EXHIBIT 10.1
EXECUTION COPY
MASTER SERVICING AGREEMENT
This SERVICING AGREEMENT (this "Agreement") is entered into as of April
1, 2003, by and among Education Lending Services, Inc., a Delaware corporation
(the "Master Servicer"), Education Funding Capital Trust-II, a Delaware
statutory trust (the "Issuer"), Fifth Third Bank, a banking corporation
organized under the laws of the State of Ohio, as Indenture Trustee (the
"Indenture Trustee"), and Fifth Third Bank, a banking corporation organized
under the laws of the State of Ohio, as Trust Eligible Lender Trustee on behalf
of the Issuer (the "Trust Eligible Lender Trustee").
WITNESSETH:
WHEREAS, the Issuer wishes to retain the Master Servicer to service the
Financed Student Loans and the Master Servicer wishes to undertake the
obligation to service or cause to be serviced the Financed Student Loans under
the terms hereinafter set forth;
WHEREAS, the Indenture Trustee has agreed to perform certain duties set
forth in Section 2; and
WHEREAS, pursuant to this Agreement the Master Servicer will agree to
provide, or cause there to be provided, loan servicing services for the Financed
Student Loans;
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, the Issuer and the Master Servicer agree as follows:
Section 1. Definitions.
Capitalized terms which are not otherwise defined in this Agreement
shall have the meanings ascribed thereto in Appendix A to that certain Indenture
of Trust dated as of April 1, 2003 (the "Indenture") among the Issuer, Fifth
Third Bank, as Indenture Trustee, and the Trust Eligible Lender Trustee.
Section 2. Servicing Requirement and Engagement of Master Servicer.
The Issuer hereby authorizes and appoints the Master Servicer to act as
its agent for the limited purpose of servicing the Financed Student Loans. The
authorization granted by this Agreement includes, but is not limited to,
correspondence and communication with any Guaranty Agency or the U.S. Department
of Education (the "Department") regarding the Financed Student Loans, the
assignment of claims to any guarantor or insurer of the Financed Student Loans,
communication with borrowers and any other communication, correspondence,
signature or other act required to service the Financed Student Loans in
accordance with requirements of the Act or regulations promulgated by any
Guaranty Agency.
The Issuer hereby authorizes the Master Servicer to enter into
subservicing contracts with an entity acting as a subservicer pursuant to such
contracts, such entity is herein referred to as a "Subservicer", to provide the
services required of the Master Servicer hereunder and to meet any obligations
of the Issuer
hereunder, so long as such contracts are permitted by the Indenture. The Master
Servicer agrees to notify each Rating Agency and the Indenture Trustee if any
such subservicing contract is terminated or expires pursuant to its terms. In
the event the Master Servicer or any Affiliate of the Seller or the Master
Servicer commences servicing of any Financed Student Loans that were previously
serviced by a Subservicer, the Master Servicer shall (i) give prompt written
notice of such event to each Rating Agency and (ii) cause such Subservicer to
deliver to the Indenture Trustee the complete and separately identified record
for each such Financed Student Loan, inclusive of all documents and
correspondence related to each such Financed Student Loan (collectively, the
"Student Loan Files").
The Indenture Trustee agrees to and shall act as custodian of the
Student Loan Files for any Financed Student Loans serviced or subserviced by the
Master Servicer or by any Affiliate of the Seller or the Master Servicer.
Section 3. Master Servicer Compensation.
(a) Subject to Section 4.03(c) of the Indenture, as compensation for
its services hereunder, the Master Servicer shall receive a fee (the "Master
Servicing Fee") equal to 0.10% of the average monthly outstanding principal
balance of the Financed Student Loans.
(b) The Master Servicer shall submit an invoice monthly to the
Issuer for the Master Servicing Fee, and the Issuer shall direct the Indenture
Trustee to remit payment therefor as shown on that invoice, but only to the
extent of moneys available for payment therefor in the Distribution Account or
Collection Account.
(c) Payment is due within thirty (30) days after receipt of the
billing package. The billing package shall consist of an invoice and supporting
documentation.
(d) The Master Servicer acknowledges that the Issuer shall be
entitled to receive all payments of principal, interest and late charges
received with respect to the Financed Student Loans and that the Master Servicer
shall have no right to retain such amounts as payment of any fees due to the
Master Servicer from the Issuer under the terms of this Agreement. The Issuer
hereby authorizes the Master Servicer to assess, collect and retain any charges
which the Issuer is permitted by law or regulation to assess with respect to not
sufficient funds ("NSF") processing or other collection costs.
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Section 4. Financed Student Loan Servicing.
The Master Servicer covenants and agrees to service each Financed
Student Loan in compliance with all requirements of the Act, each Guaranty
Agreement and all other laws and regulations applicable to its activities
hereunder and in accordance with the terms and conditions of this Agreement, and
to perform all services and duties customary to the servicing of Student Loans
including all collection practices. Without limiting the foregoing, in
fulfillment of its obligations hereunder, the Master Servicer shall do the
following:
(1) Maintain a complete and separately identified record for the
Financed Student Loans of each borrower, inclusive of all
documentation and correspondence related to the Financed Student
Loans.
(2) Take such actions as are required under the Act with respect to
delinquencies.
(3) Perform the actions necessary to maintain the Guarantee and/or
Insurance on each Financed Student Loan originated under the Act
at all times.
