Exhibit 99.2
SALE AGREEMENT MASTER SECURITIZATION TERMS NUMBER 1000
These Sale Agreement Master Securitization Terms Number 1000 ("Master Sale
Terms") dated as of June 10, 2004 among SLM Funding LLC (in such capacity, the
"Seller"), SLM Student Loan Trust 2004-5 (the "Purchaser"), and Chase Manhattan
Bank USA, National Association, not in its individual capacity but solely as
Interim Eligible Lender Trustee (the "Interim Eligible Lender Trustee") for the
benefit of the Seller under the Interim Trust Agreement dated as of June 1, 2004
between the Seller and the Interim Eligible Lender Trustee, and Chase Manhattan
Bank USA, National Association, not in its individual capacity but solely as
Eligible Lender Trustee on behalf of SLM Student Loan Trust 2004-5 (the
"Eligible Lender Trustee"), shall be effective upon execution by the parties
hereto. References to the Seller herein mean the Interim Eligible Lender
Trustee, and references to the Purchaser mean the Eligible Lender Trustee, for
all purposes involving the holding or transferring of legal title to the Trust
Student Loans.
WHEREAS, the Seller is the owner of certain student loans guaranteed under
the Higher Education Act;
WHEREAS, the Purchaser desires to purchase from the Seller the portfolio of
Initial Loans;
WHEREAS, from time to time following the Closing Date until the end of the
Funding Period, the Seller may desire to sell Additional Loans and the Purchaser
may purchase such Additional Loans in accordance with these Master Sale Terms
and the related Additional Sale Agreement; and
WHEREAS, the Interim Eligible Lender Trustee is willing to hold legal title
to, and serve as eligible lender trustee with respect to, such Loans on behalf
of the Purchaser.
NOW, THEREFORE, in connection with the mutual promises contained herein,
the parties hereto agree as follows:
SECTION 1. TERMS
These Master Sale Terms establish the terms under which the Seller (and
with respect to legal title, the Interim Eligible Lender Trustee for the benefit
of the Seller) may sell and the Purchaser (and with respect to legal title, the
Eligible Lender Trustee on behalf of the Purchaser) may purchase the Loans (and
all obligations of the Borrowers thereunder) specified in the Initial Sale
Agreement with respect to the Initial Loans or each Additional Sale Agreement
with respect to the Additional Loans, as the parties may execute from time to
time pursuant to these Master Sale Terms. The Initial Sale Agreement and each
Additional Sale Agreement, as applicable, shall be substantially in the form of
Exhibit A and Exhibit C hereto, respectively, in each case incorporating by
reference the terms of these Master Sale Terms, and shall be a separate
agreement among the Seller, the Purchaser, the Eligible Lender Trustee on behalf
of the Purchaser, and the Interim Eligible Lender Trustee on behalf of the
Seller with respect to the Loans covered by the terms of the Initial Sale
Agreement or the related Additional Sale
Agreement, as applicable. If the terms of the Initial Sale Agreement or an
Additional Sale Agreement conflict with the terms of these Master Sale Terms,
the terms of the Initial Sale Agreement or the related Additional Sale
Agreement, as applicable, shall supersede and govern.
SECTION 2. DEFINITIONS
Capitalized terms used but not otherwise defined herein, including in the
related Purchase Agreement and ▇▇▇▇ of Sale, shall have the definitions set
forth in Appendix A-1 to the Indenture, dated as of June 1, 2004, among the
Eligible Lender Trustee on behalf of the Trust, the Trust and the Indenture
Trustee, as may be amended or supplemented from time to time.
For purposes hereof:
(A) "Account" means all of the Eligible Loans hereunder of one (1) Borrower
that are of the same Loan type made under the identical subsection of the
Higher Education Act and in the same status.
(B) "Additional ▇▇▇▇ of Sale" means each document, in the form of Exhibit D
hereto, executed by an authorized officer of the Interim Eligible Lender
Trustee on behalf of the Seller and the Eligible Lender Trustee on behalf
of the Purchaser which shall: (i) set forth the list and certain terms of
Additional Loans offered by the Seller and the Interim Eligible Lender
Trustee on behalf of the Seller and accepted for purchase by the Eligible
Lender Trustee for the benefit of the Purchaser, including the Additional
Loans Purchase Price for the Additional Loans being sold thereunder and
(ii) sell, assign and convey to the Eligible Lender Trustee, for the
benefit of the Purchaser and its assignees, all right, title and interest
of the Seller and the Interim Eligible Lender Trustee on behalf of the
Seller in the Additional Loans listed on the related Additional ▇▇▇▇ of
Sale.
