PURCHASE AGREEMENT MASTER SECURITIZATION TERMS NUMBER 1000
Exhibit 99.3
PURCHASE AGREEMENT MASTER SECURITIZATION TERMS NUMBER 1000
These Purchase Agreement Master Securitization Terms Number 1000 (“Master Terms”) dated as of
April 21, 2009 among (i) Town Center Funding LLC (“Town Center Funding”), (ii) The Bank of New York
Mellon Trust Company, National Association, not in its individual capacity but solely as Interim
Eligible Lender Trustee (the “Town Center Funding Eligible Lender Trustee”), for the benefit of
Town Center Funding under the Town Center Funding Interim Trust Agreement dated as of April 21,
2009 between Town Center Funding and the Town Center Funding Eligible Lender Trustee, (iii) SLM
Funding LLC (“Funding”), (iv) The Bank of New York Mellon Trust Company, National Association, not
in its individual capacity but solely as Interim Eligible Lender Trustee (the “Interim Eligible
Lender Trustee”) for the benefit of Funding under the Interim Trust Agreement dated as of April 21,
2009 between Funding and the Interim Eligible Lender Trustee and (v) Xxxxxx Xxx, Inc., as servicer
(the “Servicer”), shall be effective upon execution by the parties hereto. References to Town
Center Funding herein mean the Town Center Funding Eligible Lender Trustee acting on behalf of Town
Center Funding, and references to Funding herein mean the Interim Eligible Lender Trustee, acting
on behalf of Funding, for all purposes involving the holding or transferring of legal title to the
Eligible Loans.
WHEREAS, Town Center Funding is the beneficial owner of certain student loans guaranteed under
the Higher Education Act;
WHEREAS, Town Center Funding may desire to sell its interest in such Loans from time to time
and Funding may desire to purchase such Loans from Town Center Funding;
WHEREAS, Funding desires to purchase from Town Center Funding the portfolio of Initial Loans;
WHEREAS, from time to time following the Closing Date until the end of the Supplemental
Purchase Period, Town Center Funding may desire to sell Additional Loans and Funding may purchase
such Additional Loans in accordance with these Master Terms and the related Additional Purchase
Agreements;
WHEREAS, from time to time, Town Center Funding may substitute loans in accordance with these
Master Terms;
WHEREAS, legal title to such Loans is vested in the Town Center Funding Eligible Lender
Trustee, as trustee for the benefit of Town Center Funding as the sole beneficiary; and
WHEREAS, the Interim Eligible Lender Trustee is willing to hold legal title to, and serve as
eligible lender trustee with respect to, Purchased Loans on behalf of Funding.
NOW, THEREFORE, in connection with the mutual promises contained herein, the parties hereto
agree as follows:
TOWN CENTER FUNDING Purchase Agreement — Master
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SECTION 1. TERMS
These Master Terms establish the terms under which Town Center Funding (and with respect to
legal title, the Town Center Funding Eligible Lender Trustee for the benefit of Town Center
Funding) may sell and Funding (and with respect to legal title, the Interim Eligible Lender Trustee
on behalf of Funding) may purchase the Loans (and all obligations of the Borrowers thereunder)
specified in the Initial Purchase Agreement with respect to the Initial Loans or each Additional
Purchase Agreement with respect to any Additional Loans or Substituted Loans, as the parties may
execute from time to time pursuant to these Master Terms. The Initial Purchase Agreement and each
Additional Purchase Agreement, as applicable, shall be substantially in the form of Attachment A
and Attachment C hereto, respectively, in each case incorporating by reference the terms of these
Master Terms, and shall be a separate agreement among Town Center Funding, Funding, the Town Center
Funding Eligible Lender Trustee on behalf of Town Center Funding and the Interim Eligible Lender
Trustee on behalf of Funding with respect to the Loans covered by the terms of the Initial Purchase
Agreement or the related Additional Purchase Agreement, as applicable. If the terms of the Initial
Purchase Agreement or an Additional Purchase Agreement conflict with the terms of these Master
Terms, the terms of the Initial Purchase Agreement or the related Additional Purchase Agreement, as
applicable, shall supersede and govern.
SECTION 2. DEFINITIONS
Capitalized terms used but not otherwise defined herein, including in the related Purchase
Agreement and Xxxx of Sale, shall have the definitions set forth in Appendix A to the Indenture
dated as of April 21, 2009, among the Eligible Lender Trustee on behalf of the Trust, the Trust and
the Indenture Trustee, as may be amended or supplemented from time to time.
For purposes hereof:
(A) “Account” means all of the Eligible Loans hereunder of one (1) Borrower that are of the
same Loan type made under the identical subsection of the Higher Education Act and in the
same status.
(B) “Additional Xxxx of Sale” means each document, in the form of Attachment D hereto,
executed by an authorized officer of Town Center Funding, the Town Center Funding Eligible
Lender Trustee on behalf of Town Center Funding, Funding and the Interim Eligible Lender
Trustee on behalf of Funding which shall: (i) set forth the list and certain terms of (a)
Additional Loans offered by Town Center Funding and the Town Center Funding Eligible Lender
Trustee on behalf of Town Center Funding and accepted for purchase by the Interim Eligible
Lender Trustee for the benefit of Funding, including the Additional Loans Purchase Price for
the Additional Loans being sold thereunder or (b) Substituted Loans substituted by Town
Center Funding and (ii) sell, assign and convey to the Interim Eligible Lender Trustee, for
the benefit of Funding and its assignees, all right, title and interest of Town Center
Funding and of the Town Center Funding Eligible Lender Trustee on behalf of Town Center
Funding in the Additional Loans or Substituted Loans, as applicable, listed on the related
Additional Xxxx of Sale and (iii) certify that the representations and warranties made by
Town Center Funding and the Town Center
Funding Eligible Lender Trustee on behalf of Town Center Funding pursuant to Sections 5(A)
and (B) of these Master Terms, by the Servicer as set forth in Section 5(C) and by the
Interim Eligible Lender Trustee as set forth in Section 5(D) are true and correct.
Purchase Agreement — Master (TOWN CENTER FUNDING)
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(C) “Additional Loan” means the Eligible Loans evidenced by a Note or Notes sold from time
to time during the Supplemental Purchase Period pursuant to an Additional Purchase Agreement
and related documentation, together with any guaranties and other rights relating thereto
including, without limitation, Interest Subsidy Payments and Special Allowance Payments.
(D) “Additional Loans Purchase Price” means the dollar amount representing the aggregate
purchase price of the related Additional Loans as specified in the applicable Additional
Purchase Agreement (which, with respect to any Additional Loan purchased with funds on
deposit in the Supplemental Purchase Account, will be equal to 100% of the aggregate
principal balance of such Additional Loan, plus accrued interest to be capitalized).
(E) “Additional Purchase Agreement” means each Additional Purchase Agreement (including the
related Additional Xxxx of Sale, the related Blanket Endorsement and any attachments
thereto), substantially in the form of Attachment C hereto (of which these Master Terms form
a part by reference, provided that in the event of a substitution, the form will be modified
accordingly), to be executed by Town Center Funding, the Town Center Funding Eligible Lender
Trustee for the benefit of Town Center Funding, Funding and the Interim Eligible Lender
Trustee for the benefit of Funding, which certifies that the representations and warranties
made by Town Center Funding, as set forth in Sections 5(A) and (B) of these Master Terms and
the representations and warranties made by the Servicer as set forth in Section 5(C) of
these Master Terms are true and correct as of the related Purchase Date.
(F) “Xxxx of Sale” means the Initial Xxxx of Sale or an Additional Xxxx of Sale, as
applicable.
(G) “Borrower” means the obligor on a Loan.
(H) “Consolidation Loan” means a Loan made pursuant to and in full compliance with Section
428C of the Higher Education Act.
(I) “Conveyance Agreement” means the Conveyance Agreement Master Securitization Terms Number
1000, dated February 29, 2008, among the Master Depositor, The Bank of New York Trust
Company, N.A., as eligible lender trustee for the benefit of the Master Depositor, Town
Center Funding, as the depositor, The Bank of New York Trust Company, N.A., as eligible
lender trustee for the benefit of Town Center Funding, and Xxxxxx Xxx, Inc., as master
servicer, together with each executed Purchase Agreement (as defined therein) and each
executed Xxxx of Sale (as defined therein) and all attachments thereto.
(J) “Cutoff Date” means the Statistical Cutoff Date, the Initial Cutoff Date and any
Subsequent Cutoff Date, as applicable.
Purchase Agreement — Master (TOWN CENTER FUNDING)
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(K) “Eligible Loan” means a Loan offered for sale or substituted by Town Center Funding
under a Purchase Agreement which as of the Statistical Cutoff Date, in the case of the
Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any Additional
Loan or Substituted Loan, is current or not more past due than permitted under such Purchase
Agreement in payment of principal or interest and which meets the following criteria as of
the Statistical Cutoff Date, in the case of the Initial Loans, or as of the effective date
of the related Xxxx of Sale, in the case of any Additional Loan or Substituted Loan:
(i) is a Consolidation Loan;
(ii) is owned by Town Center Funding (or the Town Center Funding Eligible Lender
Trustee) and is fully disbursed;
(iii) is guaranteed as to principal and interest by the applicable Guarantor to the
maximum extent permitted by the Higher Education Act for such Loan;
(iv) bears interest at a stated rate of not less than the maximum rate permitted
under the Higher Education Act for such Loan;
(v) is eligible for the payment of the quarterly special allowance at the full and
undiminished rate established under the formula set forth in the Higher Education
Act for such Loan;
(vi) if not yet in repayment status, is eligible for the payment of interest
benefits by the Secretary or, if not so eligible, is a Loan for which interest
either is billed quarterly to Borrower or deferred until commencement of the
repayment period, in which case such accrued interest is subject to capitalization
to the full extent permitted by the applicable Guarantor;
(vii) is current or no payment of principal or interest shall be more than 269 days
past due as of the Statistical Cutoff Date, in the case of the Initial Loans, or in
relation to any Additional Loan or Substituted Loan, the related Subsequent Cutoff
Date;
(viii) the last disbursement was before the Statistical Cutoff Date, in the case of
the Initial Loans, or before the related Subsequent Cutoff Date, in the case of any
Additional Loan or Substituted Loan;
(ix) is supported by the following documentation:
1. | loan application, and any supplement thereto, |
2. | original promissory note and any addendum
thereto (or a certified copy thereof if more than one loan is
represented by a single promissory note and all loans so represented
are not being sold) or the electronic records evidencing the same, |
Purchase Agreement — Master (TOWN CENTER FUNDING)
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3. | evidence of guarantee, |
4. | any other document and/or record which Funding
may be required to retain pursuant to the Higher Education Act, |
5. | if applicable, payment history (or similar
document) including (i) an indication of the Principal Balance and the
date through which interest has been paid, each as of the Statistical
Cutoff Date, in the case of the Initial Loans, or the related
Subsequent Cutoff Date, in the case of any Additional Loan or
Substituted Loan, and (ii) an accounting of the allocation of all
payments by the Borrower or on the Borrower’s behalf to principal and
interest on the Loan, |
6. | if applicable, documentation which supports
periods of current or past deferment or past forbearance, |
7. | if applicable, a collection history, if the
Loan was ever in a delinquent status, including detailed summaries of
contacts and including the addresses or telephone numbers used in
contacting or attempting to contact Borrower and any endorser and, if
required by the Guarantor, copies of all letters and other
correspondence relating to due diligence processing, |
8. | if applicable, evidence of all requests for
skip-tracing assistance and current address of Borrower, if located, |
9. | if applicable, evidence of requests for
pre-claims assistance, and evidence that the Borrower’s school(s) have
been notified, and |
10. | if applicable, a record of any event resulting
in a change to or confirmation of any data in the related Trust Student
Loan File. |
(L) [Reserved].
