Exhibit 99.1
[FORM OF]
LOAN SALE AGREEMENT
among
▇▇▇▇▇▇ ▇▇▇ STUDENT LOAN TRUST 1999-A,
as Issuer,
▇▇▇▇▇▇ MAE EDUCATION LOAN CORPORATION,
as Seller,
THE FIRST NATIONAL BANK OF CHICAGO, not in its individual capacity
but solely as eligible lender trustee for the Seller,
and
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity but solely
as Eligible Lender Trustee for the Issuer
Dated as of ___ 1, 1999
LOAN SALE AGREEMENT dated as of ____ 1, 1999, among ▇▇▇▇▇▇ ▇▇▇ STUDENT
LOAN TRUST 1999-A, a Delaware trust (the "ISSUER"), ▇▇▇▇▇▇ MAE EDUCATION LOAN
CORPORATION, a Delaware non-profit corporation, as seller (the "SELLER"), THE
FIRST NATIONAL BANK OF CHICAGO, a national banking association, not in its
individual capacity but solely as eligible lender trustee for the Seller
("FNBC"), and THE FIRST NATIONAL BANK OF CHICAGO, not in its individual capacity
but solely as eligible lender trustee for the Issuer (the "ELIGIBLE LENDER
Trustee").
WHEREAS the Issuer desires to purchase from the Seller a portfolio of
federally reinsured student loans purchased in the ordinary course of business
by the Seller; and
WHEREAS in order to comply with the requirements of the Higher
Education Act of 1965, as amended, legal title to the Seller's student loan
portfolio is vested in FNBC, as eligible lender trustee on behalf of the Seller
as the sole beneficiary; and
WHEREAS the Seller is willing to sell such student loans to the
Eligible Lender Trustee on behalf of the Issuer; and
WHEREAS the Eligible Lender Trustee is willing to hold legal title to,
and serve as eligible lender trustee with respect to, such student loans on
behalf of the Issuer.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND USAGE
Capitalized terms used but not defined herein are defined in Appendix A
to the Administration Agreement, dated as of ____ 1, 1999, among the Issuer, the
Seller, as Administrator, and State Street Bank and Trust Company, as Indenture
Trustee, which also contains rules as to usage and construction that shall be
applicable herein.
ARTICLE II
CONVEYANCE OF TRUST LOANS
SECTION 2.01. CONVEYANCE OF INITIAL TRUST LOANS. (a) In consideration
of:
O the Eligible Lender Trustee, on behalf of the Issuer, making the
Reserve Account Initial Deposit into the Reserve Account on the Closing
Date,
O the Eligible Lender Trustee, on behalf of the Issuer, funding the
costs of issuing the Securities on the Closing Date, and
O the Eligible Lender Trustee, on behalf of the Issuer, delivering to
or upon the order of the Seller on the Closing Date the net proceeds
from the sale of the Notes and the Certificates and the other amounts
to be distributed from time to time to the Seller in accordance with
the terms of this Agreement;
the Seller (and, with respect to legal title to the Initial Trust Loans, FNBC as
trustee on behalf of the Seller) does hereby, as evidenced by a duly executed
▇▇▇▇ of Sale in the form of Exhibit A hereto, sell, assign, and otherwise convey
to the Issuer (and, with respect to legal title to the Initial Trust Loans, to
the Eligible Lender Trustee on behalf of the Issuer), without recourse except as
may be provided herein, (i) all right, title and interest in and to the Initial
Trust Loans, and all obligations of the Obligors thereunder, together with all
documents, the related Student Loan Files and all rights and privileges relating
thereto; (ii) all payments thereon or collections received thereunder on and
after the Cutoff Date, including without limitation, Liquidation Proceeds and
Recoveries; (iii) all of its right, title and interest in all funds on deposit
from time to time in the Trust Accounts, including the Reserve Account Initial
Deposit, and in all investments and proceeds thereof (including all income
thereon); and (iv) all proceeds of any and all of the foregoing.
(b) On the Closing Date, the Seller will deposit, or cause to be
deposited, into the Collection Account all amounts or collections received under
the Initial Trust Loans on and after the Cutoff Date.
SECTION 2.02. CONVEYANCE OF SERIAL LOANS TO THE ELIGIBLE LENDER TRUSTEE
ON BEHALF OF THE TRUST. (a) Subject to the conditions set forth in paragraph (c)
below, in consideration of the Issuer's delivery on the related Transfer Date to
or upon the order of the Seller of the Loan Purchase Amount for each such Serial
Loan to be delivered by the Seller, the Seller does hereby sell, transfer,
assign, set over and otherwise convey to the Issuer, and with respect to legal
title the Serial Loans to the Eligible Lender Trustee on behalf of the Issuer,
without recourse except as may be provided herein, (i) all right, title and
interest of the Seller in and to each Serial Loan selected by the Seller for
sale to the Issuer and all obligations of the Obligors thereunder, together with
all documents, the related Student Loan Files and all rights and privileges
relating thereto, (ii) all payments on or collections received thereunder on and
after the related Subsequent Cutoff Date and (iii) all proceeds of any and all
of the foregoing.
(b) Upon the tender of Serial Loans by the Seller on the related
Transfer Date and the satisfaction of the conditions set forth in subsection (c)
of this Section 2.02, the Eligible Lender Trustee will so inform the
Administrator and the Indenture Trustee, and that component of the Loan Purchase
Amount for such Serial Loans represented by the Purchase Collateral Balance
thereof will be withdrawn from amounts on deposit in the Collection Account, as
provided in Section 2(d) of the Administration Agreement, and will be remitted
as provided therein to or upon the order of the Seller; PROVIDED, HOWEVER, that
the component of the Loan Purchase Amount represented by the Purchase Premium
Amounts shall be payable on a deferred basis pursuant to the next sentence of
this paragraph. Any Purchase Premium Amounts for Serial Loans conveyed to the
Trust will be payable on Quarterly Payment Dates out of Reserve Account Excess
pursuant to Section 2(e) of the Administration Agreement and such Purchase
Premium Amounts will accrue no interest or yield but will be paid on each
Quarterly Payment
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Date to the extent such excess is available in the aggregate amount of such
premiums incurred but unpaid up to the end of the related Collection Period.
(c) The Seller (and with respect to legal title to the Serial Loans,
FNBC as trustee on behalf of the Seller) shall transfer to the Issuer the Serial
Loans for a given Transfer Date and the other property and rights related
thereto described in paragraph (a) above only upon the satisfaction of each of
the following conditions on or prior to such Transfer Date:
(i) the Seller (and with respect to legal title to the Serial Loans,
FNBC as trustee on behalf of the Seller) shall have delivered to the
Eligible Lender Trustee and the Indenture Trustee a duly executed written
assignment (including an acceptance by the Eligible Lender Trustee and the
Indenture Trustee) in substantially the form of Exhibit B hereto (each, a
"TRANSFER AGREEMENT"), which shall include supplements to Schedule A
hereto, listing such Serial Loans;
(ii) the Seller shall have deposited in the Collection Account all
amounts on or collections received in respect of the Serial Loans on and
after each applicable Subsequent Cutoff Date;
(iii) as of the Transfer Date, the Seller was not insolvent nor will
it have been made insolvent by such transfer nor is it aware of any pending
insolvency;
(iv) such addition will not result in a material adverse federal or
state tax consequence to the Issuer or the Securityholders;
(v) the Seller shall have delivered to the Indenture Trustee and the
Eligible Lender Trustee an Officers' Certificate confirming the
satisfaction of each condition precedent specified in this paragraph (c);
(vi) the Seller shall have delivered to the Rating Agencies, the
Eligible Lender Trustee and the Indenture Trustee the Opinion of Counsel as
required by Section 6.02(f)(1) hereof; PROVIDED, HOWEVER, that,
notwithstanding the foregoing, no opinion shall be required unless the
Seller, the Eligible Lender Trustee or the Indenture Trustee determines
that, with regard to the most recent opinion that was delivered with
respect to the Trust Loans (whether on the Closing Date or thereafter under
this subsection or under another provision of the Basic Documents), the
conclusion of, or the reasoning underlying, such opinion is no longer
correct in all material respects due to a change in law or regulations or
the ruling of a court, an administrative tribunal or a regulatory or other
governmental authority; upon making any such determination, whichever of
the Seller, the Eligible Lender Trustee and the Indenture Trustee makes
such determination shall notify the others and the Rating Agencies; and
PROVIDED, FURTHER, that neither the Eligible Lender Trustee nor the
Indenture Trustee shall have any obligation to monitor changes in laws or
regulations or the rulings of courts or other governmental agencies for the
purpose of making any determination described in the preceding proviso;
(vii) with respect to any Serial Loan which is guaranteed by an
Additional Guarantor, such Additional Guarantor shall have entered into a
Guarantee Agreement
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with the Eligible Lender Trustee which guarantees such Serial Loan in
substantially the form of the Guarantee Agreements between the Initial
Guarantors and the Eligible Lender Trustee;
(viii) the Seller shall have taken any action required to maintain the
first perfected ownership interest of the Issuer in the Trust Estate and
the first perfected security interest of the Indenture Trustee in the
Collateral;
(ix) no selection procedures believed by the Seller to be adverse to
the interests of the Securityholders shall have been utilized in selecting
the Serial Loans;
(x) no Default or Event of Default shall have occurred under the
Indenture, no Master Servicer Default shall have occurred under the Master
Servicing Agreement and no Administrator Default shall have occurred under
the Administration Agreement;
(xi) for each Transfer Date, after giving effect to the conveyance of
Serial Loans on such Transfer Date, the amount of funds remitted for the
purchase of Serial Loans on such Transfer Date, and on each Transfer Date
since the preceding Quarterly Payment Date, shall not exceed the Net
Principal Cash Flow Amount for such Transfer Date; and
(xii) the sum of (a) the principal amount of such Serial Loans to be
transferred to the Trust on such Transfer Date and (b) the principal amount
of Serial Loans transferred to the Trust on all previous Transfer Dates
does not exceed 5% of the Initial Pool Balance;
PROVIDED, HOWEVER, that the Seller shall not incur any liability as a result of
transferring Serial Loans on any Transfer Date at a time when the condition set
forth in clause (iv) was not satisfied, if at the time of such transfer the
Authorized Officers of the Seller, after reasonable inquiry of counsel to the
Seller, were not aware of any fact that would reasonably suggest that such
condition would not be satisfied as of such date.