(C) "Additional Loan" means the Eligible Loans evidenced by a Note or Notes
sold from time to time during the Funding Period pursuant to an Additional
Sale Agreement and related documentation, together with any guaranties and
other rights relating thereto including, without limitation, Interest
Subsidy Payments and Special Allowance Payments.
(D) "Additional Loans Purchase Price" means the dollar amount representing
the aggregate purchase price of the related Additional Loans as specified
in the applicable Additional Sale Agreement.
(E) "Additional Sale Agreement" means each Additional Sale Agreement
(including the related Additional ▇▇▇▇ of Sale, the related Blanket
Endorsement and any attachments thereto), substantially in the form of
Exhibit C hereto (of which these Master Sale Terms form a part by
reference), to be executed by the Seller and the Interim Eligible Lender
Trustee (on behalf of the Seller), the Purchaser and the Eligible Lender
Trustee (on behalf of the Purchaser) which certifies that the
representations and warranties made by the Seller as set forth in Sections
5(A) and (B) of these Master Sale Terms are true and correct as of the
related Purchase Date.
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(F) "▇▇▇▇ of Sale" means the Initial ▇▇▇▇ of Sale or an Additional ▇▇▇▇ of
Sale, as applicable.
(G) "Borrower" means the obligor on a Loan.
(H) "Consolidation Loan" means a Loan made pursuant to and in full
compliance with Section 428C of the Higher Education Act.
(I) "Cutoff Date" means the Statistical Cutoff Date or any Subsequent
Cutoff Date, as applicable.
(J) "Delinquent" means the period any payment of principal or interest due
on the Loan is overdue.
(K) "Eligible Loan" means a Loan offered for sale by the Seller under a
Sale Agreement which as of the related Cutoff Date is current or no more
Delinquent than permitted under such Sale Agreement in payment of principal
or interest and which meets the following criteria as of the effective date
of the related ▇▇▇▇ of Sale:
(i) is a Consolidation Loan;
(ii) is owned by the Seller and is fully disbursed;
(iii) is guaranteed as to principal and interest by the applicable
Guarantor to the maximum extent permitted by the Higher Education Act
for such Loan;
(iv) bears interest at a stated rate of not less than the maximum rate
permitted under the Higher Education Act for such Loan;
(v) is eligible for the payment of the quarterly special allowance at
the full and undiminished rate established under the formula set forth
in the Higher Education Act for such Loan;
(vi) if not yet in repayment status, is eligible for the payment of
interest benefits by the Secretary or, if not so eligible, is a Loan
for which interest either is billed quarterly to Borrower or deferred
until commencement of the repayment period, in which case such accrued
interest is subject to capitalization to the full extent permitted by
the applicable Guarantor;
(vii) is current or no payment of principal or interest shall be more
than 210 days past due as of the related Cutoff Date;
(viii) the last disbursement was before the related Cutoff Date;
(ix) is supported by the following documentation:
1. loan application, and any supplement thereto,
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2. original promissory note and any addendum thereto (or a
certified copy thereof if more than one loan is represented
by a single promissory note and all loans so represented are
not being sold) or the electronic records evidencing the
same,
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
related Cutoff Date and (ii) an accounting of the allocation
of all payments by the Borrower or on the Borrower's behalf
to principal and interest on the Loan,
6. if applicable, documentation which supports periods of
current or past deferment or past forbearance,
7. if applicable, a collection history, if the Loan was ever in
a delinquent status, including detailed summaries of
contacts and including the addresses or telephone numbers
used in contacting or attempting to contact Borrower and any
endorser and, if required by the Guarantor, copies of all
letters and other correspondence relating to due diligence
processing,
8. if applicable, evidence of all requests for skip-tracing
assistance and current address of Borrower, if located,
9. if applicable, evidence of requests for pre-claims
assistance, and evidence that the Borrower's school(s) have
been notified, and
10. if applicable, a record of any event resulting in a change
to or confirmation of any data in the Loan file.
