EXHIBIT 10.79
EXPORTSS(R) AGREEMENT
of
JULY 1, 2000
BETWEEN
STUDENT LOAN MARKETING ASSOCIATION
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
AND
FLEET NATIONAL BANK
(solely in its capacity as trustee for the
AMS Education Loan Trust)
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and
ACADEMIC MANAGEMENT SERVICES, INC.
▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
OUR AGREEMENT This is an Agreement between the Student Loan Marketing
Association (▇▇▇▇▇▇ Mae, we, us, our), Fleet National Bank, as
Trustee for the AMS Education Loan Trust under Trust Agreement
dated February 3, 1994. "Together we" or "we both" refer to
both parties. Academic Management Services, Inc. ("AMS") joins
in the execution of this document to agree to the provisions
hereof and to authorize Fleet National Bank to enter into this
Agreement as trustee ("Trustee"). The Agreement defines how we
will provide services to originate and service your loans, and
the conditions under which we will purchase them. Terms whose
first occurrence are in italics are defined in Section 23.
--------------------------------------------------------------------------------
TABLE OF CONTENTS
PART I LOAN ORIGINATION AND LOAN SERVICING
SECTION 1 Loan Origination
SECTION 2 Delivery of Loans Not Originated by ▇▇▇▇▇▇ ▇▇▇
SECTION 3 ▇▇▇▇▇▇ Mae's Servicing Responsibilities
SECTION 4 Lender's Additional Responsibilities for Loan
Origination and Servicing
SECTION 5 Compensation to ▇▇▇▇▇▇ ▇▇▇
SECTION 6 Right of Inspection
SECTION 7 Allocation of Liabilities
SECTION 8 Relationship of Parties
PART II LOAN SALES
SECTION 9 Types of Sales
SECTION 10 Additional Obligations of the Lender
SECTION 11 Sales Conditions and Procedures
SECTION 12 Closing of Sale
SECTION 13 Post-Sale Obligations of the Lender
SECTION 14 Rejection of Loans
SECTION 15 The Lender's Repurchase Obligation
PART III GENERAL PROVISIONS
SECTION 16 Representations and Warranties of the Lender
SECTION 17 Representations and Warranties of ▇▇▇▇▇▇ Mae
SECTION 18 Payment of Expenses and Taxes
SECTION 19 Communications and Notices
SECTION 20 Legislative Changes
SECTION 21 Termination
SECTION 22 Other Provisions
SECTION 23 Definitions
SECTION 24 Trustee Provisions
SECTION 25 Termination of Prior Agreement
ATTACHMENTS
ATTACHMENT A Schedule of Fees
ATTACHMENT B Officer a Certificate
ATTACHMENT C ▇▇▇▇ of Sale
ATTACHMENT D Representations and Warranties of the Lender
with Respect to Loan
ATTACHMENT E-1 Blanket Endorsement
ATTACHMENT E-2 Power of Attorney
ATTACHMENT F Purchase Price Information
ATTACHMENT G Names for Facsimile Signature
PART I - LOAN ORIGINATION AND LOAN SERVICING
SECTION 1 LOAN ORIGINATION
We will process student loan applications and originate
student loans on your behalf according to the requirements of
the Higher Education Act of 1965 as amended (the Act) and any
related Regulations. We will continue this origination process
until termination of such obligation under Section 21. In
addition, together we agree to the following:
APPLICATIONS TO We will only be required to process completed applications
BE PROCESSED from students who attend schools on your list of approved
schools. You agree to provide this list with a signed original
of this Agreement. You can add or delete names from the list
by notifying us in writing or in another manner we specify. We
will not unreasonably withhold our agreement to add such other
schools. We will only process Loans of less than $250 if they
are Serial Loans.
PROCEDURES FOR We will review all applications sent to us on your behalf for
PROCESSING completeness and the requirements the Guarantor has specified.
APPLICATIONS We will send properly completed applications to the Guarantor
for approval. If an application is not completed properly, we
will use our best efforts to contact the applicant by
telephone or in writing to complete it properly, using our
standard procedures.
If the application is not corrected or resubmitted properly
within 90 days after the end of the loan period, we will
terminate the application on our system.
DISBURSING We will disburse Loan proceeds when an application is approved
LOANS BY CHECK by the Guarantor. We will report to you the amounts to be
OR MASTER CHECK disbursed. Funds for these Loans will be drawn from your bank
account. We will also transmit from your bank account all
insurance
-1-
premiums that are due to the Guarantor on a Loan. Refunded
insurance premiums that we receive will be promptly credited
to your bank account.
We may disburse Loans by master check to schools that indicate
to us that they desire to receive Loan disbursements by such
method. If we learn that a Guarantor requires that you enter
into agreements with it or with schools to which we will
disburse Loans by master check, we will notify you. You agree
to enter into such required agreements and to give us copies
when signed. You will be responsible for paying all fees, if
any, charged by a Guarantor in connection with disbursement of
Loan proceeds by master check. We will send the master check
to each school together with a disbursement roster containing
the information required by the Act and Guarantor, and we will
send you a copy of the portion of the disbursement roster that
lists information for your Borrowers. You acknowledge and
agree that, in accordance with the Act and Regulations, the
school will be responsible for obtaining the Borrower's
authorization for the release of Loan proceeds.
You will be responsible for ensuring that sufficient funds are
in your bank account to cover all disbursements and insurance
premiums. You also agree to maintain and reconcile this bank
account.
DISBURSING If you approve a particular school to receive disbursements by
LOANS BY EFT EFT, then if that school is eligible and approved by us to
receive funds by EFT (which approval shall not be unreasonably
withheld), we may send funds to that school by EFT in
accordance with the requirements of the Guarantor or
Disbursement Agent. If we learn that a Disbursement Agent
requires that you enter into agreements with it or with
schools to which we will disburse
-2-
Loans by EFT, we will notify you. You agree to enter into such
required agreements and to give us copies when signed. If you
learn that any of your approved schools have become ineligible
for EFT disbursements, or if any of the agreements you entered
into with any Guarantor or Disbursement Agent have been
terminated, you must notify us in writing immediately. If you
want us to stop EFT disbursements to any particular school or
to change the method of origination for any particular
school, you also must notify us in writing. We will process
such change as promptly as possible. You are responsible for
paying all fees charged by a Disbursement Agent in connection
with disbursement of Loan proceeds by EFT.
We will report to you the amounts that are to be disbursed.
You hereby grant us a limited power of attorney to initiate a
debit entry to your account in order to fund all loan
disbursements and other payments we make by EFT on your
behalf, and you agree to sign a confirming written
authorization in the form attached to this Agreement. We may
retain EFT funds as escrow agent (with the rights and
responsibilities set forth in the Act and Regulations) for up
to 3 business days before we initiate either a wire transfer
or a credit entry to the school's account. We will send a
disbursement roster to the school containing the information
required by the Act and Guarantor, and we will send you a copy
of the portion of the disbursement roster that lists
information for your Borrowers. If you or the school want us
to send the disbursement roster by overnight delivery method,
we may charge you for the actual cost of such delivery. You
acknowledge that, in accordance with the Act and Regulations,
the school will be responsible for obtaining the Borrower's
authorization for the release of Loan proceeds.
-3-
For Loans that you want to be disbursed using escrow services
offered by a Disbursement Agent, we will inform you whether we
are capable of using such Disbursement Agent's escrow services
and which of the duties and responsibilities that we would
normally perform will instead be performed by such
Disbursement Agent. You acknowledge that we may use as the
disbursement date for such Loans the date that funds were
provided (or were scheduled to be provided) to the
Disbursement Agent and that we will treat such Loans for all
purposes as having been disbursed by EFT, unless either (i)
the Guarantor or the Secretary otherwise directs or (ii) we
conclude that the Act or Regulations otherwise require. You
acknowledge that the escrow services offered by a Disbursement
Agent may alter or diminish our origination, administrative,
and servicing duties and responsibilities under this
Agreement, in which event we will have no responsibility or
liability for performing the services that are to be performed
by such Disbursement Agent. If a Guarantor notifies us that it
will be taking over any or all of the origination or
disbursement services that we would normally perform for you,
we may allow the Guarantor to perform such services, in which
case we will no longer have responsibility or liability for
such services.
USE OF You also hereby authorize us to process Loan applications that
LAUREATE(R) we receive through Laureate that designate you as the lender,
INTERNET-BASED and to originate such student loans through Laureate on your
LOAN behalf. You acknowledge that (i) we may not be able to
ORIGINATION AND originate Loans through Laureate for attendance at any
DISBURSEMENT particular school on your approved school list unless such
SERVICES school has also elected and agreed to participate with us both
in the Laureate loan origination and disbursement process, and
(ii)
-4-
if a school has elected to participate with us both in the
Laureate loan origination and disbursement process,
originations for attendance at that school will be made
through Laureate. We will continue to originate Loan
applications that we receive through Laureate until the
earlier of (i) the date we stop offering Laureate origination
services to schools and lenders, (ii) the date Part I of the
Agreement is terminated, or (iii) a date that is 60 days after
we receive written notice from you directing us to stop
originating through Laureate (either in whole or with respect
to a particular school). Any such termination shall only be
applicable with respect to loans that we have not yet begun to
process through Laureate as of the effective date of such
termination. You acknowledge that all features and functions
of Laureate are the property of ▇▇▇▇▇▇ ▇▇▇ and/or its
affiliates, and you waive any claim of ownership with respect
thereto. You agree to take appropriate security measures to
protect the security of passwords, to monitor your staff,
including but not limited to those persons designated as the
primary and secondary contacts, for unauthorized use of the
Laureate functions, and to restrict passwords and access to
Laureate to the appropriate staff. You agree that use of
Laureate shall be limited to authorized employees and that in
no event shall you take action to permit a third party to use
Laureate.
LAUREATE INCLUDES FUNCTIONS AND INFORMATION THAT ARE SUBJECT
TO CHANGE WITHOUT NOTICE. IF ANY SUCH CHANGE WILL PREVENT THE
DISBURSEMENT OF LENDER'S LOAN THROUGH LAUREATE, ▇▇▇▇▇▇ MAE
WILL PROMPTLY NOTIFY YOU. ▇▇▇▇▇▇ ▇▇▇ WANTS THE FUNCTIONS AND
INFORMATION TO BE AS UP-TO-DATE AND ACCURATE AS POSSIBLE, BUT
WE CANNOT GUARANTEE, AND WE EXPRESSLY DO NOT WARRANT, THAT THE
INFORMATION YOU MAY OBTAIN FROM OUR
-5-
INTERNET SITE IS ERROR-FREE OR THAT YOUR ACCESS TO OUR
INTERNET SITE WILL BE UNINTERRUPTED, OR THAT MATERIAL
ACCESSIBLE FROM THIS SITE IS FREE OF VIRUSES.
ADVANCES We may advance funds on your behalf if sufficient funds are
not in your bank account on the day we are scheduled to draw
from your account. You agree that such advances will benefit
your student loan program, and you agree to repay the entire
amount of such advances, together with a finance charge that
we may impose at the Prime Rate, when we request repayment,
provided such request is made promptly.
LOAN If a Loan is cancelled after a check has been issued, we will
CANCELLATION promptly notify you to void the check. If we determine that a
AND LOST CHECKS check has been lost we will issue a new check and notify you
to void the lost check. For Loans disbursed by master check or
EFT, we will use our best efforts to obtain the return of the
disbursed funds for each Cancelled Loan that we know of so
that we can process a cancellation. We will promptly return to
you any funds relating to Cancelled Loans that are returned by
the school to us, as well as any other funds pertaining to
Loan disbursements that the school returns to us. If Loan
funds are returned by the school or by a Guarantor directly to
you, or if you learn that the Loan should be cancelled, you
must notify us so that we may process a cancellation.
