PURCHASE AGREEMENT
Exhibit 99.2
This Purchase Agreement (“Purchase Agreement”) dated as of [______], 20[__] among Wachovia Bank, National Association (“Wachovia Bank”), Wachovia Education Loan Funding LLC (the “Depositor”) and [____________________], not in its individual capacity but solely as Interim Eligible Lender Trustee (the “Interim Eligible Lender Trustee”) for the benefit of the Depositor under the Interim Trust Agreement dated as of [______], 20[__] between the Depositor and the Interim Eligible Lender Trustee, shall be effective upon execution by the parties hereto. References to the Depositor herein mean the Interim Eligible Lender Trustee for all purposes involving the holding or transferring of legal title to the Eligible Loans.
WHEREAS, Wachovia Bank is the owner of certain Student Loans guaranteed under the Higher Education Act;
WHEREAS, Wachovia Bank desires to sell its interest in the portfolio of Initial Loans and the Depositor desires to purchase such Loans from Wachovia Bank;
WHEREAS, from time to time, Wachovia Bank may substitute loans in accordance with the terms of Section 6(B) of this Purchase Agreement; and
WHEREAS, the Interim Eligible Lender Trustee is willing to hold legal title to, and serve as eligible lender trustee with respect to, the Purchased Loans on behalf of the Depositor.
NOW, THEREFORE, in connection with the mutual promises contained herein, the parties hereto agree as follows:
SECTION 1. TERMS
This Purchase Agreement establishes the terms under which Wachovia Bank may sell and the Depositor (and with respect to legal title, the Interim Eligible Lender Trustee on behalf of the Depositor) may purchase the Loans (and all obligations of the Borrowers thereunder) specified in the Initial Transfer Agreement with respect to the Initial Loans or each Subsequent Transfer Agreement with respect to any Substituted Loans, as the parties may execute from time to time pursuant to this Purchase Agreement. The Initial Transfer Agreement and each Subsequent Transfer 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 this Purchase Agreement, and shall be a separate agreement among Wachovia Bank, the Depositor, and the Interim Eligible Lender Trustee on behalf of the Depositor with respect to the Loans covered by the terms of the Initial Transfer Agreement or the related Subsequent Transfer Agreement, as applicable. If the terms of the Initial Transfer Agreement or an Subsequent Transfer Agreement conflict with the terms of this Purchase Agreement, the terms of the Initial Transfer Agreement or the related Subsequent Transfer Agreement, as applicable, shall supersede and govern.
SECTION 2. DEFINITIONS
Capitalized terms used but not otherwise defined herein, including in the related Transfer Agreement and Xxxx of Sale, shall have the definitions set forth in Appendix A to the Indenture dated as of [______], 20[__], among [_____________], as Eligible Lender Trustee on behalf of the Trust, Wachovia Student Loan Trust 20[__]-[__] and [___________], as Indenture Trustee, as may be amended or supplemented from time to time.
For purposes hereof:
(A)
“Xxxx of Sale” means the Initial Xxxx of Sale or an Subsequent Xxxx of Sale, as applicable.
(B)
“Borrower” means the Obligor on a Loan.
(C)
“Cutoff Date” means the Initial Cutoff Date or the Statistical Cutoff Date, as applicable.
(D)
“Eligible Loan” means a Loan offered for sale or substituted by Wachovia Bank under a Transfer Agreement which 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 Substituted Loan, is current or not more past due than permitted under such Transfer Agreement in payment of principal or interest and which meets the following criteria as of the Statistical Cutoff Date (except that paragraph (x) shall be satisfied as of the date specified in the provisions herein), in the case of the Initial Loans, or as of the effective date of the related Xxxx of Sale (except that paragraph (x) shall be satisfied as of the date specified in the provisions herein), in the case of any Substituted Loan:
(i)
is a Consolidation Loan;
(ii)
is owned by Wachovia Bank 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 type of Loan;
(iv)
bears interest at a stated rate of not less than the maximum rate permitted under the Higher Education Act for such type of 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 type of 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 210 days past due as of the Statistical Cutoff Date, in the case of the Initial Loans, or in relation to any Substituted Loan, the effective date of the related Xxxx of Sale;
(viii)
the last disbursement was before the Statistical Cutoff Date, in the case of the Initial Loans, or before the effective date of the related Xxxx of Sale, in the case of any Substituted Loan;
(ix)
is supported by the following documentation, in each case fully complete and, if applicable, executed:
1.
loan application, and any supplement thereto,
2.
original promissory note and any addendum thereto (or a true and exact copy thereof) or the electronic records evidencing the same,
3.
evidence of guarantee,
4.
any other document and/or record which the Depositor 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 effective date of the related Xxxx of Sale, in the case of any 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 Loan file,
(x)
satisfies each of the Representations and Warranties contained in Section 5(B) hereof.
(E)
“Excess Distribution Certificates” means the certificates, substantially in the form of Exhibit A to the Trust Agreement, evidencing the right to receive payments thereon as set forth in Sections 2.8(m) and 2.9(f) of the Administration Agreement.
(F)
“Initial Xxxx of Sale” means the document, in the form of Attachment B hereto, executed by an authorized officer of Wachovia Bank which shall (i) set forth the applicable Initial Loans offered by Wachovia Bank and accepted for purchase by the Interim Eligible Lender Trustee for the benefit of the Depositor, (ii) sell, assign and convey to the Interim Eligible Lender Trustee for the benefit of the Depositor and its assignees all rights, title and interest of Wachovia Bank in the Initial Loans listed on that Xxxx of Sale and (iii) certify that the representations and warranties made by Wachovia Bank as set forth in Sections 5 (A) and (B) of this Purchase Agreement are true and correct.
(G)
“Initial Cutoff Date” means [______], 20[__].
(H)
“Initial Loans” means the Eligible Loans evidenced by the Student Loan Notes sold on the Closing Date pursuant to the Initial Transfer Agreement and related documentation, together with any guaranties and other rights relating thereto including, without limitation, Interest Subsidy Payments and Special Allowance Payments.
(I)
“Initial Transfer Agreement” means the Transfer Agreement (including the related Blanket Endorsement, Initial Xxxx of Sale and any attachments thereto) substantially in the form of Attachment A hereto (of which this Purchase Agreement forms a part by reference), to be executed by Wachovia Bank, the Depositor and the Interim Eligible Lender Trustee, which shall certify that the representations and warranties made by Wachovia Bank as set forth in Sections 5 (A) and (B) of this Purchase Agreement are true and correct as of the Closing Date.
(J)
“Loan” means an Initial Loan or a Substituted Loan, as applicable, offered for sale and purchased, or substituted, pursuant to the related Transfer Agreement and related documentation together with any guarantees and other rights relating thereto including, without limitation, Interest Subsidy Payments and Special Allowance Payments.
