loans, as of the applicable Transfer Date, in the case of the
Prefunded Loans, New Loans and Serial Loans, as of the date of the relevant
Assignment in the case of any Qualified Substitute Student Loan, as of the
date of origination in the case of any Consolidation Loan added to the Trust
during the Revolving Period and as of the applicable Add-on Consolidation Loan
Funding Date, in the case of any Consolidation Loan the principal balance of
which is increased by the principal balance of any related Add-on
Consolidation Loan, but shall survive the sale, transfer and assignment of the
Financed Student Loans to the Eligible Lender Trustee on behalf of the Issuer
(and both the origination of such Consolidation Loans and the addition of the
principal balance of any Add-on Consolidation Loan) and the pledge thereof to
the Indenture Trustee pursuant to the Indenture.
SECTION 3.02 Purchase; Repurchase; Reimbursement. (a) Upon discovery
by the Seller, [_______________], the Servicer, the Eligible Lender Trustee or
the Indenture Trustee of any breach of the Seller's representations and
warranties or other restrictions made by the Seller pursuant to Section 3.01
or Section 4.01, the party discovering the breach shall give prompt written
notice to the others. Unless any such breach shall have been cured within
sixty (60) days after the Seller becomes aware or receives written notice
(whichever is earlier) of such breach, the Seller shall be obligated to
either: (i) repurchase any Financed Student Loan in which the interests of the
Noteholders are materially and adversely affected by any such breach any day
during the first Monthly Collection Period succeeding the end of such 60-day
period or (ii) substitute a Qualified Substitute Student Loan in the manner
specified in this Section; provided, however, that it is understood that any
such breach that does not affect the Guarantor's obligation to guarantee
payment of such Financed Student Loan to the Eligible Lender Trustee will not
be considered to have a material adverse effect for this purpose and it is
further understood that any dispute as to whether the Guarantor's obligation
has been so affected will be resolved by the decision of the Indenture Trustee
for so long as Notes are Outstanding and thereafter by the Eligible Lender
Trustee. In addition, if any such breach by the Seller does not trigger such a
repurchase obligation but does result in the refusal by the Guarantor to
guarantee all or a portion of the accrued interest, or the loss (including any
obligation of the Issuer to repay the Department) of certain Interest Subsidy
Payments and Special Allowance Payments, then, unless such breach, if curable,
is cured within sixty (60) days, the Seller shall reimburse the Issuer by
remitting an amount equal to all such non-guaranteed interest amounts and such
forfeited Interest Payments and Special Allowance Payments in the manner
specified in Section 3.03. Subject to the provisions of Section 4.03, the sole
remedy of the Issuer, the Eligible Lender Trustee, the Indenture Trustee or
the Noteholders with respect to a breach of representations and warranties
pursuant to Section 3.01, and the agreement contained in this Section, shall
be to require the Seller to repurchase or substitute for Financed Student
Loans or to reimburse the Issuer as provided above pursuant to this Section,
subject to the conditions contained herein.
(b) The Seller may, at its option, cause a Financed Student Loan to
be purchased or repurchased by a Person not affiliated with the Seller as of
the last day of a Monthly Collection Period if there is a dispute with the
related Borrower during such Monthly Collection Period which in the Servicer's
reasonable judgment would call into question whether such Financed Student
Loan will be repaid by the Borrower; provided, however, that the aggregate
principal balance of the Financed Student Loans purchased pursuant to this
subsection (b) shall not exceed, in aggregate, 1% of the Initial Pool Balance.
(c) In consideration of and simultaneously with the purchase or
repurchase of a Financed Student Loan, the Seller shall remit the Purchase
Amount therefor, in the manner specified in Section 3.03, and the Issuer shall
execute such assignments and other documents reasonably requested by the
Seller 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 Student Loan File will thereafter belong to the Seller or in the case
of legal title thereto an eligible lender under the Higher Education Act
designated by the Seller.
