Exhibit 99.2
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[FORM OF]
MASTER SERVICING AGREEMENT
among
XXXXXX XXX STUDENT LOAN TRUST 1999-A
as Issuer,
XXXXXX XXX EDUCATION LOAN CORPORATION
as Seller and Master Servicer,
and
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity but solely
as Eligible Lender Trustee
Dated as of [_____] 1, 1999
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MASTER SERVICING AGREEMENT dated as of [_____] 1, 1999, among
XXXXXX XXX STUDENT LOAN TRUST 1999-A, a Delaware trust (the "ISSUER"), XXXXXX
XXX EDUCATION LOAN CORPORATION, a Delaware corporation, as master servicer and
as seller (in such respective capacities, the "MASTER SERVICER" and the
"SELLER"), and THE FIRST NATIONAL BANK OF CHICAGO, 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 (and,
with respect to legal title to the student loans, FNBC as trustee on behalf of
the Seller) a portfolio of federally reinsured student loans purchased in the
ordinary course of business by the Seller; and
WHEREAS the Eligible Lender Trustee is willing to hold legal
title to, and serve as eligible lender trustee with respect to, such student
loans on behalf of the Issuer; and
WHEREAS the Master Servicer is willing to service such student
loans and undertake certain administrative functions with respect thereto.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
Capitalized terms used but not defined herein are defined in
Appendix A to the Administration Agreement, dated as of [_____] 1, 1999, among
the Issuer, the Seller, as Administrator, and State Street Bank and Trust
Company, as Indenture Trustee, which also contains rules as to usage and
construction that shall be applicable herein.
ARTICLE II
CUSTODY OF THE TRUST LOANS
SECTION 2.01. CUSTODY OF STUDENT LOAN FILES. To assure uniform
quality in servicing the Trust Loans and to reduce administrative costs, the
Issuer hereby revocably appoints the Master Servicer, and the Master Servicer
hereby accepts such appointment, to act for the benefit of the Issuer and the
Indenture Trustee (if any Notes remain Outstanding) and the Eligible Lender
Trustee (if the Notes have been paid in full) as Custodian of the following
documents or instruments which are hereby constructively delivered to the
Indenture Trustee, as pledgee of the Issuer (or will be constructively delivered
to the Indenture Trustee, as pledgee of the Issuer, or to the Eligible Lender
Trustee, on behalf of the Issuer, as the case may be, in the case of Qualified
Substitute Student Loans, as of the date of the relevant Assignment to the
Issuer, and in the case of Serial Loans, as of the related Transfer Date) with
respect to each Trust Loan:
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(a) the original fully executed copy of the Borrower Note
evidencing the Trust Loan; and
(b) any and all other documents and computerized records
relating to such Trust Loan or any Obligor with respect thereto that
the Master Servicer shall keep on file, in accordance with the
customary procedures of custodians of student loans similar to the
Trust Loans.
SECTION 2.02. DUTIES OF MASTER SERVICER AS CUSTODIAN. (a)
SAFEKEEPING. The Master Servicer shall maintain custody of the Student Loan
Files for the benefit of the Issuer and the Indenture Trustee on behalf of the
Noteholders (if any Notes remain Outstanding) or the Eligible Lender Trustee on
behalf of the Certificateholders (if the Notes have been paid in full) and
maintain such accurate and complete accounts, records and computer systems
pertaining to each Student Loan File as shall enable the Issuer to comply with
the Basic Documents. In performing its duties as Custodian, the Master Servicer
shall act with reasonable care, using that degree of skill and attention
generally employed by custodians of student loan files relating to loans
comparable to the Trust Loans and shall ensure that such custody and safekeeping
of the Trust Loans comply with all applicable federal and state laws, including
the Higher Education Act. The Master Servicer shall promptly report to the
Issuer and the Indenture Trustee or the Eligible Lender Trustee, as the case may
be, any failure on its part to hold the Student Loan Files and maintain its
accounts, records and computer systems as herein provided and promptly take
appropriate action to remedy any such failure. Nothing herein shall be deemed to
require an initial review or any periodic review by the Issuer, the Eligible
Lender Trustee or the Indenture Trustee of the Student Loan Files.
(b) MAINTENANCE OF RECORDS. The Master Servicer shall maintain
each Student Loan File at one of the locations specified in Schedule A to this
Agreement or at such other office as shall be specified by written notice to the
Issuer and the Indenture Trustee (if any Notes remain Outstanding) or the
Eligible Lender Trustee (if the Notes have been paid in full) not later than 90
days after any change in location. Upon reasonable prior notice of not less than
three Business Days, the Master Servicer shall make available to the Issuer and
the Indenture Trustee or the Eligible Lender Trustee, as the case may be, or
their respective duly authorized representatives, attorneys or auditors a list
of locations of the Student Loan Files and the related accounts, records and
computer systems maintained by the Master Servicer.
(c) RELEASE OF DOCUMENTS. If any Notes remain Outstanding,
upon instruction from the Indenture Trustee, the Master Servicer shall, as soon
as practicable, release any Student Loan File to the Indenture Trustee, the
Indenture Trustee's agent, or the Indenture Trustee's designee, as the case may
be, at such place or places as the Indenture Trustee may designate. If the Notes
have been paid in full, the Master Servicer shall, as soon as practicable,
release any Student Loan File to the Eligible Lender Trustee, the Eligible
Lender Trustee's agent or the Eligible Lender Trustee's designee, as the case
may be, at such place or places as the Eligible Lender Trustee may designate.
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The Master Servicer shall not be liable for any losses with
respect to the servicing of a Trust Loan after any such release of the related
Student Loan File to the extent such losses are attributable to the Master
Servicer's (or the applicable subservicer's) inability to have access to such
Student Loan File.
SECTION 2.03. INSTRUCTIONS; AUTHORITY TO ACT. The Master
Servicer shall be deemed to have received proper instructions with respect to
the Student Loan Files upon its receipt of written instructions signed by a
Responsible Officer of the Indenture Trustee (if any Notes remain Outstanding)
or of the Eligible Lender Trustee (if the Notes have been paid in full).
SECTION 2.04. CUSTODIAN'S INDEMNIFICATION. The Master Servicer
as Custodian shall pay for any actual loss, liability or expense, including
reasonable attorneys' fees, that may be imposed on, incurred by or asserted
against the Issuer, the Eligible Lender Trustee or the Indenture Trustee or any
of their officers, directors, employees and agents as a result of any improper
act or omission in any way relating to the maintenance and custody by the Master
Servicer as Custodian of the Student Loan Files as required by this Agreement
where the final determination that any such improper act or omission by the
Master Servicer resulted in such loss, liability or expense is established by a
court of law, by an arbitrator, or by way of settlement agreed to by the Master
Servicer; PROVIDED, HOWEVER, that the amount of any liability with respect to
any Trust Loan shall not exceed the amount that would have been paid if such
Student Loan had been accepted and paid by the related Guarantor as a claim; and
PROVIDED, FURTHER, that the Master Servicer shall not be liable to the Eligible
Lender Trustee, for any portion of any such amount resulting from the willful
misfeasance, bad faith or negligence of the Eligible Lender Trustee, and the
Master Servicer shall not be liable to the Indenture Trustee for any portion of
any such amount resulting from the willful misfeasance, bad faith or negligence
of the Indenture Trustee. This provision shall not be construed to limit the
Master Servicer's or any other party's rights, obligations, liabilities, claims
or defenses which arise as a matter of law or pursuant to any other provision of
this Agreement.
