Exhibit 10.26
LOUISIANA GUARANTEED STUDENT LOAN PROGRAM
PARTICIPATION AGREEMENT
THIS AGREEMENT is entered into as of the 30th day of January, 2002, by and
between Louisiana Student Financial Assistance Commission ("LASFAC") and Student
Loan Finance Corporation and Subsidiaries (U.S. Bank, Trustee) ("Participant").
WITNESSETH
WHEREAS, LASFAC has entered into a reinsurance agreement with the U.S. Secretary
of Education pursuant to Title IV, Part B of the Higher Education Act of 1965,
as amended (the "Act"); and
WHEREAS, Participant wishes to participate in a program of loans for students
attending schools in Louisiana or who are residents of the State of Louisiana
under Title IV, Part B of the Act; and
WHEREAS, LASFAC has determined that Participant is eligible and qualifies under
the provisions of the Act and U.S. Department of Education's regulations and
LASFACs rules, regulations, and policies;
WHEREAS, Participant has full power and authority to contract for the
performance of such guarantee services, qualifies as an "eligible lender",
"eligible holder", "eligible servicer", or "eligible school" under the Act for
the making of Eligible Student Loans and is prepared to engage in the
transactions contemplated by this Agreement;
NOW, THEREFORE, it is agreed by and between LASFAC and Participant in
consideration of the foregoing premises and the mutual covenants contained in
this Agreement, and of other good and valuable consideration, the receipt of
which is hereby acknowledged, LASFAC and Participant agree as follows:
ARTICLE I DEFINITIONS
As used herein, the following words will have the meanings respectively
indicated:
"Act" means Part B of Title IV of the Higher Education Act of 1965 (20 U.S.C.
1071 et. seq.) as amended and in effect from time to time, or any successor
enactment thereto, and the effective Regulations promulgated thereunder and any
binding directive issued in writing by the U.S. Department of Education and
communicated to Participant or LASFAC.
"Agreement" means this Agreement to participate in the Louisiana Guaranteed
Student Loan Program between LASFAC and the Participant and any amendments
thereto.
"Borrower" means an Eligible Borrower who is the maker of a Note and who obtains
a loan in accordance with the Act, Regulations, the Policies, and this
Agreement.
"Louisiana Guaranteed Student Loan Program" means the official procedures and
Policies communicated to the Participant in writing for implementing and
maintaining each Eligible
Student Loan Guaranteed under the provisions of the Act, applicable law and
Regulations, the Policies, and as otherwise agreed to in writing by and between
the Participant and LASFAC in accordance with this Agreement.
"Default" means with respect to any Note, the occurrence of any event which
shall constitute a default under the terms of the Act.
"Eligible Borrower" means an "eligible borrower" as described in the Act, the
Regulations, and the Policies.
"Eligible Student Loan" means an education loan eligible for federal reinsurance
as described in the Act, applicable Regulations, and the Policies.
"Federal Reinsurance means the risk assumed by the Federal government as set
forth in the Act and the Regulations.
"Guarantee" means a commitment by LASFAC to purchase loans of the Participant in
the amount of outstanding principal and unpaid accrued interest at the maximum
allowable percentage for each loan eligible for Federal Reinsurance under the
Act, the Regulations, and the Policies, provided that the loan is made under the
Act, Regulations, and the Policies in effect from the date of this Agreement,
upon submission by the Participant of a valid claim and supporting documentation
in accordance with the Act, the Regulations, the Policies, and this Agreement.
"Limitation" means an action taken by LASFAC which restricts the Participant's
participation in the Louisiana Guaranteed Student Loan Program.
"Note" means a promissory note of a Borrower for an Eligible Student Loan or
Loans set forth upon the appropriate form approved by the U.S. Secretary of
Education or LASFAC, which note meets the criteria set forth in the Policies,
the Regulations, and the Act.
"Policies" means the rules, regulations, and policies adopted by LASFAC
describing the administration of the Federal Family Education Loan Program,
including any subsequently issued official written notices.
"Regulations" means U.S. Department of Education regulations promulgated
pursuant to the Act.
"Suspension" means the temporary ineligibility of the Participant to participate
in the Louisiana Guaranteed Student Loan Program.
"Termination" means the removal of the Participant from participation in the
Louisiana Guaranteed Student Loan Program.
ARTICLE II PROGRAM ADMINISTRATION
A. By this Agreement, LASFAC and Participant agree to participate in the
Louisiana Guaranteed Loan Program as follows:
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1. In the event Participant is a lender, holder, or servicer, Participant
agrees to make or purchase Eligible Student Loans or cause Eligible Student
Loans to be made or purchased only with respect to Eligible Borrowers pursuant
to the terms of the Louisiana Guaranteed Student Loan Program;
2. In the event Participant is a school, Participant agrees to make or certify
Eligible Student Loans only with respect to Eligible Borrowers pursuant to the
terms of the Louisiana Guaranteed Student Loan Program;
3. LASFAC agrees to Guarantee Eligible Student Loans eligible for Guarantee
under the terms of the Louisiana Guaranteed Student Loan Program; and
B. An Eligible Student Loan maybe originated and Guaranteed only if the
Participant fully complies with the Policies and the terms and conditions for
Loans as set forth in the Act, the Regulations, and the Policies.
C. The Participant will, pursuant to the direction of LASFAC, repay or cause
the repayment to the U.S. Department of Education of any monies or special
allowance (as described in the Act) received by the Participant under the Act to
which the Participant is not rightfully entitled. Pursuant to the Lender Site
Review Guide, Participant will have an opportunity to rebut any LASFAC audit
findings and is additionally entitled to an appeal to the U.S. Department of
Education.
D. The Participant will permit the U.S. Secretary of Education, LASFAC or both
to examine during normal business hours all Borrower and Loan records and files,
upon reasonable notice and at reasonable intervals, for the purpose of verifying
the accuracy of information provided by the Participant under the Act, the
Regulations, and the Policies and in order to conduct an audit and compliance
review as required under the Louisiana Guaranteed Student Loan Program.
E. If LASFAC determines that the Participant has violated the terms of this
Agreement or the Louisiana Guaranteed Student Loan Program, LASFAC may take such
action as is necessary to protect its interests. This action may include but not
be limited to implementation of the Limitation, Suspension, or Termination
procedures set out in the Regulations and the Policies.
ARTICLE III REPRESENTATIONS, WARRANTIES AND COVENANTS BY THE PARTICIPANT
The Participant represents and warrants to, and covenants with LASFAC that:
A. The Participant is a duly authorized "eligible lender" under the Act in
every state in which it is originating or acquiring Eligible Student Loans under
the Act, as well as the state in which it is organized and incorporated, and has
authorized the execution and delivery of this Agreement. In the case of a
holder, servicer, or school, Participant is a duly authorized "eligible holder",
"eligible servicer" or "eligible school" in every state in which it is doing
business.
B. The Participant is and will continue to qualify at all times during the
term of this Agreement as "eligible lender" under the Act.
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C. The Participant will, at all times, conform its actions, policies and
procedures to the Act, this Agreement, all applicable Federal and state laws and
regulations, and the Policies.
ARTICLE IV REPRESENTATION, WARRANTIES AND COVENANTS BY LASFAC
LASFAC represents and warrants to, and covenants with the Participant that:
A. LASFAC has all requisite power, authority, licenses, and consents to enter
into and to perform the terms of this Agreement.
B. LASFAC will, at all times, perform the terms of this Agreement and
administer its guaranty program in accordance with the Act, the Regulations, all
other applicable Federal and state laws and regulations, and the Policies.
ARTICLE V TERMINATION
Except with respect to Eligible Student Loans which have been Guaranteed by
LASFAC and continue to be outstanding under this Agreement, this Agreement may
be terminated by either party with or without cause upon not less than ninety
(90) calendar days written notice to the other party. Such termination will not
affect any Notes that are outstanding or duties or rights arising prior to the
effective date of the termination.
ARTICLE VI LIMITATION OF LIABILITY AND INDEMNIFICATION
A. If the Participant violates or fails to comply with any applicable law,
governmental regulations, or the Policies in respect of an Eligible Student Loan
or participation in the Louisiana Guaranteed Student Loan Program, then the
Participant agrees to assume liability for, and does hereby indemnify, protect,
and keep harmless LASFAC, its successors and assigns, from and against, any
loss, liability, or expense, including reasonable attorney fees, which arises
out of or relates to the acts or omissions of Participant or its agents in
performing the terms of this Agreement, regardless of whether LASFAC purchased
an Eligible Student Loan from the Participant.
B. The liability of LASFAC under this agreement shall be limited to payment of
the Guarantee under this Agreement and this shall constitute its sole liability
under this agreement. LASFAC shall not be liable for any indirect, incidental or
consequential damages (including but not limited to lost profits, lost revenue,
or failure to realize expected savings) regardless of the form of the action and
whether such damages are foreseeable.
ARTICLE VII MISCELLANEOUS
A. Amendment. This Agreement may only be varied by an instrument in writing
executed by both parties.
B. Waiver of Rights. No failure by any party to exercise, or any delay in
exercising, and no course of dealing with respect to any right of such party or
any obligation of any other party under this Agreement will operate as a waiver
thereof, unless, and only to the extent, agreed to in writing by all parties
hereto. Any single or partial exercise by any party of its rights shall not
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preclude such party from any other or further exercise of such right or the
exercise of any other right Any single or partial waiver by any party of any
obligation of any other party under this Agreement will constitute a waiver of
such obligation only as specified in such waiver and will not constitute a
waiver of any other obligation.
C. Cumulative Remedies. Except as otherwise provided in this Agreement, no
remedy by the terms of this Agreement conferred upon or reserved to a party is
intended to be exclusive of any other remedy, but each and every such remedy
shall be cumulative and in addition to every other remedy given under this
Agreement or existing at law or in equity or by statute on or after the date of
this Agreement including, without limitation, the right to such equitable relief
by way of injunction, mandatory or prohibitory, to prevent the breach or
threatened breach of any of the provisions of this Agreement or to enforce the
performance hereof.
D. Resolution of Disputes. In the event of any dispute or disagreement between
the parties hereto, either with respect to the interpretation of any provision
of this Agreement or with respect to performance hereunder, each of the parties
will appoint a designated officer or agent to meet for the purpose of
endeavoring to resolve such dispute or to negotiate for a modification to such
provision. Formal proceedings for judicial resolution may be commenced if
required to preserve a claim under the applicable statute of limitations.
E. Severability. Any provision of this Agreement which is held to be
prohibited, unenforceable, or not authorized by any court of competent
jurisdiction will, as to such jurisdiction, be ineffective to the extent of such
prohibition, unenforceability, or non-authorization without invalidating the
remaining provisions hereof or affecting the validity, enforceability, or
legality of such provision in any other jurisdiction.
F. Governing Law; Venue Where Permitted by Louisiana Law; Entire Agreement.
Except to the extent that this Agreement may be governed by Federal law, this
Agreement is governed by, interpreted, construed and enforced in accordance with
the laws of the State of Louisiana, without reference to its principles of
conflict of laws. The parties consent to the jurisdiction of a court of
competent jurisdiction located within the State of Louisiana.
This agreement constitutes the entire agreement between the parties and
supersedes any and all prior agreements, written or oral, not incorporated
herein, with respect to the subject matter of the Agreement. All prior writings,
correspondence, memoranda, agreements, representations, statements, warranties,
covenants, negotiations, and undertakings, express or implied, of any kind or
character whatsoever with respect to the subject matter of this Agreement are
superseded hereby.
G. Notices. Any notice required or permitted by this Agreement shall be in
writing and shall be deemed to have been given if sent by first class mail,
overnight carrier, facsimile, or personal delivery, addressed (i) if to LOSFA to
the attention of Legal Counsel, at Xxxx Xxxxxx Xxx 00000, Xxxxx Xxxxx, XX
00000-0000 (ii) if to the Lender, at the address indicated in this Agreement, or
(iii) at such other address as the party to be notified has designated upon
reasonable notice. Notices made pursuant to this paragraph by facsimile,
overnight carrier, or personal delivery will be deemed to be effective upon
receipt. Notices made pursuant to this paragraph by first class
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mail will be deemed to be effective no later than the fifth business day
following the mailing of such notice.
H. No Recourse. No recourse under or upon this Agreement or any claim based
thereon or in respect thereof shall be had against any incorporator, member,
officer, employee, or trustee, as such, past, present, or future, of a party or
of any successor organizations, whether directly or through a party or any
successor organizations. This Agreement is solely an institutional obligation
and no personal liability against the state, any incorporator, member, officer,
employee, or trustee, past, present, or future of the parties shall attach
through a party or any successor corporations, because of this Agreement.
I. Execution. This Agreement will not be binding on either party until it has
been executed and delivered by both parties. This Agreement may be executed in
any number of counterparts, each of which shall be an original, but which
together constitute one and the same instrument.
J. Interpretation/Construction. In this Agreement unless the context otherwise
requires:
1. Any headings preceding the texts of the several articles and sections of
this Agreement, and any table of contents or marginal notes appending to copies
hereof, shall be solely for convenience of reference and shall not constitute a
part of this Agreement, nor shall they affect its meaning, construction or
effect.
2. In the event of any inconsistency between the terms and conditions of any
schedule attached hereto and the provisions of this Agreement, this Agreement
will prevail.
The parties agree that the normal rule of construction to the effect that any
ambiguities are to be resolved against the party drafting the agreement shall
not be employed in the interpretation of this Agreement.
K. Authority. The parties represent that the undersigned are duly authorized
representatives of the parties.
L. Independent parties. The parties agree that no legal relationship of any
kind exists as a result of this Agreement, other than the covenants expressly
contained herein. This Agreement shall not constitute, create, give effect to or
otherwise imply a joint venture, partnership or business organization of any
kind. The parties to this Agreement are independent parties and the personnel of
one party shall not be deemed the personnel of the other. Each party shall be
solely responsible for payment of all compensation owed to its personnel,
including payment of any taxes related to employment and workers' compensation
insurance. Nothing in this Agreement shall grant to either party any right to
make commitments of any kind or to create obligation for or on behalf of the
other without the prior written consent of the other party, except to the extend
stated herein.
M. Force Majeure. If a party is delayed from completing performance of any or
all of its obligations under this Agreement by an act of God or any other
occurrence beyond its reasonable control, then performance shall be excused for
as long as it is reasonably necessary to complete performance.
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IN WITNESS WHEREOF, Louisiana Student Financial Assistance Commission and the
Participant have each caused this Agreement to be executed by their respective
authorized officers and to take effect on the date first above written.
STUDENT LOAN FINANCE CORPORATION LOUISIANA STUDENT FINANCIAL
AND SUBSIDIARIES (US BANK TRUSTEE) ASSISTANCE COMMISSION
(Participant)
/s/ Xxx Xxxxxx /s/ Xxxx X. Xxxxx
--------------------------------------- ------------------------------------
Authorized Signature Xxxx X. Xxxxx, Executive Director
XXX XXXXXX CORPORATE TRUST OFFICER
---------------------------------------
Printed Name and Title February 19, 2002
------------------------------------
Date
XX XXX 0000 141 N MAIN AVE
---------------------------------------
Address
XXXXX XXXXX XX 00000-0000
---------------------------------------
Xxxx, Xxxxx, Xxx
000000
---------------------------------------
Federal Identification/ED Lender Code
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CONSOLIDATION LOAN PROGRAM
CERTIFICATE OF COMPREHENSIVE GUARANTEE COVERAGE
THIS CERTIFICATE is entered into as of the 30th day of January, 2002, by and
between Louisiana Student Financial Assistance Commission and Student Loan
Finance Corporation & Subsidiaries (US Bank Trustee) ("Lender") for certain
Consolidation Loans made pursuant to Part B of Title IV of the Higher Education
Act of 1965 (20 U.S.C. (S) 1071 et seq.) as amended and in effect from time to
time. This certificate shall apply to loans made on or after the date of its
execution by Lender and LASFAC. LASFAC and the Lender agree and certify as
follows:
1. As used herein, the following words will have the meanings respectively
indicated:
"Agreement" means the Agreement to Guarantee Consolidation Loans between LASFAC
and the Lender, and any amendments thereto.