(L) [RESERVED]
(M) "Initial ▇▇▇▇ of Sale" means the document, in the form of Exhibit B
hereto, executed by an authorized officer of the Interim Eligible Lender
Trustee on behalf of the Seller and the Eligible Lender Trustee on behalf
of the Purchaser which shall (i) set forth the applicable Initial Loans
offered by the Seller and the Interim Eligible Lender Trustee on behalf of
the Seller and accepted for purchase by the Eligible Lender Trustee for the
benefit of the Purchaser, (ii) sell, assign and convey to the Eligible
Lender Trustee for the benefit of the Purchaser and its assignees all
rights, title and interest of the Seller and the Interim Eligible Lender
Trustee on behalf of the Seller in the Initial Loans listed on that ▇▇▇▇ of
Sale and (iii) certify that the representations and warranties made by the
Seller as set forth in Sections 5 (A) and (B) of these Master Sale Terms
are true and correct.
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(N) "Initial Cutoff Date" means June 10, 2004.
(O) "Initial Loans" means the Eligible Loans evidenced by the Notes sold on
the Closing Date pursuant to the Initial Sale Agreement and related
documentation, together with any guaranties and other rights relating
thereto including, without limitation, Interest Subsidy Payments and
Special Allowance Payments.
(P) "Initial Payment" means the dollar amount specified as the "Initial
Payment" in the Initial Sale Agreement.
(Q) "Initial Sale Agreement" means the Sale Agreement (including the
related Blanket Endorsement, Initial ▇▇▇▇ of Sale and any attachments
thereto) substantially in the form of Exhibit A hereto (of which these
Master Sale Terms form a part by reference), to be executed by the Seller,
the Interim Eligible Lender Trustee on behalf of the Seller, the Purchaser
and the Eligible Lender Trustee on behalf of the Purchaser, which shall
certify that the representations and warranties made by the Seller as set
forth in Sections 5 (A) and (B) of these Master Sale Terms are true and
correct as of the Closing Date.
(R) "Loan" means an Initial Loan or an Additional Loan, as applicable,
offered for sale and purchased pursuant to the related Sale Agreement.
(S) "Loan Transmittal Summary Forms" means the forms related to each ▇▇▇▇
of Sale provided to the Seller by the Purchaser and completed by the Seller
that 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 related Cutoff Date.
(T) "Note" means the promissory note or notes of the Borrower and any
amendment thereto evidencing the Borrower's obligation with regard to a
student loan guaranteed under the Higher Education Act or the electronic
records evidencing the same.
(U) [RESERVED]
(V) "Principal Balance" means the outstanding principal amount of the Loan,
plus interest expected to be capitalized (if any), less amounts which may
not be insured (such as late charges).
(W) "Purchase Date" means with respect to the Initial Loans, the Closing
Date, and with respect to any Additional Loans, the date of the related
Additional ▇▇▇▇ of Sale.
(X) "Purchase Price" means the Initial Payment or the Additional Loans
Purchase Price, as applicable.
(Y) "Purchased Loans" means, with respect to each Sale Agreement, the Loans
offered for sale and purchased pursuant to such Sale Agreement.
(Z) "Sale Agreement" means the Initial Sale Agreement or an Additional Sale
Agreement, as applicable.
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(AA) "Secretary" means the United States Secretary of Education or any
successor.
(BB) "SLM ELC Master Purchase Terms" means the Purchase Agreement Master
Securitization Terms Number 1000 dated June 10, 2004, among SLM Education
Loan Corp., as seller, SLM Funding LLC and the Interim Eligible Lender
Trustee for the benefit of SLM Funding LLC.
(CC) "SLMA Master Purchase Terms" means the Purchase Agreement Master
Securitization Terms Number 1000 dated June 10, 2004, among Student Loan
Marketing Association, as seller, SLM Funding LLC and the Interim Eligible
Lender Trustee for the benefit of the SLM Funding LLC.
(DD) "Statistical Cutoff Date" means May 24, 2004.
(EE) "Subsequent Cutoff Date" means the date specified in the related
Additional Sale Agreement agreed to by the Seller and the Purchaser of the
related Additional Loans for the purposes of determining the Principal
Balance and accrued interest to be capitalized for purposes of completing
each related Loan Transmittal Summary Form.
(FF) [RESERVED]
(GG) "Subsidized" means a Loan for which the interest rate is governed by
Section 427A(a) or 427A(d) of the Higher Education Act.
(HH) "Trust Student Loan" means any student loan that is listed on the
Schedule of Trust Student Loans on the Closing Date, plus any Additional
Trust Student Loan, plus any student loan that is permissibly substituted
for a Trust Student Loan by the Depositor pursuant to Section 6 of the Sale
Agreement or pursuant to Section 6 of an Additional Sale Agreement, or by
the Servicer pursuant to Section 3.5 of the Servicing Agreement, but shall
not include any Purchased Student Loan following receipt by or on behalf of
the Trust of the Purchase Amount with respect thereto or any Liquidated
Student Loan following receipt by or on behalf of the Trust of Liquidation
Proceeds with respect thereto or following such Liquidated Student Loan
having otherwise been written off by the Servicer.