SECTION 2.05. EFFECTIVE PERIOD AND TERMINATION. The
appointment of NMELC as Custodian shall become effective as of the Closing Date
and shall continue in full force and effect for so long as NMELC shall remain
the Master Servicer hereunder. If all the rights and obligations of NMELC shall
have been terminated under Section 6.01, the appointment of NMELC as Custodian
shall be terminated simultaneously with the effectiveness of such termination.
As soon as practicable on or after any termination of such appointment and in
any event within ninety (90) days, NMELC shall deliver, or cause to be
delivered, possession of the Student Loan Files (i) if any Notes remain
Outstanding, to the Indenture Trustee or the Indenture Trustee's agent at such
place or places as the Indenture Trustee may reasonably designate; or (ii) if
the Notes have been paid in full to the Eligible Lender Trustee or the Eligible
lender Trustee's agent at such place or places as the Eligible Lender Trustee
may reasonably designate. NMELC will continue to hold the Student Loan Files as
agent of the Indenture Trustee or the Eligible Lender Trustee, as the case may
be, until the Student Loan Files are transferred.
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ARTICLE III
ADMINISTRATION AND SERVICING OF THE TRUST LOANS
SECTION 3.01. DUTIES OF MASTER SERVICER. The Master Servicer,
for the benefit of the Issuer (to the extent provided herein) and the
Securityholders, shall manage, service, administer and make collections on the
Trust Loans with reasonable care, using that degree of skill and attention
generally employed by servicers in servicing student loans comparable to the
Trust Loans. Without limiting the generality of the foregoing or of any other
provision set forth in this Agreement and notwithstanding any other provision to
the contrary set forth herein, the Master Servicer shall manage, service,
administer and make collections with respect to the Trust Loans (other than
collection of any Interest Subsidy Payments and Special Allowance Payments,
which the Eligible Lender Trustee will perform on behalf of the Trust) in
accordance with, and otherwise comply with, all applicable federal and state
laws, including any applicable standards, guidelines and requirements of the
Higher Education Act and the applicable Guarantee Agreement, the failure to
comply with which would adversely affect the eligibility of one or more of the
Trust Loans for federal reinsurance or Interest Subsidy Payments, Special
Allowance Payments or Guarantee Payments or would have an adverse effect on the
Noteholders or the Certificateholders. The Master Servicer also hereby
acknowledges that its obligation to service the Trust Loans includes any Serial
Loans conveyed to the Issuer pursuant to Section 2.02 of the Loan Sale Agreement
and any Qualified Substitute Student Loans conveyed to the Issuer pursuant to
Section 3.02 of the Loan Sale Agreement.
The Master Servicer's duties shall include collection and
posting of all payments, responding to inquiries of Borrowers about their Trust
Loans, monitoring borrowers' status, making required disclosures to Borrowers,
investigating delinquencies, sending payment coupons to borrowers and otherwise
establishing repayment terms, reporting tax information to borrowers, if
applicable, accounting for collections and furnishing monthly and annual
statements with respect thereto to the Administrator. Subject to the provisions
of Section 3.02, in performing its duties as Master Servicer, the Master
Servicer shall follow standards, policies and procedures customarily employed by
servicers that service student loans comparable to the Trust Loans. Without
limiting the generality of the foregoing, the Master Servicer is authorized and
empowered to execute and deliver, on behalf of itself, the Issuer, the Eligible
Lender Trustee, the Indenture Trustee, the Company and the Securityholders or
any of them, instruments of satisfaction or cancellation, or partial or full
release or discharge, and all other comparable instruments, with respect to the
Trust Loans; PROVIDED, HOWEVER, that the Master Servicer agrees that it will not
(a) permit any rescission or cancellation of a Trust Loan except as ordered by a
court of competent jurisdiction or governmental authority or as otherwise
consented to in writing by the Eligible Lender Trustee and, if any Notes remain
Outstanding, the Indenture Trustee or (b) reschedule, revise, defer or otherwise
compromise with respect to payments due on any Trust Loan except pursuant to any
applicable Deferral or Forbearance periods or otherwise in accordance with all
applicable standards, guidelines and requirements with respect to the servicing
of the Trust Loans; and PROVIDED, FURTHER, that, except pursuant to an
applicable Incentive Program, the Master Servicer shall not agree to any
decrease of the interest rate on, or
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the principal amount payable with respect to, any Trust Loan. Anything to the
contrary in this Section 3.01 notwithstanding, the Master Servicer shall have
the right to write off any delinquent Trust Loan if the remaining balance of the
related Borrower's account is less than $50.00.
The Master Servicer, for the benefit of the Issuer (to the
extent provided herein), shall promptly and routinely furnish the Eligible
Lender Trustee and, if any Notes remain Outstanding, the Indenture Trustee with
copies of all material reports, records, and other documents and data as
required by this Agreement or as may otherwise be required by the Higher
Education Act. All material correspondence received by the Master Servicer
relating to individual Trust Loans shall be maintained in microcopy form or in
summary form in an automated history file established by the Master Servicer.
The Master Servicer shall furnish in good condition all forms and supplies as
specified in this Agreement and any Schedules hereto. The Eligible Lender
Trustee and the Indenture Trustee may transmit Trust Loan account data to the
Master Servicer on these forms or by any other mutually acceptable means. In
performing its duties hereunder, the Master Servicer will be guided by and
comply with the Higher Education Act and applicable requirements of the related
Guarantor. The Master Servicer agrees to produce a clear and precise audit trail
for each Trust Loan and to comply with such other reporting, servicing, and
operating standards as are contained in this Agreement.
The Eligible Lender Trustee on behalf of the Issuer hereby
grants a power of attorney and all necessary authorization to the Master
Servicer to maintain any and all collection procedures with respect to the Trust
Loans, including filing, pursuing and recovering claims against the Guarantors
for Guarantee Payments and taking any steps to enforce such Trust Loans such as
commencing a legal proceeding to enforce a Trust Loan in the name of the Issuer,
the Eligible Lender Trustee, the Indenture Trustee or the Securityholders. The
Eligible Lender Trustee or the Indenture Trustee shall, upon the written request
of the Master Servicer or the Administrator, furnish the Master Servicer or the
Administrator with any other powers of attorney and other documents reasonably
necessary or appropriate to enable the Master Servicer or the Administrator to
carry out their servicing and administrative duties hereunder.
SECTION 3.02. COLLECTION OF TRUST LOAN PAYMENTS. (a) The
Master Servicer shall make reasonable efforts (including all efforts that may be
specified under the Higher Education Act or any Guarantee Agreement) to collect
all payments called for under the terms and provisions of the Trust Loans as and
when the same shall become due and shall follow such collection procedures as
are generally employed by servicers that service student loans comparable to the
Trust Loans. The Master Servicer shall allocate collections with respect to the
Trust Loans between principal and interest in accordance with the terms of each
such loan. The Master Servicer may in its discretion waive any late payment
charge or any other fees that may be collected in the ordinary course of
servicing a Trust Loan.
(b) The Master Servicer shall make reasonable efforts to
claim, pursue and collect all Guarantee Payments from the Guarantors pursuant to
the Guarantee Agreements with respect to any of the Trust Loans as and when the
same shall become due and payable, shall comply with the Higher Education Act
and all other applicable laws and agreements with respect
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to claiming, pursuing and collecting such payments and shall follow such
practices and procedures as are generally employed by servicers with respect to
guarantee agreements comparable to the Guarantee Agreements and student loans
comparable to the Trust Loans. In connection therewith, the Master Servicer is
hereby authorized and empowered to convey to the related Guarantor the Borrower
Note and the related Student Loan File representing any Trust Loan in connection
with submitting a claim to the applicable Guarantor for a Guarantee Payment in
accordance with the terms of the applicable Guarantee Agreement.
(c) The Eligible Lender Trustee shall, with the assistance of
the Master Servicer as set forth below and on behalf of the Issuer, make
reasonable efforts to claim, pursue and collect all Interest Subsidy Payments
and Special Allowance Payments from the Department with respect to any of the
Trust Loans as and when the same shall become due and payable, shall comply with
all applicable laws and agreements with respect to claiming, pursuing and
collecting such payments and shall follow such practices and procedures as are
generally employed by servicers in servicing student loans comparable to the
Trust Loans. All amounts so collected by the Eligible Lender Trustee with
respect to Trust Loans shall constitute Monthly Available Funds for the
applicable Monthly Collection Period and Available Funds for the applicable
Collection Period, and shall be deposited into the Collection Account in
accordance with Section 4.01. In connection therewith, the Master Servicer shall
prepare and file with the Department on a timely basis all claims forms and
other documents and filings necessary or appropriate in connection with the
claiming of Interest Subsidy Payments and Special Allowance Payments on behalf
of the Eligible Lender Trustee and shall otherwise assist the Eligible Lender
Trustee in pursuing and collecting such Interest Subsidy Payments and Special
Allowance Payments from the Department. The Eligible Lender Trustee shall upon
the written request of the Master Servicer furnish the Master Servicer with any
power of attorney and other documents reasonably necessary or appropriate to
enable the Master Servicer to prepare and file such claims forms and other
documents and filings.
The Eligible Lender Trustee may permit trusts, other than the
Trust, established by the Seller to securitize student loans to use the
Department lender identification number applicable to the Trust. In such event,
the Eligible Lender Trustee may claim and collect Interest Subsidy Payments and
Special Allowance Payments with respect to Trust Loans in the Trust and student
loans in such other trusts using such common lender identification number.
Notwithstanding anything herein or in the Basic Documents to the contrary, any
amounts assessed against payments (including, but not limited to, Interest
Subsidy Payments and Special Allowance Payments) due from the Department to any
such other trust using such common lender identification number as a result of
amounts owing to the Department from the Trust will be deemed for all purposes
hereof and of the Basic Documents (including for purposes of determining amounts
paid by the Department with respect to the student loans in the Trust and such
other trust) to have been assessed against the Trust and shall be deducted by
the Eligible Lender Trustee or the Master Servicer and paid to such other trust
from any collections made by them which would otherwise have been payable to the
Collection Account for the Trust. If so specified in the master servicing
agreement applicable to any such other trust, any amounts assessed against
payments due from the Department to the Trust as a result of amounts owing to
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the Department from such other trust using such common lender identification
number will be deemed to have been assessed against such other trust and will be
deducted by the Eligible Lender Trustee or the Master Servicer from any
collections made by them which would otherwise be payable to the collection
account for such other trust and paid to the Trust.
SECTION 3.03. REALIZATION UPON TRUST LOANS. For the benefit of
the Issuer, the Master Servicer shall use reasonable efforts consistent with the
servicing practices and procedures generally employed by servicers that service
student loans comparable to the Trust Loans and including all efforts that may
be specified under the Higher Education Act or the applicable Guarantee
Agreement for servicing any delinquent Trust Loans.
SECTION 3.04. NO IMPAIRMENT. The Master Servicer shall not
impair the rights of the Issuer, the Eligible Lender Trustee, the Indenture
Trustee, the Noteholders or the Certificateholders in the Trust Loans.
SECTION 3.05. PURCHASE OF TRUST LOANS; REIMBURSEMENT. (a) Upon
the discovery by the Master Servicer, the Eligible Lender Trustee, the Indenture
Trustee or the Seller of any breach pursuant to Sections 3.01, 3.02, 3.03 or
3.04 hereof that materially and adversely affects the interests of the
Noteholders, the Certificateholders, the Issuer, the Indenture Trustee or the
Eligible Lender Trustee (it being understood that any such breach that does not
affect the related Guarantor's obligation to guarantee payment of such Trust
Loan will not be considered to have a material adverse effect for this purpose
and it being further understood that any dispute as to whether such Guarantor's
obligation has been so affected so as to create such a material adverse effect,
shall be resolved, for so long as the Notes are Outstanding, by the Indenture
Trustee, whose determination shall be dispositive, and after the Notes are no
longer Outstanding, by the Eligible Lender Trustee, whose determination shall
then be dispositive), the party discovering the breach shall give prompt written
notice to the others. In the event of such a material breach which is not
curable by reinstatement of the related Guarantor's guarantee of such Trust
Loan, the Master Servicer shall purchase the affected Trust Loan not later than
120 days following the earlier of the date of discovery of such material breach
and the date of receipt of the Guarantor reject transmittal form with respect to
such Trust Loan. In the event of a material breach with respect to such Trust
Loan which is curable by reinstatement of the Guarantor's guarantee of such
Trust Loan, unless the material breach shall have been cured within 360 days
following the earlier of the date of discovery of such material breach and the
date of receipt of the Guarantor reject transmittal form with respect to such
Trust Loan, the Master Servicer shall purchase such Trust Loan not later than
the 60th day following the end of such 360-day period.
(b) In consideration of the purchase of any such Trust Loan
pursuant to this Section 3.05, the Master Servicer shall remit, in the manner
specified in Section 4.01, the Purchase Amount and the Issuer shall execute such
assignments and other documents reasonably requested by the Master Servicer in
order to effect the transfer of such Trust Loan to the Master Servicer or its
designee; PROVIDED, HOWEVER, that the Master Servicer's total liability for
losses for rejected claims by the Guarantors for any Trust Loan based on any
breach pursuant to
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Sections 3.01, 3.02, 3.03 or 3.04 hereof will not exceed that amount which the
related Guarantor would have been obligated to pay with respect to such loan had
its obligation to guarantee payment thereof not been affected by the Master
Servicer's breach. Subject to Section 5.02, the exclusive remedy of the
Noteholders, the Certificateholders, the Issuer, the Indenture Trustee and the
Eligible Lender Trustee, and the entire liability of Master Servicer for such a
breach shall be limited to requiring the Master Servicer to purchase Trust Loans
pursuant to this Section 3.05.
SECTION 3.06. MASTER SERVICING FEE. The Master Servicing Fee
for each calendar month (the "MASTER SERVICING FEE") shall be equal to
one-twelfth of the product of [__]% times the aggregate principal balances of
the Trust Loans outstanding as of the close of business on the first day of the
preceding calendar month.
The Master Servicing Fee (together with any portion of the
Master Servicing Fee that remains unpaid from prior Monthly Payment Dates) will
be payable on each Monthly Payment Date and will be paid solely out of Monthly
Available Funds in the case of each Monthly Payment Date that is not a Quarterly
Payment Date (and out of Available Funds in the case of each Quarterly Payment
Date) and amounts on deposit in the Reserve Account on such Monthly Payment Date
(including each Quarterly Payment Date) as provided in Sections 2(d)(ii)(A),
2(d)(iii)(A) and 2(e)(iv)(A) of the Administration Agreement.
SECTION 3.07. MASTER SERVICER'S REPORT. On or before the
[______]day of each month (or, if any such day is not a Business Day, on the
next succeeding Business Day), the Master Servicer shall deliver to the
Administrator a Master Servicer's report with respect to the preceding calendar
month containing all information necessary for the Administrator to prepare the
Administrator's Certificate, referred to in Section 2(b)(ii) of the
Administration Agreement, covering such preceding calendar month.
