EXHIBIT 99.2
MASTER TERMS SALE AGREEMENT
This Master Terms Sale Agreement, dated as of November 23, 2004
("Master Terms Sale Agreement"), among SLC Student Loan Receivables I, Inc. (in
such capacity, the "Seller"), SLC Student Loan Trust 2004-1 (in such capacity,
the "Purchaser") and Citibank, N.A., not in its individual capacity but solely
as Eligible Lender Trustee (the "Eligible Lender Trustee") for the benefit of
the Seller under the Eligible Lender Trust Agreement, dated as of November 23,
2004, between the Seller and the Eligible Lender Trustee, and as Eligible Lender
Trustee for the benefit of the Purchaser under the Eligible Lender Trust
Agreement, dated as of November 23, 2004, between the Purchaser and the Eligible
Lender Trustee, shall be effective upon execution by the parties hereto.
References to the Seller and the Purchaser herein 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 beneficial owner of certain student loans
guaranteed under the Higher Education Act, legal title to which student loans is
held by the Eligible Lender Trustee on behalf of the Seller;
WHEREAS, legal title to such loans is vested in the 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; 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:
Section 1. Terms. This Master Terms Sale Agreement establishes the
terms under which the Seller (and with respect to legal title, the Eligible
Lender Trustee on behalf 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 on each Sale Agreement as the parties may execute from time to time
pursuant to this Master Terms Sale Agreement. Each such Sale Agreement shall be
substantially in the form of Attachment A hereto, incorporating by reference the
terms of this Master Terms Sale Agreement, and shall be a separate agreement
among the Seller, the Purchaser and the Eligible Lender Trustee on behalf of the
Purchaser and the Seller with respect to the Loans covered by the terms of such
Sale Agreement for all purposes. If the terms of a Sale Agreement conflict with
the terms of this Master Terms Sale Agreement, the terms of such Sale Agreement
shall supersede and govern.
Section 2. Definitions. Capitalized terms used but not otherwise
defined herein, including in the related Sale Agreement and ▇▇▇▇ of Sale, shall
have the definitions set forth in Appendix A to the Indenture, dated as of
November 23, 2004, among SLC Student Loan Trust 2004-1 (the "Trust"), the
Eligible Lender Trustee on behalf of the Trust, Wachovia Bank, National
Association, as indenture trustee (the "Indenture Trustee") and Citibank, N.A.,
as indenture administrator (the "Indenture Administrator"), 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) "▇▇▇▇ of Sale" means each document in the form of Attachment C
hereto, executed by an authorized officer of the Seller, the Eligible Lender
Trustee on behalf of the Seller, the Purchaser and the Eligible Lender Trustee
for the benefit of the Purchaser, which shall (i) set forth the Purchased Loans
offered by the Seller and the Eligible Lender Trustee on behalf of the Seller
and accepted for purchase by the Purchaser (legal title to which shall be held
by the Eligible Lender Trustee on behalf of the Purchaser), (ii) sell, assign
and convey to the Purchaser and its assignees all right, title (and with respect
to legal title, to the Eligible Lender Trustee on behalf of the Purchaser) and
interest of the Seller and of the Eligible Lender Trustee on behalf of the
Seller, in the Loans listed on that ▇▇▇▇ of Sale and (iii) certify that the
representations and warranties made by the Seller pursuant to Sections 5(A) and
(B) of this Master Terms Sale Agreement are true and correct.
(C) "Borrower" means the obligor on a Loan.
(D) "Consolidation Loan" means a Loan made pursuant to and in full
compliance with Section 428C of the Higher Education Act.
(E) "Cutoff Date" means the Payment Cutoff Date, and with respect to
substitutions hereunder, a date agreed to by the Seller and the Purchaser to use
in determining the Principal Balance and accrued interest to be capitalized for
purposes of completing the Loan Transmittal Summary Form.
(F) "Eligible Loan" means a Loan offered for sale by the Seller
under the Sale Agreement dated as of the Closing Date, or substituted by the
Seller under any other Sale Agreement entered into after the Closing Date, which
as of the Cutoff Date, or, in the case of a Sale Agreement entered into after
the Closing Date, as of the related Purchase Date, 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 applicable Purchase Date, in
the case of any Loan substituted pursuant to this Master Terms Sale Agreement
after the Closing Date:
(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, and such Guarantor is, in turn, reinsured by the Department of
Education in accordance with the Higher Education Act;
(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 three-month financial commercial paper rate;
(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;
(viii) contains terms in accordance with those required by FFELP,
the Guarantee Agreement and other applicable requirements;
(ix) is more than 180 days past the final disbursement;
(x) does not have a borrower who is noted in the related records of
the Servicer as being currently involved in a bankruptcy proceeding; and
(xi) 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,
4. any other document and/or record which the Purchaser 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 Cutoff Date,
or, in the case of any Loan substituted pursuant to this Master
Terms Sale Agreement after the Closing Date, as of the related
Purchase 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,
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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.