With respect to any Qualified Substitute Student Loan or Loans, the
Seller shall deliver to the Eligible Lender Trustee for the benefit of the
Indenture Trustee such documents and agreements together with a duly executed
Assignment in the form of Exhibit F hereto. Payments due with respect to
Qualified Substitute Student Loans shall be part of the Trust Estate on and
after the date of such Assignment. Upon such substitution, the Qualified
Substitute Student Loan or Loans shall be subject to the terms of this
Agreement in all respects, and the Seller shall be deemed to have made with
respect to such Qualified Substitute Student Loan or Loans, as of the date of
substitution, the representations and warranties made pursuant to Section 3.01
with respect to any such Student Loan. In addition, any such substitution
shall occur only upon satisfaction of each of the following conditions on or
prior to the date of the related Assignment:
(i) the Seller shall have deposited in the Collection Account
all collections in respect of the Qualified Substitute Student Loans on
and after each applicable date of Assignment;
(ii) as of the date of the related Assignment, the Seller shall
not have been insolvent nor will it have been made insolvent by such
transfer nor is it aware of any pending insolvency;
(iii) such addition will not result in a material adverse
federal or State tax consequence to the Issuer or the Noteholders;
(iv) the Seller shall have delivered: (A) to the Rating
Agencies, an Opinion of Counsel with respect to each transfer of
Qualified Substitute Student Loans, substantially in the form of the
Opinion of Counsel delivered to the Rating Agencies on the Closing Date,
and (B) to the Eligible Lender Trustee and the Indenture Trustee, the
Opinion of Counsel required by Section 6.02(f)(1) hereof; provided,
however, that no opinion shall be required under either subclause (A) or
(B) unless the Seller, the Eligible Lender Trustee or the Indenture
Trustee determines that, with regard to the most recent opinion on the
matters described in either such subclause that was delivered with
respect to the Financed Student Loans (whether on the Closing Date or
thereafter under this subsection or under another provision of the Basic
Documents), the conclusion of, or the reasoning underlying, such opinion
is no longer correct in all material respects due to a change in law or
regulations or the ruling of a court, an administrative tribunal or a
regulatory or other governmental authority; upon making any such
determination, whichever of the Seller, the Eligible Lender Trustee and
the Indenture Trustee makes such determination shall notify the others
and the Rating Agencies; and provided, further, that neither the Eligible
Lender Trustee nor the Indenture Trustee shall have any obligation to
monitor changes in laws or regulations or the rulings of courts or other
governmental agencies for the purpose of making any determination
described in this clause (iv);
(v) the Seller 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
Collateral;
(vi) no selection procedures believed by the Seller to be
adverse to the interests of the Noteholders shall have been utilized in
selecting the Qualified Substitute Student Loans; and
(vii) no Default or Event of Default shall have occurred under
the Indenture, no Servicer Default shall have occurred under the
Servicing Agreement and no Administrator Default shall have occurred
under the Administration Agreement.
Upon any such substitution and the deposit to the Collection Account
of the amount required to be deposited therein in connection with such
substitution as described in the following paragraph, the Eligible Lender
Trustee shall release any documentation held with respect to the Financed
Student Loan being substituted for (the "Deleted Student Loan") to the Seller
and shall execute and deliver at the Seller's direction such instruments of
transfer or assignment prepared by the Seller, in each case without recourse,
as shall be necessary to vest in the Seller, or (in the case of legal title
thereto an eligible lender under the Higher Education Act designated by the
Seller), the Eligible Lender Trustee's interest in any Deleted Student Loan
substituted for pursuant to this Section 3.02.
For any month in which the Seller substitutes one or more Qualified
Substitute Student Loans for one or more Deleted Student Loans, the Servicer
will determine the amount (if any) by which as of the date of the relevant
Assignment the aggregate principal balance of all such Qualified Substitute
Student Loans is less than the aggregate principal balance of all such Deleted
Student Loans. The amount of such shortage (the "Substitution Adjustment
Amount") shall be deposited in the Collection Account by the Seller on or
before the date of the relevant Assignment.