(II) "Unsubsidized" means a Loan made pursuant to Section 428H of the
Higher Education Act.
(JJ) "VG Funding Master Purchase Terms" means the Purchase Agreement Master
Securitization Terms Number 1000 dated June 10, 2004, among VG Funding,
LLC, as seller; Chase Manhattan Bank USA National Association, as interim
eligible lender trustee for the benefit of VG Funding, LLC; the SLM Funding
LLC; and the Interim Eligible Lender Trustee for the benefit of the SLM
Funding LLC.
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SECTION 3. SALE/PURCHASE
SECTION 3.1 SALE/PURCHASE OF INITIAL LOANS
(A) Consummation of Sale and Purchase
The sale and purchase of Eligible Loans pursuant to the Initial Sale
Agreement with respect to the Initial Loans shall be consummated upon: (i)
the Purchaser's receipt from the Seller and the Interim Eligible Lender
Trustee for the benefit of the Seller of the Initial ▇▇▇▇ of Sale and (ii)
the payment by the Purchaser to the Seller of the Initial Payment. Upon
consummation, such sale and purchase shall be effective as of the date of
the Initial ▇▇▇▇ of Sale. The Seller and the Purchaser shall use their best
efforts to perform promptly their respective obligations pursuant to the
Initial Sale Agreement with respect to each Initial Loan.
(B) Settlement of the Initial Payment
On the date of the Initial ▇▇▇▇ of Sale, the Purchaser shall pay to
the Seller the Initial Payment by wire transfer of 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 each Initial Loan accruing up to but not
including the Initial Cutoff Date and shall be responsible for the payment
of any rebate fees applicable to the Initial Loans accruing up to but not
including the Closing Date. The 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 Initial Loans accruing from
the Initial Cutoff Date, and shall be responsible for the payment of any
rebate fees applicable to the Initial Loans accruing from the Closing Date.
SECTION 3.2 SALE/PURCHASE OF ADDITIONAL LOANS
(A) Requirements Relating to Additional Loans
From time to time during the Funding Period, the Seller has the
obligation (but only to the extent that Eligible Loans exist and are
offered for sale to the Seller at such time) to sell Eligible Loans to the
Purchaser, and the Purchaser has the obligation (but only to the extent
that funds are available at such time in the Pre-Funding Account) to
purchase such Additional Loans from the Seller at the related Additional
Loans Purchase Price set forth in the related Additional Sale Agreement.
The sale and purchase of Additional Loans pursuant to an Additional Sale
Agreement shall be consummated as set forth in this Section 3.2.
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(B) Consummation of Sale and Purchase
During the Funding Period, the sale and purchase of Eligible Loans
pursuant to an Additional Sale Agreement shall be consummated upon (i) the
Purchaser's receipt from the Seller of a fully executed copy of the related
Additional Sale Agreement; and (ii) the payment by the Purchaser to the
Seller of the related Purchase Price. Upon consummation, such sale and
purchase shall be effective as of the date of the related Additional ▇▇▇▇
of Sale. The Seller and the Purchaser shall use their best efforts to
perform promptly their respective obligations pursuant to the related
Additional Sale Agreement with respect to each Additional Loan.
(C) Settlement of the Purchase Price
On the date of the related Additional ▇▇▇▇ of Sale, the Purchaser
shall pay the Seller the related Purchase Price by wire transfer of
immediately available funds to the account specified by the Seller.
(D) Interest Subsidy and Special Allowance Payments and Rebate Fees
The Seller shall be entitled to all Interest Subsidy Payments and
Special Allowance Payments on the Additional Loans accruing up to but not
including the related Subsequent Cutoff Date and shall be responsible for
the payment of any rebate fees applicable to such Additional Loans subject
to the related Additional ▇▇▇▇ of Sale accruing up to but not including the
date of the related Additional ▇▇▇▇ of Sale. The Purchaser and the Eligible
Lender Trustee on behalf of the Purchaser shall be entitled to all Special
Allowance Payments and Interest Subsidy Payments accruing from the related
Subsequent Cutoff Date with respect to the Additional Loans, and shall be
responsible for the payment of any rebate fees applicable to the Additional
Loans which are Consolidation Loans subject to the related Additional ▇▇▇▇
of Sale accruing from the date of the related Additional ▇▇▇▇ of Sale.