(G) "Initial Payment" means the dollar amount specified as the
"Initial Payment" in the applicable Sale Agreement.
(H) "Loan" means the Eligible Loans evidenced by the Note sold on
the Closing Date, or the Eligible Loans evidenced by the Note substituted on the
related Purchase Date in the case of any Loans substituted pursuant to this
Master Terms Sale Agreement after the Closing Date, pursuant to the related Sale
Agreement and related documentation together with any guaranties and other
rights relating thereto including, without limitation, Interest Subsidy Payments
and Special Allowance Payments.
(I) "Loan Transmittal Summary Forms" means the forms related to each
▇▇▇▇ 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 ▇▇▇▇ of Sale and
(ii) the outstanding Principal Balance and accrued interest thereof as of the
Cutoff Date, or as of the related Purchase Date, in the case of any Loan
substituted pursuant to this Master Terms Sale Agreement after the Closing Date.
(J) "Master Terms Purchase Agreement" means the Master Terms
Purchase Agreement, dated as of November 23, 2004, among The Student Loan
Corporation, as Seller, Citibank, N.A., as Eligible Lender Trustee on behalf of
The Student Loan Corporation, SLC Student Loan Receivables I, Inc., as
Purchaser, and Citibank, N.A., as Eligible Lender Trustee on behalf of SLC
Student Loan Receivables I, Inc.
(K) "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.
(L) "Payment Cutoff Date" means the Closing Date or, in the case of
Loans substituted pursuant to this Master Terms Sale Agreement after the Closing
Date, the related Purchase Date as specified in the related Sale Agreement.
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(M) "PLUS Loan" means a Loan which was made pursuant to the PLUS
Program established under Section 428B of the Higher Education Act (or
predecessor provisions).
(N) "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).
(O) "Purchase Date" means with respect to any purchase or
substitution, the date of the related ▇▇▇▇ of Sale.
(P) "Purchase Price" means the Initial Payment.
(Q) "Purchased Loans" means, with respect to each Sale Agreement,
the Loans offered for sale and purchased or substituted pursuant to such Sale
Agreement.
(R) "Sale Agreement" means a Sale Agreement (including any
attachments thereto), substantially in the form of Attachment A hereto, of which
this Master Terms Sale Agreement forms a part by reference.
(S) "Secretary" means the United States Secretary of Education or
any successor.
(T) "SLS Loan" means a Loan which was made pursuant to the
Supplemental Loans for Students Program established under Section 428A of the
Higher Education Act (or predecessor provisions), including Loans referred to as
ALAS Loans or Student PLUS Loans.
(U) "▇▇▇▇▇▇▇▇ Loan" means a Subsidized ▇▇▇▇▇▇▇▇ Loan or an
Unsubsidized ▇▇▇▇▇▇▇▇ Loan.
(V) "Subsidized ▇▇▇▇▇▇▇▇ Loan" means a Loan for which the interest
rate is governed by Section 427A(a) or 427A(d) of the Higher Education Act.
(W) "Trust 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(m) and 2.9(f) of the
Administration Agreement.
(X) "Trust Student Loan" means any student loan that is listed on
the Schedule of Trust Student Loans on the Closing Date 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 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.
(Y) "Unsubsidized ▇▇▇▇▇▇▇▇ Loan" means a Loan made pursuant to
Section 428H of the Higher Education Act.
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Section 3. Sale/Purchase.
(A) Consummation of Sale and Purchase. The sale and purchase of
Eligible Loans pursuant to the Sale Agreement to be dated as of the Closing Date
shall be consummated upon (i) the Purchaser's receipt from the Seller and the
Eligible Lender Trustee for the benefit of the Seller of the related ▇▇▇▇ of
Sale, (ii) the payment by the Purchaser to the Seller of the Initial Payment and
(iii) the issuance to the Seller of the Trust Certificate. Upon consummation,
such sale and purchase shall be effective as of the date of the ▇▇▇▇ of Sale.
The Seller and the Purchaser shall use their best efforts to perform promptly
their respective obligations pursuant to the Sale Agreement with respect to each
Loan.
(B) Settlement of the Initial Payment. On the Closing Date, the
Purchaser shall pay the Seller the Initial Payment by wire transfer in
immediately available funds to the account specified by the Seller.
