Exhibit 99.1a
PURCHASE AGREEMENT MASTER SECURITIZATION TERMS NUMBER 1000
These Purchase Agreement Master Securitization Terms Number 1000 ("Master
Terms") dated as of June 10, 2004 among Student Loan Marketing Association
("SLMA"), SLM Funding LLC ("Funding") and Chase Manhattan Bank USA, National
Association, not in its individual capacity but solely as Interim Eligible
Lender Trustee (the "Interim Eligible Lender Trustee") for the benefit of
Funding under the Interim Trust Agreement dated as of June 1, 2004 between
Funding and the Interim Eligible Lender Trustee, shall be effective upon
execution by the parties hereto. References to Funding herein mean the Interim
Eligible Lender Trustee for all purposes involving the holding or transferring
of legal title to the Eligible Loans.
WHEREAS, SLMA is the owner of certain student loans guaranteed under the
Higher Education Act;
WHEREAS, Funding desires to purchase from SLMA the portfolio of Initial
Loans;
WHEREAS, from time to time following the Closing Date until the end of the
Funding Period, SLMA may desire to sell Additional Loans and Funding may
purchase such Additional Loans in accordance with these Master Terms and the
related Additional Purchase Agreements; and
WHEREAS, the Interim Eligible Lender Trustee is willing to hold legal title
to, and serve as eligible lender trustee with respect to, such Loans on behalf
of Funding.
NOW, THEREFORE, in connection with the mutual promises contained herein,
the parties hereto agree as follows:
SECTION 1. TERMS
These Master Terms establish the terms under which SLMA may sell and
Funding (and with respect to legal title, the Interim Eligible Lender Trustee on
behalf of Funding) may purchase the Loans (and all obligations of the Borrowers
thereunder) specified in the Initial Purchase Agreement with respect to the
Initial Loans or each Additional Purchase Agreement with respect to the
Additional Loans, as the parties may execute from time to time pursuant to these
Master Terms. The Initial Purchase Agreement and each Additional Purchase
Agreement, as applicable, shall be substantially in the form of Exhibit A and
Exhibit C hereto, respectively, in each case incorporating by reference the
terms of these Master Terms, and shall be a separate agreement among SLMA,
Funding, and the Interim Eligible Lender Trustee on behalf of Funding with
respect to the Loans covered by the terms of the Initial Purchase Agreement or
the related Additional Purchase Agreement, as applicable. If the terms of the
Initial Purchase Agreement or an Additional Purchase Agreement conflict with the
terms of these Master Terms, the terms of the Initial Purchase Agreement or the
related Additional Purchase Agreement, as applicable, shall supersede and
govern.
SECTION 2. DEFINITIONS
Capitalized terms used but not otherwise defined herein, including in the
related Purchase Agreement and Xxxx of Sale, shall have the definitions set
forth in Appendix A-1 to the Indenture, dated as of June 1, 2004, 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 Exhibit D
hereto, executed by an authorized officer of SLMA, Funding and the Interim
Eligible Lender Trustee on behalf of Funding which shall: (i) set forth the
list and certain terms of Additional Loans offered by SLMA and accepted for
purchase by the Interim Eligible Lender Trustee for the benefit of Funding,
including the Additional Loans Purchase Price for the Additional Loans
being sold thereunder and (ii) sell, assign and convey to the Interim
Eligible Lender Trustee, for the benefit of Funding and its assignees, all
right, title and interest of SLMA in the Additional Loans listed on the
related Additional Xxxx of Sale.
(C) "Additional Loan" means the Eligible Loans evidenced by a Note or Notes
sold from time to time during the Funding Period pursuant to an Additional
Purchase Agreement and related documentation, together with any guaranties
and other rights relating thereto including, without limitation, Interest
Subsidy Payments and Special Allowance Payments.
(D) "Additional Loans Purchase Price" means the dollar amount representing
the aggregate purchase price of the related Additional Loans as specified
in the applicable Additional Purchase Agreement.
(E) "Additional Purchase Agreement" means each Additional Purchase
Agreement (including the related Additional Xxxx of Sale, the related
Blanket Endorsement and any attachments thereto), substantially in the form
of Exhibit C hereto (of which these Master Terms form a part by reference),
to be executed by SLMA, Funding and the Interim Eligible Lender Trustee for
the benefit of Funding, which certifies that the representations and
warranties made by SLMA as set forth in Sections 5(A) and (B) of these
Master Terms are true and correct as of the related Purchase Date.
(F) "Xxxx of Sale" means the Initial Xxxx of Sale or an Additional Xxxx of
Sale, as applicable.
(G) "Borrower" means the obligor on a Loan.
(H) "Consolidation Loan" means a Loan made pursuant to and in full
compliance with Section 428C of the Higher Education Act.
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(I) "Cutoff Date" means the Statistical Cutoff Date or any Subsequent
Cutoff Date, as applicable.
(J) "Delinquent" means the period any payment of principal or interest due
on the Loan is overdue.
(K) "Eligible Loan" means a Loan offered for sale by SLMA under a Purchase
Agreement which as of the related Cutoff Date is current or not more past
due than permitted under such Purchase Agreement in payment of principal or
interest and which meets the following criteria as of the effective date of
the related Xxxx of Sale:
(i) is a Consolidation Loan;
(ii) is owned by SLMA and is fully disbursed;
(iii) is guaranteed as to principal and interest by the applicable
Guarantor to the maximum extent permitted by the Higher Education Act
for such Loan;
(iv) bears interest at a stated rate of not less than the maximum rate
permitted under the Higher Education Act for such Loan;
(v) is eligible for the payment of the quarterly special allowance at
the full and undiminished rate established under the formula set forth
in the Higher Education Act for such Loan;
(vi) if not yet in repayment status, is eligible for the payment of
interest benefits by the Secretary or, if not so eligible, is a Loan
for which interest either is billed quarterly to Borrower or deferred
until commencement of the repayment period, in which case such accrued
interest is subject to capitalization to the full extent permitted by
the applicable Guarantor;
(vii) is current or no payment of principal or interest shall be more
than 210 days past due as of the statistical Cutoff Date or in
relation to any Additional Purchase Agreement, the related subsequent
Cutoff Date;
(viii) the last disbursement was before the related Cutoff Date;
(ix) is supported by the following documentation:
1. loan application, and any supplement thereto,
2. original promissory note and any addendum thereto (or a
certified copy thereof if more than one loan is represented
by a single promissory note and all loans so represented are
not being sold) or the electronic records evidencing the
same,
3. evidence of guarantee,
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4. any other document and/or record which Funding may be
required to retain pursuant to the Higher Education Act,
5. if applicable, payment history (or similar document)
including (i) an indication of the Principal Balance and the
date through which interest has been paid, each as of the
related Cutoff Date and (ii) an accounting of the allocation
of all payments by the Borrower or on the Borrower's behalf
to principal and interest on the Loan,
6. if applicable, documentation which supports periods of
current or past deferment or past forbearance,
7. if applicable, a collection history, if the Loan was ever in
a delinquent status, including detailed summaries of
contacts and including the addresses or telephone numbers
used in contacting or attempting to contact Borrower and any
endorser and, if required by the Guarantor, copies of all
letters and other correspondence relating to due diligence
processing,
8. if applicable, evidence of all requests for skip-tracing
assistance and current address of Borrower, if located,
9. if applicable, evidence of requests for pre-claims
assistance, and evidence that the Borrower's school(s) have
been notified, and
10. if applicable, a record of any event resulting in a change
to or confirmation of any data in the Loan file.
(L) "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(p) and 2.9(f) of the
Administration Agreement.
(M) "Initial Xxxx of Sale" means the document, in the form of Exhibit B
hereto, executed by an authorized officer of SLMA which shall (i) set forth
the applicable Initial Loans offered by SLMA and accepted for purchase by
the Interim Eligible Lender Trustee for the benefit of Funding, (ii) sell,
assign and convey to the Interim Eligible Lender Trustee for the benefit of
Funding and its assignees all rights, title and interest of SLMA in the
Initial Loans listed on that Xxxx of Sale and (iii) certify that the
representations and warranties made by SLMA as set forth in Sections 5 (A)
and (B) of these Master Terms are true and correct.