SERVICES OF You acknowledge that we may subcontract with our affiliate,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ Mae Servicing Corporation, to perform some or all of
AFFILIATE the origination and/or servicing activities that we are to
perform under this Agreement. Notwithstanding any such
subcontracting, ▇▇▇▇▇▇ ▇▇▇ will remain liable to you, to the
extent set forth in this Agreement, for all such origination
and/or servicing activities
-6-
that are performed by ▇▇▇▇▇▇ Mae Servicing Corporation. To the
extent ▇▇▇▇▇▇ ▇▇▇ Servicing Corporation performs any such
origination and/or servicing activities, it will have the same
authority granted to us in, and will perform such activities
in compliance with the standards set forth in, this Agreement.
You also agree that all liability limitations set forth in
this Agreement shall apply equally to ▇▇▇▇▇▇ Mae Servicing
Corporation as well as to ▇▇▇▇▇▇ ▇▇▇.
EFFECT OF When our origination obligations are terminated under Section
TERMINATION 21, we will no longer have an obligation to process additional
applications and disburse Loans, but we will continue to
process applications in our possession at that time. If this
Agreement is terminated because of an Insolvency Event, we may
cease processing applications and disbursing all Loans
immediately. See Section 21 for additional effects of
termination.
SECTION 2 DELIVERY OF LOANS NOT ORIGINATED BY ▇▇▇▇▇▇ MAE
At any time during the Commitment Period, you may request that
we service Eligible Loans that you own but that we did not
originate. We will not be obligated to service these
additional Loans if the sum of the following exceeds the
Commitment Amount:
Principal Balance of the Loans already originated by ▇▇▇▇▇▇
Mae;
PLUS Principal Balance of Loans that have not been originated by
▇▇▇▇▇▇ ▇▇▇ for which you have requested servicing;
PLUS Principal Balance of Loans reasonably expected to be
originated by ▇▇▇▇▇▇ Mae.
STEP 1 You will notify us that you wish us to service your additional
Loans and will provide us with
-7-
a summary of these Loans including the Loan program type(s),
the approximate number of both Borrowers and Loans, and the
approximate total Principal Balance of the Loans.
STEP 2 We will consult with you to schedule a mutually agreeable
delivery date on which the documentation for the additional
Loans should be delivered to us and by what delivery method.
STEP 2 To the extent Loan documentation is provided to us, we will
examine the Loan documentation and work with you to correct
any problems we discover that prevent a Loan from being an
Eligible Loan. You agree to notify us of any such problems of
which you are aware.
STEP 4 We will notify you of any Loans that have problems that cannot
be resolved to our reasonable satisfaction and may, at our
discretion, return these Loans to you.
SECTION 3 ▇▇▇▇▇▇ MAE'S SERVICING RESPONSIBILITIES
We will service all of the Loans we originated for you and
those additional Loans we did not originate but accepted for
servicing. We will continue servicing your Loans until each
Loan is either purchased or rejected for purchase under Part
II of this Agreement even after the end of the Commitment
Period.
COMPLIANCE We will service all Loans in accordance with the Act and
Regulations.
INQUIRIES AND We will respond promptly to any inquiries from the Borrower,
REPORTS the Guarantor, the Secretary, or the Borrower's school
regarding Loans we are servicing for you. We will also file,
or prepare for you to file, all reports, claims, and billing
statements for those Loans required by the Guarantor or the
Secretary. We will send you copies of these reports,
-8-
claims and billing statements at your request. However, you
will be responsible for preparing and paying the cost of the
annual lender audit report required by the Secretary.
We will also provide you with our standard reports for lenders
generated by our system. If you request a non-standard
report, we will estimate our actual cost to provide such
report, and only if you agree in advance to pay such cost,
will we provide such report.
LOAN PAYMENTS We will process all Loan payments from the Borrowers,
Guarantor, and Secretary that we receive. We will deposit
these payments and transfer funds to your bank account monthly
by an automated clearing house transfer.
FACSIMILE You authorize ▇▇▇▇▇▇ Mae to affix the facsimile signatures of
SIGNATURES the persons named in Attachment G to this Agreement on your
checks used by ▇▇▇▇▇▇ ▇▇▇ to originate Loans on your behalf.
You will honor any check bearing such a facsimile signature
that matches the signature of such person(s) on file with you.
SECTION 4 LENDER'S ADDITIONAL RESPONSIBILITIES FOR LOAN ORIGINATION
AND SERVICING
APPLICATION You agree to prepare and distribute application packages in a
PACKAGES form reasonably acceptable to us that comply with the Act and
the Regulations.
DISBURSEMENT You agree to notify us if any checks drawn on the disbursement
CHECKS bank account remain outstanding more than 90 days, and to stop
payment on any checks we identify for cancellation.
FORWARDING If you receive any communications or payments on a Loan that
COMMUNICATIONS we are servicing for you, you agree to forward the
AND PAYMENTS communication or the payment to us within 2 business days.
-9-
POWER OF By signing this Agreement, you ▇▇▇▇▇ ▇▇▇▇▇▇ Mae all reasonably
ATTORNEY necessary authority to act as your agent and attorney-in-fact
for originating or servicing Loans that we are servicing for
you. ▇▇▇▇▇▇ Mae's ▇▇▇▇▇▇ under this provision do not include
the right to waive strict compliance with the terms of the
Loan by the Borrower. You agree to execute a specific
power-of-attorney if required by the Guarantor or the
Secretary.
INQUIRIES You agree to cooperate with us, as necessary, to respond
promptly to inquiries concerning Loans.
GUARANTOR You agree to furnish us with copies of all agreements between
AGREEMENTS you and the Guarantor that affect the Loans that we originate
or service for you.
SECTION 5 COMPENSATION TO ▇▇▇▇▇▇ MAE
BASIC FEES Upon receipt of a monthly itemized ▇▇▇▇ from us, you agree to
pay us the fees listed in Attachment A until the end of the
Commitment Period.
FEES AFTER THE After the end of the Commitment Period, you will remit to
COMMITMENT ▇▇▇▇▇▇ Mae, on a monthly basis, origination and servicing fees
PERIOD which will be at a rate equal to the fees charged immediately
prior to the end of the Commitment Period, increased by 10%.
We also retain the right to increase such fees on each
anniversary of the expiration of the Commitment Period by 10%
of the then-applicable fees.
LINKAGE FEES We will advise you prior to using any electronic linkage with
a Guarantor for which a fee is charged. If you elect to use
this linkage, you will reimburse us for any fees we incur for
use of that linkage on your behalf.
-10-
LATE FEE If any ▇▇▇▇ is not paid within 30 days of its date, you agree
to pay a late fee of 1.5% for each month or part of a month
you are late with your payment.
SECTION 6 RIGHT OF INSPECTION
You or your agent, or any governmental agency having authority
over your business, may examine or audit our books and records
for origination and servicing of your Loans. You agree to give
us at least 10 business days' notice of such examination or
audit if possible, to schedule it during normal business hours
if possible, and to reimburse us for any reasonable costs we
incur for these activities.
If such agency provides you with fewer than 10 business days'
notice, then we will still allow you to examine or audit such
books and records provided we are given no fewer than 5
business days' notice (or fewer if under court order or
required for you to comply with the Act). You recognize that
we may not be able to assign personnel to, and otherwise
prepare for, such an examination or audit on fewer than 5
business days' notice.
SECTION 7 ALLOCATION OF LIABILITIES
STANDARD OF We both agree to perform our obligations in Part I of this
CONDUCT Agreement without negligence.
LIMITS ON A Loan is still an Eligible Loan and shall be purchased by us
▇▇▇▇▇▇ MAE'S hereunder regardless of whether the Commitment Period has
LIABILITY expired, this Agreement has been terminated, the Commitment
Amount has or would exceeded, or any other provision of this
Agreement that might otherwise bar that purchase, if it fails
to meet the criteria for an Eligible Loan solely because of an
act or omission by ▇▇▇▇▇▇ ▇▇▇ in originating or servicing the
Loan.
-11-
In addition to buying each such Loan, the maximum money
damages we will pay to you due to any breach of Part I or Part
II of this Agreement will be 0.5% of the total Principal
Balance of all Loans serviced under this Agreement as of the
date of the breach.
In no event will we have liability to you for any of the
following:
o damages arising from violations of state law;
o indirect, consequential or exemplary damages (except
that, subject to any other limitations below, we will
be liable for violations of requirements of a
Guarantor, but if those requirements are expressed as
requiring compliance with state law in general or any
specific state law, we will not have liability for
violating such state law);
o losses arising from electronic data transmission
problems in connection with our actions on your
behalf;
o the Guarantor's or Disbursement Agent's failure to
perform;
o any wrongful act or omission of you, your employees
or your agents, any other person or entity or its
employees or agents, such as the failure of such
person or entity to comply with requirements of a
Guarantor or the Secretary;
o any failure of any third party to maintain an audit
trail of funds or records proving proper disbursement
or
-12-
proper crediting of the Borrower's account;
o incorrect information from schools or Borrowers; or
o any errors, breaches or delays that arise from acts
of God, equipment or similar failure or other
circumstances beyond our control.
No provision of this Agreement will alter or limit
any joint or several liability we or you may have to
the Secretary pursuant to 34 C.F.R. 682.413.
REPRESENTATIONS The parties acknowledge and agree to the following
REGARDING with respect to our marketing activities that
MARKETING generate loans for you to be sold to us (the
ACTIVITIES Marketing Activities):
1) At no time have you been or will you be
authorized to exercise dominion and control over the
Marketing Activities; and
2) We have conducted and will conduct the
Marketing Activities in full compliance with the Act
and Regulations.
SECTION 8 RELATIONSHIP OF PARTIES
We are an independent contractor acting as your agent
only for the services specifically described in this
Agreement. This Agreement is not a joint venture or
partnership between you and ▇▇▇▇▇▇ Mae.
PART II - LOAN SALES
SECTION 9 TYPES OF SALES
This Agreement covers three types of sales of
Eligible Loans: an Initial Liquidation Sale (if
provided for), optional sales, and future
-13-
required sales.
INITIAL [Intentionally Omitted]
LIQUIDATION
SALE
OPTIONAL SALES You may offer to sell Loans to us at any time before
Loans are required to be offered for sale under the
Future Required Sales described below. We will buy
the Eligible Loans you offer up to the Commitment
Amount. If we choose, we may buy Eligible Loans in
excess of that amount.
If you want to initiate an optional sale, you must
give us reasonable notice and supply us with any
information we reasonably request about the Loans.
Together, you and ▇▇▇▇▇▇ ▇▇▇ will make every effort
to close an optional sale promptly.
FUTURE REQUIRED In addition to any Loans we buy from you in the
SALES Initial Liquidation Sale, during the Commitment
Period, you agree to sell to us on the following
schedule all Eligible Loans that we originated or
serviced for you, except for your LOMSA Loans:
LOAN TYPE SELECTION CRITERIA SALE DATE
FOR NEXT SALE DATE FREQUENCY*
▇▇▇▇▇▇▇▇ Loans All within 90-120 Monthly
days of full
disbursement
Deferred All within 60 Monthly
PLUS/SLS Loans days of full
disbursement
Non-Deferred All within 60 Monthly
PLUS/SLS Loans days of full
disbursement
Retroactive All Monthly
Separation Loan
(all Loan Types)
*The sale date will be specified by mutually agreed upon by ▇▇▇▇▇▇ ▇▇▇ and AMS.
-14-
You also agree to offer to us on this sales schedule,
even after the Commitment Period has ended, (i) any
Eligible Loans that we originated or serviced for
you, except for your LOMSA Loans, and (ii) all
Serial Loans. We agree to buy the Eligible Loans you
offer up to the Commitment Amount. If we choose, we
may buy these Eligible Loans in excess of that
amount. If we are not obligated to purchase the
Eligible Loans, we will advise you of that fact as
promptly as possible. We agree to buy each Eligible
Loan you offer (including, without limitation, Serial
Loans that are Eligible Loans), as well as any Loan
that fails to meet the criteria for an Eligible Loan
set forth in Section 23 solely because of an act or
omission by ▇▇▇▇▇▇ Mae.