SECTION 3.08. ANNUAL STATEMENT AS TO COMPLIANCE; NOTICE OF
DEFAULT. (a) The Master Servicer shall deliver to the Eligible Lender Trustee
(with a copy to the Seller) and, if any Notes remain Outstanding, to the
Indenture Trustee, on or before April 30 of each year beginning April 30, 2000,
an Officers' Certificate of the Master Servicer, dated as of December 31 of the
preceding year, stating that (i) a review of the activities of the Master
Servicer during the preceding 12-month period (or, in the case of the first such
certificate, during the period from the Closing Date to December 31, 1999) and
of its performance has been made under such officers' supervision and (ii) to
the best of such officers' knowledge, based on such review, the Master Servicer
has fulfilled all its obligations under this Agreement in all material respects
throughout such year (or in the case of the first such Officers' Certificate,
such shorter period) or, if there has been a default in the fulfillment of any
such obligation, specifying each such default known to such officers and the
nature and status thereof. The Indenture Trustee (if any Notes remain
Outstanding) or the Eligible Lender Trustee (if the Notes have been paid in
full) shall send a copy of each such Officers' Certificate and each report
referred to in this Section 3.08 to the Rating Agencies. A copy of each such
Officers' Certificate and each report referred to in this Section 3.08 may be
obtained by any Noteholder, Note Owner, Certificateholder or Certificate Owner
by a request in writing to the Eligible Lender Trustee
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addressed to its Corporate Trust Office, together with evidence satisfactory to
the Eligible Lender Trustee that such Person is one of the foregoing parties.
Upon the telephone request of the Eligible Lender Trustee, the Indenture Trustee
will promptly furnish the Eligible Lender Trustee a list of Noteholders as of
the date specified by the Eligible Lender Trustee.
(b) The Master Servicer shall deliver to the Eligible Lender
Trustee, the Indenture Trustee (if any Notes remain Outstanding), the Seller and
the Rating Agencies, promptly after having obtained knowledge thereof, but in no
event later than five Business Days thereafter, written notice in an Officers'
Certificate of the Master Servicer of any event which with the giving of notice
or lapse of time, or both, would become a Master Servicer Default under Section
6.01.
SECTION 3.09. ANNUAL INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS'
REPORT. The Master Servicer shall cause a firm of independent certified public
accountants, which may also render other services to the Master Servicer, the
Seller or their Affiliates, to deliver to the Eligible Lender Trustee (with a
copy to the Seller) and, if any Notes remain Outstanding, to the Indenture
Trustee, within 180 days after the end of the Master Servicer's regular
fiscal-year audit period, an audit report that encompasses the Master Servicer's
portion of the annual Lender Audit (as defined in the Higher Education Act), or
any successor thereto, as required of a lender under the Higher Education Act,
for the preceding year (or, in the case of the first such report, during the
period from the Closing Date to December 31, 1999. The Indenture Trustee (if any
Notes remain Outstanding) or the Eligible Lender Trustee (if the Notes have been
paid in full) shall send a copy of each such report to the Rating Agencies.
Such report will also indicate that the firm is independent of
the Master Servicer within the meaning of the Code of Professional Ethics of the
American Institute of Certified Public Accountants.
SECTION 3.10. ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION
REGARDING TRUST LOANS. Upon at least three Business Days' prior notice, the
Master Servicer shall provide the Noteholders and the Certificateholders access
to the Student Loan Files in such cases where the Noteholders or the
Certificateholders shall be required by applicable statutes or regulations to
review such documentation, as demonstrated by evidence satisfactory to the
Master Servicer in its reasonable judgment. Access shall be afforded without
charge, but only upon ten (10) Business Days' advance notice and during the
normal business hours at the respective offices of the Master Servicer or the
related subservicer, as applicable. Nothing in this Section shall affect the
obligation of the Master Servicer to observe any applicable law prohibiting
disclosure of information regarding the Obligors and the failure of the Master
Servicer to provide access to information as a result of such obligation shall
not constitute a breach of this Section.
SECTION 3.11. MASTER SERVICER EXPENSES. The Master Servicer
shall be required to pay all expenses incurred by it in connection with its
activities hereunder, including fees and disbursements of independent
accountants, taxes imposed on the Master Servicer, and
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expenses incurred in connection with distributions and reports to the
Administrator, the Noteholders or the Certificateholders, as the case may be.
SECTION 3.12. APPOINTMENT OF SUBSERVICERS. The Master Servicer
hereby appoints Education Loan Servicing Center, Inc., a Delaware non-profit
corporation, and AFSA Data Corporation, a Delaware corporation, as subservicers
with respect to the Trust Loans listed in Exhibits A and B attached hereto. Each
aforesaid subservicer shall perform all the obligations of the Master Servicer
hereunder with respect to the Trust Loans subserviced by such subservicer. The
Master Servicer shall have the right to appoint additional or replacement
subservicers to perform all or any portion of its obligations hereunder;
PROVIDED, HOWEVER, that the Rating Agency Condition shall have been satisfied in
connection therewith.
Anything in this Section 3.12 to the contrary notwithstanding,
the Master Servicer shall remain obligated and be liable to the Issuer, the
Eligible Lender Trustee, the Indenture Trustee, the Noteholders and the
Certificateholders for the servicing and administering of the Trust Loans in
accordance with the provisions of this Agreement without diminution of such
obligation and liability by virtue of the appointment of any such subservicer
and to the same extent and under the same terms and conditions as if the Master
Servicer alone were servicing and administering the Trust Loans. The fees and
expenses of the subservicer shall be as agreed between the Master Servicer and
its subservicer from time to time and none of the Issuer, the Eligible Lender
Trustee, the Indenture Trustee, the Noteholders and the Certificateholders shall
have any responsibility therefor.
ARTICLE IV
DEPOSITS INTO THE COLLECTION ACCOUNT
SECTION 4.01. DEPOSITS INTO THE COLLECTION ACCOUNT. (a) The
Master Servicer shall deposit into the Collection Account (in the case of
clauses (i) and (ii) within two Business Days of receipt of freely available
funds therefor):
(i) all identifiable payments received by the Master Servicer
by or on behalf of Obligors on the Trust Loans, including any Guarantee
Payments with respect to the Trust Loans;
(ii) all Liquidation Proceeds on the Trust Loans;
(iii) with respect to Purchased Student Loans, the aggregate
Purchase Amounts, when such amounts are due, as provided in Section
3.05 hereof; and
(iv) all other amounts required to be deposited into the
Collection Account by the Master Servicer pursuant to the terms hereof.
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(b) The Eligible Lender Trustee shall deposit into the
Collection Account, within two Business Days of the receipt thereof, the
aggregate amount of Interest Subsidy Payments and Special Allowance Payments
received by it with respect to the Trust Loans.
(c) The Seller shall deposit into the Collection Account, the
aggregate Purchase Amount with respect to Purchased Student Loans and all other
amounts to be paid by the Seller under Section 3.02 and 5.01 of the Loan Sale
Agreement when such amounts are due, as provided in Section 3.03 of the Loan
Sale Agreement.
ARTICLE V
THE MASTER SERVICER
SECTION 5.01. REPRESENTATIONS OF MASTER SERVICER. The Master
Servicer makes the following representations on which the Issuer is deemed to
have relied in acquiring (through the Eligible Lender Trustee) the Trust Loans
and appointing the Master Servicer as Master Servicer hereunder. The
representations speak as of the execution and delivery of this Agreement and as
of the Closing Date in the case of the Initial Trust Loans, and will be deemed
to speak as of the relevant Assignment in the case of any Qualified Substitute
Student Loan and as of the related Transfer Date in the case of any Serial Loan,
but shall survive the sale, transfer and assignment of the Trust Loans to the
Eligible Lender Trustee on behalf of the Issuer and the pledge thereof to the
Indenture Trustee pursuant to the Indenture.
(a) ORGANIZATION AND GOOD STANDING. The Master Servicer is
duly organized and validly existing as a corporation in good standing
under the laws of the State of Delaware, with the power and authority
to own its properties and to conduct its business as such properties
are currently owned and such business is currently conducted.
(b) POWER AND AUTHORITY OF THE MASTER SERVICER. The Master
Servicer has the corporate power and authority to execute and deliver
this Agreement and to carry out its terms, and the execution, delivery
and performance of this Agreement have been duly authorized by the
Master Servicer by all necessary corporate action.
(c) BINDING OBLIGATION. This Agreement constitutes a legal,
valid and binding obligation of the Master Servicer, enforceable in
accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization and similar laws relating to creditors'
rights generally and subject to general principles of equity.
(d) NO VIOLATION. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
or thereof do not conflict with, result in any breach of any of the
terms and provisions of, or constitute (with or without notice or lapse
of time or both) a default under, the certificate of incorporation or
by-laws of the
11
Master Servicer, or any indenture, agreement or other instrument to
which the Master Servicer is a party or by which it shall be bound; or
result in the creation or imposition of any Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or
other instrument; or violate any law or, to the knowledge of the Master
Servicer, any order, rule or regulation applicable to the Master
Servicer of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over the Master Servicer or its properties. Compliance by
the Master Servicer with the terms of this Agreement will not result in
the loss of any Guarantee Payments by the Trust or any reinsurance
payments with respect to any Trust Loan by the applicable Guarantor.
(e) NO PROCEEDINGS. There are no proceedings or investigations
pending against the Master Servicer or, to its best knowledge,
threatened against the Master Servicer, before any court, regulatory
body, administrative agency or other governmental instrumentality
having jurisdiction over the Master Servicer or its properties: (i)
asserting the invalidity of this Agreement or any of the other Basic
Documents to which the Master Servicer is a party, (ii) seeking to
prevent the issuance of the Notes or the Certificates or the
consummation of any of the transactions contemplated by this Agreement,
or any of the other Basic Documents, (iii) seeking any determination or
ruling that could reasonably be expected to have a material and adverse
effect on the performance by the Master Servicer of its obligations
under, or the validity or enforceability of, this Agreement, any of the
other Basic Documents, the Notes or the Certificates or (iv) seeking to
affect adversely the federal or state income tax attributes of the
Issuer, the Notes or the Certificates.
(f) ALL CONSENTS. All authorizations, consents, licenses,
orders or approvals of or registrations or declarations with any court,
regulatory body, administrative agency or other government
instrumentality required to be obtained, effected or given by the
Master Servicer in connection with the execution and delivery by the
Master Servicer of this Agreement and the performance by the Master
Servicer of its duties contemplated by this Agreement have in each case
been duly obtained, effected or given and are in full force and effect.
(g) LEGAL RIGHT TO SERVICE. The Trust Loans are serviced by an
entity that has the legal right to service student loans under the
Higher Education Act.
SECTION 5.02. INDEMNITIES OF MASTER SERVICER. The Master
Servicer shall be liable in accordance herewith only to the extent of the
obligations specifically undertaken by the Master Servicer under this Agreement.
The Master Servicer shall pay for any loss, liability or
expense, including reasonable attorneys' fees, that may be imposed on, incurred
by or asserted against the Issuer, the Eligible Lender Trustee, the Indenture
Trustee, the Seller, the Administrator, the Noteholders or the
Certificateholders or any of the officers, directors, employees and agents of
the Issuer, the
12
Eligible Lender Trustee, the Indenture Trustee, the Seller or the Administrator
to the extent that such loss, liability or expense arose out of, or was imposed
upon any such Person through, the negligence, willful misfeasance or bad faith
of the Master Servicer in the performance of its obligations and duties under
this Agreement or by reason of the reckless disregard of its obligations and
duties under this Agreement, where the final determination that any such loss,
liability or expense arose out of, or was imposed upon any such Person through,
any such negligence, willful misfeasance, bad faith or recklessness on the part
of the Master Servicer is established by a court of law, by an arbitrator or by
way of settlement agreed to by the Master Servicer. Notwithstanding the
foregoing, if the Master Servicer is rendered unable, in whole or in part, by a
force outside the control of the parties hereto (including acts of God, acts of
war, fires, earthquakes and other disasters) to satisfy its obligations under
this Agreement, the Master Servicer shall not be deemed to have breached any
such obligation upon delivery of written notice of such event to the other
parties hereto, for so long as the Master Servicer remains unable to perform
such obligation as a result of such event.
For purposes of this Section, in the event of the termination
of the rights and obligations of NMELC as Master Servicer pursuant to Section
6.01, or a resignation by NMELC pursuant to this Agreement, NMELC shall be
deemed to be the Master Servicer pending appointment of a successor Master
Servicer pursuant to Section 6.02.
Liability of the Master Servicer under this Section 5.02 shall
survive the resignation or removal of the Eligible Lender Trustee or the
Indenture Trustee or the termination of this Agreement and shall include
reasonable fees and expenses of counsel and expenses of litigation. If the
Master Servicer shall have made any indemnity payments pursuant to this
Agreement and the Person to or on behalf of whom such payments are made
thereafter collects any of such amounts from others, such Person shall promptly
repay such amounts to the Master Servicer, without interest.
SECTION 5.03. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, MASTER SERVICER. The Master Servicer hereby agrees that, upon
(a) any merger or consolidation of the Master Servicer into another Person, (b)
any merger or consolidation to which the Master Servicer shall be a party
resulting in the creation of another Person or (c) any Person succeeding to the
properties and assets of the Master Servicer substantially as a whole, the
Master Servicer shall (i) cause such Person (if other than the Master Servicer)
to execute an agreement of assumption to perform every obligation of the Master
Servicer hereunder, (ii) deliver to the Eligible Lender Trustee and, if any
Notes remain Outstanding, to 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 provided for in this Agreement relating to such transaction
have been complied with, (iii) cause the Rating Agency Condition to have been
satisfied with respect to such transaction and (iv) cure any existing Master
Servicer Default or any continuing event which, after notice or lapse of time or
both, would become a Master Servicer Default. Upon compliance with the foregoing
requirements, such Person shall be the successor to the Master Servicer under
this Agreement without further act on the part of any of the parties to this
13
Agreement. Notwithstanding anything herein to the contrary, compliance with
clauses (i), (ii), (iii) and (iv) above shall be conditions to the consummation
of any of the transactions referred to in clause (a), (b) or (c) above.
SECTION 5.04. LIMITATION ON LIABILITY OF MASTER SERVICER AND
OTHERS. Neither the Master Servicer nor any of the directors, officers,
employees or agents of the Master Servicer shall be under any liability to the
Issuer, the Noteholders or the Certificateholders, except as provided under this
Agreement, for any action taken or for refraining from the taking of any action
pursuant to this Agreement or for errors in judgment; PROVIDED, HOWEVER, that
this provision shall not protect the Master Servicer or any such Person against
any liability that would otherwise be imposed by reason of willful misfeasance,
bad faith or negligence in the performance of duties or by reason of reckless
disregard of obligations and duties under this Agreement. The Master Servicer
and any director, officer, employee or agent of the Master Servicer may rely in
good faith on any document of any kind PRIMA FACIE properly executed and
submitted by any person respecting any matters arising under this Agreement.