(M) “Initial Xxxx of Sale” means the document, in the form of Attachment B hereto, executed
by an authorized officer of Town Center Funding and the Town Center Funding Eligible Lender
Trustee for the benefit of Town Center Funding which shall (i) set forth the applicable
Initial Loans offered by Town Center Funding and accepted for purchase by Funding and by the
Interim Eligible Lender Trustee for the benefit of Funding, (ii) sell, assign and convey to
the Interim Eligible Lender Trustee for the benefit of Funding and its assignees all rights,
title and interest of Town Center Funding and the Town Center Funding Eligible Lender
Trustee for the benefit of Town Center Funding in the Initial Loans listed on that Xxxx of
Sale and (iii) certify that the representations and warranties made by Town Center Funding
and the Town Center Funding Eligible Lender Trustee on behalf of Town Center Funding as set
forth in Sections 5 (A) and (B), by the Servicer as set forth in Section 5(C) and by the
Interim Eligible Lender Trustee in Section 5(D) of these Master Terms are true and correct.
Purchase Agreement — Master (TOWN CENTER FUNDING)
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(N) “Initial Cutoff Date” means April 21, 2009.
(O) “Initial Loans” means the Eligible Loans evidenced by the Notes sold on the Closing Date
pursuant to the Initial Purchase Agreement and related documentation, together with any
guaranties and other rights relating thereto including, without limitation, Interest Subsidy
Payments and Special Allowance Payments.
(P) “Initial Payment” means the dollar amount specified as the “Initial Payment” in the
applicable Purchase Agreement.
(Q) “Initial Purchase Agreement” means the Purchase Agreement (including the related Blanket
Endorsement, Initial Xxxx of Sale and any attachments thereto) substantially in the form of
Attachment A hereto (of which these Master Terms form a part by reference), to be executed
by Town Center Funding, the Town Center Funding Eligible Lender Trustee on behalf of Town
Center Funding, Funding and the Interim Eligible Lender Trustee on behalf of Funding, which
shall certify that the representations and warranties made by Town Center Funding as set
forth in Sections 5(A) and (B) and by the Servicer as set forth in Section 5(C) of these
Master Terms are true and correct as of the Closing Date.
(R) “Loan” means an Initial Loan, Additional Loan or Substituted Loan, as applicable,
offered for sale and purchased, or substituted, pursuant to the related Purchase Agreement
and related documentation together with any guaranties and other rights relating thereto
including, without limitation, Interest Subsidy Payments and Special Allowance Payments.
(S) “Loan Transmittal Summary Forms” means the forms related to each Xxxx of Sale provided
to Town Center Funding by Funding and completed by Town Center Funding that list, by
Borrower, (i) the Loans subject to the related Xxxx of Sale and (ii) the outstanding
Principal Balance and accrued interest thereof as of the Statistical Cutoff Date, in the
case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any
Additional Loan or Substituted Loan.
(T) “Master Depositor” means Xxxxxxxxx Funding LLC.
(U) “Note” means the promissory note or notes of the Borrower and any amendment thereto
evidencing the Borrower’s obligation with regard to a student loan guaranteed under the
Higher Education Act or the electronic records evidencing the same.
(V) “Original Purchase Date” means with respect to any Loan, the date such Loan was
purchased by Town Center Funding from the Master Depositor pursuant to the Conveyance
Agreement.
(W) “Principal Balance” means the outstanding principal amount of the Loan, plus interest
expected to be capitalized (if any), less amounts which may not be insured (such as late
charges).
(X) “Purchase Agreement” means the Initial Purchase Agreement or an Additional Purchase
Agreement (including any attachments thereto), as applicable, substantially in
the form of Attachment A or C hereto, of which the Master Terms form a part by reference.
Purchase Agreement — Master (TOWN CENTER FUNDING)
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(Y) “Purchase Date” means with respect to the Initial Loans, the Closing Date, and with
respect to any Additional Loans or Substituted Loans, the date of the related Additional
Xxxx of Sale.
(Z) “Purchase Price” means the Initial Payment or the Additional Loans Purchase Price, as
applicable.
(AA) “Purchased Loans” means, with respect to each Purchase Agreement, the Loans offered for
sale and purchased or substituted pursuant to such Purchase Agreement.
(BB) “Sale Agreement” means the Sale Agreement Master Securitization Terms Number 1000,
dated as of April 21, 2009, among SLM Funding LLC, as Seller, SLM Student Loan Trust 2009-2,
as Purchaser, and The Bank of New York Mellon Trust Company, National Association, as
Interim Eligible Lender Trustee and as Eligible Lender Trustee.
(CC) “Secretary” means the United States Secretary of Education or any successor.
(DD) “Statistical Cutoff Date” means April 7, 2009.
(EE) “Subsidized Consolidation Loan” means a Loan for which the interest rate is governed by
Section 427A(a) or 427A(d) of the Higher Education Act.
(FF) “Subsequent Cutoff Date” means the date specified in the related Additional Purchase
Agreement agreed to by Town Center Funding and Funding for the purposes of determining the
Principal Balance and accrued interest to be capitalized, as applicable, for purposes of
completing each related Loan Transmittal Summary Form.
(GG) “Substituted Loans” means the Eligible Loans evidenced by a Note or Notes substituted
by Town Center Funding pursuant to the terms of Section 6(B) hereof from time to time as
evidenced by an Additional Purchase Agreement and related documentation, together with any
guaranties and other rights relating thereto including, without limitation, Interest Subsidy
Payments and Special Allowance Payments. For all purposes hereunder, except with respect to
Purchase Price or as otherwise set forth herein, Substituted Loans shall be treated as
Additional Loans.
(HH) “Trust” means SLM Student Loan Trust 2009-2.
(II) “Trust Student Loan” means any student loan that is listed on the Schedule of Trust
Student Loans on the Closing Date, plus any Additional Loan, plus any Substituted Loan that
is permissibly substituted for a Trust Student Loan by the Depositor pursuant to Section
6(B) of the Sale Agreement or pursuant to Section 6(B) of an Additional Sale Agreement, or
by the Servicer pursuant to Section 3.5 of the Servicing Agreement, but shall not include
any Purchased Loan following receipt by or on behalf of the Trust of the Purchase Amount
with respect thereto or any Liquidated Student Loan following receipt
by or on behalf of the Trust of Liquidation Proceeds with respect thereto or following such
Liquidated Student Loan having otherwise been written off by the Servicer.
(JJ) “Unsubsidized Consolidation Loan” means a Loan made pursuant to Section 428H of the
Higher Education Act.
Purchase Agreement — Master (TOWN CENTER FUNDING)
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SECTION 3. SALE/PURCHASE
SECTION 3.1 SALE/PURCHASE OF INITIAL LOANS
(A) Consummation of Sale and Purchase
The sale and purchase of Eligible Loans pursuant to the Initial Purchase Agreement to
be dated as of the Closing Date shall be consummated upon (i) Funding’s receipt from Town
Center Funding and the Town Center Funding Eligible Lender Trustee for the benefit of Town
Center Funding of the Initial Xxxx of Sale and (ii) the payment by Funding to Town Center
Funding of the Initial Payment. Upon consummation, such sale and purchase shall be
effective as of the date of the Xxxx of Sale. Town Center Funding and Funding shall use
their best efforts to perform promptly their respective obligations pursuant to the Initial
Purchase Agreement with respect to each Initial Loan.
(B) Settlement of the Initial Payment
On the date of the Initial Xxxx of Sale, Funding shall pay to Town Center Funding the
Initial Payment by wire transfer of immediately available funds to the account specified by
Town Center Funding.
(C) Interest Subsidy and Special Allowance Payments and Rebate Fees
Town Center Funding shall be entitled to all Interest Subsidy Payments and Special
Allowance Payments on each Initial Loan accruing up to but not including the Initial Cutoff
Date and shall be responsible for the payment of any rebate fees applicable to the Initial
Loans accruing up to but not including the Initial Cutoff Date. The Interim Eligible Lender
Trustee on behalf of Funding shall be entitled to all Special Allowance Payments and
Interest Subsidy Payments on the Initial Loans accruing from the Initial Cutoff Date, and
shall be responsible for the payment of any rebate fees applicable to the Initial Loans
accruing from the Initial Cutoff Date.
(D) Grant of Contract Right
In connection with the sale of the Initial Loans, Town Center Funding hereby assigns to
Funding all of its rights (but none of its obligations) under, in and to the Conveyance
Agreement, including all rights of Town Center Funding to proceed against the Master
Depositor with respect to breaches of representations, warranties and covenants with respect
to the Initial Loans.
Purchase Agreement — Master (TOWN CENTER FUNDING)
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SECTION 3.2 SALE/PURCHASE OF ADDITIONAL LOANS AND SUBSTITUTION OF SUBSTITUTED LOANS
(A) Requirements Relating to Additional Loans
From time to time during the Supplemental Purchase Period, Town Center Funding may, but
shall not be obligated to, sell or cause the sale of Eligible Loans to Funding, and Funding
may (but only to the extent that the Eligible Loans are contemporaneously sold to the
Eligible Lender Trustee on behalf of the Trust in accordance with the Sale Agreement and the
related Additional Sale Agreement) purchase such Additional Loans from Town Center Funding
and the Town Center Funding Eligible Lender Trustee at the related Additional Loans Purchase
Price set forth in the related Additional Purchase Agreement. In addition, at any time,
Town Center Funding may transfer Substituted Loans to Funding in satisfaction of any Loan
repurchase obligations hereunder. The sale and purchase (or substitution) of Additional
Loans (or Substituted Loans) pursuant to an Additional Purchase Agreement shall be
consummated as set forth in this Section 3.2.
(B) Consummation of Sale and Purchase
During the Supplemental Purchase Period with respect to the Additional Loans (and
thereafter with respect to Substituted Loans), the sale and purchase of Eligible Loans
pursuant to an Additional Purchase Agreement shall be consummated upon (i) Funding’s receipt
from Town Center Funding and the Town Center Funding Eligible Lender Trustee of a fully
executed copy of the related Additional Purchase Agreement; and (ii) the payment by Funding
to Town Center Funding of the related Purchase Price. Upon consummation, such sale and
purchase shall be effective as of the date of the related Additional Xxxx of Sale. Town
Center Funding and Funding shall use their best efforts to perform promptly their respective
obligations pursuant to the related Additional Purchase Agreement with respect to each
Additional Loan.
(C) Settlement of the Purchase Price
On the date of the related Additional Xxxx of Sale for an Additional Loan, Funding
shall pay Town Center Funding the related Purchase Price by wire transfer of immediately
available funds to the account specified by Town Center Funding (except that with respect to
Substituted Loans, the consideration for such Loans shall be the transfer from Funding to
Town Center Funding of ownership of the Loans being substituted).
(D) Interest Subsidy and Special Allowance Payments and Rebate Fees
Town Center Funding shall be entitled to all Interest Subsidy Payments and Special
Allowance Payments on each Additional Loan or Substituted Loan accruing up to but not
including the related Subsequent Cutoff Date, as applicable, and shall be responsible for
the payment of any rebate fees applicable to such Purchased Loans subject to the related
Xxxx of Sale accruing up to but not including the related Subsequent Cutoff Date. The
Interim Eligible Lender Trustee on behalf of Funding shall be entitled
to all Special Allowance Payments and Interest Subsidy Payments accruing from the
related Subsequent Cutoff Date with respect to the Additional Loans or Substituted Loans,
and shall be responsible for the payment of any rebate fees applicable to the Additional
Loans which are Consolidation Loans subject to the related Xxxx of Sale accruing from the
date of the related Subsequent Cutoff Date.