(4) Handle all required borrower contact functions and meet all
servicing "due diligence" requirements, as that term is used
under the Act and implementing regulations. Such functions
include, for example, skip tracing, contacting delinquent
borrowers, handling borrower requests for extensions or
deferments, and preparing and processing claims, including
death, disability, default, closed school, false certification
and bankruptcy claims.
(5) Prepare and maintain accounting records with respect to the
Financed Student Loans; process refunds and other adjustments;
process address changes and maintain address records.
(6) Collect all payments with respect to Financed Student Loans and
deliver all such payments to the Indenture Trustee for deposit
into the Collection Account, including without limitation
guarantee payments, with respect to the Financed Student Loans.
The Master Servicer shall prepare a "Lender's Request for
Payment of Interest and Special Allowance" to be used in billing
the Department for interest and the special allowance for all
eligible loans on a quarterly basis. The Master Servicer agrees
to submit the billing to the Department within 30 days following
the last day of each quarter (March 31, June 30, September 30,
December 31). In the event that the Master Servicer does not
submit the billing to the Department within 30 calendar days
following the last day of each quarter, and such failure is not
attributable to action or inaction by the Issuer or the
Department, the Issuer shall be entitled to payment by the
Master Servicer of penalty interest. Such penalty interest shall
be calculated on the actual amount of interest subsidies and
special allowance payments that the Issuer is entitled to
receive from the Department on the Student Loans covered by the
billing report and for the time period between such 30th day
through the date that said billing report is filed with the
Department by the Master Servicer using the LIBOR rate, as
quoted in the Wall Street Journal, for the period closest in
term to the actual number of days covered by penalty period.
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(7) Retain summary records of contacts, follow-ups and collections
efforts, and records of written correspondence relating to the
Financed Student Loans of each borrower sufficient to ensure
claim payment.
(8) Process adjustments including NSF checks, status changes,
forbearances, deferments and Financed Student Loans paid in
full.
(9) Complete all forms and reports required by the U.S. Department
of Education or any Guaranty Agency.
(10) Perform all of the Trust Eligible Lender Trustee's and Issuer's
obligations as holder of Student Loans as required by the Act
and the Regulations. The Master Servicer shall have full power
to sign and act on the Issuer's and the Trust Eligible Lender
Trustee's behalf as the Issuer's agent in all transactions with
borrowers serviced hereunder. Each of Issuer and the Trust
Eligible Lender Trustee do hereby authorize, constitute, and
appoint the Master Servicer on its behalf and as its attorney in
fact, to endorse those promissory notes for which a claim has
been filed with a guarantor. The Master Servicer will carry out
its responsibilities hereunder in a diligent and lawful manner.
(11) At all times identify the Issuer and the Trust Eligible Lender
Trustee as the owners of the Financed Student Loans and identify
the Indenture Trustee as a party which maintains a security
interest in the Financed Student Loans.
(12) Capture and retain a copy of each promissory note and each
disclosure statement on its image system and shall store a
backup image copy in a remote facility. The Master Servicer
shall hold the original Student Loan documents, including the
original promissory note, a copy of the Student Loan application
and the disclosure statement for safekeeping.
(13) Provide reports to the Issuer and Indenture Trustee of all
monetary transactions as well as periodic summary and account
information, including such items as:
(i) Detailed periodic reports to support all cash
transactions processed;
(ii) Monthly portfolio summary reports and supporting data
listings;
(iii) A monthly listing of delinquent accounts; and
(iv) A quarterly report of xxxxxxxx to the Department for
interest and special allowances.
(14) Ensure the timely payment of taxes, accounting fees, outside
auditor fees, data processing costs and other costs incurred in
servicing the Financed Student Loans.
(15) Obtain and maintain or cause each Subservicer to obtain and
maintain in force a fidelity bond in an amount of at least
$1,000,000 upon all personnel of the Master Servicer or
Subservicer, as applicable, insuring against any loss or damage
which the Issuer, the
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Master Servicer or Subservicer, as applicable, might suffer as a
consequence of any fraudulent or dishonest act of such
personnel.
(16) Obtain and maintain or cause to be obtained and maintained in
force errors and omissions insurance coverage in an amount equal
to at least $2,000,000 for all its customers.
(17) Respond to all borrower inquiries in a prompt, courteous and
thorough manner.
(18) Establish and maintain a method for charging and collecting late
payment fees in accordance with provisions of the Act and all
other applicable laws and regulations.
(19) Act as custodian and bailee with respect to all original
documents and hold them subject to the lien of the Indenture in
favor of the Indenture Trustee and pursuant to a bailment in a
form satisfactory to the Master Servicer, the Issuer and the
Trust Eligible Lender Trustee.
(20) If any Financed Student Loan has lost its guarantee and/or
insurance due to the actions of any prior issuer, servicer or
holder of the Financed Student Loan, at the written request of
the Issuer, use its best efforts to reinstate such guarantee or
insurance; provided, however, that the Master Servicer makes no
representation that such reinstatement will occur. Such services
shall be provided at the cost agreed upon by the Issuer and the
Master Servicer.
(21) If requested by the Issuer, remit monthly rebate fees to the
Department with respect to the Financed Student Loans. Upon
receipt of satisfactory documentation, the Issuer shall cause
the Indenture to promptly wire transfer to the Master Servicer
or its designee, from amounts held under the Indenture, the
amount of funds required to pay such fees. The Master Servicer
shall provide, or cause to be provided to the Issuer, on a
monthly basis, information needed to determine the monthly
rebate fees.