(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 the Loans up to but not including the related Payment
Cutoff Date, and shall be responsible for the payment of rebate fees, if any,
applicable to Purchased Loans accruing up to but not including the related
Payment 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 on the Purchased Loans accruing from, and including, the
related Payment Cutoff Date, and shall be responsible for the payment of any
rebate fees applicable to Purchased Loans accruing from, and including, the
Payment Cutoff Date.
(D) Special Programs. In consideration of the sale of the Eligible
Loans under this Master Terms Sale Agreement and each Sale Agreement, the
Purchaser agrees to cause the Servicer to offer each Borrower of a Trust Student
Loan all special programs whether or not in existence as of the date of any Sale
Agreement generally offered to the obligors of comparable loans owned by The
Student Loan Corporation ("SLC") or any of its Affiliates.
(E) Intent of the Parties. With respect to each sale of Loans
pursuant to this Master Terms Sale Agreement and the related Sale Agreements, it
is the intention of the Seller, the Eligible Lender Trustee and the Purchaser,
and the Seller hereby warrants that, the transfer and assignment constitute a
valid sale of such Loans from the Seller (and with respect to legal title, the
Eligible Lender Trustee for the benefit of and on behalf of the Seller) to the
Purchaser (and with respect to legal title, the Eligible Lender Trustee 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. If such transfer and assignment is deemed to be a pledge and not a sale,
then the parties also intend and agree that the Seller shall be deemed to have
granted, and in such event does hereby grant, to the Purchaser (and with respect
to legal title, the Eligible Lender Trustee for the benefit of and on behalf of
the Purchaser), a first priority security interest in all of its right, title
and interest in, to and under such Loans, all payments of principal or interest
on such Loans due after the Cutoff Date, all other payments made in respect of
such Loans after the Cutoff Date and all proceeds thereof and that this
Agreement shall constitute a security agreement under applicable law. If such
transfer and assignment is deemed to be a pledge and
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not a sale, the Seller and the Eligible Lender Trustee on behalf of the Seller
consent to the Purchaser and the Eligible Lender Trustee on behalf of Purchaser,
hypothecating and transferring such security interest in favor of the Indenture
Trustee and transferring the obligation secured thereby to the Indenture
Trustee.
Section 4. Conditions Precedent to Sale and Purchase or
Substitution. Any purchase or substitution of Loans pursuant to this Master
Terms Sale Agreement is subject to the following conditions precedent being
satisfied (and SLC, 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. The Seller shall service, or cause to be
serviced, all Loans as required under the Higher Education Act until the date of
the ▇▇▇▇ of Sale.
(C) ▇▇▇▇ of Sale/Loan Transmittal Summary Form. The Seller shall
deliver to the Purchaser:
(i) a ▇▇▇▇ of Sale that (a) has been duly authorized, executed and
delivered by an authorized officer of the Seller and the 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 Purchaser and its
assignees all right, title (and with respect to legal title, to the
Eligible Lender Trustee on behalf of the Purchaser) and interest of the
Seller and the Eligible Lender Trustee for the benefit of the Seller,
including the insurance interest of the 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 this Master Terms Sale Agreement are true and correct on and as of
the date of the ▇▇▇▇ of Sale; and
(ii) the Loan Transmittal Summary Form, attached to the ▇▇▇▇ of
Sale, identifying each of the Eligible Loans which is the subject of the
▇▇▇▇ of Sale and setting forth the unpaid Principal Balance of each such
Loan.
(D) Endorsement. The Seller and the Eligible Lender Trustee on
behalf of the Seller shall provide a blanket endorsement transferring the entire
interest of the Seller (and with respect to legal title, the Eligible Lender
Trustee on behalf of the Seller) in the Loans to the Purchaser (and with respect
to legal title, to the Eligible Lender Trustee on behalf of the Purchaser) with
the form of endorsement provided for in the related Sale Agreement.
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.
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(E) Officer's Certificate. The Seller shall furnish to the
Purchaser, with each ▇▇▇▇ of Sale provided in connection with each sale or
substitution of Loans pursuant to this Master Terms Sale Agreement, an Officer's
Certificate, dated as of the date of such ▇▇▇▇ 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 Eligible Lender Trustee for the benefit of the Seller and dated the date
of the related ▇▇▇▇ of Sale. The Seller and the Eligible Lender Trustee on
behalf of the Seller agree that the Purchaser and the Eligible Lender Trustee on
behalf of the Purchaser may use the related ▇▇▇▇ of Sale, including the Loan
Transmittal Summary Form attached to that ▇▇▇▇ of Sale, in lieu of OE Form 1074,
as official notification to the Guarantor of the assignment by the Seller and
the Eligible Lender Trustee on behalf of the Seller to the Purchaser and the
Eligible Lender Trustee on behalf of the Purchaser of the Loans listed on the
related ▇▇▇▇ of Sale.