Purchase Agreement — Master (TOWN CENTER FUNDING)
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(E) Grant of Contract Right
In connection with each sale of Additional Loans, Town Center Funding hereby assigns to
Funding all of its rights (but none of its obligations) under, in and to the Conveyance
Agreement, including all rights of Town Center Funding to proceed against the Master
Depositor with respect to breaches of representations, warranties and covenants with respect
to the applicable Additional Loans.
SECTION 3.3 GENERAL
(A) Special Programs
In consideration of the sale or substitution of the Eligible Loans under these Master
Terms and each Purchase Agreement, Funding agrees to cause the Servicer to offer each
Borrower of a Trust Student Loan sold or substituted hereunder and to keep in effect all
special programs, whether or not in existence as of the date of any related Purchase
Agreement, generally offered to the obligors of comparable loans owned by SLM Corporation or
any of its Affiliates. Funding is purchasing Loans from Town Center Funding, or permitting
the substitution of Loans, subject to any special programs. If required, Town Center
Funding shall remit to Funding any amounts necessary to offset any effective yield
reductions on related Trust Student Loans as set forth in Section 3.12 of the Servicing
Agreement.
(B) Intent of the Parties
With respect to each sale or substitution of Loans pursuant to these Master Terms and
the related Purchase Agreements, it is the intention of Town Center Funding, the Town Center
Funding Eligible Lender Trustee, the Interim Eligible Lender Trustee and Funding, and Town
Center Funding hereby warrants that, except for U.S. federal, state and local income and
franchise tax purposes, the transfer and assignment constitute a valid sale of such Loans
from Town Center Funding to the Interim Eligible Lender Trustee or a valid substitution, for
the benefit of and on behalf of Funding, and that the beneficial interest in and title to
such Loans not be part of Town Center Funding’s estate in the event of the bankruptcy of
Town Center Funding or the appointment of a receiver with respect to Town Center Funding.
Purchase Agreement — Master (TOWN CENTER FUNDING)
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SECTION 4. CONDITIONS PRECEDENT TO PURCHASE OR SUBSTITUTION
Any purchase or substitution of Loans pursuant to these Master Terms is subject to the
following conditions precedent being satisfied (and Town Center Funding, by
accepting payment, shall be deemed to have certified that all such conditions are
satisfied on the date of such purchase):
(A) Activities Prior to the Related Purchase Date
Town Center Funding shall provide any assistance requested by Funding in determining
that all required documentation on the related Loans is present and correct.
(B) Continued Servicing
Following the execution of each Purchase Agreement, Town Center Funding shall service,
or cause to be serviced, all Loans subject to such Purchase Agreement as required under the
Higher Education Act until the date of the related Xxxx of Sale.
(C) Xxxx of Sale/Loan Transmittal Summary Form
Town Center Funding shall deliver to Funding:
(i) a Xxxx of Sale that (a) has been duly authorized, executed and delivered, by an
authorized officer of Town Center Funding and the Town Center Funding Eligible
Lender Trustee for the benefit of Town Center Funding, covering the applicable Loans
offered by Town Center Funding and the Town Center Funding Eligible Lender Trustee
for the benefit of Town Center Funding, (b) has been accepted by Funding as set
forth thereon, selling, assigning and conveying to the Interim Eligible Lender
Trustee on behalf of Funding and its assignees all right, title and interest of Town
Center Funding and the Town Center Funding Eligible Lender Trustee for the benefit
of Town Center Funding, including the insurance interest of the Town Center Funding
Eligible Lender Trustee for the benefit of Town Center Funding, in each of the
related Loans, and (c) states that the representations and warranties made by Town
Center Funding in Sections 5(A) and (B) of these Master Terms are true and correct
on and as of the date of the related Xxxx of Sale; and
(ii) the Loan Transmittal Summary Form, attached to the related Xxxx of Sale,
identifying each of the Eligible Loans which is the subject of the related Xxxx of
Sale and setting forth the unpaid Principal Balance of each such related Loan.
(D) Endorsement
Town Center Funding and the Town Center Funding Eligible Lender Trustee for the benefit
of Town Center Funding shall provide a blanket endorsement transferring the entire interest
of Town Center Funding and the Town Center Funding Eligible Lender Trustee for the benefit
of Town Center Funding in the related Eligible Loans to the Interim Eligible Lender Trustee
on behalf of Funding with the form of endorsement provided for in the Initial Purchase
Agreement with respect to the Initial Loans or the Additional Purchase Agreement with
respect to the Additional Loans or Substituted Loans.
At the direction of and in such form as Funding may designate, Town Center Funding and
the Town Center Funding Eligible Lender Trustee for the benefit of Town Center Funding also
agree to individually endorse any Eligible Loan as Funding may request from time to time.
Purchase Agreement — Master (TOWN CENTER FUNDING)
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(E) Officer’s Certificate
Town Center Funding shall furnish to Funding, with each Xxxx of Sale provided in
connection with each purchase or substitution of Eligible Loans pursuant to these Master
Terms, an Officer’s Certificate, dated as of the date of such Xxxx of Sale.
(F) Loan Transfer Statement
Upon Funding’s request, Town Center Funding shall deliver to Funding one (1) or more
Loan Transfer Statements (Department of Education Form OE 1074 or its equivalent) provided
by Funding, executed by the Town Center Funding Eligible Lender Trustee for the benefit of
Town Center Funding and dated the date of the related Xxxx of Sale. Town Center Funding
agrees that Funding and the Interim Eligible Lender Trustee may use the related Xxxx of
Sale, including the Loan Transmittal Summary Form attached to that Xxxx of Sale, in lieu of
OE Form 1074, as official notification to the Guarantor of the assignment by the Town Center
Funding Eligible Lender Trustee on behalf of Town Center Funding to the Interim Eligible
Lender Trustee on behalf of Funding of the Loans listed on the related Xxxx of Sale.
(G) Power of Attorney
Town Center Funding and the Town Center Funding Eligible Lender Trustee for the benefit
of Town Center Funding hereby grants to Funding and the Interim Eligible Lender Trustee, on
behalf of and for the benefit of Funding, an irrevocable power of attorney, which power of
attorney is coupled with an interest, to individually endorse or cause to be individually
endorsed in the name of Town Center Funding and the Town Center Funding Eligible Lender
Trustee for the benefit of Town Center Funding, any Eligible Loan to evidence the transfer
of such Eligible Loan to Funding and the Interim Eligible Lender Trustee for the benefit of
Funding and to cause to be transferred physical possession of any Note from Town Center
Funding or the Servicer to Funding or the Interim Eligible Lender Trustee or any custodian
on their behalf.
(H) Contemporaneous Sale
Subject to the conditions set forth in Section 3.2(A) hereof, with respect to the
purchase of Additional Loans, such Additional Loans shall be contemporaneously sold to the
Eligible Lender Trustee on behalf of the Trust in accordance with Section 4(H) of the Sale
Agreement.
Purchase Agreement — Master (TOWN CENTER FUNDING)
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SECTION 5. | REPRESENTATIONS AND WARRANTIES OF TOWN CENTER FUNDING AND THE INTERIM ELIGIBLE
LENDER TRUSTEE |
(A) General
Town Center Funding represents and warrants to Funding that with respect to the Initial
Loans, as of the Closing Date, and with respect to any Additional Loans sold by it or
Substituted Loans substituted by it, as of the date of the related Purchase Agreement and
Xxxx of Sale:
(i) The Town Center Funding Eligible Lender Trustee is an eligible lender or other
qualified holder of loans originated pursuant to the Federal Family Education Loan
Program established under the Higher Education Act;
(ii) The Town Center Funding Eligible Lender Trustee and Town Center Funding are
duly organized and existing under the laws of its governing jurisdiction;
(iii) The Town Center Funding Eligible Lender Trustee and Town Center Funding have
all requisite power and authority to enter into and to perform the terms of these
Master Terms, the Initial Purchase Agreement and any Additional Purchase Agreement,
the Initial Xxxx of Sale and any Additional Xxxx of Sale;
(iv) The Town Center Funding Eligible Lender Trustee and Town Center Funding will
not, with respect to any Loan purchased or substituted under Purchase Agreements
executed pursuant to these Master Terms, agree to release any Guarantor from any of
its contractual obligations as an insurer of such Loan or agree otherwise to alter,
amend or renegotiate any material term or condition under which such Loan is
insured, except as required by law or rules and regulations issued pursuant to law,
without the express prior written consent of Funding;
(v) It is the intention of Town Center Funding, the Town Center Funding Eligible
Lender Trustee, the Interim Eligible Lender Trustee and Funding, and Town Center
Funding hereby warrants, that the transfer and assignment herein contemplated
constitute a valid sale of the Loans from the Town Center Funding Eligible Lender
Trustee, for the benefit of Town Center Funding to the Interim Eligible Lender
Trustee, for the benefit of and on behalf of Funding, and that the beneficial
interest in and title to such Loans not be part of Town Center Funding’s estate in
the event of the bankruptcy of Town Center Funding or the appointment of a receiver
with respect to Town Center Funding; and
(vi) Town Center Funding does not have the right to cause the Master Depositor or
the Servicer, as applicable, to modify, discontinue or terminate any borrower
benefit incentive program at any time for any reason.
Purchase Agreement — Master (TOWN CENTER FUNDING)
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(B) Particular—Town Center Funding
Town Center Funding represents and warrants to Funding and the Interim Eligible Lender
Trustee on behalf of Funding as to the Purchased Loans purchased by Funding under the
Initial Purchase Agreement with respect to the Initial Loans, or each Additional Purchase
Agreement with respect to any Additional Loans or Substituted Loans that as of the Original
Purchase Date and the Closing Date or the date of the related Purchase Agreement, as
applicable:
(i) The Town Center Funding Eligible Lender Trustee for the benefit of Town Center
Funding has good and marketable title to, and is the sole owner of, the Purchased
Loans, free and clear of all security interests, liens, charges, claims, offsets,
defenses, counterclaims or encumbrances of any nature and no right of rescission,
offsets, defenses or counterclaims have been asserted or threatened with respect to
those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined
in the applicable UCC) in the Purchased Loans in favor of the Interim Eligible
Lender Trustee, which security interest is prior to all other security interests,
liens, charges, claims, offsets, defenses, counterclaims or encumbrances, and is
enforceable as such as against creditors of and purchasers from Town Center Funding;
(iii) The Purchased Loans constitute either “Payment Intangibles” or “Accounts”
within the meaning of the applicable UCC and are within the coverage of Sections
432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of
the related Subsequent Cutoff Date, in the case of any Additional Loan or
Substituted Loan, the Purchased Loans are Eligible Loans and the description of such
Loans set forth in the related Purchase Agreement and the related Loan Transmittal
Summary Form is true and correct;
(v) Town Center Funding and the Town Center Funding Eligible Lender Trustee for the
benefit of Town Center Funding are authorized to sell, assign, transfer, substitute
and repurchase the Purchased Loans; and the sale, assignment and transfer of such
Loans is or, in the case of a Purchased Loan repurchase or substitution by Town
Center Funding and/or the Town Center Funding Eligible Lender Trustee, will be made
pursuant to and consistent with the laws and regulations under which Town Center
Funding and the Town Center Funding Eligible Lender Trustee operate, and will not
violate any decree, judgment or order of any court or agency, or conflict with or
result in a breach of any of the terms, conditions or provisions of any agreement or
instrument to which Town Center Funding or the Town Center Funding Eligible Lender
Trustee is a party or by which Town Center Funding or the Town Center Funding
Eligible Lender Trustee or its property is bound, or constitute a default (or an
event which could constitute a default with the passage of time or notice or both)
thereunder;
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(vi) The Purchased Loans are each in full force and effect in accordance with their
terms and are legal, valid and binding obligations of the respective Borrowers
thereunder subject to no defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the Purchased Loans for
the consummation of the sale of the Purchased Loans hereunder to the Interim
Eligible Lender Trustee;
(viii) Any payments on the Purchased Loans received by the Town Center Funding
Eligible Lender Trustee for the benefit of Town Center Funding that have been
allocated to the reduction of principal and interest on such Purchased Loans have
been allocated on a simple interest basis; the information with respect to the
applicable Purchased Loans as of the Statistical Cutoff Date, in the case of the
Initial Loans, or as of the Subsequent Cutoff Date, in the case of any Additional
Loan or Substituted Loan, as stated on the related Loan Transmittal Summary Form, is
true and correct;
(ix) Each Loan has been duly made and serviced in accordance with the provisions of
all applicable federal and state laws;
(x) With respect to the first sale of Loans from the Town Center Funding Eligible
Lender Trustee on behalf of Town Center Funding to the Interim Eligible Lender
Trustee for the benefit of Funding, Town Center Funding has caused or will have
caused, within ten days of the Closing Date, the filing of all appropriate financing
statements in the proper filing office in the appropriate jurisdictions under
applicable law in order to perfect the security interest in the Loans granted to the
Interim Eligible Lender Trustee hereunder; and
(xi) Other than the security interest granted to the Interim Eligible Lender Trustee
pursuant to this Agreement, Town Center Funding and the Town Center Funding Eligible
Lender Trustee have not pledged, assigned, sold, granted a security interest in, or
otherwise conveyed any of the Purchased Loans. Town Center Funding and the Town
Center Funding Eligible Lender Trustee have not authorized the filing of and are not
aware of any financing statements against Town Center Funding or the Town Center
Funding Eligible Lender Trustee that include a description of collateral covering
the Purchased Loans other than any financing statement relating to the security
interest granted to the Interim Eligible Lender Trustee hereunder or any other
security interest that has been terminated. Town Center Funding and the Town Center
Funding Eligible Lender Trustee are not aware of any judgment or tax lien filings
against Town Center Funding or the Town Center Funding Eligible Lender Trustee.
Purchase Agreement — Master (TOWN CENTER FUNDING)
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(C) Particular – Servicer
The Servicer, in consideration for continuing to receive the applicable servicing fee,
represents and warrants to Funding as to the Purchased Loans purchased by Funding under the
Initial Purchase Agreement with respect to the Initial Loans, or each Additional
Purchase Agreement with respect to any Additional Loans or Substituted Loans, in each
case executed pursuant to these Master Terms, that during the period commencing on the day
immediately following the Original Purchase Date to and including the related Purchase Date,
unless otherwise noted:
(i) The Town Center Funding Eligible Lender Trustee has good and marketable title
to, and is the sole owner of, the Purchased Loans, free and clear of all security
interests, liens, charges, claims, offsets, defenses, counterclaims or encumbrances
of any nature and no right of rescission, offsets, defenses or counterclaims have
been asserted or threatened with respect to those Loans;
(ii) The Purchased Loans constitute “Accounts” within the meaning of the applicable
UCC and are within the coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher
Education Act;
(iii) As of the Statistical Cutoff Date, in the case of the Initial Loans, or in
relation to any Additional Loan or Substituted Loan, the related Subsequent Cutoff
Date, are Eligible Loans and the description of such Loans set forth in the related
Purchase Agreement and the related Loan Transmittal Summary Form is true and
correct;
(iv) The Purchased Loans are each in full force and effect in accordance with their
terms and are legal, valid and binding obligations of the respective Borrowers
thereunder subject to no defenses (except the defense of infancy);
(v) No consents and approvals are required by the terms of the Purchased Loans for
the consummation of the sale of the Purchased Loans hereunder to the Interim
Eligible Lender Trustee;
(vi) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of
the related Subsequent Cutoff Date, in the case of any Additional Loan or
Substituted Loan, each Purchased Loan has been duly made and serviced in accordance
with the provisions of the Federal Family Education Loan Program established under
the Higher Education Act, and has been duly insured by a Guarantor; as of the
Statistical Cutoff Date, in the case of the Initial Loans, or as of the related
Subsequent Cutoff Date, in the case of any Additional Loan or Substituted Loan, such
guarantee is in full force and effect and is freely transferable to the Interim
Eligible Lender Trustee on behalf of Funding as an incident to the purchase of each
Loan; and all premiums due and payable to such Guarantor shall have been paid in
full as of the date of the related Xxxx of Sale;
(vii) Any payments on the Purchased Loans received by the Town Center Funding
Eligible Lender Trustee for the benefit of Town Center Funding that have been
allocated to the reduction of principal and interest on such Purchased Loans have
been allocated on a simple interest basis; the information with respect to the
applicable Purchased Loans as of the Statistical Cutoff Date, in the case of the
Initial Loans, or as of the related Subsequent Cutoff Date, in the case of any
Additional Loan or Substituted Loan, as stated on the related Loan Transmittal
Summary Form is true and correct;
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(viii) Due diligence and reasonable care have been exercised in the making,
administering, servicing and collecting on the Purchased Loans and, with respect to
any Loan for which repayment terms have been established, all disclosures of
information required to be made pursuant to the Higher Education Act have been made;
(ix) All origination fees authorized to be collected pursuant to Section 438 of the
Higher Education Act have been paid to the Secretary;
(x) Each Loan has been duly made and serviced in accordance with the provisions of
all applicable federal and state laws;
(xi) No Loan is more than two hundred sixty-nine (269) days past due as of the
Statistical Cutoff Date, with respect to the Initial Loans, or as of the related
Subsequent Cutoff Date, with respect to any Additional Loans or Substituted Loans,
and no default, breach, violation or event permitting acceleration under the terms
of any Loan has arisen; and neither Town Center Funding nor any predecessor holder
of any Loan has waived any of the foregoing other than as permitted by the Basic
Documents;
(xii) Except for Purchased Loans executed electronically, there is only one original
executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that
were executed electronically, either (i) the Servicer has possession of the
electronic records evidencing the Note or (ii) the Seller has agreements with the
previous holders or servicers of such Note under which the relevant holder or
servicer agrees to hold and maintain the electronic records evidencing the notes, in
each case as may be necessary to enforce the Note or as may be required by
applicable e-sign laws. The Interim Eligible Lender Trustee has in its possession a
copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that
constitute or evidence the Purchased Loans. The Notes that constitute or evidence
the Purchased Loans do not have any marks or notations indicating that they have
been pledged, assigned or otherwise conveyed to any Person other than the Interim
Eligible Lender Trustee. All financing statements filed or to be filed against Town
Center Funding or the Town Center Funding Eligible Lender Trustee for the benefit of
Town Center Funding in favor of the Interim Eligible Lender Trustee in connection
herewith describing the Loans contain a statement to the following effect: “A
purchase of or security interest in any collateral described in this financing
statement will violate the rights of the Interim Eligible Lender Trustee;”
(xiii) No Borrower of a Purchased Loan as of the Statistical Cutoff Date, in the
case of the Initial Loans, or as of the related Subsequent Cutoff Date, in the case
of any Additional Loan or Substituted Loan, is noted in the related Trust Student
Loan File as being currently involved in a bankruptcy proceeding; and
(xiv) Other than with respect to Substituted Loans, all Additional Loans will be
purchased using funds on deposit in the Supplemental Purchase Account.
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(D) The Interim Eligible Lender Trustee represents and warrants that as of the date of each
Purchase Agreement and each Xxxx of Sale:
(i) The Interim Eligible Lender Trustee is duly organized and validly existing in
good standing under the laws of its governing jurisdiction and has an office located
within the State of Florida. It has all requisite corporate power and authority to
execute, deliver and perform its obligations under these Master Terms, each Purchase
Agreement and each Xxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate action necessary to
authorize the execution and delivery by it of these Master Terms and each Purchase
Agreement, and these Master Terms and each Purchase Agreement will be executed and
delivered by one of its officers who is duly authorized to execute and deliver these
Master Terms and each Purchase Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Terms and each
Purchase Agreement, nor the consummation by it of the transactions contemplated
hereby or thereby nor compliance by it with any of the terms or provisions hereof or
thereof will contravene any federal or Delaware state law, governmental rule or
regulation governing the banking or trust powers of the Interim Eligible Lender
Trustee or any judgment or order binding on it, or constitute any default under its
charter documents or by-laws or any indenture, mortgage, contract, agreement or
instrument to which it is a party or by which any of its properties may be bound;
and
(iv) The Interim Eligible Lender Trustee is an “eligible lender” as such term is
defined in Section 435(d) of the Higher Education Act, for purposes of holding legal
title to the Trust Student Loans as contemplated by these Master Terms, each
Purchase Agreement and the other Basic Documents, it has a lender identification
number with respect to the Trust Student Loans from the Department and has in effect
a Guarantee Agreement with each of the Guarantors with respect to the Trust Student
Loans.
SECTION 6. REPURCHASE OF TRUST STUDENT LOANS; REIMBURSEMENT
(A) Each party to these Master Terms shall give notice to the other parties promptly, in
writing, upon the discovery of any breach of Town Center Funding’s representations and
warranties made pursuant to Sections 5(A) and (B) hereof or the Servicer’s representations
and warranties made pursuant to Section 5(C) hereof which has a materially adverse effect on
the interest of Funding in any Trust Student Loan. In the event of such a material breach
which is not curable by reinstatement of the applicable Guarantor’s guarantee of such Trust
Student Loan, Town Center Funding shall repurchase any affected Trust Student Loan not later
than 120 days following the earlier
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of the date of discovery of such material breach and the date of receipt of the Guarantor
reject transmittal form with respect to such Trust Student Loan. In the event of such a
material breach which is curable by reinstatement of the Guarantor’s guarantee of such Trust
Student Loan, unless the material breach shall have been cured within 360 days following the
earlier of the date of discovery of such material breach and the date of receipt of the
Guarantor reject transmittal form with respect to such Trust Student Loan, Town Center
Funding shall purchase such Trust Student Loan not later than the sixtieth day following the
end of such 360-day period. Town Center Funding shall also remit as provided in Section 2.6
of the Administration Agreement on the date of repurchase of any Trust Student Loan pursuant
to this Section 6(A) an amount equal to all non-guaranteed interest amounts and forfeited
Interest Subsidy Payments and Special Allowance Payments with respect to such Trust Student
Loan. In consideration of the purchase of any such Trust Student Loan pursuant to this
Section 6(A), Town Center Funding shall remit the Purchase Amount in the manner specified in
Section 2.6 of the Administration Agreement.
In addition, if any breach of Sections 5(A) and (B) hereof by Town Center Funding or
Section 5(C) hereof by the Servicer does not trigger such repurchase obligation but does
result in the refusal by a Guarantor to guarantee all or a portion of the accrued interest
(or any obligation of Funding to repay such interest to a Guarantor), or the loss (including
any obligation of Funding to repay the Department) of Interest Subsidy Payments and Special
Allowance Payments, with respect to any Trust Student Loan affected by such breach, then
Town Center Funding shall reimburse Funding by remitting an amount equal to the sum of all
such non-guaranteed interest amounts and such forfeited Interest Subsidy Payments or Special
Allowance Payments in the manner specified in Section 2.6 of the Administration Agreement
not later than (i) the last day of the next Collection Period ending not less than 60 days
from the date of the Guarantor’s refusal to guarantee all or a portion of accrued interest
or loss of Interest Subsidy Payments or Special Allowance Payments, or (ii) in the case
where Town Center Funding reasonably believes such losses are likely to be collected, not
later than the last day of the next Collection Period ending not less than 360 days from the
date of the Guarantor’s refusal to guarantee all or a portion of accrued interest or loss of
Interest Subsidy Payments or Special Allowance Payments. At the time such payment is made,
Town Center Funding shall not be required to reimburse Funding for interest that is then
capitalized, however, such amounts shall be reimbursed if the Borrower subsequently defaults
and such capitalized interest is not paid by the Guarantor.
Anything in this Section 6(A) to the contrary notwithstanding, if as of the last
Business Day of any month the aggregate outstanding principal amount of Trust Student Loans
with respect to which claims have been filed with and rejected by a Guarantor or with
respect to which the Servicer determines that claims cannot be filed pursuant to the Higher
Education Act as a result of a breach by Town Center Funding or the Servicer, exceeds 1% of
the Pool Balance, Town Center Funding (or the Servicer as provided in the Servicing
Agreement) shall purchase, within 30 days of a written request of the Indenture Trustee,
such affected Trust Student Loans in an aggregate principal amount such that after such
purchase the aggregate principal amount of such affected Trust Student Loans is less than 1%
of the Pool Balance. The Trust Student Loans to be
purchased by Town Center Funding and the Servicer pursuant to the preceding sentence
shall be based on the date of claim rejection (or the date of notice referred to in the
first sentence of this Section 6(A)) with Trust Student Loans with the earliest such date to
be repurchased first.
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(B) In lieu of repurchasing Trust Student Loans pursuant to Section 6(A), Town Center
Funding may, at its option, substitute Eligible Loans or arrange for the substitution of
Eligible Loans which are substantially similar on an aggregate basis as of the date of
substitution to the Trust Student Loans for which they are being substituted with respect to
the following characteristics:
1. | status (i.e., in-school, grace, deferment,
forbearance or repayment), |
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2. | program type (i.e., Unsubsidized Consolidation
Loan or Subsidized Consolidation Loan), |
||
3. | guarantee percentage, |
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4. | school type, |
||
5. | total return, |
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6. | principal balance, and |
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7. | remaining term to maturity. |
In addition, each substituted Eligible Loan will comply, as of the date of
substitution, with all of the representations and warranties made hereunder. In choosing
Eligible Loans to be substituted pursuant to this Section 6(B), Town Center Funding shall
make a reasonable determination that the Eligible Loans to be substituted will not have a
material adverse effect on the Noteholders. In connection with each substitution a Purchase
Agreement and related Xxxx of Sale regarding such Substituted Loans will be executed and
delivered by the applicable parties.
In the event that Town Center Funding elects to substitute Eligible Loans pursuant to
this Section 6(B), Town Center Funding will remit to the Administrator the amount of any
shortfall between the Purchase Amount of the substituted Eligible Loans and the Purchase
Amount of the Trust Student Loans for which they are being substituted. Town Center Funding
shall also remit to the Administrator an amount equal to all non-guaranteed interest amounts
and forfeited Interest Subsidy Payments and Special Allowance Payments with respect to the
Trust Student Loans in the manner provided in Section 2.6 of the Administration Agreement.
(C) The sole remedy of Funding, the Eligible Lender Trustee and the Noteholders with respect
to a breach by Town Center Funding pursuant to Sections 5(A) and (B) or the Servicer
pursuant to Section 5(C) hereof shall be to require Town Center Funding to purchase such
Trust Student Loans, to reimburse Funding as provided in Section 6(A) above or to substitute
Eligible Loans pursuant to Section 6(B) above. The Eligible
Lender Trustee shall have no duty to conduct any affirmative investigation as to the
occurrence of any condition requiring the purchase of any Trust Student Loan or the
reimbursement for any interest penalty pursuant to this Section 6.
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SECTION 7. | OBLIGATION TO REMIT SUBSEQUENT PAYMENTS
AND FORWARD COMMUNICATIONS |
(A) Any payment received by Town Center Funding with respect to amounts accrued after the
date of the related Xxxx of Sale for any Purchased Loan sold to Funding, which payment is
not reflected in the related Loan Transmittal Summary Form, shall be received by Town Center
Funding in trust for the account of Funding and Town Center Funding hereby disclaims any
title to or interest in any such amounts. Within two (2) Business Days following the date
of receipt, Town Center Funding shall remit to Funding an amount equal to any such payments
along with a listing on a form provided by Funding identifying the Purchased Loans with
respect to which such payments were made, the amount of each such payment and the date each
such payment was received.
(B) Any written communication received at any time by Town Center Funding with respect to
any Loan subject to these Master Terms or the related Purchase Agreement shall be
transmitted by Town Center Funding to the Servicer within two (2) Business Days of receipt.
Such communications shall include, but not be limited to, letters, notices of death or
disability, notices of bankruptcy, forms requesting deferment of repayment or loan
cancellation, and like documents.
SECTION 8. CONTINUING OBLIGATION OF THE SELLER
Town Center Funding shall provide all reasonable assistance necessary for Funding to resolve
account problems raised by any Borrower, the Guarantor or the Secretary provided such account
problems are attributable to or are alleged to be attributable to (a) an event occurring during the
period Town Center Funding or the Town Center Funding Eligible Lender Trustee owned the related
Purchased Loan, or (b) a payment made or alleged to have been made to Town Center Funding. Further,
Town Center Funding and the Town Center Funding Eligible Lender Trustee shall agree that either
Town Center Funding or the Town Center Funding Eligible Lender Trustee shall reasonably cooperate
in the preparation and filing of any financing statements at the request of Funding in order to
reflect Funding’s interest in the Loans.
SECTION 9. LIABILITY OF THE SELLER; INDEMNITIES
The Servicer shall be liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Servicer on behalf of Town Center Funding under these Master Terms
and each related Purchase Agreement.
(i) The Servicer, in consideration for continuing to receive the servicing fee
provided in Section 3.6 of the Servicing Agreement shall indemnify, defend and hold
harmless Funding and the Interim Eligible Lender Trustee in its individual capacity
and their officers, directors, employees and agents from and against any taxes that
may at any time be asserted against any such Person with respect to the transactions
contemplated herein and in the other Basic Documents (except any
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such income taxes arising out of fees paid to the Interim Eligible Lender Trustee),
including any sales, gross receipts, general corporation, tangible and intangible
personal property, privilege or license taxes (but, in the case of Funding, not
including any taxes asserted with respect to, and as of the date of, the sale of the
Purchased Loans to the Interim Eligible Lender Trustee on behalf of Funding, or
asserted with respect to ownership of the Trust Student Loans) and costs and
expenses in defending against the same.
(ii) The Servicer, in consideration for continuing to receive the servicing fee
shall indemnify, defend and hold harmless Funding and the Interim Eligible Lender
Trustee in its individual capacity, and the officers, directors, employees and
agents of Funding and the Interim Eligible Lender Trustee from and against any and
all costs, expenses, losses, claims, damages and liabilities arising out of, or
imposed upon such Person through, Town Center Funding’s or the Servicer’s, as
applicable, willful misfeasance, bad faith or gross negligence in the performance of
its duties under these Master Terms, or by reason of reckless disregard of its
obligations and duties under these Master Terms.
(iii) The Servicer, in consideration for continuing to receive the servicing fee
shall be liable as primary obligor for, and shall indemnify, defend and hold
harmless the Interim Eligible Lender Trustee in its individual capacity and its
officers, directors, employees and agents from and against, all costs, expenses,
losses, claims, damages, obligations and liabilities arising out of, incurred in
connection with or relating to these Master Terms, the other Basic Documents, the
acceptance or performance of the trusts and duties set forth herein and in the Sale
Agreement or the action or the inaction of the Interim Eligible Lender Trustee
hereunder (except in connection with the representations and warranties of the
Servicer herein, in respect of which the Servicer shall provide such
indemnification), except to the extent that such cost, expense, loss, claim, damage,
obligation or liability: (a) shall be due to the willful misfeasance, bad faith or
negligence (except for errors in judgment) of the Interim Eligible Lender Trustee,
(b) shall arise from any breach by the Interim Eligible Lender Trustee of its
covenants in its individual capacity made under any of the Basic Documents; or (c)
shall arise from the breach by the Interim Eligible Lender Trustee of any of its
representations or warranties made in its individual capacity set forth in these
Master Terms or any Purchase Agreement. In the event of any claim, action or
proceeding for which indemnity will be sought pursuant to this paragraph, the
Interim Eligible Lender Trustee’s choice of legal counsel shall be subject to the
approval of Town Center Funding and the Servicer, which approval shall not be
unreasonably withheld.
Indemnification under this Section 9 shall survive the resignation or removal of the Interim
Eligible Lender Trustee, the termination of these Master Terms, and the resignation or removal of
the Servicer (unless any successor servicer agrees in writing to assume the obligations of the
Servicer under this Section 9) and shall include reasonable fees and expenses of counsel and
expenses of litigation. If the Servicer shall have made any indemnity payments pursuant to this
Section and the Person to or on behalf of whom such payments are made
thereafter shall collect any of such amounts from others, such Person shall promptly repay
such amounts to the Servicer, without interest.
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SECTION 10. | MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS OF THE SELLER |
Any Person (a) into which Town Center Funding may be merged or consolidated, (b) which may
result from any merger or consolidation to which Town Center Funding shall be a party or (c) which
may succeed to the properties and assets of Town Center Funding substantially as a whole, shall be
the successor to Town Center Funding without the execution or filing of any document or any further
act by any of the parties to these Master Terms; provided, however, that Town
Center Funding hereby covenants that it will not consummate any of the foregoing transactions
except upon satisfaction of the following: (i) the surviving Person, if other than Town Center
Funding, executes an agreement of assumption to perform every obligation of Town Center Funding and
the Servicer under these Master Terms, each Purchase Agreement and each Xxxx of Sale; (ii)
immediately after giving effect to such transaction, no representation or warranty made pursuant to
Section 5 shall have been breached; (iii) the surviving Person, if other than Town Center Funding,
shall have delivered to the Interim Eligible Lender Trustee an Officers’ Certificate and an Opinion
of Counsel each stating that such consolidation, merger or succession and such agreement of
assumption comply with this Section and that all conditions precedent, if any, provided for in
these Master Terms relating to such transaction have been complied with, and that the Rating Agency
Condition shall have been satisfied with respect to such transaction; and (iv) if Town Center
Funding is not the surviving entity, Town Center Funding shall have delivered to the Interim
Eligible Lender Trustee an Opinion of Counsel either (A) stating that, in the opinion of such
counsel, all financing statements and continuation statements and amendments thereto have been
executed and filed that are necessary fully to preserve and protect the interest of Funding and the
Interim Eligible Lender Trustee, respectively, in the Purchased Loans and reciting the details of
such filings, or (B) stating that, in the opinion of such counsel, no such action shall be
necessary to preserve and protect such interests.
Purchase Agreement — Master (TOWN CENTER FUNDING)
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SECTION 11. LIMITATION ON LIABILITY OF TOWN CENTER FUNDING AND OTHERS
Town Center Funding and any director or officer or employee or agent thereof may rely in good
faith on the advice of counsel or on any document of any kind, prima facie properly executed and
submitted by any Person respecting any matters arising hereunder (provided that such reliance shall
not limit in any way Town Center Funding’s obligations under Section 6). Town Center Funding’s
shall not be under any obligation to appear in, prosecute or defend any legal action that shall not
be incidental to its obligations under these Master Terms or any Purchase Agreement, and that in
its opinion may involve it in any expense or liability. Except as provided herein, the repurchase
(or substitution) and reimbursement obligations of Town Center Funding will constitute the sole
remedy available to Funding for uncured breaches; provided, however, that the information with
respect to the Purchased Loans listed on the related Xxxx of Sale may be adjusted in the ordinary
course of business subsequent to the date of the related Xxxx of Sale and to the extent that the
aggregate Principal Balance of the Purchased Loans listed on the related Xxxx of Sale is less than
the aggregate Principal Balance stated on the related Xxxx of Sale, Town Center Funding shall remit
such amount to the Interim Eligible Lender Trustee, for the benefit of and on behalf of Funding.
Such reconciliation payment shall be made from time to time but no less frequently than
semi-annually.
SECTION 12. LIMITATION OF LIABILITY OF INTERIM ELIGIBLE LENDER
Notwithstanding anything contained herein to the contrary, these Master Terms and the Initial
Purchase Agreement has been, and any Additional Purchase Agreement will be, signed by The Bank of
New York Mellon Trust Company, National Association, not in its individual capacity but solely in
its capacity as the Town Center Funding Eligible Lender Trustee for Town Center Funding and the
Interim Eligible Lender Trustee for Funding and in no event shall The Bank of New York Mellon Trust
Company, National Association, in its individual capacity have any liability for the
representations, warranties, covenants, agreements or other obligations of the Town Center Funding
Eligible Lender Trustee, the Interim Eligible Lender Trustee, Town Center Funding or Funding,
under these Master Terms or any Purchase Agreements or in any of the certificates, notices or
agreements delivered pursuant hereto, as to all of which recourse shall be had solely to the assets
of Town Center Funding or Funding.
SECTION 13. EXPENSES
Except as otherwise provided herein, each party to these Master Terms or any Purchase
Agreement (other than the Town Center Funding Eligible Lender Trustee and the Interim Eligible
Lender Trustee) shall pay its own expense incurred in connection with the preparation, execution
and delivery of these Master Terms and any Purchase Agreement and the transactions contemplated
herein or therein.
Purchase Agreement — Master (TOWN CENTER FUNDING)
24
SECTION 14. SURVIVAL OF COVENANTS/SUPERSESSION
All covenants, agreements, representations and warranties made herein and in or pursuant to
the Purchase Agreement and each Additional Purchase Agreement executed pursuant to these Master
Terms shall survive the consummation of the acquisition of the Purchased Loans provided for in the
related Purchase Agreement. All covenants, agreements, representations and warranties made or
furnished pursuant hereto by or on behalf of Town Center Funding shall bind and inure to the
benefit of any successors or assigns of Funding and the Interim Eligible Lender Trustee on behalf
of Funding and shall survive with respect to each Purchased Loan. All covenants, agreements,
representations and warranties made or furnished pursuant hereto by the Servicer shall bind and
inure to the benefit of any successors or assigns of Funding and the Interim Eligible Lender
Trustee on behalf of Funding and shall survive with respect to each Purchased Loan. Each Purchase
Agreement supersedes all previous agreements and understandings between Funding and Town Center
Funding with respect to the subject matter thereof. These Master Terms and any Purchase Agreement
may be changed, modified or discharged, and any rights or obligations hereunder may be waived, only
by a written instrument signed by a duly authorized officer of the party against whom enforcement
of any such waiver, change, modification or discharge is sought. The waiver by Funding of any
covenant, agreement, representation or warranty required to be made or furnished by Town Center
Funding or the Servicer or the waiver by Funding of any provision herein contained or contained in
any Purchase Agreement shall not be deemed to be a waiver of any breach of any other covenant,
agreement, representation, warranty or provision herein contained, nor shall any waiver or any
custom or practice which may evolve between the parties in the administration of the terms hereof
or of any Purchase Agreement, be construed to lessen the right of Funding to insist upon the
performance by Town Center Funding in strict accordance with said terms.
SECTION 15. COMMUNICATION AND NOTICE REQUIREMENTS
All communications, notices and approvals provided for hereunder shall be in writing and
mailed or delivered to Town Center Funding or Funding, as the case may be, addressed as set forth
in the Purchase Agreement or at such other address as either party may hereafter designate by
notice to the other party. Notice given in any such communication, mailed to Town Center Funding
or Funding by appropriately addressed registered mail, shall be deemed to have been given on the
day following the date of such mailing.
SECTION 16. FORM OF INSTRUMENTS
All instruments and documents delivered in connection with these Master Terms and any Purchase
Agreement, and all proceedings to be taken in connection with these Master Terms and any Purchase
Agreement and the transactions contemplated herein and therein, shall be in a form as set forth in
the attachments hereto, and Funding shall have received copies of such documents as it or its
counsel shall reasonably request in connection therewith. Any instrument or document which is
substantially in the same form as an attachment hereto or a recital herein will be deemed to be
satisfactory as to form.
Purchase Agreement — Master (TOWN CENTER FUNDING)
25
SECTION 17. AMENDMENT
These Master Terms, any Purchase Agreement, any Xxxx of Sale and any document or instrument
delivered in accordance herewith or therewith may be amended by the parties thereto without the
consent of the related Noteholders for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions in the related document or of modifying in any manner
the rights of such Noteholders; provided that such action will not, in the opinion of counsel
satisfactory to the Indenture Trustee, materially and adversely affect the interest of any such
Noteholder.
These Master Terms, any Purchase Agreement and any document or instrument delivered in
accordance herewith or therewith may also be amended from time to time by Town Center Funding, the
Town Center Funding Eligible Lender Trustee, the Interim Eligible Lender Trustee and Funding, with
the consent of the Noteholders of Notes evidencing a majority of the Outstanding Amount of the
Notes, for the purpose of adding any provisions to or changing in any manner or eliminating any of
the provisions in the related document or of modifying in any manner the rights of the Noteholders;
provided, however, that no such amendment shall (a) increase or reduce in any manner the amount of,
or accelerate or delay the time of, collections of payments with respect to Purchased Loans or
distributions that shall be required to be made for the benefit of the Noteholders or (b) reduce
the aforesaid percentage of the Outstanding Amount of the Notes, the Noteholders of which are
required to consent to any such amendment, without the consent of all outstanding Noteholders.
Promptly after the execution of any such amendment or consent (or, in the case of the Rating
Agencies then rating the Notes, five Business Days prior thereto), the Interim Eligible Lender
Trustee shall furnish written notification (such notice to be prepared by the Administrator) of the
substance of such amendment or consent to the Indenture Trustee and each of the Rating Agencies
then rating the Notes.
It shall not be necessary for the consent of Noteholders pursuant to this Section 17 to
approve the particular form of any proposed amendment or consent, but it shall be sufficient if
such consent shall approve the substance thereof.
Prior to the execution of any amendment to these Master Terms, the Interim Eligible Lender
Trustee shall be entitled to receive and rely upon an Opinion of Counsel stating that execution of
such amendment is authorized or permitted by these Master Terms and the Opinion of Counsel referred
to in Section 7.1(i)(i) of the Administration Agreement. The Interim Eligible Lender Trustee may,
but shall not be obligated to, enter into any such amendment which affects the Interim Eligible
Lender Trustee’s own rights, duties or immunities under these Master Terms or otherwise.
Purchase Agreement — Master (TOWN CENTER FUNDING)
26
SECTION 18. NONPETITION COVENANTS
Notwithstanding any prior termination of these Master Terms, Town Center Funding, the
Servicer, the Town Center Funding Eligible Lender Trustee and the Interim Eligible Lender Trustee
shall not acquiesce, petition or otherwise invoke or cause Funding to invoke the process of any
court or government authority for the purpose of commencing or sustaining a case against
Funding under any Federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignees, trustee, custodian, sequestrator or other similar official of
Funding or any substantial part of its property, or ordering the winding up or liquidation of the
affairs of Funding; provided, however, nothing herein shall be deemed to prohibit the Town Center
Funding Eligible Lender Trustee or the Interim Eligible Lender Trustee from filing a claim in, or
otherwise participating in, any such action or proceeding.
SECTION 19. GOVERNING LAW
These Master Terms and any Purchase Agreement shall be governed by and construed in accordance
with the laws of the State of New York without reference to its conflict of law provisions, and the
obligations, rights and remedies of the parties, hereunder shall be determined in accordance with
such laws.
Purchase Agreement — Master (TOWN CENTER FUNDING)
27
IN WITNESS WHEREOF, the parties hereto have caused these Master Terms to be duly executed by
their respective officers hereunto duly authorized, as of the day and year first above written.
IN WITNESS WHEREOF, the parties hereto have caused these Master Terms to be duly executed by
their respective officers hereunto duly authorized, as of the day and year first above written.
TOWN CENTER FUNDING LLC | SLM FUNDING LLC | |||||||||
(Seller) | (Purchaser) | |||||||||
By:
|
/s/ XXXX X. XXXX | By: | /s/ XXXX X. XXXX | |||||||
Title: Vice President | Title: Vice President | |||||||||
THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION, |
THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION, |
|||||||||
not in its individual capacity but solely as Town Center Funding Eligible Lender Trustee |
not in its individual capacity but solely as Interim Eligible Lender Trustee |
|||||||||
By:
|
/s/ XXXXXXX X. XXXXXX | By: | /s/ XXXXXXX X. XXXXXX | |||||||
Title: Vice President | Title Vice President | |||||||||
XXXXXX XXX, INC. | ||||||||||
(Servicer)
|
||||||||||
By:
|
/s/ XXXXXX X. XXXX | |||||||||
Name: Xxxxxx X. Xxxx | ||||||||||
Title: Vice President |
Purchase Agreement — Master (TOWN CENTER FUNDING)
28
Attachment A
INITIAL PURCHASE AGREEMENT
Dated as of April 21, 2009
Dated as of April 21, 2009
PURCHASE AGREEMENT NUMBER 1
Pursuant to the Master Terms (as defined below), each of The Bank of New York Mellon Trust
Company, National Association, not in its individual capacity but solely as Eligible Lender Trustee
(the “Town Center Funding Eligible Lender Trustee”) for the benefit of Town Center Funding LLC
(“Town Center Funding”) under the Town Center Funding Interim Trust Agreement, dated as of April
21, 2009, between Town Center Funding and the Town Center Funding Eligible Lender Trustee, and Town
Center Funding hereby offer for sale to The Bank of New York Mellon Trust Company, National
Association, as Interim Eligible Lender Trustee for the benefit of SLM Funding LLC (“Funding”)
under the Interim Trust Agreement dated as of April 21, 2009 between Funding and the Interim
Eligible Lender Trustee, the entire right, title and interest of Town Center Funding in the Loans
described in the related Xxxx of Sale and related Loan Transmittal Summary Form incorporated herein
and, to the extent indicated below, the Interim Eligible Lender Trustee for the benefit of Funding
accepts Town Center Funding’s offer. In order to qualify as Eligible Loans, no payment of
principal or interest shall be more than two hundred and sixty-nine (269) days past due as of the
Statistical Cutoff Date, which shall be April 7, 2009.
TERMS, CONDITIONS AND COVENANTS
In consideration of the Purchase Price, each of Town Center Funding and the Town Center
Funding Eligible Lender Trustee hereby sells to the Interim Eligible Lender Trustee for the benefit
of Funding the entire right, title and interest of Town Center Funding and the Town Center Funding
Eligible Lender Trustee in the Loans accepted for purchase, subject to all the terms and conditions
of the Purchase Agreement Master Securitization Terms Number 1000 (the “Master Terms”) and any
amendments thereto, incorporated herein by reference, among Town Center Funding, the Town Center
Funding Eligible Lender Trustee, Funding, the Servicer and the Interim Eligible Lender Trustee.
The Purchase Price for the Initial Loans shall be $194,054,020.61.
This document shall constitute the Initial Purchase Agreement referred to in the Master Terms
and, except as modified herein, each term used herein shall have the same meaning as in the Master
Terms. All references in the Master Terms to Loans, Eligible Loans, Initial Loans or Purchased
Loans, as applicable, shall be deemed to refer to the Loans governed by this Initial Purchase
Agreement. Town Center Funding hereby makes all the representations and warranties set forth in
Sections 5(A) and (B) of the Master Terms regarding the Initial Loans described in the Initial Xxxx
of Sale and the related Loan Transmittal Summary Form, as of the Closing Date.
Purchase Agreement — Master (TOWN CENTER FUNDING)
1
Each of Town Center Funding and the Town Center Funding Eligible Lender Trustee for the
benefit of Town Center Funding authorizes the Interim Eligible Lender Trustee for the benefit of
Funding to use a copy of the Initial Xxxx of Sale, including the Loan Transmittal Summary Form
attached to the Initial Xxxx of Sale (in lieu of OE Form 1074), as official
notification to the applicable Guarantors of assignment to the Interim Eligible Lender Trustee
on behalf of Funding of the Initial Loans purchased pursuant hereto on the Closing Date.
The parties hereto intend that the transfer of Purchased Loans described in the Initial Xxxx
of Sale and related Loan Transmittal Summary Form be, and be construed as, a valid sale of such
Purchased Loans. However, in the event that notwithstanding the intention of the parties, such
transfer is deemed to be a transfer for security, then each of Town Center Funding and the Town
Center Funding Eligible Lender Trustee hereby grants to the Interim Eligible Lender Trustee for the
benefit of Funding a first priority security interest in and to all Purchased Loans described in
the Initial Xxxx of Sale and related Loan Transmittal Summary Form to secure a loan in an amount
equal to the Purchase Price of such Purchased Loans.
Purchase Agreement — Master (TOWN CENTER FUNDING)
2
IN WITNESS WHEREOF, the parties hereto have caused this Purchase Agreement Number 1 to be duly
executed by their respective officers hereunto duly authorized, as of the day and year first above
written.
TOWN CENTER FUNDING LLC (Seller) |
||||
By: | ||||
Name: | ||||
Title: | ||||
SLM FUNDING LLC (Purchaser) |
||||
By: | ||||
Name: | ||||
Title: | ||||
THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION, not in its individual capacity but solely as Interim Eligible Lender Trustee |
||||
By: | ||||
Name: | ||||
Title: | ||||
THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION, not in its individual capacity but solely as Town Center Funding Eligible Lender Trustee |
||||
By: | ||||
Name: | ||||
Title: | ||||
Purchase Agreement — Master (TOWN CENTER FUNDING)
3
INITIAL PURCHASE AGREEMENT NUMBER 1
BLANKET ENDORSEMENT DATED APRIL 21, 2009
BLANKET ENDORSEMENT DATED APRIL 21, 2009
The Bank of New York Mellon Trust Company, National Association, as Town Center Funding
Eligible Lender Trustee for the benefit of Town Center Funding LLC (“Town Center Funding”), by
execution of this instrument, hereby endorses the attached promissory note which is one (1) of the
promissory notes (the “Notes”) described in the Initial Xxxx of Sale dated the date hereof executed
by Town Center Funding in favor of The Bank of New York Mellon Trust Company, National Association,
as the Interim Eligible Lender Trustee for the benefit of SLM Funding LLC (“Funding”). This
endorsement is in blank, unrestricted form and without recourse except as provided in Section 6 of
the Master Terms referred to in the Initial Purchase Agreement among Town Center Funding, the Town
Center Funding Eligible Lender Trustee, Funding, the Servicer and the Interim Eligible Lender
Trustee which covers the promissory note.
This endorsement may be effected by attaching either this instrument or a facsimile hereof to
each or any of the Notes.
Notwithstanding the foregoing, the Town Center Funding Eligible Lender Trustee for the benefit
of Town Center Funding agrees to individually endorse each Note in the form provided by Funding as
Funding may from time to time require or if such individual endorsement is required by the
Guarantor of the Note.
THE SALE AND PURCHASE OF THE PURCHASED LOANS SHALL BE SUBJECT TO THE TERMS, CONDITIONS AND
COVENANTS, INCLUDING THIS BLANKET ENDORSEMENT, AS SET FORTH IN THE INITIAL PURCHASE AGREEMENT. BY
EXECUTION HEREOF, TOWN CENTER FUNDING ACKNOWLEDGES THAT TOWN CENTER FUNDING HAS READ, UNDERSTANDS
AND AGREES TO BE BOUND BY ALL TERMS, CONDITIONS AND COVENANTS OF THE INITIAL PURCHASE AGREEMENT.
THE SALE AND PURCHASE SHALL BE CONSUMMATED UPON FUNDING’S PAYMENT TO TOWN CENTER FUNDING OF THE
INITIAL PAYMENT (AS DEFINED IN THE MASTER TERMS) AND, UNLESS OTHERWISE AGREED BY TOWN CENTER
FUNDING AND FUNDING, SHALL BE EFFECTIVE AS OF THE DATE OF THE INITIAL RELATED XXXX OF SALE.
Purchase Agreement — Master (TOWN CENTER FUNDING)
1
IN WITNESS WHEREOF, the parties hereto have caused this Blanket Endorsement to be duly
executed by their respective officers hereunto duly authorized, as of the day and year first above
written.
SELLER | PURCHASER | |||||||
The Bank of New York Mellon Trust Company, National Association, not in its individual capacity but solely as Town Center Funding Eligible Lender Trustee for the benefit of Town Center Funding LLC | The Bank of New York Mellon Trust Company, National Association, not in its individual capacity but solely as Interim Eligible Lender Trustee for the benefit of SLM Funding LLC | |||||||
Lender Code: 833 253 | ||||||||
By:
|
By: | |||||||
(Signature of Authorized Signatory for Seller) | (Signature of Authorized Signatory for Purchaser) | |||||||
Name: Title: |
Name: Title: |
|||||||
Date of Purchase: Xxxxx 00, 0000 |
Xxxxxxxx Agreement — Master (TOWN CENTER FUNDING)
2
Attachment B
INITIAL XXXX OF SALE DATED APRIL 21, 2009
The undersigned (“Town Center Funding”) and The Bank of New York Mellon Trust Company,
National Association, as Town Center Funding Eligible Lender Trustee for the benefit of Town Center
Funding under the Town Center Funding Interim Eligible Lender Trust Agreement, dated as of April
21, 2009 (the “Town Center Funding Eligible Lender Trustee”), for value received and pursuant to
the terms and conditions of Purchase Agreement Number 1 (the “Purchase Agreement”) among SLM
Funding LLC (“Funding”), the Town Center Funding Eligible Lender Trustee and The Bank of New York
Mellon Trust Company, National Association, as Interim Eligible Lender Trustee for the benefit of
Funding under the Interim Trust Agreement dated as of April 21, 2009 between Funding and the
Interim Eligible Lender Trustee, do hereby sell, assign and convey to the Interim Eligible Lender
Trustee for the benefit of Funding and its assignees all right, title and interest of Town Center
Funding, including the insurance interest of Town Center Funding and the Town Center Funding
Eligible Lender Trustee under the Federal Family Education Loan Program (20 U.S.C. 1071 et
seq.), that the Interim Eligible Lender Trustee for the benefit of Funding has accepted for
purchase. The portfolio of Loans accepted for purchase by the Interim Eligible Lender Trustee for
the benefit of Funding and the effective date of sale and purchase are described below and the
individual accounts are listed on the Schedule A attached hereto.
Town Center Funding hereby makes the representations and warranties set forth in Section 5 of
the Purchase Agreement Master Securitization Terms Number 1000 incorporated by reference in the
Initial Purchase Agreement. Each of Town Center Funding and the Town Center Funding Eligible
Lender Trustee authorizes the Interim Eligible Lender Trustee on behalf of Funding to use a copy of
this document (in lieu of OE Form 1074) as official notification to the Guarantor(s) of assignment
to the Interim Eligible Lender Trustee for the benefit of Funding of the related Initial Loans on
the Closing Date.
LISTING OF LOANS ON FOLLOWING PAGE
Purchase Agreement Town Center Funding
1
CERTAIN OTHER LOAN CRITERIA
• | Not in claims status, not previously rejected |
|
• | Not in litigation |
|
• | Last disbursement was on or before the Statistical Cutoff Date |
|
• | Loan is not swap-pending |
* | Based upon Town Center Funding’s estimated calculations, which may be adjusted upward or downward
based upon Funding’s reconciliation. |
|
** | Includes interest to be capitalized. |
Purchase Agreement Town Center Funding
2
Guarantors:
American Student Assistance
California Student Aid Commission
College Assist
Connecticut Student Loan Foundation
Educational Credit Management Corporation
Finance Authority of Maine
Florida Bureau of Student Financial Assistance
Great Lakes Higher Education Corporation
Illinois Student Assistance Commission
Iowa College Student Aid Commission
Kentucky Higher Education Assistance Authority
Louisiana Office of Student Financial Assistance
Michigan Guaranty Agency
Missouri Student Loan Program
Montana Guaranteed Student Loan Program
Nebraska Student Loan Program
New Jersey Higher Education Student Assistance Authority
New York State Higher Education Services Corporation
Northwest Education Loan Association
Oklahoma Guaranteed Student Loan Program
Pennsylvania Higher Education Assistance Agency
Rhode Island Higher Education Assistance Authority
Student Loan Guarantee Foundation of Arkansas
Texas Guaranteed Student Loan Corporation
United Student Aid Funds, Inc.
California Student Aid Commission
College Assist
Connecticut Student Loan Foundation
Educational Credit Management Corporation
Finance Authority of Maine
Florida Bureau of Student Financial Assistance
Great Lakes Higher Education Corporation
Illinois Student Assistance Commission
Iowa College Student Aid Commission
Kentucky Higher Education Assistance Authority
Louisiana Office of Student Financial Assistance
Michigan Guaranty Agency
Missouri Student Loan Program
Montana Guaranteed Student Loan Program
Nebraska Student Loan Program
New Jersey Higher Education Student Assistance Authority
New York State Higher Education Services Corporation
Northwest Education Loan Association
Oklahoma Guaranteed Student Loan Program
Pennsylvania Higher Education Assistance Agency
Rhode Island Higher Education Assistance Authority
Student Loan Guarantee Foundation of Arkansas
Texas Guaranteed Student Loan Corporation
United Student Aid Funds, Inc.
Purchase Agreement Town Center Funding
3
IN WITNESS WHEREOF, the parties hereto have caused this Initial Xxxx of Sale to be duly executed by
their respective officers hereunto duly authorized, as of the day and year first above written.
SELLER | PURCHASER | |||||||
The Bank of New York Mellon Trust Company, National Association, not in its individual capacity but solely as Town Center Funding Eligible Lender Trustee for the benefit of Town Center Funding LLC | The Bank of New York Mellon Trust Company, National Association, not in its individual capacity but solely as Interim Eligible Lender Trustee for the benefit of SLM Funding LLC | |||||||
Lender Code: 833 253 | ||||||||
By:
|
By: | |||||||
(Signature of Authorized Signatory for Seller) | (Signature of Authorized Signatory for Purchaser) | |||||||
Name: Title: |
Name: Title: |
|||||||
Date of Purchase: April 21, 2009 |
Purchase Agreement Town Center Funding
4
Attachment C
ADDITIONAL PURCHASE AGREEMENT NUMBER [ ]
Dated as of [ ], 2009
Dated as of [ ], 2009
ADDITIONAL PURCHASE AGREEMENT NUMBER [ ]
Each of The Bank of New York Mellon Trust Company, National Association, as Town Center
Funding Eligible Lender Trustee (the “Town Center Funding Eligible Lender Trustee”) for the benefit
of Town Center Funding LLC (“Town Center Funding”), under the Town Center Funding Interim Trust
Agreement, dated as of April 21, 2009, between Town Center Funding and the Town Center Funding
Eligible Lender Trustee, and Town Center Funding hereby offer for sale to The Bank of New York
Mellon Trust Company, National Association, as Interim Eligible Lender Trustee for the benefit of
SLM Funding, LLC (“Funding”), under the Interim Trust Agreement dated as of April 21, 2009 between
the Purchaser and the Interim Eligible Lender Trustee, the entire right, title and interest of Town
Center Funding in the Loans described in the related Additional Xxxx of Sale and the related Loan
Transmittal Summary Form incorporated herein, and, to the extent indicated below, the Interim
Eligible Lender Trustee for the benefit of Funding accepts Town Center Funding’s offer.
TERMS, CONDITIONS AND COVENANTS
In consideration of the Additional Loans Purchase Price, each of Town Center Funding and the
Town Center Funding Eligible Lender Trustee for the benefit of Town Center Funding, hereby sells to
the Interim Eligible Lender Trustee for the benefit of Funding the entire right, title and interest
of Town Center Funding and the Town Center Funding Eligible Lender Trustee in the Loans accepted
for purchase, subject to all the terms and conditions of the Purchase Agreement Master
Securitization Terms Number 1000, dated April 21, 2009 (the “Master Terms”), and any amendments
thereto permitted by its terms, incorporated herein by reference, among Town Center Funding, the
Town Center Funding Eligible Lender Trustee, Funding, the Servicer and the Interim Eligible Lender
Trustee. The applicable Additional Loans Purchase Price shall be $[
_____
].
This document shall constitute an Additional Purchase Agreement as referred to in the Master
Terms and, except as modified herein, each term used herein shall have the same meaning as in the
Master Terms. All references in the Master Terms to Loans or Additional Loans or to Purchased
Loans, as applicable, shall be deemed to refer to the Additional Loans governed by this Additional
Purchase Agreement. Town Center Funding hereby makes the representations and warranties set forth
in Sections 5(A) and (B) of the Master Terms regarding the Additional Loans described in the
related Additional Xxxx of Sale and the related Loan Transmittal Summary Form, as of the related
Purchase Date.
Each of Town Center Funding and the Town Center Funding Eligible Lender Trustee for the
benefit of Town Center Funding, authorizes the Interim Eligible Lender Trustee for the benefit of
the Purchaser to use a copy of the related Additional Xxxx of Sale, including the Loan Transmittal
Summary Form attached to such Additional Xxxx of Sale (in lieu of OE Form 1074),
as official notification to the applicable Guarantor of assignment to the Interim Eligible
Lender Trustee on behalf of the Purchaser of the Loans purchased pursuant hereto on the Purchase
Date.
Purchase Agreement Town Center Funding
5
The parties hereto intend that the transfer of Additional Loans described in the related
Additional Xxxx of Sale and related Loan Transmittal Summary Form be, and be construed as, a valid
sale of such Purchased Loans from Town Center Funding and the Town Center Funding Eligible Lender
Trustee for the benefit of Town Center Funding to the Interim Eligible Lender Trustee for the
benefit of the Purchaser. However, in the event that notwithstanding the intention of the parties,
such transfer is deemed to be a transfer for security, then each of Town Center Funding and the
Town Center Funding Eligible Lender Trustee for the benefit of Town Center Funding hereby grants to
the Interim Eligible Lender Trustee for the benefit of the Purchaser a first priority security
interest in and to all Additional Loans described in the related Additional Xxxx of Sale and
related Loan Transmittal Summary Form to secure a loan in an amount equal to the Purchase Price of
such Purchased Loans.
IN WITNESS WHEREOF, the parties hereto have caused this Additional Purchase Agreement Number [
] to be duly executed by their respective officers hereunto duly authorized, as of the day and
year first above written.
TOWN CENTER FUNDING LLC (Seller) |
||||
By: | ||||
Name: | ||||
Title: | ||||
SLM FUNDING LLC (Purchaser) |
||||
By: | ||||
Name: | ||||
Title: |
Purchase Agreement Town Center Funding
0
XXX XXXX XX XXX XXXX XXXXXX TRUST COMPANY, NATIONAL ASSOCIATION, not in its individual capacity but solely as Town Center Funding Eligible Lender Trustee |
||||
By: | ||||
Name: | ||||
Title: | ||||
THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION, not in its individual capacity but solely as Interim Eligible Lender Trustee |
||||
By: | ||||
Name: | ||||
Title: | ||||
Purchase Agreement Town Center Funding
7
ADDITIONAL PURCHASE AGREEMENT NUMBER [ ]
[ ] BLANKET ENDORSEMENT DATED [ ], 2009
[ ] BLANKET ENDORSEMENT DATED [ ], 2009
The Bank of New York Mellon Trust Company, National Association, as Town Center Funding Eligible
Lender Trustee for the benefit of Town Center Funding LLC (“Town Center Funding”), by execution of
this instrument, hereby endorses the attached promissory note which is one (1) of the promissory
notes (the “Notes”) described in the Additional Xxxx of Sale executed by Town Center Funding in
favor of The Bank of New York Mellon Trust Company, National Association, as the Interim Eligible
Lender Trustee for the benefit of SLM Funding LLC (“Funding”). This endorsement is in blank,
unrestricted form and without recourse except as provided in Section 6 of the Master Terms referred
to in the Additional Purchase Agreement among Town Center Funding, the Town Center Funding Eligible
Lender Trustee, Funding and the Interim Eligible Lender Trustee which covers the promissory note
(the “Additional Purchase Agreement”).
This endorsement may be effected by attaching either this instrument or a facsimile hereof to
each or any of the Notes.
Notwithstanding the foregoing, the Town Center Funding Eligible Lender Trustee for the benefit
of Town Center Funding agrees to individually endorse each Note in the form provided by Funding as
Funding may from time to time require or if such individual endorsement is required by the
Guarantor of the Note.
THE SALE AND PURCHASE OF THE ADDITIONAL LOANS SHALL BE SUBJECT TO THE TERMS, CONDITIONS AND
COVENANTS, INCLUDING THIS BLANKET ENDORSEMENT, AS SET FORTH IN THE RELATED ADDITIONAL PURCHASE
AGREEMENT. BY EXECUTION HEREOF, TOWN CENTER FUNDING ACKNOWLEDGES THAT TOWN CENTER FUNDING HAS
READ, UNDERSTANDS AND AGREES TO BE BOUND BY ALL TERMS, CONDITIONS AND COVENANTS OF THE ADDITIONAL
PURCHASE AGREEMENT. THE SALE AND PURCHASE SHALL BE CONSUMMATED UPON FUNDING’S PAYMENT TO TOWN
CENTER FUNDING OF THE ADDITIONAL LOANS PURCHASE PRICE AND, UNLESS OTHERWISE AGREED BY TOWN CENTER
FUNDING AND FUNDING, SHALL BE EFFECTIVE AS OF THE DATE OF THE ADDITIONAL XXXX OF SALE.
Purchase Agreement Town Center Funding
1
IN WITNESS WHEREOF, the parties hereto have caused this Blanket Endorsement to be duly
executed by their respective officers hereunto duly authorized, as of the day and year first above
written.
SELLER | PURCHASER | |||||||
The Bank of New York Mellon Trust Company, National Association, not in its individual capacity but solely as Town Center Funding Eligible Lender Trustee for the benefit of Town Center Funding LLC | The Bank of New York Mellon Trust Company, National Association, not in its individual capacity but solely as Interim Eligible Lender Trustee for the benefit of SLM Funding LLC | |||||||
Lender Code: 833 253 | ||||||||
By:
|
By: | |||||||
(Signature of Authorized Signatory for Seller) | (Signature of Authorized Signatory for Purchaser) | |||||||
Name: Title: |
Name: Title: |
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Date of Purchase: April 21, 2009 |
Purchase Agreement Town Center Funding
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Attachment D
ADDITIONAL XXXX OF SALE
DATED [ ], 2009
DATED [ ], 2009
The undersigned (“Town Center Funding”) and The Bank of New York Mellon Trust Company,
National Association, as Town Center Funding Eligible Lender Trustee for the benefit of Town Center
Funding under the Town Center Funding Interim Eligible Lender Trust Agreement, dated as of April
21, 2009 (the “Town Center Funding Eligible Lender Trustee”), for value received and pursuant to
the terms and conditions of Additional Purchase Agreement Number [ ] (the “Purchase
Agreement”) among SLM Funding LLC (“Funding”), and The Bank of New York Mellon Trust Company,
National Association, as Interim Eligible Lender Trustee for the benefit of Funding under the
Interim Trust Agreement dated as of April 21, 2009 between Funding and the Interim Eligible Lender
Trustee, do hereby sell, assign and convey to the Interim Eligible Lender Trustee for the benefit
of Funding and its assignees all right, title and interest of Town Center Funding, including the
insurance interest of Town Center Funding and the Town Center Funding Eligible Lender Trustee under
the Federal Family Education Loan Program (20 U.S.C. 1071 et seq.), that the Interim
Eligible Lender Trustee for the benefit of Funding has accepted for purchase. The portfolio of
Additional Loans accepted for purchase by the Interim Eligible Lender Trustee for the benefit of
Funding and the effective date of sale and purchase are described below and the individual accounts
are listed on the Schedule A attached hereto.
Town Center Funding hereby makes the representations and warranties set forth in Section 5 of
the Purchase Agreement Master Securitization Terms Number 1000 incorporated by reference in the
Additional Purchase Agreement related hereto. Each of Town Center Funding and the Town Center
Funding Eligible Lender Trustee, authorizes the Interim Eligible Lender Trustee on behalf of
Funding to use a copy of this document (in lieu of OE Form 1074) as official notification to the
applicable Guarantor(s) of assignment to the Interim Eligible Lender Trustee for the benefit of
Funding of the portfolio of Additional Loans accepted for purchase, on the Purchase Date.
LISTING OF LOANS ON FOLLOWING PAGE
Purchase Agreement Town Center Funding
1
CERTAIN OTHER LOAN CRITERIA
• | Not in claims status, not previously rejected |
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• | Not in litigation |
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• | Last disbursement was on or before the related Subsequent Cutoff Date |
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• | Loan is not swap-pending |
* | Based upon Town Center Funding’s estimated calculations, which may be adjusted upward or downward
based upon Funding’s reconciliation. ** Includes interest to be capitalized. |
Purchase Agreement Town Center Funding
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Guarantor(s):
[TO BE PROVIDED] [SLM TO PROVIDE]
Purchase Agreement Town Center Funding
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IN WITNESS WHEREOF, the parties hereto have caused this Additional Xxxx of Sale to be duly
executed by their respective officers hereunto duly authorized, as of the day and year first above
written.
SELLER | PURCHASER | |||||||
The Bank of New York Mellon Trust Company, National Association, not in its individual capacity but solely as Town Center Funding Eligible Lender Trustee for the benefit of Town Center Funding LLC | The Bank of New York Mellon Trust Company, National Association, not in its individual capacity but solely as Interim Eligible Lender Trustee for the benefit of SLM Funding LLC | |||||||
Lender Code: 833 253 | ||||||||
By:
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By: | |||||||
(Signature of Authorized Signatory for Seller) | (Signature of Authorized Signatory for Purchaser) | |||||||
Name: Title: |
Name: Title: |
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Date of Purchase: April 21, 2009 |
Purchase Agreement Town Center Funding
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Annex I
LOAN TRANSMITTAL SUMMARY FORM
Additional Loans | Principal Balance as of the related Subsequent Cutoff Date |
Purchase Price | ||
Purchase Agreement Town Center Funding
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