(22) Accrue and capitalize interest on those Student Loans not
eligible for interest subsidy.
(23) Verify the current status of all borrowers not less often than
annually through direct contact with each borrower to ensure
correct account information. The Master Servicer shall also seek
to verify the borrower's status by direct or indirect contact
with educational institutions.
(24) When a Student Loan becomes due for repayment, prepare a payment
schedule and disclosure statement and mail it to the borrower
for signature(s). Prior to the first payment due date, repayment
coupons will be prepared and sent to the borrowers.
(25) Post to the borrower's account all payments of principal,
interest and other charges.
(26) Automatically credit the Issuer's account whenever a borrower
overpays an account by less than $5.00, and the Issuer, at its
discretion, can reimburse the borrower. When the overpayment is
more than $5.00, the Master Servicer shall remit the overpayment
directly to the borrower. When a borrower's balance owing is
less than $50.00, the Master Servicer may, at its discretion,
write-off the balance.
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(27) Prepare and submit all papers and documents necessary to
strictly follow reimbursement procedures specified in the Common
Manual: Unified Student Loan Policy, as amended from time to
time, upon default of borrower and further agrees to promptly
remit proceeds to Issuer upon receipt from the Guaranty Agency.
(28) Provide immediate notice to the Issuer of any proceeding or
action filed, asserted or threatened against the Master Servicer
that, if decided unfavorably to the Master Servicer, would
adversely impact the Master Servicer's status as an eligible
"third-party servicer".
(29) Deliver to the Indenture Trustee each report delivered to the
Master Servicer pursuant to the Basic Documents that the
Indenture Trustee requests in order to fulfill its obligations
under Section 6.16(c) of the Indenture.
Section 5. Due Diligence.
The Master Servicer covenants and agrees that in discharging its
obligations hereunder it shall:
(1) Exercise due diligence in the servicing and collection of all
Financed Student Loans as the term "due diligence" is used in
the Act and the Regulations.
(2) Exercise reasonable care and diligence in the administration and
collection of all Financed Student Loans utilizing collection
practices in accordance with applicable federal and state
collection practices, laws and regulations promulgated
thereunder.
(3) Administer, collect and service the Financed Student Loans in a
competent, diligent and orderly fashion, and, with respect to
Financed Student Loans originated under the Act, in accordance
with the requirements of the Act.
Section 6. Right of Inspection; Audit.
The Issuer, the Indenture Trustee, the Trust Eligible Lender Trustee or
any governmental agency having jurisdiction over any of the same, or their
designated representatives, may at any time upon reasonable prior notice and
during normal business hours examine and audit at the sole expense of the
Issuer, the records which the Master Servicer or Subservicer maintain on the
Financed Student Loan being serviced, provided, however, that such activities
shall not unreasonably disrupt the Master Servicer's normal business operation.
The Master Servicer agrees that it shall permit, not more than once per
year, the Issuer, the Indenture Trustee or its designee to conduct or have
conducted a procedural audit regarding the Master Servicer's or Subservicer's
compliance with the requirements of the Act or the terms of this Agreement. Such
audits shall be at the expense of the Issuer.
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Section 7. Reporting Requirements.
(a) Annual Statement as to Compliance. The Master Servicer shall
deliver to each Rating Agency, the Indenture Trustee and the Issuer, on or
before March 31 of each year, beginning with March 31, 2004, a certificate
stating that (a) a review of the activities of the Master Servicer during the
preceding calendar year and of its performance under this Agreement has been
made under the supervision of the officer signing such certificate and (b) to
the best of such officers' knowledge, based on such review, the Master Servicer
has fulfilled all its obligations under this Agreement throughout such year, or,
there has been a default in the fulfillment of any such obligation, specifying
each such default known to such officer and the nature and status thereof.
(b) Annual Independent Public Accountant's Servicing Report. On or
before March 31 of each year, beginning March 31, 2004, the Master Servicer at
its expense shall cause an independent public accountant that is a member of the
American Institute of Certified Public Accountants to furnish a statement to
each Rating Agency, the Issuer and the Indenture Trustee to the effect that such
accountant has examined certain documents and records relating to the servicing
of the Financed Student Loans (during the preceding fiscal year) under servicing
agreements substantially similar one to another and to this Agreement and that,
on the basis of such examination, such servicing has been conducted in
compliance with such servicing agreements except for such significant exceptions
or errors in records that, in the opinion of such accountant, requires it to
report and that are set forth in such report.
(c) Monthly Servicer's Certificate. Each month, not later than the
twenty-fifth day of each month, the Master Servicer shall deliver to the
Indenture Trustee, a certificate certified by an officer of the Master Servicer
certifying to the accuracy of the monthly statement contemplated by Section
11.04 of the Indenture.
Section 8. Representations, Warranties, and Covenants of the Master
Servicer.
The Master Servicer makes the following representations, warranties and
covenants to the Issuer on the date of this Agreement. The Master Servicer shall
be deemed to have repeated the representations and warranties in clauses (1),
(2), (6), (7), (8), (9) and (12) on the date the Notes are issued under the
Indenture.
(1) The Master Servicer (i) is duly incorporated, validly existing,
and in good standing under the laws of the jurisdiction in which
it is incorporated; (ii) is duly qualified to transact business
and is in good standing as a foreign corporation in each
jurisdiction where the nature and extent of its business and
properties require due qualification and good standing; (iii)
possesses all requisite authority, permits and power to conduct
its business as contemplated by this Agreement including,
without limitation, eligibility as a third-party servicer under
the Act; and (iv) is in compliance with all applicable laws and
regulations.