(K)
“Loan Transmittal Summary Forms” means the forms related to each Xxxx of Sale provided to Wachovia Bank by the Depositor and completed by Wachovia Bank 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 effective date of the related Xxxx of Sale, in the case of any Substituted Loan.
(L)
“Purchase Date” means with respect to the Initial Loans, the Closing Date, and with respect to any Substituted Loans, the date of the related Subsequent Xxxx of Sale.
(M)
“Purchase Price” means the dollar amount specified as the “Purchase Price” in the Initial Transfer Agreement.
(N)
“Purchased Loans” means, with respect to each Transfer Agreement, the Loans offered for sale and purchased or substituted pursuant to such Transfer Agreement.
(O)
“Statistical Cutoff Date” means [______], 20[__].
(P)
“Subsequent Xxxx of Sale” means each document, in the form of Attachment D hereto, executed by an authorized officer of Wachovia Bank, the Depositor and the Interim Eligible Lender Trustee on behalf of the Depositor which shall: (i) set forth the list and certain terms of Substituted Loans substituted by Wachovia Bank, (ii) sell, assign and convey to the Interim Eligible Lender Trustee, for the benefit of the Depositor and its assignees, all right, title and interest of Wachovia Bank in the Substituted Loans listed on the related Subsequent Xxxx of Sale and (iii) certify that the representations and warranties made by Wachovia Bank pursuant to Sections 5(A) and (B) of this Purchase Agreement are true and correct.
(Q)
“Subsequent Transfer Agreement” means each Subsequent Transfer Agreement (including the related Subsequent Xxxx of Sale, the related Blanket Endorsement and any attachments thereto), substantially in the form of Attachment C hereto (of which this Purchase Agreement forms a part by reference, provided that in the event of a substitution, the form will be modified accordingly), to be executed by Wachovia Bank, the Depositor and the Interim Eligible Lender Trustee for the benefit of the Depositor, which certifies that the representations and warranties made by Wachovia Bank as set forth in Sections 5(A) and (B) of this Purchase Agreement are true and correct as of the related Purchase Date.
(R)
“Substituted Loans” means the Eligible Loans evidenced by a Student Loan Note or Student Loan Notes substituted by Wachovia Bank pursuant to the terms of Section 6(B) hereof from time to time as evidenced by an Subsequent Transfer Agreement and related documentation, together with any guarantees and other rights relating thereto including, without limitation, Interest Subsidy Payments and Special Allowance Payments.
(S)
“Transfer Agreement” means the Initial Transfer Agreement or a Subsequent Transfer Agreement, as applicable, substantially in the form of Attachment A or C hereto, of which this Purchase Agreement forms a part by reference.
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 Transfer Agreement with respect to the Initial Loans shall be consummated upon: (i) the Depositor’s receipt from Wachovia Bank of the Initial Xxxx of Sale, (ii) the payment by the Depositor to Wachovia Bank of the cash portion of the Purchase Price and (iii) the delivery of an Excess Distribution Certificate evidencing [__]% of the aggregate percentage interest of the Excess Distribution Certificates registered in the name Wachovia Education Finance Holding LLC. Upon consummation, regardless of whether or not all conditions precedent to such sale and purchase were satisfied, such sale and purchase shall be effective as of the date of the Initial Xxxx of Sale. Wachovia Bank and the Depositor shall use their best efforts to perform promptly their respective obligations pursuant to the Initial Transfer Agreement with respect to each Initial Loan.
(B)
Settlement of the Purchase Price
On the date of the Initial Xxxx of Sale, the Depositor shall (i) pay to Wachovia Bank the cash portion of the Purchase Price by wire transfer of immediately available funds to the account specified by Wachovia Bank and (ii) delivery or cause the delivery of the Excess Distribution Certificate specified in Section 3.1(A) of this Purchase Agreement to Wachovia Bank.
(C)
Interest Subsidy Payments, Special Allowance Payments and Rebate Fees
Wachovia Bank 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 the Depositor 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.
SECTION 3.2 SUBSTITUTION OF SUBSTITUTED LOANS
(A)
Requirements Relating to Substituted Loans
Wachovia Bank may transfer Substituted Loans to the Depositor in satisfaction of any Loan repurchase obligations provided under Section 6 of this Purchase Agreement. The substitution of Substituted Loans pursuant to an Subsequent Transfer Agreement shall be consummated as set forth in this Section 3.2.
(B)
Consummation of Substitution
The substitution of Eligible Loans as Substituted Loans pursuant to an Subsequent Transfer Agreement shall be consummated upon (i) the Depositor’s receipt from Wachovia Bank of a fully executed copy of the related Subsequent Transfer Agreement; and (ii) the payment by the Depositor to Wachovia Bank of the amount set forth in Section 6(B) of this Purchase Agreement. Upon consummation, regardless of whether or not all conditions precedent to such substitution were satisfied, such substitution shall be effective as of the date of the related Subsequent Xxxx of Sale. Wachovia Bank and the Depositor shall use their best efforts to perform promptly their respective obligations pursuant to the related Subsequent Transfer Agreement with respect to each Substituted Loan.
(C)
Consideration
The consideration for the Substituted Loans shall be the transfer from the Depositor to Wachovia Bank of ownership of the Loans being substituted for.
(D)
Interest Subsidy Payment and Special Allowance Payments
The Interest Subsidy Payments and the Special Allowance Payments shall be made in accordance with Section 6(B) of this Purchase Agreement.
SECTION 3.3 GENERAL
(A)
Special Programs
In consideration of the sale or substitution of the Eligible Loans under this Purchase Agreement and each Transfer Agreement, the Depositor agrees to cause the Master Servicer to offer each Borrower of a Trust Student Loan sold or substituted hereunder all special programs, whether or not in existence as of the date of any related Transfer Agreement, generally offered to the obligors of comparable loans owned by Wachovia Bank or any of its Affiliates, at all times subject to the terms and conditions of Section 3.12 of the Master Servicing Agreement. Wachovia Bank is selling Loans to the Depositor or substituting Loans without regard to the effect of any special programs.
(B)
Intent of the Parties
With respect to each sale or substitution of Eligible Loans pursuant to this Purchase Agreement and the related Transfer Agreements, it is the intention of Wachovia Bank, the Interim Eligible Lender Trustee and the Depositor, and Wachovia Bank 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 Wachovia Bank to the Interim Eligible Lender Trustee or a valid substitution of such Loans, for the benefit of and on behalf of the Depositor, and that the beneficial interest in and title to such Loans not be part of Wachovia Bank’s estate in the event of the bankruptcy of Wachovia Bank or the appointment of a receiver with respect to Wachovia Bank.
(C)
Master Promissory Note Provisions [TO BE INSERTED WHEN LOANS TO BE SOLD WERE MADE UNDER MASTER NOTES]
If any Loans that are to be sold under this Purchase Agreement were made under a Master Promissory Note, the Xxxx of Sale will exclude an assignment of Wachovia Bank’s right to offer future Loans under such Master Promissory Note, it being agreed that (i) Wachovia Bank expressly reserves for itself such right to offer future Loans under such Master Promissory Note, and (ii) the Depositor will not, and has no right to, offer or make any future loans under such Student Loan Note. Notwithstanding any other provision of this Purchase Agreement, Wachovia Bank will deliver (or cause to be delivered) to the Depositor a true and exact copy of the Master Promissory Note at the time of sale in accordance with the provisions of this Purchase Agreement. Wachovia Bank agrees promptly to deliver (or cause to be delivered) to the Depositor any original Master Promissory Note for a Loan sold under this Purchase Agreement to the extent it is necessary for enforcement in a legal proceeding, it being understood and agreed that the Depositor shall (i) be responsible and liable for custody of the original Student Loan Note on Wachovia Bank’s behalf until the Note is returned to Wachovia Bank, and (ii) promptly return such original Student Loan Note to Wachovia Bank, in the same condition as provided by Wachovia Bank, upon conclusion of the legal proceeding.
SECTION 4. CONDITIONS PRECEDENT TO PURCHASE OR SUBSTITUTION
Any purchase or substitution of Loans pursuant to this Purchase Agreement is subject to the following conditions precedent being satisfied (and Wachovia Bank, 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
Wachovia Bank shall provide any assistance reasonably requested by the Depositor in determining that all required documentation on the related Loans is present and correct.
(B)
Continued Servicing
Following the execution of each Transfer Agreement, Wachovia Bank shall service, or cause to be serviced, all Loans subject to such Transfer 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
Wachovia Bank shall deliver to the Depositor:
(i)
a Xxxx of Sale that (a) has been duly authorized, executed and delivered, by an authorized officer of Wachovia Bank, covering the applicable Loans offered by Wachovia Bank, (b) has been accepted by the Depositor as set forth thereon, selling, assigning and conveying to the Interim Eligible Lender Trustee on behalf of the Depositor and its assignees all right, title and interest of Wachovia Bank, including the insurance interest of Wachovia Bank, in each of the related Loans, and (c) states that the representations and warranties made by Wachovia Bank in Sections 5(A) and (B) of this Purchase Agreement are true and correct on and as of the date of the Xxxx of Sale; and
(ii)
the Loan Transmittal Summary Form, attached to the Xxxx of Sale, identifying each of the Eligible Loans which is the subject of the Xxxx of Sale and setting forth the unpaid Principal Balance of each such Loan.
(D)
Endorsement
Wachovia Bank shall provide a blanket endorsement transferring the entire interest of Wachovia Bank in the related Eligible Loans to the Interim Eligible Lender Trustee on behalf of the Depositor with the form of endorsement provided for in the Initial Transfer Agreement with respect to the Initial Loans or the Subsequent Transfer Agreement with respect to the Substituted Loans.
At the direction of and in such form as the Depositor may reasonably designate, Wachovia Bank also agrees to individually endorse any Eligible Loan as the Depositor may reasonably request from time to time.
(E)
Officer’s Certificate
Wachovia Bank shall furnish to the Depositor, with each Xxxx of Sale provided in connection with each purchase or substitution of Loans pursuant to this Purchase Agreement, an Officer’s Certificate, dated as of the date of such Xxxx of Sale.
(F)
Loan Transfer Statement
Upon the Depositor’s request, Wachovia Bank shall deliver to the Depositor one (1) or more Loan Transfer Statements (Department of Education Form OE 1074 or its equivalent) provided by the Depositor, executed by Wachovia Bank and dated the date of the related Xxxx of Sale. Wachovia Bank agrees that the Depositor 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 Wachovia Bank to the Interim Eligible Lender Trustee on behalf of the Depositor of the Loans listed on the related Xxxx of Sale.
(G)
Power of Attorney
Wachovia Bank hereby grants to the Depositor and the Interim Eligible Lender Trustee, on behalf of and for the benefit of the Depositor, 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 Wachovia Bank any Eligible Loan to evidence the transfer of such Eligible Loan to the Depositor and the Interim Eligible Lender Trustee for the benefit of the Depositor and to cause to be transferred physical possession of any physical Student Loan Note or control as defined in the applicable UCC of any electronic Student Loan Note from Wachovia Bank or the Master Servicer to the Depositor 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 Substituted Loans, such Substituted Loans shall be contemporaneously sold to the Eligible Lender Trustee on behalf of the Trust in accordance with Section 4(H) of the Contribution Agreement.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF WACHOVIA BANK AND INTERIM ELIGIBLE LENDER TRUSTEE
(A)
General
Wachovia Bank represents and warrants to the Depositor that with respect to the Initial Loans, as of the Closing Date, and with respect to any Substituted Loans substituted by it, as of the related Purchase Date:
(i)
Wachovia Bank 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)
Wachovia Bank is duly organized and existing under the laws of its governing jurisdiction;
(iii)
Wachovia Bank has all requisite power and authority to enter into and to perform the terms of this Purchase Agreement, the Initial Transfer Agreement and any Subsequent Transfer Agreement, the Initial Xxxx of Sale and any Subsequent Xxxx of Sale and, upon execution, each such document shall be enforceable against it; and
(iv)
Wachovia Bank will not, with respect to any Loan purchased or substituted under Transfer Agreements executed pursuant to this Purchase Agreement, 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 the Depositor.
(B)
Particular
Wachovia Bank represents and warrants to the Depositor as to the Purchased Loans purchased by the Depositor under the Initial Transfer Agreement with respect to the Initial Loans, or each Subsequent Transfer Agreement with respect to any Substituted Loans, in each case executed pursuant to this Purchase Agreement that, as of the related Purchase Date or as of the date otherwise noted:
(i)
Wachovia Bank 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)
This Purchase Agreement creates 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 Wachovia Bank;
(iii)
The Purchased Loans constitute “Accounts” within the meaning of the applicable UCC and are within the coverage of Section 432(m)(1)(E) of the Higher Education Act;
(iv)
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 Substituted Loan, the Purchased Loans are Eligible Loans and the description of such Loans set forth in the related Transfer Agreement and the related Loan Transmittal Summary Form is true and correct;
(v)
Wachovia Bank is 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 Wachovia Bank, will be made pursuant to and consistent with the laws and regulations under which Wachovia Bank operates, and will not violate any decree, judgment or order of any court or agency, or conflict with or result in a material breach of any of the terms, conditions or provisions of any agreement or instrument to which Wachovia Bank is a party or by which Wachovia Bank or its property is bound, or constitute a material default (or an event which could constitute a default with the passage of time or notice or both) thereunder;
(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)
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 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 effective date of the related Xxxx of Sale, in the case of any Substituted Loan, such guaranty is in full force and effect and is freely transferable to the Interim Eligible Lender Trustee on behalf of the Depositor 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;
(ix)
Any payments on the Purchased Loans received by Wachovia Bank 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 effective date of the related Xxxx of Sale, in the case of any Substituted Loan, as stated on the related Loan Transmittal Summary Form is true and correct;
(x)
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;
(xi)
All origination fees authorized to be collected pursuant to Section 438 of the Higher Education Act have been paid to the Secretary;
(xii)
Each Loan has been duly made and serviced in accordance with the provisions of all applicable federal and state laws;
(xiii)
No Loan is more than two hundred ten (210) days past due as of the Statistical Cutoff Date, with respect to the Initial Loans, or as of the effective date of the related Xxxx of Sale, with respect to any Substituted Loans, and no default, breach, violation or event permitting acceleration under the terms of any Loan has arisen; and neither Wachovia Bank nor any predecessor holder of any Loan has waived any of the foregoing other than as permitted by the Basic Documents;
(xiv)
It is the intention of Wachovia Bank, the Interim Eligible Lender Trustee and the Depositor, and Wachovia Bank hereby warrants that, the transfer and assignment herein contemplated constitute a valid sale of the Loans from Wachovia Bank to the Interim Eligible Lender Trustee, for the benefit of and on behalf of the Depositor, and that the beneficial interest in and title to such Loans not be part of Wachovia Bank’s estate in the event of the bankruptcy of Wachovia Bank or the appointment of a receiver with respect to Wachovia Bank;
(xv)
With respect to the first sale of Loans from Wachovia Bank to the Interim Eligible Lender Trustee for the benefit of the Depositor it 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 or otherwise transferred to the Interim Eligible Lender Trustee hereunder;
(xvi)
There is only one original executed copy of the Student Loan Note evidencing each Purchased Loan. For Purchased Loans that were executed electronically, the Master Servicer, directly or through sub-servicers (or, if applicable, third-party sub-custodians), has possession of the electronic records evidencing the Student Loan Note. The Interim Eligible Lender Trustee has in its possession a copy of the endorsement and Loan Transmittal Summary Form identifying the Student Loan Notes that constitute or evidence the Purchased Loans. The Student Loan 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 Wachovia Bank in favor of the Interim Eligible Lender Trustee on behalf of the Depositor 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;”
(xvii)
Other than the security interest granted to the Interim Eligible Lender Trustee pursuant to this Agreement, Wachovia Bank has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Purchased Loans. Wachovia Bank has not authorized the filing of and is not aware of any financing statements against Wachovia Bank 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; and
(xviii)
No Borrower of a Purchased Loan 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 Substituted Loan, is noted in the related Loan File, or to the best of Wachovia Bank’s knowledge, as being currently involved in a bankruptcy proceeding.
(C)
The Interim Eligible Lender Trustee represents and warrants that as of the date of each Transfer 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 Delaware. It has all requisite corporate power and authority to execute, deliver and perform its obligations under this Purchase Agreement, each Transfer 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 this Purchase Agreement and each Transfer Agreement, and this Purchase Agreement and each Transfer Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver this Purchase Agreement and each Transfer Agreement on its behalf;
(iii)
Neither the execution nor the delivery by it of this Purchase Agreement and each Transfer 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 this Purchase Agreement, each Transfer 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 this Purchase Agreement shall give notice to the other parties promptly, in writing, upon the discovery of any breach of Wachovia Bank’s representations and warranties made pursuant to Sections 5(A) and (B) hereof which has a materially adverse effect on the interest of the Depositor or its successors and assigns (including without limitation, the Indenture Trustee) in the Guarantee of 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, Wachovia Bank shall repurchase any affected Trust Student Loan not later than 120 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. 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, Wachovia Bank shall purchase such Trust Student Loan not later than the sixtieth day following the end of such 360-day period. Wachovia Bank 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 accrued interest amounts and forfeited Interest Subsidy Payments and Special Allowance Payments with respect to such Trust Student Loan arising out of a breach of Wachovia Bank’s representations and warranties made pursuant to Sections 5(A) and (B) hereof. In consideration of the purchase of any such Trust Student Loan pursuant to this Section 6(A), Wachovia Bank 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 Wachovia Bank 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 the Depositor to repay such interest to a Guarantor), or the loss (including any obligation of the Depositor to repay the Department) of Interest Subsidy Payments and Special Allowance Payments, with respect to any Trust Student Loan affected by such breach, then Wachovia Bank shall reimburse the Depositor 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 Wachovia Bank 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, Wachovia Bank shall not be required to reimburse the Depositor 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 finally rejected by a Guarantor or with respect to which the Master Servicer (or the related sub-servicer) determines that claims cannot be filed pursuant to the Higher Education Act as a result of a breach by Wachovia Bank, the Master Servicer (or a sub-servicer acting on its behalf), exceeds 1% of the Pool Balance, Wachovia Bank (or the Master Servicer as provided in the Master Servicing Agreement) shall purchase, within 30 days of a written request of the Eligible Lender Trustee or 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 Wachovia Bank and the Master 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.
(B)
In lieu of repurchasing Trust Student Loans pursuant to this Section 6(A), Wachovia Bank 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),
2.
program type (i.e., Unsubsidized Consolidation Loan or Subsidized Consolidation Loan (and pre-1993 vs. post-1993)),
3.
school type,
4.
total return,
5.
principal balance, and
6.
remaining term to maturity.
In addition, each substituted Eligible Loan will comply, as of the effective date of the related Xxxx of Sale, with all of the representations and warranties made hereunder. In choosing Eligible Loans to be substituted pursuant to this Section 6(B), Wachovia Bank 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 Subsequent Transfer Agreement and related Subsequent Xxxx of Sale regarding such Substituted Loans will be executed and delivered by the applicable parties.
In the event that Wachovia Bank elects to substitute Eligible Loans pursuant to this Section 6(B), Wachovia Bank 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. Wachovia Bank shall also remit to the Administrator an amount equal to all non-guaranteed accrued 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 the Depositor, the Eligible Lender Trustee and the Noteholders with respect to a breach by Wachovia Bank pursuant to Sections 5(A) and (B) hereof shall be to require Wachovia Bank to purchase such Trust Student Loans, to reimburse the Depositor 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.
SECTION 7. OBLIGATION TO REMIT SUBSEQUENT PAYMENTS
AND FORWARD COMMUNICATIONS
(A)
Any payment received by Wachovia Bank with respect to amounts accrued after the date of the related Xxxx of Sale for any Purchased Loan sold to the Depositor, which payment is not reflected in the related Loan Transmittal Summary Form, shall be received by Wachovia Bank in trust for the account of the Depositor and Wachovia Bank hereby disclaims any title to or interest in any such amounts. Within two (2) Business Days following the date of receipt, Wachovia Bank shall remit to the Depositor an amount equal to any such payments along with a listing on a form provided by the Depositor 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 Wachovia Bank with respect to any Loan subject to this Purchase Agreement or the related Transfer Agreement shall be transmitted by Wachovia Bank to the Master Servicer and the related sub-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 WACHOVIA BANK
Wachovia Bank shall provide all reasonable assistance necessary for the Depositor 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 Wachovia Bank owned the related Purchased Loan, or (b) a payment made or alleged to have been made to Wachovia Bank. Further, Wachovia Bank agrees to execute any financing statements at the reasonable request of the Depositor and take all other actions reasonably requested by the Depositor in order to reflect the Depositor’s interest in the Loans.
SECTION 9. LIABILITY OF THE SELLER; INDEMNITIES
Wachovia Bank shall be liable in accordance herewith only to the extent of the obligations specifically undertaken by Wachovia Bank under this Purchase Agreement and each related Transfer Agreement.
(i)
Wachovia Bank shall indemnify, defend and hold harmless the Depositor 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 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 the Depositor, 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 the Depositor, or asserted with respect to ownership of the Trust Student Loans) and costs and expenses in defending against the same.
(ii)
Wachovia Bank shall indemnify, defend and hold harmless the Depositor and the Interim Eligible Lender Trustee in its individual capacity, and the officers, directors, employees and agents of the Depositor 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, Wachovia Bank’s willful misfeasance, bad faith or gross negligence in the performance of its duties under this Purchase Agreement, or by reason of reckless disregard of its obligations and duties under this Purchase Agreement.
(iii)
Wachovia Bank 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 this Purchase Agreement, the other Basic Documents, the acceptance or performance of the trusts and duties set forth herein or the action or the inaction of the Interim Eligible Lender Trustee hereunder, 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 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 this Purchase Agreement or any Transfer 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 Wachovia Bank, which approval shall not be unreasonably withheld.
Indemnification under this Section 9 shall survive the resignation or removal of the Interim Eligible Lender Trustee and the termination of this Purchase Agreement, and shall include reasonable fees and expenses of counsel and expenses of litigation. If Wachovia Bank 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 Wachovia Bank, without interest.
SECTION 10. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF WACHOVIA BANK
Any Person (a) into which Wachovia Bank may be merged or consolidated, (b) which may result from any merger or consolidation to which Wachovia Bank shall be a party or (c) which may succeed to the properties and assets of Wachovia Bank substantially as a whole, shall be the successor to Wachovia Bank without the execution or filing of any document or any further act by any of the parties to this Purchase Agreement; provided, however, that Wachovia Bank 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 Wachovia Bank, executes an agreement of assumption to perform every obligation of Wachovia Bank under this Purchase Agreement, each Transfer 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 Wachovia Bank, 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 this Purchase Agreement 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 Wachovia Bank is not the surviving entity, Wachovia Bank 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 the Depositor 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.
SECTION 11. LIMITATION ON LIABILITY OF WACHOVIA BANK AND OTHERS
Wachovia Bank 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 Wachovia Bank’s obligations under Section 6). Wachovia Bank shall not be under any obligation to appear in, prosecute or defend any legal action that shall not be incidental to its obligations under this Purchase Agreement or any Transfer 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 Wachovia Bank will constitute the sole remedy available to the Depositor, the Eligible Lender Trustee and the Noteholders 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, Wachovia Bank shall remit such amount to the Interim Eligible Lender Trustee, for the benefit of and on behalf of the Depositor. 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, this Purchase Agreement and the Initial Transfer Agreement has been, and any Subsequent Transfer Agreement will be, signed by [____________________] not in its individual capacity but solely in its capacity as Interim Eligible Lender Trustee for the Depositor, and in no event shall [____________________] in its individual capacity have any liability for the representations, warranties, covenants, agreements or other obligations of the Interim Eligible Lender Trustee or the Depositor, under this Purchase Agreement or any Transfer 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 the Depositor.
SECTION 13. EXPENSES
Except as otherwise provided herein, each party to this Purchase Agreement or any Transfer Agreement shall pay its own expense incurred in connection with the preparation, execution and delivery of this Purchase Agreement and any Transfer Agreement and the transactions contemplated herein or therein.
SECTION 14. SURVIVAL OF COVENANTS/SUPERSESSION
All covenants, agreements, representations and warranties made herein and in or pursuant to the Initial Transfer Agreement and each Subsequent Transfer Agreement executed pursuant to this Purchase Agreement shall survive the consummation of the acquisition of the Purchased Loans provided for in the related Transfer Agreement. All covenants, agreements, representations and warranties made or furnished pursuant hereto by or on behalf of Wachovia Bank shall bind and inure to the benefit of any successors or assigns of the Depositor and the Interim Eligible Lender Trustee on behalf of the Depositor and shall survive with respect to each Purchased Loan. Each Transfer Agreement supersedes all previous agreements and understandings between the Depositor and Wachovia Bank with respect to the subject matter thereof. This Purchase Agreement and any Transfer 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 the Depositor of any covenant, agreement, representation or warranty required to be made or furnished by Wachovia Bank or the waiver by the Depositor of any provision herein contained or contained in any Transfer 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 Transfer Agreement, be construed to lessen the right of the Depositor to insist upon the performance by Wachovia Bank 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 Wachovia Bank or the Depositor, as the case may be, addressed as set forth in the Transfer 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 Wachovia Bank or the Depositor 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 this Purchase Agreement and any Transfer Agreement, and all proceedings to be taken in connection with this Purchase Agreement and any Transfer Agreement and the transactions contemplated herein and therein, shall be in a form as set forth in the attachments hereto, and the Depositor 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.
SECTION 17. AMENDMENT
(a)
This Purchase Agreement, any Transfer Agreement, any Xxxx of Sale and any document or instrument delivered in accordance herewith or therewith may be amended from time to time by the parties hereto, without the consent of any Noteholder, for the purpose of (i) curing any ambiguity, correcting or supplementing any provision which may be inconsistent with any other provision herein, or in any Transfer Agreement, any Xxxx of Sale, any document or instrument delivered in accordance herewith or therewith, the related prospectus or prospectus supplement or (ii) adding any provisions to or changing in any manner or eliminating any of the provisions herein or therein or modifying in any manner the rights of the Noteholders other than any amendment described in Sub-Section (c) below; provided, however, that no such amendment described in either paragraph (i) or (ii) above shall materially adversely affect the interests of the Noteholders.
(b)
An amendment will be deemed not to materially adversely affect the interests of any Noteholder if the party requesting the amendment obtains and delivers to the other parties hereto and the Indenture Trustee:
(i)
an Opinion of Counsel to that effect; or
(ii)
a letter from each Rating Agency to the effect that the amendment will not result in a qualification, downgrading or withdrawal of its then-current rating of any class of Notes.
(c)
This Purchase Agreement, any Transfer Agreement, any Xxxx of Sale and any document or instrument delivered in accordance herewith or therewith may also be amended from time to time by the parties hereto, with the consent of Noteholders of at least a majority of the aggregate Outstanding Amount of the Controlling Class, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions herein or therein or modifying in any manner the rights of the Noteholders; provided, however, that no amendment shall:
(i)
increase or reduce in any manner the amount of, or accelerate or delay the timing of, or change the allocation or priority of, collections of payments on or in respect of the Purchased Loans; or
(ii)
reduce the percentage of the aggregate Outstanding Amount of the Controlling Class, the consent of the holders which is required for any amendments to this Purchase Agreement, any Transfer Agreement, any Xxxx of Sale and any document or instrument delivered in accordance herewith or therewith,
without the consent of all holders of the Notes then Outstanding.
(d)
Promptly after the execution of any such amendment or consent (or, in the case of the Rating Agencies, five Business Days prior thereto), the Interim Eligible Lender Trustee shall furnish written notification of the substance of such amendment or consent to the Indenture Trustee and each of the Rating Agencies.
(e)
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.
(f)
Prior to the execution of any amendment to this Purchase Agreement, 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 this Purchase Agreement 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 this Purchase Agreement or otherwise.
SECTION 18. NONPETITION COVENANTS
Notwithstanding any prior termination of this Purchase Agreement, Wachovia Bank and the Interim Eligible Lender Trustee shall not acquiesce, petition or otherwise invoke or cause the Depositor to invoke the process of any court or government authority for the purpose of commencing or sustaining a case against the Depositor under any Federal or state bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignees, trustee, custodian, sequestrator or other similar official of the Depositor or any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Depositor.
SECTION 19. GOVERNING LAW
THIS 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.
IN WITNESS WHEREOF, the parties hereto have caused this Purchase Agreement to be duly executed by their respective officers hereunto duly authorized, as of the day and year first above written.
WACHOVIA BANK, NATIONAL ASSOCIATION
as Seller
By:___________________________
Name:
Title:
WACHOVIA EDUCATION LOAN FUNDING LLC
as Purchaser
By:___________________________
Name:
Title:
[____________________],
not in its individual capacity but
solely as Interim Eligible Lender Trustee
By:___________________________
Name:
Title:
Attachment A
INITIAL TRANSFER AGREEMENT
Dated as of [______], 20[__]
TRANSFER AGREEMENT
Pursuant to the Purchase Agreement (as defined below), Wachovia Bank hereby offers for sale to [____________________] as Interim Eligible Lender Trustee for the benefit of Wachovia Education Loan Funding LLC (the “Depositor”) under the Interim Trust Agreement dated as of [______], 20[__] between the Depositor and the Interim Eligible Lender Trustee, the entire right, title and interest of Wachovia Bank 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 the Depositor accepts Wachovia Bank’s offer. In order to qualify as Eligible Loans, no payment of principal or interest shall be more than two hundred and ten (210) days past due as of the Statistical Cutoff Date, which shall be [______], 20[__].
TERMS, CONDITIONS AND COVENANTS
In consideration of the Purchase Price, Wachovia Bank hereby sells to the Interim Eligible Lender Trustee for the benefit of the Depositor the entire right, title and interest of Wachovia Bank in the Loans accepted for purchase, subject to all the terms and conditions of the Purchase Agreement (the “Purchase Agreement”) and any amendments thereto, incorporated herein by reference, among Wachovia Bank, the Depositor, and the Interim Eligible Lender Trustee. The Purchase Price for the Initial Loans shall equal $ [______] in cash and an Excess Distribution Certificate evidencing [__]% of the aggregate percentage interest of the Excess Distribution Certificates registered in the name Wachovia Education Finance Holding LLC, collectively, representing the fair market value of the Initial Loans.
This document shall constitute the Initial Transfer Agreement referred to in the Purchase Agreement and, except as modified herein, each term used herein shall have the same meaning as in the Purchase Agreement. All references in the Purchase Agreement to Loans, Eligible Loans, Initial Loans or Purchased Loans, as applicable, shall be deemed to refer to the Loans governed by this Initial Transfer Agreement. Wachovia Bank hereby makes all the representations and warranties set forth in Sections 5(A) and (B) of the Purchase Agreement regarding the Initial Loans described in the Initial Xxxx of Sale and the related Loan Transmittal Summary Form, as of the Closing Date.
Wachovia Bank authorizes the Interim Eligible Lender Trustee for the benefit of the Depositor 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 the Depositor 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 from Wachovia Bank to the Interim Eligible Lender Trustee for the benefit of the Depositor. However, in the event that notwithstanding the intention of the parties, such transfer is deemed to be a transfer for security, then Wachovia Bank hereby grants to the Interim Eligible Lender Trustee for the benefit of the Depositor a first priority security interest in and to all Purchased Loans described in the Initial Xxxx of Sale and related Loan Transmittal Summary Form and any proceeds thereof 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 Transfer Agreement Number 1 to be duly executed by their respective officers hereunto duly authorized, as of the day and year first above written.
WACHOVIA BANK, NATIONAL ASSOCIATION
as Seller
By:___________________________
Name:
Title:
WACHOVIA EDUCATION LOAN FUNDING LLC
as Purchaser
By:___________________________
Name:
Title:
[_________________________],
not in its individual capacity but solely as Interim Eligible Lender Trustee
By:___________________________
Name:
Title:
INITIAL TRANSFER AGREEMENT
BLANKET ENDORSEMENT DATED [______], 20[__]
Wachovia Bank, National Association (“Wachovia Bank”), by execution of this instrument, hereby endorses the attached promissory note which is one (1) of the promissory notes (the “Student Loan Notes”) described in the Initial Xxxx of Sale dated the date hereof executed by Wachovia Bank in favor of [_____________________________], as the Interim Eligible Lender Trustee for the benefit of Wachovia Education Loan Funding LLC (the “Depositor”). This endorsement is in blank, unrestricted form and without recourse except as provided in Section 6 of the Purchase Agreement referred to in the Initial Transfer Agreement among Wachovia Bank, the Depositor 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 Student Loan Notes.
Notwithstanding the foregoing, Wachovia Bank agrees to individually endorse each Student Loan Note in the form provided by the Depositor as the Depositor may from time to time reasonably require or if such individual endorsement is required by the Guarantor of the Student Loan 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 TRANSFER AGREEMENT. BY EXECUTION HEREOF, WACHOVIA BANK ACKNOWLEDGES THAT WACHOVIA BANK HAS READ, UNDERSTANDS AND AGREES TO BE BOUND BY ALL TERMS, CONDITIONS AND COVENANTS OF THE INITIAL TRANSFER AGREEMENT. THE SALE AND PURCHASE SHALL BE CONSUMMATED UPON (I) THE DEPOSITOR’S PAYMENT TO WACHOVIA BANK OF THE CASH PORTION OF THE PURCHASE PRICE (AS DEFINED IN THE PURCHASE AGREEMENT) AND (II) DELIVERY OF AN EXCESS DISTRIBUTION CERTIFICATE ISSUED IN THE NAME OF WACHOVIA BANK, AND, UNLESS OTHERWISE AGREED BY WACHOVIA BANK AND THE DEPOSITOR IN WRITING, SHALL BE EFFECTIVE AS OF THE DATE OF THE INITIAL RELATED XXXX OF SALE.
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 Wachovia Bank, National Association One Wachovia Center, 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxx, 00000 Lender Code: ____________________ By:______________________________ (Signature of Authorized Officer) Name: ___________________________ Title: ___________________________ | PURCHASER [____________________________], not in its individual capacity but solely as Interim Eligible Lender Trustee for the benefit of Wachovia Education Loan Funding LLC By:______________________________ (Signature of Authorized Signatory for Purchaser) Name: ___________________________ Title: ___________________________ Date of Purchase: [______], 20[__] |
Attachment B
INITIAL XXXX OF SALE DATED [______], 20[__]
The undersigned (“Wachovia Bank”), for value received and pursuant to the terms and conditions of Transfer Agreement (the “Transfer Agreement”) among Wachovia Bank, Wachovia Education Loan Funding LLC (the “Depositor”), and [_________________________], as Interim Eligible Lender Trustee for the benefit of the Depositor under the Interim Trust Agreement dated as of [______], 20[__] between the Depositor and the Interim Eligible Lender Trustee, does hereby sell, assign and convey to the Interim Eligible Lender Trustee for the benefit of the Depositor and its assignees all right, title and interest of Wachovia Bank in the Loans listed on the following page, including the insurance interest of Wachovia Bank under the Federal Family Education Loan Program (20 U.S.C. 1071 et seq.), that the Interim Eligible Lender Trustee for the benefit of the Depositor has accepted for purchase. The portfolio of Loans accepted for purchase by the Interim Eligible Lender Trustee for the benefit of the Depositor and the effective date of sale and purchase are described below and the individual accounts are listed on the Schedule A attached hereto.
Wachovia Bank hereby makes the representations and warranties set forth in Section 5 of the Transfer Agreement incorporated by reference in the Initial Transfer Agreement. Wachovia Bank authorizes the Interim Eligible Lender Trustee on behalf of the Depositor 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 the Depositor of the related Initial Loans on the Closing Date.
LISTING OF LOANS ON FOLLOWING PAGE
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 Wachovia Bank’s estimated calculations, which may be adjusted upward or downward based upon the Depositor’s reconciliation.
** Includes interest to be capitalized.
Guarantors:
[TO BE PROVIDED BY WACHOVIA]
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 Wachovia Bank, National Association One Wachovia Center, 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxx, 00000 Lender Code: ____________________ By:_____________________________ (Signature of Authorized Officer) Name: ___________________________ Title: ___________________________ | PURCHASER [_________________________], not in its individual capacity but solely as Interim Eligible Lender Trustee for the benefit of Wachovia Education Loan Funding LLC By:_____________________________ (Signature of Authorized Signatory for Purchaser) Name: ___________________________ Title: ___________________________ Date of Purchase: [______], 20[__] |
Attachment C
SUBSEQUENT TRANSFER AGREEMENT NUMBER [ ]
Dated as of [ ], 20[__]
SUBSEQUENT TRANSFER AGREEMENT NUMBER [ ]
Wachovia Bank hereby offers to substitute certain Loans by transferring to [______________________________], as Interim Eligible Lender Trustee for the benefit of Wachovia Education Loan Funding LLC (the “Depositor”), under the Interim Trust Agreement dated as of [______], 20[__] between the Depositor and the Interim Eligible Lender Trustee, the entire right, title and interest of Wachovia Bank in the Loans described in the related Subsequent 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 the Depositor accepts Wachovia Bank’s offer.
TERMS, CONDITIONS AND COVENANTS
In consideration of the transfer from the Depositor of the ownership of the Loans being substituted for, Wachovia Bank hereby substitutes such Loans by transferring to the Interim Eligible Lender Trustee for the benefit of the Depositor the entire right, title and interest of Wachovia Bank in the Loans accepted for substitution, subject to all the terms and conditions of the Purchase Agreement, dated [______], 20[__] (the “Purchase Agreement”), and any amendments thereto permitted by its terms, incorporated herein by reference, among Wachovia Bank, the Depositor and the Interim Eligible Lender Trustee. The amount to be remitted by Wachovia Bank to the Administrator pursuant to Section 6(B) of the Purchase Agreement shall be $[ ].
This document shall constitute a Subsequent Transfer Agreement as referred to in the Purchase Agreement and, except as modified herein, each term used herein shall have the same meaning as in the Purchase Agreement. All references in the Purchase Agreement to Loans or Substituted Loans or to Purchased Loans, as applicable, shall be deemed to refer to the Substituted Loans governed by this Subsequent Transfer Agreement. Wachovia Bank hereby makes the representations and warranties set forth in Sections 5(A) and (B) of the Purchase Agreement regarding the Substituted Loans described in the related Subsequent Xxxx of Sale and the related Loan Transmittal Summary Form, as of the related Purchase Date.
Wachovia Bank authorizes the Interim Eligible Lender Trustee for the benefit of the Depositor to use a copy of the related Subsequent Xxxx of Sale, including the Loan Transmittal Summary Form attached to such Subsequent 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 Depositor of the Loans purchased pursuant hereto on the Purchase Date.
The parties hereto intend that the transfer of Substituted Loans described in the related Subsequent Xxxx of Sale and related Loan Transmittal Summary Form be, and be construed as, a valid substitution of such Purchased Loans from Wachovia Bank to the Interim Eligible Lender Trustee for the benefit of the Depositor. However, in the event that notwithstanding the intention of the parties, such transfer is deemed to be a transfer for security, then Wachovia Bank hereby grants to the Interim Eligible Lender Trustee for the benefit of the Depositor a first priority security interest in and to all Substituted Loans described in the related Subsequent Xxxx of Sale and related Loan Transmittal Summary Form to secure a loan in an amount equal to the original Purchase Price of such Purchased Loans.
IN WITNESS WHEREOF, the parties hereto have caused this Subsequent Transfer Agreement Number [ ] to be duly executed by their respective officers hereunto duly authorized, as of the day and year first above written.
WACHOVIA BANK, NATIONAL ASSOCIATION
as Transferor
By:___________________________
Name:
Title:
WACHOVIA EDUCATION LOAN FUNDING LLC
as Transferee
By:___________________________
Name:
Title:
[____________________________], not in its individual capacity but solely as Interim Eligible
Lender Trustee
By:___________________________
Name:
Title:
SUBSEQUENT TRANSFER AGREEMENT NUMBER [ ]
[ ] BLANKET ENDORSEMENT DATED [ ], 20[__]
Wachovia Bank, National Association (“Wachovia Bank”), by execution of this instrument, hereby endorses the attached promissory note which is one (1) of the promissory notes (the “Student Loan Notes”) described in the Subsequent Xxxx of Sale executed by Wachovia Bank in favor of [__________________________], as the Interim Eligible Lender Trustee for the benefit of Wachovia Education Loan Funding LLC (the “Depositor”). This endorsement is in blank, unrestricted form and without recourse except as provided in Section 6 of the Purchase Agreement referred to in the Subsequent Transfer Agreement among Wachovia Bank, the Depositor and the Interim Eligible Lender Trustee which covers the promissory note (the “Subsequent Transfer Agreement”).
This endorsement may be effected by attaching either this instrument or a facsimile hereof to each or any of the Student Loan Notes.
Notwithstanding the foregoing, Wachovia Bank agrees to individually endorse each Student Loan Note in the form provided by the Depositor as the Depositor may from time to time reasonably require or if such individual endorsement is required by the Guarantor of the Student Loan Note.
THE TRANSFER OF THE SUBSTITUTED LOANS SHALL BE SUBJECT TO THE TERMS, CONDITIONS AND COVENANTS, INCLUDING THIS BLANKET ENDORSEMENT, AS SET FORTH IN THE RELATED SUBSEQUENT TRANSFER AGREEMENT. BY EXECUTION HEREOF, WACHOVIA BANK ACKNOWLEDGES THAT WACHOVIA BANK HAS READ, UNDERSTANDS AND AGREES TO BE BOUND BY ALL TERMS, CONDITIONS AND COVENANTS OF THE SUBSEQUENT TRANSFER AGREEMENT. THE SUBSTITUTION SHALL BE CONSUMMATED UPON THE DEPOSITOR’S TRANSFER TO WACHOVIA BANK OF OWNERSHIP OF THE LOANS BEING SUBSTITUTED FOR AND, UNLESS OTHERWISE AGREED BY WACHOVIA BANK AND THE DEPOSITOR, SHALL BE EFFECTIVE AS OF THE DATE OF THE SUBSEQUENT XXXX OF SALE.
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.
TRANSFEROR Wachovia Bank, National Association One Wachovia Center, 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxx, 00000 Lender Code: ____________________ By: ____________________________ (Signature of Authorized Officer) Name: _________________________ Title: __________________________ | TRANSFEREE [________________________], not in its individual capacity but solely as Interim Eligible Lender Trustee for the benefit of Wachovia Education Loan Funding LLC By: _____________________________ (Signature of Authorized Signatory for Transferee) Name: __________________________ Title: ___________________________ Date of Purchase: _________________ |
Attachment D
SUBSEQUENT XXXX OF SALE
DATED [ ], 20[__]
The undersigned (“Wachovia Bank”), for value received and pursuant to the terms and conditions of Subsequent Transfer Agreement Number [ ] (the “Transfer Agreement”) among Wachovia Bank, Wachovia Education Loan Funding LLC (the “Depositor”), and [_________________________], as Interim Eligible Lender Trustee for the benefit of the Depositor under the Interim Trust Agreement dated as of [______], 20[__] between the Depositor and the Interim Eligible Lender Trustee, does hereby assign and convey to the Interim Eligible Lender Trustee for the benefit of the Depositor and its assignees all right, title and interest of Wachovia Bank in the Loans listed on the following page, including the insurance interest of Wachovia Bank under the Federal Family Education Loan Program (20 U.S.C. 1071 et seq.), that the Interim Eligible Lender Trustee for the benefit of the Depositor has accepted for purchase. The portfolio of Substituted Loans accepted for purchase by the Interim Eligible Lender Trustee for the benefit of the Depositor and the effective date of substitution are described below and the individual accounts are listed on the Schedule A attached hereto.
Wachovia Bank hereby makes the representations and warranties set forth in Section 5 of the Purchase Agreement incorporated by reference in the Subsequent Transfer Agreement related hereto. Wachovia Bank authorizes the Interim Eligible Lender Trustee on behalf of the Depositor 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 the Depositor of the portfolio of Substituted Loans accepted for substitution, on the Purchase Date.
LISTING OF LOANS ON FOLLOWING PAGE
CERTAIN OTHER LOAN CRITERIA
■
Not in claims status, not previously rejected
■
Not in litigation
■
Last disbursement was on or before the effective date of the related Xxxx of Sale
■
Loan is not swap-pending
*Based upon Wachovia Bank’s estimated calculations, which may be adjusted upward or downward based upon the Depositor’s reconciliation.
** Includes interest to be capitalized.
Guarantor(s):
[TO BE PROVIDED BY WACHOVIA]
IN WITNESS WHEREOF, the parties hereto have caused this Subsequent Xxxx of Sale to be duly executed by their respective officers hereunto duly authorized, as of the day and year first above written.
TRANSFEROR Wachovia Bank, National Association One Wachovia Center, 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxxxx, Xxxxx Xxxxxxxx, 00000 Lender Code: ____________________ By: ____________________________ (Signature of Authorized Officer) Name: _________________________ Title: __________________________ | TRANSFEREE [_________________________], not in its individual capacity but solely as Interim Eligible Lender Trustee for the benefit of Wachovia Education Loan Funding LLC By: _____________________________ (Signature of Authorized Signatory for Transferee) Name: __________________________ Title: ___________________________ Date of Purchase:__________________ |
Annex I
LOAN TRANSMITTAL SUMMARY FORM
Substituted Loans | Principal Balance | Purchase Price |