SECTION 3.03 Repurchase Deposits. The Seller 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
Seller under Section 3.02 and Section 5.01 when such amounts are due.
ARTICLE IV
THE SELLER
SECTION 4.01 Representations of Seller and [_______________]. The
Seller represents as set forth in Exhibit D hereto and [_______________]
represents as set forth in Exhibit E hereto. Such representations speak as of
the execution and delivery of this Agreement and as of the Closing Date in the
case of the Initial Financed Student Loans, as of the applicable Transfer Date
in the case of the Prefunded Loans, New Loans and the Serial Loans, as of the
date of the relevant Assignment in the case of any Qualified Substitute
Student Loan, and, in the case of the Seller, as of the date of origination in
the case of any Consolidation Loan added to the Trust during the Revolving
Period and as of the applicable Add-on Consolidation Loan Funding Date, in the
case of a Consolidation Loan the principal balance of which is increased by
the principal balance of any related Add-on Consolidation Loan, but shall
survive the sale, transfer and assignment of the Financed Student Loans to the
Eligible Lender Trustee on behalf of the Issuer (and both the origination of
such Consolidation Loans and the addition of the principal balance of any
Add-on Consolidation Loan) and the pledge thereof to the Indenture Trustee
pursuant to the Indenture.
SECTION 4.02 Existence. During the term of this Agreement, the Seller
will keep in full force and effect its existence, rights and franchises as a
corporation under the laws of the jurisdiction of its incorporation and will
obtain and preserve its qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the other Basic Documents and each other
instrument or agreement necessary or appropriate to the proper administration
of this Agreement and the transactions contemplated hereby. In addition, all
transactions between the Seller and its Affiliates will be conducted on an
arm's-length basis. For so long, during the term of this Agreement, as the
Seller shall not be an eligible lender under the Higher Education Act with
respect to federal Student Loans, the Seller agrees to keep in full force and
effect an agreement with [_______________] or another eligible lender under
the Higher Education Act providing for such eligible lender meeting the
requirements set forth in the following sentence to hold title to the Seller's
Student Loans in trust for and on behalf of the Seller. The Seller shall not
convey any Prefunded Loans, New Loan, Serial Loan or Qualified Substitute
Student Loan if the eligible lender holding legal title to such loan is other
than [_______________] unless, prior to such conveyance, such other eligible
lender shall agree in writing to be bound, in the conveyance of each such loan
for which it acts as eligible lender, by the provisions of this Agreement that
are applicable to [_______________], to the same extent as if it were named
separately from [_______________] in each of such provisions.
SECTION 4.03 Liability of Seller; Indemnities. The Seller shall be
liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Seller under this Agreement.
(a) The Seller 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 and in the other Basic Documents (except any such income
taxes arising out of fees paid to the Eligible Lender Trustee or the Indenture
Trustee), including any sales, gross receipts, general corporation, tangible
personal property, privilege or license taxes (but, in the case of the Issuer,
not including taxes in connection with the issuance and original sale of the
Notes or asserted with respect to ownership of the Financed Student Loans or
federal or other income taxes arising out of payments on the Notes) and costs
and expenses in defending against the same.
(b) The Seller 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 costs,
expenses, losses, claims, damages and liabilities arising out of, or imposed
upon such Person through: (i) the Seller'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 Seller's or the Issuer's violation of federal or State securities
laws in connection with the offering and sale of the Notes.
(c) The Seller shall be liable as primary obligor for, and shall
indemnify, defend and hold harmless the Eligible Lender Trustee and its
officers, directors, employees and agents from and against, all costs,
expenses, losses, claims, damages, obligations and liabilities 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 the Eligible Lender Trustee hereunder and under the Trust
Agreement, except to the extent that such cost, expense, loss, claim damage,
obligation or liability: (i) shall be due to the willful misfeasance, bad
faith or negligence (except for errors in judgment) of the Eligible Lender
Trustee , (ii) shall arise from any breach by the Eligible Lender Trustee of
its covenants under any of the Basic Documents; or (iii) shall arise from the
breach by the Eligible Lender Trustee of any of its representations or
warranties set forth in Section 7.03 of the Trust Agreement. In the event of
any claim, action or proceeding for which indemnity will be sought pursuant to
this paragraph, the Eligible Lender Trustee's choice of legal counsel shall be
subject to the approval of the Seller, which approval shall not be
unreasonably withheld.