(G) Power of Attorney. The Seller and the Eligible Lender Trustee on
behalf of the Seller hereby grant to the Purchaser and the Eligible Lender
Trustee on behalf of the Purchaser, an irrevocable power of attorney, which
power of attorney is coupled with an interest, to individually endorse or cause
to be individually endorsed in the name of the Seller and the 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 SLC or the Servicer
to the Purchaser or any custodian on its behalf.
Section 5. Representations and Warranties of Seller and Eligible
Lender Trustee.
(A) General. The Seller and the Eligible Lender Trustee represent
and warrant to the Purchaser that with respect to a portfolio of Loans as of the
date of each Sale Agreement and ▇▇▇▇ of Sale:
(i) The 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 Eligible Lender Trustee is duly incorporated and existing
under the laws of its governing jurisdiction;
(iii) The Seller is duly incorporated and existing under the laws of
the state of Delaware;
(iv) The Eligible Lender Trustee and the Seller have all requisite
power and authority to enter into and to perform the terms of this Master
Terms Sale Agreement and that Sale Agreement and ▇▇▇▇ of Sale; and
(v) The Eligible Lender Trustee and the Seller will not, with
respect to any Loan purchased under Sale Agreements executed pursuant to
this Master Terms Sale
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Agreement, agree to release any Guarantor from any of its contractual
obligations as an insurer of such Loan or agree otherwise to alter, amend
or renegotiate any material term or condition under which such Loan is
insured, except as required by law or rules and regulations issued
pursuant to law, without the express prior written consent of the
Purchaser.
(B) Particular. The Seller and the Eligible Lender Trustee represent
and warrant to the Purchaser as to the Purchased Loans purchased by the
Purchaser or substituted by the Seller under the related Sale Agreement and each
▇▇▇▇ of Sale executed pursuant to this Master Terms Sale Agreement as of the
date of the related Sale Agreement, or as of the date otherwise noted:
(i) The 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) This Master Terms Sale Agreement creates 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 Eligible Lender Trustee and
the Seller;
(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) As of the Cutoff Date, or, in the case of any purchase
following the Closing Date, as of the date of the related Sale Agreement,
the Purchased Loans are Eligible Loans and the description of the Loans
set forth in the related Sale Agreement and the related Loan Transmittal
Summary Form is true and correct;
(v) The 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 Eligible Lender
Trustee, will be made pursuant to and consistent with the laws and
regulations under which the Seller and the 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
Eligible Lender Trustee or the Seller is a party or by which the 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;
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(vi) The Purchased Loans are each in full force and effect in
accordance with their terms and are legal, valid and binding obligations
of the respective Borrowers thereunder subject to no defenses (except the
defense of infancy);
(vii) No consents and approvals are required by the terms of the
Purchased Loans for the consummation of the sale of the Purchased Loans
hereunder to the Eligible Lender Trustee;
(viii) As of the Cutoff Date, or, in the case of any purchase
following the Closing Date, as of the date of the related Sale Agreement,
each Loan has been duly made and serviced in accordance with the
provisions of the Federal Family Education Loan Program established under
the Higher Education Act, and has been duly insured by a Guarantor; as of
the Cutoff Date, or, in the case of any purchase following the Closing
Date, as of the related Sale Agreement, 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 ▇▇▇▇ of Sale;
(ix) Any payments on the Purchased Loans received by the 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
Loans as of the Cutoff Date or, in the case of any substituted Loans, the
related Payment Cutoff Date, as stated on the 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 Cutoff Date, or, in the case of any purchase following the Closing
Date, as of the date of the related Sale Agreement, and no default,
breach, violation or event permitting acceleration under the terms of any
Loan has arisen; and neither the Seller nor any predecessor holder of any
Loan has waived any of the foregoing other than as permitted by the Basic
Documents;
(xiv) The Seller hereby warrants that the transfer and assignment
herein contemplated constitute a valid sale of the Loans from the Seller
and the 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;
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(xv) With respect to the first sale of Loans from the Seller (and
with respect to legal title of such Loans, the Eligible Lender Trustee for
the benefit of and on behalf of the Seller) to the Purchaser (and with
respect to legal title of such Loans, the Eligible Lender Trustee on
behalf 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 Purchaser 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, the Servicer
has possession of the electronic records evidencing the Note. 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 Eligible Lender Trustee on behalf of
SLC Receivables. All financing statements filed or to be filed the Seller
in favor 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 Eligible Lender Trustee";
(xvii) Other than the security interest granted to the Purchaser
pursuant to this Agreement, the Seller and the 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 Eligible
Lender Trustee have not authorized the filing of and are not aware of any
financing statements against the Seller or the 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 Eligible Lender
Trustee are not aware of any judgment or tax lien filings against the
Seller or the Eligible Lender Trustee; and
(xviii) No Borrower of a Purchased Loan as of the Cutoff Date or, in
the case of any substitution following the Closing Date, as of the date of
the related Sale Agreement, is noted in the related Loan File as being
currently involved in a bankruptcy proceeding.
