Exhibit 99.2
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SALE AGREEMENT MASTER SECURITIZATION TERMS NUMBER 1000
between
SLM EDUCATION CREDIT MANAGEMENT CORPORATION,
as Seller
and
SLM EDUCATION CREDIT FUNDING LLC,
as Purchaser
Dated as of October 9, 2003
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TABLE OF CONTENTS
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ARTICLE I
TERMS
Section 1.01. Terms ..................................................... 1
ARTICLE II
DEFINITIONS
Section 2.01. Definitions ............................................... 1
ARTICLE III
SALE AND PURCHASE
Section 3.01. Consummation of Sale and Purchase ......................... 4
Section 3.02. Settlement of the Initial Payment ......................... 4
Section 3.03. Special Programs .......................................... 4
ARTICLE IV
CONDITIONS PRECEDENT TO SALE AND PURCHASE
Section 4.01. Activities Prior to the Sale .............................. 4
Section 4.02. Continued Servicing ....................................... 4
Section 4.03. Xxxx of Sale/Loan Transmittal Summary Form ................ 4
Section 4.04. Endorsement ............................................... 5
Section 4.05. Officer's Certificate ..................................... 5
Section 4.06. Reserved .................................................. 5
Section 4.07. Power of Attorney ......................................... 5
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLER
Section 5.01. General ................................................... 5
Section 5.02. Particular ................................................ 5
ARTICLE VI
PURCHASE OF TRUST STUDENT LOANS; REIMBURSEMENT
Section 6.01. Purchase of Trust Student Loans; Reimbursement ............ 7
Section 6.02. Substitution .............................................. 8
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ARTICLE VII
OBLIGATION TO REMIT SUBSEQUENT PAYMENTS AND FORWARD
COMMUNICATIONS
Section 7.01. Obligation to Remit Subsequent Payments .................. 8
Section 7.02. Forward Communications ................................... 9
ARTICLE VIII
CONTINUING OBLIGATION OF SELLER
Section 8.01. Continuing Obligation of Seller .......................... 9
ARTICLE IX
LIABILITY OF SELLER; INDEMNITIES
Section 9.01. Liability of Seller; Indemnities ......................... 9
ARTICLE X
MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS OF
SELLER
Section 10.01. Merger of Consolidation of, or Assumption of the
Obligations of Seller .................................... 10
ARTICLE XI
LIMITATION ON LIABILITY OF SELLER AND OTHERS
Section 11.01. Limitation on Liability of Seller and Others ............. 11
ARTICLE XII
EXPENSES
Section 12.01. Expenses ................................................. 11
ARTICLE XIII
SURVIVAL OF COVENANTS/SUPERSESSION
Section 13.01. Survival of Covenants/Suppression ........................ 12
ARTICLE XIV
COMMUNICATION AND NOTICE REQUIREMENTS
Section 14.01. Communication and Notice Requirements .................... 12
ARTICLE XV
FORM OF INSTRUMENTS
Section 15.01. Form of Instruments ...................................... 12
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ARTICLE XVI
AMENDMENT
Section 16.01. Amendment ................................................ 13
ARTICLE XVII
NONPETITION COVENANTS
Section 17.01. Nonpetition Covenants .................................... 14
ARTICLE XVIII
ASSIGNMENT
Section 18.01. Assignment ............................................... 14
ARTICLE XIX
GOVERNING LAW
Section 19.01. Governing Law ........................................... 14
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SALE AGREEMENT MASTER SECURITIZATION TERMS NUMBER 1000
These Sale Agreement Master Securitization Terms Number 1000 ("Master
Sale Terms"), dated as of October 9, 2003, between SLM Education Credit
Management Corporation, in its capacity as seller (in such capacity, the
"Seller"), and SLM Education Credit Funding LLC, as purchaser (the "Purchaser"),
shall be effective upon execution by the parties hereto.
WHEREAS, the Seller is the owner of certain Student Loans; and
WHEREAS, the Seller may desire to sell its interest in such loans from
time to time and Purchaser may desire to purchase such loans from Seller.
NOW, THEREFORE, in connection with the mutual promises contained
herein, the parties hereto agree as follows:
ARTICLE I
TERMS
Section 1.01. Terms. These Master Sale Terms establish the terms under
which Seller may sell and Purchaser may purchase the Loans (and all obligations
of the Borrowers thereunder) specified on each Sale Agreement (each, a "Sale
Agreement") as the parties may execute from time to time pursuant to these
Master Sale Terms. Each such Sale Agreement shall be substantially in the form
of Attachment A hereto, incorporating by reference the terms of these Master
Sale Terms, and shall be a separate agreement between the Seller and the
Purchaser with respect to the Loans covered by the terms of such Sale Agreement
for all purposes. If the terms of a Sale Agreement conflict with the terms of
these Master Sale Terms, the terms of such Sale Agreement shall supersede and
govern.
ARTICLE II
DEFINITIONS
Section 2.01. Definitions. Capitalized terms used but not otherwise
defined herein shall have the definitions set forth in Appendix A hereto.
For purposes hereof:
(a) "Xxxx of Sale" means that document executed by an authorized
officer of the Seller which shall set forth the Loans offered by the Seller and
accepted for purchase by the Purchaser and which shall sell, assign and convey
to the Purchaser and its assignees all right, title and interest of the Seller
in the Loans listed on the Xxxx of Sale and will certify that the
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representations and warranties made by the Seller pursuant to Section 5.02 of
these Master Sale Terms are true and correct.
(b) "Borrower" means the obligor on a Loan.
(c) [Reserved].
(d) "Cutoff Date" means August 18, 2003, and with respect to subsequent
sales hereunder, a date agreed to by Seller and Purchaser to use in determining
the Principal Balance and accrued interest to be capitalized for purposes of
completing the Loan Transmittal Summary Form.
(e) "Delinquent" means the period where any payment of principal or
interest due on the Loan is overdue (after giving effect to all grace,
forbearance and deferment periods).
(f) "Eligible Loan" means a Loan offered for sale by Seller under the Sale
Agreement which as of the Cutoff Date is current or no more Delinquent than
permitted under the Sale Agreement in payment of principal or interest and which
meets the following criteria as of the effective date of the Xxxx of Sale:
(i) is a Student Loan;
(ii) is owned by Seller and is fully disbursed;
(iii) bears interest at a stated rate of not more than the maximum
rate permitted under applicable law;
(iv) is supported by the following documentation:
(A) for each Loan:
(1) loan application, and any supplement thereto,
(2) original promissory note and any addendum thereto or
the electronic records therefor,
(3) any other document and/or record which Purchaser may
be required to retain pursuant to the Program under
which the Loan was originated and
(B) for each Loan, if applicable:
(1) payment history (or similar documentation) including
(i) an indication of the Principal Balance and the
date through which interest has been paid, each as
of the Cutoff Date and (ii) an accounting of the
allocation of all payments by Borrower or on
Borrower's behalf to principal and interest on the
Loan,
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(2) documentation which supports periods of current or
past deferment or past forbearance,
(3) 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,
(4) evidence of all requests for skip-tracing assistance
and current address of Borrower, if located,
(5) evidence of requests for pre-claims assistance, and
evidence that the Borrower's school(s) has/have been
notified, and
(6) a record of any event resulting in a change to or
confirmation of any data in the Loan file.
(g) "Excess Distribution Certificate" means the certificate, substantially
in the form of Exhibit A to the Trust Agreement.
(h) "Initial Payment" means the dollar amount specified in the applicable
Sale Agreement.
(i) "Loan" means the Note or Notes offered for sale pursuant to the Sale
Agreement and related documentation together with any guaranties and other
rights relating thereto.
(j) "Loan Transmittal Summary Forms" means the forms provided to Seller by
Purchaser and completed by Seller which list, by Borrower, the Loans subject to
the Xxxx of Sale and the outstanding Principal Balance and accrued interest
thereof as of the Cutoff Date.
(k) "Note" means the promissory note of the Borrower and any amendment
thereto evidencing the Borrower's obligation.
(l) "Principal Balance" means the outstanding principal amount of the Loan,
plus accrued interest to be capitalized (if any).
(m) "Purchase Price" means the Initial Payment and the Excess Distribution
Certificate.
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ARTICLE III
SALE AND PURCHASE
Section 3.01. Consummation of Sale and Purchase. The sale and purchase of
Eligible Loans pursuant to a Sale Agreement shall be consummated upon
Purchaser's receipt from the Seller of the Xxxx of Sale and the payment by
Purchaser to Seller of the Initial Payment, and when consummated such sale and
purchase shall be effective as of the date of the Xxxx of Sale. Seller and
Purchaser shall use their best efforts to perform promptly their respective
obligations pursuant to such Sale Agreement.
Section 3.02. Settlement of the Initial Payment. Purchaser on the date of
the Xxxx of Sale shall pay Seller the Initial Payment by wire transfer in
immediately available funds to the account specified by Seller.
Section 3.03. Special Programs. In consideration of the sale of the
Eligible Loans under these Master Sale Terms and each Sale Agreement, Purchaser
agrees to cause the Servicer to offer borrowers of Trust Student Loans all
special programs whether or not in existence as of the date of any Sale
Agreement generally offered to the obligors of comparable loans owned by Xxxxxx
Mae subject to the terms and conditions of Section 3.12 of the Servicing
Agreement. The Seller is selling the Trust Student Loans to the Purchaser
without regard to the effect of the special programs. The Seller shall remit to
the Purchaser any amounts by which payments on the Trust Student Loans are
reduced by the special payments as set forth in Section 3.12 of the Servicing
Agreement.
ARTICLE IV
CONDITIONS PRECEDENT TO SALE AND PURCHASE
Section 4.01. Activities Prior to the Sale. Following the execution of a
Sale Agreement, Seller shall provide any assistance requested by Purchaser in
determining that all required documentation on the Loans is present and correct.
Section 4.02. Continued Servicing. Seller shall service, or cause to be
serviced, all Loans until the date of the Xxxx of Sale.
Section 4.03. Xxxx of Sale/Loan Transmittal Summary Form. Seller shall
deliver to Purchaser:
(a) A Xxxx of Sale executed by an authorized officer of the Seller
covering Loans offered by the Seller and accepted by Purchaser as set forth
thereon, selling, assigning and conveying to the Purchaser and its assignees all
right, title and interest of the Seller, in each of the Loans (excluding any and
all surety bonds relating to the Loans and including any Back-End Fees relating
to the Loans), and stating that the representations and warranties made by
Seller in Article V of these Master Sale Terms are true and correct on and as of
the date of the Xxxx of Sale; and
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(b) 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.
Section 4.04. Endorsement. The Seller shall provide a blanket endorsement
transferring the entire interest of the Seller in the Loans to the Trustee for
the benefit of the Purchaser with the form of endorsement provided for in the
Sale Agreement.
At the direction of and in such form as Purchaser may designate, the Seller
also agrees to individually endorse any Eligible Loan as Purchaser may request
from time to time.
Section 4.05. Officer's Certificate. Seller shall furnish to Purchaser,
with each Xxxx of Sale provided in connection with each sale of Loans pursuant
to these Master Sale Terms, an Officer's Certificate, dated as of the date of
such Xxxx of Sale.
Section 4.06. Reserved.
Section 4.07. Power of Attorney. Seller hereby grants to the Trustee on
behalf of the Purchaser 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 the Seller any Eligible Loan to evidence
the transfer of such Eligible Loan to the Trustee on behalf of the Purchaser and
to transfer or to cause to be transferred physical possession of any Note from
Xxxxxx Xxx or the Servicer to the Trustee or the Indenture Trustee or any other
custodian on behalf of either of them.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SELLER
Section 5.01. General. Seller represents and warrants to Purchaser that as
of the date of each Sale Agreement and Xxxx of Sale;
(a) The Seller is duly organized and existing under the laws of the State
of Delaware; and
(b) The Seller has all requisite power and authority to enter into and to
perform the terms of these Master Sale Terms and each Sale Agreement.
Section 5.02. Particular. Seller represents and warrants to Purchaser as to
the Loans purchased by Purchaser under each Sale Agreement and each Xxxx of Sale
executed pursuant to these Master Sale Terms:
(a) Seller has good and marketable title to, and is the sole owner of, the
Loans, free and clear of all security interests, liens, charges, claims,
offsets, defenses, counterclaims or
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encumbrances of any nature and no right of rescission, offsets, defenses, or
counterclaims have been asserted or threatened with respect to the Loans;
(b) This Agreement creates a valid and continuing security interest (as
defined in the applicable UCC) in the Loans in favor of the Purchaser, 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 the Seller;
(c) The Loans constitute "instruments" within the meaning of the applicable
UCC;
(d) The Loans are Eligible Loans and the description of the Loans set forth
in the Sale Agreement and the Loan Transmittal Summary Form is true and correct;
(e) The Seller is authorized to sell, assign, transfer and repurchase the
Loans; and the sale, assignment and transfer of such Loans is or, in the case of
a Loan repurchased by the Seller, will be made pursuant to and consistent with
the laws and regulations under which the Seller operates, 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 the Seller is a party or by which the Seller 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;
(f) The 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);
(g) No consents and approvals are required by the terms of the Loans to the
sale of the Loans hereunder to the Seller;
(h) Each Loan has been duly made and serviced in accordance with the
guidelines of one of the Programs under which the Loan was originated;
(i) Any payments on the Loans received by the Seller which have been
allocated to reduction of principal and interest on such Loans have been
allocated on a simple interest basis; the information with respect to the Loans
as of the Cutoff Date as stated on the Loan Transmittal Summary Form is true and
correct;
(j) Due diligence and reasonable care have been exercised in the making,
administering, servicing and collecting of the Loans;
(k) Each Loan has been duly made and serviced in accordance with the
provisions of all applicable Federal and state laws;
(l) No Loan is more than sixty (60) days Delinquent as of the Cutoff Date
and no default, breach, violation or event permitting acceleration under the
terms of any Loan has arisen; and neither the Seller nor any predecessor holder
of any Loan has waived any of the foregoing other than as permitted by the Basic
Documents;
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(m) It is the intention of Seller and the Purchaser, and the Seller hereby
warrants, that the transfer and assignment herein contemplated constitute a
valid sale of the Loans from Seller to the Purchaser and that the beneficial
interest in and title to such Loans not be part of the Seller's estate in the
event of the bankruptcy of the Seller or the appointment of a receiver with
respect to Seller;
(n) The Seller has caused or will have caused, within ten days, 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 Trustee hereunder;
(o) There is only one original executed copy of the promissory note
evidencing each Loan or the electronic records evidencing the same. The Seller
has in its possession a copy of the endorsement and Loan Transmittal Summary
Form identifying the Notes that constitute or evidence the Loans. The Notes that
constitute or evidence the Loans do not have any marks or notations indicating
that they have been pledged, assigned or otherwise conveyed to any Person other
than the Trustee;
(p) Other than the security interest granted to the Purchaser pursuant to
this Agreement, the Seller has not pledged, assigned, sold, granted a security
interest in, or otherwise conveyed any of the Loans. The Seller has not
authorized the filing of and is not aware of any financing statements against
the Seller that include a description of collateral covering the Loans other
than any financing statement relating to the security interest granted to the
Purchaser hereunder or that has been terminated or released. The Seller is not
aware of any judgment or tax lien filings against the Seller; and
(q) No Borrower of any Loan as of the Cutoff Date is noted in the related
Loan File as being currently involved in a bankruptcy proceeding.
ARTICLE VI
PURCHASE OF TRUST STUDENT LOANS; REIMBURSEMENT
Section 6.01. Purchase of Trust Student Loans; Reimbursement. Each party to
this Agreement shall give notice to the other such parties and to the Servicer,
the Administrator and Xxxxxx Mae promptly, in writing, upon the discovery of any
breach of Seller's representations and warranties made pursuant to Article V
hereof which has a materially adverse effect on the interest of the Purchaser in
any Trust Student Loan. In the event of such a material breach, Seller shall
cure or repurchase any affected Trust Student Loan not later than 270 days
following the date of discovery of such material breach. The Seller shall also
remit as provided in Section 2.06 of the Administration Agreement on the date of
purchase of any Trust Student Loan pursuant to this Article VI an amount equal
to all interest amounts with respect to such Trust Student Loan. In
consideration of the purchase of any such Trust Student Loan pursuant to this
Article VI, the Seller shall remit the Purchase Amount in the manner specified
in Section 2.06 of the Administration Agreement.
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Section 6.02. Substitution.
In lieu of repurchasing Trust Student Loans pursuant to this Article VI,
the Seller 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:
(i) status (i.e., in-school, grace, deferment, forbearance or
repayment);
(ii) Program type (i.e., Med Loans, Law Loans, MBA Loans or Signature
Loans);
(iii) school type;
(iv) total return;
(v) principal balance; and
(vi) 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 Article VI, the
Seller shall make a reasonable determination that the Eligible Loans to be
substituted will not have a material adverse effect on the Noteholders.
In the event that Seller elects to substitute Eligible Loans pursuant to
this Article VI, the Seller 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.
The Seller shall also remit to the Administrator an amount equal to all interest
amounts with respect to the Trust Student Loans in the manner provided in
Section 2.06 of the Administration Agreement. The sole remedy of the Purchaser,
the Trustee, the Noteholders and the Certificateholders with respect to a breach
by the Seller pursuant to Article V hereof shall be to require the Seller to
purchase Trust Student Loans, to reimburse the Purchaser as provided above or to
substitute Student Loans pursuant to this Article VI. 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 Article VI.
ARTICLE VII
OBLIGATION TO REMIT SUBSEQUENT PAYMENTS
AND FORWARD COMMUNICATIONS
Section 7.01. Obligation to Remit Subsequent Payments. Any payment received
by Seller with respect to amounts accrued after the Date of the Xxxx of Sale for
any Loan sold to Purchaser, which payment is not reflected in the Loan
Transmittal Summary Form, shall be
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received by Seller in trust for the account of Purchaser and the Seller hereby
disclaims any title to or interest in any such amounts. Within two (2) business
days following the date of receipt, Seller shall remit to Purchaser an amount
equal to any such payments along with a listing on a form provided by Purchaser
identifying the Loans with respect to which such payments were made, the amount
of each such payment and the date each such payment was received.
Section 7.02. Forward Communications. Any written communication received at
any time by Seller with respect to any Loan subject to any Sale Agreement shall
be transmitted by Seller to 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.
ARTICLE VIII
CONTINUING OBLIGATION OF SELLER
Section 8.01. Continuing Obligation of Seller. The Seller shall provide all
reasonable assistance necessary for Purchaser to resolve account problems raised
by any Borrower provided such account problems are attributable to or are
alleged to be attributable to (a) an event occurring during the period Seller
owned the Loan, or (b) a payment made or alleged to have been made to Seller.
Further, the Seller agrees to execute any financing statements at the request of
the Purchaser in order to reflect the Purchaser's interest in the Loans.
ARTICLE IX
LIABILITY OF SELLER; INDEMNITIES
Section 9.01. Liability of Seller; Indemnities. The Seller shall be liable
in accordance herewith only to the extent of the obligations specifically
undertaken by the Seller under this Sale Agreement.
(a) The Seller shall indemnify, defend and hold harmless the Purchaser and
the 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 Trustee), including any sales, gross receipts, general corporation, tangible
and intangible personal property, privilege or license taxes and costs and
expenses in defending against the same.
(b) The Seller shall indemnify, defend and hold harmless the Purchaser and
the Trustee in its individual capacity and their officers, directors, employees
and agents of the Purchaser and the Trustee from and against any and all costs,
expenses, losses, claims, damages and liabilities arising out of, or imposed
upon such Person through, the Seller's willful misfeasance, bad faith or gross
negligence in the performance of its duties under the Sale
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Agreement, or by reason of reckless disregard of its obligations and duties
under the Sale Agreement.
(c) The Seller shall be liable as primary obligor for, and shall indemnify,
defend and hold harmless the 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 the Sale Agreement, 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 Trustee hereunder,
except to the extent that such cost, expense, loss, claim, damage, obligation or
liability: (i) shall be due to the willful misfeasance, bad faith or negligence
(except for errors in judgment) of the Trustee, (ii) shall arise from any breach
by the Trustee of its covenants in its individual capacity under any of the
Basic Documents; or (iii) shall arise from the breach by the Trustee of any of
its representations or warranties in its individual capacity set forth in these
Master Sale Terms or any Sale Agreement. In the event of any claim, action or
proceeding for which indemnity will be sought pursuant to this paragraph, the
Trustee's choice of legal counsel shall be subject to the approval of the
Seller, which approval shall not be unreasonably withheld.
Indemnification under this Section shall survive the resignation or removal
of the Trustee and the termination of these Master Sale Terms and shall include
reasonable fees and expenses of counsel and expenses of litigation. If the
Seller shall have made any indemnity payments pursuant to this Section and the
Person to or for the benefit of whom such payments are made thereafter shall
collect any of such amounts from others, such Person shall promptly repay such
amounts to the Seller, without interest.
ARTICLE X
MERGER OR CONSOLIDATION OF, OR ASSUMPTION
OF THE OBLIGATIONS OF SELLER
Section 10.01. Merger or Consolidation of, or Assumption of the Obligations
of Seller. Any Person (a) into which the Seller may be merged or consolidated,
(b) which may result from any merger or consolidation to which the Seller shall
be a party or (c) which may succeed to the properties and assets of the Seller
substantially as a whole, shall be the successor to the Seller without the
execution or filing of any document or any further act by any of the parties to
these Master Sale Terms; provided, however, that the Seller 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 the
Seller, executes an agreement of assumption to perform every obligation of the
Seller under these Master Sale Terms, (ii) immediately after giving effect to
such transaction, no representation or warranty made pursuant to Section 5
herein shall have been breached, (iii) the surviving Person, if other than the
Seller, shall have delivered to the 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 Sale Terms relating
to such transaction have been complied with, and that the Rating Agency
Condition shall have been satisfied with
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respect to such transaction, (iv) if the Seller is not the surviving entity,
such transaction will not result in a material adverse Federal or state tax
consequence to the Purchaser or the Noteholders or the Certificateholders and
(v) if the Seller is not the surviving entity, the Seller shall have delivered
to the 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 Purchaser and the Trustee,
respectively, in the 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.
ARTICLE XI
LIMITATION ON LIABILITY OF SELLER AND OTHERS
Section 11.01. Limitation on Liability of Seller and Others. The Seller 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 the Seller's obligations
under Article V herein). The Seller 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 Sale Terms or any Sale 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 Seller will
constitute the sole remedy available to Purchaser for uncured breaches;
provided, however, that the information with respect to the Loans listed on the
Xxxx of Sale may be adjusted in the ordinary course of business subsequent to
the date of the Xxxx of Sale and to the extent that the aggregate Principal
Balance listed on the Xxxx of Sale is less than the aggregate Principal Balance
stated on the Xxxx of Sale, Seller shall remit such amount to the Trustee for
the benefit of the Purchaser. Such reconciliation payment shall be made from
time to time but no less frequently than semi-annually.
ARTICLE XII
EXPENSES
Section 12.01. Expenses. Except as otherwise provided herein, each party to
these Master Sale Terms or any Sale Agreement shall pay its own expense incurred
in connection with the preparation, execution and delivery of these Master Sale
Terms or any Sale Agreement and the transactions contemplated herein or therein.
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ARTICLE XIII
SURVIVAL OF COVENANTS/SUPERSESSION
Section 13.01. Survival of Covenants/Suppression. All covenants,
agreements, representations and warranties made herein and in or pursuant to any
Sale Agreements executed pursuant to these Master Sale Terms shall survive the
consummation of the purchase of the Loans provided for in each Sale Agreement.
All covenants, agreements, representations and warranties made or furnished
pursuant hereto by or for the benefit of Seller shall bind and inure to the
benefit of any successors or assigns of Purchaser and shall survive with respect
to each Loan. Each Sale Agreement supersedes all previous agreements and
understandings between Purchaser and Seller with respect to the subject matter
thereof. A Sale 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 Purchaser of
any covenant, agreement, representation or warranty required to be made or
furnished by Seller or the waiver by Purchaser of any provision herein contained
or contained in any Sale Agreement shall not be deemed to be a waiver of any
breach of any other covenant, agreement, representation, warranty or provision
herein contained or contained in any Sale Agreement, 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 Sale Agreement, be construed to lessen the right of
Purchaser to insist upon the performance by Seller in strict accordance with
said terms.
ARTICLE XIV
COMMUNICATION AND NOTICE REQUIREMENTS
Section 14.01. Communication and Notice Requirements. All communications,
notices and approvals provided for hereunder shall be in writing and mailed or
delivered to Seller or Purchaser, as the case may be, addressed as set forth in
the Sale 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 Seller or Purchaser by appropriately addressed registered mail, shall
be deemed to have been given on the day following the date of such mailing.
ARTICLE XV
FORM OF INSTRUMENTS
Section 15.01. Form of Instruments. All instruments and documents delivered
in connection with these Master Sale Terms and any Sale Agreement, and all
proceedings to be taken in connection with these Master Sale Terms and any Sale
Agreement and the transactions contemplated herein and therein, shall be in a
form as set forth in the attachments hereto, and Purchaser shall have received
copies of such documents as it or its counsel shall reasonably
12
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.
ARTICLE XVI
AMENDMENT
Section 16.01. Amendment. These Master Sale Terms and any Sale Agreement
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 of such Master Sale Terms and Sale
Agreements 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 related Indenture Trustees, materially and adversely affect the interest of
any such Noteholder.
In addition, these Master Sale Terms and any Sale Agreement may also be
amended from time to time by the Seller and the Purchaser, 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 of these Master Sale Terms or any Sale
Agreement 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 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, five Business Days prior thereto), the Trustee
shall furnish written notification of the substance of such amendment or consent
to the Indenture Trustee, and each of the Rating Agencies.
It shall not be necessary for the consent of Noteholders pursuant to this
Section 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 Sale Terms, the
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 Sale
Agreement and the Opinion of Counsel referred to in Section 7.01(i) of the
Administration Agreement. The Trustee may, but shall not be obligated to, enter
into any such amendment which affects the Trustee's own rights, duties or
immunities under this Agreement or otherwise.
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ARTICLE XVII
NONPETITION COVENANTS
Section 17.01. Nonpetition Covenants. Notwithstanding any prior termination
of these Master Sale Terms, the Seller shall not acquiesce, petition or
otherwise invoke or cause the Purchaser to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Purchaser under any Federal or state bankruptcy, insolvency or similar law
or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator
or other similar official of the Purchaser or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the
Purchaser.
Notwithstanding any prior termination of these Master Sale Terms, the
Purchaser shall not acquiesce, petition or otherwise invoke or cause the Seller
to invoke the process of commencing or sustaining a case against the Seller
under any federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Seller or any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Purchaser.
ARTICLE XVIII
ASSIGNMENT
Section 18.01. Assignment. Seller hereby assigns its entire right, title
and interest as purchaser under this Agreement and any Sale Agreement thereunder
to the Purchaser as of the date hereof and acknowledges that the Purchaser will
assign the same, together with the right, title and interest of the Purchaser
and the Trustee hereunder, to the Indenture Trustee under the Indenture.
ARTICLE XIX
GOVERNING LAW
Section 19.01. Governing Law. THESE MASTER SALE TERMS AND ANY SALE
AGREEMENTS 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.
14
IN WITNESS WHEREOF, the parties hereto have caused this Sale Agreement to
be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
SLM EDUCATION CREDIT MANAGEMENT CORPORATION,
as Seller
By: /s/ J. XXXXX XXXXXX
-----------------------------------------
Name: J. Xxxxx Xxxxxx
Title: Vice President
SLM EDUCATION CREDIT FUNDING LLC,
as Purchaser
By: /s/ J. XXXXX XXXXXX
-----------------------------------------
Name: J. Xxxxx Xxxxxx
Title: Vice President
15
Attachment A
SALE AGREEMENT
Dated as of October 9, 2003
SALE AGREEMENT NUMBER 1
SLM Education Credit Management Corporation (the "Seller") hereby offers
for sale to SLM Education Credit Funding LLC (the "Purchaser") the entire right,
title and interest of the Seller in the Loans described in the Xxxx of Sale and
Loan Transmittal Summary Form incorporated herein and, to the extent indicated
below, the Purchaser accepts the Seller's offer. In order to qualify as Eligible
Loans, no payment of principal or interest shall be more than sixty (60) days
Delinquent as of the Cutoff Date, which date shall be August 18, 2003.
TERMS, CONDITIONS AND COVENANTS
In consideration of the Purchase Price, the Seller hereby sells to the
Purchaser the entire right, title and interest of the Seller in the Loans
accepted for purchase, subject to all the terms and conditions of the Sale
Agreement Master Securitization Terms Number 1000 ("Master Sale Terms") and
amendments, each incorporated herein by reference, between the Seller and the
Purchaser. The Initial Payment of the Loans shall equal $1,234,345,457 (equal to
$1,342,237,933 (representing the sale price of the Notes less underwriters'
commissions) less $3,124,915 (representing the Reserve Account Initial Deposit)
less $102,811,061 (representing the Cash Capitalization Account Initial Deposit)
less $1,956,500 (representing the upfront payment of the Interest Rate Cap
Agreement)) and the Excess Distribution Certificate.
This document shall constitute a Sale Agreement as referred to in the
Master Sale Terms and, except as modified herein, each term used herein shall
have the same meaning as in the Master Sale Terms. All references in the Master
Sale Terms to Loans or Eligible Loans shall be deemed to refer to the Loans
governed by this Sale Agreement. Seller hereby makes, as of the date hereof, all
the representations and warranties contained in the Master Sale Terms and makes
such representations and warranties with respect to the Loans governed by this
Sale Agreement.
The parties hereto intend that the transfer of Loans described in the Xxxx
of Sale and Loan Transmittal Summary Form be, and be construed as, a valid sale
of such Loans. However, in the event that notwithstanding the intentions of the
parties, such transfer is deemed to be a transfer for security, then the Seller
hereby grants to the Purchaser a first priority security interest in and to all
Loans described in the Xxxx of Sale and Loan Transmittal Summary Form to secure
a loan in an amount equal to the Purchase Price of such Loans.
1
IN WITNESS WHEREOF, the parties hereto have caused this Sale Agreement
Number 1 to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
SLM EDUCATION CREDIT MANAGEMENT CORPORATION,
as Seller
By: /s/ J. XXXXX XXXXXX
-----------------------------------------
Name: J. Xxxxx Xxxxxx
Title: Vice President
SLM EDUCATION CREDIT FUNDING LLC,
as Purchaser
By: /s/ J. XXXXX XXXXXX
-----------------------------------------
Name: J. Xxxxx Xxxxxx
Title: Vice President
2
SALE AGREEMENT NUMBER 1
BLANKET ENDORSEMENT DATED OCTOBER 0, 0000
XXX Education Credit Management Corporation (the "Seller"), by execution of
this instrument, hereby endorses the attached promissory note which is one of
the promissory notes (the "Notes") described in the Xxxx of Sale executed by the
Seller in favor SLM Education Credit Funding LLC (the "Purchaser"). This
endorsement is in blank, unrestricted form and without recourse except as
provided in Article VI of the Master Sale Terms referred to in the Sale
Agreement between the Seller and the Purchaser which covers this 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 Seller agrees to individually endorse
each Note in the form provided by Purchaser as Purchaser may from time to time
require.
THE SALE AND PURCHASE OF THE LOANS SHALL BE SUBJECT TO THE TERMS, CONDITIONS AND
COVENANTS, INCLUDING THE BLANKET ENDORSEMENT, AS SET FORTH IN THE SALE AGREEMENT
MASTER LOAN SECURITIZATION TERMS 1000. BY EXECUTION HEREOF, THE SELLER
ACKNOWLEDGES THAT THE SELLER HAS READ, UNDERSTANDS AND AGREES TO BE BOUND BY ALL
TERMS, CONDITIONS AND COVENANTS OF THE SALE AGREEMENT (" SALE AGREEMENT"). THE
SALE AND PURCHASE SHALL BE CONSUMMATED UPON PURCHASER'S PAYMENT TO SELLER OF THE
INITIAL PAYMENT AS DEFINED IN THE MASTER SALE TERMS AND, UNLESS OTHERWISE AGREED
BY SELLER AND PURCHASER, SHALL BE EFFECTIVE AS OF THE DATE OF THE XXXX OF SALE.
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.
SLM EDUCATION CREDIT MANAGEMENT CORPORATION,
as Seller
By: /s/ J. XXXXX XXXXXX
---------------------------------------------
Name: J. Xxxxx Xxxxxx
Title: Vice President
SLM EDUCATION CREDIT FUNDING LLC,
as Purchaser
By: /s/ J. XXXXX XXXXXX
---------------------------------------------
Name: J. Xxxxx Xxxxxx
Title: Vice President
2
XXXX OF SALE DATED OCTOBER 9, 2003
The undersigned SLM Education Credit Management Corporation (the "Seller")
for value received and pursuant to the terms and conditions of Sale Agreement
Number 1 (the "Sale Agreement") between Seller and SLM Education Credit Funding
LLC (the "Purchaser") does hereby sell, assign and convey to the Purchaser and
its assignees all right, title and interest of, in the Loans (excluding any and
all surety bonds relating to the Loans and including any Back-End Fees relating
to the Loans) identified herein which the Purchaser has accepted for purchase.
The portfolio accepted for purchase by the Purchaser and the effective date of
sale and purchase are described below and the individual Loans are listed on the
Schedule A attached hereto.
The Seller hereby makes the representations and warranties set forth in
Article V of the Sale Agreement Master Securitization Terms Number 1000
incorporated by reference in the Sale Agreement.
LISTING OF LOANS ON FOLLOWING PAGE
1
Table to be provided soon
2
ADDITIONAL LOAN CRITERIA
.. Not in claims status, not previously rejected
.. Not in litigation
.. Last disbursement is greater than 120 days from cutoff date
.. Loan is not swap-pending
*Based upon Seller's estimated calculations, which may be adjusted upward or
downward based upon Purchaser's reconciliation.
**Includes interest to be capitalized.
3
IN WITNESS WHEREOF, the parties hereto have caused this Xxxx of Sale to
be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
SLM EDUCATION CREDIT MANAGEMENT CORPORATION,
as Seller
By: /s/ J. XXXXX XXXXXX
------------------------------------------
Name: J. Xxxxx Xxxxxx
Title: Vice President
SLM EDUCATION CREDIT FUNDING LLC,
as Purchaser
By: /s/ J. XXXXX XXXXXX
------------------------------------------
Name: J. Xxxxx Xxxxxx
Title: Vice President
4