"Certificate" means this Certificate of Comprehensive Guarantee Coverage issued
by LASFAC to the Lender in accordance with the Act.
2. In this Certificate, unless the context or this Certificate otherwise
requires, all definitions and other provisions of the Agreement are controlling.
This Certificate is hereby incorporated in to the Agreement and made a part
thereof.
3. If the Lender complies with the requirements of the Act, the Policies, the
Agreement, and this Certificate, LASFAC will make its Guarantee available to the
Lender to partially insure the Lender against loss of principal and interest on
Consolidation Loans originated by the Lender with respect to which Lender
requests such guarantee. Insurance will be at the maximum provided for under the
Act. The aggregate amount of such Guarantee shall at no time exceed
$50,000,000.00; provided, however, that upon receipt of a written request of the
Lender, LASFAC may increase the aggregate amount of such Guarantee.
4. The issuance by LASFAC of Guarantees for Consolidation Loans originated by
the Lender under the Consolidation Loan Program is made in reliance on the
representations of the Lender contained in this Certificate and the Agreement.
The continuance of Guarantees issued by LASFAC for Consolidation Loans is
conditioned upon continued compliance by each and every holder of such
Consolidation Loan with applicable laws and regulations, and the Policies. The
delegation of one or more functions to a servicing agency or another party does
not relieve the Lender of its responsibilities in administering Consolidation
Loans.
5. No Consolidation Loan originated by the Lender will be covered by LASFACs
Guarantee unless and until the Lender has determined, in accordance with
reasonable and prudent business practice, with respect to each Eligible Student
Loan being consolidated (i) that each such Eligible Student Loan is a legal,
valid, and binding obligation; (ii) that each such Eligible Student Loan was
originated and serviced in compliance with applicable laws and regulations; and
(iii) with respect to all Eligible Student Loans made, insured, or guaranteed
under the Act, that the insurance or guarantee on each such Eligible Student
Loan is in full force and effect. LASFAC acknowledges that Lender will rely on
statements signed by the holders of loans to be consolidated (lender
verification certificates) in determining that those loans are legal, valid and
binding obligations that were made and serviced in compliance with applicable
laws and
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regulations and, for loans made under Title IV Part B, that the insurance is in
full force and effect. Lender need not physically obtain the underlying
promissory notes with respect to the loans selected for consolidation. Lender
hereby certifies that loans selected for consolidation that Lender owns are
legal, valid, and binding obligations that were made in compliance with all
applicable laws and regulations and that the insurance on such loans is in full
force and effect.
6. The Lender will at all times be subject to the reporting requirements
identified in the Policies and the Limitation, Suspension, and Termination
procedures set out in the Policies (provided, however, that any such Limitation,
Suspension, or Termination shall not affect the Guarantee of any Consolidation
Loan originated by the Lender prior to the initiation of such Limitation,
Suspension, or Termination).
7. All claims on Consolidation Loans Guaranteed pursuant to this Certificate
or the Policies shall be processed or performed by LASFAC or its agents.
8. The Lender may offer to the Eligible Borrower and establish such
alternative repayment terms on a Consolidation Loan as will promote the
objectives of the Consolidation Loan Program; provided, however, that such
alternative repayment terms are in accordance with the Act, the Policies, and
the Agreement.
9. This Certificate shall be in effect, subject to the Act, the Agreement,
and the Policies, from the date first above written until expiration of the
authority in the Act to make or Guarantee Consolidation Loans. Termination of
the Agreement terminates this Certificate.
10. Except with respect to Consolidation Loans that have been guaranteed by
LASFAC and continue to be outstanding under this Certificate, this Certificate
may be terminated by either party with or without cause upon not less than
ninety (90) calendar days prior express written notice to the other party. Such
termination will not affect any Notes which are outstanding or duties undertaken
prior to the effective date of the termination.
IN WITNESS WHEREOF, Louisiana Student Financial Assistance Commission and the
Lender have each caused this Certificate of Comprehensive Guarantee Coverage to
be executed by their respective authorized officers and to take effect on the
date first above written.
STUDENT LOAN FINANCE CORPORATION LOUISIANA STUDENT FINANCIAL
AND SUBSIDIARIES (US BANK TRUSTEE) ASSISTANCE COMMISSION
(Lender)
/s/ Xxx Xxxxxx /s/ Xxxx X. Xxxxx
------------------------------------- ------------------------------------
Authorized Signature Xxxx X. Xxxxx, Executive Director
XXX XXXXXX CORPORATE TRUST OFFICER
-------------------------------------
Printed Name and Title
XX XXX 0000 000 X XXXX XXX
-------------------------------------
Address
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XXXXX XXXXX XX 00000-0000
-----------------------------------------
Xxxx, Xxxxx, Xxx
000000
-----------------------------------------
Federal Identification/ED Lender Code
10
CONSOLIDATION LOAN PROGRAM
AGREEMENT TO GUARANTEE CONSOLIDATED LOANS
THIS AGREEMENT is entered into as of the 30th day of January, 2002, by and
between Louisiana Student Financial Assistance Commission ("LASFAC") and Student
Loan Finance Corporation & Subsidiaries (US Bank Trustee) ("Lender"). This
agreement shall apply to loans made on or after the date of its execution by
Lender and LASFAC.
WITNESSETH
WHEREAS, LASFAC has entered into a reinsurance agreement with the U.S. Secretary
of Education pursuant to Section 428C of Title IV, Part B of the Higher
Education Act of 1965; as amended (the "Act"); and
WHEREAS, LASFAC maintains facilities for the provision of guarantee services
with respect to approved loans made to Eligible Borrowers for the consolidation
of their obligation with respect to Eligible Student Loans; and
WHEREAS, LASFAC is desirous of making its consolidation loan guarantee program
available to the Lender, subject to the terms and conditions set forth herein;
and
WHEREAS, the Lender is desirous of using its facilities in order to arrange for
the lending and borrowing of money for the purpose of enabling Eligible
Borrowers to consolidate their obligations with respect to Eligible Student
Loans through the Consolidation Loan Program of LASFAC in the manner described
in this Agreement; and
WHEREAS, the Lender has full power and authority to contract for the performance
of such guarantee services, qualifies as an "eligible lender" under the Act for
the making of Consolidation Loans and is prepared to engage in the transactions
contemplated by this Agreement;
NOW, THEREFORE, in consideration of the initial Consolidation Loan which the
Lender makes hereunder, and in further consideration of the foregoing premises
and the mutual covenants contained in this Agreement, and of other good and
valuable consideration, the receipt of which is hereby acknowledged, LASFAC and
the Lender agree as follows:
ARTICLE I DEFINITIONS
As used herein, the following words will have the meanings respectively
indicated:
"Act" means Part B of Title IV of the Higher Education Act of 1965 (20 U.S.C.
1071 et. seq.) as amended and in effect from time to time, or any successor
enactment thereto, and the effective regulations promulgated thereunder and any
binding directive issued by the U.S. Department of Education.
"Agreement" means this Agreement to Guarantee Consolidation Loans between LASFAC
and the Lender and any amendments thereto.
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"Borrower" means an Eligible Borrower who is the maker of a Note and who obtains
a Consolidation Loan from the Lender in accordance with the Act, the
Certificate, and this Agreement.
"Certificate" means the instrument of comprehensive insurance coverage issued by
LASFAC in accordance with Section 428C of the Act and executed by the Lender.
"Consolidation Loan" means a disbursement of money, contingent upon an agreement
to repay, made by the Lender pursuant to the Act, the Policies, and this
Agreement.
"Consolidation Loan Program" means the procedures and policies for implementing
and maintaining each Consolidation Loan guaranteed under the provisions of the
Act, applicable law and regulations, the Policies, and as otherwise agreed to by
and between the Lender and LASFAC in accordance with this Agreement.
"Default" means with respect to any Note, the occurrence of any-event which
shall constitute a default under the terms of the Act.
"Eligible Borrower" means an "eligible borrower" of a Consolidation Loan as
described in the Act and the Policies.
"Eligible Student Loan" means an education loan eligible for consolidation as
described in the Act, the Policies, and this Agreement.
"Federal Reinsurance" means the risk assumed by the Federal government as set
forth in the Act.
"Guarantee" means a commitment by LASFAC to pay the Lender a percentage of the
unpaid principal balance plus accrued unpaid interest of a Consolidation Loan,
in the maximum amount as provided by the Act and the Policies, upon submission
by the Lender of a valid claim and supporting documentation in accordance with
the Act, the Consolidation Loan Program, the Certificate, and the Policies.
"Limitation" means an action taken by LASFAC which restricts the Lender's
participation in the Consolidation Loan Program.
"Note" means a promissory note of a Borrower for a Consolidation Loan set forth
upon the appropriate form approved by LASFAC or the U. S. Department of
Education which note meets the criteria set forth in the Policies and the Act.
"Policies" means the policies adopted by LASFAC describing the administration of
the Consolidation Loan Program, including any subsequently issued official
written notices.
"Suspension" means the temporary ineligibility of the Lender from participation
in the Consolidation Loan Program.
"Termination" means the removal of the Lender from participation in the
Consolidation Loan Program.
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ARTICLE II PROGRAM ADMINISTRATION
A. By this Agreement LASFAC and the Lender agree to participate in the Loan
Consolidation Program as follows:
1. The Lender agrees to make Consolidation Loans or cause Consolidation Loans
to be made only to Eligible Borrowers pursuant to the terms of the Consolidation
Loan Program;
2. LASFAC agrees to provide for the Guarantee of Consolidation Loans which
have been processed in accordance with the terms of the Consolidation Loan
Program; and
B. A Consolidation Loan may be originated and Guaranteed only if the Lender
fully complies with the Policies and the terms and conditions for Consolidation
Loans as set forth in the Act, the Policies, and this Agreement.