(D) GENERAL
(i) Special Programs
In consideration of the sale of the Loans under these Master Sale
Terms and the related Sale Agreements, the Purchaser agrees to cause the
Servicer to offer Borrowers of Trust Student Loans all special programs,
whether or not in existence as of the date of the related Sale Agreements,
generally offered to the obligors of comparable loans owned by the Seller,
at all times subject to the terms and conditions of Section 3.12 of the
Servicing Agreement. The Seller is selling Loans to the Purchaser without
regard to the effect of the special programs. The Seller shall remit to the
Purchaser any amounts by which payments on the Trust Student Loans are
reduced by the special payments as set forth in Section 3.12 of the
Servicing Agreement.
(ii) Intent of the Parties
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With respect to each sale of Loans pursuant to these Master Sale Terms
and the related Sale Agreements, it is the intention of the Seller, the
Interim Eligible Lender Trustee, the Purchaser and the Eligible Lender
Trustee, and the Seller hereby warrants that, the transfer and assignment
constitute a valid sale of such Loans from the Seller to 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.
SECTION 4. CONDITIONS PRECEDENT TO PURCHASE
Any purchase of Loans pursuant to these Master Sale Terms is subject
to the following conditions precedent being satisfied (and the Seller, by
accepting payment, shall be deemed to have certified that all such
conditions are satisfied on the date of such purchase):
(A) Activities Prior to the Related Purchase Date
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
Following the execution of each Sale Agreement, the Seller shall
service, or cause to be serviced, all Loans subject to such Sale Agreement
as required under the Higher Education Act until the date of the related
▇▇▇▇ 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 Interim
Eligible Lender Trustee for the benefit of the Seller, covering the
applicable Loans offered by the Seller and the Interim Eligible Lender
Trustee for the benefit of the Seller, (b) has been accepted by the
Purchaser as set forth thereon, selling, assigning and conveying to
the Eligible Lender Trustee on behalf of the Purchaser and its
assignees all right, title and interest of the Seller and the Interim
Eligible Lender Trustee for the benefit of the Seller, including the
insurance interest of the Interim Eligible Lender Trustee for the
benefit of the Seller, in each of the related Loans, and (c) states
that the representations and warranties made by the Seller in Sections
5(A) and (B) of these Master Sale Terms are true and correct on and as
of the date of the related ▇▇▇▇ of Sale; and
(ii) the Loan Transmittal Summary Form, attached to the related ▇▇▇▇
of Sale, identifying each of the Eligible Loans which is the subject
of the related ▇▇▇▇ of Sale and setting forth the unpaid Principal
Balance of each such related Loan.
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(D) Endorsement
The Seller and the Interim Eligible Lender Trustee for the benefit of
the Seller shall provide a blanket endorsement transferring the entire
interest of the Seller and the Interim Eligible Lender Trustee for the
benefit of the Seller in the related Eligible Loans to the Eligible Lender
Trustee on behalf of the Purchaser with the form of endorsement provided
for in the Sale Agreement with respect to the Initial Loans or the
Additional Sale Agreement with respect to the Additional Loans.
At the direction of and in such form as the Purchaser may designate,
the Seller and the Interim Eligible Lender Trustee for the benefit of the
Seller also agree to individually endorse any Eligible Loan as the
Purchaser may request from time to time.
(E) Officer's Certificate
The Seller shall furnish to the Purchaser, with respect to each ▇▇▇▇
of Sale provided in connection with each sale of Eligible Loans pursuant to
these Master Sale Terms, an Officer's Certificate, dated as of the date of
the related ▇▇▇▇ 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 of Education
Form OE 1074 or its equivalent) provided by the Purchaser, executed by the
Interim Eligible Lender Trustee for the benefit of the Seller and dated the
date of the related ▇▇▇▇ of Sale. The Seller agrees that the Purchaser and
the Eligible Lender Trustee may use the related ▇▇▇▇ of Sale, including the
related 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 Interim Eligible Lender Trustee for the benefit of the
Seller to 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 Interim Eligible Lender Trustee hereby grant to the
Purchaser and the Eligible Lender Trustee, on behalf of and for the benefit
of the Purchaser, an irrevocable power of attorney, which power of attorney
is coupled with an interest, to individually endorse or cause to be
individually endorsed in the name of the Seller and the Interim Eligible
Lender Trustee for the benefit of the Seller any Eligible Loan to evidence
the transfer of such Eligible Loan to the Eligible Lender Trustee for the
benefit of the Purchaser and to cause to be transferred physical possession
of any Note from the Seller or the Servicer to the Interim Eligible Lender
Trustee or the Indenture Trustee or any custodian on their behalf.