(d) The Seller 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 Seller's responsibilities pursuant to the parentheticals in paragraph
(a) above).
Indemnification under this Section shall survive the resignation or removal of
the Eligible Lender 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 Seller 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 Seller, without interest.
SECTION 4.04 Merger or Consolidation of, or Assumption of the
Obligations of, Seller or [_______________]. Any person: (a) into which the
Seller or [_______________] may be merged or consolidated, (b) which may
result from any merger or consolidation to which the Seller or
[_______________] shall be a party or (c) which may succeed to the properties
and assets of the Seller or [_______________] substantially as a whole, shall
be the successor to the Seller or [_______________], respectively, without the
execution or filing of any document or any further act by any of the parties
to this Agreement; provided, however, that the Seller hereby covenants that it
will not consummate any of the foregoing transactions except upon satisfaction
of the following: (i) the surviving Seller, if other than [_____________],
executes an agreement of assumption to perform every obligation of the Seller
under this Agreement, (ii) immediately after giving effect to such
transaction, no representation or warranty made pursuant to Section 3.01 or
4.01 shall have been breached and no Servicer Default, Event of Default or
Administrator Default and no event that, after notice or lapse of time, or
both, would become a Servicer Default, Event of Default or Administrative
Default shall have occurred and be continuing, (iii) the Seller shall have
delivered to the Eligible Lender Trustee and the Indenture Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, merger or succession and such agreement of assumption comply
with this Section and that all conditions precedent, if any, provided for in
this Agreement relating to such transaction have been complied with, and that
the Rating Agency Condition shall have been satisfied with respect to such
transaction, (iv) the surviving Seller shall have a consolidated net worth at
least equal to that of the predecessor Seller, (v) such transaction will not
result in a material adverse federal or state tax consequence to the Issuer or
the Noteholders and (vi) unless [______________________] is the surviving
entity, the Seller 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 and reciting
the details of such filings, or (B) stating that, in the opinion of such
counsel, no such action shall be necessary to preserve and protect such
interests; and provided, further, that [_______________] hereby covenants
that, unless [_______________] is the surviving entity, it will not consummate
any of the foregoing transactions unless [_________] 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 and reciting the details of such filings, or (B)
stating that, in the opinion of such counsel, no such action shall be
necessary to preserve and protect such interests.
SECTION 4.05 Limitation on Liabilities of Seller, [__________] and
Others. The Seller, [___________] and any director or officer or employee or
agent of the Seller or [____________] 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 (provided,
however, that such reliance shall not limit in any way the Seller's
obligations under Section 3.02). Neither the Seller nor [______________] shall
be under any obligation to appear in, prosecute or defend any legal action
that shall not be incidental to its respective obligations under this
Agreement, and that in its opinion may involve it in any expense or liability.
SECTION 4.06 Seller and [_______________] May Own Notes. The Seller,
[_______________] and any Affiliate of either may in its individual or any
other capacity become the owner or pledgee of Notes with the same rights as it
would have if it were not the Seller or [_______________], as the case may be
or an Affiliate of either, except as expressly provided herein or in any other
Basic Document.
ARTICLE V
OPTIONAL PURCHASE
As of the last day of any Collection Period immediately preceding a
Quarterly Payment Date as of which the then outstanding Pool Balance is 15% or
less of the initial aggregate principal balance of the Notes, the Company or
its designee shall have the option to purchase the Trust Estate, other than
the Trust Accounts. To exercise such option, the Company or its designee shall
deposit in the Collection Account an amount equal to the Minimum Purchase
Price; provided, however, that the Company or its designee 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 Minimum Purchase
Price.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01 Amendment. This Agreement may be amended by the Seller,
[_______________] and the Eligible Lender Trustee, with the consent of the
Indenture Trustee, but without the consent of any of the Noteholders, to cure
any ambiguity, to correct or supplement any provisions in this Agreement or
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions in this Agreement or of modifying in any
manner the rights of the Noteholders; provided, however, that such action
shall not, as evidenced by an Opinion of Counsel delivered to the Eligible
Lender Trustee and the Indenture Trustee, adversely affect in any material
respect the interests of any Noteholder.