Except as provided in this Agreement, the Master Servicer
shall not be under any obligation to appear in, prosecute or defend any legal
action that shall not be incidental to its duties to service the Trust Loans in
accordance with this Agreement and that in its opinion may involve it in any
expense or liability; PROVIDED, HOWEVER, that the Master Servicer may undertake
any reasonable action that it may deem necessary or desirable in respect of this
Agreement and the other Basic Documents and the rights and duties of the parties
to this Agreement and the other Basic Documents and the interests of the
Certificateholders under the Trust Agreement and of the Noteholders under the
Indenture.
SECTION 5.05. NMELC NOT TO RESIGN AS MASTER SERVICER. Subject
to the provisions of Section 5.03, NMELC shall not resign from the obligations
and duties hereby imposed on it as Master Servicer under this Agreement except
upon determination that the performance of its duties under this Agreement shall
no longer be permissible under applicable law. Notice of any such determination
permitting the resignation of NMELC shall be communicated to the Eligible Lender
Trustee, the Indenture Trustee (if any Notes remain Outstanding) and the Rating
Agencies at the earliest practicable time (and, if such communication is not in
writing, shall be confirmed in writing at the earliest practicable time) and any
such determination shall be evidenced by an Opinion of Counsel to such effect
delivered to the Eligible Lender Trustee and the Indenture Trustee (if any Notes
remain Outstanding) concurrently with or promptly after such notice. No such
resignation shall become effective until the Indenture Trustee (if any Notes
remain Outstanding), the Eligible Lender Trustee (if the Notes have been paid in
full), or a Successor Master Servicer shall have assumed the responsibilities
and obligations of NMELC in accordance with Section 6.02.
14
ARTICLE VI
DEFAULT
SECTION 6.01. MASTER SERVICER DEFAULT. If any one of the
following events (each, a "MASTER SERVICER Default") shall occur and be
continuing:
(a) if any Notes remain Outstanding, any failure by the Master
Servicer to deliver to the Indenture Trustee for deposit in any of the
Trust Accounts any payment required by the Basic Documents, which
failure continues unremedied for five Business Days after written
notice of such failure is received by the Master Servicer from the
Eligible Lender Trustee, the Indenture Trustee or the Administrator or
after discovery of such failure by an officer of the Master Servicer;
or
(b) if the Notes have been paid in full, any failure by the
Master Servicer to deliver to the Eligible Lender Trustee for deposit
in any of the Trust Accounts, any payment required by the Basic
Documents, which failure continues unremedied for five Business Days
after written notice of such failure is received by the Master Servicer
from the Eligible Lender Trustee or the Administrator or after
discovery of such failure by an officer of the Master Servicer; or
(c) any failure by the Master Servicer duly to observe or to
perform in any material respect any other covenants or agreements of
the Master Servicer set forth in this Agreement or any other Basic
Document, which failure shall (i) materially and adversely affect the
rights of Noteholders or Certificateholders and (ii) continue
unremedied for a period of sixty (60) days after the date of discovery
of such failure by an officer of the Master Servicer or on which
written notice of such failure, requiring the same to be remedied,
shall have been given (A) to the Master Servicer, by the Indenture
Trustee, the Administrator or the Eligible Lender Trustee or (B) to the
Master Servicer, the Indenture Trustee, the Administrator and the
Eligible Lender Trustee by Noteholders of Outstanding Notes or
Certificateholders of Outstanding Certificates, as applicable,
representing not less than 25% of the Outstanding Amount of the Notes
or 25% of the Certificate Balance of the Certificates; or
(d) an Insolvency Event occurs with respect to the Master
Servicer;
then, and in each and every case, so long as the Master Servicer Default shall
not have been remedied, (x) if any Notes remain Outstanding, either the
Indenture Trustee or the Noteholders of Notes evidencing not less than 75% of
the Outstanding Amount of the Notes by notice then given in writing to the
Master Servicer (and to the Indenture Trustee and the Eligible Lender Trustee if
given by Noteholders) may terminate all the rights and obligations (other than
the obligations set forth in Section 5.02) of the Master Servicer under this
Agreement; and (y) if the Notes have been paid in full, either the Eligible
Lender Trustee or Certificateholders of Outstanding Certificates evidencing not
less than 75% of the Certificate Balance by notice then give in writing to the
Master Servicer (and to the Eligible Lender Trustee if given by
15
Certificateholders) may terminate all the rights and obligations set forth in
Section 5.02) of the Master Servicer under this Agreement. On or after the
receipt by the Master Servicer of such written notice, all authority and power
of the Master Servicer under this Agreement, whether with respect to the Notes,
the Certificates, the Trust Loans or otherwise, shall, without further action,
pass to and be vested in the Indenture Trustee or Eligible Lender Trustee, as
the case may be, or such successor Master Servicer as may be appointed under
Section 6.02; and, without limitation, the Indenture Trustee and the Eligible
Lender Trustee are hereby authorized and empowered to execute and deliver, for
the benefit of the predecessor Master Servicer, as attorney-in-fact or
otherwise, any and all documents and other instruments, and to do or accomplish
all other acts or things necessary or appropriate to effect the purposes of such
notice of termination, whether to complete the transfer and endorsement of the
Trust Loans and related documents, or otherwise. The predecessor Master Servicer
shall cooperate with the successor Master Servicer, the Indenture Trustee and
the Eligible Lender Trustee in effecting the termination of the responsibilities
and rights of the predecessor Master Servicer under this Agreement, including
the transfer to the successor Master Servicer for administration by it of all
cash amounts that shall at the time be held by the predecessor Master Servicer
for deposit, or shall thereafter be received by it with respect to a Trust Loan.
All reasonable costs and expenses (including attorneys' fees) incurred in
connection with transferring the Student Loan Files to the successor Master
Servicer and amending this Agreement and any other Basic Documents to reflect
such succession as Master Servicer pursuant to this Section shall be paid by the
predecessor Master Servicer upon presentation of reasonable documentation of
such costs and expenses. Upon receipt of notice of the occurrence of a Master
Servicer Default, the Eligible Lender Trustee shall give notice thereof to the
Rating Agencies.
SECTION 6.02. APPOINTMENT OF SUCCESSOR. (a) Upon receipt by
the Master Servicer of notice of termination pursuant to Section 6.01, or the
resignation by the Master Servicer in accordance with the terms of this
Agreement, the predecessor Master Servicer shall continue to perform its
functions as Master Servicer under this Agreement, in the case of termination,
only until the date specified in such termination notice or, if no such date is
specified in a notice of termination, until the successor Master Servicer shall
have accepted and assumed the responsibilities of the Master Servicer hereunder
and, in the case of resignation, until the later of (x) the date 120 days from
the delivery to the Indenture Trustee (if any Notes remain Outstanding) and the
Eligible Lender Trustee of written notice of such resignation (or written
confirmation of such notice) in accordance with the terms of this Agreement and
(y) the date upon which the predecessor Master Servicer shall become unable to
act as Master Servicer as specified in the notice of resignation and
accompanying Opinion of Counsel. In the event of the termination hereunder of
the Master Servicer, the Issuer shall appoint a successor Master Servicer
acceptable to the Indenture Trustee (if any Notes remain Outstanding), or to the
Eligible Lender Trustee (if the Notes have been paid in full), and the successor
Master Servicer shall accept its appointment by a written assumption in form
acceptable to the Indenture Trustee or the Eligible Lender Trustee, as the case
may be, and the Administrator. In the event that a successor Master Xxxxxxxx has
not been appointed at the time when the predecessor Master Servicer has ceased
to act as Master Servicer in accordance with this Section, the Indenture Trustee
or the Eligible Lender Trustee, as the case may be, without further action shall
automatically be
16
appointed the successor Master Xxxxxxxx and the Indenture Trustee or the
Eligible Lender Trustee, as the case may be, shall be entitled to the Master
Servicing Fee. Notwithstanding the above, the Indenture Trustee or the Eligible
Lender Trustee, as the case may be, shall, if it shall be unwilling or legally
unable so to act, appoint or petition a court of competent jurisdiction to
appoint, any established institution the regular business of which shall include
the servicing of student loans, as the successor to the Master Servicer under
this Agreement; PROVIDED, HOWEVER, that such right to appoint or to petition for
the appointment of any such successor Master Servicer shall in no event relieve
the Indenture Trustee or the Eligible Lender Trustee, as the case may be, from
any obligations otherwise imposed on it under the Basic Documents until such
successor has in fact assumed such appointment.
(b) Upon appointment, the successor Master Servicer (including
the Indenture Trustee or the Eligible Lender Trustee, as the case may be, acting
as successor Master Servicer) shall be the successor in all respects to the
predecessor Master Servicer and shall be subject to all the responsibilities,
duties and liabilities placed on the predecessor Master Servicer that arise
thereafter or are related thereto and shall be entitled to an amount agreed to
by such successor Master Servicer (which shall not exceed the Master Servicing
Fee, unless such compensation arrangements will not result in a downgrading of
the Notes or the Certificates by any Rating Agency) and all the rights granted
to the predecessor Master Servicer by the terms and provisions of this
Agreement.
(c) The Master Servicer may not resign unless it is prohibited
from serving as such by law as evidenced by an Opinion of Counsel to such effect
delivered to the Indenture Trustee (if any Notes remain Outstanding) and the
Eligible Lender Trustee. Notwithstanding the foregoing or anything to the
contrary herein or in the other Basic Documents, the Indenture Trustee or the
Eligible Lender Trustee, as the case may be, to the extent it is acting as
successor Master Servicer pursuant hereto, shall be entitled to resign to the
extent a qualified successor Master Xxxxxxxx has been appointed and has assumed
all the obligations of the Master Servicer in accordance with the terms of this
Agreement and the other Basic Documents.
SECTION 6.03. NOTIFICATION TO NOTEHOLDERS AND
CERTIFICATEHOLDERS. Upon any termination of, or appointment of a successor to,
the Master Servicer pursuant to this Article VI, the Indenture Trustee (if any
Notes remain Outstanding) shall give prompt written notice thereof to
Noteholders, the Administrator, the Company and the Rating Agencies and the
Eligible Lender Trustee shall give prompt written notice thereof to the
Certificateholders and, if the Notes have been paid in full, the Eligible Lender
Trustee shall give prompt written notice thereof to the Certificateholders and,
if the Notes have been paid in full, to the Administrator, the Company and the
Rating Agencies. In the case of any such appointment of a successor, notice to
the Rating Agencies shall consist of prior written notice thereof.
SECTION 6.04. WAIVER OF PAST DEFAULTS. The Noteholders of
Notes evidencing not less than a majority of the Outstanding Amount of the Notes
(or the Certificateholders of Outstanding Certificates evidencing not less than
a majority of the Certificate Balance in the case of any default that does not
adversely affect the Indenture Trustee or the Noteholders) may, on
17
behalf of all Noteholders or Certificateholders, waive in writing any default by
the Master Servicer in the performance of its obligations hereunder, and any
consequences thereof, except a default in making any required deposits to or
payments from any of the Trust Accounts (or giving instructions regarding the
same) in accordance with this Agreement to the extent provided in such waiver.
Upon any such waiver of a past default, such default shall cease to exist, and
any Master Servicer Default arising therefrom shall be deemed to have been
remedied for every purpose of this Agreement. No such waiver shall extend to any
subsequent or other default or impair any right consequent thereto.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. AMENDMENT. This Agreement may be amended by the
Master Servicer and the Eligible Lender Trustee, with the prior written consent
of the Indenture Trustee, but without the consent of any of the Noteholders or
the Certificateholders, to cure any ambiguity, to correct or supplement any
provisions in this Agreement or for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions in this Agreement or
of modifying in any manner the rights of the Noteholders or the
Certificateholders; PROVIDED, HOWEVER, that such action shall not, as evidenced
by an Opinion of Counsel delivered to the Eligible Lender Trustee and the
Indenture Trustee, adversely affect in any material respect the interests of any
Noteholder or Certificateholder.
This Agreement may also be amended from time to time by the
Master Servicer and the Eligible Lender Trustee, with the prior written consent
of the Indenture Trustee and the Noteholders of Notes evidencing not less than a
majority of the Outstanding Amount of the Notes and the consent of the
Certificateholders of Outstanding Certificates evidencing not less than a
majority of the Certificate Balance, for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this Agreement
or of modifying in any manner the rights of the Noteholders or the
Certificateholders; PROVIDED, HOWEVER, that no such amendment shall (a) increase
or reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments with respect to Trust Loans or distributions that shall
be required to be made for the benefit of the Noteholders or Certificateholders
or (b) reduce the aforesaid percentage of the Outstanding Amount of the Notes
and the Certificate Balance, the Noteholders or Certificateholders of which are
required to consent to any such amendment, without the consent of all
outstanding Noteholders and Certificateholders.
Promptly after the execution of any such amendment or consent
(or, in the case of the Rating Agencies, 15 Business Days prior thereto), the
Eligible Lender Trustee shall furnish written notification of the substance of
such amendment or consent to each Certificateholder, to the Indenture Trustee
and each of the Rating Agencies.
18
It shall not be necessary for the consent of Noteholders or
Certificateholders 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 be entitled to receive
and rely upon an Opinion of Counsel stating that the execution of such amendment
is authorized or permitted by this Agreement and the Opinion of Counsel referred
to in Section 6.02(f) of the Loan Sale Agreement. The Eligible Lender Trustee
and the Indenture Trustee may, but shall not be obligated to, enter into any
such amendment which affects the Eligible Lender Trustee's or the Indenture
Trustee's, as applicable, own rights, duties or immunities under this Agreement
or otherwise.
SECTION 7.02. PROTECTION OF INTERESTS IN TRUST. (a) The Master
Servicer shall not change its name, identity or corporate structure in any
manner that would, could or might make any financing statement or continuation
statement filed in accordance with Section 6.02(a) of the Loan Sale Agreement
seriously misleading within the meaning of Section 9-402(7) of the UCC, unless
it shall have given the Eligible Lender Trustee, the Indenture Trustee and the
Rating Agencies at least five days' prior written notice thereof and shall have
promptly filed appropriate amendments to all previously filed financing
statements or continuation statements.
(b) The Master Servicer shall have an obligation to give the
Eligible Lender Trustee and the Indenture Trustee at least ten (10) days' prior
written notice of any relocation of its principal executive office if, as a
result of such relocation, the applicable provisions of the UCC would require
the filing of any amendment of any previously filed financing or continuation
statement or of any new financing statement and shall promptly file any such
amendment. The Master Servicer shall at all times maintain each office from
which it shall service Trust Loans, and its principal executive office, within
the United States of America.
(c) The Master Servicer shall maintain accounts and records of
each Student Loan accurately and in sufficient detail to permit (i) the reader
thereof to know at any time the status of such Trust Loan, including payments
and recoveries made and payments owing (and the nature of each) and (ii)
reconciliation between payments or recoveries on (or with respect to) each Trust
Loan and the amounts from time to time deposited in the Collection Account in
respect of such Trust Loan.
(d) The Master Servicer shall, by use of a distinct
identification code, maintain its computer systems so that, from and after the
time of sale under the Loan Sale Agreement of the Trust Loans, the Master
Servicer's master computer records (including any backup archives) that refer to
a Student Loan shall indicate clearly the interest of the Issuer, the Eligible
Lender Trustee and, if any Notes remain Outstanding, the Indenture Trustee in
such Student Loan and that such Student Loan is owned by the Eligible Lender
Trustee on behalf of the Issuer and has been pledged to the Indenture Trustee
for so long as any Notes remain Outstanding. Indication of the Issuer's, the
Eligible Lender Trustee's and the Indenture Trustee's interest in a Student
19
Loan shall be deleted from or modified on the Master Servicer's computer systems
when, and only when, the related Trust Loan shall have been paid in full or
repurchased or, in the case of the Indenture Trustee's interest, when the Notes
have been paid in full.
(e) If at any time the Master Servicer shall propose to sell,
grant a security interest in, or otherwise transfer any interest in student
loans to any prospective purchaser, lender or other transferee, the Master
Servicer shall give to such prospective purchaser, lender or other transferee
computer tapes, records or printouts (including any restored from backup
archives) that, if they shall refer in any manner whatsoever to any Trust Loan,
shall indicate clearly that such Trust Loan has been sold and is owned by the
Eligible Lender Trustee on behalf of the Issuer and has been pledged to the
Indenture Trustee.
(f) The Master Servicer shall permit the Indenture Trustee and
its agents (if any Notes remain Outstanding) or the Eligible lender Trustee (if
the Notes have been paid in full) and its agents at any time during normal
business hours to inspect, audit and make copies of and abstracts from the
Master Servicer's records regarding any Trust Loan; PROVIDED, HOWEVER, that the
Master Servicer is given reasonable prior notice of at least ten Business Days.
(g) Upon request, at any time the Eligible Lender Trustee or
the Indenture Trustee shall have reasonable grounds to believe that such request
would be necessary in connection with its performance of its duties under the
Basic Documents, the Master Servicer shall furnish to the Eligible Lender
Trustee or the Indenture Trustee (in each case, with a copy to the
Administrator), within five (5) Business Days, a list of all Trust Loans (by
borrower social security number, type of loan and date of issuance) then held as
part of the Trust.
SECTION 7.03. NOTICES. Unless otherwise agreed by the
recipient, all demands, notices and communications upon or to the Seller, FNBC,
the Master Servicer, 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
Xxxxxx Xxx Education Loan Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx Xxxxxx 00000
Attention: Secretary
Telephone: 000-000-0000
Telecopy:
with a copy to
Xxxxxx Xxx Corporation
20
00 Xxxxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
Telephone: 000-000-0000
Telecopy: 000-000-0000
(b) in the case of the Master Servicer, to
Xxxxxx Xxx Education Loan Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx Xxxxxx 00000
Attention: Secretary
Telephone: 000-000-0000
Telecopy:
with a copy to
Xxxxxx Xxx Corporation
00 Xxxxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
Telephone: 000-000-0000
Telecopy: 000-000-0000
(c) in the case of the Issuer, to
Xxxxxx Xxx Student Loan Trust 1999-A
c/o First Chicago Delaware Inc.
c/o FCC National Bank
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Telephone:
Telecopy:
with a copy to the Eligible Lender Trustee
at the Corporate Trust Office of the
Eligible Lender Trustee;
(d) in the case of the Eligible Lender Trustee, at the
Corporate Trust Office of the Eligible Lender
Trustee;
(e) in the case of the Indenture Trustee, at its
Corporate Trust Office;
(f) in the case of the Administrator, to
Xxxxxx Xxx Education Loan Corporation
21
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxx Xxxxxx 02916
Attention: Secretary
Telephone:
Telecopy:
with a copy to
Xxxxxx Xxx Corporation
00 Xxxxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
Telephone: 000-000-0000
Telecopy: 000-000-0000
(g) in the case of Fitch, to
Fitch IBCA, Inc.
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Telephone:
Telecopy:
(h) in the case of Moody's, to
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Telephone:
Telecopy:
(i) in the case of Standard & Poor's, to
Standard & Poor's Ratings Services
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Telephone:
Telcopy:
22
or, as to each of the foregoing, at such other address as shall be designated by
written notice to the other parties.
SECTION 7.04. ASSIGNMENT. Notwithstanding anything to the
contrary contained herein, except as provided in the succeeding sentence, as
provided in Section 5.03 and as provided in the provisions of this Agreement
concerning the resignation of the Master Servicer, this Agreement may not be
assigned by the Master Servicer. This Agreement may only be assigned by the
Eligible Lender Trustee to its permitted successor pursuant to the Trust
Agreement.
SECTION 7.05. LIMITATIONS ON RIGHTS OF OTHERS. The provisions
of this Agreement are solely for the benefit of the Master Servicer, the Issuer
and the Eligible Lender Trustee and for the benefit of the Administrator, the
Indenture Trustee, the Noteholders and the Certificateholders, as third party
beneficiaries, and nothing in this Agreement, whether express or implied, shall
be construed to give to any other Person any legal or equitable right, remedy or
claim in the Trust Estate or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein. The Indenture Trustee is
an express third-party beneficiary and may enforce the provisions of this
Agreement as if it were a party hereto.
SECTION 7.06. SEVERABILITY. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 7.07. SEPARATE COUNTERPARTS. This Agreement may be
executed by the parties hereto in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION 7.08. HEADINGS. The headings of the various Articles
and Sections herein are for convenience of reference only and shall not define
or limit any of the terms or provisions hereof.
SECTION 7.09. GOVERNING LAW. This Agreement shall be construed
in accordance with the laws of the State of New York, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
SECTION 7.10. NON-PETITION COVENANTS. Notwithstanding any
prior termination of this Agreement, the Master Servicer shall not, prior to the
date which is one year
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and one day after the termination of this Agreement with respect to the Issuer
or the Company, acquiesce, petition or otherwise invoke or cause the Issuer or
the Company to invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against the Issuer or the Company
under any federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Issuer or the Company or any substantial part of their
property, or ordering the winding up or liquidation of the affairs of the Issuer
or the Company.
SECTION 7.11. LIMITATION OF LIABILITY OF ELIGIBLE LENDER
TRUSTEE AND INDENTURE TRUSTEE. (a) Notwithstanding anything contained herein to
the contrary, this Agreement has been signed by The First National Bank of
Chicago not in its individual capacity but solely in its capacity as Eligible
Lender Trustee of the Issuer and in no event shall The First National Bank of
Chicago 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.
(b) Notwithstanding anything contained herein to the contrary,
this Agreement has been accepted by State Street Bank and Trust Company not in
its individual capacity but solely as Indenture Trustee and in no event shall
State Street Bank and Trust Company have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer hereunder
or in any of the certificates, notices or agreements delivered pursuant hereto,
as to all of which recourse shall be had solely to the assets of the Issuer.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers as of the day and
year first above written.
XXXXXX XXX STUDENT LOAN TRUST 1999-A,
By: THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity but solely as
Eligible Lender Trustee on behalf of the Trust
By:______________________________________________
Name:
Title:
XXXXXX XXX EDUCATION LOAN CORPORATION
By:______________________________________________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity but solely as Eligible
Lender Trustee
By:______________________________________________________
Name:
Title:
Acknowledged and accepted
as of the day and year first
above written:
STATE STREET BANK AND TRUST
COMPANY, not in its individual capacity
but solely as Indenture Trustee
By:______________________________________
Name:
Title:
SCHEDULE A
The Master Servicer shall maintain each Student Loan File at one of the
locations listed below:
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