SECTION 2.03. TREATMENT AS A SECURITY AGREEMENT. The parties intend that the
conveyance of the Seller's (and, with respect to legal title to the loans,
FNBC's) right, title and interest in and to the Initial Trust Loans pursuant to
this Agreement and any Serial Loans pursuant to the applicable Transfer
Agreement shall constitute a valid purchase and sale and not a loan. If such
conveyance is deemed to be a loan and not a sale, then the parties also intend
and agree that the Seller (and, with respect to legal title to the loans, FNBC)
shall be deemed to have granted, and in such event do hereby grant to the
Issuer, a first priority security interest in all of the Seller's and FNBC's
right, title and interest in, to and under the Initial Trust Loans and any
Serial Loans and the other items specified in Sections 2.01 and 2.02, and that
this Agreement with respect to the Initial Trust Loans and any applicable
Transfer Agreement with respect to the Serial Loans transferred thereby shall
constitute a security agreement under applicable law with respect to such loans.
If such conveyance is deemed to be a loan and not a sale, the Issuer may, to
secure the Issuer's own borrowings under the Indenture, repledge all or any
portion of such loans and the other items specified in Sections 2.01 and 2.02
hereof pledged to the Issuer and not released from the security interest of this
Agreement at the time of such pledge. Such a repledge
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may be made by the Issuer with or without a repledge by the Issuer of its rights
under this Agreement, and without further notice to or acknowledgement from the
Seller or FNBC. Each of the Seller and FNBC waives, to the extent permitted by
applicable law, all claims, causes of action and remedies whether legal or
equitable (including any rights of set-off) against the Issuer or any assignee
of the Issuer relating to such action by the Issuer in connection with the
transactions contemplated by this Agreement and the other Basic Documents.
SECTION 2.04. ENDORSEMENT. The Seller (and, with respect to legal
title to the Trust Loans, FNBC as trustee on behalf of the Seller) hereby
appoint each of the Eligible Lender Trustee and the Indenture Trustee as the
Seller's (and FNBC's) true and lawful attorney-in-fact with full power of
substitution to endorse the Seller's (and FNBC's) name on any promissory note
evidencing the Initial Trust Loans and any Serial Loans transferred to the
Eligible Lender Trustee on behalf of the Trust pursuant to Sections 2.01 and
2.02. The Seller (and, with respect to legal title to the Trust Loans, FNBC as
trustee on behalf of the Seller) acknowledge and agree that this power of
attorney shall be construed as a power coupled with an interest, shall be
irrevocable as long as the Trust Agreement remains in effect and shall continue
in effect until the Trust Agreement terminates.
ARTICLE III
THE TRUST LOANS
SECTION 3.01. REPRESENTATIONS AND WARRANTIES OF SELLER WITH RESPECT TO
THE TRUST LOANS. The Seller represents and warrants with respect to the Trust
Loans as set forth in Exhibit C hereto. Such representations and warranties
speak as of the execution and delivery of this Agreement and as of the Closing
Date in the case of the Initial Trust Loans, as of the applicable Transfer Date
in the case of any Serial Loan, and as of the date of the relevant Assignment in
the case of any Qualified Substitute Student Loan, but shall survive the sale,
transfer and assignment of the Trust Loans to the Eligible Lender Trustee on
behalf of the Issuer and the pledge thereof to the Indenture Trustee pursuant to
the Indenture.
SECTION 3.02. REPURCHASE; REIMBURSEMENT. (a) Upon discovery by the
Seller, FNBC, the Master Servicer, the Eligible Lender Trustee or the Indenture
Trustee of any breach of the Seller's representations and warranties made by the
Seller pursuant to Section 3.01 or Section 4.01, the party discovering the
breach shall give prompt written notice to the others. Unless any such breach
shall have been cured within sixty (60) days after the Seller becomes aware or
receives written notice (whichever is earlier) of such breach, the Seller shall
be obligated to either (i) repurchase any Trust Loan in which the interests of
the Noteholders or the Certificateholders are materially and adversely affected
by any such breach as of the first day succeeding the end of such 60-day period
that is the last day of a Monthly Collection Period or (ii) substitute a
Qualified Substitute Student Loan in the manner specified in this Section;
PROVIDED, HOWEVER, that it is understood that any such breach that does not
affect the related Guarantor's obligation to guarantee payment of such Trust
Loan to the Eligible Lender Trustee will not be considered to have a material
adverse effect for this purpose and it is further understood that any dispute as
to whether such Guarantor's obligation has been so affected will be resolved by
the decision of the Indenture Trustee for so long as Notes are Outstanding and
thereafter by the Eligible Lender Trustee. In addition, if any such breach by
the Seller does not
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trigger such a repurchase obligation but does result in the refusal by such
Guarantor to guarantee all or a portion of the accrued interest, or the loss
(including any obligation of the Issuer to repay the Department) of certain
Interest Subsidy Payments and Special Allowance Payments, then, unless such
breach, if curable, is cured within sixty (60) days, the Seller shall reimburse
the Issuer by remitting an amount equal to all such non-guaranteed interest
amounts and such forfeited Interest Payments and Special Allowance Payments in
the manner specified in Section 3.03. Subject to the provisions of Section 4.03,
the sole remedy of the Issuer, the Eligible Lender Trustee, the Indenture
Trustee, the Noteholders or the Certificateholders with respect to a breach of
representations and warranties pursuant to Section 3.01, and the agreement
contained in this Section, shall be to require the Seller to repurchase or
substitute for the affected Trust Loans or to reimburse the Issuer as provided
above pursuant to this Section, subject to the conditions contained herein.
(b) The Seller may, at its option, repurchase a Trust Loan as of the
last day of a Monthly Collection Period if there is a dispute with the related
Borrower during such Monthly Collection Period which in the Master Servicer's
reasonable judgment would call into question whether such Trust Loan will be
repaid by the Borrower; PROVIDED, HOWEVER, that the aggregate principal balance
of the Trust Loans purchased pursuant to this subsection (b) shall not exceed,
in aggregate, 1% of the Initial Pool Balance.
(c) In consideration of and simultaneously with the repurchase of a
Trust Loan, the Seller shall remit the Purchase Amount therefor, in the manner
specified in Section 3.03, and the Issuer shall execute such assignments and
other documents reasonably requested by the Seller in order to effect such
transfer. Upon any such transfer of a Trust Loan, legal title to, and beneficial
ownership and control of, the related Student Loan File will thereafter belong
to the Seller or in the case of legal title thereto an eligible lender under the
Higher Education Act designated by the Seller.
With respect to any Qualified Substitute Student Loan or Loans, the
Seller shall deliver to the Eligible Lender Trustee for the benefit of the
Indenture Trustee such documents and agreements together with a duly executed
Assignment in the form of Exhibit F hereto. No substitution is permitted to be
made during the period beginning on the day after each Determination Date and
ending on the last day of the calendar month of such Determination Date.