(2) The execution and delivery by the Master Servicer of this
Agreement and the performance of its obligations hereunder (i)
are within its corporate power, (ii) have been duly authorized
by all necessary corporate action, (iii) require no action by or
filing with any governmental agency, except for any action or
filing that has been taken or made on or
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before the date of this Agreement; and (iv) do not violate any
provision of its certificate of incorporation or bylaws.
(3) The Master Servicer will satisfy all of its obligations set
forth in this Agreement, maintain in effect all qualifications
required in order to service the Financed Student Loans and
comply in all material respects with all requirements of law if
a failure to comply would have a materially adverse effect on
its ability to service the Financed Student Loans.
(4) The Master Servicer will not permit any rescission or
cancellation of a Financed Student Loan except as ordered by a
court or other government authority or as consented to by the
Trust Eligible Lender Trustee and the Indenture Trustee, except
that it may write off any delinquent Financed Student Loan if
the remaining balance of the borrower's account is less than
$50.
(5) The Master Servicer will not reschedule, revise, defer or
otherwise compromise payments due on any Financed Student Loan
except during any applicable interest only, deferral or
forbearance periods or otherwise in accordance with all
applicable standards and requirements for servicing of the
Financed Student Loans.
(6) All financial statements of the Master Servicer delivered to the
Issuer were prepared according to U.S. generally accepted
accounting principles ("GAAP") consistently applied and present
fairly, in all material respects, the financial condition,
results of operations and cash flows of the Master Servicer as
of, and for the portion of the fiscal year ending on their date
or dates (subject, in the case of financial statements other
than annual ones, only to normal year-end adjustments).
(7) No event which could cause a material adverse effect on the
Master Servicer's financial condition has occurred, and if such
event shall occur, the Master Servicer shall promptly give the
Issuer notice thereof.
(8) The Master Servicer is not subject to, or aware of the threat
of, any litigation that is reasonably likely to be determined
adversely to it and that, if so adversely determined, would have
a material adverse effect on its financial condition or its
ability to meet its obligations under this Agreement and no
outstanding or unpaid judgments against the Master Servicer
exist, and if such event shall occur, the Master Servicer shall
promptly give the Issuer notice thereof.
(9) The Master Servicer has no knowledge of any basis upon which to
believe that each Financed Student Loan (i) is not in compliance
in all material respects with all laws and rules and regulations
with respect to any Guarantee thereof, and (ii) does not conform
to the applicable requirements of eligibility for such
Guarantee.
(10) The Master Servicer further agrees to maintain its servicing
system so that it will continue to provide all services required
under this Agreement to the extent such services are not
provided by one or more eligible third-party subservicers under
the Act with adequate systems to perform such services.
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(11) Until all Financed Student Loans serviced hereunder have been
repaid in full, or paid as a claim by a Guaranty Agency, or
transferred to another servicer, the Master Servicer agrees as
follows:
(i) The Master Servicer shall cause to be furnished to the
Issuer its financial statements as the Issuer may
reasonably request, including quarterly unaudited
financial statements within thirty (30) days after the
conclusion of each fiscal quarter, and annual financial
statements within ninety (90) days after the end of each
fiscal year audited by nationally recognized independent
certified public accountants and such other information
with respect to its business affairs, assets, and
liabilities as the Issuer may reasonably request.
(ii) The Master Servicer shall maintain books, records and
accounts necessary to prepare financial statements
according to GAAP and maintain adequate internal
financial controls.
(iii) The Master Servicer shall maintain all licenses,
permits, and franchises necessary for its business.
(12) This Agreement will, upon execution and delivery by all parties
thereto, constitute a legal and binding obligation of the Master
Servicer, enforceable against the Master Servicer according to
its terms.
Upon the discovery of a breach of certain covenants that have a
materially adverse effect on the Financed Student Loans, the Master Servicer
will be obligated to purchase or substitute the adversely affected Financed
Student Loan unless the breach is cured within the time period prescribed in
Section 10 hereof. Any breach that relates to compliance with the requirements
of the Act or the applicable Guaranty Agency but that does not affect that
Guaranty Agency's obligation to guarantee payment of a Financed Student Loan
will not be considered to have a material adverse effect.
The purchase or substitution and reimbursement obligations of the Master
Servicer will constitute the sole remedy available to the Issuer for any uncured
breach. The Master Servicer's purchase or substitution and reimbursement
obligations are contractual obligations that the Issuer may enforce, but the
breach of these obligations will not constitute an event of default under the
Indenture.
Section 9. Representations and Warranties of Issuer.
The Issuer represents and warrants to the Master Servicer on the date of
this Agreement:
(1) The Issuer (i) is duly formed, validly existing, and in good
standing under the laws of the jurisdiction in which it is
formed; (ii) is duly qualified to transact business as a
Delaware statutory trust; and (iii) possesses all requisite
authority, permits and power to conduct its business as
contemplated by this Agreement.
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(2) The execution and delivery by the Issuer of this Agreement and
the performance of its obligations hereunder (i) are within its
organizational power; (ii) have been duly authorized by all
necessary action; and (iii) require no action by or filing with
any governmental agency, except for any action or filing that
has been taken or made on or before the date of this Agreement.