(N) "Initial Cutoff Date" means June 10, 2004.
(O) "Initial Loans" means the Eligible Loans evidenced by the Notes sold on
the Closing Date pursuant to the Initial Purchase Agreement and related
documentation, together with any guaranties and other rights relating
thereto including, without limitation, Interest Subsidy Payments and
Special Allowance Payments.
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(P) "Initial Payment" means the dollar amount specified as the "Initial
Payment" in the Initial Purchase Agreement.
(Q) "Initial Purchase Agreement" means the Purchase Agreement (including
the related Blanket Endorsement, Initial Xxxx of Sale and any attachments
thereto) substantially in the form of Exhibit A hereto (of which these
Master Terms form a part by reference), to be executed by SLMA, Funding and
the Interim Eligible Lender Trustee, which shall certify that the
representations and warranties made by SLMA as set forth in Sections 5 (A)
and (B) of these Master Terms are true and correct as of the Closing Date.
(R) "Loan" means an Initial Loan or an Additional Loan, as applicable,
offered for sale and purchased pursuant.
(S) "Loan Transmittal Summary Forms" means the forms related to each Xxxx
of Sale provided to SLMA by Funding and completed by SLMA that list, by
Borrower, (i) the Loans subject to the related Xxxx of Sale and (ii) the
outstanding Principal Balance and accrued interest thereof as of the
related Cutoff Date.
(T) "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.
(U) [RESERVED]
(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 Agreement" means the Initial Purchase Agreement or an
Additional Purchase Agreement, as applicable.
(X) "Purchase Date" means with respect to the Initial Loans, the Closing
Date, and with respect to any Additional Loans, the date of the related
Additional Xxxx of Sale.
(Y) "Purchase Price" means the Initial Payment or the Additional Loans
Purchase Price, as applicable.
(Z) "Purchased Loans" means, with respect to each Purchase Agreement, the
Loans offered for sale and purchased pursuant to such Purchase Agreement.
(AA) "Sale Agreement" means the Sale Agreement Master Securitization Terms
Number 1000, dated as of June 10, 2004, among SLM Funding LLC, as Seller,
SLM Student Loan Trust 2004-5, as Purchaser, and Chase Manhattan Bank USA,
National Association, as Interim Eligible Lender Trustee and as Eligible
Lender Trustee.
(BB) "Secretary" means the United States Secretary of Education or any
successor.
(CC) "Statistical Cutoff Date" means May 24, 2004.
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(DD) "Subsequent Cutoff Date" means the date specified in the related
Additional Agreement agreed to by SLMA and Funding for the purposes of
determining the Principal Balance and accrued interest to be capitalized of
or on, as applicable, for purposes of completing each related Loan
Transmittal Summary Form.
(EE) [RESERVED]
(FF) "Subsidized" means a Loan for which the interest rate is governed by
Section 427A(a) or 427A(d) of the Higher Education Act.
(GG) "Trust" means SLM Student Loan Trust 2004-5.
(HH) "Trust Student Loan" means any student loan that is listed on the
Schedule of Trust Student Loans on the Closing Date, plus any Additional
Trust Student Loan, plus any student loan that is permissibly substituted
for a Trust Student Loan by the Depositor pursuant to Section 6 of the Sale
Agreement or pursuant to Section 6 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.
(II) "Unsubsidized" means a Loan made pursuant to Section 428H of the
Higher Education Act.
SECTION 3. SALE/PURCHASE
SECTION 3.1 SALE/PURCHASE OF INITIAL LOANS
(A) Consummation of Sale and Purchase
The sale and purchase of Eligible Loans pursuant to the Initial
Purchase Agreement with respect to the Initial Loans shall be consummated
upon: (i) Funding's receipt from SLMA of the Initial Xxxx of Sale; (ii) the
payment by Funding to SLMA of the Initial Payment; and (iii) the assignment
to SLMA of the Excess Distribution Certificate. Upon consummation, such
sale and purchase shall be effective as of the date of the Initial Xxxx of
Sale. SLMA and Funding shall use their best efforts to perform promptly
their respective obligations pursuant to the Initial Purchase Agreement
with respect to each Initial Loan.
(B) Settlement of the Initial Payment
On the date of the Initial Xxxx of Sale, Funding shall pay to SLMA the
Initial Payment by wire transfer of immediately available funds to the
account specified by SLMA.
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(C) Interest Subsidy and Special Allowance Payments and Rebate Fees
SLMA shall be entitled to all Interest Subsidy Payments and Special
Allowance Payments on each Initial Loan accruing up to but not including
the Initial Cutoff Date and shall be responsible for the payment of any
rebate fees applicable to the Initial Loans accruing up to but not
including the Closing Date. The Interim Eligible Lender Trustee on behalf
of Funding shall be entitled to all Special Allowance Payments and Interest
Subsidy Payments on the Initial Loans accruing from the Initial Cutoff
Date, and shall be responsible for the payment of any rebate fees
applicable to the Initial Loans accruing from the Closing Date.
SECTION 3.2 SALE/PURCHASE OF ADDITIONAL LOANS
(A) Requirements Relating to Additional Loans
From time to time during the Funding Period, SLMA may sell Eligible
Loans to Funding, and Funding has the obligation (but only to the extent
that the Eligible Loans are contemporaneously sold to the Eligible Lender
Trustee on behalf of the Trust in accordance with the Sale Agreement and
the related Additional Sale Agreement) to purchase such Additional Loans
from SLMA at the related Additional Loans Purchase Price set forth in the
related Additional Purchase Agreement. The sale and purchase of Additional
Loans pursuant to an Additional Purchase Agreement shall be consummated as
set forth in this Section 3.2.
(B) Consummation of Sale and Purchase
During the Funding Period, the sale and purchase of Eligible Loans
pursuant to an Additional Purchase Agreement shall be consummated upon (i)
Funding's receipt from SLMA of a fully executed copy of the related
Additional Purchase Agreement; and (ii) the payment by Funding to SLMA 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. SLMA
and Funding shall use their best efforts to perform promptly their
respective obligations pursuant to the related Additional Purchase
Agreement with respect to each Additional Loan.
(C) Settlement of the Purchase Price
On the date of the related Additional Xxxx of Sale, Funding shall pay
SLMA the related Purchase Price by wire transfer of immediately available
funds to the account specified by SLMA.
(D) Interest Subsidy and Special Allowance Payments and Rebate Fees
SLMA shall be entitled to all Interest Subsidy Payments and Special
Allowance Payments on the Additional Loans 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 Additional Loans subject to the
related Additional Xxxx of Sale accruing up to but not including the date
of the related Additional Xxxx of Sale. The
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Interim Eligible Lender Trustee on behalf of Funding shall be entitled to
all Special Allowance Payments and Interest Subsidy Payments accruing from
the related Subsequent Cutoff Date with respect to the Additional Loans,
and shall be responsible for the payment of any rebate fees applicable to
the Additional Loans which are Consolidation Loans subject to the related
Additional Xxxx of Sale accruing from the date of the related Additional
Xxxx of Sale.
(D) GENERAL
(i) Special Programs
In consideration of the sale of the Loans under these Master Terms and
the related Purchase Agreements, Funding agrees to cause the Servicer to
offer Borrowers of Trust Student Loans all special programs, whether or not
in existence as of the date of the related Purchase Agreements, generally
offered to the obligors of comparable loans owned by SLMA, at all times
subject to the terms and conditions of Section 3.12 of the Servicing
Agreement. SLMA is selling Loans to Funding without regard to the effect of
the special programs. SLMA shall remit to Funding any amounts by which
payments on the Trust Student Loans are reduced by the special payments as
set forth in Section 3.12 of the Servicing Agreement.
(ii) Intent of the Parties
With respect to each sale of Loans pursuant to these Master Terms and
the related Purchase Agreements, it is the intention of SLMA, the Interim
Eligible Lender Trustee and Funding, and SLMA hereby warrants that, the
transfer and assignment constitute a valid sale of such Loans from SLMA to
the Interim Eligible Lender Trustee, for the benefit of and on behalf of
Funding, and that the beneficial interest in and title to such Loans not be
part of SLMA's estate in the event of the bankruptcy of SLMA or the
appointment of a receiver with respect to SLMA.
SECTION 4. CONDITIONS PRECEDENT TO PURCHASE
Any purchase of Loans pursuant to these Master Terms is subject to the
following conditions precedent being satisfied (and SLMA, by accepting
payment, shall be deemed to have certified that all such conditions are
satisfied on the date of such purchase):
(A) Activities Prior to the Related Purchase Date
SLMA shall provide any assistance requested by Funding in determining
that all required documentation on the related Loans is present and
correct.
(B) Continued Servicing
Following the execution of each Purchase Agreement, SLMA shall
service, or cause to be serviced, all Loans subject to such Purchase
Agreement as required under the Higher Education Act until the date of the
related Xxxx of Sale.
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(C) Xxxx of Sale/Loan Transmittal Summary Form
SLMA shall deliver to Funding:
(i) a Xxxx of Sale that (a) has been duly authorized, executed and
delivered, by an authorized officer of SLMA, covering the applicable
Loans offered by SLMA, (b) has been accepted by Funding as set forth
thereon, selling, assigning and conveying to the Interim Eligible
Lender Trustee on behalf of Funding and its assignees all right, title
and interest of SLMA, including the insurance interest of SLMA, in
each of the related Loans, and (c) states that the representations and
warranties made by SLMA in Sections 5(A) and (B) of these Master Terms
are true and correct on and as of the date of the related Xxxx of
Sale; and
(ii) the Loan Transmittal Summary Form, attached to the related Xxxx
of Sale, identifying each of the Eligible Loans which is the subject
of the related Xxxx of Sale and setting forth the unpaid Principal
Balance of each such related Loan.
(D) Endorsement
SLMA shall provide a blanket endorsement transferring the entire
interest of SLMA in the related Eligible Loans to the Interim Eligible
Lender Trustee on behalf of Funding with the form of endorsement provided
for in the Purchase Agreement with respect to the Initial Loans or the
Additional Purchase Agreement with respect to the Additional Loans.
At the direction of and in such form as Funding may designate, SLMA
also agrees to individually endorse any Eligible Loan as Funding may
request from time to time.
(E) Officer's Certificate
SLMA shall furnish to Funding, with respect to each Xxxx of Sale
provided in connection with each purchase of Eligible Loans pursuant to
these Master Terms, an Officer's Certificate, dated as of the date of the
related Xxxx of Sale.
(F) Loan Transfer Statement
Upon Funding's request, SLMA shall deliver to Funding one (1) or more
Loan Transfer Statements (Department of Education Form OE 1074 or its
equivalent) provided by Funding, executed by SLMA and dated the date of the
related Xxxx of Sale. SLMA agrees that Funding and the Interim Eligible
Lender Trustee may use the related Xxxx of Sale, including the related 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 SLMA
to the Interim Eligible Lender Trustee on behalf of Funding of the Loans
listed on the related Xxxx of Sale.
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(G) Power of Attorney
SLMA hereby grants to Funding and the Interim Eligible Lender Trustee,
on behalf of and for the benefit of Funding, an irrevocable power of
attorney, which power of attorney is coupled with an interest, to
individually endorse or cause to be individually endorsed in the name of
SLMA any Eligible Loan to evidence the transfer of such Eligible Loan to
Funding and the Interim Eligible Lender Trustee for the benefit of Funding
and to cause to be transferred physical possession of any Note from SLMA or
the Servicer to Funding or the Interim Eligible Lender Trustee or any
custodian on their behalf.
(H) Contemporaneous Sale
Subject to the conditions set forth in Section 3.2(A) hereof, with
respect to the purchase of Additional Loans, such Additional Loans shall be
contemporaneously sold to the Eligible Lender Trustee on behalf of the
Trust pursuant to Section 4(H) of the Sale Agreement.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE SELLER AND THE INTERIM ELIGIBLE
LENDER TRUSTEE
(A) General
(i) SLMA represents and warrants to Funding that with respect to the
Initial Loans, as of the Closing Date, and with respect to any
Additional Loans sold by it, as of the related Purchase Date:
(a) SLMA 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;
(b) SLMA is duly organized and existing under the laws of its
governing jurisdiction;
(c) SLMA has all requisite power and authority to enter into and
to perform the terms of these Master Terms, the Initial Purchase
Agreement and any Additional Purchase Agreement, the Initial Xxxx
of Sale and any Additional Xxxx of Sale; and
(d) SLMA will not, with respect to any Loan purchased under
Purchase Agreements executed pursuant to these Master Terms,
agree to release any Guarantor from any of its contractual
obligations as an insurer of such Loan or agree otherwise to
alter, amend or renegotiate any material term or condition under
which such Loan is insured, except as required by law or rules
and regulations issued pursuant to law, without the express prior
written consent of Funding.
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(B) Particular
SLMA represents and warrants to Funding as to the Purchased Loans
purchased by Funding under the Initial Purchase Agreement with respect to
the Initial Loans, or each Additional Purchase Agreement with respect to
the Additional Loans, in each case executed pursuant to these Master Terms
that as of the date of the Initial Purchase Agreement, as of the
Statistical Cutoff Date, or as of the related Additional Purchase
Agreement, as applicable:
(i) SLMA has good and marketable title to, and is the sole owner of,
the Purchased Loans, free and clear of all security interests, liens,
charges, claims, offsets, defenses, counterclaims or encumbrances of
any nature and no right of rescission, offsets, defenses or
counterclaims have been asserted or threatened with respect to those
Loans;
(ii) These Master Terms create a valid and continuing security
interest (as defined in the applicable UCC) in the Purchased Loans in
favor of the Interim Eligible Lender Trustee, which security interest
is prior to all other security interests, liens, charges, claims,
offsets, defenses, counterclaims or encumbrances, and is enforceable
as such as against creditors of and purchasers from SLMA;
(iii) The Purchased Loans constitute "Accounts" within the meaning of
the applicable UCC and are within the coverage of Sections
432(m)(1)(E) and 439(d)(3) of the Higher Education Act;
(iv) The Purchased Loans are Eligible Loans and the description of
such Loans set forth in the related Purchase Agreement and the related
Loan Transmittal Summary Form is true and correct;
(v) SLMA is authorized to sell, assign, transfer and repurchase the
Purchased Loans; and the sale, assignment and transfer of such Loans
is or, in the case of the repurchase of a Purchased Loan repurchase by
SLMA, will be made pursuant to and consistent with the laws and
regulations under which SLMA operates, and will not violate any
decree, judgment or order of any court or agency, or conflict with or
result in a breach of any of the terms, conditions or provisions of
any agreement or instrument to which SLMA is a party or by which SLMA
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;
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(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 Interim Eligible Lender Trustee on
behalf of Funding as an incident to the purchase of each Loan; and all
premiums due and payable to such Guarantor shall have been paid in
full as of the date of the related Xxxx of Sale;
(ix) Any payments on the Purchased Loans received by SLMA that have
been allocated to the reduction of principal and interest on such
Purchased Loans have been allocated on a simple interest basis; the
information with respect to the applicable Purchased Loans as of the
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;
(xii) Each Loan has been duly made and serviced in accordance with the
provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days past due as of
the Statistical Cutoff Date, with respect to the Initial Loans, and
the Subsequent Cutoff Date and no default, breach, violation or event
permitting acceleration under the terms of any Loan has arisen; and
neither SLMA 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 SLMA, the Interim Eligible Lender Trustee
and Funding, and SLMA hereby warrants, that the transfer and
assignment herein contemplated constitute a valid sale of the Loans
from SLMA to the Interim Eligible Lender Trustee, for the benefit of
and on behalf of Funding, and that the beneficial interest in and
title to such Loans not be part of SLMA's estate in the event of the
bankruptcy of SLMA or the appointment of a receiver with respect to
SLMA;
(xv) With respect to the first sale of Loans from SLMA to the Interim
Eligible Lender Trustee for the benefit of Funding, it has caused or
will have caused, within ten days, the filing of all appropriate
financing statements in the proper filing office in the appropriate
jurisdictions under applicable law in order to perfect the security
interest in the Loans granted to the Interim Eligible Lender Trustee
hereunder;
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(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, the
Servicer has possession of the electronic records evidencing the Note.
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
SLMA in favor of the Interim Eligible Lender Trustee on behalf of the
Purchaser in connection herewith describing the Loans contain a
statement to the following effect: "A purchase of or security interest
in any collateral described in this financing statement will violate
the rights of the Interim Eligible Lender Trustee;"
(xvii) Other than the security interest granted to the Interim
Eligible Lender Trustee pursuant to this Agreement, SLMA has not
pledged, assigned, sold, granted a security interest in, or otherwise
conveyed any of the Purchased Loans. SLMA has not authorized the
filing of and are not aware of any financing statements against SLMA
that include a description of collateral covering the Purchased Loans
other than any financing statement relating to the security interest
granted to the Interim Eligible Lender Trustee hereunder or any other
security interest that has been terminated. SLMA is not aware of any
judgment or tax lien filings against SLMA;
(xviii) No Borrower of a Purchased Loan as of the related Cutoff Date
is noted in the related Loan File as being currently involved in a
bankruptcy proceeding; and
(xix) With respect to all Additional Loans, the Funding Period is in
full force and effect.
(C) The Interim Eligible Lender Trustee represents and warrants that as of
the date of each Purchase Agreement and each Xxxx of Sale:
(i) The Interim Eligible Lender Trustee is duly organized and validly
existing in good standing under the laws of its governing jurisdiction
and has an office located within the State of Delaware. It has all
requisite corporate power and authority to execute, deliver and
perform its obligations under these Master Terms, each Purchase
Agreement and each Xxxx of Sale;
(ii) The Interim Eligible Lender Trustee has taken all corporate
action necessary to authorize the execution and delivery by it of
these Master Terms and each Purchase Agreement, and these Master Terms
and each Purchase Agreement will be executed and delivered by one of
its officers who is duly authorized to execute and deliver these
Master Terms and each Purchase Agreement on its behalf;
13
(iii) Neither the execution nor the delivery by it of these Master
Terms and each Purchase Agreement, nor the consummation by it of the
transactions contemplated hereby or thereby nor compliance by it with
any of the terms or provisions hereof or thereof will contravene any
Federal or Delaware state law, governmental rule or regulation
governing the banking or trust powers of the Interim Eligible Lender
Trustee or any judgment or order binding on it, or constitute any
default under its charter documents or by-laws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or
by which any of its properties may be bound; and
(iv) The Interim Eligible Lender Trustee is an "eligible lender" as
such term is defined in Section 435(d) of the Higher Education Act,
for purposes of holding legal title to the Trust Student Loans as
contemplated by these Master Terms, each Purchase Agreement and the
other Basic Documents, it has a lender identification number with
respect to the Trust Student Loans from the Department and has in
effect a Guarantee Agreement with each of the Guarantors with respect
to the Trust Student Loans.
SECTION 6. REPURCHASE OF TRUST STUDENT LOANS; REIMBURSEMENT
Each party to these Master Terms shall give notice to the other parties
promptly, in writing, upon the discovery of any breach of SLMA's representations
and warranties made pursuant to Sections 5 (A) and (B) hereof which has a
materially adverse effect on the interest of Funding in any Trust Student Loan.
In the event of such a material breach which is not curable by reinstatement of
the applicable Guarantor's guarantee of such Trust Student Loan, SLMA shall
repurchase any affected Trust Student Loan not later than 120 days following the
earlier of the date of discovery of such material breach and the date of receipt
of the Guarantor reject transmittal form with respect to such Trust Student
Loan. In the event of such a material breach which is curable by reinstatement
of the Guarantor's guarantee of such Trust Student Loan, unless the material
breach shall have been cured within 360 days following the earlier of the date
of discovery of such material breach and the date of receipt of the Guarantor
reject transmittal form with respect to such Trust Student Loan, SLMA shall
purchase such Trust Student Loan not later than the sixtieth day following the
end of such 360-day period. SLMA shall also remit as provided in Section 2.6 of
the Administration Agreement on the date of purchase of any Trust Student Loan
pursuant to this Section 6 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 Xxxxxxx 0, XXXX 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 SLMA does
not trigger such purchase obligation but does result in the refusal by a
Guarantor to guarantee all or a portion of the accrued interest (or any
obligation of Funding to repay such interest to a Guarantor), or the loss
(including any obligation of Funding to repay the Department) of Interest
Subsidy Payments and Special Allowance Payments, with respect to any Trust
Student Loan affected by such breach, then SLMA shall reimburse Funding by
remitting an amount equal to the sum of all such non-guaranteed interest amounts
and such forfeited Interest Subsidy
14
Payments or Special Allowance Payments in the manner specified in Section 2.6 of
the Administration Agreement not later than (i) the last day of the next
Collection Period ending not less than 60 days from the date of the Guarantor's
refusal to guarantee all or a portion of accrued interest or loss of Interest
Subsidy Payments or Special Allowance Payments, or (ii) in the case where SLMA
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, SLMA shall not be required to reimburse Funding
for interest that is then capitalized, however, such amounts shall be reimbursed
if the borrower subsequently defaults and such capitalized interest is not paid
by the Guarantor.
Anything in this Section 6 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 SLMA or the Servicer, exceeds 1% of the Pool Balance, SLMA (and the
Servicer as provided in the Servicing Agreement) shall purchase, within 30 days
of a written request of the Eligible Lender Trustee or the Indenture Trustee,
such affected Trust Student Loans in an aggregate principal amount such that
after such purchase the aggregate principal amount of such affected Trust
Student Loans is less than 1% of the Pool Balance. The Trust Student Loans to be
purchased by SLMA and the Servicer pursuant to the preceding sentence shall be
based on the date of claim rejection (or the date of notice referred to in the
first sentence of this Section 6) with Trust Student Loans with the earliest
such date to be purchased first.
In lieu of repurchasing Trust Student Loans pursuant to this Xxxxxxx 0,
XXXX 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 or Subsidized Consolidation
(pre-1993 vs. post-1993));
3. school type;
4. total return;
5. principal balance; and
6. remaining term to maturity.
In addition, each substituted Eligible Loan will comply, as of the date of
substitution, with all of the representations and warranties made hereunder. In
choosing Eligible Loans to be substituted pursuant to this Xxxxxxx 0, XXXX shall
make a reasonable determination that the Eligible Loans to be substituted will
not have a material adverse effect on the Noteholders.
15
In the event that SLMA elects to substitute Eligible Loans pursuant to this
Xxxxxxx 0, XXXX 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. SLMA
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. The sole remedy of Funding, the
Eligible Lender Trustee and the Noteholders with respect to a breach by SLMA
pursuant to Sections 5 (A) and (B) hereof shall be to require SLMA to purchase
such Trust Student Loans, to reimburse Funding as provided above or to
substitute Eligible Loans pursuant to this Section 6. 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 SLMA with respect to amounts accrued after the
date of the related Xxxx of Sale for any Purchased Loan, which payment is
not reflected in the related Loan Transmittal Summary Form, shall be
received by SLMA in trust for the account of Funding and SLMA hereby
disclaims any title to or interest in any such amounts. Within two (2)
Business Days following the date of receipt, SLMA shall remit to Funding an
amount equal to any such payments along with a listing on a form provided
by Funding identifying the Purchased Loans with respect to which such
payments were made, the amount of each such payment and the date each such
payment was received.
(B) Any written communication received at any time by SLMA with respect to
any Loan subject to these Master Terms or the related Purchase Agreement
shall be transmitted by SLMA to the Servicer within two (2) Business Days
of receipt. Such communications shall include, but not be limited to,
letters, notices of death or disability, notices of bankruptcy, forms
requesting deferment of repayment or loan cancellation, and like documents.
SECTION 8. CONTINUING OBLIGATION OF THE SELLER
SLMA shall provide all reasonable assistance necessary for Funding to
resolve account problems raised by any Borrower, the Guarantor or the Secretary
provided such account problems are attributable to or are alleged to be
attributable to (a) an event occurring during the period SLMA owned the related
Purchased Loan, or (b) a payment made or alleged to have been made to SLMA.
Further, SLMA agrees to execute any financing statements at the request of
Funding in order to reflect Funding's interest in the Loans.
SECTION 9. LIABILITY OF THE SELLER; INDEMNITIES
SLMA shall be liable in accordance herewith only to the extent of the
obligations specifically undertaken by SLMA under these Master Terms and each
related Purchase Agreement.
16
(i) SLMA shall indemnify, defend and hold harmless Funding and the
Interim Eligible Lender Trustee in its individual capacity and their
officers, directors, employees and agents from and against any taxes
that may at any time be asserted against any such Person with respect
to the transactions contemplated herein and in the other Basic
Documents (except any such income taxes arising out of fees paid to
the Interim Eligible Lender Trustee), including any sales, gross
receipts, general corporation, tangible and intangible personal
property, privilege or license taxes (but, in the case of Funding, not
including any taxes asserted with respect to, and as of the date of,
the sale of the Purchased Loans to the Interim Eligible Lender Trustee
on behalf of Funding, or asserted with respect to ownership of the
Trust Student Loans) and costs and expenses in defending against the
same.
(ii) SLMA shall indemnify, defend and hold harmless Funding and the
Interim Eligible Lender Trustee in its individual capacity, and the
officers, directors, employees and agents of Funding and the Interim
Eligible Lender Trustee from and against any and all costs, expenses,
losses, claims, damages and liabilities arising out of, or imposed
upon such Person through, SLMA's willful misfeasance, bad faith or
gross negligence in the performance of its duties under these Master
Terms or by reason of reckless disregard of its obligations and duties
under these Master Terms.
(iii) SLMA shall be liable as primary obligor for, and shall
indemnify, defend and hold harmless the Interim Eligible Lender
Trustee in its individual capacity and its officers, directors,
employees and agents from and against, all costs, expenses, losses,
claims, damages, obligations and liabilities arising out of, incurred
in connection with or relating to these Master Terms, the other Basic
Documents, the acceptance or performance of the trusts and duties set
forth herein and in the Sale Agreement or the action or the inaction
of the Interim Eligible Lender Trustee hereunder, except to the extent
that such cost, expense, loss, claim, damage, obligation or liability:
(a) shall be due to the willful misfeasance, bad faith or negligence
(except for errors in judgment) of the Interim Eligible Lender
Trustee, (b) shall arise from any breach by the Interim Eligible
Lender Trustee of its covenants made under any of the Basic Documents;
or (c) shall arise from the breach by the Interim Eligible Lender
Trustee of any of its representations or warranties made in its
individual capacity set forth in these Master Terms or any Purchase
Agreement. In the event of any claim, action or proceeding for which
indemnity will be sought pursuant to this paragraph, the Interim
Eligible Lender Trustee's choice of legal counsel shall be subject to
the approval of SLMA, which approval shall not be unreasonably
withheld.
Indemnification under this Section 9 shall survive the resignation or
removal of the Interim Eligible Lender Trustee and the termination of these
Master Terms and shall include reasonable fees and expenses of counsel and
expenses of litigation. If SLMA shall have made any indemnity payments pursuant
to this Section 9 and the Person to or on behalf of whom such payments are made
thereafter shall collect any of such amounts from others, such Person shall
promptly repay such amounts to SLMA, without interest.
17
SECTION 10. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS OF THE
SELLER
Any Person (a) into which SLMA may be merged or consolidated, (b) which may
result from any merger or consolidation to which SLMA shall be a party or (c)
which may succeed to the properties and assets of SLMA substantially as a whole,
shall be the successor to SLMA without the execution or filing of any document
or any further act by any of the parties to these Master Terms; provided,
however, that SLMA 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 SLMA, executes an agreement of assumption to
perform every obligation of SLMA under these Master Terms, each Purchase
Agreement and each Xxxx of Sale; (ii) immediately after giving effect to such
transaction, no representation or warranty made pursuant to Section 5 shall have
been breached; (iii) the surviving Person, if other than SLMA, shall have
delivered to the Interim Eligible Lender Trustee an Officers' Certificate and an
Opinion of Counsel each stating that such consolidation, merger or succession
and such agreement of assumption comply with this Section 10 and that all
conditions precedent, if any, provided for in these Master Terms relating to
such transaction have been complied with, and that the Rating Agency Condition
shall have been satisfied with respect to such transaction; and (iv) if SLMA is
not the surviving entity, SLMA shall have delivered to the Interim Eligible
Lender Trustee an Opinion of Counsel either (A) stating that, in the opinion of
such counsel, all financing statements and continuation statements and
amendments thereto have been executed and filed that are necessary fully to
preserve and protect the interest of Funding and the Interim Eligible Lender
Trustee, respectively, in the Purchased Loans and reciting the details of such
filings, or (B) stating that, in the opinion of such counsel, no such action
shall be necessary to preserve and protect such interests.
SECTION 11. LIMITATION ON LIABILITY OF THE SELLER AND OTHERS
SLMA 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 SLMA's
obligations under Section 6). SLMA shall not be under any obligation to appear
in, prosecute or defend any legal action that shall not be incidental to its
obligations under these Master Terms or any Purchase Agreement, and that in its
opinion may involve it in any expense or liability. Except as provided herein,
the repurchase (or substitution) and reimbursement obligations of SLMA will
constitute the sole remedy available to the applicable 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 of the Purchased Loans listed on the
related Xxxx of Sale is less than the aggregate Principal Balance stated on the
related Xxxx of Sale, SLMA shall remit such amount to the Interim Eligible
Lender Trustee, for the benefit of and on behalf of Funding. Such reconciliation
payment shall be made from time to time but no less frequently than
semi-annually.
18
SECTION 12. LIMITATION OF LIABILITY OF INTERIM ELIGIBLE LENDER
Notwithstanding anything contained herein to the contrary, these Master
Terms and the Initial Purchase Agreement have been, and any Additional Purchase
Agreement will be, signed by Chase Manhattan Bank USA, National Association not
in its individual capacity but solely in its capacity as Interim Eligible Lender
Trustee for Funding, and in no event shall Chase Manhattan Bank USA, National
Association in its individual capacity have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Interim Eligible Lender Trustee or Funding, under these Master Terms or any
Purchase Agreements or in any of the certificates, notices or agreements
delivered pursuant hereto, as to all of which recourse shall be had solely to
the assets of Funding.
SECTION 13. EXPENSES
Except as otherwise provided herein, each party to these Master Terms or
any Purchase Agreement shall pay its own expense incurred in connection with the
preparation, execution and delivery of these Master Terms and any Purchase
Agreement and the transactions contemplated herein or therein.
SECTION 14. SURVIVAL OF COVENANTS/SUPERSESSION
All covenants, agreements, representations and warranties made herein and
in or pursuant to each Purchase Agreement and Additional Purchase Agreement,
executed pursuant to these Master Terms shall survive the consummation of the
acquisition of the Purchased Loans provided for in the related Purchase
Agreement. All covenants, agreements, representations and warranties made or
furnished pursuant hereto by or on behalf of SLMA shall bind and inure to the
benefit of any successors or assigns of Funding and the Interim Eligible Lender
Trustee on behalf of Funding and shall survive with respect to each Purchased
Loan. Each Purchase Agreement supersedes all previous agreements and
understandings between Funding and SLMA with respect to the subject matter
thereof. These Master Terms and any Purchase Agreement may be changed, modified
or discharged, and any rights or obligations hereunder may be waived, only by a
written instrument signed by a duly authorized officer of the party against whom
enforcement of any such waiver, change, modification or discharge is sought. The
waiver by Funding of any covenant, agreement, representation or warranty
required to be made or furnished by SLMA or the waiver by Funding of any
provision herein contained or contained in any Purchase Agreement shall not be
deemed to be a waiver of any breach of any other covenant, agreement,
representation, warranty or provision herein contained, nor shall any waiver or
any custom or practice which may evolve between the parties in the
administration of the terms hereof or of any Purchase Agreement, be construed to
lessen the right of Funding to insist upon the performance by SLMA in strict
accordance with said terms.
SECTION 15. COMMUNICATION AND NOTICE REQUIREMENTS
All communications, notices and approvals provided for hereunder shall be
in writing and mailed or delivered to SLMA or Funding, as the case may be,
addressed as set forth in the related Purchase Agreement or at such other
address as either party may hereafter designate by notice to the other party.
Notice given in any such communication, mailed to SLMA or Funding by
19
appropriately addressed registered mail, shall be deemed to have been given on
the day following the date of such mailing.
SECTION 16. FORM OF INSTRUMENTS
All instruments and documents delivered in connection with these Master
Terms and any Purchase Agreement, and all proceedings to be taken in connection
with these Master Terms and any Purchase Agreement, and the transactions
contemplated herein and therein, shall be in a form as set forth in the
attachments hereto, and Funding shall have received copies of such documents as
it or its counsel shall reasonably request in connection therewith. Any
instrument or document which is substantially in the same form as an attachment
hereto or a recital herein will be deemed to be satisfactory as to form.
SECTION 17. AMENDMENT
These Master Terms, any Purchase Agreement, any Xxxx of Sale and any
document or instrument delivered in accordance herewith or therewith may be
amended by the parties thereto without the consent of the related Noteholders
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions in the related document or modifying in any
manner the rights of such Noteholders; provided that such action will not, in
the opinion of counsel satisfactory to the related Indenture Trustee, materially
and adversely affect the interest of any such Noteholder.
These Master Terms, any Purchase Agreement and any document or instrument
delivered in accordance herewith or therewith may also be amended from time to
time by SLMA, the Interim Eligible Lender Trustee and Funding, with the consent
of the Noteholders of Notes evidencing a majority of the Outstanding Amount of
the Notes, for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions in the related document or modifying in any
manner the rights of the Noteholders; provided, however, that no such amendment
shall (a) increase or reduce in any manner the amount of, or accelerate or delay
the time of, collections of payments with respect to Purchased Loans or
distributions that shall be required to be made for the benefit of the
Noteholders or (b) reduce the aforesaid percentage of the Outstanding Amount of
the Notes, the Noteholders of which are required to consent to any such
amendment, without the consent of all outstanding Noteholders.
Promptly after the execution of any such amendment or consent (or, in the
case of the Rating Agencies, five Business Days prior thereto), the Interim
Eligible Lender Trustee shall furnish written notification of the substance of
such amendment or consent to the Indenture Trustee and each of the Rating
Agencies.
It shall not be necessary for the consent of Noteholders pursuant to this
Section 17 to approve the particular form of any proposed amendment or consent,
but it shall be sufficient if such consent shall approve the substance thereof.
Prior to the execution of any amendment to these Master Terms, the Interim
Eligible Lender Trustee shall be entitled to receive and rely upon an Opinion of
Counsel stating that execution of such amendment is authorized or permitted by
these Master Terms and the Opinion of Counsel referred to in Section 7.1(i)(i)
of the Administration Agreement. The Interim Eligible
20
Lender Trustee may, but shall not be obligated to, enter into any such amendment
which affects the Interim Eligible Lender Trustee's own rights, duties or
immunities under these Master Terms or otherwise.
SECTION 18. NONPETITION COVENANTS
Notwithstanding any prior termination of these Master Terms, SLMA and the
Interim Eligible Lender Trustee shall not acquiesce, petition or otherwise
invoke or cause Funding to invoke the process of any court or government
authority for the purpose of commencing or sustaining a case against Funding
under any Federal or state bankruptcy, insolvency or similar law or appointing a
receiver, liquidator, assignees, trustee, custodian, sequestrator or other
similar official of Funding or any substantial part of its property, or ordering
the winding up or liquidation of the affairs of Funding.
SECTION 19. GOVERNING LAW
These Master Terms and any Purchase Agreement shall be governed by and
construed in accordance with the laws of the State of New York without reference
to its conflict of law provisions, and the obligations, rights and remedies of
the parties, hereunder shall be determined in accordance with such laws.
21
IN WITNESS WHEREOF, the parties hereto have caused these Master Terms to be
duly executed by their respective officers hereunto duly authorized, as of the
day and year first above written.
STUDENT LOAN MARKETING SLM FUNDING LLC
ASSOCIATION (Seller) (Purchaser)
By: /s/ XXXXXXX X. XXXXXXX By: /s/ XXXX X. XXXXXX
------------------------- -------------------------
Name: Xxxxxxx X. Xxxxxxx Name: Xxxx X. Xxxxxx
Title: Vice President Title: Vice President
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Interim Eligible Lender Trustee
By: /s/ XXXX X. XXXXXX
-------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
22
Exhibit A
INITIAL PURCHASE AGREEMENT
Dated as of June 10, 2004
PURCHASE AGREEMENT NUMBER 1
Pursuant to the Master Terms (as defined below), SLMA hereby offers
for sale to Chase Manhattan Bank USA, National Association as Interim Eligible
Lender Trustee for the benefit of SLM Funding LLC ("Funding") under the Interim
Trust Agreement dated as of June 1, 2004 between Funding and the Interim
Eligible Lender Trustee, the entire right, title and interest of SLMA in the
Loans described in the related Xxxx of Sale and the related Loan Transmittal
Summary Form incorporated herein and, to the extent indicated below, the Interim
Eligible Lender Trustee for the benefit of Funding accepts SLMA's offer. In
order to qualify as Eligible Loans, no payment of principal or interest shall be
more than two hundred and ten (210) days Delinquent as of the Statistical Cutoff
Date, which date shall be May 24, 2004.
TERMS, CONDITIONS AND COVENANTS
In consideration of the Purchase Price, SLMA hereby sells to the Interim
Eligible Lender Trustee for the benefit of Funding the entire right, title and
interest of SLMA in the Loans accepted for purchase, subject to all the terms
and conditions of the Purchase Agreement Master Securitization Terms Number 1000
(the "Master Terms") and any amendments thereto, incorporated herein by
reference, among SLMA, Funding, and the Interim Eligible Lender Trustee. The
Initial Payment for the Loans shall equal $121,764,822.23 equal to
$1,735,631,500 (representing the sale price of the Floating Rate Notes less
underwriters' discounts and fees), plus $1,295,956,000 (representing the sale
price of the Reset Rate Notes less initial purchasers' commissions and fees),
less $7,425,742 (representing the Reserve Account Initial Deposit), less
$35,000,000 (representing the Capitalized Interest Account Initial Deposit),
less $155,000 (representing the Interest Rate Cap Agreement Upfront Payment),
less $3,200,000 (representing the Collection Account Initial Deposit), less
$589,349,348 (representing the Pre-Funding Account Initial Deposit), less
$2,271,171,499.15 (representing the purchase price of the Trust Student Loans
being sold to the Interim Eligible Lender Trustee by SLM Education Loan Corp.
and VG Funding, LLC contemporaneous herewith).
This document shall constitute the Initial Purchase Agreement referred to
in the Master Terms and, except as modified herein, each term used herein shall
have the same meaning as in the Master Terms. All references in the Master Terms
to Loans or Initial Loans or to Purchased Loans, as applicable, shall be deemed
to refer to the Loans governed by this Initial Purchase Agreement. SLMA hereby
makes the representations and warranties set forth in Sections 5(A) and (B) of
the Master Terms regarding the Initial Loans described in the Initial Xxxx of
Sale and the related Loan Transmittal Summary Form, as of the Closing Date.
SLMA authorizes the Interim Eligible Lender Trustee for the benefit of
Funding to use a copy of the Initial Xxxx of Sale, including the Loan
Transmittal Summary Form attached to the Initial Xxxx of Sale (in lieu of OE
Form 1074), as official notification to the applicable Guarantors
1
of assignment to the Interim Eligible Lender Trustee on behalf of Funding of the
Initial Loans purchased pursuant hereto on the Closing Date.
The parties hereto intend that the transfer of Purchased Loans described in
the Initial Xxxx of Sale and related Loan Transmittal Summary Form be, and be
construed as, a valid sale of such Purchased Loans from SLMA to the Interim
Eligible Lender Trustee for the benefit of Funding. However, in the event that
notwithstanding the intention of the parties, such transfer is deemed to be a
transfer for security, then SLMA hereby grants to the Interim Eligible Lender
Trustee for the benefit of Funding a first priority security interest in and to
all Purchased Loans described in the Initial Xxxx of Sale and related Loan
Transmittal Summary Form to secure a loan in an amount equal to the Purchase
Price of such Purchased Loans.
2
IN WITNESS WHEREOF, the parties hereto have caused this Initial Purchase
Agreement Number 1 to be duly executed by their respective officers hereunto
duly authorized, as of the day and year first above written.
STUDENT LOAN MARKETING ASSOCIATION
(Seller)
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
SLM FUNDING LLC
(Purchaser)
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
CHASE MANHATTAN BANK
USA, NATIONAL ASSOCIATION, not in its
individual capacity but solely as
Interim Eligible Lender Trustee
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
3
INITIAL PURCHASE AGREEMENT NUMBER 1
BLANKET ENDORSEMENT DATED JUNE 10, 2004
Student Loan Marketing Association ("SLMA"), 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 executed by SLMA in
favor of Chase Manhattan Bank USA, National Association, as the Interim Eligible
Lender Trustee for the benefit of SLM Funding LLC ("Funding"). This endorsement
is in blank, unrestricted form and without recourse except as provided in
Section 6 of the Master Terms referred to in the Initial Purchase Agreement
among SLMA, Funding and the Interim Eligible Lender Trustee which covers the
promissory note.
This endorsement may be effected by attaching either this instrument or a
facsimile hereof to each or any of the Notes.
Notwithstanding the foregoing, SLMA agrees to individually endorse each
Note in the form provided by Funding as Funding may from time to time require or
if such individual endorsement is required by the Guarantor of the Note.
THE SALE AND PURCHASE OF THE PURCHASED LOANS SHALL BE SUBJECT TO THE TERMS,
CONDITIONS AND COVENANTS, INCLUDING THIS BLANKET ENDORSEMENT, AS SET FORTH IN
THE INITIAL PURCHASE AGREEMENT. BY EXECUTION HEREOF, SLMA ACKNOWLEDGES THAT SLMA
HAS READ, UNDERSTANDS AND AGREES TO BE BOUND BY ALL TERMS, CONDITIONS AND
COVENANTS OF THE INITIAL PURCHASE AGREEMENT. THE SALE AND PURCHASE SHALL BE
CONSUMMATED UPON FUNDING'S PAYMENT TO SLMA OF THE INITIAL PAYMENT (AS DEFINED IN
THE MASTER TERMS) AND, UNLESS OTHERWISE AGREED BY SLMA AND FUNDING, 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
--------------------------------------- --------------------------------------
Student Loan Marketing Association Chase Manhattan Bank USA, National
11600 Xxxxxx Xxx Drive Association, not in its individual
Xxxxxx, Xxxxxxxx 00000 capacity but solely as Interim
Eligible Lender Trustee for the
Lender Code: benefit of SLM Funding LLC
--------------------------
By: By:
----------------------------------- ----------------------------------
(Signature of Authorized Officer) (Signature of Authorized Signatory
for Purchaser)
Name: Name:
--------------------------------- --------------------------------
Title: Title:
-------------------------------- -------------------------------
Date of Purchase:
--------------------
--------------------------------------- --------------------------------------
2
Exhibit B
INITIAL XXXX OF SALE DATED JUNE 10, 2004
The undersigned ("SLMA"), for value received and pursuant to the terms and
conditions of Purchase Agreement Number 1 (the "Purchase Agreement") among SLM
Funding LLC ("Funding"), and Chase Manhattan Bank USA, National Association, as
Interim Eligible Lender Trustee for the benefit of Funding under the Interim
Trust Agreement dated as of June 1, 2004 between Funding and the Interim
Eligible Lender Trustee, does hereby sell, assign and convey to the Interim
Eligible Lender Trustee for the benefit of Funding and its assignees all right,
title and interest of SLMA, including the insurance interest of SLMA under the
Federal Family Education Loan Program (20 U.S.C. 1071 et seq.), that the Interim
Eligible Lender Trustee for the benefit of Funding has accepted for purchase.
The portfolio of Initial Loans accepted for purchase by the Interim Eligible
Lender Trustee for the benefit of Funding and the effective date of sale and
purchase are described below and the individual accounts are listed on the
Schedule A attached hereto.
SLMA hereby makes the representations and warranties set forth in Section 5
of the Purchase Agreement Master Securitization Terms Number 1000 incorporated
by reference in the Initial Purchase Agreement. SLMA authorizes the Interim
Eligible Lender Trustee on behalf of Funding to use a copy of this document (in
lieu of OE Form 1074) as official notification to the Guarantor(s) of assignment
to the Interim Eligible Lender Trustee for the benefit of Funding of the 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 related Cutoff Date
.. Loan is not swap-pending
*Based upon SLMA's estimated calculations, which may be adjusted upward or
downward based upon Funding's reconciliation.
** Includes interest to be capitalized.
2
Guarantor(s): [SLM TO ADVISE REGARDING SPLIT AMONG SELLERS]
American Student Assistance
California Student Aid Commission
Colorado Student Loan Program
Connecticut Student Loan Foundation
Educational Credit Management Corporation of Virginia
Florida Bureau of Student Financial Assistance
Georgia Higher Education Assistance Corporation
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
Montana Guaranteed Student Loan Program
Nebraska Student Loan Program
New Jersey Office of Student Assistance
New York State Higher Education Services Corporation
Northwest Education Loan Association
Oklahoma Guaranteed Student Loan Program
Oregon State Scholarship Commission
Pennsylvania Higher Education Assistance Agency
Student Loan Guarantee Foundation of Arkansas, Inc.
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
--------------------------------------- --------------------------------------
Student Loan Marketing Association Chase Manhattan Bank USA, National
11600 Xxxxxx Xxx Drive Association, not in its individual
Xxxxxx, Xxxxxxxx 00000 capacity but solely as Interim
Eligible Lender Trustee for the
Lender Code: benefit of SLM Funding LLC
--------------------------
By: By:
----------------------------------- ----------------------------------
(Signature of Authorized Officer) (Signature of Authorized Signatory
for Purchaser)
Name: Name:
--------------------------------- --------------------------------
Title: Title:
-------------------------------- -------------------------------
Date of Purchase:
--------------------
--------------------------------------- --------------------------------------
4
Exhibit C
ADDITIONAL PURCHASE AGREEMENT NUMBER [ ]
---
Dated as of [ ], 2004
------
ADDITIONAL PURCHASE AGREEMENT NUMBER [ ]
---
SLMA hereby offers for sale to Chase Manhattan Bank USA, National
Association, as Interim Eligible Lender Trustee for the benefit of SLM Funding,
LLC ("Funding"), under the Interim Trust Agreement dated as of June 1, 2004
between the Purchaser and the Interim Eligible Lender Trustee, the entire right,
title and interest of SLMA in the Loans described in the related Additional Xxxx
of Sale and the related Loan Transmittal Summary Form incorporated herein, and,
to the extent indicated below, the Interim Eligible Lender Trustee for the
benefit of Funding accepts SLMA's offer.
TERMS, CONDITIONS AND COVENANTS
In consideration of the Purchase Price, SLMA hereby sells to the Interim
Eligible Lender Trustee for the benefit of Funding the entire right, title and
interest of SLMA in the Loans accepted for purchase, subject to all the terms
and conditions of the Purchase Agreement Master Securitization Terms Number
1000, dated June 10, 2004 (the "Master Terms"), and any amendments thereto
permitted by its terms, incorporated herein by reference, among SLMA, Funding
and the Interim Eligible Lender Trustee. The applicable Additional Loans
Purchase Price shall be $[ ].
------
This document shall constitute an Additional Purchase Agreement as referred
to in the Master Terms and, except as modified herein, each term used herein
shall have the same meaning as in the Master Terms. All references in the Master
Terms to Loans or Additional Loans or to Purchased Loans, as applicable, shall
be deemed to refer to the Additional Loans governed by this Additional Purchase
Agreement. SLMA hereby makes the representations and warranties set forth in
Sections 5(A) and (B) of the Master Terms regarding the Additional Loans
described in the related Additional Xxxx of Sale and the related Loan
Transmittal Summary Form, as of the related Purchase Date.
SLMA authorizes the Interim Eligible Lender Trustee for the benefit of the
Purchaser to use a copy of the related Additional Xxxx of Sale, including the
Loan Transmittal Summary Form attached to such Additional Xxxx of Sale (in lieu
of OE Form 1074), as official notification to the applicable Guarantor of
assignment to the Interim Eligible Lender Trustee on behalf of the Purchaser of
the Loans purchased pursuant hereto on the Purchase Date.
The parties hereto intend that the transfer of Additional Loans described
in the related Additional Xxxx of Sale and related Loan Transmittal Summary Form
be, and be construed as, a valid sale of such Purchased Loans from SLMA to the
Interim Eligible Lender Trustee for the benefit of the Purchaser. However, in
the event that notwithstanding the intention of the parties, such transfer is
deemed to be a transfer for security, then SLMA hereby grants to the Interim
Eligible Lender Trustee for the benefit of the Purchaser a first priority
security interest in and to
1
all Additional Loans described in the related Additional Xxxx of Sale and
related Loan Transmittal Summary Form to secure a loan in an amount equal to the
Purchase Price of such Purchased Loans.
IN WITNESS WHEREOF, the parties hereto have caused this Additional Purchase
Agreement Number [ ] to be duly executed by their respective officers hereunto
--
duly authorized, as of the day and year first above written.
STUDENT LOAN MARKETING ASSOCIATION
(Seller)
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
SLM FUNDING LLC
(Purchaser)
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
CHASE MANHATTAN BANK
USA, NATIONAL ASSOCIATION, not in its
individual capacity but solely as
Interim Eligible Lender Trustee
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
2
ADDITIONAL PURCHASE AGREEMENT NUMBER [ ]
---
[ ] BLANKET ENDORSEMENT DATED [ ], 2004
--- ------
Student Loan Marketing Association ("SLMA"), 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 SLMA in
favor of Chase Manhattan Bank USA, National Association, as the Interim Eligible
Lender Trustee for the benefit of SLM Funding LLC ("Funding"). This endorsement
is in blank, unrestricted form and without recourse except as provided in
Section 6 of the Master Terms referred to in the Additional Purchase Agreement
among SLMA, Funding and the Interim Eligible Lender Trustee which covers the
promissory note (the "Additional Purchase Agreement").
This endorsement may be effected by attaching either this instrument or a
facsimile hereof to each or any of the Notes.
Notwithstanding the foregoing, SLMA agrees to individually endorse each
Note in the form provided by Funding as Funding may from time to time require or
if such individual endorsement is required by the Guarantor of the Note.
THE SALE AND PURCHASE OF THE ADDITIONAL LOANS SHALL BE SUBJECT TO THE TERMS,
CONDITIONS AND COVENANTS, INCLUDING THIS BLANKET ENDORSEMENT, AS SET FORTH IN
THE RELATED ADDITIONAL PURCHASE AGREEMENT. BY EXECUTION HEREOF, SLMA
ACKNOWLEDGES THAT SLMA HAS READ, UNDERSTANDS AND AGREES TO BE BOUND BY ALL
TERMS, CONDITIONS AND COVENANTS OF THE ADDITIONAL PURCHASE AGREEMENT. THE SALE
AND PURCHASE SHALL BE CONSUMMATED UPON FUNDING'S PAYMENT TO SLMA OF THE
ADDITIONAL LOANS PURCHASE PRICE AND, UNLESS OTHERWISE AGREED BY SLMA 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
--------------------------------------- --------------------------------------
Student Loan Marketing Association Chase Manhattan Bank USA, National
11600 Xxxxxx Xxx Drive Association, not in its individual
Xxxxxx, Xxxxxxxx 00000 capacity but solely as Interim
Eligible Lender Trustee for the
Lender Code: benefit of SLM Funding LLC
--------------------------
By: By:
----------------------------------- ----------------------------------
(Signature of Authorized Officer) (Signature of Authorized Signatory
for Purchaser)
Name: Name:
--------------------------------- --------------------------------
Title: Title:
-------------------------------- -------------------------------
Date of Purchase:
--------------------
--------------------------------------- --------------------------------------
2
Exhibit D
ADDITIONAL XXXX OF SALE
DATED [ ], 2004
------
The undersigned ("SLMA"), for value received and pursuant to the terms and
conditions of Additional Purchase Agreement Number [ ] (the "Purchase
---
Agreement") among SLM Funding LLC ("Funding"), and Chase Manhattan Bank USA,
National Association, as Interim Eligible Lender Trustee for the benefit of
Funding under the Interim Trust Agreement dated as of June 1, 2004 between
Funding and the Interim Eligible Lender Trustee, does hereby sell, assign and
convey to the Interim Eligible Lender Trustee for the benefit of Funding and its
assignees all right, title and interest of SLMA, including the insurance
interest of SLMA under the Federal Family Education Loan Program (20 U.S.C. 1071
et seq.), that the Interim Eligible Lender Trustee for the benefit of Funding
has accepted for purchase. The portfolio of Additional Loans accepted for
purchase by the Interim Eligible Lender Trustee for the benefit of Funding and
the effective date of sale and purchase are described below and the individual
accounts are listed on the Schedule A attached hereto.
SLMA hereby makes the representations and warranties set forth in Section 5
of the Purchase Agreement Master Securitization Terms Number 1000 incorporated
by reference in the Additional Purchase Agreement related hereto. SLMA
authorizes the Interim Eligible Lender Trustee on behalf of Funding to use a
copy of this document (in lieu of OE Form 1074) as official notification to the
applicable Guarantor(s) of assignment to the Interim Eligible Lender Trustee for
the benefit of Funding of the portfolio of Additional Loans accepted for
purchase, on the Purchase Date.
LISTING OF LOANS ON FOLLOWING PAGE
1
CERTAIN OTHER LOAN CRITERIA
.. Not in claims status, not previously rejected
.. Not in litigation
.. Last disbursement was on or before the related Subsequent Cutoff Date
.. Loan is not swap-pending
*Based upon SLMA's estimated calculations, which may be adjusted upward or
downward based upon Funding's reconciliation.
** Includes interest to be capitalized.
2
Guarantor(s):
[TO BE PROVIDED]
3
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
--------------------------------------- --------------------------------------
Student Loan Marketing Association Chase Manhattan Bank USA, National
11600 Xxxxxx Xxx Drive Association, not in its individual
Xxxxxx, Xxxxxxxx 00000 capacity but solely as Interim
Eligible Lender Trustee for the
Lender Code: benefit of SLM Funding LLC
--------------------------
By: By:
----------------------------------- ----------------------------------
(Signature of Authorized Officer) (Signature of Authorized Signatory
for Purchaser)
Name: Name:
--------------------------------- --------------------------------
Title: Title:
-------------------------------- -------------------------------
Date of Purchase:
--------------------
--------------------------------------- --------------------------------------
4
Annex I
LOAN TRANSMITTAL SUMMARY FORM
Principal Balance
Additional Loans as of the related Subsequent Cutoff Date Purchase Price
---------------- ---------------------------------------- --------------
5