Payments due with respect to Qualified Substitute Student Loans shall be part of
the Trust Estate on and after the date of such Assignment. Upon such
substitution, the Qualified Substitute Student Loan or Loans shall be subject to
the terms of this Agreement in all respects, and the Seller shall be deemed to
have made with respect to such Qualified Substitute Student Loan or Loans, as of
the date of substitution, the representations and warranties made pursuant to
Section 3.01 with respect to any such Student Loan. In addition, any such
substitution shall occur only upon satisfaction of each of the following
conditions on or prior to the date of the related Assignment:
(i) the Seller shall have deposited in the Collection Account all
collections in respect of the Qualified Substitute Student Loans on and
after each applicable date of Assignment;
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(ii) as of the date of the related Assignment, the Seller shall not
have been insolvent nor will it have been made insolvent by such transfer
nor is it aware of any pending insolvency;
(iii) such addition will not result in a material adverse federal or
state tax consequence to the Issuer, the Noteholders or the
Certificateholders;
(iv) the Seller shall have delivered (A) to the Rating Agencies an
Opinion of Counsel with respect to each transfer of Qualified Substitute
Student Loans, substantially in the form of the Opinion of Counsel
delivered to the Rating Agencies on the Closing Date, and (B) to the
Eligible Lender Trustee and the Indenture Trustee the Opinion of Counsel
required by Section 6.02(f)(1) hereof; PROVIDED, HOWEVER, that no opinion
shall be required under either subclause (A) or (B) unless the Seller, the
Eligible Lender Trustee or the Indenture Trustee determines that, with
regard to the most recent opinion on the matters described in either such
subclause that was delivered with respect to the Trust Loans (whether on
the Closing Date or thereafter under this subsection or under another
provision of the Basic Documents), the conclusion of, or the reasoning
underlying, such opinion is no longer correct in all material respects due
to a change in law or regulations or the ruling of a court, an
administrative tribunal or a regulatory or other governmental authority;
upon making any such determination, whichever of the Seller, the Eligible
Lender Trustee and the Indenture Trustee makes such determination shall
notify the others and the Rating Agencies; and PROVIDED, FURTHER, that
neither the Eligible Lender Trustee nor the Indenture Trustee shall have
any obligation to monitor changes in laws or regulations or the rulings of
courts or other governmental agencies for the purpose of making any
determination described in this clause (iv);
(v) the Seller shall have taken any action required to maintain the
first perfected ownership interest of the Issuer in the Trust Estate and
the first perfected security interest of the Indenture Trustee in the
Collateral;
(vi) no selection procedures believed by the Seller to be adverse to
the interests of the Noteholders or the Certificateholders shall have been
utilized in selecting the Qualified Substitute Student Loans; and
(vii) no Default or Event of Default shall have occurred under the
Indenture, no Master Servicer Default shall have occurred under the Master
Servicing Agreement and no Administrator Default shall have occurred under
the Administration Agreement.
Upon any such substitution and the deposit to the Collection Account
of the amount required to be deposited therein in connection with such
substitution as described in the following paragraph, the Eligible Lender
Trustee shall release any documentation held with respect to the Trust Loan
being substituted for (the "DELETED STUDENT LOAN") to the Seller and shall
execute and deliver at the Seller's direction such instruments of transfer or
assignment prepared by the Seller, in each case without recourse, as shall be
necessary to vest in the Seller, or (in the case of legal title thereto an
eligible lender under the Higher Education Act designated by the Seller), the
Eligible Lender Trustee's interest in any Deleted Student Loan substituted for
pursuant to this Section 3.02.
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For any month in which the Seller substitutes one or more Qualified
Substitute Student Loans for one or more Deleted Student Loans, the Master
Servicer will determine the amount (if any) by which as of the date of the
relevant Assignment the aggregate principal balance of all such Qualified
Substitute Student Loans is less than the aggregate principal balance of all
such Deleted Student Loans. The amount of such shortage (the "SUBSTITUTION
ADJUSTMENT AMOUNT") shall be deposited in the Collection Account by the Seller
on or before the date of the relevant Assignment.
SECTION 3.03. REPURCHASE DEPOSITS. The Seller shall deposit or cause to be
deposited in the Collection Account the aggregate Purchase Amount with respect
to Purchased Student Loans and all other amounts to be paid by the Seller under
Section 3.02 and Section 5.01 when such amounts are due.
ARTICLE IV
THE SELLER
SECTION 4.01. REPRESENTATIONS OF SELLER AND FNBC. The Seller represents
as set forth in Exhibit D hereto and FNBC represents as set forth in Exhibit E
hereto. Such representations speak as of the execution and delivery of this
Agreement and as of the Closing Date in the case of the Initial Trust Loans, as
of the applicable Transfer Date in the case of any Serial Loans, and as of the
date of the relevant Assignment in the case of any Qualified Substitute Student
Loans, but shall survive the sale, transfer and assignment of the Trust Loans to
the Eligible Lender Trustee on behalf of the Issuer and the pledge thereof to
the Indenture Trustee pursuant to the Indenture.
SECTION 4.02. EXISTENCE. During the term of this Agreement, the Seller
will keep in full force and effect its existence, rights and franchises as a
corporation under the laws of the jurisdiction of its incorporation and will
obtain and preserve its qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the other Basic Documents and each other
instrument or agreement necessary or appropriate to the proper administration of
this Agreement and the transactions contemplated hereby. In addition, all
transactions between the Seller and its Affiliates will be conducted on an
arm's-length basis. During the term of this Agreement, for so long as the Seller
shall not be an eligible lender under the Higher Education Act with respect to
federal Student Loans, the Seller agrees to keep in full force and effect an
agreement with FNBC or another eligible lender under the Higher Education Act
providing for such eligible lender meeting the requirements set forth in the
following sentence to hold title to the Seller's Student Loans in trust for and
on behalf of the Seller. The Seller shall not convey any Serial Loan or
Qualified Substitute Student Loan if the eligible lender holding legal title to
such loan is other than FNBC unless, prior to such conveyance, such other
eligible lender shall agree in writing to be bound, in the conveyance of each
such loan for which it acts as eligible lender, by the provisions of this
Agreement that are applicable to FNBC, to the same extent as if it were named
separately from FNBC in each of such provisions.
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SECTION 4.03. LIABILITY OF SELLER; INDEMNITIES. The Seller shall be
liable in accordance herewith only to the extent of the obligations specifically
undertaken by the Seller under this Agreement.
(a) The Seller shall indemnify, defend and hold harmless the Issuer,
the Eligible Lender Trustee, the Indenture Trustee 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 or the Indenture
Trustee), including any sales, gross receipts, general corporation, tangible
personal property, privilege or license taxes (but, in the case of the Issuer,
not including taxes in connection with the issuance and original sale of the
Notes and the Certificates or asserted with respect to ownership of the Trust
Loans or federal or other income taxes arising out of payments on the Notes and
the Certificates) and costs and expenses in defending against the same.
(b) The Seller shall indemnify, defend and hold harmless the Issuer,
the Eligible Lender Trustee, the Indenture Trustee and the Noteholders, the
Certificateholders and the officers, directors, employees and agents of the
Issuer, the Eligible Lender Trustee and the Indenture Trustee from and against
any and all costs, expenses, losses, claims, damages and liabilities arising out
of, or imposed upon such Person through, the Seller's willful misfeasance, bad
faith or negligence in the performance of its duties under this Agreement, or by
reason of reckless disregard of its obligations and duties under this Agreement
and (ii) the Seller's or the Issuer's violation of federal or state securities
laws in connection with the offering and sale of the Notes and the Certificates.
(c) The Seller shall be liable as primary obligor for, and shall
indemnify, defend and hold harmless the Eligible Lender Trustee 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 Trust Agreement, the other Basic Documents,
the Trust Estate, the acceptance or performance of the trusts and duties set
forth herein and in the Trust Agreement or the action or the inaction of the
Eligible Lender Trustee hereunder and under the Trust Agreement, except to the
extent that such cost, expense, loss, claim damage, obligation or liability: (i)
shall be due to the willful misfeasance, bad faith or negligence (except for
errors in judgment) of the Eligible Lender Trustee , (ii) shall arise from any
breach by the Eligible Lender Trustee of its covenants under any of the Basic
Documents; or (iii) shall arise from the breach by the Eligible Lender Trustee
of any of its representations or warranties set forth in Section 7.03 of the
Trust Agreement. In the event of any claim, action or proceeding for which
indemnity will be sought pursuant to this paragraph, the Eligible Lender
Trustee's choice of legal counsel shall be subject to the approval of the
Seller, which approval shall not be unreasonably withheld.
(d) The Seller shall pay any and all taxes levied or assessed upon all
or any part of the Trust Estate (other than those taxes expressly excluded from
the Seller's responsibilities pursuant to the parentheticals in paragraph (a)
above).
Indemnification under this Section shall survive the resignation or
removal of the Eligible Lender Trustee or the Indenture Trustee and the
termination of this Agreement or the
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Indenture or the Trust Agreement, as applicable, 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
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 the
Seller, without interest.
SECTION 4.04. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, SELLER OR FNBC. Any person (a) into which the Seller or FNBC may
be merged or consolidated, (b) which may result from any merger or consolidation
to which the Seller or FNBC shall be a party or (c) which may succeed to the
properties and assets of the Seller or FNBC substantially as a whole, shall be
the successor to the Seller or FNBC, respectively, without the execution or
filing of any document or any further act by any of the parties to this
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 Seller, if other than ▇▇▇▇▇▇ ▇▇▇ Education Loan
Corporation, executes an agreement of assumption to perform every obligation of
the Seller under this Agreement, (ii) immediately after giving effect to such
transaction, no representation or warranty made pursuant to Section 3.01 or 4.01
shall have been breached and no Master Servicer Default, Event of Default or
Administrator Default and no event that, after notice or lapse of time, or both,
would become a Master Servicer Default, Event of Default or Administrator
Default shall have occurred and be continuing, (iii) the Seller shall have
delivered to the Eligible Lender Trustee and the Indenture Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such consolidation,
merger or succession and such agreement of assumption comply with this Section
and that all conditions precedent, if any, provided for in this 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) the
surviving Seller shall have a consolidated net worth at least equal to that of
the predecessor Seller, (v) such transaction will not result in a material
adverse federal or state tax consequence to the Issuer, the Noteholders or the
Certificateholders and (vi) unless ▇▇▇▇▇▇ Mae Education Loan Corporation is the
surviving entity, the Seller shall have delivered to the Eligible Lender Trustee
and the Indenture Trustee an Opinion of Counsel either (A) stating that, in the
opinion of such counsel, all financing statements and continuation statements
and amendments thereto have been executed and filed that are necessary fully to
preserve and protect the interest of the Eligible Lender Trustee and the
Indenture Trustee, respectively, in the Trust 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; and PROVIDED,
FURTHER, that FNBC hereby covenants that, unless FNBC is the surviving entity,
it will not consummate any of the foregoing transactions unless FNBC shall have
delivered to the Eligible Lender Trustee and the Indenture Trustee an Opinion of
Counsel either (A) stating that, in the opinion of such counsel, all financing
statements and continuation statements and amendments thereto have been executed
and filed that are necessary fully to preserve and protect the interest of the
Eligible Lender Trustee and Indenture Trustee, respectively, in the Trust 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 4.05. LIMITATION ON LIABILITIES OF SELLER, FNBC AND OTHERS. The
Seller, FNBC and any director or officer or employee or agent of the Seller or
FNBC may rely in good faith on the advice of counsel or on any document of any
kind, PRIMA FACIE properly
10
executed and submitted by any Person respecting any matters arising hereunder;
PROVIDED, HOWEVER, that such reliance shall not limit in any way the Seller's
obligations under Section 3.02. Neither the Seller nor FNBC shall be under any
obligation to appear in, prosecute or defend any legal action that shall not be
incidental to its respective obligations under this Agreement and that, in its
opinion, may involve it in any expense or liability.