SIMULTANEOUS Without regard to the sales schedule, you agree to
SALES OF offer us all Unsubsidized ▇▇▇▇▇▇▇▇ Loans and
ASSOCIATED subsidized ▇▇▇▇▇▇▇▇ Loans of the same Borrower made
▇▇▇▇▇▇▇▇ LOANS on the same loan application. This shall be true
whenever either of them is offered under the Initial
Liquidation Sale, the optional sales, or the future
required sales described above.
PROCEDURES FOR At least fifteen business days before the next
REQUIRED LOAN scheduled sale date, we will send you a list of Loans
SALES that we are servicing on your behalf that are to be
included in the next scheduled sale. Unless you have
told us otherwise in writing within 10 business days
of receiving our list, you will have authorized the
sale of those Loans. We both will use our best
efforts to close each Loan sale promptly.
-15-
SALES OF LOANS You agree to provide us with information we
NOT SERVICED BY reasonably request concerning all Loans you own that
▇▇▇▇▇▇ MAE are not being serviced by us, and you agree to
provide this information on a schedule we both
establish. In addition, you agree to notify us within
60 days of any Loans you acquire during the term of
this Agreement.
MASTER If any Loans that are to be sold under this Agreement
PROMISSORY NOTE were made under a Master Promissory Note, you will
PROVISIONS indicate on the ▇▇▇▇ of Sale whether or not the sale
of such Loans includes or excludes an assignment of
your right to offer future Loans under such Master
Promissory Note. If you reserve to yourself the right
to offer future Loans, such right is not assignable
by you except to (i) the surviving entity following a
merger or acquisition of Seller or (ii) the purchaser
of any such future loans (but we do not waive any
obligation of the Seller to sell us Loans under the
Agreement). Unless we otherwise agree in writing,
you will deliver to us the original or a certified
copy of the Master Promissory Note at the time of
sale in accordance with the provisions of this
Agreement.
SECTION 10 ADDITIONAL OBLIGATIONS OF THE LENDER
OFFICER'S When you sign and submit this Agreement, you agree to
CERTIFICATE AND include an officer's certificate in the form we have
OPINION OF provided in Attachment B. If we request it, you also
COUNSEL agree to provide an opinion of counsel covering any
matters we may reasonably designate.
SERIAL LOANS You agree to use your standard lending criteria in
deciding whether to make Serial Loans, and you agree
to sell them to ▇▇▇▇▇▇ Mae on the terms (including
sales schedule and Purchase Price) set forth in this
Agreement.
-16-
This requirement will continue to apply after the
Commitment Period has ended.
NO MODIFICATION You agree not to modify or amend any agreements you
OF GUARANTOR have with the Guarantor that would materially affect
AGREEMENTS the characteristics of the Loans or the insurance on
the Loans in any way without our prior written
consent, which will not unreasonably be withheld. Our
consent is not necessary if the amendment or
modification is required by the Act or the
Regulations.
SALES TO THIRD During the Commitment Period, you agree not to sell
PARTIES to any third party any Eligible Loan (other than
LOMSA Loans) that we originated or serviced for you.
After the Commitment Period, you agree not to sell to
any third party any Eligible Loan that (a) we
originated or serviced for you (except for your LOMSA
Loans) or (b) is a Serial Loan, unless (i) you have
offered such Loans for sale to us on the terms set
forth in this Agreement, (ii) WE have been given a
period of 30 days to review your offer, and (iii) we
have elected not to buy such Loans. Under the
Optional Sales and Future Required Sales provisions
above, we only have the right to elect not to buy
such Eligible Loans if the Commitment Amount would be
exceeded as a result of such sale. Any requirement
you have to offer LOMSA Loans for sale to us or our
affiliate(s) is governed by the LOMSA Agreements.
SECTION 11 SALES CONDITIONS AND PROCEDURES
The following conditions and procedures must be
fulfilled or ▇▇▇▇▇▇ ▇▇▇ will have no obligation to
complete a sale:
COMPLIANCE You have fulfilled all of your obligations under this
Agreement.
-17-
ACCURACY OF All of the representations and warranties made by you
REPRESENTATIONS under Section 16 and Attachment D of this Agreement
AND WARRANTIES are true in all material respects.
DELIVERY OF With respect to Loans that were not both originated
LOANS and serviced by us on your behalf, you agree to
deliver the notes and other documentation for Loans
you offer for sale to us on a schedule and in a
manner we both reasonably establish. You agree to
bear the risk of loss for the Loans until we receive
them. We will provide you with a written receipt for
your delivery.
We will make a microfilm or computer-imaging record
of the documents we receive. You agree that this
record will be the final authority used to resolve
any dispute over questions about whether a specific
document was received by ▇▇▇▇▇▇ Mae unless you
provide contrary proof. We will provide a copy of the
record to you upon request.
SERVICING The party servicing the Loans subject to sale will
RESPONSIBILITY continue to do so until the Cutoff Date. The party
servicing the Loans subject to sale will provide us
with all reasonably necessary Account information on
these Loans as of the Cutoff Date in the form and on
the schedule we reasonably establish. You agree to
ensure that any third party servicer will comply with
these requirements.
▇▇▇▇ OF SALE You will deliver 2 signed copies of a ▇▇▇▇ of Sale in
the form of Attachment C for each portfolio of Loans
prior to the date of sale. This ▇▇▇▇ of Sale will
include a list of the Loans we have agreed to buy.
The list will have been prepared by the party
servicing the Loans. We will complete our sections of
the ▇▇▇▇ of Sale and sign it as of the date of sale.
-18-
ENDORSEMENT You agree to assign your entire interest in the Loans
OF LOANS covered by the ▇▇▇▇ of Sale to ▇▇▇▇▇▇ Mae. This
assignment will typically take one of these two
forms:
(1) a blanket endorsement in the form of
Attachment E-1; or
(2) a power of attorney granted to ▇▇▇▇▇▇ ▇▇▇ in
the form of Attachment E-2.
If required by the Guarantor or the Secretary, an
authorized officer of your company may have to
endorse each note.
UPDATED OFFICER'S You agree to supply a new officer's certificate
CERTIFICATE AND (Attachment B) or a new opinion of counsel covering
OPINION OF COUNSEL matters we designate upon our reasonable request.
SECTION 12 CLOSING OF SALE
CONSUMMATION OF For each Loan sale, the sale and purchase of Loans
SALE will be effective as of the date of the ▇▇▇▇ of Sale
after we both have signed the ▇▇▇▇ of Sale and we
have paid you the Purchase Price for the Loans.
SETTLEMENT OF We will follow these steps to pay you the Purchase
PURCHASE PRICE Price for the Loans:
STEP 1 We will initially calculate the Purchase Price based
on the total Principal Balance on the ▇▇▇▇ of Sale
plus the interest accrued on that Principal Balance.
We will subtract any amounts you owe us, and We will
pay you the Purchase Price net of such amounts.
STEP 2 After we convert all of the Loans to our servicing
system, we will recalculate the Purchase Price based
on the total Principal Balance and accrued interest
actually converted. If necessary, you will pay us or
-19-
we will pay you so that the total amount you finally
receive is equal to the recalculated Purchase Price.
In some cases, this adjustment may occur after the
sale has closed.
All payments due from either party will be made by
wire transfer of immediately available funds to the
appropriate party.
SECTION 13 POST-SALE OBLIGATIONS OF THE LENDER
After the sale of Loans, you will be responsible for
the following:
BORROWER You agree to cooperate with us and take any steps
NOTIFICATION necessary to ensure that the Borrower is properly
notified of the sale of his or her Loan as required
by the Act and Regulations.
FORWARDING If you receive any communications or payments with
COMMUNICATIONS respect to a Loan you have sold to us, you agree to
AND PAYMENTS forward the communication or payment to us within 5
business days; except that you agree to forward
communications related to the bankruptcy of a
borrower within 2 business days.
ASSISTANCE IN You agree to provide any assistance to us we
RESOLVING reasonably request to resolve any questions or
ACCOUNT ISSUES issues raised by the Borrower, the Guarantor or the
Secretary concerning any Loans we have purchased
from you.
SECTION 14 REJECTION OF LOANS
GROUNDS FOR We may refuse to buy a Loan under any one of three
REJECTIONS conditions:
(1) the Loan does not meet the criteria for
being an Eligible Loan or is a Cancelled
Loan;
-20-
(2) a representation or warranty you have made
with respect to a Loan is untrue in any
material respect; or
(3) you are in material breach of any part of
this Agreement.
A Loan is still an Eligible Loan if it fails to meet
eligibility criteria because of an act or omission by
▇▇▇▇▇▇ ▇▇▇ in originating or servicing the Loan for
which ▇▇▇▇▇▇ Mae is liable under Section 7.
PROCEDURES FOR Our only responsibility with respect to rejected
RETURN OF Loans is to return them to you. We will return them
REJECTED LOANS following these steps:
STEP 1 we will package the Loan documents;
STEP 2 will re-endorse the note back to you, if necessary;
and
STEP 3 we will return the note and all related documents
that we received from you by registered mail or
overnight delivery service.
We will not be liable to you for any losses you incur
on rejected Loans except for losses arising from our
negligent or willful misconduct in the handling or
safekeeping of the Loans.
SECTION 15 THE LENDER'S REPURCHASE OBLIGATION
GROUNDS FOR You agree to repurchase (or cause another eligible
REPURCHASE lender to purchase) (i) Loans that are not Eligible
Loans in a material respect as of the date of sale
even if we discover that fact after the sale date,
and (ii) Loans that are Cancelled Loans at the time
of sale or become Cancelled Loans after sale to us.
Additionally, you will not be required to repurchase
a Loan if it is not eligible because of an act or
omission that we made
-21-
while originating or servicing the Loan for which
▇▇▇▇▇▇ ▇▇▇ is liable under Section 7 (in which case
such Loan will not be subject to repurchase under
this Section)
While there may be other events that require you to
repurchase a Loan, you agree to repurchase the
affected Loans within 30 days following notice from
us if one of the following events occurs as a result
of any act, omission, or circumstance existing before
we own the Loans (unless the event arises solely from
an act or omission we made in originating or
servicing the Loan for which ▇▇▇▇▇▇ Mae is liable
under Section 7), or as a result of any action or
omission by you after the sale:
o a claim for all or part of a guaranty
payment is rejected by the Guarantor or the
Secretary;
o under the Act or regulations, a claim may
not be filed on the Loan;
o the information you provided at the time of
sale concerning the Borrower's enrollment
status or separation date was materially
inaccurate or inconsistent with the
Guarantor's records;
o the Borrower refuses to pay the Loan by
claiming a legal defense (other than
infancy) and the preponderance of evidence
indicates that the Loan is legally not
enforceable; or
o any representation or warranty with respect
to the Loan is materially untrue.
The occurrence of such an event is conclusive proof
of your repurchase obligation.
-22-
If a claim is rejected by the Guarantor or the
Secretary under clause (i) of the preceding paragraph
and we performed the origination and servicing of
such Loan, we will attempt to cure or otherwise
resolve the issue with the Guarantor on the affected
Loans (and you agree to cooperate with and assist us
in undertaking such activities) for a period not to
exceed six months. We will undertake the same such
activities that we would undertake for other Loans
that we hold. If at the end of such six-month period
we are unsuccessful in curing or resolving the issue
with respect to a Loan, then we may request in
writing that you cure or repurchase such Loan, and,
in that event, you will either cure such defect or
repurchase such Loan within 30 days following our
request.
If the defect solely affects the accrued interest,
accrued interest benefits, or accrued Special
Allowance on a Loan (without affecting the ability of
▇▇▇▇▇▇ ▇▇▇ to recover or ▇▇▇▇ for any of such amounts
that may not yet be due and payable, but that may
become due in the future), then you may pay us the
amount of such accrued interest, accrued interest
benefits, or accrued Special Allowance in lieu of
repurchasing such Loan.
If the Lender does not have sufficient assets in the
Trust Estate to pay such amounts or to repurchase
such Loans or otherwise fails to do so, then AMS
shall pay such amounts or cause another eligible
lender to repurchase such Loans on its behalf, on the
terms and within the time frames set forth in this
Section 15.
Notwithstanding the foregoing, we waive our right to
require you to repurchase any particular Loan or
group of Loans on account of a defect that was known
at the time of purchase if we specifically agreed in
writing at the time of purchase to waive this
recourse.
-23-
REPURCHASE You agree to repurchase Loans and pay us an amount
PRICE that is calculated as follows on the date of
repurchase:
Repurchase Principal Balance that we used in calculating the
Price = Purchase Price that we paid for such Loans, times the
original Purchase Price percentage for such Loans
Minus any payments of principal that we received on such
Loans
Plus accrued interest owed by Borrowers on specific Loans
as of the date of repurchase (including interest that
was capitalized after we bought such Loans)
Plus amounts we must pay the Secretary on the Loan or as a
result of a claim filing with respect to such Loan
Plus reasonable expenses we incurred as a direct result of
the repurchase
Plus any Special Allowances or interest benefits we would
have received from the Secretary had any specific
Loan been an Eligible Loan throughout the period we
owned it.
Payment of the repurchase price to us does not limit
any other remedy we may have or liability you may
have under our Agreement. You expressly acknowledge
that, except as set forth in the following sentence,
you will remain liable for all damages available
under law for any breach of this Agreement and any
breach of any representation or warranty made herein
or upon any sale of Loans under this Agreement,
whether or not such breach is material or
non-material, whether or not such a repurchase is
required under this Section as a result of such
breach, and whether or not we
-24-
have the right to terminate this Agreement under
Section 21 as a result of such breach.
Notwithstanding the immediately preceding sentence,
except for (i) any liability arising out of a breach
of your obligation to sell us Loans (or to repurchase
Loans) in accordance with the terms of this
Agreement, and (ii) any liability arising out of any
third-party claims asserted against us or you, your
liability hereunder shall be limited to 0.5% of the
total Principal Balance of all Loans serviced under
this Agreement as of the date of the breach.
Additionally, in no event will you have liability to
us (other than (i) your obligation to repurchase the
Loan for the repurchase price set forth above, (ii)
any liability for third-party claims as aforesaid,
and (iii) your obligation to reimburse us for any
attorneys' fees that are recoverable as direct
damages) for damages arising from any of the
following:
o indirect, consequential or exemplary
damages; or
o any errors, breaches, or delays that arise
from acts of God, equipment or similar
failure, or other circumstances beyond our
control.
We will not be liable to you for any losses you incur
on repurchased Loans except for losses arising from
our gross negligence or willful misconduct in the
handling or safekeeping of the Loans.
▇▇▇▇▇▇ ▇▇▇ In connection with any repurchase of a Loan under
REPRESENTATIONS this Section 15, ▇▇▇▇▇▇ Mae will make the following
WITH RESPECT TO representations and warranties with respect to the
REPURCHASED Loans that are to be repurchased (unless the reason
LOANS that a representation or warranty cannot be made is
-25-
the result of any act or omission of AMS, the Lender,
or any third party):
o ▇▇▇▇▇▇ ▇▇▇ is the sole owner and holder of
such Loan, free and clear of any and all
encumbrances, liens, pledges, or security
interests of any kind;
o ▇▇▇▇▇▇ Mae has the full right and authority
to sell, assign, and transfer such Loan; and
o ▇▇▇▇▇▇ ▇▇▇ has not entered into any
agreement with the Borrower or any other
party that would have the effect of reducing
the Borrower's obligation to repay the full
principal amount due on the Loan, except as
a part of any repayment option or repayment
interest reduction that is generally made
available by ▇▇▇▇▇▇ Mae to borrowers of
loans that ▇▇▇▇▇▇ ▇▇▇ services.
POST-SALE If we learn that the Principal Balance of any Loan
RECONCILIATION that we purchased from you differed from the
WHEN PRINCIPAL Principal Balance that we used to calculate the
BALANCE IS Purchase Price (even if we learn of such fact after
INCORRECT the sale), then we agree to pay you, or you agree to
repay us, as appropriate, a sum equal to the amount
by which such Principal Balance differed from the
Principal Balance on which we calculated the Purchase
Price, multiplied by the original Purchase Price
percentage for such Loan. If you owe funds to us and
the Borrower or the school already repaid the amount
of the deficiency in the Principal Balance, then we
will apply such repayment as a credit against the
amount that you owe us. For Cancelled Loans, even if
we have been repaid the full Principal Balance, you
still must pay us the full premium that we paid you
for such Loan.
-26-
PART III - GENERAL PROVISIONS
SECTION 16 REPRESENTATIONS MID WARRANTIES OF THE LENDER
REPRESENTATIONS By signing this Agreement and with respect to each
MADE BY THE Loan sold to or serviced by us, Trustee represents
LENDER and warrants that the following statements are true:
You were created and exist under all applicable laws
and are an eligible lender or other qualified holder
of student loans under the Act and Regulations.
You have taken all legal and corporate action to
permit you to enter into and perform all of the
obligations in this Agreement including the sale of
Loans to ▇▇▇▇▇▇ ▇▇▇ and the repurchase of Loans.
Neither the execution of this Agreement nor your
performance of this Agreement will violate any
provision of law or any contract by which you are
bound.
You do not discriminate on the basis of race, sex,
color, creed or national origin. Further, you do not
require the Borrower to maintain a bank account or
other business relationship with you to qualify for
the Loan, except that you may require an account or
other business relationship if you are a credit
union, savings and loan association, mutual savings
bank, institution of higher education or a depository
institution with less than $75 million in deposits.
All computer files and information in any form
(including without limitation magnetic tapes,
computer disks, printed reports, and electronic mail
files or messages) that are sent to us by you or your
agent(s) will accurately record and/or process dates
from at least 1960 through 2059. You will promptly
inform us in writing (in such detail as we reasonably
request) of the methodology used to
-27-
assure that such materials accurately record and/or
process such dates (and you agree that such
methodology must be reasonably acceptable to us).
AMS also represents and warrants that the following
statements are true:
AMS was created and exists under all applicable laws
and has taken all legal and corporate action to
permit it to enter into and perform all of its
obligations in this Agreement.
Neither the execution of this Agreement nor its
performance of this Agreement will violate any
provision of law or any contract by which AMS is
bound.
REPRESENTATIONS You agree to make each of the representations and
WITH RESPECT TO warranties in Attachment D for each Loan sold to
THE LOANS ▇▇▇▇▇▇ Mae as of the date of the ▇▇▇▇ of Sale.
SECTION 17 REPRESENTATIONS AND WARRANTIES OF ▇▇▇▇▇▇ MAE
We represent and warrant that each of the following
is true:
▇▇▇▇▇▇ ▇▇▇ is a corporation duly created and validly
existing under the laws of the United States of
America.
We have taken all legal and corporate action
necessary to permit us to enter into and perform all
of our obligations in this Agreement.
Neither the execution of this Agreement nor our
performance of this Agreement will violate any
provision of law or any contract by which we are
bound.
-28-
Year 2000 remediation has been completed on all of
the systems used to perform ▇▇▇▇▇▇ Mae's
responsibilities under this Agreement, as a whole and
by their components; these systems have been
installed into production; and comprehensive
functional and integration testing is being conducted
on these systems. Upon completion of such testing,
these systems will be "Year 2000 Ready," which means
that the systems are designed to be used prior to,
during, and after the Gregorian calendar year 2000
A.D., and will operate during the term of the
Agreement without error relating to date data,
specifically including any error relating to, or the
product of, date data that represents or references
different centuries or more than one century.
Without limiting the generality of the foregoing,
"Year 2000 Ready" means that the systems:
(i) will not abnormally end or provide
invalid or incorrect results as a result of
date data, specifically including date data
that represents or references different
centuries or more than one century;
(ii) have been modified to ensure year 2000
compatibility, including, but not limited
to, date data century recognition, and
calculations that accommodate same century
and multi-century formulas and date values;
(iii) will manage and manipulate data
involving dates, including single century
formulas and multi-century formulas, and
will not cause an abnormally ending scenario
within the application or generate incorrect
values or invalid results involving such
dates;
(iv) will operate correctly in an integrated
environment with all of the other hardware,
software, and data with
-29-
which the system would be operated under
normal operating conditions, including, but
not limited to, application programs,
microcode, firmware, software systems,
operating systems, hardware components,
files and databases, provided that all such
other hardware, software, and data that are
not the proprietary products of ▇▇▇▇▇▇ ▇▇▇
are themselves Year 2000 Ready; and
(v) will correctly identify and process leap
years
SECTION 18 PAYMENT OF EXPENSES AND TAXES
Each of us will pay our own expenses arising from or
related to this Agreement unless the Agreement
specifies otherwise. You agree to pay any transfer or
other taxes and any filing or recordation fees you
incur that are due upon the sale of Loans.
SECTION 19 COMMUNICATIONS AND NOTICES
Each of us will send all written communications,
notices and other correspondence to the addresses on
this Agreement. Either of us can receive information
somewhere else or have it received by someone else,
by notifying the other party of the change of address
in writing. Together we agree that our communications
are validly given if sent by registered mail (deemed
received 3 days after mailing), overnight delivery
(deemed received 1 day after mailing), or
receipt-confirmed facsimile (deemed received on day
of transmission).
SECTION 20 LEGISLATIVE CHANGES
If changes in the Act, Regulations, or other law make
Loans ineligible or impose any new adverse economic
impact on us or any holder of
-30-
Loans, we may refuse to originate, service and/or
purchase such Loans under this Agreement. We have the
option to waive this right. We will endeavor to give
you at least 120 days' notice of our exercise of such
right, but the failure to give such advance notice
shall not render such notice invalid.
SECTION 21 TERMINATION
METHODS OF This Agreement can be terminated in the following
TERMINATION ways:
Together we can mutually agree in writing to
terminate all or any part of this Agreement.
Either party shall be required to give the other 60
days' written notice if the receiving party
materially breaches any of its obligations in this
Agreement. If the receiving party does not cure the
breach by the end of the 60 days, the sending party
may terminate the Agreement in whole or part.
However, if you terminate this Agreement pursuant to
this provision, you will remain obligated to sell to
us, on the terms set forth in this Agreement, all
Loans that we have originated or serviced on your
behalf.
You may terminate our services for origination and/or
servicing by giving us 60 days' written notice.
(Termination of services under Part I does not affect
the rights and obligations of either party under the
other parts of the Agreement.)
We may terminate the Agreement in whole or part
immediately if an Insolvency Event occurs.
We may terminate the Agreement in whole or in part
upon 90 days' written notice to you if the Secretary
or his authorized designee alleges in writing (either
formally or
-31-
informally) that any of the following are in
violation of the Act or Regulations: (i) our
agreement to perform origination and servicing
functions on your behalf, or (ii) our agreement to
purchase Loans from you under this Agreement.
Notwithstanding the foregoing, if the Secretary
requires that such termination occur on a date
earlier than the end of the 90-day notice period,
then we may terminate on the earlier date required by
the Secretary. If we terminate both our origination
and our servicing functions, then we will, within 30
days following the effective date of our termination,
purchase all of the Eligible Loans that we have
originated or are servicing for you under this
Agreement (in which case you agree to sell such Loans
at such time). If we terminate only our origination
services, then we may, at our option, either (1)
continue to service the Loans that we have originated
or are servicing for you until such Loans are
purchased by us under the normal sales schedule set
forth in Section 9, or (2) purchase all of the
Eligible Loans that we have originated or are
servicing for you under this Agreement within 30 days
following the effective date of our termination of
such origination services (in which case you agree to
sell such Loans at such time). All sales pursuant to
this paragraph will be subject to the remaining terms
of this Agreement.
Unless previously terminated, our obligation to
originate and accept delivery of Loans for servicing
from you will terminate on the termination date
described in the next paragraph. However, we will
continue beyond such date to originate and disburse
Loans on your behalf on the terms in this Agreement
until either you or we provide the other with 60
days' written notice of termination of such
origination services. Additionally, any Loans already
originated by us, or serviced on our
-32-
system, as of the date of termination will continue
to be serviced until they are removed from our system
by you or are sold to us or rejected by us.
Unless previously terminated, and without any notice
or action required, on June 30, 2003.
EFFECT OF Upon termination of all or any part of this contract,
TERMINATION any fees or other amounts owed under the contract (or
the part being terminated in the case of a partial
termination) will become immediately due and payable.
Following termination, those parts of this contract
which, by their terms, extend beyond the end of the
Commitment Period (including, but not limited to, the
obligation to sell and purchase certain Loans) shall
remain in full force and effect.
SECTION 22 OTHER PROVISIONS
FORM OF We both agree that the form of all documents and
DOCUMENTS AND proceedings under this Agreement must be reasonably
PROCEEDINGS satisfactory to us both and our respective legal
counsel.
SURVIVAL OF All aspects of this Agreement remain in effect during
COVENANTS the servicing and after the sale and purchase of
Loans, and any successor or assign of ▇▇▇▇▇▇ Mae
would be entitled to rely on the covenants,
agreements, representations and warranties you have
made in this Agreement. Your obligation to repurchase
Loans, your other obligations under Section 7,
Section 9, Section 10, Section 15, and Section 21
remain in effect before and after any termination of
the Agreement in whole or part.
ASSIGNMENT Neither party may assign or transfer any of its
rights or obligations under this Agreement to any
other party without the other party's written
consent; except that ▇▇▇▇▇▇ ▇▇▇ may
-33-
assign its obligations to originate, service, or
purchase Loans under this Agreement to one or more of
its affiliated or successor companies without notice
or your consent.
ENTIRE This document is the entire agreement between you and
AGREEMENT ▇▇▇▇▇▇ Mae relating to the origination and purchase
of Loans covered by this Agreement. Any previous
agreements, documents or undertakings on the matters
covered in this Agreement are invalid. This Agreement
may only be modified or amended by a written
agreement signed by you and us and, when it is, the
Agreement as amended will become the operative
Agreement.
WAIVER A written waiver is required for you or us to waive a
performance obligation of the other. The waiver of
performance of an obligation shall waive that single
performance but no future performances.
GOVERNING LAW This Agreement is governed by the laws of the
Commonwealth of
Virginia.
SECTION 23 DEFINITIONS
ACCOUNT means all Loans of one Borrower of the same Loan
type. Unsubsidized ▇▇▇▇▇▇▇▇ Loans and subsidized
▇▇▇▇▇▇▇▇ Loans are considered to be Loans of the same
type.
ACT refers to Title IV, Part B of The Higher Education
Act of 1965, as amended.
AGREEMENT refers to this ExportSS Agreement including
attachments and amendments.
▇▇▇▇ OF SALE means a ▇▇▇▇ of sale substantially in the form of
Attachment C to this Agreement.
BORROWER means the obligor on a Loan.
-34-
CANCELLATION is the percentage of Cancelled Loans made under Part
RATE I of this Agreement during any period. ▇▇▇▇▇▇ ▇▇▇
will only calculate this rate 120 days after the end
of the period.
Cancellation Rate = Number of Cancelled Loans
-------------------------------
Number of Loans First Disbursed
CANCELLED LOAN means a Loan for which either (1) the check for the
first disbursement is not presented for payment
within 120 days, or (2) the first disbursement has
been repaid in full within 120 days, or (3) the
proceeds of the first disbursement are not released
to the Borrower on or before 120 days after
disbursement.
COMMITMENT means $800,000,000, of which $480,000,000 is reserved
AMOUNT for subsidized ▇▇▇▇▇▇▇▇ Loans, $200,000,000 is
reserved for PLUS Loans and SLS Loans, and
$120,000,000 is reserved for Unsubsidized ▇▇▇▇▇▇▇▇
Loans. The Commitment Amount will be reduced by the
Principal Balance of the Loans in each sale under
this Agreement except the Initial Liquidation Sale
(if any). If your sales exceed the Commitment Amount,
▇▇▇▇▇▇ Mae agrees to discuss with you in good faith
an increase in the Commitment Amount.
COMMITMENT means the period of time between the Effective Date
PERIOD and June 30, 2003 (or such earlier date on which this
Agreement is terminated pursuant to Section 21).
CUTOFF DATE means the date of the ▇▇▇▇ of Sale for all Loans that
are not in repayment status. For Loans in repayment
status, the Cutoff Date is mutually established by
the parties.
DISBURSEMENT means the Guarantor or other entity that is to
AGENT perform some part of the disbursement process.
EFFECTIVE DATE means the date written at the top of page one of this
Agreement.
-35-
EFT means electronic funds transfer.
ELIGIBLE LOAN means a Loan that meets the criteria listed below.
Note that a loan is still an Eligible Loan if it
fails to meet these criteria solely because of an act
or omission by ▇▇▇▇▇▇ Mae.
The Loan is a fully disbursed ▇▇▇▇▇▇▇▇ Loan or PLUS
Loan. It is guaranteed by the Guarantor and is
reinsured by the Secretary on terms at least as
favorable as those in effect on the Effective Date.
The Loan bears the maximum interest rate permitted by
the Act and the interest is either:
(1) payable on a current basis by the
Secretary or the Borrower, or
(2) deferred subject to capitalization as
frequently as permitted by the Act and
Regulations.
The Loan must also meet these additional
criteria (unless specifically waived with
respect to the Initial Liquidation Sale, if
any):
o it is not more than 11 days delinquent
(principal or interest) and has a Principal
Balance of at least $250 as of the Cutoff
Date;
o it is in grace, deferment or in-school
status (or for non-deferred PLUS Loans, it
is in repayment status) as of the date of
the ▇▇▇▇ of Sale;
o unless we waive this provision or the Loan
is a non-deferred PLUS Loan, at LEAST 30
days remain until the beginning of the
repayment period;
-36-
o it is supported by all documentation, and in
a format, reasonably required by ▇▇▇▇▇▇ Mae;
o it is made to an eligible Borrower for Loans
of that type under the Act; and
o no forbearance agreement is in effect with
respect to the Loan and at least 12 months
remain until the Loan is scheduled to be
paid in full.
Finally, except to the extent interest rates are
reduced pursuant to a ▇▇▇▇▇▇ ▇▇▇ borrower benefit
program, (A) for Loans whose first disbursements
occur on or before June 30, 1998, the sum of (1) the
interest payable by the Secretary or the Borrower,
plus (2) the Special Allowance payable by the
Secretary, must be at least equal to the maximum sum
of the same items that was permitted by the Act for
Loans of the same Loan type that were first disbursed
on or before June 30, 1998, and (B) for loans whose
first disbursements occur on or after July 1, 1998,
the sum of (1) the interest payable by the Secretary
or the Borrower, plus (2) the Special Allowance
payable by the Secretary, must be at least equal to
the maximum sum of the same items that is permitted
by Sections 427A(j), 427A(k), 438(b)(2)(G),
438(b)(2)(H), and 438(b)(2)(I) of the Act (or, if
higher, the maximum sum of these items that was
permitted by the Act as in effect on the disbursement
date for a Loan of the same Loan type that was
disbursed on the disbursement date).
GUARANTOR means a state or private non-profit agency
responsible for providing the guarantee for Loans
that is mutually acceptable to the parties.
INITIAL means the sale of Loans identified in Attachment F
LIQUIDATION that you have agreed to offer to
SALE us upon signing this Agreement.
-37-
INSOLVENCY means any of the following:
EVENT
If AMS becomes financially insolvent, no matter how
the insolvency is evidenced.
If a petition is filed under Title 11 of the U.S.
Code (or any similar law) by or against AiMS.
If a court or agency with the authority appoints a
trustee, receiver, conservator or the like for AMS.
INSTITUTIONAL means the most recently published default rate
DEFAULT RATE calculated by the Department of Education for a given
educational institution.
JULY 98 RATE means a ▇▇▇▇▇▇▇▇ Loan or a PLUS Loan whose first
LOAN disbursement is made on or after July 1, 1998, and
whose interest rate is governed by (1) for ▇▇▇▇▇▇▇▇
Loans, Sections 427A(j)(1), 427A(j)(2), 427A(k)(1),
or 427A(k)(2) of the Act, or (2) for PLUS Loans,
Sections 427A(j)(3) or 427A(k)(3) of the Act.
LOAN means a student loan made under the Act (and related
documents) that is originated or serviced under this
or any prior ExportSS Agreement between us both, or
that is originated to the Borrower of a Signature
Loan that is originated under the marketing agreement
between you and First National Bank of Sioux Falls
and/or their successor agreements.
LOMSA mean, collectively, (i) that certain Loan
AGREEMENTS Subservicing Agreement dated December 17, 1999,
between EFG Technologies, Inc. and ▇▇▇▇▇▇ Mae
Servicing Corporation, and (ii) that certain Loan
Origination and Management Services Agreement dated
December 17, 1999, among Bank One, National
Association, as
-38-
Eligible Lender Trustee, ▇▇▇▇▇▇ ▇▇▇ Servicing
Corporation, as Servicer, and Educational Finance
Group, Inc., as Beneficial Owner.
LOMSA LOAN means an educational loan that is originated or
serviced by ▇▇▇▇▇▇ Mae Servicing Corporation under
the LOMSA Agreements, which loan is/was never
originated or serviced under this Agreement or any
prior ExportSS Agreement between us both.
OLD RATE LOAN means a ▇▇▇▇▇▇▇▇ Loan or a PLUS Loan whose first
disbursement is made before July 1, 1998.
PLUS LOAN means a federal Loan made under Section 428B of the
Act (or predecessor provisions) whose interest rate
is governed by Section 427A(c) of the Act, Section
427A(j)(3) of the Act, or Section 427A(k)(3) of the
Act.
PRINCIPAL means the original principal amount of a Loan, plus
BALANCE any capitalized interest that is insured by the
Guarantor, less principal payments received and
amounts that may not be insured such as late charges.
PURCHASE PRICE means, for a portfolio of Eligible Loans:
(a) For Old Rate Loans, (i) 100% of the accrued
interest that is payable by the Borrowers, plus (ii)
for ▇▇▇▇▇▇▇▇ Loans, 102.00% of the aggregate
Principal Balance of such Loans, plus (iii) only for
PLUS Loans, a percentage of the aggregate Principal
Balance of the Old Rate PLUS Loans in the portfolio
based upon the average Borrower indebtedness ("ABI")
of the combined PLUS Loan and SLS Loan portfolio of
July 98 Rate Loans and Old Rate Loans, calculated by
multiplying the appropriate percentage set forth in
the Purchase Price Information Attachment by the
aggregate Principal Balance of Old Rate PLUS Loans,
and
-39-
(b) For July 98 Rate Loans, (i) 100% of the
accrued interest that is payable by the
Borrowers, plus (ii) for ▇▇▇▇▇▇▇▇ Loans, 102.00%
of the aggregate Principal Balance of such
Loans, plus (iii) only for PLUS Loans, a
percentage of the aggregate Principal Balance of
the July 98 Rate PLUS Loans in the portfolio
based upon the ABI of the combined PLUS Loan and
SLS Loan portfolio of July 98 Rate Loans and Old
Rate Loans, calculated by multiplying the
appropriate percentage set forth in the Purchase
Price Information Attachment by the
aggregate Principal Balance of July 98 Rate
PLUS Loans.
These sums are calculated as of the date of the
▇▇▇▇ of Sale.
There are two exceptions to these calculations:
For Eligible Loans that you acquired after the
Loans were originated and for Eligible Loans
sold later than the sales schedule set forth in
this Agreement, we will pay 100% of the
Principal Balance and the accrued interest that
is payable by the Borrowers.
For Accounts being purchased in which the most
recent Loan was made to a Borrower to finance
attendance at an educational institution for
which the Institutional Default Rate equals or
exceeds 25%, we will pay 100% of the aggregate
Principal Balance of such Accounts and the
accrued interest that is payable by the
Borrowers, minus a servicing charge of $8.00 for
each Account containing such a Loan.
REGULATION means any rule, regulation, instruction or
procedure issued by the Secretary under the Act
or by the Guarantor.
-40-
RETROACTIVE refers to an Eligible Loan that is in repayment
SEPARATION LOAN status because the Borrower has left school
prior to the anticipated date. A Retroactive
Separation Loan is an Eligible Loan only if (i)
within fourteen (14) days after you receive the
notice that the Borrower is no longer a full-time
student, you notify us that you have received the
notice and that you want to sell that Loan, and (ii)
you deliver that Loan to us within thirty (30) days
after you receive the notice.
SECRETARY means the United States Secretary of Education or any
successor.
SERIAL LOAN means an additional Eligible Loan made to the same
Borrower who has a Loan of the same type already
owned by ▇▇▇▇▇▇ Mae. Unsubsidized and subsidized
▇▇▇▇▇▇▇▇ loans are considered to be the same Loan
type.
SLS LOAN means a Federal Supplemental Loan for Students made
under Section 428A of the Act (or predecessor
provisions).
SPECIAL means the amount the Secretary pays the holder of a
ALLOWANCE Loan as authorized and calculated under Section 438
of the Act.
▇▇▇▇▇▇▇▇ LOAN means:
(A) a Loan for which the interest rate is governed by
Section 427A(a), Section 427A(d), Section 427A(e),
Section 427A(f), Section 427A(g), Section 427A(j)(1),
Section 427A (i)(2), Section 427A(k)(l), or
Section 427A(k)(2) of the Act. The Loans described
in this paragraph (A) are referred to as "subsidized
▇▇▇▇▇▇▇▇ Loans."
(B) A ▇▇▇▇▇▇▇▇ Loan made under Section 428H of the
Act bearing an interest rate governed by the sections
of the Act listed in (A) immediately above. These
Loans are referred to as "Unsubsidized ▇▇▇▇▇▇▇▇
Loans."
-41-
TOTAL LOANS means the total number of Loans that ▇▇▇▇▇▇ Mae
FIRST DISBURSED originated for the Lender for which the first
disbursements were made during the applicable period.
TRUST ESTATE means the entire portfolio of student loans and all
other properties and assets held in trust by the
Trustee under the terms of the Trust Agreement dated
February 3, 1994, between Trustee and AMS.
SECTION 24 TRUSTEE PROVISIONS
We acknowledge that Fleet National Bank has entered
into this Agreement solely in its capacity as trustee
for the AMS Education Loan Trust, and not in its
individual capacity. The representations, warranties,
and covenants of the Lender herein or in connection
with sales of Loans to be made hereunder (other than
any representations, warranties, and covenants
relating to the Trustee's creation, existence,
eligible lender status, corporate action, no-cross
defaults, and nondiscrimination) are made solely at
the direction of AMS, without independent
investigation by the Trustee, and the Trustee has
undertaken only those duties required of it under its
trust agreement with AMS. Accordingly, all recourse
and remedies we may have hereunder shall be available
only against AMS and the assets of the Trust Estate,
and not against the Trustee in its individual
capacity.
SECTION 25 TERMINATION OF PRIOR AGREEMENT
By executing this Agreement, the Seller and ▇▇▇▇▇▇
Mae terminate the contract between them dated April
1, 1994, covering the sale and purchase of student
loans (the "Prior Agreement"), as of the Effective
Date. This termination does not affect the survival
of
-42-
any rights or obligations beyond termination provided
for in the Prior Agreement. Following the Effective
Date, all loan sales and purchases between the Seller
and ▇▇▇▇▇▇ ▇▇▇ will be governed by the terms of this
Agreement.
EXECUTION OF THIS AGREEMENT
By signing below, the authorized officers of ▇▇▇▇▇▇
Mae and Lender accept this Agreement as a legal
contract as of the Effective Date on page 1.
FLEET NATIONAL BANK, AS TRUSTEE FOR THE AMS
EDUCATION LOAN TRUST UNDER TRUST AGREEMENT DATED
FEBRUARY 3, 1994
SIGNATURE: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
PRINTED NAME: ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
TITLE: Vice President
---------------------------------------
STUDENT LOAN MARKETING ASSOCIATION
By: ▇▇▇▇▇▇ ▇▇▇, Inc., Authorized Agent
SIGNATURE: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
PRINTED NAME: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
TITLE: VP & Deputy General Counsel
---------------------------------------
-43-
The undersigned joins in this Agreement to agree to the provisions
hereof and to authorize Fleet National Bank to enter into this document as
trustee and to agree to the provisions of Section 15 hereof.
ACADEMIC MANAGEMENT SERVICES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Title: CFO
----------------------------
The undersigned joins in the execution of this Agreement solely to
agree to the "Services of ▇▇▇▇▇▇ Mae Affiliate" provisions of Section 1 hereof.
▇▇▇▇▇▇ ▇▇▇ SERVICING CORPORATION
BY: ▇▇▇▇▇▇ MAE, INC.,
AUTHORIZED AGENT
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Title: VP & Deputy General Counsel
----------------------------
-44-
ATTACHMENT A
SCHEDULE OF FEES
1. Origination Fee: $10.00 for each ▇▇▇▇▇▇▇▇ Loan ▇▇▇▇▇▇ ▇▇▇ originates for the
Lender and $8.50 for each PLUS and/or SLS Loan ▇▇▇▇▇▇ Mae originates for the
Lender. These fees are payable even if the Loan is cancelled. In calculating
these fees, a subsidized ▇▇▇▇▇▇▇▇ Loan and an Unsubsidized ▇▇▇▇▇▇▇▇ Loan made
under the same application will be counted as a single Loan.
2. Servicing Fee: $1.50 per ▇▇▇▇▇▇▇▇ Account per month starting on the date of
the first disbursement (or conversion to our servicing system) and $1.50 per
PLUS and/or SLS Account per month starting on the date of the first disbursement
(or conversion to our servicing system). ▇▇▇▇▇▇ Mae will charge an additional
fee of $0.00 per Account per month for any Account containing one or more
Unsubsidized ▇▇▇▇▇▇▇▇ Loans.
3. Conversion Fee: $0.00 per Account for each conversion. This fee is assessed
on any Loans not originated by ▇▇▇▇▇▇ Mae for the Lender but transferred to
▇▇▇▇▇▇ ▇▇▇ for servicing on behalf of the Lender.
4. Cancellation Fee: $15.00 per Cancelled Loan. The Cancellation Fee will only
be charged if the Cancellation Rate equals or exceeds 10 percent. If ▇▇▇▇▇▇ Mae
has not previously originated and serviced Loans for the Lender, ▇▇▇▇▇▇ ▇▇▇ will
not charge any Cancellation Fees for the first 10 months in which it is
originating Loans for the Lender. Subsidized ▇▇▇▇▇▇▇▇ Loans and Unsubsidized
▇▇▇▇▇▇▇▇ Loans made under the same application will be counted as two Loans in
calculating the Cancellation Fee.
5. Deconversion Fee: $25.00 for each Loan the Lender removes from ▇▇▇▇▇▇ Mae's
servicing system. The Deconversion Fee must be paid before the Lender may remove
the Loan from ▇▇▇▇▇▇ Mae's servicing system. Subsidized ▇▇▇▇▇▇▇▇ Loans and
Unsubsidized ▇▇▇▇▇▇▇▇ Loans made under the same application will be counted as
two Loans in calculating the Deconversion Fee.
Only one Origination and/or Conversion Fee will be charged for an Unsubsidized
▇▇▇▇▇▇▇▇ and an associated subsidized ▇▇▇▇▇▇▇▇ Loan processed under the same
application.
-1-
ATTACHMENT B
OFFICER'S CERTIFICATE
Re: ExportSS Agreement dated July 1, 2000, between Seller and ▇▇▇▇▇▇ Mae.
I, of Fleet National Bank, as Trustee (the "Seller"), hereby certify to
the Student Loan Marketing Association ("▇▇▇▇▇▇ ▇▇▇") that:
================================================================================
ONE OF THE OFFICERS LISTED IN THIS SECTION HAS SIGNED THE AGREEMENT AND
THE PERSON(S) NAMED BELOW ARE, AS OF THE DATE OF THIS CERTIFICATE, THE
REPRESENTATIVES OF THE SELLER DULY AUTHORIZED TO EXECUTE AGREEMENTS REGARDING
THE ORIGINATION, SERVICING, AND SALE OF STUDENT LOANS WITH ▇▇▇▇▇▇ MAE, HOLD THE
CORPORATE OFFICES INDICATED NEXT TO THEIR NAMES, THE SIGNATURES FOLLOWING THEIR
NAMES ARE THEIR GENUINE SIGNATURES, AND ONE OF THEM HAS DULY EXECUTED THE
AGREEMENT:
NAME TITLE SIGNATURE
---- ----- ---------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Vice President /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
================================================================================
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
(An officer who did not sign the Agreement
and is not listed in the box above)
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
Title: Assistant Vice President
---------------------------------------
Date: October 31, 2000
---------------------------------------
OFFICER'S CERTIFICATE
Re: EXPORTSS Agreement dated July 1, 2000, between Fleet National Bank, as
Trustee, and ▇▇▇▇▇▇ ▇▇▇.
I, of Academic Management Services, Inc. ("AMS"), hereby certify to the
Student Loan Marketing Association ("▇▇▇▇▇▇ Mae") that:
================================================================================
ONE OF THE OFFICERS LISTED IN THIS SECTION HAS SIGNED THE AGREEMENT AND
THE PERSON (5) NAMED BELOW ARE, AS OF THE DATE OF THIS CERTIFICATE, THE
REPRESENTATIVES OF AMS DULY AUTHORIZED TO EXECUTE AGREEMENTS REGARDING THE
ORIGINATION, SERVICING, AND SALE OF STUDENT LOANS WITH ▇▇▇▇▇▇ ▇▇▇, HOLD THE
CORPORATE OFFICES INDICATED NEXT TO THEIR NAMES, THE SIGNATURES FOLLOWING THEIR
NAMES ARE THEIR GENUINE SIGNATURES, AND ONE OF THEM HAS DULY EXECUTED THE
AGREEMENT:
NAME TITLE SIGNATURE
---- ----- ---------
================================================================================
By:
------------------------------------------
(An officer who did not sign the Agreement
and is not listed in the box above)
Name:
---------------------------------------
Title:
---------------------------------------
Date:
---------------------------------------
ATTACHMENT C
▇▇▇▇ OF SALE
Re:
ExportSS(R) Agreement dated __________, 20__ (the "Agreement")
The undersigned seller sells and assigns to the Student Loan Marketing
Association ("▇▇▇▇▇▇ ▇▇▇") and its successors and assigns all of Seller's
rights, title, and insurance interest in the portfolio of Loans described below
as being accepted for purchase by ▇▇▇▇▇▇ Mae, as listed on the attached
schedule. This sale is for value received and is in accordance with the terms
and conditions of the Agreement.
The Seller makes the representations and warranties set forth in the
agreement as of the date of this ▇▇▇▇ of Sale. The Seller authorizes ▇▇▇▇▇▇ Mae
to use a copy of this document as the only official notification to the
Guarantor of assignment of the Loans to ▇▇▇▇▇▇ ▇▇▇ on the date of purchase.
If any of the Loans were made under a Master Promissory Note, this sale
INCLUDES/EXCLUDES [STRIKE ONE] an assignment of Seller's right to offer future
loans under such Master Promissory Note. If Seller reserves to itself the right
to offer future loans, this right is not assignable by Seller except to (i) the
surviving entity following a merger or acquisition of Seller or (ii) the
purchaser of any such future loans (but ▇▇▇▇▇▇ Mae does not waive any obligation
of the Seller to sell us Loans under the Agreement). Seller warrants that if it
does not deliver the original Master Promissory Note to ▇▇▇▇▇▇ ▇▇▇ at the time
of sale, Seller will deliver it to ▇▇▇▇▇▇ Mae to the extent it is needed for
enforcement or claim-filing purposes.
Portfolio offered for sale by Seller:
Accounts ______ *Principal $___________
----------------------------------------------
Portfolio accepted for purchase by ▇▇▇▇▇▇ ▇▇▇:
Accounts ______ *Principal $___________
----------------------------------------------
-----------------------------------------
SELLER ▇▇▇▇▇▇ MAE
Student Loan Marketing Association
---------------------------------- 11600 ▇▇▇▇▇▇ ▇▇▇ Drive
---------------------------------- ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------- ATTN: Customer Service Department
By: ▇▇▇▇▇▇ Mae, Inc., Authorized
By: Agent
------------------------------
Signature of Authorized
Officer of Seller By:
-----------------------------
Signature of Authorized
NAME Signatory
AND
TITLE:
---------------------------- NAME
AND
TITLE:
---------------------------
DATE OF PURCHASE:
----------------
-----------------------------------------
--------------------------------------------------
NOTE: Boxed areas are for completion by ▇▇▇▇▇▇ ▇▇▇
--------------------------------------------------
* Based on estimated calculations, which may be adjusted upward or
downward based on final reconciliations.
ATTACHMENT D
REPRESENTATIONS AND WARRANTIES OF THE LENDER
WITH RESPECT TO LOANS
You state that the following statements are true with respect to each Loan sold
to ▇▇▇▇▇▇ Mae:
1. The Lender is the sole owner of the Loans, free and clear of any liens,
claims or encumbrances of any nature; and is free to transfer, and has
transferred, title to the Loans to ▇▇▇▇▇▇ ▇▇▇.
2. The Loans are Eligible Loans that have been originated, including
payment of all applicable origination fees, and serviced in accordance
with all applicable laws and Regulations. All information provided by
the Lender to ▇▇▇▇▇▇ Mae concerning the Loans is true.
3. The Loans are legal, valid and binding obligations of the respective
Borrowers and are subject to no defenses (except the defense of
infancy). Except for ▇▇▇▇▇▇ Mae's service-marked Borrower benefit
programs, the Lender either has already paid for, or will provide
funds to ▇▇▇▇▇▇ Mae to pay for, all rebates or other Borrower benefits
that were promised to the Borrowers.
4. Any origination or servicing activities with respect to the Loans by
any party other than ▇▇▇▇▇▇ ▇▇▇ have been done with due diligence and
in accordance with the Act and Regulations.
5. The Loans are registered with the Guarantor under the ownership number
the Lender has provided to ▇▇▇▇▇▇ Mae, the Loans are fully insured by
the Guarantor, and the Lender has transferred the insurance on the
Loans to ▇▇▇▇▇▇ ▇▇▇. All insurance premiums due the Guarantor have been
paid.
6. Any payment received by the Lender on the Loans have been allocated to
principal and interest on a simple interest basis.
7. All Loans of each Borrower subject to sale at this time are being
offered for sale as part of the same transaction.
8. The Lender has not selected the Loans on the basis of any identifying
characteristics of the Borrowers, such as educational institutions
attended, age, sex, race, creed, national origin or place of residence.
9. If a Loan was not originated by or on behalf of the Lender, the Lender
is a legitimate "holder" of the Loan and the Loan was transferred to
the Lender in full compliance with the Act and Regulations.
10. The Loans sold in the Initial Liquidation Sale conform to the
description in Attachment F to this Agreement.
11. If the sale of any Loan made under a Master Promissory Note includes an
assignment of the right to offer future loans under such Master
Promissory Note, (i) the Lender has not assigned and will not assign
such right to any other party, and (ii) the Borrower has not revoked
the Lender's right to make future loans under such Master Promissory
Note. If the Lender does not deliver the original Master Promissory
Note to ▇▇▇▇▇▇ Mae, the Lender will deliver it to ▇▇▇▇▇▇ ▇▇▇ to the
extent it is needed for enforcement or claim-filing purposes.
ATTACHMENT E-1
BLANKET ENDORSEMENT
By signing this endorsement, the undersigned endorses the attached Promissory
Note. This note is one of the Promissory Notes described in the ▇▇▇▇ of Sale
executed in favor of ▇▇▇▇▇▇ ▇▇▇. If the Promissory Note is a Master Promissory
Note, the undersigned endorses such Master Promissory Note only to the extent it
evidences particular loans that are described in such ▇▇▇▇ of Sale. Except as
stated in the previous sentence, or as provided in the
ExportSS(R) Agreement
dated _______________, 20____ between the Lender and ▇▇▇▇▇▇ ▇▇▇, this is an
unrestricted endorsement and without recourse.
This endorsement may be effected by attaching either this endorsement or a
facsimile to each of the Notes.
Lender:
--------------------------------------
By:
------------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
ATTACHMENT E-2
POWER OF ATTORNEY
___________________________________________________________________ ("Seller")
authorizes the Student Loan Marketing Association ("▇▇▇▇▇▇ Mae") or ___________
_______________________________________________ ("Servicer"), as its
attorney-in-fact, to endorse promissory notes sold under the
ExportSS(R)
Agreement between Seller and ▇▇▇▇▇▇ ▇▇▇ dated ____________, 20 __ , in the
following form:
All right, title and interest of ________________________________
("Seller") is assigned to the Student Loan Marketing Association
("▇▇▇▇▇▇ Mae") without recourse except as provided in the
ExportSS(R)
Agreement between ▇▇▇▇▇▇ ▇▇▇ and the Seller dated _________________,
20___. If the Promissory Note is a Master Promissory Note, this
endorsement is valid only to the extent it evidences particular loans
that are described in a ▇▇▇▇ of Sale from the Seller to ▇▇▇▇▇▇ ▇▇▇.
By:
------------------------------------------
On behalf of and as attorney in fact for
-------------------------------------
Seller
Further, the endorsement by ▇▇▇▇▇▇ Mae or the Servicer on behalf of and
as attorney-in-fact for the Seller shall transfer to ▇▇▇▇▇▇ ▇▇▇ all
right, title and interest of the Seller in the promissory notes
(subject to the above limitation if the notes are Master Promissory
Notes) consistent with the terms of the
ExportSS(R) Agreement dated
_____________, 20 __ .
For purposes of endorsement of these promissory notes, a facsimile of this
authorization may be used in place of the original.
Dated , 20 .
-------------- ---
Seller:
---------------------------------------
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
-----------------------------------------
ATTACHMENT F
PURCHASE PRICE INFORMATION
Part 1 -- Initial Liquidation Sale (Section 9)
None.
Part 2 -- Optional Sales (Section 9(a)) and Future Required Sales (Section
9(c)).
FOR OLD RATE LOANS AND JULY 98 RATE LOANS:
FOR PLUS LOANS:
Sale Portfolio
Average Borrower Indebtedness
of PLUS Loans Purchase Price Percentage
----------------------------- -------------------------
$0 - $4,000 100.50%
$4,001 - $5,000 102.00%
$5,001 - $6,000 102.25%
$6,001 - $7,000 102.50%
$7,001 - Above 102.75%
-1-
ATTACHMENT G
NAMES FOR FACSIMILE SIGNATURES
As used for Prior Agreement
CONSOLIDATED EFT DISBURSEMENT AGREEMENT
dated as of August 1, 2000
between
STUDENT LOAN MARKETING ASSOCIATION
and
AMS EDUCATION LOAN TRUSTEE/FLEET
THIS AGREEMENT dated as of August 1, 2000 (the "Agreement") between AMS
EDUCATION LOAN TRUSTEE/FLEET (the "Lender") and the STUDENT LOAN MARKETING
ASSOCIATION ("▇▇▇▇▇▇ Mae") is entered into between Lender and ▇▇▇▇▇▇ ▇▇▇ to
allow disbursement of Loan proceeds by electronic funds transfer (if and as
authorized by the Guarantor), to allow ▇▇▇▇▇▇ Mae to hold Loan proceeds as
escrow agent and to provide certain data transfer services in connection with
Lender's origination of Loans. This Agreement shall be effective with respect to
each School (as herein defined) listed on Exhibit B attached hereto.
FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS.
(a) "Act" means the Higher Education Act of 1965, as amended (20 U.S.C.
Section 1071 et seq.).
(b) "Borrower" means the obligor on a Loan.
(c) "Guarantor" means any state, or private non-profit guarantor of
Loans.
(d) "Loan" means a student loan made under the Act.
(e) "Prime Rate" means for each business day, the rate displayed on
Telerate page 125 (or successor page) as the Prime Rate for such day. If for any
business day no such rate is displayed on Telerate, the Prime Rate will be the
highest rate listed as the Prime Rate in the "Money Rates" section of the
Eastern Edition of THE WALL STREET JOURNAL published on such date, or if no
longer published or not listed in such publication, such substitute source that
▇▇▇▇▇▇ ▇▇▇ chooses. The Prime Rate for any day that is not a business day will
be the Prime Rate as determined above on the immediately preceding business
day.
(f) "Regulations" means any rule, regulation, instruction or procedure
issued by the Secretary under the Act or by the Guarantor.
(g) "School" means each school listed on Exhibit B attached hereto.
Additions to the school list will be subject to (i) meeting ▇▇▇▇▇▇ Mae's
eligibility and approval requirements and (ii) mutual agreement of the parties,
and will be evidenced only by written or faxed communication by both parties
indicating their approval of such addition. Either party may delete a School
upon thirty days' notice to the other party.
(h) "Secretary" means the United States Secretary of Education or any
successor.
(i) "USAF" means United Student Aid Funds, Inc., as origination agent
for the Lender.
-1-
2. ELECTRONIC DATA AND DISBURSEMENT.
(a) Lender agrees to comply with the system and software requirements
listed in Part I of Exhibit C and the procedures established by ▇▇▇▇▇▇
Mae concerning the format and method of transmission of data. Both
parties agree to cooperate to correct errors in processing or
communicating information.
(b) Lender will be responsible for sending Loan applications to
Borrowers, obtaining properly completed Loan applications from
Borrowers, and obtaining Loan guaranties from the Guarantor.
(c) After the Guarantor has notified Lender that an application for a
Loan has been approved by the Guarantor, Lender and ▇▇▇▇▇▇ ▇▇▇ will
follow the procedures set forth in Part II of Exhibit C with respect to
the Loans to be disbursed.
(d) ▇▇▇▇▇▇ Mae will disburse Loan proceeds as required by the Act and
Regulations in accordance with the procedures set forth in Part II of
Exhibit C. Loans shall be disbursed by electronic funds transfer
initiated by ▇▇▇▇▇▇ ▇▇▇ or its agent by means of debit and credit
entries through an automated clearing house. ▇▇▇▇▇▇ Mae shall retain
all funds that it receives from USAF as escrow agent pursuant to
Section 428(i) of the Act. If a credit entry to the School has been
initiated, and USAF has failed to send ▇▇▇▇▇▇ ▇▇▇ the funds on a timely
basis in accordance with Part II of Exhibit C, ▇▇▇▇▇▇ Mae reserves the
right to assess on Lender a finance charge at the Prime Rate on a daily
basis until such time as the amount is reimbursed.
(e) ▇▇▇▇▇▇ ▇▇▇ or its agent shall initiate a credit entry to the
designated School's account which shall be accompanied by a
disbursement roster, based on the disbursement roster provided by USAF,
that will contain information as specified by ▇▇▇▇▇▇ Mae. The cost of
delivering any hard copy disbursement rosters by overnight or express
mail to or from Lender, if any, will be charged to Lender. Lender
agrees and acknowledges that any earnings or interest on funds
delivered to ▇▇▇▇▇▇ ▇▇▇ as escrow agent shall be retained by ▇▇▇▇▇▇
Mae, and that ▇▇▇▇▇▇ ▇▇▇ may commingle the proceeds of all Loans paid
to ▇▇▇▇▇▇ Mae pursuant to this Agreement and agreements with other
lenders. ▇▇▇▇▇▇ ▇▇▇ will be responsible for maintaining and reconciling
the escrow account. Lender will be responsible for transmitting all
insurance premiums, guarantee fees, and origination fees due on the
Loans to the appropriate entity.
(f) If ▇▇▇▇▇▇ Mae agrees to perform such services, ▇▇▇▇▇▇ ▇▇▇ will
receive the following information transmitted by a School: (a)
information-concerning Loans that have been cancelled, returned,
refunded, or that otherwise have not been disbursed to the Borrower;
and (b) instructions for credit entries to ▇▇▇▇▇▇ Mae's account on
behalf of Lender for cancelled, returned, or refunded Loans (and ▇▇▇▇▇▇
Mae will forward such information to Lender and will initiate a credit
entry to Lender's account). ▇▇▇▇▇▇ ▇▇▇ shall not be liable or
responsible for the failure to transmit or the accuracy of information
transmitted by a School.
(g) Lender represents that it has complied with all requirements of the
Guarantor pertaining to electronic funds transfer, including, but not
limited to, entering into any required agreements with the Guarantor or
School authorizing disbursement by electronic funds transfer. Lender
shall be responsible for complying with the Act and the Regulations
relating to borrower authorizations for electronic funds transfer.
(h) Lender shall immediately notify ▇▇▇▇▇▇ Mae if it learns that a
School has become ineligible for electronic funds transfer origination
or the agreement for electronic funds transfer origination (if any) has
been terminated.
3. FEES. Lender agrees to pay ▇▇▇▇▇▇ Mae fees for its services at the rates set
forth in Exhibit ▇. ▇▇▇▇▇▇ ▇▇▇ will invoice Lender on a monthly basis for such
fees, and Lender agrees to pay each invoice within 30 days following the date of
such invoice. If Lender fails to pay any invoice on a timely basis, ▇▇▇▇▇▇ Mae
shall have the right to (i) impose a late fee of 1.50% of the unpaid amount for
each month or part of a month Lender is late with its payment, and/or (ii)
immediately cease performing services under this Agreement.
-2-
ATTACHMENT 2
[Form of Customized School Deal Notification Letter]
[▇▇▇▇▇▇ ▇▇▇ Letterhead]
Date:___________________
[LENDER NAME]
[LENDER ADDRESS]
[LENDER ADDRESS]
Attention: _____________________
Re: [Insert Educational Institution and OE Number]
Dear __________________:
Pursuant to the requirements in the definition of "Customized School
Deal Loans," as set forth in the Customized School Deals Amendment to
ExportSS(R) Agreement ("Customized School Deals Amendment"), which amendment is
dated _________, ___, between the Student Loan Marketing Association ("▇▇▇▇▇▇
Mae") and __________________ ("Lender"), this letter shall serve as notice that
▇▇▇▇▇▇ ▇▇▇ and [Insert Educational Institution and OE Number] have agreed to a
Customized School Deal. If you desire to participate with ▇▇▇▇▇▇ Mae in such
Customized School Deal; please countersign one original of this letter and
return it to me on or before ________________,200_.
By countersigning below, you acknowledge that the [▇▇▇▇▇▇▇▇ Loans] OR
[PLUS Loans] OR [▇▇▇▇▇▇▇▇ Loans and PLUS Loans] made by you in connection with
attendance at [Insert Educational Institution and OE Number], whose first
disbursements occur on or after the later of (i) the response deadline set forth
in the preceding paragraph, or (ii) the effective date of the agreement between
▇▇▇▇▇▇ ▇▇▇ and such school, and prior to the effective date of termination of
such Customized School Deal, and all Serial Loans, will be deemed Customized
School Deal Loans for all purposes of the Agreement (as defined in and as
modified by the Customized School Deals Amendment).
If you have any questions concerning the foregoing, please contact me
at ▇▇▇-▇▇▇-▇▇▇▇ at your earliest convenience.
Very truly yours,
▇▇▇▇▇ ▇▇▇▇▇
Vice President
Financial Institution Sales
AGREED AND ACCEPTED:
[INSERT LENDER NAME]
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
OFFICER'S CERTIFICATE
Re: ExportSS Agreement dated July 1, 2000, between Fleet National Bank, as
Trustee, and ▇▇▇▇▇▇ ▇▇▇.
I, of Academic Management Services, Inc. ("AMS"), hereby certify to
the Student Loan Marketing Association ("▇▇▇▇▇▇ Mae") that:
================================================================================
ONE OF THE OFFICERS LISTED IN THIS SECTION HAS SIGNED THE AGREEMENT AND
THE PERSON(S) NAMED BELOW ARE, AS OF THE DATE OF THIS CERTIFICATE, THE
REPRESENTATIVES OF AMS DULY AUTHORIZED TO EXECUTE AGREEMENTS REGARDING THE
ORIGINATION, SERVICING, AND SALE OF STUDENT LOANS WITH ▇▇▇▇▇▇ ▇▇▇, HOLD THE
CORPORATE OFFICES INDICATED NEXT TO THEIR NAMES, THE SIGNATURES FOLLOWING THEIR
NAMES ARE THEIR GENUINE SIGNATURES, AND ONE OF THEM HAS DULY EXECUTED THE
AGREEMENT:
NAME TITLE SIGNATURE
---- ----- ---------
▇▇▇▇▇▇ ▇▇▇▇▇▇ Vice President /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------ ----------------------- ------------------------
X
------------------------ ----------------------- ------------------------
------------------------ ----------------------- ------------------------
================================================================================
By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------------------------
(An officer who did not sign the Agreement
and is not listed in the box above)
Name: ▇▇▇▇ ▇▇▇▇▇
----------------------------------------------
Title: President
---------------------------------------------
Date: 8-8-2003
----------------------------------------------
AMENDMENT OF JUNE 25, 2003
TO
EXPORTSS(R) AGREEMENT
DATED JULY 1, 2000
BETWEEN
STUDENT LOAN MARKETING ASSOCIATION
AND
FLEET NATIONAL BANK
(SOLELY IN ITS CAPACITY AS TRUSTEE FOR THE
AMS EDUCATION LOAN TRUST)
AND
ACADEMIC MANAGEMENT SERVICES, INC.
WHEREAS, the Student Loan Marketing Association ("▇▇▇▇▇▇ Mae"), Fleet
National Bank, solely in its capacity as trustee for the AMS Education Loan
Trust ("Trustee"), and Academic Management Services, Inc. ("AMS") entered into
that certain ExportSS Agreement dated as of July 1, 2000 (as amended, the
"Agreement"); and
WHEREAS, ▇▇▇▇▇▇ ▇▇▇, Trustee, and AMS desire to amend the terms
thereof.
NOW THEREFORE, for mutual consideration, the sufficiency and receipt of
which are hereby acknowledged, ▇▇▇▇▇▇ Mae, Trustee, and AMS agree to amend the
Agreement as follows:
1. Section 21 "Methods of Termination" is amended by deleting the date
"June 30, 2003" and inserting in lieu thereof the date "July 31, 2003."
2. Section 23 "Commitment Period" is amended by deleting the date "June
30, 2003" and inserting in lieu thereof the date "July 31, 2003."
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Capitalized terms used in this amendment shall have the meanings
ascribed to them in the Agreement, the terms of which are hereby incorporated
herein by reference, and except as specifically provided for otherwise in this
amendment, the rights and obligations of Trustee, AMS, and ▇▇▇▇▇▇ ▇▇▇ under the
Agreement are unchanged. Upon execution by authorized representatives of
Trustee, AMS, and ▇▇▇▇▇▇ Mae, this amendment shall be effective as of the date
of this amendment.
FLEET NATIONAL BANK, AS TRUSTEE ACADEMIC MANAGEMENT SERVICES, INC.
FOR THE AMS EDUCATION LOAN
TRUST UNDER TRUST AGREEMENT
DATED FEBRUARY 3, 1994
By: By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------- -----------------------------------
Name: Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------- ---------------------------------
Title: Title: Vice President
------------------------- --------------------------------
STUDENT LOAN MARKETING ASSOCIATION
BY: ▇▇▇▇▇▇ ▇▇▇, INC.,
AUTHORIZED AGENT
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
AMENDMENT OF JULY 29, 2003
TO
EXPORTSS(R) AGREEMENT
DATED JULY 1, 2000
BETWEEN
STUDENT LOAN MARKETING ASSOCIATION
AND
FLEET NATIONAL BANK
(SOLELY IN ITS CAPACITY AS TRUSTEE FOR THE
AMS EDUCATION LOAN TRUST)
AND
ACADEMIC MANAGEMENT SERVICES, INC.
WHEREAS, the Student Loan Marketing Association ("▇▇▇▇▇▇ Mae"), Fleet
National Bank, solely in its capacity as trustee for the AMS Education Loan
Trust ("Trustee"), and Academic Management Services, Inc. ("AMS") entered into
that certain
ExportSS(R) Agreement dated as of July 1, 2000 (as amended, the
"Agreement"); and
WHEREAS, ▇▇▇▇▇▇ ▇▇▇, Trustee, and AMS desire to amend the terms
thereof.
NOW THEREFORE, for mutual consideration, the sufficiency and receipt of
which are hereby acknowledged, ▇▇▇▇▇▇ Mae, Trustee, and AMS agree to amend the
Agreement as follows:
1. Section 21 "Methods of Termination" is amended by deleting the date
"July 31, 2003" (as set forth in the amendment of June 25, 2003) and
inserting in lieu thereof the date "August 31, 2003."
2. Section 23 "Commitment Period" is amended by deleting the date "July
31, 2003" (as set forth in the amendment of June 25, 2003) and
inserting in lieu thereof the date "August 31, 2003."
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.)
Capitalized terms used in this amendment shall have the meanings
ascribed to them in the Agreement, the terms of which are hereby incorporated
herein by reference, and except as specifically provided for otherwise in this
amendment, the rights and obligations of Trustee, AMS, and ▇▇▇▇▇▇ ▇▇▇ under the
Agreement are unchanged. Upon execution by authorized representatives of
Trustee, AMS, and ▇▇▇▇▇▇ Mae, this amendment shall be effective as of the date
of this amendment.
FLEET NATIONAL BANK, AS TRUSTEE ACADEMIC MANAGEMENT SERVICES, INC.
FOR THE AMS EDUCATION LOAN
TRUST UNDER TRUST AGREEMENT
DATED FEBRUARY 3, 1994
By: By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------- -----------------------------------
Name: Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------- ---------------------------------
Title: Title: Vice President
------------------------- --------------------------------
STUDENT LOAN MARKETING ASSOCIATION
BY: ▇▇▇▇▇▇ ▇▇▇, INC.,
AUTHORIZED AGENT
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