(H) Contemporaneous Sale
Subject to the conditions set forth in Section 3.2(A) hereof, with
respect to the purchase of Additional Loans, such Additional Loans shall be
contemporaneously sold to
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the Eligible Lender Trustee on behalf of the Trust pursuant to Section 4(H)
of the Sale Agreement.
(I) Sufficient Funds
The amount on deposit in the Pre-Funding Account shall be at least
equal to the related Additional Loans Purchase Price.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE SELLER AND THE ELIGIBLE LENDER
TRUSTEE
(A) General
(i) The Seller represents and warrants to the Purchaser that with
respect to the Initial Loans, as of the Closing Date, and with respect
to any Additional Loans sold by it, as of the related Purchase Date:
(a) The Interim Eligible Lender Trustee is an eligible lender or
other qualified holder of loans originated pursuant to the
Federal Family Education Loan Program established under the
Higher Education Act;
(b) The Interim Eligible Lender Trustee and the Seller are duly
organized and existing under the laws of the applicable
jurisdictions;
(c) The Interim Eligible Lender Trustee and the Seller have all
requisite power and authority to enter into and to perform the
terms of these Master Sale Terms, the Initial Sale Agreement and
any Additional Sale Agreement, the Initial ▇▇▇▇ of Sale and any
Additional ▇▇▇▇ of Sale; and
(d) The Interim Eligible Lender Trustee and the Seller will not,
with respect to any Loan purchased under any Sale Agreement
executed pursuant to these Master Sale Terms, agree to release
any Guarantor from any of its contractual obligations as an
insurer of such Loan or agree otherwise to alter, amend or
renegotiate any material term or condition under which such Loan
is insured, except as required by law or rules and regulations
issued pursuant to law, without the express prior written consent
of the Purchaser.
(B) Particular
The Seller represents and warrants to the Purchaser as to the
Purchased Loans acquired by the Purchaser under the Initial Sale Agreement
with respect to the Initial Loans, or each Additional Sale Agreement with
respect to the Additional Loans, in each case executed pursuant to these
Master Sale Terms that as of the date of the Initial Sale Agreement, as of
the Statistical Cutoff Date, or as of the related Additional Sale
Agreement, as applicable:
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(i) The Interim Eligible Lender Trustee for the benefit of the Seller
has good and marketable title to, and is the sole owner of, the
Purchased Loans, free and clear of all security interests, liens,
charges, claims, offsets, defenses, counterclaims or encumbrances of
any nature and no right of rescission, offsets, defenses or
counterclaims have been asserted or threatened with respect to those
Loans;
(ii) These Master Sale Terms create a valid and continuing security
interest (as defined in the applicable UCC) in the Purchased Loans in
favor of the Eligible Lender Trustee on behalf of the Purchaser, which
security interest is prior to all other security interests, liens,
charges, claims, offsets, defenses, counterclaims or encumbrances, and
is enforceable as such as against creditors of and purchasers from the
Interim 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) The Purchased Loans are Eligible Loans and the description of
such Loans set forth in the related Sale Agreement and the related
Loan Transmittal Summary Form is true and correct;
(v) The Interim Eligible Lender Trustee and the Seller are authorized
to sell, assign, transfer and repurchase the Purchased Loans; and the
sale, assignment and transfer of such Loans is or, in the case of the
repurchase of a Purchased Loan by the Seller and/or the Interim
Eligible Lender Trustee, will be made pursuant to and consistent with
the laws and regulations under which the Seller and the Interim
Eligible Lender Trustee operate, and will not violate any decree,
judgment or order of any court or agency, or conflict with or result
in a breach of any of the terms, conditions or provisions of any
agreement or instrument to which the Seller or the Interim Eligible
Lender Trustee are a party or by which the Seller or the Interim
Eligible Lender Trustee or its property is bound, or constitute a
default (or an event which could constitute a default with the passage
of time or notice or both) thereunder;
(vi) The Purchased Loans are each in full force and effect in
accordance with their terms and are legal, valid and binding
obligations of the respective Borrowers thereunder subject to no
defenses (except the defense of infancy);
(vii) No consents and approvals are required by the terms of the
Purchased Loans for the consummation of the sale of the Purchased
Loans hereunder to the Eligible Lender Trustee;