(3) This Agreement will, upon execution and delivery by all parties
thereto, constitute a legal and binding obligation of the
Issuer, enforceable against the Issuer according to its terms.
(4) The Issuer is not subject to, or aware of the threat of, any
litigation that is reasonably likely to be determined adversely
to it and that, if so adversely determined, would have a
material adverse effect on its financial condition relevant to
this Agreement.
Section 10. Master Servicer Default.
Each of the following constitutes a "Master Servicer Default" hereunder:
(1) any failure by the Master Servicer to deliver to the Indenture
Trustee any payment required by this Agreement, which failure
continues unremedied for three (3) business days after written
notice of such failure is received by the Master Servicer from
the Trust Eligible Lender Trustee, the Indenture Trustee or the
Administrator or after discovery of such failure by an officer
of the Master Servicer; or
(2) any breach of a representation or warranty of the Master
Servicer contained in Section 8 of this Agreement or failure by
the Master Servicer duly to observe or to perform in any
material respect any term, covenant or agreement set forth in
this Agreement or in any other Basic Document to which the
Master Servicer is a party, which breach or failure shall (i)
materially and adversely affect the rights of Noteholders or any
Counterparties 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 breach or failure, requiring the same to be remedied, shall
have been given (A) to the Master Servicer, by the Indenture
Trustee, the Trust Eligible Lender Trustee or the Administrator,
or (B) to the Master Servicer, the Indenture Trustee or the
Trust Eligible Lender Trustee by Noteholders representing not
less than 25% of the Outstanding Amount of the Notes; or
(3) the Master Servicer shall have commenced a voluntary case or
other proceeding seeking liquidation, reorganization, or other
relief with respect to itself or its debts under any bankruptcy,
insolvency, or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator,
custodian, or other similar official of it or any substantial
part of its property, or shall have made a general assignment
for the benefit of creditors, or shall have declared a
moratorium with respect to its debts or shall have failed
generally to pay its debts as they become due, or shall have
taken any action to authorize any of the foregoing; or
(4) an involuntary case or other proceeding shall have been
commenced against the Master Servicer seeking liquidation,
reorganization, or other relief with respect to it or its debts
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under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian, or other similar official of it
or any substantial part of its property, provided such action or
proceeding is not dismissed within 60 days; or
(5) any failure by the Master Servicer to comply with any
requirements under the Act resulting in a loss of its
eligibility as a third-party servicer.
Section 11. Rights Upon Master Servicer Default.
In each and every case, so long as Master Servicer Default shall not
have been remedied, either the Indenture Trustee, or the holders of Notes
evidencing not less than 25% of the Outstanding Amount of the Notes, by notice
then given in writing to the Master Servicer (and to the Indenture Trustee and
the Issuer if given by the Noteholders) may terminate all the rights and
obligations (other than the rights and obligations set forth in Section 19
hereof) of the Master Servicer under this Agreement. Only the Indenture Trustee
or the Noteholders, and not the Issuer, will have the ability to remove the
Master Servicer if a Master Servicer Default occurs while the Notes are
Outstanding.
As of the effective date of termination of the Master Servicer, all
authority and power of the Master Servicer under this Agreement, whether with
respect to the Notes or the Financed Student Loans or otherwise, shall, without
further action, pass to and be vested in the Indenture Trustee or such successor
servicer as may be appointed, and all files shall be disposed of pursuant to the
procedures prescribed by Section 14 hereof. The successor servicer will succeed
to all the responsibilities and duties of the Master Servicer under this
Agreement and will be entitled to similar compensation arrangements.
The Master Servicer shall cooperate with the successor servicer, the
Indenture Trustee and the Issuer in effecting the termination of the
responsibilities and rights of the Master Servicer under this Agreement,
including the transfer to the successor servicer for administration by it of all
cash amounts that shall at the time be held by the Master Servicer for deposit,
or shall thereafter be received by it with respect to a Financed Student Loan.
All reasonable costs and expenses (including attorneys' fees) incurred in
connection with transferring the Financed Student Loan files to the successor
servicer and amending this Agreement and any other Basic Documents to reflect
such succession of servicer pursuant to this Section 11 shall be paid by the
Master Servicer (other than the Indenture Trustee acting as the servicer under
this Section 11) upon presentation of reasonable documentation of such costs and
expenses. Upon receipt of notice of the occurrence of a Master Servicer Default,
the Issuer shall give notice thereof to the Rating Agencies.
If the Indenture Trustee is unwilling or unable to act, it may appoint,
or petition a court for the appointment of, a successor whose regular business
includes the servicing of Student Loans; provided, however, the Indenture
Trustee shall continue to act as the Master Servicer until a successor has been
so appointed. If, however, a bankruptcy trustee or similar official has been
appointed for the Master Servicer, and no Master Servicer Default other than
that appointment has occurred, the trustee may have the power to prevent the
Indenture Trustee or the Noteholders from effecting the transfer.
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Section 12. Waiver of Past Master Servicer Defaults.
The Noteholders evidencing a majority of the Outstanding Amount of the
Notes, in the case of any Master Servicer Default which does not adversely
affect the Indenture Trustee or the Noteholders, may, on behalf of all
Noteholders, 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. 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.
The Issuer may designate another servicer with respect to its student
loans. Any servicer, other than Education Lending Services, Inc., may be
appointed, provided that a Rating Confirmation has been received with respect
thereto.
Section 13. Termination.