SECTION 4.06. SELLER AND FNBC MAY OWN NOTES AND CERTIFICATES. The Seller, FNBC
and any Affiliate of either may in its individual or any other capacity become
the owner or pledgee of Notes and Certificates with the same rights as it would
have if it were not the Seller or FNBC or an Affiliate of either, as the case
may be, except as expressly provided herein or in any other Basic Document.
ARTICLE V
TERMINATION
SECTION 5.01. OPTIONAL PURCHASE OF ALL TRUST LOANS. As of the last day
of any Collection Period immediately preceding a Quarterly Payment Date as of
which the then outstanding Pool Balance is 10% or less of the Initial Pool
Balance, the Company or its designee shall have the option to purchase the Trust
Estate, other than the Trust Accounts. To exercise such option, the Company or
its designee shall deposit in the Collection Account an amount (the "MINIMUM
PURCHASE PRICE") equal to the greater of (i) the aggregate Purchase Amounts for
the Trust Loans as of the Collection Period immediately preceding such Quarterly
Payment Date and (ii) an amount that would be sufficient to (a) reduce the
outstanding principal amount of the Notes on such Quarterly Payment Date to
zero, (b) pay to the Noteholders the Noteholders' Interest Distribution Amount
payable on such Quarterly Payment Date, (c) reduce the Certificate Balance on
such Quarterly Payment Date to zero, (d) pay to the Certificateholders the
Certificateholders' Return Distribution Amount payable on such Quarterly Payment
Date and (e) pay to the Administrator and the Master Servicer all amounts owed
to them under the Basic Documents; and the related rights with respect thereto,
plus the appraised value of any such other property held by the Trust other than
the Trust Accounts, such value to be determined by an appraiser mutually agreed
upon by the Master Servicer, the Eligible Lender Trustee and the Indenture
Trustee, and shall succeed to all interests in and to the Trust; PROVIDED,
HOWEVER, that the Company or its designee may not effect such purchase if the
aggregate Purchase Amount to be so deposited in the Collection Account does not
equal or exceed an amount equal to the unpaid principal balance of the Notes,
plus accrued and unpaid interest thereon at the applicable Note Interest Rate to
the date of exercise, and the amount of unpaid Class A-1 Noteholders' Interest
Basis Carryover and Class A-2 Noteholders' Interest Basis Carryover, an amount
equal to the Certificate Balance, plus accrued and unpaid interest thereon at
the Certificate Interest Rate to the date of exercise, and the amount of unpaid
Certificateholders' Return Carryover.
11
ARTICLE VI
Miscellaneous
SECTION 6.01. AMENDMENT. This Agreement may be amended by the Seller,
FNBC and the Eligible Lender Trustee, with the consent of the Indenture Trustee,
but without the consent of any of the Noteholders or the Certificateholders, to
cure any ambiguity, to correct or supplement any provisions in this Agreement or
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions in this Agreement or of modifying in any
manner the rights of the Noteholders or the Certificateholders; PROVIDED,
HOWEVER, that such action shall not, as evidenced by an Opinion of Counsel
delivered to the Eligible Lender Trustee and the Indenture Trustee, adversely
affect in any material respect the interests of any Securityholder.
This Agreement may also be amended from time to time by the Seller and
the Eligible Lender Trustee, with the consent of FNBC, the Indenture Trustee,
the Noteholders of Notes evidencing not less than a majority of the Outstanding
Amount of the Notes and the Certificateholders of Certificates evidencing not
less than a majority of the Certificate Balance, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Noteholders or
the Certificateholders; PROVIDED, HOWEVER, that no such amendment shall (a)
increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments with respect to the Trust Loans or
distributions that shall be required to be made for the benefit of the
Noteholders or the Certificateholders or (b) reduce the aforesaid percentage of
the Outstanding Amount of the Notes or the Certificate Balance, the Noteholders
or the Certificateholders of which are required to consent to any such
amendment, without the consent of all Noteholders of Outstanding Notes and all
Certificateholders of Outstanding Certificates.
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 FNBC, the Seller, the Administrator, each Noteholder,
each Certificateholder, the Indenture Trustee and the Master Servicer.
It shall not be necessary for the consent of Noteholders or
Certificateholders pursuant to this Section to approve the particular form of
any proposed amendment or consent, but it shall be sufficient if such consent
shall approve the substance thereof.
Prior to the execution of any amendment to this Agreement, the Eligible
Lender Trustee and the Indenture Trustee shall receive upon request and rely
upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and the Opinion of Counsel referred to
in Section 6.02(f). The Eligible Lender Trustee and the Indenture Trustee may,
but shall not be obligated to, enter into any such amendment which affects the
Eligible Lender Trustee's or the Indenture Trustee's, as applicable, own rights,
duties or immunities under this Agreement or otherwise.
12
SECTION 6.02. PROTECTION OF INTERESTS IN TRUST. (a) Each of the Seller
and FNBC shall execute and file such financing statements and cause to be
executed and filed such continuation statements, all in such manner and in such
places as may be required by law fully to preserve, maintain, and protect the
interest of the Issuer, the Eligible Lender Trustee and the Indenture Trustee in
the Trust Loans and in the proceeds thereof. Each of the Seller and FNBC shall
deliver (or cause to be delivered) to the Eligible Lender Trustee and the
Indenture Trustee file-stamped copies of, or filing receipts for, any document
filed as provided above, as soon as available following such filing.
(b) Neither the Seller nor FNBC shall change its name, identity or
corporate structure in any manner that would, could, or might make any financing
statement or continuation statement filed in accordance with paragraph (a) above
seriously misleading within the meaning of ss.9-402(7) of the UCC, unless it
shall have given the Eligible Lender Trustee and the Indenture Trustee at least
five (5) days' prior written notice thereof and shall have promptly filed
appropriate amendments to all previously filed financing statements or
continuation statements.
(c) Each of the Seller and FNBC shall have an obligation to give the
Eligible Lender Trustee, the Indenture Trustee and the Rating Agencies at least
sixty (60) days prior written notice of any relocation of its principal
executive office if, as a result of such relocation, the applicable provisions
of the UCC would require the filing of any amendment of any previously filed
financing or continuation statement or of any new financing statement and shall
promptly file any such amendment.
(d) If at any time the Seller or FNBC shall propose to sell, grant a
security interest in, or otherwise transfer any interest in student loans to any
prospective purchaser, lender or other transferee, the Seller or FNBC, as the
case may be, shall give to such prospective purchaser, lender or other
transferee computer tapes, records or printouts (including any restored from
backup archives) that, if they shall refer in any manner whatsoever to any Trust
Loan, shall indicate clearly that such Trust Loan has been sold and is owned by
the Issuer (and, with respect to legal title thereto, by the Eligible Lender
Trustee on behalf of the Issuer) and has been pledged to the Indenture Trustee.
(e) The Seller shall, to the extent required by applicable law, cause
the Notes to be registered with the Commission pursuant to Section 12(b) or
Section 12(g) of the Exchange Act within the time periods specified in such
sections.
(f) The Seller shall deliver to the Eligible Lender Trustee and the
Indenture Trustee:
(1) promptly after the execution and delivery of this Agreement and of
each amendment thereto, on each Transfer Date as set forth in Section 2.02
and on the date of each Assignment as set forth in Section 3.02, an Opinion
of Counsel either (A) stating that, in the opinion of such counsel, all
financing statements and continuation statements have been executed and
filed that are necessary fully to preserve and protect the interest of the
Eligible Lender Trustee and the Indenture Trustee in the Trust Loans, and
reciting the details of such filings or referring to prior Opinions of
Counsel in which such details
13
are given, or (B) stating that, in the opinion of such counsel, no such
action shall be necessary to preserve and protect such interest; and
(2) within 120 days after the beginning of each calendar year beginning
with the first calendar year beginning more than three months after the
Cutoff Date, an Opinion of Counsel, dated as of a date during such 120-day
period, either (A) stating that, in the opinion of such counsel, all
financing statements and continuation statements have been executed and
filed that are necessary fully to preserve and protect the interest of the
Eligible Lender Trustee and the Indenture Trustee in the Trust Loans, and
reciting the details of such filings or referring to prior Opinions of
Counsel in which such details are given, or (B) stating that, in the
opinion of such counsel, no such action shall be necessary to preserve and
protect such interest; PROVIDED, HOWEVER, that a single Opinion of Counsel
may be delivered in satisfaction of the foregoing requirement and that of
Section 3.06(b) of the Indenture.