(viii) Each Purchased Loan has been duly made and serviced in
accordance with the provisions of the Federal Family Education Loan
Program established under the Higher Education Act, and has been duly
insured by a Guarantor; such guarantee is in full force and effect and
is freely transferable to the Eligible
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Lender Trustee on behalf 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 Interim
Eligible Lender Trustee for the benefit of the Seller that have been
allocated to the reduction of principal and interest on such Purchased
Loans have been allocated on a simple interest basis; the information
with respect to the applicable Purchased Loans as of the related
Cutoff Date as stated on the related Loan Transmittal Summary Form is
true and correct;
(x) Due diligence and reasonable care have been exercised in the
making, administering, servicing and collecting on the Purchased Loans
and, with respect to any Loan for which repayment terms have been
established, all disclosures of information required to be made
pursuant to the Higher Education Act have been made;
(xi) All origination fees authorized to be collected pursuant to
Section 438 of the Higher Education Act have been paid to the
Secretary;
(xii) Each Loan has been duly made and serviced in accordance with the
provisions of all applicable federal and state laws;
(xiii) No Loan is more than two hundred ten (210) days delinquent as
of the Statistical Cutoff Date, with respect to the Initial Loans, and
the Subsequent Cutoff Date, as to the Additional Loans, 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) It is the intention of the Seller, the Interim Eligible Lender
Trustee, the Eligible Lender Trustee and the Purchaser, and the Seller
hereby warrants, that the transfer and assignment herein contemplated
constitute a valid sale of the Loans from the Seller and the Interim
Eligible Lender Trustee to the Eligible Lender Trustee, for the
benefit of 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;
(xv) With respect to the first sale of Loans from the Interim Eligible
Lender Trustee, on behalf of the Seller, to the Eligible Lender
Trustee for the benefit of the Purchaser, the Interim Eligible Lender
Trustee and the Seller have caused or will have caused, within ten
days, the filing of all appropriate financing statements in the proper
filing office in the appropriate jurisdictions under applicable law in
order to perfect the security interest in the Loans granted to the
Eligible Lender Trustee hereunder;
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(xvi) Except for Purchased Loans executed electronically, there is
only one original executed copy of the Note evidencing each Purchased
Loan. For Purchased Loans that were executed electronically, the
Servicer has possession of the electronic records evidencing the Note.
The Eligible Lender Trustee for the benefit of the Purchaser has in
its possession a copy of the endorsement and Loan Transmittal Summary
Form identifying the Notes that constitute or evidence the Purchased
Loans. The Notes that constitute or evidence the Purchased Loans do
not have any marks or notations indicating that they have been
pledged, assigned or otherwise conveyed to any Person other than the
Eligible Lender Trustee. All financing statements filed or to be filed
against the Seller and the Interim Eligible Lender Trustee on behalf
of the Seller in favor of the Eligible Lender Trustee on behalf of the
Purchaser in connection herewith describing the Loans contain a
statement to the following effect: "A purchase of or security interest
in any collateral described in this financing statement will violate
the rights of the Eligible Lender Trustee;"
(xvii) Other than the security interest granted to the Eligible Lender
Trustee pursuant to this Agreement, the Seller and the Interim
Eligible Lender Trustee have not pledged, assigned, sold, granted a
security interest in, or otherwise conveyed any of the Purchased
Loans. The Seller and the Interim Eligible Lender Trustee have not
authorized the filing of and are not aware of any financing statements
against the Seller or the Interim Eligible Lender Trustee that include
a description of collateral covering the Purchased Loans other than
any financing statement relating to the security interest granted to
the Eligible Lender Trustee hereunder or any other security interest
that has been terminated. The Seller and the Interim Eligible Lender
Trustee are not aware of any judgment or tax lien filings against the
Seller or the Interim Eligible Lender Trustee;
(xviii) No Borrower of a Purchased Loan as of the related Cutoff Date
is noted in the related Loan File as being currently involved in a
bankruptcy proceeding; and
(xix) With respect to all Additional Loans, the Funding Period is in
full force and effect.