This Agreement will terminate upon the occurrence of the earlier of (i)
the termination of the Indenture; (ii) early termination pursuant to Section 11
hereof; and (iii) payment in full of all of the Financed Student Loans being
serviced hereunder.
The Master Servicer may not resign from its obligations and duties as
the Master Servicer hereunder, except upon determination that the Master
Servicer's performance of its duties is no longer permissible under applicable
law. No resignation will become effective until the Indenture Trustee or a
successor servicer has assumed the Master Servicer's servicing obligations and
duties under this Agreement.
In the event of termination of this Agreement, the Issuer shall remain
liable for all fees due and payable hereunder. Termination shall be made without
prejudice to any other rights or remedies either party may have at law or in
equity. The obligations of the Master Servicer under Section 4 hereof, and the
representations and warranties in Section 8 shall survive any termination of
this Agreement and shall remain in effect for all Financed Student Loans while
such Financed Student Loans are serviced by the Master Servicer. The rights and
obligations of the Master Servicer contained in Section 19 hereof shall survive
termination of this Agreement. In the event that servicing on any Financed
Student Loan is transferred to a successor servicer, such successor servicer
shall be required by the Issuer to engage in reasonable good faith efforts to
obtain payment on any claim initially rejected by a guarantor for payment
including, without limitation, involving the Master Servicer in such effort,
where the reason for claim denial relates to the period during which the Master
Servicer serviced such Financed Student Loan hereunder. However, if the cause
for claim denial is reasonably attributable to the Master Servicer actions or
inactions, the Master Servicer shall be responsible therefore. The Master
Servicer acknowledges that Issuer will assign this Agreement to the Indenture
Trustee on behalf of the Noteholders and that the Indenture Trustee will be
entitled to enforce this Agreement against the Master Servicer.
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Section 14. Disposition of Files on Termination.
Upon termination of this Agreement, all files (physical and electronic)
held by the Master Servicer with respect to Financed Student Loans shall be
promptly transferred to the Issuer or its designee in such form as the Issuer
reasonably requests. The Issuer shall be responsible for payment of reasonable
expenses related to the transfer of the records unless the Issuer is removing
the Financed Student Loans because of a breach by the Master Servicer. In such
instance, the Master Servicer shall bear the cost of deconverting and
transferring the Financed Student Loan documentation.
Section 15. Independent Contractor.
The Master Servicer is an independent contractor and is not, and shall
not hold itself out to be, the agent of the Issuer except for the limited
specific purposes set forth in this Agreement.
Section 16. Correspondence; Disclosure.
The parties hereto acknowledge and agree that the Master Servicer will
handle all communication with borrowers necessary to provide its services
hereunder. Data regarding Financed Student Loans shall be disclosed only to the
Issuer, the Indenture Trustee, the Administrator or the respective borrower,
unless otherwise required by law or certain financing covenants.
Section 17. Cooperation.
Each party covenants and agrees to cooperate fully with the other to
facilitate the transactions contemplated by this Agreement.
Section 18. Amendments.
This Agreement may be amended, supplemented or modified only by written
instrument duly executed by the Issuer and the Master Servicer with the consent
of the Indenture Trustee. So long as any Notes remain Outstanding under the
Indenture, a Rating Confirmation must be obtained with respect to any such
amendment, supplement or modification.
Section 19. Indemnification and Liability
(a) Neither the Master Servicer nor any of its directors, officers,
employees or agents will be under any liability to the Issuer or the Noteholders
for taking any action or for refraining from taking any action pursuant to this
Agreement, or for errors in judgment; provided, however, that neither the Master
Servicer nor any person will be protected against any liability that would
otherwise be imposed by reason of willful misfeasance, bad faith or negligence
in the performance of the Master Servicer's duties hereunder or by reason of
reckless disregard of its obligations and duties hereunder.
(b) The Master Servicer is under no obligation to appear in,
prosecute, or defend any legal action that is not incidental to its servicing
responsibilities under this Agreement and that, in its opinion, may cause it to
incur any expense or liability. The Master Servicer may undertake any reasonable
action that it deems necessary or desirable in respect of this Agreement and the
interests of the Noteholders.
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(c) If the Master Servicer is required to appear in, or is made a
defendant in any legal action or proceeding commenced by any party other than
the Issuer with respect to any matter arising hereunder, the Issuer shall
indemnify and hold the Master Servicer harmless from all loss, liability, or
expense (including reasonable attorney's fees) except for any loss, liability or
expense arising out of or relating to the Master Servicer's willful misconduct
or negligence with regard to the performance of services hereunder or breach of
its obligations hereunder. Subject to the limitations set forth in paragraph
19(b) hereof, the Master Servicer shall indemnify and hold the Issuer harmless
from all loss, liability and expense (including reasonable attorney's fees)
arising out of or relating to the Master Servicer's willful misconduct or
negligence with regard to performance of services hereunder or breach of its
obligations hereunder, provided that in no event shall the Master Servicer be
responsible or liable for any incidental, special or consequential damages with
respect to any matter whatsoever arising out of this Agreement.