C. The Lender agrees that, with respect to all Consolidation Loans made or
acquired under the Consolidation Loan program of LASFAC and all Notes held or
acquired by the Lender from time to time:
1. It will exercise or cause to be exercised reasonable care and diligence in
the making, servicing and collection thereof, as prescribed in this Agreement,
the Certificate, and the Policies;
2. It will originate a Consolidation Loan to an Eligible Borrower (on request
of that Borrower) only if the Eligible Borrower certifies that he or she has no
other application pending for a Consolidation Loan and (i) LASFAC has guaranteed
at least one underlying active loan of the Eligible Borrower, or it holds at
least one HEAL Loan for inclusion in a Combined Payment Plan under Section 485A
of the Act, or (ii) the Eligible Borrower certifies that he or she has been
unable to obtain a consolidation loan (or unable to obtain a consolidation loan
with income sensitive repayment terms satisfactory to him/her provided that
Lender will not assign any Consolidation Loans where the borrower requested
income sensitive repayment terms on his/her application if none of the
borrower's underlying loans were held by Lender) from the holders of the
outstanding loans of that borrower which are so selected for consolidation; and
(iii) either the borrower is a Louisiana resident or attending a Louisiana
school, or at least one loan to be consolidated is guaranteed by LASFAC.
In the event one of the underlying loans is a defaulted loan, the Lender will
insure the borrower has made satisfactory repayment arrangements with the loan
bolder before applying for the consolidation loan. For purposes of this section,
"satisfactory repayment arrangements" are at least three consecutive, on-time,
voluntary payments which at least satisfy the interest accruing on each
defaulted loan and do not result in negative amortization.
LASFAC will not guarantee a consolidation loan made jointly to a married couple.
3. It will make use of the Note and such other forms approved by LASFAC.
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4. It will cause each Consolidation Loan originated by it to bear interest on
the unpaid principal balance of such loan at an annual rate that is less than or
equal to the rate specified by the Act;
5. It will cause each Consolidation Loan originated by it to be subject to
repayment in accordance with the terms of the Certificate and the Act;
6. It will cause each Consolidation Loan originated by it to be made in an
amount which is made in a principal amount which is equal to the sum of the
unpaid principal, accrued unpaid interest, collection charges, and late charges
of all Eligible Student Loans received by the Borrower and selected for
consolidation, and which is not less than the minimum amount required for the
eligibility of the Borrower under the Act;
7. It will cause the proceeds of each Consolidation Loan originated by the
Lender to be paid by the Lender to the holder or holders of the Eligible Student
Loans received by the Borrower and selected for consolidation in order to
discharge the liability of the Borrower on such Eligible Student Loans;
8. It will offer a choice of repayment schedules, established by the Lender
in accordance with the Act, to the Borrower;
9. It will comply with all Federal and State laws and regulations, and the
Policies, applicable thereto; and
10. It will provide promptly to LASFAC such information and reports as may
from time to time be reasonably requested by LASFAC.
11. It will submit information via tape exchange in the format required by USA
Group Guarantee Services in order to assure compatibility. If the format is to
be changed, LASFAC will notify Lender of the scheduled implementation date. If
Lender fails to comply with the new tape exchange format by the implementation
date, LASFAC will decline to guarantee any new loans until Lender demonstrates
it is capable of compliance with the new tape exchange format.
D. The Lender will, pursuant to the direction of LASFAC, repay or cause the
repayment to the U.S. Department of Education of any special allowance (as
described in the Act) received by the Lender under the Act to which the Lender
is not rightfully entitled.
E. By this Agreement, LASFAC and the Lender agree that upon the filing of a
claim by the Lender, such claim shall be processed in the following manner:
1. In the event of a Default, the Lender will follow (or cause to be
followed) the procedure set forth in the Policies and the Act. LASFAC does not
Guarantee payment by the Borrower of any delinquency charges imposed for late
payments on the consolidation loan and will not pay the Lender any such
delinquency charges. Upon receipt by LASFAC from the Lender (or servicer) of a
request for claim reimbursement form together with the Note (assigned to LASFAC)
and evidence satisfactory to LASFAC that the Consolidation Loan evidenced by
such Note was originated and serviced, and collection efforts were made, in
accordance with applicable laws, regulations and with the Policies, LASFAC will
pay to the Lender the
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percentage of the amount of the unpaid balance of principal and interest due on
such Note under the terms of the Act and the Policies (other than any portion of
such interest payable by the U.S. Department of Education under the Act)
provided the Lender has complied in all material respects with the requirements
of the Consolidation Loan Program, the Certificate, this Agreement, and the
Policies. LASFAC will succeed to all the rights of the Lender under such Note.
2. Upon the filing of a valid claim, other than a Default claim, as defined in
the Act and the Policies, LASFAC will pay to the Lender the percentage of the
amount of the unpaid balance of principal and interest due on such Note under
the terms of the Act and the Policies (other than any portion of such interest
payable by the U.S. Department of Education under the Act) provided the Lender
has complied in all material respects with the requirements of the Consolidation
Loan Program, the Certificate, this Agreement, and the Policies.
F. LASFAC reserves the right, upon ninety (90) days written notice, to impose
a fee on new loans that are first guaranteed after the expiration of such
(ninety) 90 days to cover the costs of LASFACs increased or extended liability
with respect to Consolidation Loans to be guaranteed pursuant to this Agreement
and the Guarantee Certificate. Fees will be due thirty (30) days after final
disbursement of the consolidation loan to which each such fee applies.
G. Nothing contained in this Agreement will obligate the Lender to certify,
cause to certify or acquire any particular Consolidation Loan or number of
Consolidation Loans under the Consolidation Loan Program.
H. The Lender will permit the U.S. Secretary of Education, LASFAC or both to
examine during normal business hours all Loan records and files, upon reasonable
notice and at reasonable intervals, for the purpose of verifying the accuracy of
information provided by the Lender under the Act and in order to conduct an
audit and compliance review.
I. If LASFAC determines that the Lender has violated the terms of this
Agreement or the Consolidation Loan Program, LASFAC may take such action as is
necessary to protect its interests. This action may include but is not limited
to implementation of the Limitation, Suspension, or Termination procedures set
out in the Policies. (Subject to provisions of paragraph 6 of the Certificate.)
ARTICLE III REPRESENTATIONS, WARRANTIES AND COVENANTS BY THE LENDER
The Lender represents and warrants to, and covenants with LASFAC that:
A. The Lender is a duly authorized "eligible lender" under the Act in every
state in which it is originating consolidation Loans under the Act as well as
the state in which it is organized and incorporated and has authorized the
execution and delivery of this Agreement
B. The Lender is and will continue to qualify at all times during the term of
this Agreement as an "eligible lender" under the Act.
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C. The Lender will, at all times, conform its actions, policies and procedures
to the Act, this Agreement, all applicable Federal and state laws and
regulations, and the Policies.
ARTICLE IV TERMINATION
Except with respect to Loans which have been guaranteed by LASFAC and continue
to be outstanding under this Agreement, this Agreement may be terminated by
either party with or without cause upon not less than ninety (90) calendar days
written notice to the other party. Such termination will not affect any Notes
that are outstanding or duties arising prior to the effective date of the
termination.
ARTICLE V LIMITATION OF LIABILITY AND INDEMNIFICATION
A. If the Lender violates or fails to comply with any applicable law or
governmental regulations in respect of a Loan or participation in the
Consolidation Loan Program, then the Lender agrees to assume liability for, and
does hereby indemnify, protect, and keep harmless LASFAC, its successors and
assigns, from and against, any and all liabilities, losses, and claims, imposed
on, incurred by, or asserted against LASFAC relating to or arising out of such
violation or failure by the Lender to comply, regardless of whether LASFAC
purchased such Consolidation Loan from the Lender.
B. The liability of LASFAC under this Agreement shall be limited to payment of
the Guarantee under Paragraph F of Article II of this Agreement and this shall
constitute its sole liability under this Agreement. LASFAC shall not be liable
for any indirect, incidental or consequential damages (including but not limited
to lost profits, lost revenue, or failure to realize expected savings)
regardless of the form of the action and whether such damages are foreseeable.
ARTICLE VI MISCELLANEOUS
A. Assignment/Subcontract. This Agreement will inure to the benefit of and be
binding upon the parties and their respective successors and assigns; provided,
however, that Lender shall not assign any rights or obligations under the
Agreement in whole or in part without the prior express written consent of
LASFAC, which consent will not be unreasonably withheld. This provision shall
not prohibit Lender from selling guaranteed loans to another Eligible Lender.
B. Amendment Except as otherwise provided in this Agreement, this Agreement
may not be varied by oral agreement, but only by an instrument in writing
executed by both parties
C. Waiver of Rights. No failure by any party to exercise, or any delay in
exercising, and no course of dealing with respect to any right of such party or
any obligation of any other party under this Agreement will operate as a waiver
thereof, unless, and only to the extent, agreed to in writing by all parties
hereto. Any single or partial exercise by any party of its rights shall not
preclude such party from any other or further exercise of such right or the
exercise of any other right. Any single or partial waiver by any party of any
obligation of any other party under this Agreement will constitute a waiver of
such obligation only as specified in such waiver and will not constitute a
waiver of any other obligation.
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D. Cumulative Remedies. Except as otherwise provided in this Agreement, no
remedy by the terms of this Agreement conferred upon or reserved to a party is
intended to be exclusive of any other remedy, but each and every such remedy
shall be cumulative and in addition to every other remedy given under this
Agreement or existing at law or in equity or by statute on or after the date of
this Agreement including, without limitation, the right to such equitable relief
by way of injunction, mandatory or prohibitory, to prevent the breach or
threatened breach of any of the provisions of this Agreement or to enforce the
performance hereof.
E. Resolution of Disputes. In the event of any dispute or disagreement between
the parties hereto, either with respect to the interpretation of any provision
of this Agreement or with respect to performance hereunder, each of the parties
will appoint a designated officer or agent to meet for the purpose of
endeavoring to resolve such dispute or to negotiate for a modification to such
provision. No formal proceedings for the judicial resolution of such dispute may
be commenced until the designated officers or agents have reasonably discussed
the provision or performance in question and a party has concluded in good faith
that amicable resolution through continued negotiation of the matter at issue
does not appear likely. Notwithstanding the above, formal proceedings for
judicial resolution may be commenced if required to preserve a claim under the
applicable statute of limitations.
F. Severability. Any provision of this Agreement which is held to be
prohibited, unenforceable, or not authorized by any court of competent
jurisdiction will, as to such jurisdiction, be ineffective to the extent of such
prohibition, unenforceability, or non-authorization without invalidating the
remaining provisions hereof or affecting the validity, enforceability, or
legality of such provision in any other jurisdiction.
G. Governing Law; Venue; Entire Agreement. Except to the extent that this
Agreement may be governed by Federal law, this Agreement is governed by,
interpreted, construed and enforced in accordance with the laws of the State of
Louisiana, without reference to its principles of conflict of laws. A lawsuit
under this Agreement shall only be brought in a court of competent jurisdiction
located within the State of Louisiana.
This agreement constitutes the entire agreement between the parties and
supersedes any and all prior agreements, written or oral, not incorporated
herein, with respect to the subject matter of the Agreement (except that prior
loan consolidation guarantee agreements and/or certificates will remain in full
force and effect with respect to loans guaranteed under such agreements and/or
certificates). All prior writings, correspondence, memoranda, agreements,
representations, statements, warranties, covenants, negotiations, and
undertakings, express or implied, of any kind or character whatsoever with
respect to the subject matter of this Agreement are superseded hereby.
H. Notices. Any notice required or permitted by this Agreement shall be in
writing and shall be deemed to have been given if sent by first class mail,
overnight carrier, facsimile, or personal delivery, addressed (i) if to LOSFA to
the attention of Legal Counsel, at Xxxx Xxxxxx Xxx 00000, Xxxxx Xxxxx, XX
00000-0000 (ii) if to the Lender, at the address indicated in this Agreement, or
(iii) at such other address as the party to be notified has designated upon
reasonable notice. Notices made pursuant to this paragraph by facsimile,
overnight carrier, or personal delivery will be deemed to be effective upon
receipt. Notices made pursuant to this paragraph by first class
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mail will be deemed to be effective no later than the fifth business day
following the mailing so such notice.
I. No Recourse. No recourse under or upon this Agreement or any claim based
thereon or in respect thereof shall be had against any incorporater, member,
officer, employee, or trustee, as such, past, present, or future, of a party or
of any successor organizations, wither directly or through a party or any
successor organizations. This Agreement is solely an institutional obligation
and no personal liability against the state, any incorporater, member, officer,
employee, or trustee, past, present, or future of the parties shall attach
through a party or any successor corporations, because of this Agreement.
J. Execution. This Agreement will not be binding on either party until it has
been executed and delivered by both parties. This Agreement may be executed in
any number of counterparts, each of which shall be an original, but which
together constitute one and the same instrument.
K. Interpretation/Construction. In this Agreement unless the context otherwise
requires:
1. Any headings preceding the texts of the several articles and sections of
this Agreement, and any table of contents or marginal notes appending to copies
hereof, shall be solely for convenience of reference and shall not constitute a
part of this Agreement, nor shall they affect its meaning, construction or
effect.
2. In the event of any inconsistency between the terms and conditions of any
schedule attached hereto and the provisions of this Agreement, this Agreement
will prevail.
The parties agree that each party and its counsel reviewed this Agreement and
that the normal rule of construction to the effect that any ambiguities are to
be resolved against the drafting party shall not be employed in the
interpretation of this Agreement or any amendments, schedules, exhibits, or
addendums thereto.
L. Authority. The parties represent that the undersigned are duly authorized
representatives of the parties.
M. Independent parties. The parties agree that no legal relationship of any
kind exists as a result of this Agreement, other than the covenants expressly
contained herein. This Agreement shall not constitute, create, give effect to or
otherwise imply a joint venture, partnership or business organization of any
kind. The parties to this Agreement are independent parties and the personnel of
one party shall not be deemed the personnel of the other. Each party shall be
solely responsible for payment of all compensation owed to its personnel,
including payment of any taxes related to employment and workers' compensation
insurance. Nothing in this Agreement shall grant to either party any right to
make commitments of any kind or to create obligation for or on behalf of the
other without the prior written consent of the other party, except to the extend
stated herein.
N. Force Majeure. If a party is delayed from completing performance of any or
all of its obligations under this Agreement by an act of God or any other
occurrence beyond its reasonable control, then performance shall be excused for
as long as it is reasonably necessary to complete performance.
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O. Loan Transfer. LASFAC agrees that it will, at the direction of Lender, take
the necessary action to effect the transfer to another Guarantor of the
insurance of any and all consolidation loans held by Lender, in the event that
(i) such loans were transferred to LASFAC in error because they do not meet the
criteria set forth in the guarantee parameters as evidenced by a review of the
lender verification certificate, or (ii) LASFAC shall become insolvent as
evidenced by an application for or consent to the appointment of a receiver,
custodian, trustee, interim trustee or liquidator for itself or all or a
substantial part of its assets.
All administrative and procedural matters, including claims processing, related
to loans issued under this Agreement will be directed to:
Xx. Xxx Xxxxxx
LASFAC Loan Operations Division Director
P. O. Xxx 00000
Xxxxx Xxxxx, XX 00000-0000
IN WITNESS WHEREOF, Louisiana Student Financial Assistance Commission and the
Lender have each caused this Agreement to Guarantee Consolidation Loans to be
executed by their respective authorized officers and to take effect on the date
first above written.
STUDENT LOAN FINANCE CORPORATION LOUISIANA STUDENT FINANCIAL
AND SUBSIDIARIES (US BANK TRUSTEE) ASSISTANCE COMMISSION
(Lender)
/s/ Xxx Xxxxxx /s/ Xxxx X. Xxxxx
-------------------------------------- ---------------------------------------
Authorized Signature Xxxx X. Xxxxx, Executive Director
XXX XXXXXX CORPORATE TRUST OFFICER
--------------------------------------
Printed Name and Title
XX XXX 0000 141 N MAIN AVE
--------------------------------------
Address
XXXXX XXXXX XX 00000-0000
--------------------------------------
Xxxx, Xxxxx, Xxx
000000
--------------------------------------
Federal Identification/ED Lender Code
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