This Agreement may also be amended from time to time by the Seller
and the Eligible Lender Trustee, with the consent of [_______________], the
Indenture Trustee and the Noteholders of Notes evidencing not less than a
majority of the Outstanding Amount of the 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;
provided, however, that no such amendment shall: (a) increase or reduce in any
manner the amount of, or accelerate or delay the timing of, collections of
payments with respect to Financed Student Loans or distributions that shall be
required to be made for the benefit of the Noteholders or any Swap
Counterparties or (b) reduce the aforesaid percentage of the Outstanding
Amount of the Notes, the Noteholders of which are required to consent to any
such amendment, without the consent of all outstanding Noteholders and any
Swap Counterparties.
Promptly after the execution of any such amendment or consent (or, in
the case of the Rating Agencies, five Business Days prior thereto), the
Eligible Lender Trustee shall furnish written notification of the substance of
such amendment or consent to [_______________], the Seller, the Administrator,
each Noteholder, the Indenture Trustee, the Servicer and each of the Rating
Agencies.
It shall not be necessary for the consent of Noteholders pursuant to
this Section to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the
substance thereof.
Prior to the execution of any amendment to this Agreement, the
Eligible Lender Trustee and the Indenture Trustee shall receive upon request
and rely upon an Opinion of Counsel stating that the execution of such
amendment is authorized or permitted by this Agreement and the Opinion of
Counsel referred to in Section 6.02(f). The Eligible Lender Trustee and the
Indenture Trustee may, but shall not be obligated to, enter into any such
amendment which affects the Eligible Lender Trustee's or the Indenture
Trustee's, as applicable, own rights, duties or immunities under this
Agreement or otherwise.
SECTION 6.02 Protection Of Interests In Trust. (a) Each of the Seller
and [_______________] 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. Each of the Seller and [_______________] 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.
(b) Neither the Seller nor [_______________] 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.9-507 of the
UCC, unless it shall have given the Eligible Lender Trustee and the Indenture
Trustee at least five (5) 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 Seller and [_______________] shall have an obligation
to give the Eligible Lender Trustee, the Indenture Trustee and the Rating
Agencies at least sixty (60) days prior written notice of any relocation of
its principal executive office if, as a result of such relocation, the
applicable provisions of the UCC would require the filing of any amendment of
any previously filed financing or continuation statement or of any new
financing statement and shall promptly file any such amendment.
(d) If at any time the Seller or [_______________] shall propose to
sell, grant a security interest in, or otherwise transfer any interest in
student loans to any prospective purchaser, lender or other transferee, the
Seller or [_______________], as the case may be, shall give to such
prospective purchaser, lender or other transferee computer tapes, records or
printouts (including any restored from backup archives) that, if they shall
refer in any manner whatsoever to any Financed Student Loan, shall indicate
clearly that such Financed Student Loan has been sold and is owned by the
Issuer and has been pledged to the Indenture Trustee.
(e) The Seller shall, to the extent required by applicable law, cause
the Notes to be registered with the Commission pursuant to Section 12(b) or
Section 12(g) of the Exchange Act within the time periods specified in such
sections.
(f) The Seller shall deliver to the Eligible Lender Trustee and the
Indenture Trustee:
(1) promptly after the execution and delivery of this Agreement
and of each amendment thereto, on each Transfer Date as set forth in
Section 2.02 and on the date of each Assignment as set forth in Section
3.02, an Opinion of Counsel either: (A) stating that, in the opinion of
such counsel, all financing statements and continuation statements have
been executed and filed that are necessary fully to preserve and protect
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 protect 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 Cutoff 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 fully to preserve and protect 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 protect such interest; provided, however,
that a single Opinion of Counsel may be delivered in satisfaction of the
foregoing requirement and that of Section 3.06(b) of the Indenture.
Each Opinion of Counsel referred to in clause (1) 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.
SECTION 6.03 Notices. Unless otherwise agreed by the recipient, all
demands, notices and communications upon or to the Seller, [____________], the
Servicer, the Issuer, the Eligible Lender Trustee, the Indenture Trustee, the
Administrator or the Rating Agencies under this Agreement shall be in writing,
personally delivered or mailed by certified mail, return receipt requested (or
in the form of telex or facsimile notice, followed by written notice delivered
as aforesaid or postage prepaid, first class mail), and shall be deemed to
have been duly given upon receipt:
(a) in the case of the Seller, to
[_______________]
[_______________________]
[_______________________]
Attention: [__________________]
Telephone: [________________]
Telecopy: [_________________];
with a copy to
Office of the General Counsel
[_______________________]
[_______________________]
[_______________________]
Attention: [___________________]
Telephone: [______________]
Telecopy: [_______________];
(b) in the case of [_______________], to
[__________________________],
as trustee for [_______________]
[_______________________]
[_______________________]
[_______________________]
Attention: [_______________]
Telephone: [_______________]
Telecopy: [_______________];
(c) in the case of the Servicer, to
[__________________________]
[__________________________]
[__________________________]
[__________________________]
[__________________________]
Attention: [_______________]
Telephone: [_______________]
Telecopy: [_______________];
with a copy to
[_______________________]
[_______________________]
[_______________________]
Attention: [_______________]
Telephone: [_______________]
Telecopy: [_______________];
(d) in the case of the Issuer, to [_________] Student Loan Trust
[______]
c/o [_______________]
[________________________]
[________________________]
[________________________]
with a copy to the Eligible Lender Trustee at the Corporate
Trust Office of the Eligible Lender Trustee;
(e) in the case of the Issuer or the Eligible Lender Trustee, at the
Corporate Trust Office of the Eligible Lender Trustee;
(f) in the case of the Indenture Trustee, at its Corporate Trust
Office;
(g) in the case of the Administrator, to
[__________________________]
[__________________________]
[__________________________]
[Additional________________]
[__________________________]
Attention: [_______________]
Telephone: [_______________]
Telecopy: [_______________];
with a copy to
Office of the General Counsel
[__________________________]
[__________________________]
[__________________________]
[__________________________]
[__________________________]
Attention: [_______________]
Telephone: [_______________]
Telecopy: [_______________];
(h) in the case of Fitch, to Fitch, Inc. to
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: [Asset Backed Monitoring Unit]
Telephone: (000) 000-0000
Facsimile: (000) 000-0000;
(i) in the case of Xxxxx'x Investors Service, Inc. to
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: [ABS Monitoring Department]
Telephone: (000) 000-0000
Facsimile: (000) 000-0000; and
(j) in the case of Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc. to
Standard & Poor's
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: [Asset Backed Surveillance Department]
Telephone: 000-000-0000
Facsimile: 000-000-0000.
or, as to each of the foregoing, at such other address as shall be designated
by written notice to the other parties.
SECTION 6.04 Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Section 4.04, this Agreement may not
be assigned by the Seller or [_______________]. This Agreement may be assigned
by the Eligible Lender Trustee only to its permitted successor pursuant to the
Trust Agreement or otherwise in accordance with Section 6.10.
SECTION 6.05 Limitations On Rights Of Others. The provisions of this
Agreement are solely for the benefit of the Seller, [_______________], the
Issuer, and the Eligible Lender Trustee and for the benefit of the Indenture
Trustee, the Noteholders, any Swap Counterparties (with respect to Section
5.01) and the Company or its designee, 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 6.06 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
SECTION 6.07. Separate Counterparts. This Agreement may be executed
by the parties hereto in separate counterparts, each of which when so executed
and delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 6.08 Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 6.09 Governing Law. This Agreement shall be construed in
accordance with the laws of the State of [____________], without reference to
its conflict of law provisions, and the obligations, rights and remedies of
the parties hereunder shall be determined in accordance with such laws.