Each Opinion of Counsel referred to in clause (1) or (2) above shall
specify (as of the date of such opinion and given all applicable laws as in
effect on such date) any action necessary to be taken in the following year to
preserve and protect such interest.
SECTION 6.03. NOTICES. Unless otherwise agreed by the recipient, all
demands, notices and communications upon or to the Seller, FNBC, the Master
Servicer, the Issuer, the Eligible Lender Trustee, the Indenture Trustee, the
Administrator or the Rating Agencies under this Agreement shall be in writing,
personally delivered or mailed by certified mail, return receipt requested (or
in the form of telex or facsimile notice, followed by written notice delivered
as aforesaid or postage prepaid, first class mail), and shall be deemed to have
been duly given upon receipt;
(a) in the case of the Seller, to
▇▇▇▇▇▇ ▇▇▇ Education Loan Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy:
with a copy to
▇▇▇▇▇▇ ▇▇▇ Corporation
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
(b) in the case of FNBC, to
The First National Bank of Chicago
One First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone:
Telecopy:
(c) in the case of the Master Servicer, to
▇▇▇▇▇▇ ▇▇▇ Education Loan Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy:
with a copy to
▇▇▇▇▇▇ ▇▇▇ Corporation
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
(d) in the case of the Issuer, to
▇▇▇▇▇▇ ▇▇▇ Student Loan Trust 1999-A
c/o First Chicago Delaware, Inc.
c/o FCC National Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone:
Telecopy
with a copy to the Eligible Lender Trustee
at the Corporate Trust Office of the
Eligible Lender Trustee;
(e) in the case of the Issuer or the Eligible Lender
Trustee, at the Corporate Trust Office of the
Eligible Lender Trustee;
(f) in the case of the Indenture Trustee, at its Corporate Trust
Office;
(g) in the case of the Administrator, to
▇▇▇▇▇▇ ▇▇▇ Education Loan Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Secretary
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy:
15
with a copy to
▇▇▇▇▇▇ ▇▇▇ Corporation
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
(h) in the case of Fitch, to
Fitch IBCA, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Telephone:
Telecopy:
(i) in the case of Moody's, to
▇▇▇▇▇'▇ Investors Service, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Telephone:
Telecopy:
(j) in the case of Standard & Poor's, to
Standard & Poor's Rating Services
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Telephone:
Telecopy:
or, as to each of the foregoing, at such other address as shall be designated by
written notice to the other parties.
SECTION 6.04. ASSIGNMENT. Notwithstanding anything to the contrary
contained herein, except as provided in Section 4.04, this Agreement may not be
assigned by the Seller or FNBC. This Agreement may be assigned by the Eligible
Lender Trustee only to its permitted successor pursuant to the Trust Agreement.
SECTION 6.05. LIMITATIONS ON RIGHTS OF OTHERS. The provisions of this
Agreement are solely for the benefit of the Seller, FNBC, the Issuer and the
Eligible Lender Trustee and for the benefit of the Indenture Trustee, the
Noteholders, the Certificateholders and (with respect to Section 5.01) the
Company or its designee, as third party beneficiaries, and
16
nothing in this Agreement, whether express or implied, shall be construed to
give to any other Person any legal or equitable right, remedy or claim in the
Trust Estate or under or in respect of this Agreement or any covenants,
conditions or provisions contained herein.
SECTION 6.06. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 6.07. SEPARATE COUNTERPARTS. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
SECTION 6.08. HEADINGS. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
SECTION 6.09. GOVERNING LAW. This Agreement shall be 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.
SECTION 6.10. ASSIGNMENT TO INDENTURE TRUSTEE. The Seller hereby
acknowledges and consents to any mortgage, pledge, assignment and grant by the
Issuer to the Indenture Trustee pursuant to the Indenture for the benefit of the
Noteholders of a security interest in all right, title and interest of the
Issuer in, to and under the Trust Loans or the assignment of any or all of the
Issuer's rights and obligations hereunder to the Indenture Trustee.
SECTION 6.11. NON-PETITION COVENANTS. Notwithstanding any prior
termination of this Agreement, neither the Seller nor FNBC shall, prior to the
date which is one year and one day after the termination of this Agreement with
respect to the Issuer or the Company, acquiesce, petition or otherwise invoke or
cause the Issuer to invoke the process of any court or government authority for
the purpose of commencing or sustaining a case against the Issuer 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 Issuer or any substantial part of its property, or ordering the winding
up or liquidation of the affairs of the Issuer or the Company.
SECTION 6.12. LIMITATION OF LIABILITY OF FNBC, ELIGIBLE LENDER TRUSTEE
AND INDENTURE TRUSTEE. (a) Notwithstanding anything contained herein to the
contrary, this Agreement has been signed by FNBC not in its individual capacity
but solely in its capacity as trustee for the Seller and in no event shall FNBC
in its individual capacity or, except as expressly provided herein or in the
trust agreement between Seller and FNBC dated ______ __, 1999, as legal owner of
the Trust Loans, have any liability for representations, warranties, covenants,
agreements or other obligations of the Seller hereunder or in any of the
certificates, notices or
17
agreements delivered by the Seller pursuant hereto as to all of which recourse
shall be had solely against the Seller.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been signed by The First National Bank of Chicago not in its
individual capacity but solely in its capacity as trustee for ▇▇▇▇▇▇ ▇▇▇
Education Loan Corporation and in its capacity as Eligible Lender Trustee of the
Issuer and in no event shall The First National Bank of Chicago in its
individual capacity or, except as expressly provided in the Trust Agreement, as
beneficial owner of the Issuer have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer hereunder
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 Issuer.
(c) Notwithstanding anything contained herein to the contrary, this
Agreement has been accepted by State Street Bank and Trust Company not in its
individual capacity but solely as Indenture Trustee and in no event shall State
Street Bank and Trust Company have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer hereunder
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 Issuer.
SECTION 6.13. AGREEMENT OF SELLER AND FNBC. Each of the Seller and FNBC
agrees to execute and deliver such instruments and to take such actions as the
Eligible Lender Trustee, the Issuer or the Indenture Trustee may reasonably
request in order to effectuate the terms and carry out the purposes of this
Agreement.
18
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective officers as of the day and
year first above written.
▇▇▇▇▇▇ MAE STUDENT LOAN TRUST 1999-A
By: The First National Bank of Chicago, not
in its individual capacity but solely as
Eligible Lender Trustee on behalf of the
Trust
By:
------------------------------------
Name:
Title:
▇▇▇▇▇▇ ▇▇▇ EDUCATION LOAN CORPORATION
By:
--------------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity but solely as
eligible lender trustee for ▇▇▇▇▇▇ Mae Education
Loan Corporation
By:
--------------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity but
solely as Eligible Lender Trustee
for the Trust
By:
--------------------------------------------
Name:
Title:
19
Acknowledged and accepted as of the day
and year first above written:
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity but
solely as Indenture Trustee
By:
--------------------------------
Name:
Title:
20
EXHIBIT A
TO THE LOAN SALE AGREEMENT
▇▇▇▇ OF SALE
For value received, in accordance with the Loan Sale Agreement (the
"LOAN SALE AGREEMENT") dated as of ____ 1, 1999, among ▇▇▇▇▇▇ Mae Education Loan
Corporation, as seller (the "SELLER"), ▇▇▇▇▇▇ ▇▇▇ Student Loan Trust 1999-A (the
"TRUST"), The First National Bank of Chicago, not in its individual capacity but
solely as trustee for the Seller ("FNBC"), and The First National Bank of
Chicago, not in its individual capacity but solely as Eligible Lender Trustee
(the "ELIGIBLE LENDER TRUSTEE"), the Seller (and, with respect to legal title to
the Initial Trust Loans, FNBC as trustee on behalf of the Seller) does hereby
sell, assign, transfer and otherwise convey unto the Issuer and, with respect to
legal title, unto the Eligible Lender Trustee on behalf of the Trust, without
recourse (subject to the obligations set forth in the Loan Sale Agreement), all
right, title and interest in and to (i) the Initial Trust Loans and all
obligations of the Obligors thereunder, together with all documents, the related
Student Loan Files and all rights and privileges related thereto, (ii) all
payments and/or collections received thereunder on and after the Cutoff Date,
(iii) all funds on deposit from time to time in the Trust Accounts, including
the Reserve Account Initial Deposit, and in all investments and proceeds thereof
(including all income thereon) and (iv) all proceeds of any and all of the
foregoing (including but not limited to proceeds derived from the voluntary or
involuntary conversion of any of the Initial Trust Loans into cash or other
liquidated property, such as proceeds from the applicable Guarantee Agreement).
The foregoing sale does not constitute and is not intended to result in any
assumption by the Eligible Lender Trustee or the Trust of any obligation of the
Seller or FNBC to the borrowers of Initial Trust Loans or any other Person in
connection with the Initial Trust Loans or any agreement or instrument relating
to any of them.
In addition, the undersigned, by execution of this instrument, hereby
endorses the promissory notes evidencing each Initial Trust Loan described in
Schedule A to the Loan Sale Agreement in favor of the Eligible Lender Trustee on
behalf of the Trust, without recourse (subject to the obligations set forth in
the Loan Sale Agreement) against the undersigned. This endorsement may be
effected by attaching a facsimile hereof to each or any of such promissory
notes.
This ▇▇▇▇ of Sale is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the Loan
Sale Agreement and is to be governed by the Loan Sale Agreement.
Capitalized terms used but not defined herein shall have the meaning
assigned to them in Appendix A to the Administration Agreement, dated as of ____
1, 1999, among ▇▇▇▇▇▇ ▇▇▇ Student Loan Trust 1999-A, as Issuer, ▇▇▇▇▇▇ Mae
Education Loan Corporation, as Administrator, and State Street Bank and Trust
Company, as Indenture Trustee, which also contains rules as to usage that shall
be applicable herein.
A-1
IN WITNESS WHEREOF, the undersigned has caused this ▇▇▇▇ of Sale to be
duly executed as of ____ 1, 1999.
▇▇▇▇▇▇ MAE EDUCATION LOAN CORPORATION
By:
------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
not in its
individual capacity but
solely as eligible lender
trustee for ▇▇▇▇▇▇ ▇▇▇
Education Loan Corporation
By:
-----------------------------------
Name:
Title:
A-2
EXHIBIT B
TO THE
LOAN SALE AGREEMENT
TRANSFER AGREEMENT
TRANSFER No. _____ of SERIAL LOANS dated as of ________ __,
____, among ▇▇▇▇▇▇ ▇▇▇ STUDENT LOAN TRUST 1999-A, a Delaware trust (the
"ISSUER"), ▇▇▇▇▇▇ MAE EDUCATION LOAN CORPORATION, as seller (the "SELLER"), THE
FIRST NATIONAL BANK OF CHICAGO*, not in its individual capacity but solely as
eligible lender trustee of the Seller ("FNBC"), and THE FIRST NATIONAL BANK OF
CHICAGO, a national banking association, not in its individual capacity but
solely as Eligible Lender Trustee of the Issuer (the "ELIGIBLE LENDER TRUSTEE").
W I T N E S S E T H:
WHEREAS the Issuer, the Seller, FNBC and the Eligible Lender
Trustee are parties to the Loan Sale Agreement dated as of _____ 1, 1999 (as
amended or supplemented, the "LOAN SALE AGREEMENT"); and
WHEREAS the Seller, as depositor, and the Eligible Lender
Trustee are parties to the Trust Agreement dated as of _____ __, 1999 (as
amended or supplemented, the "TRUST AGREEMENT"); and
WHEREAS pursuant to the Loan Sale Agreement, the Seller wishes
to convey the Serial Loans referred to in Section 2 (the "ADDITIONAL TRUST
LOANS") to the Eligible Lender Trustee on behalf of the Issuer; and
WHEREAS in order to comply with the requirements of the Higher
Education Act, legal title to the Seller's student loan portfolio is vested in
FNBC, as trustee on behalf of the Seller as the sole beneficiary; and
WHEREAS, the Eligible Lender Trustee and the Issuer are
willing to accept such conveyance subject to the terms and conditions hereof.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. DEFINITIONS AND USAGE. Unless otherwise defined herein,
capitalized terms used herein shall have the meanings ascribed to them in
Appendix A to the Administration
--------------------------------
* FNBC shall be replaced as a party to any Transfer Agreement by any other
eligible lender trustee under the Higher Education Act that is acting as
trustee for the Seller with respect to the Serial Loans being conveyed
pursuant to such Transfer Agreement.
B-1
Agreement, dated as of _______ 1, 1999, among the Issuer, the Seller, as
Administrator, and State Street Bank and Trust Company, as Indenture Trustee,
which also contains rules of construction and usage that shall be applicable
herein.
In addition, the following terms have the following meanings:
"SUBSEQUENT CUTOFF DATE" means, with respect to each
Additional Student Loan, the date specified as such on Schedule A
hereto.
"TRANSFER DATE" means, with respect to the Additional Student
Loans, ___________ __, _______.
2. SCHEDULE OF ADDITIONAL TRUST LOANS. Attached hereto as
Schedule A is a supplement to Schedule A to the Loan Sale Agreement listing the
Additional Trust Loans to be conveyed on the Transfer Date to the Eligible
Lender Trustee on behalf of the Issuer pursuant to this Agreement.
3. CONVEYANCE OF ADDITIONAL TRUST LOANS. In consideration of
Issuer's delivery to or upon the order of the Seller of $___________ such amount
being the sum of (i) the Purchase Collateral Balance ($_____) to be paid from
amounts on deposit in the Collection Account and (ii) the Purchase Premium
Amount ($_____) to be paid on the immediately subsequent Quarterly Payment Date
from amounts on deposit in the Reserve Fund in excess of the Specified Reserve
Account Balance subject to Section 2.02(b) of the Loan Sale Agreement and
Section 2(e) of the Administration Agreement, the Seller (and, with respect to
legal title to the Additional Trust Loans, FNBC as trustee on behalf of the
Seller) does hereby sell, assign and otherwise convey, without recourse (except
as expressly provided in the Loan Sale Agreement), to the Eligible Lender
Trustee on behalf of the Issuer:
(a) all right, title and interest in and to the Additional
Trust Loans and all obligations of the Obligors thereunder, together
with all documents, the related Student Loan Files and all rights and
privileges relating thereto;
(b) all payments on or collections received thereunder, on and
after the related Subsequent Cutoff Date;
(c) all proceeds of any and all of the foregoing.
4. CONDITIONS PRECEDENT. The obligation of the Issuer to
acquire the Additional Trust Loans hereunder is subject to the satisfaction, on
or prior to the Transfer Date, of the following conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by the Seller in Sections 3.01 and
4.01 of the Loan Sale Agreement and by FNBC in Section 4.01 of the
Loan Sale Agreement shall be true and correct as of the Transfer Date.
(b) LOAN SALE AGREEMENT CONDITIONS. Each of the conditions set
forth in Section 2.02(c) (and, if the trustee for the Seller with
respect to the Additional Trust
B-2
Loans is other than FNBC, in Section 4.02) of the Loan Sale Agreement
shall have been satisfied.
(c) DELIVERY OF ▇▇▇▇ OF SALE. The Seller and FNBC shall have
delivered a ▇▇▇▇ of Sale substantially in the form of Annex A hereto.
(d) ADDITIONAL INFORMATION. The Seller and FNBC shall have
delivered to the Issuer such information as was reasonably requested
by the Issuer (such reasonableness to be determined solely by the
Seller) to satisfy itself as to (a) the accuracy of the
representations and warranties set forth in Sections 3.01 and 4.01 of
the Loan Sale Agreement and (ii) the satisfaction of the conditions
set forth in this Section 4.
5. RATIFICATION OF AGREEMENT. As supplemented by this
Agreement, the Loan Sale Agreement is in all respects ratified and confirmed and
the Loan Sale Agreement as so supplemented by this Agreement shall be read,
taken and construed as one and the same instrument.
6. THIRD-PARTY BENEFICIARY. The Indenture Trustee is an
express third-party beneficiary and may enforce the provisions of this Agreement
as if it were a party hereto.
7. COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which when so executed and delivered shall be an original,
but all of which together shall constitute but one and the same instrument.
8. GOVERNING LAW. This Agreement shall be 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.
9. HEADINGS. The section headings hereof have been inserted
for convenience of reference only and shall not be construed to affect the
meaning, construction or effect of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their respective duly authorized
officers as of the day and the year first above written.
▇▇▇▇▇▇ ▇▇▇ STUDENT LOAN TRUST 1999-A
By: THE FIRST NATIONAL BANK OF
CHICAGO, not in its individual capacity
but solely as Eligible Lender Trustee on
behalf of the Trust
By:
----------------------------------------
Name:
Title:
B-3
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity but solely as
Eligible Lender Trustee
By:
---------------------------
Name:
Title:
▇▇▇▇▇▇ MAE EDUCATION LOAN CORPORATION, Seller
By:
---------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual
capacity but solely as
trustee for ▇▇▇▇▇▇ ▇▇▇
Education Loan Corporation.
By:
---------------------------
Name:
Title:
Acknowledged and accepted as
of the date first above written:
STATE STREET BANK AND TRUST COMPANY,
not in its individual capacity but solely as
Indenture Trustee
By:
-------------------------------------
Name:
Title:
B-4
SCHEDULE A
TO THE TRANSFER AGREEMENT NO. ___
[List of Additional Trust Loans
and their related Subsequent Cutoff Dates]
B-5
ANNEX A
TO THE TRANSFER AGREEMENT
▇▇▇▇ OF SALE
For value received, in accordance with the Loan Sale Agreement (the
"LOAN SALE AGREEMENT") dated as of _____ __, 1999, among ▇▇▇▇▇▇ ▇▇▇ Education
Loan Corporation, as seller (the "SELLER"),The First National Bank of Chicago,
not in its individual capacity but solely as trustee for the Seller ("FNBC"),
▇▇▇▇▇▇ Mae Student Loan Trust 1999-A (the "TRUST") and The First National Bank
of Chicago, not in its individual capacity but solely as Eligible Lender Trustee
for the Trust (the "ELIGIBLE LENDER TRUSTEE") [and as ratified by [name of
eligible lender if other than FNBC with respect to the Additional Trust Loans]
pursuant to Section 4.02 of the Loan Sale Agreement] and the Transfer Agreement
No. ____ dated as of ______ __, ____ (the "TRANSFER AGREEMENT") among the
Seller, FNBC, the Trust and the Eligible Lender Trustee, the Seller (and, with
respect to legal title to the Additional Trust Loans, FNBC as trustee on behalf
of the Seller) does hereby sell, assign, transfer and otherwise convey unto the
Issuer and, with respect to legal title, unto the Eligible Lender Trustee on
behalf of the Trust, without recourse (subject to the obligations set forth in
the Loan Sale Agreement), all right, title and interest in and to (i) the
Additional Trust Loans and all obligations of the Obligors thereunder, together
with all documents, the related Student Loan Files and all rights and privileges
related thereto, (ii) all payments and collections received thereunder, on and
after the Subsequent Cutoff Date and (iii) all proceeds of any and all of the
foregoing (including but not limited to proceeds derived from the voluntary or
involuntary conversion of any of the Additional Trust Loans into cash or other
liquidated property, such as proceeds from the applicable Guarantee Agreement).
The foregoing sale does not constitute and is not intended to result in any
assumption by the Eligible Lender Trustee or the Trust of any obligation of the
Seller or FNBC to the borrowers of the Additional Trust Loans or any other
person in connection with the Additional Trust Loans or any agreement or
instrument relating to any of them.
In addition, the undersigned, by execution of this instrument, hereby
endorses the promissory notes evidencing each Additional Trust Loan described in
Schedule A to the Transfer Agreement in favor of the Eligible Lender Trustee on
behalf of the Trust, without recourse (subject to the obligations set forth in
the Loan Sale Agreement) against the undersigned. This endorsement may be
effected by attaching a facsimile hereof to each or any of such promissory
notes.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the Loan
Sale Agreement and the Transfer Agreement and is to be governed by the Loan Sale
Agreement and the Transfer Agreement.
Capitalized terms used but not defined herein shall have the meanings
assigned to them in the Transfer Agreement.
B-6
IN WITNESS WHEREOF, the undersigned has caused this ▇▇▇▇ of
Sale to be duly executed as of _____ ___, _____.
▇▇▇▇▇▇ MAE EDUCATION LOAN CORPORATION, as Seller
By:
----------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual
capacity but solely as
eligible lender trustee for
▇▇▇▇▇▇ ▇▇▇ Education
Loan Corporation
By:
----------------------------------------
Name:
Title:
B-7
EXHIBIT C
TO THE LOAN SALE AGREEMENT
1. CHARACTERISTICS OF THE TRUST LOANS. Each Trust Loan (A) was
originated in the United States of America, its territories, its possessions or
other areas subject to its jurisdiction by an "eligible lender" under the Higher
Education Act in the ordinary course of its business to an eligible borrower
under applicable law and agreements and was fully and properly executed by the
parties thereto, (B) was acquired or originated by the Seller in the ordinary
course of its business, (C) provides or, when the payment schedule with respect
thereto is determined, will provide for payments on a periodic basis that fully
amortizes the principal amount of such Trust Loan by its maturity, as such
maturity may be modified in accordance with any applicable deferral or
forbearance periods granted in accordance with applicable laws and restrictions,
including those of the Higher Education Act or the applicable Guarantee
Agreement, and yield interest at the rate applicable thereto, and (D) provides
that the rights with respect thereto are assignable by the lender thereunder and
its assignees without the consent of or notice to any person other than as may
be required by the Higher Education Act and such notice has been or will be
given. Each Trust Loan is guaranteed by an eligible guarantor under the Higher
Education Act and qualifies the holder thereof to receive Interest Subsidy
Payments (other than SLS Loans, unsubsidized ▇▇▇▇▇▇▇▇ Loans, and those
Consolidation Loans for which the related loan application was submitted prior
to January 1, 1993) and Special Allowance Payments from the Department and
Guarantee Payments from the Guarantor and qualifies the Guarantor to receive
reinsurance payments thereon from the Department. [If such Trust Loan is a
Qualified Substitute Loan and is guaranteed by an Additional Guarantor, the
aggregate principal balance of all Trust Loans guaranteed by such Additional
Guarantor (measured as of the Subsequent Cutoff Date for such Trust Loan)
following the addition of such Trust Loan to the Trust, did not exceed 5% of the
principal balance of all Trust Loans as of such date, and the aggregate
principal balance of all Trust Loans guaranteed by all Additional Guarantors
measured as of such date, following such addition, did not exceed 20% of the
principal balance of all Trust Loans as of such date]. The principal balance of
each Trust Loan is not subject to change by reason of adjustments to the related
Borrower's account after the Cutoff Date relating to matters or events occurring
prior to the Cutoff Date.
2. SCHEDULE OF TRUST LOANS. The information set forth in Schedule A to
this Agreement is true and correct in all material respects as of the opening of
business on the Cutoff Date. With respect to any Qualified Substitute Student
Loan conveyed to the Issuer after the Closing Date, information for each
category set forth in Schedule A has been provided with respect to such loan and
such information is true and correct in all material respects as of the opening
of business on the applicable Subsequent Cutoff Date. No selection procedures
believed to be adverse to the Noteholders or the Certificateholders were
utilized in selecting any Trust Loan. The computer tape regarding the Initial
Trust Loans made available to the Issuer and its assigns is true and correct in
all respects as of the Cutoff Date, and, after the Closing Date, any computer
tape regarding any Qualified Substitute Student Loan made available to the
Issuer and its assigns is true and correct in all respects as of the date of the
applicable Subsequent Cutoff Date.
C-1
3. COMPLIANCE WITH LAW. Each Trust Loan complied at the time of
origination and at the time of the execution of this Agreement or the applicable
Assignment, as the case may be, in all material respects with all applicable
requirements of local, state, and federal laws, rules and regulations which
govern the making of such Trust Loan including the requirements of the
applicable Guarantee Agreement.
4. BINDING OBLIGATION. The terms and conditions of each Trust Loan are
consistent with the application of the Borrower, all signatures for the Trust
Loans are genuine and the Borrower Note evidencing each Trust Loan has been duly
executed and delivered and constitutes the legal, valid, and binding obligation
of the Borrower enforceable in accordance with its terms.
5. NO DEFENSES. No right of rescission, setoff, counterclaim, or
defense has been asserted or threatened or exists with respect to any Trust
Loan.
6. NO DEFAULT. No Initial Trust Loan has a payment that is more than
120 days overdue as of the Cutoff Date and no Additional Trust Loan has a
payment that is more than 90 days overdue as of the applicable Subsequent Cutoff
Date in the case of a Serial Loan or as of the applicable Transfer Date in the
case of a Qualified Substitute Student Loan, and, except as permitted in this
paragraph, no default, breach, violation or event permitting acceleration under
the terms of any Trust Loan has occurred; and, except for payment defaults
continuing for a period of not more than 120 days, no continuing condition that
with notice or the lapse of time or both would constitute a default, breach,
violation or event permitting acceleration under the terms of any Trust Loan has
arisen; the Seller has not waived and shall not waive any of the foregoing other
than as permitted by the Basic Documents; and not more than 20% of the Trust
Loans by outstanding principal balance are more than 30 days overdue as of
______ __, 1999.
7. TITLE. It is the intention of the Seller that the transfer and
assignment herein contemplated constitute a sale of the Trust Loans from the
Seller to the Eligible Lender Trustee on behalf of the Issuer and that the
beneficial interest in and title to such Trust Loans not be part of the estate
of the Seller in the event of the appointment of a receiver with respect to the
Seller. Immediately prior to the transfer and sale of each Trust Loan to the
Trust, each Borrower Note is owned by the Seller and the Seller has good title
to each Trust Loan, free and clear of any lien, charge, encumbrance, or other
interest therein and immediately upon the transfer and sale of such Trust Loan
to the Trust, the Eligible Lender Trustee on behalf of the Issuer will have good
title to such Trust Loan free and clear of any lien, charge, encumbrance, or
other interest therein except as contemplated by the Basic Documents.
8. ALL FILINGS MADE. All filings (including UCC filings) necessary in
any jurisdiction to give the Eligible Lender Trustee on behalf of the Issuer a
first perfected ownership interest in the Trust Loans, and to give the Indenture
Trustee a first perfected security interest therein, have been made.
9. NO BANKRUPTCIES. No Borrower of any Initial Trust Loan as of the
Cutoff Date and no borrower of any Additional Trust Loan as of the applicable
Subsequent Cutoff Date in the case of a Serial Loan or as of the Subsequent
Cutoff Date in the case of a Qualified
C-2
Substitute Student Loan was noted in the related Student Loan File as being
currently involved in a bankruptcy proceeding.
10. LAWFUL ASSIGNMENT. No Trust Loan has been originated in, or is
subject to the laws of, any jurisdiction under which the origination, sale,
transfer and assignment of such Trust Loan or any Trust Loan under this
Agreement or the Indenture is unlawful, void or voidable.
11. ONE ORIGINAL. There is only one original executed copy of the
Borrower Note evidencing each Trust Loan.
12. U.S. OBLIGORS. Less than 1% of the Trust Loans are due from Persons
not having a mailing address in the United States of America.