(d) If a Financed Student Loan is denied the Guarantee by the
Guaranty Agency or the loss of federal interest, special allowance, and/or
insurance benefits, the Master Servicer shall have the right to take any action
not prohibited by law or regulation to reduce its losses, if any, hereunder,
including but not limited to curing, at its own expense, any due diligence or
other servicing violation. If any lost Guarantee is not reinstated within twelve
(12) months of the date the Master Servicer learns of the loss of the Guarantee
on a Financed Student Loan, the Master Servicer shall take actions which make
the Issuer whole with respect to the Financed Student Loan while maintaining the
eligibility for future reinstatement of the Guarantee; provided, however, the
Master Servicer may delay taking such actions by giving written notice to the
Issuer not less often than each ninety (90) days that the Master Servicer has
reason to believe that the Guarantee will be reinstated within time frames
permitted by regulations. If the Master Servicer gives notice of such delay, the
Master Servicer agrees to pay any accrued interest on the Financed Student Loans
that may be uninsured. The Issuer agrees to use its best efforts to cause the
repurchase, at par plus insured interest and benefits thereon, of any Financed
Student Loan which is cured and is reinsured subsequent to its sale by the
Issuer pursuant to actions taken by the Master Servicer to make the Issuer whole
and if the sale was to an Eligible Lender to the extent the Issuer has, or can
make available, fund therefor.
(e) The Master Servicer shall have no responsibility for any error
or omission (including due diligence violations) which occurred prior to the
date the Master Servicer assumed responsibility for servicing the Financed
Student Loan, nor shall the Master Servicer be responsible for losses, damages
or expenses arising from any change in law or regulation which retroactively
imposes additional requirements for documentation or servicing actions, provided
that the Master Servicer has made best efforts to comply with retroactive
additional requirements.
Section 20. Merger or Consolidation of, or Assumption of the
Obligations of, Master Servicer
Any entity into which the Master Servicer may be merged or consolidated,
or any entity which may result from any merger or consolidation to which the
Master Servicer shall be a party or any entity succeeding to the business of the
Master Servicer, shall be the successor to the Master Servicer without the
execution or filing of any document or any further act by any of the parties to
this Agreement; provided, however, that the Master Servicer hereby covenants
that it will not consummate any of the foregoing transactions except upon
satisfaction of the following: (i) the surviving servicer, if other than
Education Lending Services, Inc., executes an agreement of assumption to perform
every obligation of the Master
14
Servicer under this Agreement, (ii) immediately after giving effect to such
transaction, no representation or warranty made hereunder shall have been
breached and no Master Servicer Default shall have occurred and be continuing,
and (iii) such consolidation, merger or succession and such agreement of
assumption comply with all the conditions precedent, if any, provided for in
this Agreement.
Section 21. Confidentiality
The contents of this Agreement, together with all supporting documents,
exhibits, schedules, and any amendments thereto, which form the basis of the
business relationship between the Issuer and the Master Servicer, insofar as the
same relate to the fees charged by the Master Servicer, shall be held in strict
confidence by both parties and shall not be disclosed or otherwise discussed
with any third party (unless required by law or regulation), except outside
counsel or independent accountants, or in connection with the offer and sale of
securities issued or to be issued under the Indenture, without the prior written
consent of the other party.
Section 22. Nonpetition Covenant of Master Servicer
The Master Servicer agrees not to, for any reason, institute proceedings
for the Issuer to be adjudicated as bankrupt or insolvent, or consent to the
institution of bankruptcy or insolvency proceedings against the Issuer, or file
a petition seeking or consenting to reorganization or relief under any
applicable federal or state law relating to bankruptcy, or consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Issuer or a substantial part of its property.
Section 23. Sale or Transfer of Loans; Limitations
The Issuer agrees that if any Financed Student Loans are sold under
conditions that result in the Financed Student Loans being transferred to
another servicer, whether immediately or at some future date, the Issuer will
pay or cause to be paid, at the time such Financed Student Loans are
transferred, the deconversion fees charged by such servicer.
Section 24. Optional Purchase of Financed Student Loans
The Master Servicer shall have the option to purchase or arrange for the
purchase of all remaining Financed Student Loans on any Distribution Date when
the Pool Balance is 10% or less of the initial Pool Balance. The purchase price
will equal the greater of (i) the aggregate outstanding balances of the
remaining Financed Student Loans as of the end of the preceding Collection
Period, including all interest accrued thereon, and (ii) the Minimum Purchase
Amount.
Section 25. Miscellaneous.
(a) Any material written communication received at any time by the
Issuer with respect to a Financed Student Loan or a borrower shall be promptly
transmitted by the Issuer to the Master Servicer. Such communications include
but are not limited to letters, notices of death or disability, adjudication of
bankruptcy and like documents, and forms requesting deferment of repayment or
loan cancellations.
(b) This Agreement shall be governed by the laws of the State of
Ohio.
15
(c) All covenants contained herein and the benefits, rights and
obligations of the parties hereunder, shall be binding upon and inure to the
benefit of the legal representatives, successors and assigns of the parties
hereto, including but not limited to, any successor entity acquiring or
succeeding to the assets of either party.
(d) This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original and all of which shall be deemed to
constitute but one and the same instrument.
(e) If any provisions of this Agreement shall be held, or deemed to
be, or shall in fact be inoperative or unenforceable as applied in any
particular situation, such circumstance shall not have the effect of rendering
any other provision or provisions herein contained invalid, inoperative or
unenforceable to any extent whatsoever. The invalidity of any one or more
phrases, sentences, clauses or paragraphs herein contained shall have no effect
on the remaining portions of this Agreement or any part hereof.
(f) All notices, requests, demands or other instruments which may or
are required to be given by either party to the other, shall be in writing and
each shall be deemed to have been properly given when delivered personally on an
officer of the party to whom such notice is to be given, or upon receipt thereof
when mailed postage prepaid by registered or certified mail, requesting return
receipt, or upon confirmed facsimile transmission, addressed as follows:
If intended for the Issuer:
Education Funding Capital Trust-II
c/o Fifth Third Bank
MD 10AT60
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Corporate Trust Administration
Telephone: x0.000.000.0000
Facsimile: x0.000.000.0000
with a copy to:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Telephone: x0.000.000.0000
Facsimile: x0.000.000.0000
16
If intended for the Master Servicer:
Education Lending Services, Inc.
0 Xxxx Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxx Xxxxx
If intended for the Indenture Trustee:
Fifth Third Bank
MD 10AT60
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Corporate Trust Administration
Telephone: x0.000.000.0000
Facsimile: x0.000.000.0000
If intended for the Trust Eligible Lender Trustee:
Fifth Third Bank
MD 10AT60
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Corporate Trust Administration
Telephone: x0.000.000.0000
Facsimile: x0.000.000.0000
Either party may change the address to which subsequent notices are to be sent
to it by written notice to the other given as aforesaid, but any such notice of
change, shall not be effective until the second Business Day after it is
received.
(g) This Agreement may not be terminated by any party hereto except
in the manner and with the effect herein provided.
(h) When the context of this Agreement so requires or implies,
references to the Issuer include any applicable trustee.
(i) If either party cannot fulfill its obligations (other than the
payment of money), in part or in whole, due to a force or event outside its
control, such obligations of that party shall be suspended and such party shall
not be liable to the other party for any failure to perform hereunder as a
result.
(j) The parties hereto agree to execute or cause to be executed the
Limited Power of Attorney attached hereto as Exhibit A.
17
(k) The Master Servicer has and agrees to maintain a disaster
recovery plan which, in its reasonable opinion, will permit it to continue
operations without undue interruption in the event of fire, disaster, labor
disruption, or Act of God.
(l) The Master Servicer may cause any of its duties or obligations
hereunder to be performed by a Subservicer to the extent permitted by the
Indenture.
(m) EACH PARTY TO THIS AGREEMENT WAIVES ITS RIGHT TO A JURY TRIAL.
18
IN WITNESS WHEREOF, the parties have hereunto set their hands by their
duly authorized officers as of the day and year first above written.
EDUCATION FUNDING CAPITAL TRUST-II, by
Fifth Third Bank, as Co-Owner Trustee
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Assistant Vice President
EDUCATION LENDING SERVICES, INC., as
the Master Servicer
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President -
Finance
FIFTH THIRD BANK, as Indenture Trustee
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Assistant Vice President
FIFTH THIRD BANK, as Trust Eligible
Lender Trustee
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Assistant Vice President
EXHIBIT A
LIMITED POWER OF ATTORNEY
----------
WITNESSETH:
WHEREAS, Education Lending Services, Inc., a Delaware corporation (the
"Master Servicer"), and Education Funding Capital Trust-II, a Delaware statutory
trust (the "Issuer"), are parties to the Master Servicing Agreement dated as of
April ___, 2003 (the "Master Servicing Agreement"); and
WHEREAS, pursuant to the Master Servicing Agreement, the Master Servicer
will perform substantially all of the obligations and duties with regard to
servicing of certain education loans (the "Financed Student Loans") as provided
therein; and
WHEREAS, in order to carry out its obligations under the Master
Servicing Agreement with respect to the Financed Student Loans, the Master
Servicer requires the power to perform certain acts, including but not limited
to execution of promissory notes, assignment of notes to guarantors and filing
of responses to bankruptcy notices, in the name of Fifth Third Bank, as trust
eligible lender trustee (the "Trust Eligible Lender Trustee") for Issuer.
NOW THEREFORE, the Master Servicer, Issuer and Trust Eligible Lender Trustee
agree:
1. That each of the Issuer and the Trust Eligible Lender Trustee do
hereby make and appoint the Master Servicer as its true and lawful
attorney-in-fact to do all things necessary to carry out the Master Servicer's
obligations under the Master Servicing Agreement with respect to the Financed
Student Loans, including but not limited to the filing of proof of claim with
bankruptcy courts. This instrument shall be construed and interpreted as a
limited power of attorney (the "Limited Power of Attorney") and is not to be
construed as granting any powers to the Master Servicer other than those
necessary to carry out its obligations under the Master Servicing Agreement with
respect to the Financed Student Loans.
2. That this Limited Power of Attorney is effective as of April
___, 2003, and shall remain in force and effect until revoked in writing by the
Issuer and Trust Eligible Lender Trustee or until the Master Servicing Agreement
is terminated. This instrument shall supplement but not replace the powers
previously granted to the Master Servicer in the Master Servicing Agreement.
The undersigned, being duly authorized, has executed this Limited Power of
Attorney.
EDUCATION FUNDING CAPITAL TRUST-II, by
Fifth Third Bank, as Co-Owner Trustee
By:
-------------------------------------
Name:
Title:
FIFTH THIRD BANK, as Trust Eligible
Lender Trustee
By:
-------------------------------------
Name:
Title:
The undersigned, being duly authorized, accepts the foregoing Limited Power of
Attorney for and on behalf of the Issuer and Trust Eligible Lender Trustee, as
of __________, 20___.
EDUCATION LENDING SERVICES, INC., as
the Master Servicer
By:
-------------------------------------
Name:
Title:
