SALE AGREEMENT MASTER SECURITIZATION TERMS NUMBER 1000
Exhibit 99.6
SALE AGREEMENT MASTER SECURITIZATION TERMS NUMBER 1000
These Sale Agreement Master Securitization Terms Number 1000 (“Master Sale Terms”) dated as of
April 21, 2009 among SLM Funding LLC (in such capacity, the “Seller”), SLM Student Loan Trust
2009-2 (the “Purchaser”), and The Bank of New York Mellon Trust Company, National Association, not
in its individual capacity but solely as Interim Eligible Lender Trustee (the “Interim Eligible
Lender Trustee”) for the benefit of the Seller under the Funding Interim Trust Agreement dated as
of April 21, 2009 between the Seller and the Interim Eligible Lender Trustee, and The Bank of New
York Mellon Trust Company, National Association, not in its individual capacity but solely as
Eligible Lender Trustee on behalf of the Purchaser (the “Eligible Lender Trustee”), shall be
effective upon execution by the parties hereto. References to the Seller herein mean the Interim
Eligible Lender Trustee, and references to the Purchaser mean the Eligible Lender Trustee, for all
purposes involving the holding or transferring of legal title to the Trust Student Loans.
WHEREAS, the Seller is the owner of certain student loans guaranteed under the Higher
Education Act;
WHEREAS, legal title to such loans is vested in the Interim Eligible Lender Trustee, as
trustee for the benefit of the Seller as the sole beneficiary;
WHEREAS, the Seller may desire to sell its interest in such loans from time to time and the
Purchaser may desire to purchase such loans from the Seller;
WHEREAS, the Purchaser desires to purchase from the Seller the portfolio of Initial Loans;
WHEREAS, from time to time following the Closing Date until the end of the Supplemental
Purchase Period, the Seller may desire to sell Additional Loans and the Purchaser may purchase such
Additional Loans in accordance with these Master Sale Terms and the related Additional Sale
Agreement;
WHEREAS, from time to time, Seller may substitute loans in accordance with these Master Terms;
and
WHEREAS, the Eligible Lender Trustee is willing to hold legal title to, and serve as eligible
lender trustee with respect to, such loans for the benefit of the Purchaser.
NOW, THEREFORE, in connection with the mutual promises contained herein, the parties hereto
agree as follows:
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SECTION 1. TERMS
These Master Sale Terms establish the terms under which the Seller (and with respect to legal
title, the Interim Eligible Lender Trustee for the benefit of the Seller) may sell and the
Purchaser (and with respect to legal title, the Eligible Lender Trustee on behalf of the Purchaser)
may purchase the Loans (and all obligations of the Borrowers thereunder) specified in the
Initial Sale Agreement with respect to the Initial Loans or each Additional Sale Agreement with
respect to any Additional Loans or Substituted Loans as the parties may execute from time to time
pursuant to these Master Sale Terms. The Initial Sale Agreement and each Additional Sale
Agreement, as applicable, shall be substantially in the form of Attachment A and Attachment C
hereto, respectively, in each case incorporating by reference the terms of these Master Sale Terms,
and shall be a separate agreement among the Seller, the Purchaser, the Eligible Lender Trustee for
the benefit of the Purchaser, and the Interim Eligible Lender Trustee for the benefit of the Seller
with respect to the Loans covered by the terms of the Initial Sale Agreement or the related
Additional Sale Agreement, as applicable. If the terms of the Initial Sale Agreement or an
Additional Sale Agreement conflict with the terms of these Master Sale Terms, the terms of the
Initial Sale Agreement or the related Additional Sale Agreement, as applicable, shall supersede and
govern.
SECTION 2. DEFINITIONS
Capitalized terms used but not otherwise defined herein, including in the related Sale
Agreement and Xxxx of Sale, shall have the definitions set forth in Appendix A to the Indenture
dated as of April 21, 2009, among the Eligible Lender Trustee on behalf of the Trust, the Trust and
the Indenture Trustee, as may be amended or supplemented from time to time.
For purposes hereof:
(A) “Account” means all of the Eligible Loans hereunder of one (1) Borrower that are of the
same Loan type made under the identical subsection of the Higher Education Act and in the
same status.
(B) “Additional Xxxx of Sale” means each document, in the form of Attachment D hereto,
executed by an authorized officer of the Interim Eligible Lender Trustee for the benefit of
the Seller and the Eligible Lender Trustee for the benefit of the Purchaser which
shall: (i) set forth the list and certain terms of (a) Additional Loans offered by the
Seller and the Interim Eligible Lender Trustee for the benefit of the Seller and accepted
for purchase by the Eligible Lender Trustee for the benefit of the Purchaser, including the
Additional Loans Purchase Price for the Additional Loans being sold thereunder or (b)
Substituted Loans substituted by Seller, (ii) sell, assign and convey to the Eligible Lender
Trustee, for the benefit of the Purchaser and its assignees, all right, title and interest
of the Seller and the Interim Eligible Lender Trustee for the benefit of the Seller in the
Additional Loans or Substituted Loans, as applicable, listed on the related Additional Xxxx
of Sale and (iii) certify that the representations and warranties made by the Seller
pursuant to Sections 5(A) and (B) of these Master Sale Terms are true and correct.
(C) “Additional Loans” means the Eligible Loans evidenced by a Note or Notes sold from time
to time during the Supplemental Purchase Period pursuant to an Additional Sale Agreement and
related documentation, together with any guaranties and other rights relating thereto
including, without limitation, Interest Subsidy Payments and Special Allowance Payments.
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(D) “Additional Loans Purchase Price” means the dollar amount representing the aggregate
purchase price of the related Additional Loans as specified in the applicable Additional
Sale Agreement (which, with respect to any Additional Trust Student Loan purchased with
funds on deposit in the Supplemental Purchase Account, will be equal to 100% of the
aggregate principal balance of such Additional Trust Student Loan, plus accrued interest to
be capitalized).
(E) “Additional Sale Agreement” means each Additional Sale Agreement (including the related
Additional Xxxx of Sale, the related Blanket Endorsement and any attachments thereto),
substantially in the form of Attachment C hereto (of which these Master Sale Terms form a
part by reference, provided that in the event of a substitution, the form will be modified
accordingly), to be executed by the Seller and the Interim Eligible Lender Trustee (for the
benefit of the Seller), the Purchaser and the Eligible Lender Trustee (for the benefit of
the Purchaser) which certifies that the representations and warranties made by the Seller as
set forth in Sections 5(A) and (B) of these Master Sale Terms are true and correct as of the
related Purchase Date.
(F) “Xxxx of Sale” means the Initial Xxxx of Sale or an Additional Xxxx of Sale, as
applicable.
(G) “Bluemont Funding” means Bluemont Funding LLC.
(H) “Bluemont Funding Master Purchase Terms” means the Purchase Agreement Master
Securitization Terms Number 1000 dated April 21, 2009, among Bluemont Funding, as seller,
The Bank of New York Mellon Trust Company, National Association, as interim eligible lender
trustee for the benefit of Bluemont Funding, SLM Funding LLC, and the Interim Eligible
Lender Trustee for the benefit of the SLM Funding LLC.
(I) “Borrower” means the obligor on a Loan.
(J) “Consolidation Loan” means a Loan made pursuant to and in full compliance with Section
428C of the Higher Education Act.
(K) “Cutoff Date” means the Initial Cutoff Date, Statistical Cutoff Date or any Subsequent
Cutoff Date, as applicable.
(L) “Eligible Loan” means a Loan offered for sale or substituted by Seller under a Sale
Agreement which as of the Statistical Cutoff Date, in the case of the Initial Loans, or as
of the related Subsequent Cutoff Date, in the case of any Additional Loan or Substituted
Loan, is current or not more past due than permitted under such Sale Agreement in payment of
principal or interest and which meets the following criteria as of the Statistical Cutoff
Date, in the case of the Initial Loans, or as of the effective date of the related Xxxx of
Sale, in the case of any Additional Loan or Substituted Loan:
(i) is a Consolidation Loan;
(ii) is owned by the Seller and is fully disbursed;
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(iii) is guaranteed as to principal and interest by the applicable Guarantor to the
maximum extent permitted by the Higher Education Act for such Loan;
(iv) bears interest at a stated rate of not less than the maximum rate permitted
under the Higher Education Act for such Loan;
(v) is eligible for the payment of the quarterly special allowance at the full and
undiminished rate established under the formula set forth in the Higher Education
Act for such Loan;
(vi) if not yet in repayment status, is eligible for the payment of interest
benefits by the Secretary or, if not so eligible, is a Loan for which interest
either is billed quarterly to Borrower or deferred until commencement of the
repayment period, in which case such accrued interest is subject to capitalization
to the full extent permitted by the applicable Guarantor;
(vii) is current or no payment of principal or interest shall be more than 269 days
past due as of the Statistical Cutoff Date, in the case of the Initial Loans, or in
relation to any Additional Loan or Substituted Loan, the related Subsequent Cutoff
Date;
(viii) the last disbursement was before the Statistical Cutoff Date, in the case of
the Initial Loans, or before the related Subsequent Cutoff Date, in the case of any
Additional Loan or Substituted Loan;
(ix) is supported by the following documentation:
1. | loan application, and any
supplement thereto, |
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2. | original promissory note and any
addendum thereto (or a certified copy thereof if more than one
loan is represented by a single promissory note and all loans so
represented are not being sold) or the electronic records
evidencing the same, |
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3. | evidence of guarantee, |
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4. | any other document and/or record
which the Purchaser may be required to retain pursuant to the
Higher Education Act, |
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5. | if applicable, payment history
(or similar document) including (i) an indication of the
Principal Balance and the date through which interest has been
paid, each as of the Statistical Cutoff Date, in the case of the
Initial Loans, or, the related Subsequent Cutoff Date, in the
case of any Additional Loan or Substituted Loan and (ii) an
accounting of the allocation of all payments by the Borrower or
on the Borrower’s behalf to principal and interest on the Loan, |
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6. | if applicable, documentation
which supports periods of current or past deferment or past
forbearance, |
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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, |
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8. | if applicable, evidence of all
requests for skip-tracing assistance and current address of
Borrower, if located, |
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9. | if applicable, evidence of
requests for pre-claims assistance, and evidence that the
Borrower’s school(s) have been notified, and |
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10. | if applicable, a record of any
event resulting in a change to or confirmation of any data in
the related Trust Student Loan File. |
(M) “Excess Distribution Certificate” means the certificate, 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(i) and 2.9(f) of the Administration Agreement.
(N) “Initial Xxxx of Sale” means the document, in the form of Attachment B hereto, executed
by an authorized officer of the Interim Eligible Lender Trustee for the benefit of the
Seller and the Eligible Lender Trustee for the benefit of the Purchaser which shall (i) set
forth the applicable Initial Loans offered by the Seller and the Interim Eligible Lender
Trustee for the benefit of the Seller and accepted for purchase by the Eligible Lender
Trustee for the benefit of the Purchaser, (ii) sell, assign and convey to the Eligible
Lender Trustee for the benefit of the Purchaser and its assignees all rights, title and
interest of the Seller and the Interim Eligible Lender Trustee for the benefit of the Seller
in the Initial Loans listed on that Xxxx of Sale and (iii) certify that the representations
and warranties made by the Seller as set forth in Sections 5 (A) and (B) of these Master
Sale Terms are true and correct.
(O) “Initial Cutoff Date” means April 21, 2009.
(P) “Initial Loans” means the Eligible Loans evidenced by the Notes sold on the Closing Date
pursuant to the Initial Sale Agreement and related documentation, together with any
guaranties and other rights relating thereto including, without limitation, Interest Subsidy
Payments and Special Allowance Payments.
(Q) “Initial Purchase Price” means the dollar amount or other consideration specified as the
“Initial Purchase Price” in the applicable Sale Agreement.
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(R) “Initial Sale Agreement” means the Sale Agreement (including the related Blanket
Endorsement, Initial Xxxx of Sale and any attachments thereto) substantially in the form of
Attachment A hereto (of which these Master Sale Terms form a part by reference), to be
executed by the Seller, the Interim Eligible Lender Trustee for the benefit of the Seller,
the Purchaser and the Eligible Lender Trustee for the benefit of the Purchaser, which shall
certify that the representations and warranties made by the Seller as set forth in Sections
5 (A) and (B) of these Master Sale Terms are true and correct as of the Closing Date.
(S) “Loan” means an Initial Loan, Additional Loan or Substituted Loan, as applicable,
offered for sale and purchased, or substituted, pursuant to the related Sale Agreement.
(T) “Loan Transmittal Summary Forms” means the forms related to each Xxxx of Sale provided
to the Seller by the Purchaser and completed by the Seller which 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 related Cutoff Date.
(U) “Note” means the promissory note or notes of the Borrower and any amendment thereto
evidencing the Borrower’s obligation with regard to a student loan guaranteed under the
Higher Education Act or the electronic records evidencing the same.
(V) “Principal Balance” means the outstanding principal amount of the Loan, plus interest
expected to be capitalized (if any), less amounts which may not be insured (such as late
charges).
(W) “Purchase Date” means with respect to the Initial Loans, the Closing Date, and with
respect to any Additional Loans or Substituted Loans, the date of the related Additional
Xxxx of Sale.
(X) “Purchase Price” means the Initial Purchase Price or the Additional Loans Purchase
Price, as applicable.
(Y) “Purchased Loans” means, with respect to each Sale Agreement, the Loans offered for sale
and purchased or substituted pursuant to such Sale Agreement.
(Z) “Sale Agreement” means the Initial Sale Agreement or an Additional Sale Agreement, as
applicable.
(AA) “Secretary” means the United States Secretary of Education or any successor.
(BB) “SLM ECFC” means SLM Education Credit Finance Corporation.
(CC) “SLM ECFC Master Purchase Terms” means the Purchase Agreement Master Securitization
Terms Number 1000 dated April 21, 2009, among SLM ECFC, as seller, SLM Funding LLC and the
Interim Eligible Lender Trustee for the benefit of SLM Funding LLC.
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(DD) “Statistical Cutoff Date” means April 7, 2009.
(EE) “Subsequent Cutoff Date” means the date specified in the related Additional Sale
Agreement agreed to by the Seller and the Purchaser for the purposes of determining the
Principal Balance and accrued interest to be capitalized, as applicable, for purposes of
completing each related Loan Transmittal Summary Form.
(FF) “Subsidized Consolidation Loan” means a Loan for which the interest rate is governed by
Section 427A(a) or 427A(d) of the Higher Education Act.
(GG) “Substituted Loans” means the Eligible Loans evidenced by a Note or Notes substituted
by the Seller, pursuant to the terms of Section 6(B) hereof, from time to time as evidenced
by an Additional Sale Agreement and related documentation, together with any guarantees and
other rights relating thereto including, without limitation, Interest Subsidy Payments and
Special Allowance Payments. For all purposes hereunder, except with respect to Purchase
Price or as otherwise set forth herein, Substituted Loans shall be treated as Additional
Loans.
(HH) “Town Center Funding” means Town Center Funding LLC.
(II) “Town Center Master Purchase Terms” means the Purchase Agreement Master Securitization
Terms Number 1000 dated April 21, 2009, among Town Center Funding, as seller, The Bank of
New York Mellon Trust Company, National Association, as interim eligible lender trustee for
the benefit of Town Center Funding, SLM Funding LLC, and the Interim Eligible Lender Trustee
for the benefit of the SLM Funding LLC.
(JJ) “Town Hall Funding” means Town Hall Funding LLC.
(KK) “Town Hall Master Purchase Terms” means the Purchase Agreement Master Securitization
Terms Number 1000 dated April 21, 2009, among Town Hall Funding, as seller, The Bank of New
York Mellon Trust Company, National Association, as interim eligible lender trustee for the
benefit of Town Hall Funding, SLM Funding LLC, and the Interim Eligible Lender Trustee for
the benefit of the SLM Funding LLC.
(LL) “Trust Student Loan” means any student loan that is listed on the Schedule of Trust
Student Loans on the Closing Date, plus any Additional Loan, plus any Substituted Loan that
is permissibly substituted for a Trust Student Loan by the Depositor pursuant to Section
6(B) of this Sale Agreement or pursuant to Section 6(B) of an Additional Sale Agreement, or
by the Servicer pursuant to Section 3.5 of the Servicing Agreement, but shall not include
any Purchased Student Loan following receipt by or on behalf of the Trust of the Purchase
Amount with respect thereto or any Liquidated Student Loan following receipt by or on behalf
of the Trust of Liquidation Proceeds with respect thereto or following such Liquidated
Student Loan having otherwise been written off by the Servicer.
(MM) “Unsubsidized Consolidation Loan” means a Loan made pursuant to Section 428H of the
Higher Education Act.
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(NN) “VL Funding” means VL Funding LLC.
(OO) “VL Master Purchase Terms” means the Purchase Agreement Master Securitization Terms
Number 1000 dated April 21, 2009, among VL Funding, as seller, The Bank of New York Mellon
Trust Company, National Association, as interim eligible lender trustee for the benefit of
VL Funding, SLM Funding LLC, and the Interim Eligible Lender Trustee for the benefit of the
SLM Funding LLC.
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 Sale Agreement with
respect to the Initial Loans shall be consummated upon:
(i) the Purchaser’s receipt from the Seller and the Interim Eligible Lender
Trustee for the benefit of the Seller of the Initial Xxxx of Sale;
(ii) the payment by the Purchaser to the Seller of the Initial Purchase Price;
(iii) the issuance by the Trust of the Excess Distribution Certificate to the
Seller; and
(iv) receipt by the Purchaser of the amounts necessary to make the deposits to
the Trust Accounts on the Closing Date specified in the Initial Sale Agreement.
Upon consummation, such sale and purchase shall be effective as of the date of the Initial
Xxxx of Sale. The Seller and the Purchaser shall use their best efforts to perform promptly
their respective obligations pursuant to the Initial Sale Agreement with respect to each
Initial Loan.
(B) Settlement of the Initial Purchase Price
On the date of the Initial Xxxx of Sale, the Purchaser shall pay the Seller the Initial
Purchase Price by issuing the Notes to the Seller or its designee.
(C) Interest Subsidy and Special Allowance Payments and Rebate Fees
The Seller shall be entitled to all Interest Subsidy Payments and Special Allowance
Payments on each Initial Loan up to but not including the Initial Cutoff Date, and shall be
responsible for the payment of rebate fees, if any, applicable to the Initial Loans accruing
up to but not including the Initial Cutoff Date. The Purchaser and the Eligible Lender
Trustee, for the benefit of the Purchaser, 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.
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SECTION 3.2 SALE/PURCHASE OF ADDITIONAL LOANS AND SUBSTITUTION OF SUBSTITUTED LOANS
(A) Requirements Relating to Additional Loans
From time to time during the Supplemental Purchase Period, the Seller may, but shall
not be obligated to sell Eligible Loans to the Purchaser, and the Purchaser may (but only to
the extent that funds are available at such time in the Supplemental Purchase Account)
purchase such Additional Loans from the Seller at the related Additional Loans Purchase
Price set forth in the related Additional Sale Agreement. In addition, at any time the
Seller may transfer Substituted Loans to the Purchaser in satisfaction of any Loan
repurchase obligations hereunder. The sale and purchase (or substitution) of Additional
Loans (or Substituted Loans) pursuant to an Additional Sale Agreement shall be consummated
as set forth in this Section 3.2.
(B) Consummation of Sale and Purchase
During the Supplemental Purchase Period with respect to the Additional Loans (and
thereafter with respect to any Substituted Loans), the sale and purchase of Eligible Loans
pursuant to an Additional Sale Agreement shall be consummated upon (i) the Purchaser’s
receipt from the Seller of a fully executed copy of the related Additional Sale Agreement;
and (ii) the payment by the Purchaser to the Seller of the related Purchase Price. Upon
consummation, such sale and purchase shall be effective as of the date of the related
Additional Xxxx of Sale. The Seller and the Purchaser shall use their best efforts to
perform promptly their respective obligations pursuant to the related Additional Sale
Agreement with respect to each Additional Loan.
(C) Settlement of the Purchase Price
On the date of the related Additional Xxxx of Sale for an Additional Loan, the
Purchaser shall pay the Seller the related Purchase Price by wire transfer of immediately
available funds to the account specified by the Seller (except that with respect to
Substituted Loans, the consideration for such Loans shall be the transfer from the Purchaser
to the Seller of ownership of the Loans being substituted).
(D) Interest Subsidy and Special Allowance Payments and Rebate Fees
The Seller shall be entitled to all Interest Subsidy Payments and Special Allowance
Payments on each Additional Loan or Substituted Loan accruing up to but not including the
related Subsequent Cutoff Date and shall be responsible for the payment of any rebate fees
applicable to such Purchased Loans subject to the related Xxxx of Sale accruing up to but
not including the related Subsequent Cutoff Date. The Purchaser and the Eligible Lender
Trustee on behalf of the Purchaser shall be entitled to all Special Allowance Payments and
Interest Subsidy Payments accruing from the related Subsequent Cutoff Date with respect to
the Additional Loans or Substituted Loans, and
shall be responsible for the payment of any rebate fees applicable to the Additional
Loans which are Consolidation Loans subject to the related Xxxx of Sale accruing from the
date of the related Subsequent Cutoff Date.
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SECTION 3.3 GENERAL
(A) Special Programs
In consideration of the sale or substitution of the Eligible Loans under these Master
Sale Terms and each Sale Agreement, the Purchaser agrees to cause the Servicer to offer each
Borrower of a Trust Student Loan sold or substituted hereunder and to keep in effect all
special programs, whether or not in existence as of the date of any related Sale Agreement,
generally offered to the obligors of comparable loans owned by the Seller. The Purchaser is
purchasing Loans from the Seller or permitting the substitution of Loans subject to the
special programs. The Seller shall remit to the Purchaser any amounts necessary to offset
any effective yield reductions on any related Trust Student Loans as set forth in
Section 3.12 of the Servicing Agreement.
(B) Intent of the Parties
With respect to each sale or substitution of Loans pursuant to these Master Sale Terms
and the related Sale Agreements, it is the intention of the Seller, the Interim Eligible
Lender Trustee, the Purchaser and the Eligible Lender Trustee, and the Seller 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 the Seller to the
Eligible Lender Trustee or a valid substitution, for the benefit of and on behalf of 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 the Seller.
SECTION 4. CONDITIONS PRECEDENT TO SALE AND PURCHASE OR SUBSTITUTION
Any purchase or substitution of Loans pursuant to these Master Terms is subject to the
following conditions precedent being satisfied (and SLM ECFC, Bluemont Funding, Town Center
Funding and Town Hall Funding, by accepting payment, shall be deemed to have certified that
all such conditions are satisfied on the date of such purchase):
(A) Activities Prior to a Sale or Substitution
Following the execution of a Sale Agreement, the Seller shall provide any assistance
requested by the Purchaser in determining that all required documentation on the related
Loans is present and correct.
(B) Continued Servicing
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The Seller shall service, or cause to be serviced, all Loans as required under the
Higher Education Act until the date of the related Xxxx of Sale.
(C) Xxxx of Sale/Loan Transmittal Summary Form
The Seller shall deliver to the Purchaser:
(i) a Xxxx of Sale that (a) has been duly authorized, executed and delivered by an
authorized officer of the Seller and the Interim Eligible Lender Trustee for the
benefit of the Seller, covering the applicable Loans offered by the Seller, (b) has
been accepted by the Purchaser as set forth thereon, selling, assigning and
conveying to the Eligible Lender Trustee for the benefit of the Purchaser and its
assignees all right, title and interest of the Seller and the Interim Eligible
Lender Trustee for the benefit of the Seller, including the insurance interest of
the Interim Eligible Lender Trustee for the benefit of the Seller, in each of the
related Loans, and (c) states that the representations and warranties made by the
Seller in Sections 5(A) and (B) of these Master Sale Terms 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
The Seller shall provide a blanket endorsement transferring the entire interest of the
Seller and the Interim Eligible Lender Trustee for the benefit of the Seller in the Loans to
the Eligible Lender Trustee for the benefit of the Purchaser with the form of endorsement
provided for in the Initial Sale Agreement with respect to the Initial Loans or any
Additional Sale Agreement with respect to any Additional Loans or Substituted Loans.
At the direction of and in such form as the Purchaser may designate, the Seller also
agrees to individually endorse any Eligible Loan as the Purchaser may request from time to
time.
(E) Officer’s Certificate
The Seller shall furnish to the Purchaser, with each Xxxx of Sale provided in
connection with each sale or substitution of Loans pursuant to these Master Sale Terms, an
Officer’s Certificate, dated as of the date of such Xxxx of Sale.
(F) Loan Transfer Statement
Upon the Purchaser’s request, the Seller shall deliver to the Purchaser one (1) or more
Loan Transfer Statements (Department Form OE 1074 or its equivalent) provided by the
Purchaser, executed by the Interim Eligible Lender Trustee for the benefit of the Seller and
dated the date of the related Xxxx of Sale. The Seller agrees that the Purchaser
and the Eligible Lender Trustee may use the related Xxxx of Sale, including the Loan
Transmittal Summary Form attached to that Xxxx of Sale, in lieu of OE Form 1074, as official
notification to the Guarantor of the assignment by the Interim Eligible Lender Trustee for
the benefit of the Seller to the Eligible Lender Trustee for the benefit of the Purchaser of
the Loans listed on the related Xxxx of Sale.
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(G) Power of Attorney
The Seller and the Interim Eligible Lender Trustee hereby grant to the Eligible Lender
Trustee, for the benefit of and 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 and the Interim Eligible Lender
Trustee for the benefit of the Seller any Eligible Loan to evidence the transfer of such
Eligible Loan to the Eligible Lender Trustee on behalf of the Purchaser and to transfer or
to cause to be transferred any Note from SLM ECFC, Bluemont Funding, Town Center Funding,
Town Hall Funding or the Servicer to the Eligible Lender Trustee or the Indenture Trustee or
any other custodian on behalf of either of them.
(H) Contemporaneous Sale
Subject to the conditions set forth in Section 3.2(A) hereof, with respect to the
purchase of Additional Loans, such Additional Loans shall be contemporaneously sold to the
Eligible Lender Trustee on behalf of the Trust.
(I) Sufficient Funds
With respect to the Additional Loans, the amount on deposit in the Supplemental
Purchase Account shall be greater than or equal to the related Additional Loans Purchase
Price.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF SELLER AND ELIGIBLE LENDER TRUSTEE
(A) General
The Seller represents and warrants to the Purchaser that with respect to the Initial Loans, as
of the Closing Date, and with respect to any Additional Loans sold by it or Substituted Loans
substituted by it, as of the related Purchase Date:
(i) The Interim Eligible Lender Trustee is an eligible lender or other qualified
holder of loans originated pursuant to the Federal Family Education Loan Program
established under the Higher Education Act;
(ii) The Interim Eligible Lender Trustee and the Seller are duly organized and
existing under the laws of their respective governing jurisdictions;
(iii) The Interim Eligible Lender Trustee and the Seller have all requisite power
and authority to enter into and to perform the terms of these Master Sale
Terms, the Initial Sale Agreement and any Additional Sale Agreement, the Initial
Xxxx of Sale and any Additional Xxxx of Sale;
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(iv) The Interim Eligible Lender Trustee and the Seller will not, with respect to
any Loan purchased under any Sale Agreement executed pursuant to these Master Sale
Terms, agree to release any Guarantor from any of its contractual obligations as an
insurer of such Loan or agree otherwise to alter, amend or renegotiate any material
term or condition under which such Loan is insured, except as required by law or
rules and regulations issued pursuant to law, without the express prior written
consent of the Purchaser; and
(v) The Seller does not have the right to cause the Servicer, SLM ECFC, Bluemont
Funding, Town Center Funding or Town Hall Funding, as applicable, to modify,
discontinue or terminate any borrower benefit incentive program at any time and for
any reason.
(B) Particular
The Seller represents and warrants to the Purchaser as to the Purchased Loans purchased
by the Purchaser or substituted by the Seller under the Initial Sale Agreement with respect
to the Initial Loans, or each Additional Sale Agreement with respect to any Additional Loans
or Substituted Loans, in each case executed pursuant to these Master Sale Terms that as of
the date of the Initial Sale Agreement, as of the Statistical Cutoff Date, or as of the
related Additional Sale Agreement, as applicable, or as of the date otherwise noted:
(i) The Interim Eligible Lender Trustee for the benefit of the Seller has good and
marketable title to, and is the sole owner of, the Purchased Loans, free and clear
of all security interests, liens, charges, claims, offsets, defenses, counterclaims
or encumbrances of any nature and no right of rescission, offsets, defenses, or
counterclaims have been asserted or threatened with respect to those Loans;
(ii) These Master Terms create a valid and continuing security interest (as defined
in the applicable UCC) in the Purchased Loans in favor of the 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 the Interim Eligible
Lender Trustee and the Seller;
(iii) The Purchased Loans constitute either “Payment Intangibles” or “Accounts”
within the meaning of the applicable UCC and are within the coverage of Sections
432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) As of the Statistical Cutoff Date, in the case of the Initial Loans, or as of
the related Subsequent Cutoff Date, in the case of any Additional Loan or
Substituted Loan, the Purchased Loans are Eligible Loans and the description of
such Loans set forth in the related Sale Agreement and the related Loan Transmittal
Summary Form is true and correct;
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(v) The Interim Eligible Lender Trustee and the Seller are authorized to sell,
assign, transfer, substitute and repurchase the Purchased Loans; and the sale,
assignment and transfer of such Loans is or, in the case of a Loan repurchase or
substitution by the Seller and or the Interim Eligible Lender Trustee, will be made
pursuant to and consistent with the laws and regulations under which the Seller and
the Interim Eligible Lender Trustee operate, and will not violate any decree,
judgment or order of any court or agency, or conflict with or result in a breach of
any of the terms, conditions or provisions of any agreement or instrument to which
the Interim Eligible Lender Trustee or the Seller is a party or by which the Interim
Eligible Lender Trustee or 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;
(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) 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; such guarantee is in full
force and effect and is freely transferable to the Eligible Lender Trustee for the
benefit of the Purchaser 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 the Interim Eligible Lender
Trustee for the benefit of the Seller 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 Purchased Loans as of the
related Cutoff Date 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;
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(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 sixty-nine (269) days past due as of the
Statistical Cutoff Date, with respect to the Initial Loans, and the Subsequent
Cutoff Date, as to the Additional Loans or Substituted Loans, 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;
(xiv) It is the intention of the Seller, the Interim Eligible Lender Trustee, the
Eligible Lender Trustee, and the Purchaser, and the Seller hereby warrants, that the
transfer and assignment herein contemplated constitute a valid sale of the Loans
from the Seller and the Interim Eligible Lender Trustee to the Eligible Lender
Trustee for the benefit of 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 the
Seller;
(xv) With respect to the first sale of Loans from the Interim Eligible Lender
Trustee, on behalf of the Seller, to the Eligible Lender Trustee for the benefit of
the Purchaser, the Seller has caused or will have caused, within ten days of the
Closing Date, the filing of all appropriate financing statements in the proper
filing office in the appropriate jurisdictions under applicable law in order to
perfect the security interest in the Loans granted to the Interim Eligible Lender
Trustee hereunder;
(xvi) Except for Purchased Loans executed electronically, there is only one original
executed copy of the Note evidencing each Purchased Loan. For Purchased Loans that
were executed electronically, either (i) the Servicer has possession of the
electronic records evidencing the Note or (ii) the Seller has agreements with the
previous holders or servicers of such Note under which the relevant holder or
servicer agrees to hold and maintain the electronic records evidencing the Note, in
each case as may be necessary to enforce the Note or as may be required by
applicable e-sign laws. The Interim Eligible Lender Trustee has in its possession a
copy of the endorsement and Loan Transmittal Summary Form identifying the Notes that
constitute or evidence the Purchased Loans. The Notes that constitute or evidence
the Purchased Loans do not have any marks or notations indicating that they have
been pledged, assigned or otherwise conveyed to any Person other than the Interim
Eligible Lender Trustee. All financing statements filed or to be filed against the
Interim Eligible Lender Trustee and the Seller in favor of the Eligible Lender
Trustee in connection herewith describing the Loans contain a statement to the
following effect: “A purchase of or security interest in any collateral described in
this financing statement will violate the rights of the Eligible Lender Trustee;”
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(xvii) Other than the security interest granted to the Eligible Lender Trustee
pursuant to this Agreement, the Seller and the Interim Eligible Lender Trustee have
not pledged, assigned, sold, granted a security interest in, or otherwise conveyed
any of the Purchased Loans. The Seller and the Interim Eligible Lender Trustee have
not authorized the filing of and are not aware of any financing statements against
the Seller or the Interim Eligible Lender Trustee that include a description of
collateral covering the Purchased Loans other than any financing statement relating
to the security interest granted to the Eligible Lender Trustee hereunder or any
other security interest that has been terminated. The Seller and the Interim
Eligible Lender Trustee are not aware of any judgment or tax lien filings against
the Seller or the Interim Eligible Lender Trustee; and
(xviii) No Borrower of a Purchased Loan as of the related Cutoff Date is noted in
the related Trust Student Loan File as being currently involved in a bankruptcy
proceeding; and
(xix) With respect to all Additional Loans (other than with respect to the
Substituted Loans), the Supplemental Purchase Period is in full force and effect.
(C) The Eligible Lender Trustee and the Purchaser represent and warrant that as of the date
of each Sale Agreement and each Xxxx of Sale:
(i) The Eligible Lender Trustee is duly organized and validly existing in good
standing under the laws of its governing jurisdiction and has an office located
within the State of Florida. It has all requisite corporate power and authority to
execute, deliver and perform its obligations under these Master Sale Terms, each
Sale Agreement and each Xxxx of Sale;
(ii) The Eligible Lender Trustee has taken all corporate action necessary to
authorize the execution and delivery by it of these Master Sale Terms and each Sale
Agreement, and these Master Sale Terms and each Sale Agreement will be executed and
delivered by one of its officers who is duly authorized to execute and deliver these
Master Sale Terms and each Sale Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of these Master Sale Terms and
each Sale 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 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 Eligible Lender Trustee is an “eligible lender” as such term is defined in
Section 435(d) of the Higher Education Act, for purposes of holding legal title to
the Trust Student Loans as contemplated by these Master Sale Terms, each Sale
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.
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SECTION 6. REPURCHASE OF TRUST STUDENT LOANS; REIMBURSEMENT
(A) Each party to these Master Terms shall give notice to the other such parties and to the
Servicer, the Administrator and SLM ECFC, Bluemont Funding, Town Center Funding, Town Hall
Funding or VL Funding as applicable, promptly, in writing, upon the discovery of any breach
of the Seller’s representations and warranties made pursuant to Sections 5(A) and (B) hereof
which has a material adverse effect on the interest of the Purchaser in any Trust Student
Loan. In the event of such a material breach which is not curable by reinstatement of the
applicable Guarantor’s guarantee of such Trust Student Loan, the Seller 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 applicable 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,
the Seller shall purchase such Trust Student Loan not later than the thirtieth day following
the end of such 360-day period. The Seller shall also remit as provided in Section 2.6 of
the Administration Agreement on the date of repurchase of any Trust Student Loan pursuant to
this Section 6(A) an amount equal to all non-guaranteed interest amounts and forfeited
Interest Subsidy Payments and Special Allowance Payments with respect to such Trust Student
Loan. In consideration of the purchase of any such Trust Student Loan pursuant to this
Section 6(A), the Seller 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 the Seller 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 Purchaser to
repay such interest to a Guarantor), or the loss (including any obligation of the Purchaser
to repay the Department) of Interest Subsidy Payments and Special Allowance Payments, with
respect to any Trust Student Loan affected by such breach, then the Seller shall reimburse
the Purchaser 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 30 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 the Seller
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, the Seller shall not be required to reimburse the Purchaser 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.
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Anything in this Section 6(A) to the contrary notwithstanding, if as of the last
Business Day of any month the aggregate outstanding principal amount of Trust Student Loans
with respect to which claims have been filed with and rejected by a Guarantor or with
respect to which the Servicer determines that claims cannot be filed pursuant to the Higher
Education Act as a result of a breach by the Seller or the Servicer, exceeds 1% of the Pool
Balance, the Seller or the Servicer shall purchase, within 30 days of a written request of
the Indenture Trustee, such affected Trust Student Loans in an aggregate principal amount
such that after such purchase the aggregate principal amount of such affected Trust Student
Loans is less than 1% of the Pool Balance. The Trust Student Loans to be purchased by the
Seller (or the Servicer as provided in the Servicing Agreement) 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 Section 6(A) above, 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:
(1) | status (i.e., in-school, grace, deferment,
forbearance or repayment), |
||
(2) | program type (i.e., Unsubsidized Consolidation
Loan or Subsidized Consolidation Loan), |
||
(3) | guarantee percentage, |
||
(4) | school type, |
||
(5) | total return, |
||
(6) | principal balance, and |
||
(7) | remaining term to maturity. |
In addition, each substituted Eligible Loan will comply, as of the date of
substitution, with all of the representations and warranties made hereunder. In choosing
Eligible Loans to be substituted pursuant to this Section 6(B), 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 connection with each substitution a Sale Agreement
and related Xxxx of Sale regarding such Substituted Loans will be executed and delivered by
the applicable parties.
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In the event that the Seller elects to substitute Eligible Loans pursuant to this
Section 6(B), 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 non-guaranteed interest amounts and forfeited Interest
Subsidy Payments and Special Allowance Payments with respect to the Trust Student Loans in
the manner provided in Section 2.6 of the Administration Agreement.
(C) The sole remedy of the Purchaser, the Eligible Lender Trustee and the Noteholders with
respect to a breach by the Seller pursuant to Sections 5(A) and (B) hereof shall be to
require the Seller to purchase such Trust Student Loans, to reimburse the Purchaser as
provided in Section 6(A) above or to substitute Eligible Loans pursuant to Section 6(B).
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 the Seller with respect to amounts accrued after the date of the
related Xxxx of Sale for any Purchased Loan sold to the Purchaser, which payment is not
reflected in the related Loan Transmittal Summary Form, shall be received by the Seller in
trust for the account of the 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,
the Seller shall remit to the Purchaser an amount equal to any such payments along with a
listing on a form provided by the Purchaser 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 the Seller with respect to any Loan
subject to these Master Terms or the related Sale Agreement shall be transmitted by the
Seller to the Servicer within two (2) Business Days of receipt. Such communications shall
include, but not be limited to, letters, notices of death or disability, notices of
bankruptcy, forms requesting deferment of repayment or loan cancellation, and like
documents.
SECTION 8. CONTINUING OBLIGATION OF SELLER
The Seller shall provide all reasonable assistance necessary for the Purchaser 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 the Seller owned the related Purchased Loan, or (b) a payment made or alleged to have been
made to the Seller. Further, the Seller agrees to reasonably cooperate in the preparation and
filing of any financing statements at the request of the Purchaser in order to reflect the
Purchaser’s interest in the Loans.
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SECTION 9. LIABILITY OF THE SELLER; INDEMNITIES
The Seller shall be liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Seller under these Master Sale Terms and each related Sale
Agreement.
(i) The Seller shall indemnify, defend and hold harmless the Purchaser and the
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 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 Purchaser, not including any taxes asserted with respect
to, and as of the date of, the sale of the Purchased Loans to the Eligible Lender
Trustee for the benefit of the Purchaser, or asserted with respect to ownership of
the Trust Student Loans) and costs and expenses in defending against the same.
(ii) The Seller shall indemnify, defend and hold harmless the Purchaser and the
Eligible Lender Trustee in its individual capacity and their officers, directors,
employees and agents of the Purchaser and the 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, the Seller’s willful misfeasance, bad
faith or gross negligence in the performance of its duties under these Master Sale
Terms or by reason of reckless disregard of its obligations and duties under these
Master Sale Terms.
(iii) The Seller shall be liable as primary obligor for, and shall indemnify, defend
and hold harmless the 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 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 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 Eligible Lender Trustee, (b) shall arise from
any breach by the Eligible Lender Trustee of its covenants in its individual
capacity under any of the Basic Documents; or (c) shall arise from the breach by the
Eligible Lender 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 Eligible Lender Trustee’s choice of legal counsel
shall be subject to the approval of the Seller, which approval shall not be
unreasonably withheld.
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Indemnification under this Section 9 shall survive the resignation or removal of the Eligible
Lender 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.
SECTION 10. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS OF THE 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, each Sale Agreement and each Xxxx of
Sale; (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 Eligible Lender Trustee an Officers’ Certificate and an
Opinion of Counsel each stating that such consolidation, merger or succession and such agreement of
assumption comply with this Section and that all conditions precedent, if any, provided for in
these Master Sale Terms relating to such transaction have been complied with, and that the Rating
Agency Condition shall have been satisfied with 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 and (v) if the Seller is not the surviving
entity, the Seller shall have delivered to the 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 Purchaser and the 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 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 Section 6 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 the Seller will constitute the sole remedy available to the
Purchaser 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 listed on the related Xxxx of Sale is less than the aggregate
Principal Balance stated on the related Xxxx of Sale, the Seller shall remit such amount to the
Eligible Lender Trustee for the benefit of the Purchaser. Such reconciliation payment shall be
made from time to time but no less frequently than semi-annually.
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SECTION 12. LIMITATION OF LIABILITY OF ELIGIBLE LENDER TRUSTEE
Notwithstanding anything contained herein to the contrary, these Master Sale Terms and the
Initial Sale Agreement has been, and any Additional Sale Agreement will be, signed by The Bank of
New York Mellon Trust Company, National Association, not in its individual capacity but solely in
its capacity as Eligible Lender Trustee for the Purchaser and the Interim Eligible Lender Trustee
for the Seller, as the case may be, and in no event shall The Bank of New York Mellon Trust
Company, National Association, in its individual capacity, have any liability for the
representations, warranties, covenants, agreements or other obligations of the Eligible Lender
Trustee, the Interim Eligible Lender Trustee, the Purchaser or of the Seller, respectively, under
these Master Sale Terms or any Sale Agreement 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
Purchaser or the Seller, as the case may be.
SECTION 13. EXPENSES
Except as otherwise provided herein, each party to these Master Sale Terms or any Sale
Agreement (other than the Interim Eligible Lender Trustee) 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.
SECTION 14. SURVIVAL OF COVENANTS/SUPERSESSION
All covenants, agreements, representations and warranties made herein and in or pursuant to
the Initial Sale Agreement and each Additional Sale Agreement executed pursuant to these Master
Sale Terms shall survive the consummation of the acquisition of the Purchased Loans provided for in
the related Sale Agreement. All covenants, agreements, representations and warranties made or
furnished pursuant hereto by or for the benefit of the Seller shall bind and inure to the benefit
of any successors or assigns of the Purchaser and the Eligible Lender Trustee on behalf of the
Purchaser and shall survive with respect to each Purchased Loan. Each Sale Agreement supersedes
all previous agreements and understandings between the Purchaser and the 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 the Purchaser of any covenant, agreement, representation or warranty
required to be made or furnished by the Seller or the waiver by the 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 the Purchaser to insist upon the performance by the Seller in strict accordance with said terms.
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SECTION 15. COMMUNICATION AND NOTICE REQUIREMENTS
All communications, notices and approvals provided for hereunder shall be in writing and
mailed or delivered to the Seller or the Purchaser, as the case may be, addressed as set forth in
the related 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 the Seller or the
Purchaser by appropriately addressed registered mail, shall be deemed to have been given on the day
following the date of such mailing.
SECTION 16. FORM OF INSTRUMENTS
All instruments and documents delivered in connection with these Master 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 the Purchaser 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
These Master Sale Terms, any Sale Agreement, any Xxxx of Sale and any document or instrument
delivered in accordance herewith or therewith may be amended by the parties thereto without the
consent of the related Noteholders for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions in the related document or of modifying in any manner
the rights of such Noteholders; provided that such action will not, in the opinion of
counsel satisfactory to the Indenture Trustee, materially and adversely affect the interest of any
such Noteholder.
In addition, these Master Sale Terms, any Sale Agreement and any document or instrument
delivered in accordance herewith or therewith may also be amended from time to time by the Seller,
the Interim Eligible Lender Trustee, the Eligible Lender Trustee 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 in the related document or 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 then rating the Notes, five Business Days prior thereto), the Eligible Lender Trustee
shall furnish written notification (such notice to be prepared by the Administrator) of the
substance of such amendment or consent to the Indenture Trustee, and each of the Rating
Agencies then rating the Notes.
-23-
It shall not be necessary for the consent of Noteholders pursuant to this Section 17 to
approve the particular form of any proposed amendment or consent, but it shall be sufficient if
such consent shall approve the substance thereof.
Prior to the execution of any amendment to these Master Sale Terms, the Eligible Lender
Trustee shall be entitled to receive and rely upon an Opinion of Counsel stating that execution of
such amendment is authorized or permitted by these Master Sale Terms and the Opinion of Counsel
referred to in Section 7.1(i)(i) of the Administration Agreement. The Eligible Lender Trustee may,
but shall not be obligated to, enter into any such amendment which affects the Eligible Lender
Trustee’s own rights, duties or immunities under these Master Terms or otherwise.
SECTION 18. NONPETITION COVENANTS
Notwithstanding any prior termination of these Master Sale Terms, the Seller and the Interim
Eligible Lender Trustee 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; provided, however, nothing herein shall be deemed to
prohibit the Interim Eligible Lender Trustee from filing a claim or otherwise participating in any
such action or proceeding.
Notwithstanding any prior termination of these Master Sale Terms, the Eligible Lender Trustee
and 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 Seller; provided,
however, nothing herein shall be deemed to prohibit the Interim Eligible Lender Trustee from filing
a claim or otherwise participating in any such action or proceeding.
-24-
SECTION 19. ASSIGNMENT
As of the date hereof, the Seller and the Interim Eligible Lender Trustee each hereby assigns
to the Purchaser its entire right, title and interest as purchaser and as the Interim Eligible
Lender Trustee under (i) the SLM ECFC Master Purchase Terms, the Bluemont Funding Master Purchase
Terms (including the contract rights in and to the SLM ECFC Purchase Agreement, as defined in the
Bluemont Funding Master Purchase Terms) that have been assigned to the Seller by Bluemont Funding
in the Bluemont Funding Master Purchase Terms, the Town Center Funding Master Purchase Terms
(including the contract rights in and to the SLM ECFC Purchase Agreement, as defined in the Town
Center Funding Master Purchase Terms) that have been assigned to the Seller by Town Center Funding
in the Town Center Funding Master Purchase
Terms, the Town Hall Funding Master Purchase Terms (including the contract rights in and to
the SLM ECFC Purchase Agreement, as defined in the Town Hall Funding Master Purchase Terms) that
have been assigned to the Seller by Town Hall Funding in the Town Hall Funding Master Purchase
Terms and the VL Funding Master Purchase Terms (including the contract rights in and to the SLM
ECFC Purchase Agreement, as defined in the VL Funding Master Purchase Terms) that have been
assigned to the Seller by VL Funding in the VL Funding Master Purchase Terms, and (ii) any Purchase
Agreement thereunder and acknowledges that the Purchaser and the Eligible Lender Trustee on behalf
of the Purchaser will assign the same, together with the right, title and interest of the Purchaser
and the Eligible Lender Trustee hereunder, to the Indenture Trustee under the Indenture.
SECTION 20. 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.
-25-
IN WITNESS WHEREOF, the parties hereto have caused these Master Sale Terms to be duly executed
by their respective officers hereunto duly authorized, as of the day and year first above written.
SLM FUNDING LLC | SLM STUDENT LOAN TRUST 2009-2 | |||||||
(Seller) | (Purchaser) | |||||||
By: The Bank of New York Mellon Trust Company, National Association, not in its individual capacity but solely as Eligible Lender Trustee | ||||||||
By:
|
/S/ XXXX X. XXXX | By: | /S/ XXXXXXX X. XXXXXX | |||||
Name:
|
Xxxx X. Xxxx | Name: | Xxxxxxx X. Xxxxxx | |||||
Title:
|
Vice President | Title: | Vice President | |||||
THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION, not in its individual capacity but solely as Interim Eligible Lender |
THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION, not in its individual capacity but solely as Eligible Lender Trustee |
|||||||
By:
|
/S/ XXXXXXX X. XXXXXX | By: | /S/ XXXXXXX X. XXXXXX | |||||
Name:
|
Xxxxxxx X. Xxxxxx | Name: | Xxxxxxx X. Xxxxxx | |||||
Title:
|
Vice President | Title: | Vice President |
-26-
Attachment A
INITIAL SALE AGREEMENT
Dated as of April 21, 2009
SALE AGREEMENT NUMBER 1
SALE AGREEMENT NUMBER 1
Pursuant to the Master Terms (as defined below), each of The Bank of New York Mellon Trust
Company, National Association, as Interim Eligible Lender Trustee (the “Interim Eligible Lender
Trustee”) for the benefit of SLM Funding LLC (the “Seller”) and the Seller hereby offer for sale to
The Bank of New York Mellon Trust Company, National Association, as the Eligible Lender Trustee on
behalf of SLM Student Loan Trust 2009-2 (the “Purchaser”) the entire right, title and interest of
the Seller and the Interim Eligible Lender Trustee in the Loans described in the Xxxx of Sale and
Loan Transmittal Summary Form incorporated herein and, to the extent indicated below, the Eligible
Lender Trustee on behalf of the Purchaser accepts the Seller’s and the Interim Eligible Lender
Trustee’s offer. In order to qualify as Eligible Loans, no payment of principal or interest shall
be more than two hundred and sixty-nine (269) days past due as of the Statistical Cutoff Date,
which shall be April 7, 2009.
TERMS, CONDITIONS AND COVENANTS
In consideration of the Purchase Price, each of the Seller and the Interim Eligible Lender
Trustee for the benefit of the Seller hereby sells to the Eligible Lender Trustee for the benefit
of the Purchaser the entire right, title and interest of the Seller and the Interim Eligible Lender
Trustee in the Initial Loans accepted for purchase, subject to all the terms and conditions of the
Sale Agreement Master Securitization Terms Number 1000 (the “Master Sale Terms”) and amendments,
each incorporated herein by reference, among the Seller, the Interim Eligible Lender Trustee, the
Purchaser, and the Eligible Lender Trustee. The Initial Purchase Price for the Initial Loans shall
be the issuance of the Notes and the Excess Distribution Certificate to the Seller or its designee.
As agreed in Section 3.1(A)(iv) of the Master Sale Terms, and as a further condition to the
consummation of such sale, the Seller will pay to the Purchaser, the following amounts in order for
the Purchaser to make the applicable deposits to the Trust Accounts:
1. $0 (representing the Borrower Benefit Account Initial Deposit);
2. $122,000,000 (representing the Capitalized Interest Account Deposit);
3. $3,660,000 plus $0 (representing the excess, if any, of the Pool Balance as of the
Statistical Cutoff Date over the Initial Cutoff Date Pool Balance, to the extent such excess
amount is not deposited into the Supplemental Purchase Account) (representing the Collection
Account Initial Deposit);
4. $5,012,175 (representing the Reserve Account Initial Deposit); and
-1-
5. $26,968,513.54, which is equal to the excess, if any, of (x) the Pool Balance as of
the Statistical Cutoff Date over (y) the Initial Cutoff Date Pool Balance; provided that
such amount is not in excess of 5% of the Pool Balance as of the Statistical Cutoff Date
(representing the Supplemental Purchase Account Initial Deposit).
This document shall constitute the Initial 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, Eligible Loans, Initial Loans
or Purchased Loans, as applicable, shall be deemed to refer to the Loans governed by this Initial
Sale Agreement. The Seller hereby makes the representations and warranties set forth in Sections
5(A) and (B) of the Master Sale Terms and makes such representations and warranties with respect to
the Initial Loans governed by this Initial Sale Agreement.
Each of the Seller and the Interim Eligible Lender Trustee for the benefit of the Seller
authorizes the Eligible Lender Trustee for the benefit of the Purchaser 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 Guarantor of assignment
to the Eligible Lender Trustee for the benefit of the Purchaser of the Initial Loans purchased
pursuant hereto on the Closing Date.
The parties hereto intend that the transfer of Purchased Loans described in the Initial Xxxx
of Sale and related Loan Transmittal Summary Form be, and be construed as, a valid sale of such
Purchased Loans. However, in the event that notwithstanding the intentions of the parties, such
transfer is deemed to be a transfer for security, then each of the Interim Eligible Lender Trustee
and the Seller hereby grants to the Eligible Lender Trustee on behalf of the Purchaser a first
priority security interest in and to all Purchased Loans described in the Initial Xxxx of Sale and
related Loan Transmittal Summary Form to secure a loan in an amount equal to the Purchase Price of
such Purchased Loans.
-2-
IN WITNESS WHEREOF, the parties hereto have caused this Initial Sale Agreement to be duly
executed by their respective officers hereunto duly authorized, as of the day and year first above
written.
SLM FUNDING LLC | SLM STUDENT LOAN TRUST 2009-2 | |||||||
(Seller) | (Purchaser) | |||||||
by The Bank of New York Mellon Trust Company, National Association, not in its individual capacity but solely as Eligible Lender Trustee | ||||||||
By:
|
By: | |||||||
Name:
|
Name: | |||||||
Title:
|
Title: | |||||||
THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION, not in its individual capacity but solely as Interim Eligible Lender Trustee |
THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION, not in its individual capacity but solely as Eligible Lender Trustee |
|||||||
By:
|
By: | |||||||
Name:
|
Name: | |||||||
Title:
|
Title: |
-3-
INITIAL SALE AGREEMENT NUMBER 1
BLANKET ENDORSEMENT DATED APRIL 21, 2009
The Bank of New York Mellon Trust Company, National Association, as Interim Eligible Lender
Trustee for the benefit of SLM Funding LLC (the “Seller”), by execution of this instrument, hereby
endorses the attached promissory note which is one (1) of the promissory notes (the “Notes”)
described in the Initial Xxxx of Sale dated the date hereof executed by the Seller and the Interim
Eligible Lender Trustee for the benefit of the Seller in favor of The Bank of New York Mellon Trust
Company, National Association, as Eligible Lender Trustee on behalf of SLM Student Loan Trust
2009-2 (the “Purchaser”). This endorsement is in blank, unrestricted form and without recourse
except as provided in Section 6 of the Master Sale Terms referred to in the Initial Sale Agreement
among the Seller, the Purchaser, the Interim Eligible Lender Trustee, and the Eligible Lender
Trustee 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 Interim Eligible Lender Trustee for the benefit of the
Seller agrees to individually endorse each Note in the form provided by the Purchaser as the
Purchaser may from time to time require or if such individual endorsement is required by the
Guarantor of the Note.
THE SALE AND PURCHASE OF THE PURCHASED LOANS SHALL BE SUBJECT TO THE TERMS, CONDITIONS AND
COVENANTS, INCLUDING THIS BLANKET ENDORSEMENT, AS SET FORTH IN THE 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 INITIAL SALE
AGREEMENT (“INITIAL SALE AGREEMENT”). THE SALE AND PURCHASE SHALL BE CONSUMMATED UPON THE
PURCHASER’S PAYMENT TO THE SELLER OF THE INITIAL PURCHASE PRICE AS DEFINED IN THE MASTER SALE TERMS
AND, UNLESS OTHERWISE AGREED BY THE SELLER AND THE PURCHASER, SHALL BE EFFECTIVE AS OF THE DATE OF
THE INITIAL 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.
SELLER | PURCHASER | |||||||
The Bank of New York Mellon Trust Company, National Association, not in its individual capacity but solely as Interim Eligible Lender Trustee for the Benefit of SLM Funding LLC | The Bank of New York Mellon Trust Company, National Association, not in its individual capacity but solely as Eligible Lender Trustee on behalf of SLM Student Loan Trust 2009-2 | |||||||
Lender Code: 833 253 | ||||||||
By:
|
By: | |||||||
Name:
|
Name: | |||||||
Title:
|
Title: | |||||||
Date of Purchase: April 21, 2009 |
-2-
Attachment B
XXXX OF SALE DATED APRIL 21, 2009
The undersigned SLM Funding LLC (“Seller”) and The Bank of New York Mellon Trust Company,
National Association, as Interim Eligible Lender Trustee for the benefit of the Seller under the
Funding Interim Trust Agreement dated as of April 21, 2009 (“Interim Eligible Lender Trustee”), for
value received and pursuant to the terms and conditions of Initial Sale Agreement Number 1
(“Initial Sale Agreement”) among the Seller, the Interim Eligible Lender Trustee, SLM Student Loan
Trust 2009-2 (“Purchaser”) and The Bank of New York Mellon Trust Company, National Association, as
the Eligible Lender Trustee, do hereby sell, assign and convey to the Eligible Lender Trustee on
behalf of the Purchaser and its assignees all right, title and interest of the Seller and the
Interim Eligible Lender Trustee, including the insurance interest of the Seller and the Interim
Eligible Lender Trustee under the Federal Family Education Loan Program (20 U.S.C. 1071 et
seq.), that the Eligible Lender Trustee on behalf of the Purchaser has accepted for purchase.
The portfolio of Initial Loans accepted for purchase by the Eligible Lender Trustee on behalf of
the Purchaser and the effective date of sale and purchase are described below and the individual
accounts are listed on the Schedule A attached hereto.
The Seller hereby makes the representations and warranties set forth in Section 5 of the Sale
Agreement Master Securitization Terms Number 1000 incorporated by reference in the Initial Sale
Agreement. The Seller and the Interim Eligible Lender Trustee authorize the Eligible Lender
Trustee on behalf of the Purchaser to use a copy of this document (in lieu of OE Form 1074) as
official notification to the Guarantor(s) of assignment to the Eligible Lender Trustee on behalf of
the Purchaser of the Initial Loans on the Closing Date.
LISTING OF LOANS ON FOLLOWING PAGE
-1-
CERTAIN OTHER LOAN CRITERIA
• | Not in claims status, not previously rejected |
|
• | Not in litigation |
|
• | Last disbursement was on or before the Statistical Cutoff Date |
|
• | Loan is not swap-pending |
*Based upon the Seller’s estimated calculations, which may be adjusted upward or downward based
upon the Purchaser’s reconciliation.
**Includes interest to be capitalized.
-2-
Guarantors:
American Student Assistance
California Student Aid Commission
College Assist
Connecticut Student Loan Foundation
Educational Credit Management Corporation
Finance Authority of Maine
Florida Bureau of Student Financial Assistance
Great Lakes Higher Education Corporation
Illinois Student Assistance Commission
Iowa College Student Aid Commission
Kentucky Higher Education Assistance Authority
Louisiana Office of Student Financial Assistance
Michigan Guaranty Agency
Missouri Student Loan Program
Montana Guaranteed Student Loan Program
Nebraska Student Loan Program
New Jersey Higher Education Student Assistance Authority
New York State Higher Education Services Corporation
Northwest Education Loan Association
Oklahoma Guaranteed Student Loan Program
Pennsylvania Higher Education Assistance Agency
Rhode Island Higher Education Assistance Authority
Student Loan Guarantee Foundation of Arkansas
Texas Guaranteed Student Loan Corporation
United Student Aid Funds, Inc.
California Student Aid Commission
College Assist
Connecticut Student Loan Foundation
Educational Credit Management Corporation
Finance Authority of Maine
Florida Bureau of Student Financial Assistance
Great Lakes Higher Education Corporation
Illinois Student Assistance Commission
Iowa College Student Aid Commission
Kentucky Higher Education Assistance Authority
Louisiana Office of Student Financial Assistance
Michigan Guaranty Agency
Missouri Student Loan Program
Montana Guaranteed Student Loan Program
Nebraska Student Loan Program
New Jersey Higher Education Student Assistance Authority
New York State Higher Education Services Corporation
Northwest Education Loan Association
Oklahoma Guaranteed Student Loan Program
Pennsylvania Higher Education Assistance Agency
Rhode Island Higher Education Assistance Authority
Student Loan Guarantee Foundation of Arkansas
Texas Guaranteed Student Loan Corporation
United Student Aid Funds, Inc.
-3-
IN WITNESS WHEREOF, the parties hereto have caused this Initial Xxxx of Sale to be duly
executed by their respective officers hereunto duly authorized, as of the day and year first above
written.
SELLER | PURCHASER | |||||||
The Bank of New York Mellon Trust Company, National Association, not in its individual capacity but solely as Interim Eligible Lender Trustee for the benefit of SLM Funding LLC | The Bank of New York Mellon Trust Company, National Association, not in its individual capacity but solely as Eligible Lender Trustee on behalf of SLM Student Loan Trust 2009-2 | |||||||
Lender Code: 833 253 | ||||||||
By:
|
By: | |||||||
Name:
|
Name: | |||||||
Title:
|
Title: | |||||||
Date of Purchase: April 21, 2009 |
-1-
Attachment C
ADDITIONAL SALE AGREEMENT NUMBER [ ]
Dated as of [ ], 2009
Dated as of [ ], 2009
ADDITIONAL SALE AGREEMENT NUMBER [ ]
Each of The Bank of New York Mellon Trust Company, National Association, as Interim Eligible
Lender Trustee (the “Interim Eligible Lender Trustee”) for the benefit of SLM Funding LLC (the
“Seller”) and the Seller hereby offer for sale to The Bank of New York Mellon Trust Company,
National Association, as Eligible Lender Trustee on behalf of SLM Student Loan Trust 2009-2 (the
“Purchaser”), the entire right, title and interest of the Seller and the Interim Eligible Lender
Trustee in the Loans described in the related Additional Xxxx of Sale and the related Loan
Transmittal Summary Form incorporated herein, and, to the extent indicated below, the Eligible
Lender Trustee on behalf of the Purchaser accepts the Seller’s and the Interim Eligible Lender
Trustee’s offer.
TERMS, CONDITIONS AND COVENANTS
In consideration of the Purchase Price, each of the Seller and the Interim Eligible Lender
Trustee for the benefit of the Seller hereby sells to the Eligible Lender Trustee for the benefit
of the Purchaser the entire right, title and interest of the Seller and the Interim Eligible Lender
Trustee in the Loans accepted for purchase, subject to all the terms and conditions of the Sale
Agreement Master Securitization Terms Number 1000, dated April 21, 2009 (the “Master Sale Terms”),
and any amendments thereto permitted by its terms, incorporated herein by reference, among the
Seller, the Purchaser, the Interim Eligible Lender Trustee and the Eligible Lender Trustee. The
applicable Additional Loans Purchase Price shall be $[
_____
].
This document shall constitute an Additional 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 Additional Loans or to
Purchased Loans, as applicable, shall be deemed to refer to the Additional Loans governed by this
Additional Sale Agreement. The Seller hereby makes the representations and warranties set forth in
Sections 5(A) and (B) of the Master Sale Terms regarding the Additional Loans described in the
related Additional Xxxx of Sale and the related Loan Transmittal Summary Form, as of the related
Purchase Date.
Each of the Seller and the Interim Eligible Lender Trustee for the benefit of the Seller
authorizes the Eligible Lender Trustee for the benefit of the Purchaser to use a copy of the
related Additional Xxxx of Sale, including the Loan Transmittal Summary Form attached to such
Additional Xxxx of Sale (in lieu of OE Form 1074), as official notification to the applicable
Guarantors of assignment to the Eligible Lender Trustee on behalf of the Purchaser of the Loans
purchased pursuant hereto on the Purchase Date.
-2-
The parties hereto intend that the transfer of Additional Loans described in the related
Additional Xxxx of Sale and related Loan Transmittal Summary Form be, and be construed as, a valid
sale of such Purchased Loans. However, in the event that notwithstanding the intention of
the parties, such transfer is deemed to be a transfer for security, then each of the Interim
Eligible Lender Trustee and the Seller hereby grants to the Eligible Lender Trustee for the benefit
of the Purchaser a first priority security interest in and to all Additional Loans described in the
related Additional Xxxx of Sale and related Loan Transmittal Summary Form to secure a loan in an
amount equal to the Purchase Price of such Purchased Loans.
IN WITNESS WHEREOF, the parties hereto have caused this Additional Sale Agreement Number [ ]
to be duly executed by their respective officers hereunto duly authorized, as of the day and year
first above written.
SELLER | PURCHASER | |||||||
The Bank of New York Mellon Trust Company, National Association, not in its individual capacity but solely as Interim Eligible Lender Trustee for the benefit of SLM Funding LLC | The Bank of New York Mellon Trust Company, National Association, not in its individual capacity but solely as Eligible Lender | |||||||
Lender Code: 833 253 | ||||||||
By:
|
By: | |||||||
Name:
|
Name: | |||||||
Title:
|
Title: | |||||||
Date of Purchase: |
-3-
ADDITIONAL SALE AGREEMENT NUMBER [ ]
[ ] BLANKET ENDORSEMENT DATED [ ], 2009
[ ] BLANKET ENDORSEMENT DATED [ ], 2009
SLM Funding LLC (the “Seller”), by execution of this instrument, hereby endorses the attached
promissory note which is one (1) of the promissory notes (the “Notes”) described in the Additional
Xxxx of Sale executed by the Seller in favor of The Bank of New York Mellon Trust Company, National
Association, as the Interim Eligible Lender Trustee for the benefit of SLM Student Loan Trust
2009-2 (the “Purchaser”). This endorsement is in blank, unrestricted form and without recourse
except as provided in Section 6 of the Master Sale Terms referred to in the Additional Sale
Agreement among the Seller, the Purchaser, the Interim Eligible Lender Trustee and the Eligible
Lender Trustee which covers the promissory note (the “Additional Sale Agreement”).
This endorsement may be effected by attaching either this instrument or a facsimile hereof to
each or any of the Notes.
Notwithstanding the foregoing, the Interim Eligible Lender Trustee for the benefit of the
Seller agrees to individually endorse each Note in the form provided by the Purchaser as the
Purchaser may from time to time require or if such individual endorsement is required by the
Guarantor of the Note.
THE SALE AND PURCHASE OF THE ADDITIONAL LOANS SHALL BE SUBJECT TO THE TERMS, CONDITIONS AND
COVENANTS, INCLUDING THIS BLANKET ENDORSEMENT, AS SET FORTH IN THE RELATED ADDITIONAL SALE
AGREEMENT. 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 ADDITIONAL SALE AGREEMENT. THE
SALE AND PURCHASE SHALL BE CONSUMMATED UPON FUNDING’S PAYMENT TO THE SELLER OF THE ADDITIONAL LOANS
PURCHASE PRICE AND, UNLESS OTHERWISE AGREED BY THE SELLER AND FUNDING, SHALL BE EFFECTIVE AS OF THE
DATE OF THE ADDITIONAL 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.
SELLER | PURCHASER | |||||||
The Bank of New York Mellon Trust Company, National Association, not in its individual capacity but solely as Interim Eligible Lender Trustee for the benefit of SLM Funding LLC | The Bank of New York Mellon Trust Company, National Association, not in its individual capacity but solely as Eligible Lender Trustee on behalf of SLM Student Loan Trust 2009-2 | |||||||
Lender Code: 833 253 | ||||||||
By:
|
By: | |||||||
Name:
|
Name: | |||||||
Title:
|
Title: | |||||||
Date of Purchase: |
-2-
Attachment D
ADDITIONAL XXXX OF SALE
DATED [ ], 2009
DATED [ ], 2009
The undersigned SLM Funding LLC (the “Seller”) and The Bank of New York Mellon Trust Company,
National Association, as Interim Eligible Lender Trustee for the benefit of the Seller under the
Funding Interim Trust Agreement dated as of April 21, 2009 (“Interim Eligible Lender Trustee”), for
value received and pursuant to the terms and conditions of Additional Sale Agreement Number
[ ] (the “Sale Agreement”) among the Seller, the Interim Eligible Lender Trustee, SLM Student
Loan Trust 2009-2 (the “Purchaser”) and The Bank of New York Mellon Trust Company, National
Association, as the Eligible Lender Trustee, does hereby sell, assign and convey to the Eligible
Lender Trustee for the benefit of the Purchaser and its assignees all right, title and interest of
the Seller and the Interim Eligible Lender Trustee, including the insurance interest of the Seller
under the Federal Family Education Loan Program (20 U.S.C. 1071 et seq.), that the Eligible
Lender Trustee for the benefit of the Purchaser has accepted for purchase. The portfolio of
Additional Loans accepted for purchase by the Eligible Lender Trustee for the benefit of the
Purchaser and the effective date of sale and purchase are described below and the individual
accounts are listed on the Schedule A attached hereto.
The Seller hereby makes the representations and warranties set forth in Sections 5(A) and 5(B)
of the Sale Agreement Master Securitization Terms Number 1000 incorporated by reference in the
Additional Sale Agreement related hereto. The Seller and the Interim Eligible Lender Trustee
authorize the Eligible Lender Trustee on behalf of the Purchaser 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
Eligible Lender Trustee for the benefit of the Purchaser of the portfolio of Additional Loans
accepted for purchase, on the date of purchase.
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 related Cutoff Date |
|
• | Loan is not swap-pending |
*Based upon the Seller’s estimated calculations, which may be adjusted upward or downward based
upon the Purchaser’s reconciliation.
• Includes interest to be capitalized.
Guarantor(s):
[SLM TO PROVIDE]
IN WITNESS WHEREOF, the parties hereto have caused this Additional Xxxx of Sale to be duly
executed by their respective officers hereunto duly authorized, as of the day and year first above
written.
SELLER | PURCHASER | |||||||
The Bank of New York Mellon Trust Company, National Association, not in its individual capacity but solely as Interim Eligible Lender Trustee for the benefit of SLM Funding LLC | The Bank of New York Mellon Trust Company, National Association, not in its individual capacity but solely as Eligible Lender Trustee on behalf of SLM Student Loan Trust 2009-2 | |||||||
Lender Code: 833253 | ||||||||
By:
|
By: | |||||||
Name:
|
Name: | |||||||
Title:
|
Title: | |||||||
Date of Purchase: |
Annex I
LOAN TRANSMITTAL SUMMARY FORM
Principal Balance | ||||
Additional Loans | as of the related Subsequent Cutoff Date | Purchase Price | ||