SECTION 6.10 Assignment To Indenture Trustee. The Seller 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 or the assignment of any or
all of the Issuer's rights and obligations hereunder to the Indenture Trustee.
SECTION 6.11 Non-Petition Covenants. Notwithstanding any prior
termination of this Agreement, neither the Seller nor [____________] shall,
prior to the date which is one year and one day after the termination of this
Agreement with respect to the Issuer or the Company, acquiesce, petition or
otherwise invoke or cause the Issuer 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 or the Company.
SECTION 6.12 Limitation of Liability of [_______________], Eligible
Lender Trustee and Indenture Trustee. (a) Notwithstanding anything contained
herein to the contrary (other than as provided in subsection (d)), this
Agreement has been signed by [_______________] not in its individual capacity
but solely in its capacity as trustee for the Seller and in no event shall
[_______________] in its individual capacity or, except as expressly provided
herein or in the Instrument of Resignation, Appointment and Acceptance dated
[_____________] in connection with the trust agreement between Seller and
[_____________], dated [_______________], as legal owner of the Financed
Student Loans, have any liability for representations, warranties, covenants,
agreements or other obligations of the Seller hereunder or in any of the
certificates, notices or agreements delivered by the Seller pursuant hereto as
to all of which recourse shall be had solely against the Seller.
(b) Notwithstanding anything contained herein to the contrary (other
than as provided in subsection (d)), this Agreement has been signed by
[_______________], not in its individual capacity but solely in its capacity
as Eligible Lender Trustee of the Issuer and in no event shall
[_______________], in its individual capacity or, except as expressly provided
in the Trust Agreement, as beneficial owner of the Issuer have any liability
for the representations, warranties, covenants, agreements or other
obligations of the Issuer hereunder or in any of the certificates, notices or
agreements delivered pursuant hereto as to all of which recourse shall be had
solely to the assets of the Issuer.
(c) Notwithstanding anything contained herein to the contrary (other
than as provided in subsection (d)), this Agreement has been accepted by
[_______________] not in its individual capacity but solely as Indenture
Trustee and in no event shall [_______________] have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Issuer hereunder or in any of the certificates, notices or agreements
delivered pursuant hereto, as to all of which recourse shall be had solely to
the assets of the Issuer.
(d) Notwithstanding any other provision in this Agreement or the
other Basic Documents, nothing in this Agreement or the other Basic Documents
shall be construed to limit the legal responsibility of the Eligible Lender
Trustee or the Indenture Trustee, to the U.S. Secretary of Education or a
Guarantor for any violations of statutory or regulatory requirements that may
occur with respect to loans held by the Eligible Lender Trustee or the
Indenture Trustee pursuant to, or to otherwise comply with their obligations
under, the Higher Education Act or implementing regulations.
Agreement Of Seller And [_______________]. Each of the Seller and
[_______________] agrees to execute and deliver such instruments and to take
such actions as the Eligible Lender Trustee, the Issuer or the Indenture
Trustee may reasonably request in order to effectuate the terms and carry out
the purposes of the Agreement. Each of the Seller and [_______________] agrees
to execute and deliver such instruments and to take such actions as the
Eligible Lender Trustee, the Issuer or the Indenture Trustee may reasonably
request in order to effectuate the terms and carry out the purposes of the
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers as of the day and year first
above written.
[___________________________________]
STUDENT LOAN TRUST [______]
By: [_______________], not in its individual
capacity but solely as Eligible Lender
Trustee on behalf of the Trust
GS MORTGAGE SECURITIES CORP.
By: _____________________________________
Name:
Title:
Acknowledged and accepted as of the day and year first above written:
[________________], not in
its individual capacity but
solely as Indenture Trustee
By: _____________________________________
Name:
Title:
