Exhibit
10.1


Confidential
Materials omitted and filed separately with the

Securities and Exchange Commission. Asterisks denote omissions.


AMENDED AND RESTATED PRIVATE STUDENT LOAN
SERVICING AGREEMENT

BETWEEN

PENNSYLVANIA HIGHER EDUCATION ASSISTANCE-AGENCY

AND

THE FIRST MARBLEHEAD CORPORATION


THIS AMENDED AND
RESTATED PRIVATE STUDENT LOAN SERVICING AGREEMENT (this “Agreement”) is made
and dated as of September 28, 2006 (the “Effective Date”), by and between the
Pennsylvania Higher Education Assistance Agency (d/b/a American Education
Services), a public corporation and governmental instrumentality organized
under the laws of the Commonwealth of Pennsylvania, 1200 North Seventh Street,
Harrisburg, Pennsylvania 17102 (“Servicer”), and The First Marblehead Corporation,
having an address at 800 Boylston Street, 34th Floor, Boston, Massachusetts
02199 (“FMC”), and amends and restates that certain Alternative Servicing
Agreement between Servicer and FMC dated as of October 16, 2001 (“Old Servicing
Agreement”).


RECITALS


WHEREAS, the
Servicer is in the business of servicing privately insured student loans and
other education loans for lenders; and


WHEREAS, Program
Lender (defined below) and FMC have created a group of education loan programs,
all of which are described in the Program Guidelines (defined below), pursuant
to which education loans are funded by Program Lender and purchased by FMC or
an SPE (defined below); and


WHEREAS, in order
to ensure the integrity of the education loans at the time they are purchased by
FMC or an SPE, FMC desires to oversee the servicing of such education loans
prior to purchase; and


WHEREAS, FMC desires to utilize the expertise of
the Servicer to service such education loans as and when they are purchased by
FMC or an SPE;


NOW, THEREFORE, in
consideration of the mutual promises contained in this Agreement and the fees
to be paid by FMC to the Servicer, and intending to be legally bound, the
parties to this Agreement do hereby agree to the following:


SECTION
1.  DEFINITIONS


1.01                           “Account”
means the Student Loans collectively of an individual Borrower.


1.02                           “Agreement”
means this Amended and Restated Private Student Loan Servicing Agreement,
including each Schedule and Exhibit provided for herein and each amendment
hereafter adopted.


1.03                           “Borrower”
means an individual who is the maker of a Credit Agreement and who



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obtains a Student Loan or a Committed Student Loan. “Borrower”
includes both the primary obligor and any cosigner.


1.04                           “Business
Days” means a day of the year other than a Saturday or Sunday, or a day on
which the Servicer or FMC is required or authorized by law to remain closed,
and on which either does remain closed.


1.05                            “Change
of Control” means the sale to any other
entity, individual or group of all or substantially all of the entity’s assets
used to perform the Services.


1.06                           “Committed
Student Loans” means any of and “Committed Student Loans” means all, the
Private Student Loans which FMC is obligated to or has the right to purchase
under third-party agreements with Program Lender and which, upon the occurrence
of such purchase, will become Student Loans.


1.07                           “Confidential
Information” has the meaning assigned to it in Section 11.02.


1.08                           “Consumer
Information” has the meaning assigned to it in Section 11.03.


1.09                            “Credit
Agreement” shall mean the promissory note or credit agreement executed by a
Borrower evidencing a Student Loan or a Committed Student Loan.


1.10                           “Customer”
has the meaning assigned to it in Section 11.03.


1.11                           “Customer
Information” has the meaning assigned to it in Section 11.03.


1.12                           “Customer
Service Schedule” means the schedule of that name attached hereto and as
amended by agreement of the parties.


1.13                           “Disaster
Recovery and Business Continuity Plans” has the meaning given to it in Section
11.05.


1.14                           “Failed
Standard” shall have the meaning given to it in Section 4.02.


1.15                           “Fee
Schedule” means the schedule of that name attached hereto and as amended by
agreement of the parties.


1.16                           “FMC”
means The First Marblehead Corporation in its capacity as “FMC” and “Securitization
Sponsor,” (as those roles are defined in the Program Guidelines), and as a
party entitled to Servicing of Committed Student Loans and Student Loans.


1.17                           “FMDS”
has the meaning given to it in Section 4.14.


1.18                            “FMER”
means First Marblehead Education Resources, Inc., a wholly owned subsidiary of
FMC.



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1.19                           “Force
Majeure” has the meaning given to it in Section 10.01.


1.20                           “Identity
Theft Procedures” means the Procedures for Fraud Notification set forth in the
Servicing Guidelines and as amended by agreement of the parties.


1.21                           “Information
Security Program” has the meaning given to it in Section 11.03.


1.22                           “Insurer”
means The Education Resources Institute, Inc. (“TERI”) or such other private
insurance agencies as the parties may mutually agree upon from time to time.


1.23                           “Late
Fees” has the meaning given to it in Section 4.14.


1.24                            “Material
Adverse Change” means any condition or event that is reasonably likely to have
a material adverse effect on (i) the business operations, property or condition
(financial or otherwise) or prospects of the Servicer, or (ii) the validity or
enforceability of this Agreement or any of the Schedules or Exhibits hereunder.


1.25                           “Milestone”
shall have the meaning given to it in Section 4.03(d).


1.26                           “Non-Peak
Application Periods” means the months other than June, July, August and
September.


1.27                           “Old
Servicing Agreement” has the meaning set forth above.


1.28                           “Operations
Meeting” shall have the meaning given to it in Section 4.09 of this Agreement.


1.29                           “Original
Credit Agreement” means the signed first or first two pages of the Credit
Agreement (beginning with the Borrower and Program Lender name and ending with
a signature or signatures).


1.30                           “Owner”
means with respect to a Student Loan, Program Lender prior to a Securitization
Transaction and then FMC or any Permitted Assignee that purchases such Student
Loans or any interest therein from Program Lender or from another Permitted
Assignee in a Securitization Transaction.


1.31                           “Peak
Application Periods” means the months of June, July, August and September.


1.32                           “Permitted
Assignee” means a Special Purpose Entity (as defined below), or any financial
institution, bond insurer, guaranty agency, indenture trustee, lender’s
collateral agent or other substantially similar party to whom rights under this
agreement are assigned as security in a financing transaction to which the
Special Purpose Entity is a party.


1.33                           “Person”
means a natural person, limited or unlimited liability corporation, limited
liability company, limited liability partnership, partnership, association,
trust or any other



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legal entity having the capacity to contract.


1.34                           “Program
Guidelines” means, solely for purpose of identifying Private Student Loan
programs to be Serviced under the Agreement, the Underwriting, Origination and
Loan Term Guidelines for one or more Private Student Loan programs identified
by the parties from time to time in a writing signed by both parties.  At the time of this Agreement, Program
Guidelines includes the Underwriting, Origination and Loan Term Guidelines for
those Private Student Loan programs set forth on Schedule A attached hereto.


1.35                           “Program
Lender” means one or more lenders to be specified by the parties in writing,
signed by both parties from time to time. At the time of execution of this
Agreement, Program Lenders include the following: Bank of America, N.A.;
JPMorgan Chase Bank, N.A.; Charter One Bank, N.A.; Chase Manhattan Bank USA,
N.A.; Citizens Bank of Rhode Island; GMAC Bank; HSBC Bank USA, N.A.; The
Huntington National Bank; Insurbanc; KeyBank, National Association;
Manufacturers and Traders Trust Company (M&T Bank); National City Bank; PNC
Bank, N.A.; Sovereign Bank; and SunTrust Bank.


1.36                           “Program
Manual” has the meaning assigned to it in Section 4.09.


1.37                           “Program
Year” means the period from May 1 to April 30.


1.38                           “Private
Student Loan” or “PSL” means an education loan to finance the costs of higher
education (or private K-12 education) that is not (a) guaranteed by the United
States Department of Education nor by any agency of any state or (b) a
Guaranteed Access to Education (GATE) Loan program (other than the Bank of
America GATE Education Loan (BAGEL) Program that is guaranteed by TERI).


1.39                           “Proprietary
Information” has the meaning given to it in Section 11.01.


1.40                           “Remedial
Action Plan” has the meaning given to it in Section 4.03(d).


1.41                           “Required
Reports Schedule” means the schedule of that name attached hereto and as
amended by the agreement of the parties.


1.42                            “Securitization
Transaction” means the purchase of a pool of Student Loans by an SPE.


1.43                           “Service”,
“Services”, “Serviced”, “Servicing” shall mean to perform, in full compliance
with applicable federal and state laws and regulations, the terms and
conditions of the Credit Agreements, the Servicing Guidelines, the Program
Manual, and the terms and conditions of this Agreement, including without
limitation the Service Level Agreement: duties, obligations, and procedures
that are required of Servicer hereunder in connection with Student Loans and
Committed Student Loans.


1.44                           “Service
Level Agreement” means the Service
Level Agreement attached hereto as Exhibit C and as amended by agreement
of the parties.



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1.45                           “Servicer
Consent Letter” means a letter substantially in the form of Exhibit A, to be
executed by Servicer, FMC, and an SPE in connection with each Securitization
Transaction.


1.46                           “Servicing
Guidelines” means the Servicing Guidelines for one or more Private Student Loan
programs that have been issued by Insurer and approved by FMC and Servicer
attached hereto as Exhibit B and as may amended by agreement of the parties
pursuant to the terms thereof.


1.47                           “Special
Purpose Entity” or “SPE” means a trust, corporation or limited liability
company organized by FMC and engaged solely in the business of purchasing
Private Student Loans and engaging in financing and/or securities transactions
to obtain funds to purchase such Private Student Loans.


1.48                           “Student
Loan” means any of, and “Student Loans” means all, the Private Student Loans
executed by a Borrower, funded by Program Lender, purchased by FMC or an SPE
and which are Serviced by the Servicer pursuant to this Agreement.


1.49                           “System
Access Schedule” means the schedule of that name attached hereto and as amended
by agreement of the parties.


1.50                           “Trustee”
means the Permitted Assignee having a lien or security interest in a pool of
Student Loans, which lien or security interest is held for the benefit of
investors or lenders providing funds in such Securitization Transactions.


SECTION
2.  SCOPE OF AGREEMENT


2.01                        Old
Servicing Agreement.  On the
Effective Date, this Amended and Restated Servicing Agreement shall supersede
and replace the Old Servicing Agreement in its entirety. Pursuant to Section
13.02, this Agreement has been assigned in part to SPEs with respect to pools
of Student Loans. The Servicing of such Student Loans shall be governed by this
Agreement upon receipt by Servicer of the written consent of an SPE who has
become a party to this Agreement by virtue of such assignment; provided,
however, that FMC shall be solely responsible for obtaining the written
consents of SPEs for Servicing under this Agreement.


2.02                        Services.  The Servicer agrees, in consideration of
certain fees, to perform the Services set forth in this Agreement, including
each Schedule and Exhibit hereto, and any additional Services which FMC
requests and the Servicer agrees to provide with respect to the Servicing of
Student Loans in accordance with the Servicing Guidelines, for which account information
and/or documentation shall be delivered to the Servicer.


2.03                        Role of FMC.  Servicer acknowledges that FMC has, under
third-party agreements, the obligation or the right to purchase the Committed
Student Loans and FMC, as the parent company of the Insurer’s agent, FMER, has
an obligation to the Insurer to ensure the



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adequate conversion of the Committed Student Loans
from FMER’s origination system to Servicer’s Servicing system.  In light of the foregoing, Servicer further
acknowledges that FMC has a present interest in Committed Student Loans and
Servicer agrees to provide product setup and 
conversion Services for such loans pursuant to this Agreement.  Such rights of FMC pursuant hereto shall be
in addition to, and not in derogation of, the rights of Program Lender as Owner
of such Committed Student Loans. FMC shall not have liability under this
Agreement for any Student Loan unless and until FMC becomes an Owner of such
Student Loan.


Servicer
agrees that upon assignment of FMC’s rights with respect to a pool of Student
Loans to an SPE or other Permitted Assignee: (i) all obligations of FMC under this Agreement with respect to such Student
Loans, including without limitation the obligation to pay the fees set forth in
the Fee Schedule, shall cease upon assumption of that obligation by any SPE and
(ii) all of FMC’s rights under this Agreement, other than the right to receive
Services with respect to such pool of Student Loans, shall be retained by FMC,
including without limitation those rights relating to product setup and
conversion of Committed Student Loans, and audits that relate to continuing
Services.


SECTION
3.    TERM OF
AGREEMENT


This Agreement shall commence on the date first
set forth above and shall continue, with respect to Student Loans which are
subject to this Agreement (including loans serviced under the Old Servicing
Agreement and new Student Loans serviced on and after the effective date of
this Agreement), in accordance with Section 14.01, unless earlier terminated by
either Party pursuant to the provisions of this Agreement. With respect to
product setup and conversion services and the fees charged for the Services,
this Agreement shall continue for a period of three (3) years from the date
first set forth above, unless earlier terminated by either Party pursuant to
the provisions of this Agreement, and shall automatically renew for an
additional one (1) year period, unless terminated by any Party by written
notice of non-renewal to the other given at least one hundred and eighty (180)
days prior to the end of the then current term. The expiration or termination
of this Agreement as to the addition of new Student Loans shall in no way
affect the rights or obligations of Servicer with respect to Student Loans that
have become subject to this Agreement by partial assignment of this Agreement
to an SPE.


SECTION
4.  Servicing Duties


4.01                        Servicing Duties.  Servicer shall provide and perform the
Services in full compliance with: the terms of this Agreement,
including without limitation the Service
Level Agreement (as amended by the parties from time to time in accordance with
the terms thereof) ; the Servicing Guidelines; the Program Manual; the
terms and conditions of the Credit Agreements; and all federal and state laws
and regulations applicable to Servicer or Program Lender or any Owner.


4.02                        Failed Service Levels: Notice and Cure  Servicer shall notify FMC through the reports



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required
by Exhibit C to this Agreement, which reports shall be made in accordance with
Section 5.04 hereof, of any failure to meet any Servicing standard set forth in
the Service Level Agreement other than standards defined therein as “Servicer’s
Service Objective” (a “Failed Standard”). In the event that the Servicer shall
fail to perform the same Servicing standard for thirty (30) days thence (the
second consecutive Failed Standard), then the Owner shall be entitled to a
reduction (or rebate if already paid) of [**]of the Servicing Fees due the
Servicer pursuant to Section II of the Fee Schedule (a “Fee Reduction”) with
respect to the months in which the Failed Standard shall have occurred. The
Owner shall continue to be entitled to a Fee Reduction for each subsequent
consecutive month in which the Servicer shall fail to perform the same
standard. Notwithstanding the foregoing, no reduction or rebate shall be made
with respect to any Failed Standard that occurs prior to March 1, 2007.  This Section 4.02 shall be effective from the
Effective Date through August 31, 2007, and shall then be open for negotiation.
If no changes are proposed or agreed to in writing, this Section 4.02 shall
remain in effect.


4.03                        Product Setup and Conversion.  Servicer agrees, in accordance with the existing practices and procedures
of the parties, to perform product set-up and conversion Services with respect
to the Committed Student Loans as set forth in the Product Setup and Conversion
Service Level Agreement which shall include, without limitation, the following:


(a)                                  Credit Agreement Forms.  Servicer shall promptly review promissory
note or credit agreement forms that are proposed by FMC and/or Program Lender
and, after mutual resolution of any comments thereon that affect the Servicing
of such forms, accept such forms for purposes of product set-up and conversion.


(b)                                 Servicing System Adaptation.  Servicer shall promptly review education loan
product terms and pricing matrices proposed by FMC and/or Program Lender and
shall establish appropriate Servicing matrices and programs to support such
product terms and pricing as of a mutually agreed product launch date. The
parties shall publish a mutually agreeable program launch date for each program
within each Program Year. Servicer shall make every effort to meet live program
dates requested by FMC, which date shall be no less than thirty (30) days from
the date Servicer accepts the product and pricing matrix (or similar document
containing the same information) for such program; provided, however, that the
Servicer agrees to use commercially reasonable efforts to complete the set-up
process in a shorter time frame on a case-by-case basis in order to accommodate
the business needs of FMC (or its clients). FMC shall have the right to audit
Servicer’s Servicing matrices and program setup as set forth in Section 4.03(d)
below.


(c)                                Conversion.  Servicer agrees to accurately convert all
Committed Student Loan origination data necessary for servicing hereunder onto
its Servicing System in accordance with Section VI of the Service Level
Agreement. Servicer shall also, in a timely manner, return to the Servicer
Relations Group at FMC all loan files sent to the Servicer in error.



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(d)                                 Periodic
Audit. Servicer agrees that, no less than twenty (20) days after receipt of
written notice, shall cooperate with audits by FMC of the product set-up and conversion Services and communication and other protocols necessary for the
efficient and accurate performance thereof. If any audit reveals any failure to adequately perform any such matter, Servicer
shall within thirty (30) days of its receipt of the results of such audit,
publish a remedial action plan that includes a schedule of tasks and objectives
to be completed (each such task or objective, a “Milestone”) and provides for
reports to FMC with respect to each Milestone (“Remedial Action Plan”) and
provide the same to FMC. Upon completion of the Remedial Action Plan, FMC may,
at a time mutually agreeable to the parties, perform an additional audit to
validate successful completion of the Remedial Action Plan.


4.04                        Custody Procedure.  The Servicer
shall hold all Original Credit Agreements and related documents Serviced
hereunder on behalf of the Owner and shall retain each such Credit Agreement
and related documents until five (5) years after the earlier of (a) the date
upon which the Student Loan evidenced by such Credit Agreement and related
documents is paid in full or (b) the date upon which the Student Loan is
deconverted from Servicer’s Servicing System. 
The Servicer shall maintain all Original Credit Agreements that have an
original, wet signature in a fire resistant vault equipped with a fire
suppression system which is connected to an alarm and a security locking
system.  Servicer shall create
microfilm or electronic records of all Original Credit Agreements and related
documents at no additional cost to FMC and shall maintain such microfilm or
electronic records on-site at the Servicer’s Servicing center at Harrisburg, PA and at an off-site facility in a
fire resistant vault equipped with (a) a fire suppression system which is
connected to an alarm and (b) with a security locking system at least 100 miles
away from the on site facility used to house the Original Credit Agreements and
related documents. The Servicer shall supply FMC, upon request,
microfilm or electronic copies of Original Credit Agreements and related
documents.  FMC or its designated agent shall have the
right to inspect all security procedures during Servicer’s regular business
hours.  The Servicer shall provide FMC
with sixty (60) days advance notice of any change in the physical location, of
the Original Credit Agreements and related documents or any relocation of the
Servicer’s Servicing center.  All
Original Credit Agreements at all times shall be stored in a state other than
the State of Louisiana.


4.05                        Lost or
Damaged Records.  In the event
that records or other data submitted to the Servicer for Servicing should be
lost or damaged while in the possession, control or custody of the Servicer or
its agents, such lost or damaged records or data shall be reproduced by the
Servicer at the Servicer’s own cost and expense from microfilm or image
duplicates in the Servicer’s possession or under the Servicer’s control and the
Servicer shall pay the Owner’s expenses associated with such lost or damaged
records or data, including but not limited to reasonable attorney’s fees.  In the event that a Student Loan becomes
uncollectible, unenforceable or loses the guarantee of the Insurer or other
entity which pays default claims on Student Loans, due to loss or destruction
of records or data in the possession, control or custody of the Servicer or its
agents then the Servicer



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shall, on demand, pay to the Owner the principal
balance (including capitalized interest) plus any unpaid interest due on any
such Student Loan and the Owner shall thereupon assign all of its right, title
and interest in any such loan to the Servicer.


4.06                        System
Changes.  The Servicer has the
right to change any part or all of its equipment, its Servicing system,
computer programs, and its procedures relating to the manner of or the
methodology used in servicing the Student Loans, subject to the following:


(a)                                In
no event shall such change abrogate or in any way modify the obligations of the
Servicer to Service the Student Loans or the Committed Student Loans in full
compliance with all applicable federal and state laws and regulations, the
terms and conditions of the Credit Agreements, the Servicing Guidelines, the
Program Manual or the terms of this Agreement, including without limitation the
Service Level Agreement, or the quality of the Service.


(b)                               As
part of the quarterly meeting discussed in Section 4.09 below, the technical
and operational staffs of Servicer and FMC shall discuss upcoming system
changes for each party and to follow up on any emergency changes implemented
during the prior quarter under subsection (d) below. The parties agree that
they shall provide reasonable information about the nature and effect of
changes that the parties reasonably believe may affect the operations or
processes of the other and shall determine the extent to which the other party
needs to be involved in the testing of changes to its own system.  At each meeting, the parties shall also
discuss proposed implementation dates for system changes and shall make best
efforts to avoid implementation dates that will have a material adverse impact
on the operations of the other party.


(c)                                Servicer shall test, prior to implementation, each
system change that will affect the Servicing of Student Loans to determine that
such change will not result in adverse consequences to its obligations under
this Agreement. Servicer will document all changes and corresponding testing of
such changes.


(d)                                 If
the need to make any emergency changes arises, Servicer shall notify FMC of
such need as soon as is reasonably possible but in all cases prior to the
implementation of any change. Servicer shall track all emergency changes.


4.07                        System
Access.  Servicer
shall, at the direction of FMC and only at the direction of FMC, provide FMC,
FMDS on behalf of each Owner, TERI, and FMER as agent for TERI with web-based
access to Student Loan and Committed Student Loans files, or portions thereof,
in accordance with the terms of the System Access Schedule, which shall set
forth, without limitation, the type of access and/or online services that must
be available to each type of user and the minimum user access security
requirements that must be implemented on Servicer’s Servicing system.  Servicer shall at all times maintain the
security of user access to its Servicing system in conformity with the security
provisions of the System Access Schedule, which shall include, without
limitation, Servicer’s review of the individual user access rights of Servicer
employees



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and other users no less frequently than every ninety (90) days.


4.08                        System Parameters.  The Servicer
is responsible for designing, implementing and maintaining its Servicing system
in accordance with the requirements of this Agreement, including without
limitation the System Requirements Service Level Agreement.


4.09                        Operations Meetings; Procedures Manual.  The
Servicer and FMC agree that they shall mutually schedule and conduct a joint
meeting of their operational staffs no less frequently than once per calendar
quarter for the discussion, tracking, and resolution of any operational issues
relevant to the Servicing of Student Loans under this Agreement (each such
meeting, an “Operations Meeting”).


As part of the series of
operational meetings, the Servicer and FMC shall create and maintain a
procedures manual for all aspects of Servicing which shall comply fully with
the terms of this Agreement, including without limitation the Service Level
Agreement, the Servicing Guidelines, the terms and conditions of the Credit
Agreements, and all applicable federal and state laws (“Program Manual”). Servicer and FMC shall
collaborate on the Program Manual and shall complete the same within 180 days
of the execution of this Agreement. The final version of the Program Manual
shall be negotiated, mutually agreed upon, and distributed between the Parties.
The Program Manual shall be subject to the provisions of Section 11.01
(confidentiality). As a condition precedent to the effectiveness of any
provision of the Program Manual that has an impact on the Servicing Guidelines,
the Servicing Guidelines must be amended pursuant to the terms thereof to
contain such provision. System changes that are needed as a consequence of any
provision of the Program Manual will be completed within a timely manner and in
accordance with a schedule adopted by the parties at an Operations Meeting.


The parties shall review
the Program Manual annually for revisions and updates. The parties anticipate
that the Program Manual may include, without limitation, the following
information:


(a)                                  Description of all loan
product terms relevant to Servicing for all Student Loans, including a history
of Program Year changes which shall commence upon execution of this Agreement;


(b)                                 Borrower communications
letter bank;


(c)                                  Due diligence procedures;


(d)                                 Procedures for delinquency
and default, including but not limited to bankruptcy and death;


(e)                                  Forbearance procedures and
forms;


(f)                                    Cancellation policies and
procedures;


(g)                                 Disbursement procedures;


(h)                                 Deferment processing and
enrollment confirmation requirements;



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(i)                                     Skip tracing procedures;


(j)                                   Consumer Reporting Agency
reporting;


(k)                                  Service levels, including
without limitation


(i)                                     Customer Service for phone,
web and paper communications, including issue resolution and quality control


(ii)                                  Payment processing


(iii)                               Origination Processing (as
applicable)


(iv)                              Conversion Processing (as
applicable) and,


(v)                                 System Availability and
Parameters;


(l)                                     Default Prevention (as
applicable);


(m)                               Fraud detection; Identity
theft and fraud claim processing (FACT Act);


(n)                                 Servicer  “cure” procedures;


(o)                                 Escalation procedures for
Disaster Recovery and Business Continuity Plans;


(p)                                 Servicing reports; and


(q) Secure communication
protocol for borrower level data.


4.10                        Training.  Servicer
will assume responsibility, at its expense, for training of its staff to meet
the requirements of this Agreement, including all Schedules and Exhibits
hereto.


4.11                        Customer Service.  Servicer
shall implement, maintain and monitor all Services which interface with
Borrowers in accordance with the Customer Service Schedule, which shall include
without limitation


(a)                                Minimum customer service hours of operation;


(b)                                  Call monitoring and quality control; and,


(c)                                Borrower customer satisfaction surveys.


4.12                        Borrower Correspondence.  FMC shall
have the right to request changes to, and approve the form and substance of,
all correspondence sent to Borrowers that is customizable by the Servicer at
the Owner level (as opposed to a guarantor level), including but not limited to
pre-repayment letters and collection correspondence that Servicer is required
to send to Borrowers pursuant to the Servicing Guidelines or any federal or
state regulation. Servicer’s inability to customize at the Owner level shall
not excuse its obligation to comply with all applicable laws. Borrower
correspondence approved pursuant to this Section 4.12 shall become part of the
Program Manual. Requested changes to letters shall be completed within a timely
manner in accordance with a schedule adopted at an Operations Meeting.



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4.13                        Collections.  All sums received by the Servicer
with respect to any Student Loans, whether attributable to principal or
interest shall be received in trust for the benefit of the Owner.  All funds received on behalf of Borrowers
shall be deposited in a Servicer-owned and maintained clearing account, that is
a separate account in which funds are not commingled with Servicer’s
non-collection account funds.  Within two
(2) Business Days, all available funds from Student Loans shall be
electronically transmitted to an account designated by FMC.


4.14                        Late Fees. 
FMC and Servicer agree that a Borrower in repayment status (which refers
to a Borrower’s Student Loan Serviced under the terms of this Agreement for
which, under the terms of the Borrower’s Credit Agreement(s), the repayment
period has commenced, and includes Accounts in post-grace period deferment or
forbearance) may be assessed late fees when payments are overdue, to the extent
allowed by applicable law and the terms of the Credit Agreement(s), subject to
FMC’s approval of late fee systems, and in accordance with the terms of this
Section (herein referred to as “Late Fees”). 
FMC or FMC’s affiliate First Marblehead Data Services, Inc (“FMDS”), in
its capacity as SPE administrator, shall notify Servicer, in writing, of the
Late Fees criteria which such party desires the Servicer to apply to each
Student Loan type.  Such criteria shall
include, but not be limited to, Late Fee amounts, time period and applicable
state law in which Late Fees will be assessed to Student Loan Accounts.  FMC or FMDS, as applicable, may establish
different Late Fee criteria for Student Loans having different owner
codes.  FMC or FMDS, as applicable,
directions as to Late Fee criteria shall apply to all loans, including those
owned by an SPE.  Late Fee criteria for
some product types may include “no late fee.” 
The Servicer reserves the right to submit questions pertaining to the
requirements regarding the assessment of Late Fees to a particular Student Loan
portfolio and FMC or FMDS, as applicable, shall respond to Servicer’s questions
within thirty (30) days. Late Fees shall be deducted from any payment(s)
received from Borrowers as directed by FMC or FMDS, as applicable.  FMC agrees that Late Fees shall not be
included in the amount of a claim if a default claim is submitted to the
Insurer.


4.15                        Privacy Policies. 
Servicer shall mail Owner’s privacy policy statement (a) to the
Borrower(s) on each Student Loan, within 45 days after the Owner purchases such
loan, and (b) annually thereafter to all Borrowers.  The Servicer will amend this process as
necessary to comply with any changes to this law.


4.16                        Reports and Forms. During the term of this Agreement, the Servicer
shall promptly and routinely furnish to FMC, sorted by SPE Owner, and to each Owner
copies of all material reports, records, and other documents and data as
required by the Servicing Guidelines or as otherwise required by this
Agreement, including the reports set forth on the Required Reports Schedule.  All monthly reports shall be delivered in
accordance with (a) the data security requirements of the Secure Communication
Protocol made a part of the Program Manual, and (b) the Required Reports
Schedule, unless otherwise expressly provided for herein. In the event that any
reports are not delivered to FMC as provided for herein, all fees due and owing
the Servicer under this Agreement may be withheld until such reports



 12
 






 



 


are received by FMC. 
The Servicer shall not have failed this standard if reports are delayed
for any reason beyond its control. The Servicer shall furnish in good condition
all forms and supplies necessary or appropriate to perform the Services, such
as letters, invoices, and forbearance applications, as specified in the
Schedule(s) and any written and signed amendments thereto.


4.17                        Governmental Reporting.  The
preparation and submission of any and all governmental reports or requests for
data shall be the responsibility of FMC. 
The Servicer shall, however, supply supporting data and reports as
required by this Agreement, including all Schedules and Exhibits hereto,
without additional charge. Subject to Servicer’s reasonable charges, Servicer
shall also provide such other information (not otherwise required hereunder) as
may be reasonably required under applicable law or this Agreement to enable FMC
to fulfill Insurer or governmental reporting requirements, and otherwise for
FMC’s business.  Servicer shall provide
reports on form 1098E and 1099 to borrowers and the U.S. Internal Revenue
Service.


4.18                        Reports to Consumer Reporting Agencies.  The Servicer shall provide any and all
reports on Accounts serviced hereunder required by the applicable law, this
Agreement, including without limitation the Servicing Guidelines, to the
appropriate Consumer Reporting Agencies or credit information service and shall
correct any errors caused by the incorrect reporting of information, in a
timely manner not to exceed thirty (30) days. Servicer shall report to all
national Consumer Reporting Agencies, which are currently Experian, Equifax,
and Transunion.  After any sale of
Committed Student Loans to an SPE, Servicer shall promptly, but not later than
the end of the reporting period for that month, correct its reporting to show
the correct name of the new Owner in the report, together with the name of the
originating Program Lender. If FMC directs Servicer to make a report or
correction of credit information to a Consumer Reporting Agency that is outside
the Servicer’s customary practices, including but not limited to as part of a
legal settlement with a Borrower, then the Servicer may condition making such
report or correction on the completion of an acceptable writing that allocates
the compliance, regulatory, and legal risk of making the requested report or
correction.


4.19                        Data Error Correction; Account Adjustment.  In the event
that any data file transmitted to FMC or any Owner or any Account contains a
material error, Servicer shall, within one (1) calendar day of discovery of
such error, notify FMC or the affected Owners of such error. Servicer shall use
best efforts to provide a corrected file as soon as possible but no later than [**] calendar days. For purposes of this Section 4.19, a
material error includes, without limitation:


(a)                                  Failure to follow data format requirements or file
naming conventions established by the parties


(b)                                 Data corruption


(c)                                  More than [**] of the entries in the file are substantively incorrect (e.g., misposting)


(d)                                 Failure of the file properly to link data to other
files delivered by Servicer, or



 13
 






 



 


(e)                                  Any systemic error in the file (e.g., failure to
update LIBOR Index).


Without limiting the foregoing, if FMC or any Owner
requests that the Servicer make any correction or adjustment to any Account,
the Servicer shall provide written confirmation that the correction or
adjustment has been made.


4.20                        Identity Theft Procedures. The parties hereby adopt the Identity Theft
Procedures, as set forth in the Servicing Guidelines attached hereto and as
amended from time to time by agreement of the parties or as required by
applicable law.  FMC and the Servicer may
suggest changes to the Identity Theft Procedures from time to time or as
required by applicable law.


SECTION 5.  AFFIRMATIVE COVENANTS


 


From the date hereof, Servicer covenants and agrees
to the following:


 


5.01                        Government Approvals.  The Servicer
shall maintain all licenses, permits, approvals and qualifications necessary to
carry out its obligations under this Agreement.


 


5.02                        Insurance. 
Servicer and subcontractors engaged by Servicer to provide Services under
this Agreement shall also be required to maintain the insurance described
herein at limits acceptable to Servicer and FMC:


 


(a) Commercial General
Liability insurance on an occurrence basis, on Insurance Services Office (“I.S.O.”)
form CG 00 01 or its equivalent, at a limit not less than [**] per
occurrence/[**] aggregate. This insurance shall be endorsed to include as
Additional Insured “FMC and its subsidiary and affiliated companies, as their
interests may appear.” The required limits may be arranged through a
combination of primary and excess policies, as needed. A copy of the additional
insured endorsement must be attached to the certificate of insurance Servicer
provides to FMC.


 


(b) Automobile Liability
insurance for any vehicles operated by the Servicer or its employees in
connection with work or Services performed under this Agreement, including
owned, non-owned, borrowed, and hired autos, at limits not less than [**] per
accident.


 


(c)
For contracts where Servicer’s personnel will have access to or control over
physical or electronic property of FMC or Owner and/or their customers and/or
clients, Employee Dishonesty coverage (also known as a Fidelity Bond), covering
all employees and agents of the Servicer, at a limit not less than [**] for
each occurrence . This policy shall be endorsed to include as Loss Payees “Owner
and its subsidiary and affiliated companies, as their interests may appear,”
and shall extend to the misappropriation of physical or electronic property of
others in the possession or control of Service Personnel. Servicer shall
provide FMC with a copy of this policy prior to commencing work upon FMC’s
request, and thereafter annually upon FMC’s reasonable request. A copy of the
Loss Payee endorsement or provisions shall also be attached to any certificate
of insurance Servicer provides to FMC as evidence of this coverage.



 14














 


 


All coverage shall be
maintained with insurers licensed to transact insurance business in the
state(s) where Servicer maintains offices or operations. The insurers shall
have an A. M. Best rating of A- or better; deviations from that standard are
subject to review and approval by FMC. Servicer shall furnish Certificates of
Insurance and any required copies of policies or endorsements prior to
commencing any work under this Agreement and thereafter within 10 days of the
renewal or replacement of any of the insurance policies described in the
Certificates. Certificates of Insurance shall include an undertaking by the
insurer to provide 30 days prior written notice of cancellation or material
change in coverage(s).


Upon FMC’s request,
Servicer shall provide FMC with a copy of any policy or endorsement required
hereunder. Regardless of any limitations to any indemnification of FMC or Owner
by Servicer as may be stated elsewhere in this Agreement, Servicer expressly
understands and agrees that if Servicer fails to maintain any of the required
insurance coverages, Servicer shall be directly liable for claims that would
otherwise be covered by the insurance required of Servicer, its vendors and/or
subcontractors. Servicer shall also be responsible for the payment of any
applicable deductibles.


 


5.03                        Notification. 
Servicer shall promptly notify FMC in writing of (a) the occurrence of
any event which, if it had existed on the date of this Agreement, would have
required qualification of the representations and warranties set forth in
Section 6 (Representations and Warranties) herein; (b) a Material Adverse
Change, including but not limited to,
material financial difficulty, other catastrophic event, material change in
strategic goals, or significant staffing changes; or (c) any material
litigation which if adversely determined would cause a Material Adverse Change.


 


5.04                        Accuracy of Reports. 
All reports, transmittals, records or data files required, maintained or
provided by Servicer hereunder shall be accurate in all material respects, and
FMC shall have the right to rely thereon.


 


5.05                        Work Performed in United States.  Unless this Agreement specifically provides
otherwise, all Services must be performed in the United States and all
Proprietary Information and Customer Information, must be stored, maintained,
accessed from, and utilized only by employees and sub-contractors in the United
States.


 


5.06                        No Subcontractors. With the exception of skip tracing services, the Servicer shall not
utilize or engage a subcontractor to perform any Services under this Agreement
without the prior written consent of FMC. 
To the extent subcontractors perform any services under this Agreement,
the Servicer shall be liable for the performance of such subcontractors.  Any subcontractors who are approved by FMC
and persons hired by Servicer for skip tracing services must sign FMC’s
standard form of Confidentiality Agreement and are subject to the
confidentially and privacy and security obligations of Section 14.07 hereof.
Servicer shall advise FMC upon periodic request of the entities to which it has
subcontracted skip tracing services.


 


5.07                        OFAC
Check.  All Servicer employees
performing Services or supporting Servicer activities under this Agreement,
regardless of their location, shall be validated by Servicer to not be on any
list published and maintained by the Government of the United States of America
of persons or entities with whom any U.S. person or entity is



 15
 






 



 


prohibited from
conducting business.  Currently, the
lists of such persons or entities can be found on the following web site:


 


The Specialty Designated
Nationals and Blocked Persons List of the Office of Foreign Assets Control —
Department of Treasury at
http://www.ustreas.gov/offices/enforcement/ofac/sdn/index.html.


 


In the event of Servicer
becoming aware of any Servicer employee involved in providing Services being
included in the list of prohibited persons or entities, Servicer shall provide
FMC with immediate notice thereof.


 


Servicer shall conduct
periodic reviews, no less frequently than quarterly, of the lists mentioned
above.  Servicer shall report to FMC
immediately if the name of any Servicer employee performing the Services
matches with the name of any person listed on any list published by the
Government of the U. S. of persons or entities with whom any U. S. person or
entity is prohibited from doing business.


 


5.08                        FACT
Act, PATRIOT Act and OFAC Check. 
Servicer’s performance of its Servicing obligations under this Agreement
in conformity with all applicable laws shall include, without limitation,
compliance with the requirements imposed on Owner and Insurer as users and
furnishers of consumer report information under the Fair and Accurate Credit
Transactions Act of 2003 and all regulations issued pursuant thereto, including,
without limitation, timely and lawful response to any identity theft report
received from any Borrower or consumer reporting agency and the obligation to
respond to a credit report reinvestigation request in accordance with the
Identity Theft Procedures.  Servicer
shall notify Owner if it becomes aware that any Borrower is on any list
published and maintained by the government of the United States of America of
persons or entities with whom the Owner’s transaction of business is
restricted, as those lists are currently set forth in Section 5.07 above and as
may be hereafter required by applicable law.


 


5.09                        Further Assurances.  At any time,
upon the reasonable request of FMC (or its nominee) or any Owner (or its
nominee), and subject to Servicer’s reasonable charges and reimbursement of any
out-of-pocket expenses, Servicer shall execute and deliver to such requesting
party or its designee such other certificates, agreements and instruments and
take such actions as such requesting party or its designee may reasonably
request in connection with its compliance with any legal or regulatory
requirements, including, without limitation, any certifications required to be
delivered by such requesting party under any Securities and Exchange Commission
or other securities requirement or in connection with the Sarbanes-Oxley Act of
2002.


 


SECTION 6.  REPRESENTATIONS AND WARRANTIES


 


The Servicer represents and warrants to FMC (and
these warranties and representations shall be deemed continuing and repeated as
of the date each Student Loan shall become subject to this Agreement) as
follows:


 


6.01                        Existence.  The Servicer is a public corporation duly
organized and validly existing and



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in good standing under the laws
of the Commonwealth of Pennsylvania, and is duly qualified to do business in
all jurisdictions where its failure to so qualify would materially impair its
ability to perform its obligations under this Agreement.


6.02                        Right
to Act.  No registration with or
approval of any governmental agency (except for approval as to form and
legality by the Attorney General for the Commonwealth of Pennsylvania) is
required for the due execution and delivery or enforceability of this
Agreement. The Servicer has legal power to execute and deliver this
Agreement under the laws of Pennsylvania and to perform such Services and
observe the provisions herein under the laws
of Pennsylvania. By executing and delivering this Agreement, and by performing
and observing the provisions of this Agreement, the Servicer will not
violate any existing provision of its Articles of Incorporation or its bylaws or any applicable law or violate or
otherwise become in default under any existing contract or other obligation
binding upon the Servicer. The officers executing and delivering this Agreement
have been duly authorized to do so, and this Agreement is legally binding upon
the Servicer and enforceable against the Servicer in every respect.


6.03                        Intellectual Property and Software Rights.  Servicer’s performance of its obligations
under this Agreement will not infringe any patent, trademark, copyright, or any
trade secret or other proprietary right of any third party. Servicer is the
lawful owner or licensee of any software programs or other materials used by
Servicer in the performance of the Services called for in this Agreement.


6.04                        Accuracy and Continued Validity of Servicer’s Financial Status.
 The Servicer has furnished to FMC
financial reports, which in the opinion of the Servicer fairly and accurately
reflect the financial operations of the Servicer and there has been no Material
Adverse Change in the Servicer’s financial prospects since the date the report
was provided which would require revision of the same.  No representation or warranty made by the
Servicer under this Agreement and no statement made by the Servicer in any
financial statement, certification, report, exhibit or document furnished by
the Servicer to FMC pursuant to or in connection with this Agreement is false
or misleading in any material respect (including by omission of material
information necessary to make such representation, statement or warranty not
misleading) as of the date given or made.


6.05                        OFAC Check.  Neither Servicer ,nor any of its
subsidiaries, Affiliates, directors, officers, agents, or employees is


(a)                                  an
individual or entity that is listed in the annex to, or is otherwise subject to
the prohibitions contained in, Executive Order No. 13224 on Terrorist
Financing, effective September 24, 2001 (the “Executive Order”) or the Office
of Foreign Asset Control (“OFAC”) regulations;


(b)                                 an
individual or entity with whom FMC is prohibited from dealing or otherwise
engaging in business under any U.S. law, regulation, executive order and/or
lists published by OFAC (including those executive orders and lists published by
OFAC);



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(c)                                  an
individual or entity that is named on the most current list of “Specially
Designated Nationals and Blocked Persons” published by OFAC on its official
website or any replacement website or other replacement official publication of
such list; or


(d)                                 an
individual or entity with which any financial institution is prohibited from
dealing or otherwise engaging in any transaction under any laws or regulations
related to terrorism or money laundering.


6.06                        Ongoing
Obligation.  If at any time during
the term of this Agreement, any of the representations contained in this
Section 6 are no longer true, Servicer will immediately notify FMC, and FMC
shall have the immediate right to terminate this Agreement, without further
obligation or penalty.  FMC will not be
required to pay any Early Termination or Record Return/Deconversion fee if this
Agreement is terminated pursuant to this Section 6.06.


SECTION 7. 
INSPECTIONS: AUDITS 


7.01.                     FMC Audit of Books and Records. FMC, its
accountants, auditors, representatives and any Federal, state or local
governmental or quasi-governmental officials with regulatory authority over FMC
or FMC Affiliates shall have the absolute right, at FMC’s expense, upon not
less than twenty (20) days prior notice (or such shorter notice period as
required by law), at any time during or after the term hereof:


(i)
to audit or examine all books, records, documents, other writings, information,
whether in hard copies, electronic form or otherwise, relating to Services to
be provided by Servicer under this Agreement at the location(s) where Servicer
maintains such books, records, documents, writings and information; and


(ii)
to conduct such other examinations, tests or investigations with respect to the
Services to be provided under this Agreement as FMC may deem necessary or
desirable in FMCs sole and absolute discretion and at FMC’s expense, it being
acknowledged and agreed by Servicer that FMC shall have full and unrestricted
rights of access to books, records, documents, other writings and information,
whether in hard copies, electronic form or otherwise, relating to the Services
to be provided by Servicer under this Agreement, at any time during normal
business hours.


7.02.                     Sarbanes Oxley Compliance. If requested
by FMC, Servicer shall participate in Sarbanes-Oxley Act of 2002 (“Sarbanes
Oxley”) compliance testing conducted by FMC with respect to the Services on a
quarterly basis and shall provide documents and information as reasonably
requested by FMC to conduct such compliance testing. Servicer agrees to provide
any assistance reasonably requested by FMC to enable FMC to comply with
Sarbanes Oxley, the rules of the Public Company Accounting Oversight Board and
rules of the Securities and Exchange Commission relating to disclosure controls
and procedures and inquiries by the SEC or other regulatory agency. Such



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assistance
shall include but shall not be limited to: (i) documenting Servicer’s controls
and procedures relating to the Services; (ii) cooperating with FMC’s auditors
in connection with the testing of such controls and procedures; (iii) making
quarterly representations or certifications to FMC regarding any material
changes to such controls and procedures; (iv) remediating any material weakness
or significant deficiency that would prevent FMC from complying with Sarbanes
Oxley or any rules or regulations promulgated thereunder; and (v) providing an
unqualified SAS 70 Type 2 Report issued by an independent certified public
accounting (CPA) firm in connection with its provision of the Services.


7.03.                     SAS 70 Audit. Servicer will engage, at its expense, an
independent CPA firm that adheres to professional standards established by the
American Institute of Certified Public Accountants (AICPA) to conduct reviews
of Servicer’s general controls associated with Servicer’s facilities, as well
as the controls associated with the Services and the programs used to provide
the Services, including but not limited to controls over information technology
and related processes, The scope of the audit shall include all such matters as
Servicer’s auditor deems necessary or required to meet regulatory compliance
standards, including but not limited to an examination of the record keeping
system and other equipment and software used by Servicer. Such reviews shall be
performed at such frequency and times as Servicer shall determine, but shall be
performed at least once annually. Within thirty (30) days of its receipt by
Servicer, Servicer shall provide FMC with a copy of each report submitted by
Servicer’s independent accountants regarding any of the matters set forth in
this paragraph. All such reviews shall comply with AICPA Statement on Auditing
Standards (SAS) No. 70, and the reports obtained shall be of the type generally
referred to (depending on the publication) as either Type “II” or “B”. In a
Type II report, the Servicer auditor will express an opinion on (1) whether the
Servicer’s organization description of its controls presents fairly, in all
material respects, the relevant aspects of the Servicer’s organization controls
that had been placed in operation as of a specific date, and (2) whether the
controls were suitably designed to achieve specified control objectives, and
(3) whether the controls that were tested were operating with sufficient effectiveness
to provide reasonable, but not absolute, assurance that the control objectives
were achieved during the period specified. If the Servicer’s auditor procedures
reveal exceptions or control deficiencies, then Servicer shall take steps to
correct the control objective, at no cost to FMC.


7.04.                     Operational Audits. Upon twenty (20) days notice from FMC,
and subject to Servicer’s reasonable security requirements, Servicer shall
provide to FMC (and FMC’s internal and external auditors, inspectors, regulators
and other representatives that FMC may designate from time to time) access at
reasonable hours to Servicer’s personnel, to the facilities at or from which
Services are then being provided, and to Servicer’s records and other pertinent
information, all to the extent relevant to the Services and Servicer’s
obligations under this Agreement. Such access shall be provided for the purpose
of performing audits and inspections of Servicer and its businesses and to
examine Servicer’s performance of loan servicing under this Agreement including
(i) verifying the integrity of the Servicer data; (ii) examining the controls
(e.g., organizational controls, input/output controls, system modification
controls, system design controls and access controls) and the security,
disaster recovery and back-up practices and procedures; (iii)



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examining
Servicer’s measurement, monitoring and management tools; and (iv) enabling FMC
to meet applicable legal, regulatory and contractual requirements. Servicer
shall provide any assistance reasonably requested by FMC or its designee in
conducting any such audit.


7.05                        Regulatory Audits. Within
thirty (30) days of its receipt, Servicer shall provide FMC with a summary of
any audit results performed by a federal or state regulator concerning the
Services provided under this Agreement, including but not limited to the
Department of Education. The content of any such summary shall be subject to
Servicer’s reasonable security requirements. When the regulatory auditor’s
procedures reveal exceptions or control deficiencies, then Servicer shall take
steps to correct the control design deficiency or operating effectiveness
deficiency in all material respects. If such audit reveals that the services
provided by Servicer do not cause Servicer’s operations to meet the auditor’s
recommendation, then Servicer shall provide such further services as are
necessary to bring its operations into conformance with the auditor’s
recommendations to such level and degree, at no cost to FMC.


7.06.                     Financial and Other Information. Servicer
shall provide FMC with the following:


(a)
Within forty-five (45) days after the end of each of the first three quarters
of each fiscal year, unaudited financial statements of Servicer for such
quarter, setting forth the information called for as of the end of, and for
such quarter as described in paragraph (b) of this Section 7; and


(b)
Within 120 days after the close of each fiscal year of Servicer, a copy of an
annual report as to the obligations and activities of Servicer during such
fiscal year, and financial statements for such fiscal year, setting forth in
reasonable detail:


(i)
the balance sheet for Servicer and its programs showing the assets and
liabilities of the programs at the end of such fiscal year;


(ii)
a statement of Servicer’s revenues and expenses in accordance with the categories
or classifications established by Servicer for its operating and program
purposes and showing the revenues and program expenses during such fiscal year;
and


(iii)
a statement of changes in financial position, including changes in financial position
of Servicer’s programs, as of the end of such fiscal year.


The
annual report shall be accompanied by an Independent Auditor’s Report stating
that the financial statements present fairly, in all material respects, the net
assets of the Servicer as of the years stated, and its changes in net assets
and cash flows for the years then ended, in conformity with accounting
principles generally accepted in the United States of America.


7.07.                   Annual Statement as to Compliance. The
Servicer shall deliver an annual report to FMC on or prior to March 31 of each
year commencing March 31, 2006, signed by the Chief Executive Officer (“CEO”)
or Executive Vice President (“EVP”) of the Servicer,



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stating
that (a) a review of the activities of the Servicer, and the Servicer’s
Performance under this Agreement, for the previous twelve (12) months ending
September 30 has been made under such CEO’s or EVP’s supervision and (b) to the
best of such CEO’”s or EVP’s knowledge, based on such review, the Servicer has
or has caused to be performed all of its obligations under this Agreement
throughout such year and that no default has occurred, or if such a default has
occurred and is continuing, specifying each such event, the nature and status
thereof and the steps necessary to remedy such affair. In the event that the
Servicer has delegated any servicing responsibilities with respect to the
Student Loans to a subservicer or subcontractor, the Servicer shall deliver a
similar annual report by any such subservicer or subcontractor as described
above as and when required with respect to the Servicer.


7.08.                     Annual
Independent Public Accountant’s Servicing Reports; Assessments
of Compliance and Attestation Reports. On and after January
1, 2006, the Servicer shall service and administer all Student Loans in
accordance with all applicable requirements of the servicing criteria set forth
in Item 1122(d) (the “Servicing Criteria”) of Regulation AB (17 C.F.R. §§
229.1100 - 229.1123) (“Regulation AB”) promulgated by the Securities and
Exchange Commission (the “SEC”) under the Securities Act of 1934, as amended
(the “Exchange Act”).  Pursuant to Rules
13a-18 and 15d-18 of the Exchange Act and Item 1123 of Regulation AB, the
Servicer shall deliver to FMC, the related Trustee and any other Permitted
Assignee, at the cost and expense of FMC, the Trustee, or a Permitted Assignee,
on or before August 31 of each year commencing in 2006, a report regarding the
Servicer’s assessment of compliance (an “Assessment of Compliance”) with the
Servicing Criteria during the previous twelve (12) months ending June 30.  The Assessment of Compliance must be
reasonably satisfactory to the related Trustee, and as set forth in Regulation
AB, the Assessment of Compliance must contain the following:


(a)                                  A
statement by a Servicing officer of such Servicing officer’s responsibility for
assessing compliance with the Servicing Criteria applicable to the Servicer;


(b)                                 An
assessment by such Servicing officer of the Servicer’s compliance with the
applicable Servicing Criteria for the period consisting of the previous twelve
(12) months ending June 30, including disclosure of any material instance of
noncompliance with respect thereto during such period, which assessment shall
be based on the activities the Servicer performs with respect to asset-backed
securities transactions taken as a whole involving the Servicer, that are
backed by the Student Loans;


(c)                                  A
statement that a registered public accounting firm has issued an attestation
report on the Servicer’s Assessment of Compliance for the period consisting of
the previous twelve (12) months ending June 30; and


(d)                                 On
or before August 31 of each year commencing in 2006, the Servicer shall furnish
to FMC, the related Trustee and any other Permitted Assignee a report (an “Attestation
Report”) by a registered public accounting firm that attests to, and reports
on, the Assessment of Compliance made by the Servicer, as required by



 21
 






 



 


Rules 13a-18 and 15d-18 of the Exchange Act and Item 1122(b) of
Regulation AB, which Attestation Report must be made in accordance with
standards for attestation reports issued or adopted by the Public Company
Accounting Oversight Board.


The Servicer shall cause any subservicer, and any subcontractor determined
by the Servicer to be “participating in the servicing function” within the
meaning of Item 1122 of Regulation AB, to deliver to FMC, the related Trustee
and any other Permitted Assignee an Assessment of Compliance and Attestation
Report as and when provided above.


Each of the parties to this Agreement acknowledges and agrees that the
purpose of this Section 7.08 of this Agreement is to facilitate compliance with
the provisions of Regulation AB, as such may be amended from time to time and
subject to clarification and interpretive advice as may be issued by the staff
of the SEC from time to time.  Therefore,
each of the parties agrees that (a) the obligations of the parties hereunder
shall be interpreted in such a manner as to accomplish that purpose, (b) the
parties’ obligations hereunder will be supplemented and modified as necessary
to be consistent with any such amendments, interpretive advice or guidance,
convention or consensus among active participants in the asset-backed
securities markets, advice of counsel, or otherwise in respect of the
requirements of Regulation AB, (c) the parties shall comply with requests made
by FMC, the Administrator, any Trustee or other Permitted Assignee for delivery
of additional or different information as FMC, the Administrator, any Trustee
or other Permitted Assignee may determine in good faith is necessary to comply
with the provisions of Regulation AB, and (d) no amendment of this Agreement
shall be required to effect any such changes in the parties’ obligations as are
necessary to accommodate evolving interpretations of the provisions of
Regulation AB.


7.09                      Cooperation with Audits; Follow-Up. Servicer
shall fully cooperate with any audit(s) conducted by either FMC, FMC’s agent,
or a U.S. federal agency pursuant to this Agreement. Servicer shall not charge
FMC for the management hours or fees with respect to the time spent by Servicer’s
management and employees reasonably necessary in providing assistance to FMC,
FMC’s internal and external auditors, or any governmental authority performing
any audits, compliance, security and control testing. If any audit report
establishes that Servicer’s performance of the Services is not in compliance
with the terms of this Agreement, Servicer shall submit to FMC within thirty
(30) days of its receipt of the relevant audit report a plan to improve
Servicer’s performance to the level required by this Agreement. In the event
that any financial audit report reveals that any changes or expenses have been
overbilled or underbilled, then FMC shall make adjustment in the fees and
invoices as necessary on a prospective basis in future months as necessary to
correct errors or maintain compliance with the Agreement, or Servicer or FMC
shall render a payment to the other party as necessary to correct the
discrepancy.


7.10                        Accelerated and Emergency Audits.  In the event that FMC has the right to
terminate this Agreement under Section 14 (Termination), whether or not such
right is exercised, FMC shall have the right to perform or cause to be
performed any audit, examination or inspection described in this Agreement,
without any limitations or requirements as to



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notice,
frequency, duration, business interruption, or other such limitation or
requirement for the benefit of the Servicer. All costs of such an accelerated
or emergency audit shall be borne by FMC.


SECTION 8.  CHARGES AND
PAYMENTS.


8.01                        Fees.  The Servicer shall provide all aspect of the
Services at its sole cost and expense, except as otherwise provided in this
Agreement, and shall be compensated as set forth this Agreement, including
without limitation the Fee Schedule.


8.02                        Rate Change.  To the extent that an increase
occurs in the costs incurred by the Servicer in providing the Services
hereunder due to: (a) changes in the Servicing Guidelines or this Agreement,
including without limitation the Service Level Agreement, (b) legislative and
regulatory changes beyond the control of the Servicer which pertain to the
manner of servicing of the Student Loans in accordance with Section 4.01
herein, (c) changes in United States Postal Service postage rates, or (d)
material changes requested by FMC in the Services provided herein, including
but not limited to changes contemplated in Section 4.09 hereof, the Servicer
shall have the right to make a compensating increase to the Servicing fees set
forth herein and in the Fee Schedule.


Such increase shall be limited to Servicer’s actual
incremental cost increase resulting from such changes.  Servicer shall give FMC ninety (90) days
prior written notice before implementing any such increase in Servicing fees
pursuant to this Section. Such notice shall set forth the bases of, as well as
the computation used in determining, any increase.


8.03                        Invoices.  Invoices for the Servicer’s Services, including
the collection of Late Fees collected on behalf of FMC or any Owner as set
forth in Section 4.14 herein and the Fee Schedule, shall be rendered by the
Servicer after each month end with payment to be paid by FMC or the Owner, and
shall be delivered electronically, or, upon request by FMC or the Owner, as a
paper copy. Separate invoices shall be rendered for each Owner.  All invoices are payable net forty-five (45)
days from the date of the invoice.  If
full payment is not received within sixty (60) days of the invoice date, except
as to amounts which are under good faith dispute, the Servicer may assess an
interest charge of [**]% per month ([**]% annual percentage rate) on the unpaid balance from
the date of the initial billing until fully paid.  FMC or the affected Owner shall report any
disputes to the Servicer regarding an invoice for Servicing within sixty (60)
days of the invoice, and the Servicer shall research the disputed item and
respond to FMC or the affected Owner(s).


SECTION 9.  LIABILITY 


The Servicer agrees to pay for any claim, loss,
liability or expense, including reasonable attorney’s fees, which arises out of
or relates to the Servicer’s acts or omissions with respect to the Services
provided under this Agreement (including, without limitation, any refusal of
the Insurer to pay any claim based on Servicer’s failure to conform to the
Servicing Guidelines), where the final determination of liability on the part
of the Servicer is established by an arbitrator, by a court of law with
competent jurisdiction over the Servicer or by way of



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settlement agreed to by the Servicer. This provision
shall not be construed to limit the Servicer’s or FMC’s rights, obligations,
liabilities, claims or defenses which arise as a matter of law or pursuant to any
other provision of this Agreement. This provision shall take effect as of the
date on which each individual Student Loan is converted to the Servicer’s
servicing system and shall apply to default claims rejected or paid subject to
penalty due to errors on the part of the Servicer which occur after the date of
conversion to the Servicer’s system. Furthermore, nothing herein shall
be read or construed as a waiver of the sovereign immunity of the Commonwealth
of Pennsylvania, except to the extent authorized by the laws of said
Commonwealth.


The Commonwealth
of Pennsylvania has created the Board of Claims, pursuant to the provisions of
the act of May 20, 1937, P.L. 728, as amended by the act of October 5, 1978,
Act No. 260, 72 P.S. 4651-1 et seq., for the adjustment of claims arising from
contracts entered into by the Commonwealth or an agency of the Commonwealth.
Subject to the statutory jurisdictional requirements, any and all claims
against PHEAA respecting any matter pertaining to this Agreement or any part
thereof may be instituted in the Board of Claims.


FMC agrees to pay for any claim, loss, liability
or expense, including reasonable attorney’s fees and court costs, arising out
of or relating to FMC’s acts or omissions with respect to the Student Loans covered
by this Agreement, where the final determination of liability on the part of
FMC is established by an arbitrator, by a court of law or by way of settlement
agreed to by FMC. This provision shall not be construed to limit FMC’s or the
Servicer’s rights, obligations, liabilities, claims or defenses which arise as
a matter of law or pursuant to any other provision of this Agreement.


If the Insurer rejects a claim on account of
Servicer’s failure to conform to the Servicing Guidelines in Servicing a Student
Loan, the Servicer will start the cure process described in the Servicing
Guidelines for the purpose of reinstating FMC’s or any Owner’s claim against
the Insurer. (Student Loans in such status are hereinafter referred to as
Student Loans in “Cure Status”). An indicator will be placed in the Student
Loan record indicating the start (and the date) of Cure Status. Within twelve
(12) months of the initiation of Cure Status, if Insurance has not been
reinstated in accordance with the Servicing Guidelines, the Servicer shall
purchase any such Student Loan by paying to FMC or the Owner (as applicable) an
amount equal to the principal balance and all accrued and unpaid interest
through the date of purchase. The Owner will assign its right, title and
interest in any Credit Agreement to the Servicer where the Servicer has
purchased such note. Within thirty (30) days after a final determination
pursuant to Section 9 that Servicer was not responsible for causing the loss of
Insurance, FMC will repurchase any and all such uninsured Student Loans for an
amount equal to the purchase price plus any other costs incurred by Servicer in
their purchase.


SECTION 10.  FORCE
MAJEURE


10.01                 Neither Servicer nor FMC shall be liable
for any failure or delay in the performance of its obligations under this
Agreement to the extent such failure or delay is caused by any acts of war,
terrorism, civil riots or rebellions, quarantines, embargoes and other similar
unusual governmental actions, extraordinary elements of nature or acts of God,
judicial or governmental action, emergency regulation or labor dispute or
unrest, provided that and only to the extent that Servicer or FMC could not
reasonably circumvent the failure or delay through the use of commercially
reasonable alternate sources, workaround plans or



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other
means (“Force Majeure”). An event shall not be considered a Force Majeure event
to the extent that proper implementation of the Business Continuity Plan (as
defined below) would have enabled the Servicer to continue performance
hereunder in a timely manner. The occurrence of a Force Majeure event shall not
excuse the Servicer from having in place reasonable safeguarding plans and
procedures adequate for protecting all Proprietary Information and Customer
Information of FMC and any Owner.


Notwithstanding
any other provision of this Section, a Force Majeure event shall obligate and
require Servicer to commence its Disaster Recovery Plan (as defined below). If
any Force Majeure event prevents, hinders or delays performance of the critical
Services for more than three (3) days or results in data loss in excess of
forty-eight (48) hours, FMC may procure any affected Services from an alternate
source at FMC’s cost and expense.  If the
Force Majeure event continues to prevent, hinder or delay performance of any
Services which are of a critical nature for an additional four (4) days, FMC
shall have the right to terminate this Agreement on not less than fifteen (15)
days prior written notice to Servicer, provided that Servicer will be responsible
to continue Services up to the effective date of such termination.  FMC shall not be required to pay any Early
Termination or Record Return/Deconversion Fees for a termination of this
Agreement pursuant to this Section.


10.02                 Without limiting Servicer’s obligations
under this Agreement, whenever a Force Majeure event causes Servicer to
allocate limited resources between or among Servicer’s customers, FMC and any
Owner, as applicable, shall be treated at least as favorably as Servicer’s most
favored customers.


 SECTION 11.  CONFIDENTIAL INFORMATION/PRIVACY/SECURITY


11.01.              Proprietary/Confidential
Information.  Each party
understands and acknowledges that in the performance of this Agreement, each
party (the “Recipient”) will gain access to certain nonpublic information,
material and data, hereinafter referred to as “Proprietary Information”,
relating to the other party (the “Disclosing Party”), which may include, but
not be limited to, FMC’s customer information, the Disclosing Party’s technical
and financial data, design, process, procedures, formula, business logic,
presentation or strategy, new products and marketing plans that are
commercially valuable to such Disclosing Party and all trade secrets, ideas,
know-how, data, compilations, inventions, literary, artistic, graphical
or other works and improvements, in each case whether or not patentable,
copyrightable or otherwise subject to intellectual or industrial property
protection, and whether or not registrable or subject to any registrations or applications
therefor, and any of the same relating to or owned by any subsidiary or
affiliate of the Disclosing Party.


(i)                                     Recipient
agrees to keep all such Proprietary Information confidential, and not disclose,
transfer, use, copy, or allow any employees or any third parties access to any
such Proprietary Information, except for those who have a need to know such
Proprietary Information in order for the Recipient to accomplish the
requirements of this Agreement and who are individually bound by contractual
obligations of confidentiality and limitation of use sufficient to give effect
to this Section 11. Recipient will (a) keep all
documents and any other material



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containing or incorporating any of the Proprietary Information at the usual
place of business of Recipient, subject to physical access restrictions
acceptable to Disclosing Party, (b) not use, reproduce, transform or store any
of the Proprietary Information in any externally accessible computer or
electronic information retrieval system unless such system is adequately
protected against unauthorized access, and (c) make copies of the Proprietary
Information only to the extent that the same is required pursuant to the
purposes of this Agreement. In no event shall Recipient disclose any
such Proprietary Information to any competitors of Disclosing Party.  In the event of a joint venture between
Servicer and another entity, Servicer agrees to maintain the confidentiality of
all such Proprietary Information of FMC and not to disclose the same in any manner
to the joint venture entity without the prior written consent of FMC.  Upon request by the Disclosing Party and upon
termination of this Agreement, the Recipient shall promptly return all such
Proprietary Information retaining no copies and remove any copies of the Proprietary Information in any form
whatsoever on the Recipient’s computer and information storage systems.  Recipient shall also provide to the
Disclosing Party a written certification of destruction signed by an officer of
the Recipient duly authorized to legally bind the Recipient certifying and
warranting that no copies of the
Proprietary Information have
been retained.  Recipient agrees and
understands that the Disclosing Party retains all right, title and interest in
and to all of its Proprietary Information and any intellectual property and
industrial rights therein, including (without limitation) any patents,
copyrights and registrations thereof and applications therefor, and the
Disclosing Party will have all the rights and remedies available to it as a
result of such right, title and interest. 
This Agreement does not grant or constitute an assignment of or license
in or to any such Proprietary Information or intellectual or industrial
property, including, without limitation, for the development, manufacture or
sale by Recipient of products or services based on Proprietary Information or
for any other use of Proprietary Information by Recipient except as expressly
provided herein.


(ii)                                  Recipient’s
duty hereunder shall not extend to such Proprietary Information which (a) is
rightfully received by Recipient from a third party under no duty of
confidentiality to the Disclosing Party; (b) is approved in writing by
Disclosing Party for disclosure;  (c) is
already in the public domain or which, after disclosure, becomes part of the
public domain or otherwise generally available to the public through
publication or otherwise through no fault of the Recipient (d) the Recipient
can show is lawfully in its possession at the time of disclosure and was not
acquired, directly or indirectly, from the Disclosing Party or anyone else who,
to the knowledge of the Recipient, was subject to any obligations of
confidentiality to the Disclosing Party, (e) developed independently from the
Disclosing Party and which the Recipient can show by contemporaneous records
were developed without reference to the Disclosing Party’s Proprietary
Information or (f) is compelled by a validly issued subpoena, court order,
governmental request or request of a law enforcement agency.


(iii)                               Recipient
acknowledges that the Disclosing Party shall have the right to take all
reasonable steps to protect their interests in keeping the Proprietary
Information and the Confidential Information confidential, including, but not
limited to, injunctive relief and any other remedies as may be available at law
or in equity in the event Recipient does not fulfill its obligations under this
Section 6.


11.02                 Privacy.          Each
Party shall comply with all federal and state laws, and rules



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and regulations of
applicable regulatory agencies, protecting the Confidential Information and
privacy rights of FMC, its customers and consumers, including, without
limitation, Title V of the federal Gramm-Leach-Bliley Act and federal regulations implementing such act,
Interagency Guidelines Establishing Standards For Safeguarding Customer
Information and codified at 12 C.F.R. Parts 30, 208, 211, 225, 263, 308, 364,
568, and 570. and the federal Economic Espionage Act (18 U.S.C. Section
1831 et seq). Servicer will not directly or indirectly reuse or redisclose to
any Affiliate (as defined below), or any unaffiliated entity or person, any
Confidential Information, including but not limited to, any personally
identifiable consumer information, provided by FMC under this Agreement for any
purpose other than to perform the activities contemplated by this Agreement. All Confidential Information in the possession of
Servicer, other than information independently obtained by Servicer and not
derived in any manner from information obtained under or in connection with
this Agreement, is and shall remain confidential and proprietary information of
FMC, TERI, and/or the applicable Program Lender. If Servicer proposes to
disclose Customer Information to any person or entity to assist Servicer to
perform its duties under this Agreement, Servicer shall first enter into a
written confidentiality agreement with such person or entity under which that
person or entity would be restricted from disclosing, using or duplicating such
Customer Information, except as contemplated under this Agreement.  Notwithstanding any such confidentiality
agreement, Servicer shall remain liable to FMC, Program Lender or any Owner, as
applicable, for any failure of such person or entity to comply with such
confidentiality agreement to the extent that such noncompliance, if engaged in
by Servicer, would be a breach of this Agreement.


For
purposes of this Agreement “Affiliates” means all current or future
corporations that directly or indirectly, through one or more intermediaries,
Control (as defined below) or are Controlled by, or are under common Control
with, FMC or Servicer  or that are
successors (whether by change of name, dissolution, merger, consolidation, reorganization
or otherwise) to any such corporations or their businesses and assets.  “Control” means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of an entity through the majority ownership of voting securities.


For purposes of
this Agreement, “Confidential Information” shall mean all data; records;
correspondence; reports; borrower lists; documents; any personally identifiable information or records in any form (oral,
written, graphic, electronic, machine-readable, or otherwise) relating to a
Borrower, including, but not limited to: a Borrower’s name, address, telephone
number, social security number, account number, loan payment or transactional
account history, account status, and the fact that the Borrower has a
relationship with a Program Lender and Owner; other Borrower
information; or other documentation received by Servicer pursuant to the
Agreement from FMC, or from the Borrower, or from the school which Borrower
attends, or information prepared and maintained by Servicer in the course of
its activities under this Agreement.


Servicer agrees
not to utilize any Confidential Information, including
but not limited to the marketing of products or services to, or the
solicitation of business from, Borrowers, unless it is necessary to do
so in order to fulfill an obligation under this Agreement.  Servicer also agrees that it will not sell,
disclose, transfer, or rent any Confidential Information to any third party nor
will it use any Confidential Information on behalf of any third party, without
the express written



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permission of FMC
and the relevant Borrower.  Servicer
shall use a digital certificate on the web server to enable the use of SSL and
HTTPS protocols. All internet transfers of Confidential Information and screen
images of the same shall be encrypted.


Servicer
acknowledges that money damages may be both incalculable and an insufficient
remedy for any breach of this provision by Servicer and that any such breach
may cause FMC irreparable harm. 
Accordingly, Servicer agrees that in the event of any breach or
threatened breach of this Section, FMC, in addition to any other remedies at
law or in equity that it may have, shall be entitled without requirement of
posting a bond or other security, to equitable relief, including injunctive
relief and specific performance without proof of actual damages.


11.03                 Security
Program.  Notwithstanding
anything herein to the contrary, Servicer may receive or otherwise have access
to “Customer Information” (as defined in Appendix B to 12 CFR §30), in
connection with providing Services to FMC pursuant to the terms of the
Agreement.  Servicer shall implement and
maintain an appropriate security program for Customer Information designed to
meet the following Objectives, as defined below, of the Interagency Guidelines
Establishing Standards for Safeguarding Customer Information pursuant to the
authority of Section 501(b) of the Gramm-Leach-Bliley Act of 1999 (“Information
Security Program”).  “Objectives” means a
program designed to (i) ensure the security and confidentiality of Customer
Information (as defined below); (ii) protect against any anticipated threats or
hazards to the security or integrity to Customer Information, and (iii) protect
against unauthorized access to or use of Customer Information that could result
in substantial harm or inconvenience to any “Customer” (as defined in 12 CFR §
40.3 (h)).  Servicer shall provide FMC on
or prior to the Effective Date and thereafter, upon request, with a copy of its
information security and assurance policy and any updates or amendments
thereto. Servicer agrees that upon reasonable notice and at Servicer’s
convenience, FMC may come to Servicer’s place of business and review the
specifics of Servicer’s security plan with Servicer.  It is understood and agreed that Servicer
shall not be required to have an Information Security Program in place that
implements every security measure listed in each paragraph of Section III C of
Appendix A to 12 CFR § 30; provided that Servicer’s Information Security
Program is appropriate to address the level of risk and otherwise meets the
Objectives.  FMC, its internal and
external auditors and regulatory agencies (“Auditors”) shall be permitted,
during normal business hours, to audit the Servicer’s Information Security
Program upon provision of sixty (60) days prior notice and provision of an
agenda for the audit requirements. 
Servicer shall provide to the Auditors, upon request, a copy of a
CyberTrust Certification Letter and a Type II SAS 70 Report which report shall
include the operating controls associated with Servicer’s Information Security
Program and tests of those operating controls. Servicer shall be subject to
said audits as long as Servicer continues to maintain, store or have access to
Customer Information.


As
part of its information security program, Servicer shall take appropriate
measures to properly dispose of “Consumer Information” and “Customer
Information” as defined in The Interagency Guidelines Establishing Standards
for Information Security (as revised, 12/28/04), 12 CFR Part 30 (Appendix B),
whether such information is in paper, electronic or other form.  These measures should, at a minimum include:



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(i)                                     Burning,
pulverizing or shredding of papers containing Consumer Information and Customer
Information so that the information cannot practicably be read or
reconstructed;


(ii)                                  Ensuring
the destruction or erasure of electronic media containing Consumer Information
and Customer Information so that the information cannot practicably be read or
reconstructed; and/or


(iii)                               Ensuring
that any third party who performs the activities described in (a) and (b) on
behalf of Servicer above does so in a manner consistent with this Section.


Servicer
shall ensure that it does not retain Customer Information or Consumer
Information for longer than it needs such information to perform its
obligations hereunder.  Servicer’s
disposal policy shall require that such information is reviewed and destroyed
on a routine basis consistent with the
Servicer’s disposal policy.


Servicer
shall have in place and follow a routine destruction policy for all FMC
Confidential Information, FMC data, deliverables and any working papers,
correspondence, notes, memoranda, drafts or other material (whether in
electronic, paper or other form) related to Servicer’s performance under this
Agreement.  No such materials will be
retained longer than such period as is set forth in Servicer’s policy period
for retention unless mandated under this Agreement or by applicable law.


This
Section is intended only to describe how to properly dispose of Consumer
Information and Customer Information. 
Requirements related to when Customer Information and Consumer
Information must be retained or destroyed are found elsewhere in this Agreement
or under applicable law.


11.04                 Security
Breach.  In the event Servicer knows or reasonably believes
that there has been any unauthorized acquisition of or access to data that
compromises the security, confidentiality, or integrity of “non-public personal
information” maintained by or for Servicer (a “Breach”), Servicer shall take
the following actions:


(i)                                     Immediately
notify FMC of such Breach.


(ii)                                  Identify
to FMC at no cost to FMC what specific data, by customer and/or account number
has or may have been Breached.


(iii)                               Monitor
any affected accounts for any unusual activity (if appropriate).


(iv)                              Take
measures to contain and control the incident to prevent further unauthorized
access.


(v)                                 Remedy
the circumstances that permitted such Breach to occur.


(vi)                              Cooperate
with FMC as necessary to facilitate FMC’s compliance with any applicable
federal or state law regarding unauthorized access of customer personal
information.


For
the purposes of this section, “non-public personal information” shall include
any two of the following:  a person’s
name, address, social security number, telephone number, driver’s license or
state ID number, account number, credit/debit card account number, access code,
password, identification number, or security code.  Servicer shall fully reimburse FMC for the 



 29
 






 



 


actual costs of
mailing notices to individuals whose data has or may have been Breached, where
such Breach is the direct result, in whole or in part, of Servicer’s breach of
this Agreement, Servicer’s failure to conform to applicable law, or Servicer’s
negligence.


11.05                 Business Continuity and Site Disaster Recovery Plans  Servicer shall maintain and shall test at
least once annually plans to continue business in the event of an interruption
to its business or unavailability of any site from which Services are being
performed (the “Disaster Recovery and Business Continuity Plans”).  The Servicer agrees that its Disaster
Recovery and Business Continuity Plan shall include, among other things,
provision for the remote storage of computer software and data, for the remote
storage of copies of Student Loan documentation in conformance with Section
4.04 (Custody), the availability of a location for off-site computer services
and procedures covering all of the Servicer’s facilities used in connection
with the Services in order to insure continuance of Services in the event of a
disaster affecting any such Servicer facility and storage of a complete system
image tape of both object code and source code for its student loan servicing
software at an off-site storage location designated by the Servicer and
disclosed to FMC.


The
Servicer covenants and agrees that it shall create on a daily basis
electronically stored backup data for all Student Loan data for the particular
day.  At a
minimum, the Servicer’s core processing facilities and operations will include
redundant backup and security to ensure minimal exposure to systems failure or
unauthorized access.  The Servicer will
take commercially available measures to ensure the continuity of operations via
tape or other off-site backup mechanism. 
Power backup will be maintained throughout the core processing
facilities which affect performance of the Services should a power outage
occur.  The Business Continuity Plan must
meet the Recovery Time Objective (RTO) and Recovery Point Objective (RPO) as
defined below:


The Service will be
available within a three (3) day period following any significant
outage/incident (RTO = 72 hours) with a maximum of forty-eight (48) hours of
data loss (RPO = 48 hours).


Servicer
shall test both its Disaster Recovery Plan and Business Continuity Plan on an
annual basis and send its annual Overview of Business Recovery Exercise report
to FMC.  Servicer agrees that upon
reasonable notice and at Servicer’s convenience, FMC may come to Servicer’s
place of business and review the specifics of Servicer’s Disaster Recovery and
Business Continuity Plans with Servicer. If any testing hereunder establishes
that Servicer’s performance of the Services is not in compliance with the terms
of this Agreement, Servicer shall within thirty (30) days of its receipt of the
results of such testing, publish a Remedial Action Plan and provide the same to
FMC. Such Remedial Action Plan shall include a schedule of Milestones and shall
provide for reports to FMC with respect to each Milestone. An event shall not
be considered a force majeure event to the extent that proper implementation of
the Disaster Recovery and Business Continuity Plans would have enabled Servicer
to continue performance hereunder in a timely manner.  The occurrence of a force majeure event or
disaster shall not excuse Servicer from having in place reasonable safeguarding
plans and procedures adequate for protecting all FMC Confidential or Proprietary
Information and Customer Information and Consumer Information. In the event of
a natural or other disaster beyond the Servicer’s control that



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interrupts
the Servicer’s performance of any such Services for any period, the Servicer
shall promptly respond to such disaster in accordance with the procedures
contained in the Disaster Recovery and Business Continuity Plans in order to
resume performance of such Services.


11.06                 Servicer
Firewall(s).


(i)                                     Servicer
will create its firewall rules based on the principle of least access
needed.  This means that the firewall(s)
will only pass the traffic necessary for the system applications utilized by
Servicer in providing Services hereunder to function to the backend servers,
and any unnecessary traffic will be blocked.


(ii)                                  Servicer
will segregate the Internet environment used to provide service to its clients
from the intranet environment used by internal Servicer personnel.


(iii)                               An
encrypted session will be used for connectivity between FMC and Servicer over
the internet.


11.07                 User
Authentication Processes. 
Servicer will follow its existing policies, procedures, and standards
for authentication.  Servicer will
provide FMC with access to such policies and procedures at Servicer’s place of
business.


11.08                 Intrusion
Detection.  Servicer will
maintain a current industry standard intrusion detection monitoring system that
protects its infrastructure against system risk from outside users and
vendors.  Servicer will actively monitor
the intrusion monitoring system and develop escalation procedures to notify FMC
personnel in the event of a security breach pursuant to Section 11.04.


11.09                 Risk
Assessment.  Servicer shall
comply with industry best practices and standards regarding information
security.  In addition to Servicer’s
annual Type II SAS 70 audit, it shall partner with an external vendor for the
purpose of receiving a certification on Servicer’s information security
practices and protocols. The external vendor shall at a minimum conduct
external and internal scans and audits of the Servicer’s network. On an
on-going basis the external vendor shall provide to Servicer notification of
any malicious code, viruses or known threats so that Servicer may protect its
network accordingly.  Additionally, on an
annual basis, Servicer shall engage external vendors to conduct blind intrusion
testing to verify Servicer’s then current information security, controls,
standards, and procedures.  Upon request
from the FMC, Servicer shall provide a certification letter from its external
vendors certifying Servicer’s compliance with industry best practices and
standards.  For each external vendor
providing services described in this Section 11.09, Servicer shall provide FMC
with a summary of such vendor’s reports and shall respond to any of FMC’s
reasonable follow-up questions with respect to such summaries.  Any information provided to FMC under this
Section shall be deemed Proprietary Information.


11.10.              Survival.
The obligations set forth in this Section 11 as they pertain to Proprietary
Information, Confidential Information, Customer and Consumer Information shall
survive



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termination of this
Agreement and continue for so long as the relevant information remains
Proprietary Information, Confidential Information, Customer Information or
Consumer Information.


SECTION 12.  DISPUTES


In the
event of any dispute or disagreement between the parties hereto either with
respect to the interpretation of any provision of this Agreement or with
respect to the performance hereunder by the Servicer or by FMC, each of the
parties will appoint, no later than thirty (30) days after the dispute or
disagreement has arisen as evidenced in writing by one of the parties, a
designated officer to meet for the purpose of endeavoring to resolve such
dispute or to negotiate for an adjustment to such provision.  In case no agreement is reached, a third
designated person may be appointed upon mutual agreement to resolve such
dispute or to negotiate with the previously designated officers to negotiate
for an adjustment to such provision.  No
formal proceedings for the judicial resolution of the initially designated
dispute may be commenced until either of the designated officers concludes in
good faith that amicable resolution through continued negotiations of the
matter in issue does not appear likely. 
In no event shall such dispute resolution procedure continue for more
than sixty (60) days after the appointment of the initially designated
officers, after which period of time either party may choose to seek a final
determination of liability on the part of the other party by a court of law as
set forth in Section 9 (Liability) herein.


SECTION 13. ASSIGNMENT.


13.01                 Assignment by the Servicer.  This Agreement and all the rights and
obligations of the Servicer hereunder may not without the prior written consent
of FMC, which consent shall not be unreasonably withheld, be assigned or
subcontracted by the Servicer. Any successor must acquire substantially all of
the assets or business of the Servicer, have the ability to perform the
Services under the terms and conditions hereof, and be approved by the Insurer
and reasonably acceptable to any Trustee.


13.02                 Assignment to Permitted Assignee.  The parties
contemplate that:


(a)                                pools of Committed Student Loans will be sold by the
Program Lender to SPEs in Securitization Transactions sponsored by FMC from
time to time, and Permitted Assignees will receive a collateral assignment of
the Committed Student Loans in each Securitization Transaction; and


(b)                               at the same time and as part of the same transaction,
FMC will assign its rights under this Agreement to obtain Servicing of said
Student Loans to said SPEs, which rights may be further assigned to Permitted
Assignees, so that said Student Loans will be Serviced by Servicer under the
terms of this Agreement, following execution by the parties of a Servicer
Consent Letter.


13.03                 Effect of Assignment.  Servicer agrees that upon the assignment of FMC’s
rights under this Agreement with respect to a pool of Student Loans to a
Permitted Assignee and the



 32
 






 



 


execution by the parties of a Servicer Consent
Letter, all obligations of FMC under this Agreement with respect to ongoing Servicing
of such Student Loans, including without limitation the obligation to pay fees
set forth in the Fee Schedule, shall cease, all rights and obligations of FMC
under this Agreement with respect to such Student Loans shall inure to the SPE
and the Permitted Assignees, and any all references to FMC in this Agreement,
to the extent it has been so partially assigned, shall be deemed to refer to
said SPE. Notwithstanding the foregoing, FMC shall retain rights under this
Agreement that do not relate to ongoing Servicing of such Student Loans, as set
forth in Section 2.03 (Role of FMC).


13.04                 Notice Requirement prior to Sale of Student Loans.  FMC shall use reasonable efforts to notify
the Servicer, in writing, sixty (60) days prior to any sale of Student Loans,
and shall notify Servicer, in writing, no less than forty-five (45) days prior
to any sale of Student Loan, currently housed on the Servicing system as to (a)
the anticipated sale date and (b) the characteristics of the exact Student
Loans to be sold. The actual sale date will be provided five (5) days prior to
the sale. Upon receipt of the above initial notice, the Servicer will provide
FMC with available transfer dates within thirty (30) days.  Actual transfer dates shall be mutually
agreed upon.


13.05                 Servicing Obligations after Sale of Student Loans (to third party other than an SPE).


(a)                                  The Servicer’s Offer of Continued Servicing.  With respect
to any Student Loans which are sold, assigned or transferred by a Permitted
Assignee (other than a trustee under Section 13.02), upon the Servicer’s
receipt of a notice from such Permitted Assignee that it intends to sell,
assign or transfer any or all of the Student Loans which are being Serviced
hereunder, the Servicer shall contact the intended purchaser, assignee or
transferee (collectively, the “Transferee”) and offer to Service such Student
Loans for the Transferee for the balance of the term of this Agreement (and, at
the option of the Transferee, any extensions thereof) as follows: (i) if the
Transferee or an affiliate, parent, subsidiary or other entity related to the
Transferee (collectively, a “Related Entity”) has entered into a servicing
agreement with the Servicer, under the terms and conditions of any such
agreement, or (ii) otherwise, under terms and conditions which are no less
favorable than those terms and conditions which are contained in this
Agreement.  This subsection shall not
apply to an assignment to a Permitted Assignee pursuant to Section 13.02.


(b)                                 Liability of Permitted Assignee upon Transferee’s
Acceptance of Servicer’s Offer to Service Student Loans.  If the
Transferee accepts the offer described in 13.05(a)(i) or (ii), the Permitted
Assignee shall have no further obligation or liability to the Servicer
hereunder with respect to such Student Loans, and the Early Termination Fees
set forth in the Fee Schedule shall not be due and payable.  If the Transferee does not elect to have the
Servicer continue Servicing the Student Loans, the Permitted Assignee shall pay
the Early Termination Fees set forth in the Fee Schedule.  This subsection shall not apply to an
assignment to a Permitted Assignee pursuant to subsection 13.02.



 33
 






 



 


Section 14.                                   TERMINATION


14.01                 Borrower’s Student Loan.   This
Agreement shall terminate as to a specific Borrower’s Student Loan on the
earliest of:


(a)                                the
month following the month during which (i) the principal, interest, and Late
Fees, if any, have been fully paid and remitted to the Owner, and (ii) the
Borrower has been notified that the Student Loan has been paid in full;


(b)                               the
end of the month during which notification is given to the Servicer that a
claim for guarantee/insurance relating to the Student Loan has been paid by the
Insurer; or


(c)                                the
end of the month following the month during which the sale or transfer of such
Student Loan occurs where Servicer does not continue Servicing such Student
Loan subject to the provisions set forth in Section 13 (Assignment) hereof.


14.02.              Termination by FMC.  This
Agreement may be terminated at the option of FMC upon the occurrence of any of
the following:


(a)                                  Any of the representations or warranties made in or
pursuant to this Agreement are not true or are erroneous in any material
respect;


(b)                                 The Servicer’s failure to perform or observe any of
the provisions or covenants of this Agreement and its referenced schedules and
exhibits, in any material respect (including, without limitation, any breach of
the provisions of Section 4.13 (Collections), all of which shall be deemed
material);


(c)                                  If the Servicer shall (i) discontinue business, or
(ii) generally not pay its debts as such debts become due, or (iii) make a
general assignment for the benefit of creditors, or (iv) admit by answer,
default or otherwise the material allegations of petitions filed against it in
any bankruptcy, reorganization, insolvency or other proceedings (whether
federal or state), relating to relief of debtors, or (v) suffer or permit to
continue unstayed and in effect for thirty (30) consecutive days, any judgment,
decree or order, entered by a court of competent jurisdiction, which approves a
petition seeking its reorganization or appoints a receiver, custodian, trustee,
interim trustee or liquidator for itself or all or a substantial part of its
assets, or (vi) take or omit any action in order thereby to effect any of the
foregoing;


(d)                                 Change of Control.  Notwithstanding 13.01 (Assignment
by Servicer), if Servicer is the subject of a Change of Control, FMC shall have
the right to terminate this Agreement upon a minimum of twenty (20) business
days prior written notice. Such right of termination may be exercised any time
beginning upon the earlier of consummation of the Change of Control transaction
or public announcement that such a transaction is pending. Following
Servicer’s receipt of notice and information to support the termination
hereunder from FMC, Servicer shall work diligently with FMC to carry out the
deconversion of the Student Loans off of the



 34
 






 



 


Servicer’s Servicing system within a timeframe reasonably agreeable to
the parties but in any event shall be begun within ninety (90) business days
from the Servicer’s receipt of notice and the parties shall use their best
efforts to complete the deconversion process within 24 months from the date it
begins.  There will be no charge to FMC
of Early Termination Fees as detailed in the Fee Schedule attached hereto
arising from FMC’s termination of the Agreement pursuant to this Section. FMC
shall be responsible for any and all fees arising under this Agreement and the
attached Fee Schedule that are incurred by FMC hereunder prior to FMC’s
termination of this Agreement pursuant to this Section.


(e)                                  Termination for Insufficient Volume.  In the event
that the total original principal amount of Student Loans being Serviced
pursuant to this Agreement shall be less than [**]dollars ($[**]) as of the May 1 that occurs at least twenty-four months after the first
Student Loan is Serviced hereunder, then FMC and all Owners acting in concert
may, by written notice to Servicer, terminate this Agreement.  Such termination shall be on six (6) months
written notice .  Servicer shall
cooperate fully in the deconversion and transfer of such Student Loans to
another Servicer.


In the event of an event of default as set forth in
Section 14.02(a) or (b) above, the Servicer shall have the right to cure any
such breach or error to FMC’s full satisfaction within thirty (30) days of
written notice from FMC. Notwithstanding the foregoing, Servicer shall have the
right to cure any breach of Section 4.13 (Collections) or any failure to
conform to a Milestone in a Remedial Action Plan within five (5) (not thirty
(30)) days after written notice from FMC.


In the event that: (i)  Servicer fails to cure such default and the
Agreement is terminated pursuant to Section 14.02 (a) or (b) or (ii) this
Agreement is terminated pursuant to Section 14.01 or 14.02 (c), or Sections
4.02, 4.03(d), 6.06, 10.01, there will be no charge to FMC for Early
Termination Fees or Record Return/Deconversion Fees.  In the event the Agreement is terminated prior
to the end of the initial term for any reason other than stated above
(including termination under Section 14.02(d), FMC shall be responsible for the
payment of Early Termination Fees and Record Return/Deconversion Fees as
detailed in the Fee Schedule.


14.03.       Termination by the Servicer. This Agreement may be terminated at the option of
the Servicer upon the occurrence of any of the following:


(a)                                  FMC’s failure to perform or observe any of the
material provisions or covenants of this Agreement; or


(b)                                 If FMC shall (a) discontinue business, or (b)
generally not pay its debts as such debts become due, or (c) make a general
assignment for the benefit of creditors, or (d) admit by answer, default or
otherwise the material allegations of petitions filed against it in any
bankruptcy, reorganization, insolvency or other proceeding (whether federal or
state) relating to relief of debtors, or (e) suffer or permit to



 35
 






 



 


continue unstayed and in effect for
thirty (30) consecutive days, any judgment, decree or order, entered by a court
of competent jurisdiction, which approves a petition seeking its reorganization
or appoints a receiver, custodian, trustee, interim trustee or liquidator for
itself or all or a substantial part of its assets, or (f) take or omit any action
in order thereby to effect any of the foregoing; or


In the event of an event of default as set forth in
Section 14.03(a) or (b) above, FMC shall have the right to cure any such breach
or error to Servicer’s full satisfaction within thirty (30) days of written
notice from Servicer.


In the event FMC fails to cure such default and the
Agreement is terminated pursuant to Section 14.03(a) or (b), FMC shall pay
Servicer the Early Termination Fees and Record Return/Deconversion Fees set
forth in the Fee Schedule.


14.04.              Record Return/Deconversion.  Upon
termination of this Agreement or upon termination of this Agreement with
respect to any particular Student Loan or Loans whether by virtue of the
passage of time or otherwise, the Servicer shall, regardless of any FMC default
or any other reason, return to FMC all records, data processing records,
reports, documents and correspondence, including Original Credit Agreements,
applications, payment histories, due diligence histories, and copies of
microfilm documents maintained by the Servicer in connection with the Servicing
of the Student Loans (or such Student Loans as applicable). Servicer shall
maintain a copy of all records and reports which related to the Servicing of
Student Loans generally for five years after any deconversion.  Upon the return of the Student Loan records,
FMC agrees to pay the Record Return/Deconversion Fee, as set forth in the Fee
Schedule, except under the circumstances specifically set forth in this Agreement,
and such records will be returned to FMC by Servicer as provided below or as
otherwise mutually agreed upon by the parties. 
Upon any termination or expiration of this Agreement, any deconversion
and transfer of the Accounts to FMC or its new servicer shall be on an orderly
schedule reasonably determined by the Servicer, with FMC’s approval.  To the extent that the Servicer continues to
provide Servicing for any Accounts after the termination or expiration date
pending such scheduled deconversion and transfer, the terms of this Agreement shall
remain in effect and the Servicer’s fees shall continue to be paid hereunder
with respect to such Accounts during such period.


14.05                 Transition Period Rights.  If this Agreement is terminated pursuant to
Sections 14.02(a), (b), (c) or (d) or 4.02, 4.03(d),
6.06, or 10.01, then FMC or any Owner shall have the right to demand
continued Servicing of the Student Loans by Servicer at the rates set forth in
the Fee Schedule until such time as all loans have been successfully
deconverted.  FMC shall have the right to
access the Servicer’s facilities and access to Student Loan data in the same
manner as was permitted during the term of this Agreement.  Servicer has the obligation upon termination
or expiration to provide, and FMC or any Owner has the absolute right to
obtain, all of its Proprietary Information and Customer Information at any
time.


SECTION 15.  MISCELLANEOUS PROVISIONS


15.01                   Notices.  All notices,
approvals, consents, requests or other written communications regarding this
Agreement are to be addressed as noted below.



 36
 






 



 


	
   

  	
  If to FMC:

  	
  President

  
	
   

  	
   

  	
  The First Marblehead Corporation

  
	
   

  	
   

  	
  The Prudential Tower

  
	
   

  	
   

  	
  800 Boylston Street, 34th Floor

  
	
   

  	
   

  	
  Boston, Mass. 02199-8157

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  If to Servicer:

  	
  Executive Vice President, Marketing
  & Client Affairs

  
	
   

  	
   

  	
  Pennsylvania Higher Education Assistance Agency

  
	
   

  	
   

  	
  1200 North Seventh Street

  
	
   

  	
   

  	
  Harrisburg, Pennsylvania 17102

  



 


15.02                 Relationship.  The parties to this Agreement
intend that the Servicer shall render the Services contemplated by this
Agreement as an independent contractor. 
The Servicer and its employees, agents, and servants are not to be
considered agents or employees of FMC, for any purpose whatsoever. Nothing
herein contained, nor any action taken by the Servicer under this Agreement,
shall be deemed or construed to give the Servicer any right, title or interest
either in law or in equity in and to any Student Loan being Serviced by
Servicer.


15.03                 Non-Exclusive Agreement for FMC.  Nothing
contained herein shall be construed to create an exclusive arrangement as to
FMC. The Servicer understands and agrees that FMC may enter into other
agreements for the servicing of Private Student Loans in the future.


15.04                 Survival.  The representations and warranties
of each party shall survive the termination of this Agreement and the
obligations and duties of each party (including, without limitation, the
obligations under Sections 9 (Liability) and 14 (Confidentiality)) shall
survive the termination or expiration of this Agreement.


15.05                 Entire Understanding.  This
Agreement herewith including all Schedules and Exhibits attached thereto,
represent the entire understanding of the parties with respect to their subject
matter, and supersede all previous discussions and correspondence with respect
thereto, and no representations, warranties or agreements, express or implied,
of any kind with respect to such subject matter have been made by either party
to the other, except as expressly set forth herein or in such other agreements.


15.06                 Interpretation of Documents.  In the event
of a conflict between this Amended and Restated Private Student Loan Servicing
Agreement and a Schedule or Exhibit attached hereto, this Agreement shall
control.


15.07                 Cooperation.   FMC and the Servicer agree that they will
cooperate fully with one



 37
 






 



 


another in order to carry out the terms and
provisions of the Agreement during the term of this Agreement and during all
periods in which Committed Student Loans and Student Loans are processed and
Serviced by Servicer.  Cooperation under
this Section shall include, but not be limited to, each party using reasonable
means to ensure successful, normal, daily processing of Committed Student Loans
and Student Loans and related operations and functions.  Each party agrees to support the reasonable
routine efforts of the other party and to work to resolve any disputes which
may arise during such periods referenced above, and to continue to work
together in a professional, business-like manner during all phases, functions
and processes defined in this Agreement.


15.08                 Authorization.  Each of the undersigned represent
that he or she has the authority to execute this Agreement on behalf of the
respective party.


15.09                 Amendments; Changes; Modifications.  This
Agreement, Exhibits or Schedules (a) may be amended, supplemented, or modified
only by written instrument duly executed by FMC and the Servicer; (b) shall be
incorporated into this Agreement; and (c) shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and
assigns.


15.10                 No Waiver.  Any failure by FMC or the Servicer to insist upon the strict performance by
the other of any of the terms and provisions of this Agreement shall not be
deemed to be a continuing waiver of any such terms and provisions, and
notwithstanding any such failure, such party shall have the right thereafter to
insist upon the resumption of strict performance by the other of any and all of
the terms and provisions hereof.  The
rights and remedies herein provided are cumulative and not exclusive of any
rights or remedies provided by law.


15.11                 Opinion of Outside Counsel.  Upon request by FMC, in connection with a
Securitization Transaction, the Servicer agrees to provide to FMC an opinion of
its outside counsel, in form and substance satisfactory to counsel for FMC,
that :


(a)                                  The agreement has been duly authorized by all
necessary action of the Servicer.


(b)                                 The agreement does not violate the chartered
documents or other constituent documents governing the Servicer or any other
applicable law.


(c)                                  The agreement has been duly executed by an authorized
officer of the Servicer.


(d)                                 The agreement is a valid and binding obligation of
the Servicer, enforceable in accordance with its terms.


Servicer may provide the opinion of its in-house corporate
counsel, in lieu of outside counsel, unless FMC agrees to pay the reasonable
fees of Servicer’s outside counsel in connection with such opinion.


15.12                 Law Governing.  This Agreement is being delivered
in and shall be construed in accordance with the laws of the Commonwealth of
Pennsylvania, without regard to any principles of conflict of laws.


15.13                 Waiver of Jury Trial.  THE PARTIES
HEREBY EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER THIS AGREEMENT OR ANY OTHER DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR IN



 38
 






 



 


ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO
THE DEALINGS OF THE PARTIES HERETO WITH RESPECT TO THIS AGREEMENT OR ANY SUCH
DOCUMENT OR AGREEMENT, OR THE SERVICES AND TRANSACTION RELATED HERETO OR
THERETO, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT,
TORT OR OTHERWISE.


15.14                 Counterparts.  This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original and
all of which together shall be deemed to be one of and the same document.


15.15                 Unenforceability.  If any
provision of this Agreement shall be held to be invalid or unenforceable, such
invalidity or unenforceability shall not affect or impair the validity or
enforceability of the remaining provisions of this Agreement, which
shall remain in full force and effect, and the Parties hereto shall continue to
be bound thereby.


[REMAINDER OF THIS PAGE INTENTIONALLY
LEFT BLANK.]



 39
 






 



 


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the month, day and the year first-above written.


	
  PENNSYLVANIA HIGHER EDUCATION

  	
   

  	
   

  	
   

  	
  THE FIRST MARBLEHEAD

  
	
  ASSISTANCE AGENCY

  	
   

  	
   

  	
   

  	
  CORPORATION

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  /s/ Richard E. Willey

  	
   

  	
   

  	
   

  	
  /s/ Anne Bowen

  
	
  Name: Richard E. Willey

  	
   

  	
   

  	
   

  	
  Name: Anne Bowen

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:   President and CEO

  	
   

  	
   

  	
   

  	
  Title:  Executive Vice President and

  
	
   

  	
   

  	
   

  	
   

  	
  Chief Administrative Officer

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date: September 28, 2006

  	
   

  	
   

  	
   

  	
  Date: September 28, 2006

  



 



 40
 






 



 


INDEX TO SCHEDULES
AND EXHIBITS


Fee Schedule


System Access Schedule


Customer Service Schedule


Required Reports Schedule


Schedule A — Existing Program
Guidelines**


Exhibit A — Servicer Consent
Letter


Exhibit B — TERI Servicing Guidelines**


Exhibit C — Service Level
Agreement


**  Confidential treatment has been requested for

this exhibit or schedule in its entirety.



 41














 


FEE SCHEDULE FOR


AMENDED AND RESTATED PRIVATE
STUDENT LOAN SERVICING AGREEMENT


DATED SEPTEMBER 28, 2006


BETWEEN


PENNSYLVANIA HIGHER EDUCATION
ASSISTANCE AGENCY


AND


THE FIRST
MARBLEHEAD CORPORATION (“AGREEMENT”)


This Fee Schedule shall
be effective from the Effective Date for a period of three years (the “Initial
Term”) and shall then be open for negotiation. If no changes are proposed or
agreed to in writing, this Fee Schedule shall automatically renew for an
additional one (1) year periods.


I.                                         DEFINITIONS:


Capitalized terms
used in this Fee Schedule have the meanings assigned to them in the Agreement.
In addition to the words and terms elsewhere defined in this Agreement, the
following terms shall have the following meanings unless the Agreement
indicates a contrary meaning or intent:


A.                                   An
“Account” is to refer to the Credit Agreements collectively of an individual
Borrower of a particular Student Loan type in the same status.


B.                                     An
“Interim Account” is to refer to Credit Agreements collectively of an individual
Borrower that constitute (1) an In-School (Enrolled) Account, or (2) a Grace
Account.


C.                                     A
“Repayment Account” is to refer to the Credit Agreements of an individual
Borrower under the terms of which the repayment period has commenced, but which
is not an In-School (Enrolled) Account.


D.                                    An
“In-School (Enrolled) Account” is to refer to the Credit Agreements
collectively of an individual Borrower with respect to which principal and
interest payments are deferred because the Borrower is enrolled at an eligible
institution, whether before of after the repayment period begins.


E.                                      A
“Grace Account” is to refer to the Credit Agreements collectively of an
individual Borrower (1) with respect to which the Borrower has ceased to be
enrolled at an eligible institution, and (2) under the terms of which the
repayment period has not yet commenced.


F.                                      “Standard
Conversion” means the conversion of a Borrower’s Account from data provided in
hard-copy format or by electronic means.


G.                                     “On-System
Conversion” means the conversion of a Borrower’s account that the Servicer is
currently Servicing for an owner or holder other than the proposed new owner or
holder.



 42
 






 



 


II.                                     SERVICING
FEES:


1.                                       Monthly
Servicing Fees—Interim Account Status:


The Servicing fee
for Student Loans in Interim Account status shall be payable by the Owner on a
pro-rated monthly basis and shall be equal to [**] basis points per annum based
upon the ending principal balance of the Student Loans at month end.


([**] x ending
principal balance at month end divided by [**])


2.                                       Monthly
Servicing Fees—Repayment Account Status (other than Student Loans in
Owner-caused Cure status):


(a) Ending Principal Balance < $[**] If the ending principal
balance of the Student Loans (including Student Loans in Interim Account status
and Repayment Account status) at month end is less than [**], then the
Servicing fee for loans in Repayment Account status shall be payable by the
Owner on a pro-rated monthly basis and shall be equal to [**] basis points per
annum based upon the ending principal balance of the Student Loans at each
month end.


([**] x ending
principal balance at month end divided by [**])


(b) Ending Principal Balance > or Equal to $[**] and < or Equal to
$[**] If the ending principal balance of the Student Loans (including
Student Loans in Interim Account status and Repayment Account status) at month
end is [**] or more, but less than or equal to [**], then the Servicing fee for
loans in Repayment Account status shall be payable by the Owner on a pro-rated
monthly basis and shall be equal to [**] basis points per annum based upon the
ending principal balance of the Student Loans at each month end.


([**] x ending
principal balance at month end divided by [**])


(c) Ending Principal Balance > $[**]. If the ending principal
balance of the Student Loans (including Student Loans in Interim Account status
and Repayment Account status) at month end is greater than [**], then the
Servicing fee for loans in Repayment Account status shall be payable by the
Owner on a pro-rated monthly basis and shall be equal to (i) for the first
$[**]of the ending principal balance of the Student Loans, [**]basis points per
annum based upon the ending principal balance of the Student Loans at each
month end; and (ii) for the ending principal balance of the Student Loans in
excess of $[**], [**] basis points per annum based upon the ending principal
balance of the Student Loans at each month end.


For the first $[**]:


([**] x ending principal balance at month end divided
by [**])


For amounts in excess of $[**]


([**] x ending
principal balance at month end divided by [**])


(d) Delinquent Accounts. Notwithstanding subsections (a), (b),
and (c) above, the



 43
 






 



 


Servicing fee for loans
in Repayment Account status shall be [**]basis points for all Student Loans thirty
(30) days or more delinquent until the Student Loan is placed for pre-claims
assistance, and for Student Loans placed for pre-claims assistance, the
Servicing fee for loans in Repayment Account status shall be [**] basis points.


([**]x ending
principal balance of Student Loans 30 or more days delinquent divided by [**])


([**] x ending
principal balance of Student Loans placed for pre-claims divided by [**])


3.                                       High
or Low Average Balance. Notwithstanding the existence of the Initial Term,
the Servicing fees in this Section II may be renegotiated at any time the
average principal balance of the Student Loans is less than [**] or greater
than [**]. If, at the conclusion of any such negotiation, no changes are
proposed or agreed to in writing, the Fee Schedule shall remain in effect
unchanged.


III.                                 CONVERSION
FEES


1.                                       Interim
Account—External


	
  

  	
  a.

  	
   

  	
  Initial Exam:

  	
   

  	
  $[**] per loan

  
	
   

  	
  b.

  	
   

  	
  Serial Exam:

  	
   

  	
  $[**] per loan

  
	
   

  	
  c.

  	
   

  	
  Abbreviated Note Exam:

  	
   

  	
  $[**] per loan

  



 


2.                                       Interim
Account—On System


	
  

  	
  a.

  	
   

  	
  Full Note Exam:

  	
   

  	
  $[**] per loan

  
	
   

  	
  b.

  	
   

  	
  Waived Exam:

  	
   

  	
  No charge

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  Repayment Account:

  	
   

  	
  Quote

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  Reconversion Fee:

  	
   

  	
  $[**] per loan

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  Rehabilitation Reconversion Fee

  	
   

  	
  $[**] per loan

  



 


IV.                                DUE
DILIGENCE/PRE-CLAIMS/CLAIMS PROCESSING


1.                                       Skip
Trace


	
  

  	
  a.

  	
   

  	
  Placement:

  	
   

  	
  [**]

  
	
   

  	
  b.

  	
   

  	
  Locate:

  	
   

  	
  $[**] per loan

  



 


2.                                       Late
Fees:                                          [**]%
of all collected late fee revenue on delinquent accounts


3.                                       Third
Party Referral (referral to third party under contract with the Servicer
for core/collection after successful location):       $[**]
per Borrower per bond issue



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4.                                       Claim
Processing:


a.                                       The
Owner shall pay a claim processing fee of $[**] for each defaulted Student Loan
per claim package filed. Claim processing shall include, without limitation,
presentation to Insurer of all documentation required under the Servicing
Guidelines, in the form required thereunder. 
Servicer will provide DDB Certification and Closed School Certification
at no charge.


V.                                    CURE
SERVICING—Owner-Caused Cures


	
  1.

  	
  Monthly fee

  	
   

  	
  $[**] per account

  
	
  2.

  	
  Skip Tracing—Locate

  	
   

  	
  $[**] per account

  
	
  3.

  	
  Third Party Referral

  	
   

  	
  $[**] per account

  
	
  4.

  	
  Guaranty Reinstated/

  	
   

  	
   

  
	
   

  	
  Default Claim Paid

  	
   

  	
  $[**] per account

  
	
  5.

  	
  Correction of Owner Error

  	
   

  	
  $[**] per error

  



 


VI.                                MISCELLANEOUS
FEES


	
  1.

  	
  Deconversion to Owner

  	
   

  	
  $[**] per loan

  
	
  2.

  	
  Return of Records to Owner

  	
   

  	
  $[**] per loan

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  Early Termination

  	
   

  	
  $[**] per Account

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  Ad Hoc Projects/Reporting (fees to
  be pre-identified by the Servicer and billed as identified)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  a.

  	
   

  	
  Computer Programmer

  	
   

  	
  $[**]/hour

  
	
   

  	
  b.

  	
   

  	
  Computer Analyst

  	
   

  	
  $[**]/hour

  
	
   

  	
  c.

  	
   

  	
  CPU Run Time

  	
   

  	
  $[**]/hour

  
	
   

  	
  d.

  	
   

  	
  Staff Services

  	
   

  	
  $[**]/hour

  
	
   

  	
  e.

  	
   

  	
  Legal Services

  	
   

  	
  $[**]/hour

  
	
   

  	
  f.

  	
   

  	
  GLB extract files

  	
   

  	
  [**]for no charge

  $[**] for each in excess of [**]

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  Securitization (Financing, Bond
  Issue)

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  a.

  	
   

  	
  Set-up Fee

  	
   

  	
  $[**] per financing

  (includes [**] hours of legal services per financing)

  
	
   

  	
  b.

  	
   

  	
  Financing Legal Services

  	
   

  	
  $[**]/hour (in excess of [**] hours per financing)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  c.

  	
   

  	
  Post Closing, Loan Transfer within

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  a financing

  	
   

  	
  $[**] per Borrower per transfer

  
										



 



 45
 






 



 


	
  6.

  	
  Mailings

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  a.

  	
   

  	
  GLB privacy notices

  	
   

  	
  $[**] per notice

  
	
   

  	
  b.

  	
   

  	
  IRS Form 1098

  	
   

  	
  $[**] per notice

  
	
   

  	
  c.

  	
   

  	
  Other mailings or notices/

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Special delivery
  notices

  	
   

  	
  Quote

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
  Basic Monthly Reporting

  	
   

  	
  [**]

  
	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
  SAS 70 Audit

  	
   

  	
  [**]

  
	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
  Lender’s Audit Guide

  	
   

  	
  [**]

  
	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
  Borrower Incentive Programs

  	
   

  	
  Quote

  



 



 46
 






 



 


IN WITNESS WHEREOF, the parties hereto have caused this Fee Schedule to be
duly executed as of the month, day and the year first-above written.


	
  PENNSYLVANIA HIGHER EDUCATION

  ASSISTANCE AGENCY

  	
   

  	
  THE FIRST MARBLEHEAD

  CORPORATION

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Richard E. Willey

  	
   

  	
  By:

  	
  /s/ Anne Bowen

  
	
  Name:

  	
  Richard E. Willey

  	
   

  	
  Name: Anne Bowen

  
	
  Title:

  	
  President and CEO

  	
   

  	
  Title: Executive Vice President
  and Chief

  
	
   

  	
   

  	
   

  	
  Administrative
  Officer

  
	
  Date: September 28, 2006

  	
   

  	
  Date: September 28, 2006

  
								



 



 47
 






 



 


AMENDED AND RESTATED PRIVATE STUDENT LOAN
SERVICING AGREEMENT


BETWEEN


PENNSYLVANIA
HIGHER EDUCATION ASSISTANCE-AGENCY


AND


THE FIRST MARBLEHEAD CORPORATION


SYSTEM ACCESS
SCHEDULE


All system access for FMC, TERI, and FMER employees
shall be limited to view only option.


1. FMC.


Servicer shall provide FMC with web-based, view-only Account access,
which shall include the ability to view loan servicing screens including but
not limited to Borrower information, 
Account history and due diligence records.


Individual FMC users shall obtain remote access within five (5)
Business Days of receipt of notice from FMC that such individual requires
remote access.


2. BORROWERS.


Servicer shall provide Borrowers and Co-Borrowers with limited access
to their Account information.  Access
should be limited to view-only, with the ability to submit queries and request
or print forms as necessary.


3. TERI.


Servicer shall provide TERI, and its agent FMER, with access to all
TERI guaranteed loans.  Access shall be
limited to view-only and shall include the ability to view all loan servicing
screens including but not limited to borrower information, Account History, due
diligence records, and access requests.


4. FMC/FMER/TERI USER
ACCESS SECURITY REQUIREMENTS


Servicer Relations at FMC will be responsible for notifying AES to add
and delete employees who need, or no longer need, access as appropriate.  On a quarterly basis, AES will provide FMC
with a report of FMC, FMER, and TERI employees who have system access to
Borrower information at AES.  FMC shall
be responsible for the accuracy of such reports and shall be liable for the
inaccuracy thereof in accordance with Section 9 (Liability) of this Agreement.



 48
 






 



 


AMENDED AND RESTATED PRIVATE STUDENT LOAN
SERVICING AGREEMENT


BETWEEN


PENNSYLVANIA
HIGHER EDUCATION ASSISTANCE-AGENCY


AND


THE FIRST MARBLEHEAD CORPORATION


CUSTOMER
SERVICE SCHEDULE


1. Call Monitoring.


Servicer shall monitor on
a monthly basis a minimum of [**]% of the calls received per customer service
representative for quality.  Such
monitoring shall include the use of the Call Monitoring Scorecard as shown in
Exhibit C (Service Level Agreement).


FMC shall, upon
reasonable notice to Servicer, have the ability to monitor calls both on-site
and remotely, at times and in a manner acceptable to both parties, as
established in an Operations Meeting (see Section 4.09).


2. Customer Service Hours
of Operation


The Servicer shall
maintain minimum customer service hours of operation from 7:30 a.m. to 9:00
p.m., Eastern Standard Time, Monday through Friday.  FMC reserves the right to request an increase
and/or decrease in these hours upon written notice to Servicer, and Servicer
agrees to accommodate such requests to the extent feasible under the circumstances.


3. Collections Hours of
Operation  


Servicer shall maintain
minimum hours of operations for collection activities as follows:


·                  Monday
through Thursday, 8:00 a.m. to 9:00 p.m., Eastern Standard Time


·                  Friday,
8:00 a.m. to 9:00 p.m., Eastern Standard Time


·                  Saturday,
8:00 a.m. to 1:00 p.m., Eastern Standard Time


4. Borrower Satisfaction
Surveys  


The Servicer shall work
with FMC to develop telephonic borrower satisfaction surveys to measure the
customer experience through various channels including mail, internet, and
Voice Response Unit.  If surveys
demonstrate customer service issues that require remedial action, Servicer
shall collaborate with FMC to resolve such issues.


5. Borrower
Correspondence/Complaints


All correspondence
received by Servicer relating to individual Borrower Accounts shall be



 49
 






 



 


maintained by the
Servicer and shall be made available to FMC during Servicer’s normal business
hours.  Servicer shall be responsible for
handling all customer service complaints. 
Copies of escalated customer complaints from Borrowers and Servicer’s
response thereto are to be forwarded to FMC on a weekly basis.  Complaints with respect to Student Loans
and/or Borrowers received from any regulatory body or federal or state agency
shall be handled as exceptions and Service shall contact FMC immediately.



 50
 






 



 


AMENDED AND RESTATED PRIVATE STUDENT LOAN
SERVICING AGREEMENT


BETWEEN


PENNSYLVANIA
HIGHER EDUCATION ASSISTANCE-AGENCY


AND


THE FIRST MARBLEHEAD CORPORATION


REQUIRED
REPORTS SCHEDULE


Servicer
shall electronically deliver to FMC and/or all Owners, as applicable, within
the time periods specified below, the data elements that are, as of the
Effective Date, contained in the reports specified below:


1.                                       A
report of all Committed Student Loans on Servicer’s system that are fully
disbursed, including (at least): Unique loan identifier, Current principal
balance, Current interest balance, and Fully disbursed indicator, delivered to
FMC ten (10) business days prior to a scheduled Securitization Transaction,


2.                                       The
same report as set forth in Item 1 above, updated through the closing date,
delivered to FMC within five (5) days after the closing date of a
Securitization Transaction scheduled under Section 13.04 of the Agreement,


3.                                       MR-01
Report, delivered weekly to FMC and all Owners.


4.                                       MR-50
Report, delivered to all Owners within three
(3) calendar days after the end of each calendar month.


5.                                       MR-53
Report, delivered to all Owners within three
(3) calendar days after the end of each calendar month


6.                                       Such
other reports identified and mutually adopted at Operations Meetings and made
part of the Program Manual (see Section 4.09 of this Agreement).



 51
 






 



 


SCHEDULE A


EXISTING LOAN PROGRAM GUIDELINES


AMENDED AND RESTATED PRIVATE STUDENT LOAN
SERVICING AGREEMENT


BETWEEN


PENNSYLVANIA
HIGHER EDUCATION ASSISTANCE-AGENCY


AND


THE FIRST MARBLEHEAD CORPORATION




	
  Program

  	
   

  	
  Programs Covered

  
	
  [**]

  	
   

  	
  [**]

  






 



 52














 


Exhibit A – Servicer Consent
Letter


SERVICER
CONSENT LETTER


[DATE]


Pennsylvania Higher Education Assistance Agency


1200 North Seventh Street


Harrisburg, Pennsylvania
17102-1444


Attention:  Senior Vice President, Marketing & Client
Affairs


Dear Sir or Madam:


Reference
is hereby made to the Amended and Restated Private Student Loan Servicing
Agreement, dated September 28, 2006, as amended (the “Servicing Agreement”),
by and between the Pennsylvania Higher Education Assistance Agency (the “Servicer”)
and The First Marblehead Corporation (“FMC”), a copy of which is
attached hereto as Exhibit A. Capitalized terms not otherwise defined
herein shall have the meanings set forth in the Servicing Agreement. The
parties hereto agree as follows:


1.                                       FMC
hereby assigns its interest in the Servicing Agreement with respect to the
Student Loans identified on the attached Schedule 1 (the “Student
Loans”) to The National Collegiate Student Loan Trust [TRUST NAME] (the “Issuer”),
and the Servicer hereby consents thereto.


2.                                       The
Servicer hereby consents to the assignment and to the grant by the Issuer of a
security interest in the Servicing Agreement to U.S. Bank National Association
(the “Indenture Trustee”), as provided in the Indenture (the “Indenture”),
dated as of [INDENTURE DATE], by and between the Issuer and the Indenture
Trustee, for the benefit of the holders of the Student Loan Asset Backed Notes
(the “Notes”) of the Issuer.


3.                                       The
Servicer hereby confirms that it will not terminate the Servicing Agreement
until the appointment of a successor servicer by the Issuer, unless such
termination is due to a default by the Issuer under Section 14.03 thereof, or
unless the Servicing Agreement otherwise expires in accordance with Section 3
thereof.


4.                                       The
Issuer hereby confirms that it will not terminate the Servicer for cause
pursuant to Section 14.02 of the Servicing Agreement until a successor servicer
is appointed.


5.                                       The
Servicer hereby confirms that it has complied with all the terms and satisfied
all the conditions on its part to be performed or satisfied under the Servicing
Agreement.



 53
 






 



6.                                       It
is expressly understood and agreed by the parties hereto that (i) this servicer
consent letter is executed and delivered by [OWNER TRUSTEE] (the “Owner
Trustee”), not individually or personally, but solely as owner trustee of
the Issuer under the Trust Agreement dated as of [TRUST AGREEMENT DATE] among
The National Collegiate Funding LLC, The Education Resources Institute, Inc.
and the Owner Trustee, in the exercise of the powers and authority conferred
and vested in it, (ii) each of the representations, undertakings and agreements
herein made on the part of the Issuer is made and intended not as a personal
representation, undertaking and agreement by the Owner Trustee, but is made and
intended for the purpose of binding only the Issuer, (iii) nothing herein
contained shall be construed as creating any personal or individual liability
on the Owner Trustee, to perform any covenant either expressed or implied
contained herein, all such liability, if any, being expressly waived by the
parties hereby and by any person claiming by, through, or under the parties
hereto, and (iv) under no circumstances shall the Owner Trustee be personally
liable for the payment of any indebtedness or expenses of the Issuer or be
liable for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by the Issuer under this Agreement or any other
documents related to the Notes.


7.                                       Any
breach of the Servicer’s obligations under this Servicer Consent Letter shall
constitute a material breach of the Servicing Agreement.


8.                                       The
parties hereto acknowledge and agree that for so long as any Notes are
outstanding, the Indenture Trustee is a third party beneficiary hereof and of
the Servicing Agreement, and the Indenture Trustee shall have the right to
exercise all rights of the Issuer under the Servicing Agreement.


9.                                       The
Servicer will execute and deliver to FMC (or its nominee) and the Owner Trustee
annually on or before July 31 of each year,
and at such other times as FMC (or its nominee) and the Owner Trustee (or either of them) are required to provide
certification to the Securities and Exchange Commission under the Securities
Exchange Act of 1934 in connection with servicing related activities: (i) a Report
on Assessment of Compliance Statement, as required by paragraph (a) of Item
1122 of Regulation AB of the Securities and Exchange Commission (“Regulation
AB”), in the form attached hereto as Exhibit B; and (ii) a
Servicer Compliance Statement, as required by Item 1123 of Regulation AB,
in the form attached hereto as Exhibit C. In addition, annually on
or before July 31 of each year,
the Servicer will cause a registered public accounting firm to execute and
deliver a Registered Public Accounting Firm Attestation Report, as required by
paragraph (b) of Item 1122 of Regulation AB. All costs associated with the
performance of the obligations under this paragraph 9 shall be by the Issuer.


[Signature Pages
Follow]



 54
 






 



Please acknowledge
your acceptance and agreement to the foregoing by signing below.


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE FIRST
  MARBLEHEAD CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  ACCEPTED AND
  AGREED:

  	
   

  
	
   

  	
   

  
	
  PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  THE NATIONAL COLLEGIATE STUDENT LOAN TRUST [TRUST
  NAME]

  
	
   

  	
   

  
	
  By:

  	
  [OWNER TRUSTEE],

  	
   

  
	
   

  	
  not in its individual capacity but solely as Owner
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
									



 



 55
 






 



Exhibit A



 56
 






 



Exhibit B


FORM OF REPORT ON ASSESSMENT OF COMPLIANCE STATEMENT


[DATE]


[ACCOUNTANT’S ADDRESS]


The National Collegiate Student Loan Trust 20     -   


[ADDRESS]


In connection with
the Annual Report on Form 10-K of The National Collegiate Student Loan Trust 20   -  
for the fiscal year ending June 30, 20    (the “Report”)
and as required by Item 1122 of Regulation AB of the Securities and Exchange
Commission (“Regulation AB”), the undersigned, a duly authorized officer
of the [SERVICER] (the “Servicer”), does hereby certify and represent as
follows:


1.                             A
review of the activities of the Servicer for the period that is the subject of
the Report has been made under the supervision of the undersigned;


2.                             The
applicable criteria required in paragraph (d) of Item 1122 of Regulation AB, as
listed on Schedule A, attached hereto, (the “Servicing Criteria”) were
used to assess compliance of the Servicer;


3.                             To
the best knowledge of the undersigned, based on such review, the Servicer has
substantially fulfilled all its material obligations under the applicable
Servicing Criteria;


4.                             To
the best knowledge of the undersigned, based on such review, the undersigned
has identified no material instances of noncompliance of the Servicer with the
applicable Servicing Criteria; and


5.                             The
registered public accounting firm of [FIRM] has issued an attestation report on
this Report on Assessment of Compliance for the period that is the subject of
the Report.



 57
 






 



IN
WITNESS WHEREOF, the undersigned has executed this Report of the Servicer as of
                            ,
20     .


	
   

  	
  [SERVICER], as Servicer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title

  



 



 58
 






 



Schedule A


Pursuant
to Instruction 1 of Item 1122 of Regulation AB, the following list of Servicing
Criteria has been “Reviewed” or deemed “Not Applicable” by the Servicer, as
marked.


	
  

  	
   

  	
  

  	
   

  	
  Reviewed

  	
   

  	
  Not Applicable

  
	
   

  	
   

  	
  General Servicing Considerations

  	
   

  	
   

  	
   

  	
   

  
	
  1122(d)(1)(i)

  	
   

  	
  Policies and procedures are instituted to monitor
  any performance or other triggers and events of default in accordance with
  the transaction agreements.

  	
   

  	
   

  	
   

  	
  X

  
	
  1122(d)(1)(ii)

  	
   

  	
  If any material servicing activities are outsourced
  to third parties, policies and procedures are instituted to monitor the third
  party’s performance and compliance with such servicing activities.

  	
   

  	
   

  	
   

  	
  X

  
	
  1122(d)(1)(iii)

  	
   

  	
  Any requirements in the transaction agreements to
  maintain a back-up servicer for the Pool Assets are maintained.

  	
   

  	
   

  	
   

  	
  X

  
	
  1122(d)(1)(iv)

  	
   

  	
  A fidelity bond and errors and omissions policy is
  in effect on the party participating in the servicing function throughout the
  reporting period in the amount of coverage required by and otherwise in
  accordance with the terms of the transaction agreements.

  	
   

  	
  X

  	
   

  	
   

  
	
   

  	
   

  	
  Cash Collection and Administration

  	
   

  	
   

  	
   

  	
   

  
	
  1122(d)(2)(i)

  	
   

  	
  Payments on pool assets are deposited into the
  appropriate custodial bank accounts and related bank clearing accounts no
  more than two business days following receipt, or such other number of days
  specified in the transaction agreements.

  	
   

  	
  X

  	
   

  	
   

  
	
  1122(d)(2)(ii)

  	
   

  	
  Disbursements made via wire transfer on behalf of an
  obligor or to an investor are made only by authorized personnel.

  	
   

  	
   

  	
   

  	
  X

  
	
  1122(d)(2)(iii)

  	
   

  	
  Advances of funds or guarantees regarding
  collections, cash flows or distributions, and any interest or other fees
  charged for such advances, are made, reviewed and approved as specified in
  the transaction agreements.

  	
   

  	
   

  	
   

  	
  X

  
	
  1122(d)(2)(iv)

  	
   

  	
  The related accounts for the transaction, such as
  cash reserve accounts or accounts established as a form of over
  collateralization, are separately maintained (e.g., with respect to
  commingling of cash) as set forth in the transaction agreements.

  	
   

  	
  X

  	
   

  	
   

  
	
  1122(d)(2)(v)

  	
   

  	
  Each custodial account is maintained at a federally
  insured depository institution as set forth in the transaction agreements.
  For purposes of this criterion, “federally insured depository institution”
  with respect to a foreign financial institution means a foreign financial
  institution that meets the requirements of Rule 13k-1(b)(1) of the Securities
  Exchange Act.

  	
   

  	
  X

  	
   

  	
   

  
	
  1122(d)(2)(vi)

  	
   

  	
  Unissued checks are safeguarded so as to prevent
  unauthorized access.

  	
   

  	
  X

  	
   

  	
   

  
	
  1122(d)(2)(vii)

  	
   

  	
  Reconciliations are prepared on a monthly basis for
  all asset-backed securities related bank accounts, including custodial
  accounts and related bank clearing accounts. These reconciliations are (A)
  mathematically accurate; (B) prepared within 30 calendar days after the bank
  statement cutoff date, or such other number of days specified in the transaction
  agreements; (C) reviewed and approved by someone other than the person who
  prepared the reconciliation; and (D) contain explanations for reconciling
  items. These reconciling items are resolved within 90 calendar days of their
  original identification, or such other number of days specified in the
  transaction agreements.

  	
   

  	
  X

  	
   

  	
   

  
	
   

  	
   

  	
  Investor Remittances and Reporting

  	
   

  	
   

  	
   

  	
   

  
	
  1122(d)(3)(i)

  	
   

  	
  Reports to investors, including those to be filed
  with the Commission, are maintained in accordance with the transaction agreements
  and applicable Commission requirements. Specifically, such reports (A) are
  prepared in accordance with timeframes and other terms set forth in the
  transaction agreements; (B) provide information calculated in accordance with
  the terms

  	
   

  	
   

  	
   

  	
   

  




 59
 






 



 


	
  

  	
   

  	
  

  	
   

  	
  Reviewed

  	
   

  	
  Not Applicable

  
	
   

  	
   

  	
  specified in the transaction agreements; (C) are
  filed with the Commission as required by its rules and regulations; and (D)
  agree with investors’ or the trustee’s records as to the total unpaid
  principal balance and number of Pool Assets serviced by the Servicer.

  	
   

  	
   

  	
   

  	
  X

  
	
  1122(d)(3)(ii)

  	
   

  	
  Amounts due to investors are allocated and remitted
  in accordance with timeframes, distribution priority and other terms set
  forth in the transaction agreements.

  	
   

  	
   

  	
   

  	
  X

  
	
  1122(d)(3)(iii)

  	
   

  	
  Disbursements made to an investor are posted within
  two business days to the Servicer’s investor records, or such other number of
  days specified in the transaction agreements.

  	
   

  	
   

  	
   

  	
  X

  
	
  1122(d)(3)(iv)

  	
   

  	
  Amounts remitted to investors per the investor
  reports agree with cancelled checks, or other form of payment, or custodial
  bank statements.

  	
   

  	
   

  	
   

  	
  X

  
	
   

  	
   

  	
  Pool Asset Administration

  	
   

  	
   

  	
   

  	
   

  
	
  1122(d)(4)(i)

  	
   

  	
  Collateral or security on pool assets is maintained
  as required by the transaction agreements or related pool asset documents.

  	
   

  	
   

  	
   

  	
  X

  
	
  1122(d)(4)(ii)

  	
   

  	
  Pool assets and related documents are safeguarded as
  required by the transaction agreements

  	
   

  	
  X

  	
   

  	
   

  
	
  1122(d)(4)(iii)

  	
   

  	
  Any additions, removals or substitutions to the
  asset pool are made, reviewed and approved in accordance with any conditions
  or requirements in the transaction agreements.

  	
   

  	
   

  	
   

  	
  X

  
	
  1122(d)(4)(iv)

  	
   

  	
  Payments on pool assets, including any payoffs, made
  in accordance with the related pool asset documents are posted to the
  Servicer’s obligor records maintained no more than two business days after
  receipt, or such other number of days specified in the transaction
  agreements, and allocated to principal, interest or other items (e.g.,
  escrow) in accordance with the related pool asset documents.

  	
   

  	
  X

  	
   

  	
   

  
	
  1122(d)(4)(v)

  	
   

  	
  The Servicer’s records regarding the pool assets
  agree with the Servicer’s records with respect to an obligor’s unpaid
  principal balance.

  	
   

  	
  X

  	
   

  	
   

  
	
  1122(d)(4)(vi)

  	
   

  	
  Changes with respect to the terms or status of an
  obligor’s pool assets (e.g., loan modifications or re-agings) are made,
  reviewed and approved by authorized personnel in accordance with the
  transaction agreements and related pool asset documents.

  	
   

  	
  X

  	
   

  	
   

  
	
  1122(d)(4)(vii)

  	
   

  	
  Loss mitigation or recovery actions (e.g.,
  forbearance plans, modifications and deeds in lieu of foreclosure,
  foreclosures and repossessions, as applicable) are initiated, conducted and
  concluded in accordance with the timeframes or other requirements established
  by the transaction agreements.

  	
   

  	
  X

  	
   

  	
   

  
	
  1122(d)(4)(viii)

  	
   

  	
  Records documenting collection efforts are
  maintained during the period a pool asset is delinquent in accordance with
  the transaction agreements. Such records are maintained on at least a monthly
  basis, or such other period specified in the transaction agreements, and
  describe the entity’s activities in monitoring delinquent pool assets
  including, for example, phone calls, letters and payment rescheduling plans
  in cases where delinquency is deemed temporary (e.g., illness or
  unemployment).

  	
   

  	
  X

  	
   

  	
   

  
	
  1122(d)(4)(ix)

  	
   

  	
  Adjustments to interest rates or rates of return for
  pool assets with variable rates are computed based on the related pool asset
  documents.

  	
   

  	
  X

  	
   

  	
   

  
	
  1122(d)(4)(x)

  	
   

  	
  Regarding any funds held in trust for an obligor
  (such as escrow accounts): (A) such funds are analyzed, in accordance with
  the obligor’s pool asset documents, on at least an annual basis, or such
  other period specified in the transaction agreements; (B) interest on such
  funds is paid, or credited, to obligors in accordance with applicable pool
  asset documents and state laws; and (C) such funds are returned to the
  obligor within 30 calendar days of full repayment of the related pool assets,
  or such other number of days

  	
   

  	
   

  	
   

  	
  X

  



 



 60
 






 



 


	
  

  	
   

  	
  

  	
   

  	
  Reviewed

  	
   

  	
  Not Applicable

  
	
   

  	
   

  	
  specified in the transaction agreements.

  	
   

  	
   

  	
   

  	
   

  
	
  1122(d)(4)(xi)

  	
   

  	
  Payments made on behalf of an obligor (such as tax
  or insurance payments) are made on or before the related penalty or
  expiration dates, as indicated on the appropriate bills or notices for such
  payments, provided that such support has been received by the servicer at
  least 30 calendar days prior to these dates, or such other number of days
  specified in the transaction agreements.

  	
   

  	
   

  	
   

  	
  X

  
	
  1122(d)(4)(xii)

  	
   

  	
  Any late payment penalties in connection with any
  payment to be made on behalf of an obligor are paid from the Servicer’s funds
  and not charged to the obligor, unless the late payment was due to the
  obligor’s error or omission.

  	
   

  	
   

  	
   

  	
  X

  
	
  1122(d)(4)(xiii)

  	
   

  	
  Disbursements made on behalf of an obligor are
  posted within two business days to the obligor’s records maintained by the
  servicer, or such other number of days specified in the transaction
  agreements.

  	
   

  	
   

  	
   

  	
  X

  
	
  1122(d)(4)(xiv)

  	
   

  	
  Delinquencies, charge-offs and uncollectible
  accounts are recognized and recorded in accordance with the transaction
  agreements.

  	
   

  	
  X

  	
   

  	
   

  
	
  1122(d)(4)(xv)

  	
   

  	
  Any external enhancement or other support,
  identified in Item 1114(a)(1) through (3) or Item 1115 of Regulation AB, is
  maintained as set forth in the transaction agreements.

  	
   

  	
   

  	
   

  	
  X

  



 



 61
 






 



Exhibit C


FORM OF SERVICER COMPLIANCE STATEMENT FOR


THE NATIONAL COLLEGIATE STUDENT LOAN TRUST 20   -  


[DATE]


The National Collegiate Student Loan Trust 20   -  


[ADDRESS]


In connection with
the Annual Report on Form 10-K of The National Collegiate Student Loan Trust 20   -  
for the fiscal year ending June 30, 20    (the “Report”),
the undersigned, a duly authorized officer of the [SERVICER] (the “Servicer”),
does hereby certify and represent as follows:


1.                             A
review of the activities and performance of the Servicer under the Servicing
Agreement dated as of [                                 ],
as amended, between the Servicer and The First Marblehead Corporation (the “Servicing
Agreement”) for the period that is the subject of the Report has been made
under the supervision of the undersigned;


2.                             To
the best knowledge of the undersigned, based on such review, the Servicer has
fulfilled all of its obligations under the Servicing Agreement in all material
respects throughout the period that is the subject of the Report; and


3.                             To
the best knowledge of the undersigned, based on such review, there have been no
failures to fulfill any such obligation in any material respect.


IN WITNESS WHEREOF, the
undersigned has executed this Servicer Compliance Statement as of [                                    ],
20   .


	
  

  	
  [SERVICER], as
  Servicer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title

  



 



 62
 






 



Exhibit B — Servicing Guidelines


SERVICING GUIDELINES FOR TERI LOAN PROGRAMS

SERVICED AT

PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY

(D/B/A AMERICAN EDUCATION SERVICES)


[**]



 63














 


EXHIBIT C


SERVICE LEVEL AGREEMENTS


FOR TERI LOAN PROGRAMS


SERVICED AT


PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY 


(d/b/a AMERICAN EDUCATION SERVICES)


Servicer agrees to adhere to the Service Level
Agreement (SLA) outlined below. Servicer’s failure to adhere to the standards
in this SLA shall result in the penalties set forth in Section 4.02 of the
Agreement, under the terms and conditions set forth in that Section.


The Servicer will provide First
Marblehead Corporation (FMC) with monthly reports setting forth Servicer’s
performance relative to the below SLA for the month covered by the
report, the month prior to the month covered by the report, and the Servicer’s
year-to-date average performance level through the month covered by the report.
These reports will be made available to FMC no later than fifteen (15) business
days following the last day of the month covered by the report.


I.                                       Customer
Service Standards:


Telephone and Internet Chat Standards:


·                  Average Speed of Answer: [**]seconds or less.


·                  Abandonment Percentage: Average not greater than [**]%.


·                  Call Blockage: [**]% or less.


·                  Call Quality Assessment: Average rating not less than [**]% - utilizing
Servicer’s evaluation form as set forth and incorporated herein at Exhibit 1.


·                  Borrower Satisfaction: Average rating in annual survey not less than [**]%.


Correspondence Standards


·                  Mail sorted and distributed within: Servicer’s Service Objective: [**]%
within one business day not to exceed two business days on average.


·                  General Borrower
correspondence answered within [**] business days of receipt on average –
Servicer’s Service Objective: [**] days. During peak processing months of
January through March, August, and October, correspondence answered within [**]
business days of receipt on average. (This standard shall not apply to any
correspondence involving death, disability, or bankruptcy Accounts.)


·                  Borrower Email
Correspondence: Answered within an average of [**] business days of receipt.









 



·                  School
Correspondence: Answered within [**] business days of receipt on average —
Servicer’s Service Objective: [**] days. During peak processing months of
January through March, July, and September school correspondence answered
within [**] business days of receipt on average.


·                  Clearinghouse
Correspondence (Manual Processing Only): Answered within [**] business days of
receipt on average – Servicer’s Service Objective: [**] days. During peak
processing months of January through March, June, and October through November
Clearinghouse correspondence answered within [**] business days of receipt on
average.


·                  Deferment
Processing: Processed within [**] business days of receipt on average –
Servicer’s Service Objective: [**] days. During peak processing months of
February and August through November deferments processed within [**] business
days of receipt on average.


·                  Forbearance Processing: Processed within
[**] business days of receipt on average – Servicer’s Service Objective: [**]
days. During peak processing months of January through March, August, November
through December forearances processed within [**] business days of receipt on
average.


·                  Miscellaneous
Account Reviews and adjustments completed within [**] business days of receipt
on average – there are exceptions to this process.


II.                                     Payment
Processing


·                  Non-Exception Loan Payments: Posted within an average of [**] business day
of receipt – [**]% of the time.


·                  Exception Loan Payments: Processed/resolved within an average of [**]
business days of receipt — [**]% of the time


III.                                       Fraud
Prevention


Fraud notification to FMC within [**] business days of
initial notification.


IV.                                       Default
Prevention


·                  Collection
contacts (left message or right party contact only) as a % of all delinquent
accounts attempted per bucket:


·                  31 - 60 day
bucket at least [**]%


·                  61 - 90 day
bucket at least [**]%


·                  Promise to pay
rate not less than [**]% of all delinquent accounts attempted greater than 30
days delinquent.


·                  Skip-trace
locate rate not less than [**]% of all accounts coded as requiring skip-trace
activities.









 



V.                                     System
Requirements


·                  System Availability (scheduled CICS system up
time): [**]% or better. This standard shall not include the measurement for web
based applications, batch processes, or scheduled CICS down time including but
not limited to Sunday maintenance.


·                  Screen Navigation
- Servicer shall provide an average
internal CICS response time of less than [**]. This measurement shall
only be applicable to Servicer’s provision of screen navigation and shall not
be impacted nor include measurement relative to users’ internet based access to
the screens because AES/PHEAA has no ability to control response times for
users’ ISP connections or internal
network performance. Servicer
shall report the internal average response time on a monthly basis for the
CICSL0PA system including the availability percentage for that system for
normal scheduled hours of usage.


VI.                                 Conversion


·                  Servicer shall convert all Committed Student
Loan origination data necessary for servicing hereunder onto its Servicing
System within [**] days of receipt of complete Student Loan files
containing critical and non-critical documentation from TERI or from FMER on
TERI’s behalf.