(C) The Eligible Lender Trustee represents and warrants to the
Seller that as of the date of each Sale Agreement and each ▇▇▇▇ of Sale:
(i) The Eligible Lender Trustee is duly incorporated and validly
existing in good standing under the laws of its governing jurisdiction and
has an office located within the State of Delaware. It has all requisite
corporate power and authority to execute, deliver and perform its
obligations under this Master Terms Sale Agreement, that Sale Agreement
and that ▇▇▇▇ of Sale;
(ii) The Eligible Lender Trustee has taken all corporate action
necessary to authorize the execution and delivery by it of this Master
Terms Sale Agreement and that Sale Agreement, and this Master Terms Sale
Agreement and that Sale Agreement have been and will be executed and
delivered by one of its officers who is duly authorized to
11
execute and deliver this Master Terms Sale Agreement and that Sale
Agreement on its behalf;
(iii) Neither the execution nor the delivery by it of this Master
Terms Sale Agreement and that 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 this Master Terms Sale Agreement and that 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.
Section 6. Repurchase of Trust Student Loans; Reimbursement. Each
party to this Master Terms Sale Agreement shall give notice to the other such
parties and to the Servicer, the Administrator and SLC 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 210 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 sixtieth 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 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, 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
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amount equal to the sum of all such non-guaranteed interest amounts and such
forfeited Interest Subsidy Payments or Special Allowance Payments in the manner
specified in Section 2.6 of the Administration Agreement not later than (i) the
last day of the next Collection Period ending not less than 60 days from the
date of the Guarantor's refusal to guarantee all or a portion of accrued
interest or loss of Interest Subsidy Payments or Special Allowance Payments, or
(ii) in the case where 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.
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 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 Administrator on behalf 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 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
repurchased first.
In lieu of repurchasing Trust Student Loans pursuant to this Section
6, 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 ▇▇▇▇▇▇▇▇ Loan or
Subsidized ▇▇▇▇▇▇▇▇ Loan (pre-1993 vs. post-1993), PLUS Loan
or SLS Loan),
(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
13
Loans to be substituted pursuant to this Section 6, 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 ▇▇▇▇ of Sale regarding such
substituted Loans will be executed and delivered by the applicable parties.
In the event that the Seller elects to substitute Eligible Loans
pursuant to this Section 6, 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.
The sole remedy of the Purchaser, the Indenture 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 above or to substitute Eligible Loans
pursuant to this Section 6. None of the Eligible Lender Trustee, the Indenture
Trustee or the Indenture Administrator shall have a 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.
In addition, the Eligible Lender Trustee shall have no
responsibility for reviewing any Trust Student Loan or any documents in
connection therewith to determine if a Trust Student Loan is an Eligible Loan or
to determine whether any document is valid and binding, any assignments or
endorsements are in proper form or to inspect, review or examine any documents,
instruments, certificates or other papers to determine that they are genuine,
enforceable, or appropriate for the represented purpose.
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 ▇▇▇▇ 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 this Master Terms Sale Agreement 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.
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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 execute any financing statements at the request of the
Purchaser in order to reflect the Purchaser's interest in the Loans.
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 this Master Terms Sale Agreement 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
(including, without limitation, costs and expenses of litigation and of
investigation counsel fees, damages, judgments and amounts paid in
settlement), losses, claims, damages and liabilities arising out of, or
imposed upon such Person through, the Seller's willful misfeasance, bad
faith or negligence in the performance of its duties under this Master
Terms Sale Agreement or by reason of reckless disregard of its obligations
and duties under this Master Terms Sale Agreement.
(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
15
warranties in its individual capacity set forth in this Master Terms Sale
Agreement or any Sale Agreement.
Indemnification under this Section 9 shall survive the resignation
or removal of the Eligible Lender Trustee and the termination of this Master
Terms Sale Agreement 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 this Master Terms Sale Agreement; 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 this Master Terms Sale Agreement, each Sale
Agreement and each ▇▇▇▇ 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 Purchaser an Officers' Certificate and an Opinion of
Counsel each stating that such consolidation, merger or succession and such
agreement of assumption comply with this Section and that all conditions
precedent, if any, provided for in this Master Terms Sale Agreement 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 Purchaser 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 5 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 this Master Terms Sale Agreement 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
16
Loans listed on the related ▇▇▇▇ of Sale may be adjusted in the ordinary course
of business subsequent to the date of the related ▇▇▇▇ of Sale and to the extent
that the aggregate Principal Balance listed on the related ▇▇▇▇ of Sale is less
than the aggregate Principal Balance stated on the related ▇▇▇▇ 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.
Section 12. Limitation on Liability of Eligible Lender Trustee and
Owner Trustee. (A) Notwithstanding anything contained herein to the contrary,
this Master Terms Sale Agreement and any Sale Agreement have been signed by
Citibank, N.A., not in its individual capacity but solely in its capacity as
Eligible Lender Trustee for the Purchaser and the Eligible Lender Trustee for
the Seller, as the case may be, and in no event shall Citibank, N.A. in its
individual capacity, have any liability for the representations, warranties,
covenants, agreements or other obligations of the Purchaser or of the Seller
under this Master Terms Sale Agreement 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.
(B) It is expressly understood and agreed by the parties hereto that
(a) this Agreement is executed and delivered by Citibank, N.A., not individually
or personally but solely as Eligible Lender Trustee for the Purchaser and
Eligible Lender Trustee for the Seller, in the exercise of the powers and
authority conferred and vested in it under the Eligible Lender Trust Agreements,
(b) under no circumstances shall Citibank, N.A. be personally liable for the
payment of any indebtedness or expenses of the Purchaser or the Seller or be
liable for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by the Purchase or the Seller under this Agreement
or any other Sale Agreement, and (c) all Persons having any claim against the
Purchaser or the Seller by reason of the transactions contemplated by this
Agreement or any other Sale Agreement shall look only to the Purchaser or the
Seller, respectively, for payment or satisfaction thereof.
(C) Notwithstanding anything contained herein to the contrary, this
Master Terms Sale Agreement and any Sale Agreement have been signed by
Wilmington Trust Company, not in its individual capacity but solely in its
capacity as Owner Trustee for the Purchaser, and in no event shall Wilmington
Trust Company in its individual capacity, have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Owner Trustee, the Purchaser or of the Seller, respectively, under this Master
Terms Sale Agreement 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 or in the
Indenture, the Seller and the Purchaser shall each pay its own expense incurred
in connection with the preparation, execution and delivery of this Master Terms
Sale Agreement or any Sale Agreement and the transactions contemplated herein or
therein.
17
Section 14. Survival of Covenants/Supersession. All covenants,
agreements, representations and warranties made herein and in or pursuant to any
Sale Agreements executed pursuant to this Master Terms Sale Agreement 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.
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 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 this Master Terms Sale Agreement and any Sale
Agreement, and all proceedings to be taken in connection with this Master Terms
Sale Agreement 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. This Master Terms Sale Agreement, any Sale
Agreement, any ▇▇▇▇ 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 related
Indenture Trustee and Eligible Lender Trustee, materially and adversely affect
the interest of any such Noteholder.
18
In addition, this Master Terms Sale Agreement, 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 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, five Business Days prior thereto), the
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 this Master Terms Sale
Agreement, 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 this Sale Agreement 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 this Master Terms Sale Agreement or otherwise.
Section 18. Nonpetition Covenants. Notwithstanding any prior
termination of this Master Terms Sale Agreement, the Seller and the 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.
Notwithstanding any prior termination of this Master Terms Sale
Agreement, 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.
19
Section 19. Assignment. As of the date hereof, the Seller and the
Eligible Lender Trustee each hereby assigns to the Purchaser its entire right,
title and interest as purchaser and as the Eligible Lender Trustee under (i) the
Master Terms Purchase Agreement 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. This Master Terms Sale Agreement 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.
[SIGNATURE PAGE FOLLOWS]
20
IN WITNESS WHEREOF, the parties hereto have caused this Master Terms
Sale Agreement to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
SLC STUDENT LOAN RECEIVABLES I, INC. SLC STUDENT LOAN TRUST 2004-1
(Seller) (Purchaser)
by Wilmington Trust Company, not in
its individual capacity but solely as
Owner Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------- ---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer Title: Financial Services Officer
CITIBANK, N.A., not in its individual
capacity but solely as Eligible Lender
Trustee for Seller and Purchaser
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Attachment A
SALE AGREEMENT
Dated as of November 23, 2004
SALE AGREEMENT NUMBER 1
Pursuant to the Master Terms Sale Agreement (as defined below), each
of Citibank, N.A. as Eligible Lender Trustee (the "Eligible Lender Trustee") for
the benefit of SLC Student Loan Receivables I, Inc. (the "Seller") and the
Seller hereby offers for sale to SLC Student Loan Trust 2004-1 (the "Purchaser")
the entire right, title (and with respect to legal title, to the Eligible Lender
Trustee for the benefit of and on behalf of the Purchaser under the Eligible
Lender Trust Agreement, dated as of November 23, 2004, between the Purchaser and
the Eligible Lender Trustee) and interest of the Seller and the Eligible Lender
Trustee in the Loans described in the related ▇▇▇▇ of Sale and related Loan
Transmittal Summary Form incorporated herein and, to the extent indicated below,
the Purchaser and the Eligible Lender Trustee on behalf of the Purchaser accept
the Seller's and the 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 ten (210) days past due as of the Cutoff Date, which shall be the
Closing Date.
TERMS, CONDITIONS AND COVENANTS
In consideration of the Purchase Price, each of the Seller and the
Eligible Lender Trustee on behalf of the Seller hereby sells to the Purchaser
and the Eligible Lender Trustee on behalf of the Purchaser the entire right,
title and interest of the Seller (and with respect to legal title, the Eligible
Lender Trustee on behalf of the Seller) in the Loans accepted for purchase,
subject to all the terms and conditions of the Master Terms Sale Agreement,
dated as of November 23, 2004 (the "Master Terms Sale Agreement"), and any
amendments thereto, each incorporated herein by reference, among the Seller, the
Purchaser, and the Eligible Lender Trustee. The Initial Payment for the Loans
shall equal $1,465,934,280, equal to $1,481,226,472 (representing the sale price
of the Notes less underwriters' discounts and fees), less $3,713,868
(representing the Reserve Account Initial Deposit), and less $7,302,491
(representing the Capitalized Interest Account Initial Deposit).
This document shall constitute a Sale Agreement as referred to in
the Master Terms Sale Agreement and, except as modified herein, each term used
herein shall have the same meaning as in the Master Terms Sale Agreement. All
references in the Master Terms Sale Agreement to Loans, Eligible Loans or
Purchased Loans, as applicable, shall be deemed to refer to the Loans governed
by this Sale Agreement. The Seller hereby makes all the representations and
warranties set forth in Sections 5(A) and (B) of the Master Terms Sale Agreement
and makes such representations and warranties with respect to the Loans governed
by this Sale Agreement.
Each of the Seller and the 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 ▇▇▇▇ of Sale, including the Loan
Transmittal Summary Form attached to the ▇▇▇▇ of Sale (in lieu of OE Form 1074)
as official notification to the applicable Guarantor of assignment to
A-1
the Eligible Lender Trustee on behalf of the Purchaser of the Loans purchased
pursuant hereto on the Closing Date.
The parties hereto intend that the transfer of Purchased Loans
described in the related ▇▇▇▇ of Sale and related Loan Transmittal Summary Form
be, and be construed as, a valid sale of such Purchased Loans from the Seller
(and with respect to legal title, the Eligible Lender Trustee for the benefit of
and on behalf of the Seller) to the Purchaser (and with respect to legal title,
the Eligible Lender Trustee for the benefit of and on behalf of the Purchaser).
However, in the event that notwithstanding the intentions of the parties, such
transfer is deemed to be a transfer for security, then the Seller hereby grants
to the Purchaser a first priority security interest in and to all Purchased
Loans described in the related ▇▇▇▇ of Sale and related Loan Transmittal Summary
Form to secure a loan in an amount equal to the Purchase Price of such Purchased
Loans.
[SIGNATURE PAGE FOLLOWS]
A-2
IN WITNESS WHEREOF, the parties hereto have caused this Sale
Agreement Number 1 to be duly executed by their respective officers hereunto
duly authorized, as of the day and year first above written.
SLC STUDENT LOAN RECEIVABLES I, INC. SLC STUDENT LOAN TRUST 2004-1
(Seller) (Purchaser)
by Wilmington Trust Company, not in its
individual capacity but solely as Owner
Trustee
By: __________________________________ By: ___________________________________
Name: Name:
Title: Title:
CITIBANK, N.A., not in its individual
capacity but solely as Eligible Lender
Trustee for Seller and Purchaser
By: __________________________________
Name:
Title:
A-3
Attachment B
SALE AGREEMENT NUMBER 1
BLANKET ENDORSEMENT DATED NOVEMBER 23, 2004
Citibank, N.A. not in its individual capacity but solely as Eligible
Lender Trustee (the "Eligible Lender Trustee") for the benefit of SLC Student
Loan Receivables I, Inc. (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 ▇▇▇▇ of Sale dated the date hereof executed by
the Seller and the Eligible Lender Trustee for the benefit of the Seller in
favor of the Eligible Lender Trustee on behalf of SLC Student Loan Trust 2004-1
(the "Purchaser"). This endorsement is in blank, unrestricted form and without
recourse except as provided in Section 6 of the Master Terms Sale Agreement
referred to in the Sale Agreement, dated as of November 23, 2004, among the
Seller, the Purchaser and the Eligible Lender Trustee which covers the
promissory note.
This endorsement may be effected by attaching either this instrument
or a facsimile hereof to each or any of the Notes.
Notwithstanding the foregoing, the 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 MASTER TERMS 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 SALE AGREEMENT. THE SALE AND PURCHASE
SHALL BE CONSUMMATED UPON THE PURCHASER'S PAYMENT TO THE SELLER OF THE INITIAL
PAYMENT AS DEFINED IN THE MASTER TERMS SALE AGREEMENT AND, UNLESS OTHERWISE
AGREED BY THE SELLER AND THE PURCHASER, SHALL BE EFFECTIVE AS OF THE DATE OF THE
RELATED ▇▇▇▇ OF SALE.
[SIGNATURE PAGE FOLLOWS]
B-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
Citibank, N.A., not in its individual SLC Student Loan Trust 2004-1, by
capacity but solely as Eligible Lender Wilmington Trust Company, not in its
Trustee for the Benefit of SLC Student individual capacity but solely as
Loan Receivables I, Inc. Owner Trustee
Lender Code: _______________________ By: ___________________________________
(Signature of Authorized Signatory
for Purchase)
By:_________________________________
(Signature of Authorized Officer) Name:
Title:
Name: Date of Purchase:
Title:
Citibank, N.A., not in its individual
capacity but solely as Eligible Lender
Trustee for the Benefit of SLC Student
Loan Trust 2004-1
By:____________________________________
(Signature of Authorized Officer)
Name:
Title:
▇-▇
▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇ ▇▇▇▇ DATED NOVEMBER 23, 2004
The undersigned SLC Student Loan Receivables I, Inc. (the "Seller")
and Citibank, N.A. not in its individual capacity but solely as Eligible Lender
Trustee (the "Eligible Lender Trustee") on behalf of the Seller under the
Eligible Lender Trust Agreement, dated as of November 23, 2004, between the
Seller and the Eligible Lender Trustee, for value received and pursuant to the
terms and conditions of Sale Agreement Number 1, dated as of November 23, 2004
("Sale Agreement"), among the Seller, SLC Student Loan Trust 2004-1 (the
"Purchaser") and the Eligible Lender Trustee, do hereby sell, assign and convey
to the Purchaser (and with respect to legal title, the Eligible Lender Trustee
on behalf of the Purchaser) and its assignees all right, title and interest of
the Seller (and with respect to legal title, the Eligible Lender Trustee on
behalf of the Seller), including the insurance interest of the Seller under the
Federal Family Education Loan Program (20 U.S.C. 1071 et seq.), that the
Purchaser and the Eligible Lender Trustee on behalf of the Purchaser have
accepted for purchase. The portfolio of 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 Master Terms Sale Agreement incorporated by reference in the
Sale Agreement. The Seller and the Eligible Lender Trustee on behalf of the
Seller 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 related Loans on the Closing Date.
LISTING OF LOANS ON FOLLOWING PAGE
C-1
CERTAIN OTHER LOAN CRITERIA
o Not in claims status, not previously rejected
o Not in litigation
o Last disbursement was on or before the Cutoff Date
o 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.
C-2
Guarantor(s):
California Student Aid Commission
Educational Credit Management Corporation of Virginia
Illinois Student Assistance Commission
Nebraska Student Loan Program
New York State Higher Education Services Corporation
Rhode Island Higher Education Assistance Authority
Tennessee Student Assistance Corporation
Texas Guaranteed Student Loan Corporation
United Student Aid Funds, Inc.
[SIGNATURE PAGE FOLLOWS]
C-3
IN WITNESS WHEREOF, the parties hereto have caused this ▇▇▇▇ of Sale
to be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
SELLER PURCHASER
SLC Student Loan Receivables I, Inc. SLC Student Loan Trust 2004-1, by
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇▇▇ Trust Company, not in its
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ individual capacity but solely as
Owner Trustee
Lender Code:_________________________
By: _________________________________ By: ___________________________________
(Signature of Authorized Officer) (Signature of Authorized Signatory
for Purchase)
Name: Name:
Title: Title:
Date of Purchase:
Citibank, N.A., not in its individual
capacity but solely as Eligible Lender
Trustee for the Benefit of SLC Student
Loan Receivables I, Inc. and SLC
Student Loan Trust 2004-1
By:____________________________________
(Signature of Authorized Officer)
Name:
Title:
C-4