13. ACCOUNTS. Each Trust Loan may be pledged or transferred as an
"account" as defined in the UCC.
14. INTEREST ACCRUING. Each Trust Loan is accruing interest (whether or
not such interest is being paid currently, by the Borrower or by the Department,
or is being capitalized) at the maximum interest rate permitted by the Higher
Education Act and qualifies for Special Allowance Payments, except as expressly
permitted by the Basic Documents.
15. SELLER'S REPRESENTATIONS. The representations and warranties of the
Seller contained in Section 4.01 are true and correct.
C-3
EXHIBIT D
TO THE LOAN SALE AGREEMENT
1. ORGANIZATION AND GOOD STANDING. The Seller has been organized and is
existing under the General Corporation Law of the State of Delaware and is
authorized to do business in every state in which it is doing business (except
where any failure to be so authorized shall not have a material adverse effect
on either the Seller or its obligations hereunder) as well as the state in which
it is organized and incorporated.
2. POWER AND AUTHORITY OF THE SELLER. The Seller has the corporate
power and authority to execute and deliver this Agreement and to carry out its
terms; the Seller has full corporate power and authority to sell (with FNBC
conveying legal title as trustee on behalf of the Seller) and assign the
property to be sold and assigned to and deposited with the Issuer (or with the
Eligible Lender Trustee on behalf of the Issuer) and the Seller has duly
authorized such sale and assignment to the Issuer (or to the Eligible Lender
Trustee on behalf of the Issuer) by all necessary corporate action; and the
execution, delivery and performance of this Agreement have been duly authorized
by the Seller by all necessary corporate action.
3. BINDING OBLIGATION. This Agreement has been executed and delivered
by the Seller and, assuming authorization, execution, and delivery by the other
parties thereto, this Agreement constitutes a valid obligation of the Seller
enforceable against it in accordance with the express terms of this Agreement,
except as enforcement thereof may be limited by the bankruptcy, insolvency,
reorganization, moratorium, liquidation, readjustment of debt, or other federal
or state laws or equitable principles relating to or affecting the enforcement
of creditor's rights.
4. NO VIOLATION. The consummation of the transactions contemplated by
this Agreement or the Administration Agreement and the fulfillment of the terms
hereof or thereof do not conflict with, result in any breach of any of the terms
and provisions of, nor constitute (with or without notice or lapse of time or
both) a default under, the certificate of incorporation or by-laws of the
Seller, or any indenture, agreement or other instrument to which the Seller is a
party or by which it shall be bound; nor result in the creation or imposition of
any Lien upon any of its properties pursuant to the terms of any such indenture,
agreement or other instrument (other than pursuant to the Basic Documents); nor
violate any law or, to the knowledge of the Seller, any order, rule or
regulation applicable to the Seller of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Seller or its properties. The consummation of the
transactions contemplated by this Agreement or by the Administration Agreement
and the fulfillment of the terms hereof and thereof will not result in the loss
of any Guarantee Payments by the Trust or any reinsurance payments with respect
to any Trust Loans by the Guarantor.
5. NO PROCEEDINGS. There is no action, suit, claim, investigation, or
proceeding, in any such case whether pending or to the knowledge of the Seller,
threatened against the Seller before any court, governmental agency, or
arbitrator (i) asserting the invalidity of this Agreement, the Indenture or any
of the other Basic Documents, the Notes or the Certificates, (ii) seeking to
prevent the issuance of the Notes or the Certificates or the
D-1
consummation of any transactions contemplated by this Agreement, the Indenture
or any of the other Basic Documents, (iii) seeking any determination or ruling
that could reasonably be expected to have a material and adverse effect on the
performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement, the Indenture, any of the other Basic
Documents, the Notes or the Certificates or (iv) seeking to affect adversely the
federal or state income tax attributes of the Issuer, the Notes or the
Certificates.
6. ALL CONSENTS. No action, including, without limitation, the granting
or issuing of any consent, permit, license, approval, or authorization which is
required to be made on or prior to the date of this Agreement in connection with
the sale of Trust Loans under this Agreement (with the possible exception of
routine filings which, if not made, will not render the Seller liable to any
material penalties or will not result in the transactions contemplated by this
Agreement being subject to challenge) is required.
D-2
EXHIBIT E
TO THE LOAN SALE AGREEMENT
1. ORGANIZATION AND GOOD STANDING. FNBC is a national banking
association duly organized, validly existing and in good standing under the laws
of the United States and is an "eligible lender" for purposes of the Higher
Education Act.
2. POWER AND AUTHORITY OF THE FNBC. FNBC has authorized the execution
and delivery of this Agreement and has full legal power and authority to
consummate all transactions contemplated by this Agreement and any and all other
agreements relating hereto.
3. BINDING OBLIGATION. This Agreement has been executed and delivered
by FNBC and, assuming authorization, execution, and delivery by the other
parties thereto, this Agreement constitutes a valid obligation of FNBC
enforceable against it in accordance with the express terms of this Agreement,
except as enforcement thereof may be limited by the bankruptcy, insolvency,
reorganization, moratorium, liquidation, readjustment of debt, or other federal
or state laws or equitable principles relating to or affecting the enforcement
of creditor's rights.
4. NO VIOLATION. Compliance by FNBC with this Agreement does not in any
material respect violate any law or regulation by which FNBC or its assets are
bound, or any writ, order, judgment, or decree of any court or government
instrumentality or arbitrator in which FNBC is named, or the charter or by-laws
of FNBC or any indenture, contract, or agreement to which FNBC is a party or by
which it is or its properties are bound or affected.
5. NO PROCEEDINGS. There is no action, suit, claim, investigation, or
proceeding, in any case pending or, to the knowledge of FNBC, threatened against
FNBC before any court, governmental agency, or arbitrator which, if decided
adversely to FNBC, is likely to have a material adverse effect upon the validity
or enforceability of this Agreement.
6. ALL CONSENTS. No action, including, without limitation, the granting
or issuing of any consent, permit, license, approval, or authorization which is
required to be made on or prior to the date of this Agreement in connection with
the sale of Trust Loans under this Agreement (with the possible exception of
routine filings which, if not made, will not render FNBC liable to any material
penalties or will not result in the transactions contemplated by this Agreement
being subject to challenge) is required.
E-1
EXHIBIT F
TO THE LOAN SALE AGREEMENT
ASSIGNMENT
For value received, in accordance with the Loan Sale Agreement (the
"LOAN SALE AGREEMENT") dated as of _____ 1, 1999, among ▇▇▇▇▇▇ ▇▇▇ Education
Loan Corporation, as seller (the "SELLER"), ▇▇▇▇▇▇ Mae Student Loan Trust 1999-A
(the "TRUST"), The First National Bank of Chicago, not in its individual
capacity but solely as eligible lender trustee for the Seller ("FNBC"), and The
First National Bank of Chicago, not in its individual capacity but solely as
eligible lender trustee for the Trust (the "ELIGIBLE LENDER TRUSTEE"), the
Seller (and, with respect to legal title to the Initial Trust Loans, FNBC as
trustee on behalf of the Seller) does hereby sell, assign, transfer and
otherwise convey unto the Eligible Lender Trustee on behalf of the Trust,
without recourse (subject to the obligations set forth in the Loan Sale
Agreement), all right, title and interest in and to (i) the Qualified Substitute
Student Loan(s) indicated in Schedule A hereto and all obligations of the
Obligors thereunder, together with all documents, the related Student Loan Files
and all rights and privileges related thereto, (ii) all payments and/or
collections received thereunder on and after the date hereof and (iii) all
proceeds of any and all of the foregoing (including but not limited to proceeds
derived from the voluntary or involuntary conversion of any such Qualified
Substitute Student Loans into cash or other liquidated property, such as
proceeds from the applicable Guarantee Agreement). The foregoing sale does not
constitute and is not intended to result in any assumption by the Eligible
Lender Trustee or the Trust of any obligation of the Seller or FNBC to the
borrowers of such Qualified Substitute Student Loans or any other Person in
connection with such Qualified Substitute Student Loans or any agreement or
instrument relating to any of them.
In addition, the undersigned, by execution of this instrument, hereby
endorse the promissory notes evidencing each such Qualified Substitute Student
Loan in favor of the Eligible Lender Trustee on behalf of the Trust, without
recourse (subject to the obligations set forth in the Loan Sale Agreement)
against the undersigned. This endorsement may be effected by attaching a
facsimile hereof to each or any of such promissory notes.
This Assignment is made pursuant to and upon the representations,
warranties and agreements on the part of the undersigned contained in the Loan
Sale Agreement and is to be governed by the Loan Sale Agreement.
Capitalized terms used but not defined herein shall have the meaning
assigned to them in Appendix A to the Administration Agreement, dated as of
_____ 1, 1999, among the Trust, as Issuer, the Seller, as Administrator, and
State Street Bank and Trust Company, as Indenture Trustee, which also contains
rules as to usage that shall be applicable herein.
F-1
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
duly executed as of ___ _____.
▇▇▇▇▇▇ ▇▇▇ EDUCATION LOAN CORPORATION, Seller
By:
-----------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
not in its individual capacity but solely as
eligible lender trustee for ▇▇▇▇▇▇ Mae
Education Loan Corporation
By:
-----------------------------------------
Name:
Title:
F-2