(C) The Eligible Lender Trustee and the Purchaser represent and warrant
that as of the date of each Sale Agreement and each ▇▇▇▇ of Sale:
(i) The Eligible Lender Trustee is duly organized and validly existing
in good standing under the laws of its governing jurisdiction and has
an office located within the State of Delaware. It has all requisite
corporate power and authority to execute, deliver and perform its
obligations under these Master Sale Terms, each Sale Agreement and
each ▇▇▇▇ of Sale;
(ii) The Eligible Lender Trustee has taken all corporate action
necessary to authorize the execution and delivery by it of these
Master Sale Terms and each Sale Agreement, and these Master Sale Terms
and each Sale Agreement will be
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executed and delivered by one of its officers who is duly authorized
to execute and deliver these Master Sale Terms and each Sale Agreement
on its behalf;
(iii) Neither the execution nor the delivery by it of these Master
Sale Terms and each Sale Agreement, nor the consummation by it of the
transactions contemplated hereby or thereby nor compliance by it with
any of the terms or provisions hereof or thereof will contravene any
Federal or Delaware state law, governmental rule or regulation
governing the banking or trust powers of the Eligible Lender Trustee
or any judgment or order binding on it, or constitute any default
under its charter documents or by-laws or any indenture, mortgage,
contract, agreement or instrument to which it is a party or by which
any of its properties may be bound; and
(iv) The Eligible Lender Trustee is an "eligible lender" as such term
is defined in Section 435(d) of the Higher Education Act, for purposes
of holding legal title to the Trust Student Loans as contemplated by
these Master Sale Terms, each Sale Agreement and the other Basic
Documents, it has a lender identification number with respect to the
Trust Student Loans from the Department and has in effect a Guarantee
Agreement with each of the Guarantors with respect to the Trust
Student Loans.
SECTION 6. REPURCHASE OF TRUST STUDENT LOANS; REIMBURSEMENT
Each party to these Master Sale Terms shall give notice to the other
parties, the Servicer and the Administrator 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 materially adverse effect
on the interest of the Purchaser in any Trust Student Loan. In the event of such
a material breach which is not curable by reinstatement of the applicable
Guarantor's guarantee of such Trust Student Loan, the Seller shall repurchase
any affected Trust Student Loan not later than 120 days following the earlier of
the date of discovery of such material breach and the date of receipt of the
Guarantor reject transmittal form with respect to such Trust Student Loan. In
the event of such a material breach which is curable by reinstatement of the
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 purchase of any Trust
Student Loan pursuant to this Section 6 an amount equal to all non-guaranteed
interest amounts and forfeited Interest Subsidy Payments and Special Allowance
Payments with respect to such Trust Student Loan. In consideration of the
purchase of any such Trust Student Loan pursuant to this 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 purchase obligation but does result in the refusal by a
Guarantor to guarantee all or a portion of the accrued interest (or any
obligation of the Purchaser to repay such interest to a
15
Guarantor), or the loss (including any obligation of the Purchaser to repay the
Department) of Interest Subsidy Payments and Special Allowance Payments, with
respect to any Trust Student Loan affected by such breach, then the Seller shall
reimburse the Purchaser by remitting an amount equal to the sum of all such
non-guaranteed interest amounts and such forfeited Interest Subsidy Payments or
Special Allowance Payments in the manner specified in Section 2.6 of the
Administration Agreement not later than (i) the last day of the next Collection
Period ending not less than 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
(and the Servicer as provided in the Servicing Agreement) shall purchase, within
30 days of a written request of the Eligible Lender Trustee or the Indenture
Trustee, such affected Trust Student Loans in an aggregate principal amount such
that after such purchase the aggregate principal amount of such affected Trust
Student Loans is less than 1% of the Pool Balance. The Trust Student Loans to be
purchased by the Seller and the Servicer pursuant to the preceding sentence
shall be based on the date of claim rejection (or the date of notice referred to
in the first sentence of this Section 6) with Trust Student Loans with the
earliest such date to be purchased first.
In lieu of repurchasing Trust Student Loans pursuant to this 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 or Subsidized Consolidation
(pre-1993 vs. post-1993));
3. school type;
4. total return;
5. principal balance; and
6. remaining term to maturity.
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In addition, each substituted Eligible Loan will comply, as of the date of
substitution, with all of the representations and warranties made hereunder. In
choosing Eligible Loans to be substituted pursuant to this Section 6, the Seller
shall make a reasonable determination that the Eligible Loans to be substituted
will not have a material adverse effect on the Noteholders.
In the event that 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 Eligible Lender Trustee and the Noteholders with respect to a
breach by the Seller pursuant to Section 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. The Eligible Lender Trustee shall have no duty to conduct any
affirmative investigation as to the occurrence of any condition requiring the
purchase of any Trust Student Loan or the reimbursement for any interest penalty
pursuant to this Section 6.
SECTION 7. OBLIGATION TO REMIT SUBSEQUENT PAYMENTS AND FORWARD COMMUNICATIONS
(A) Any payment received by the Seller with respect to amounts accrued
after the date of the related ▇▇▇▇ of Sale for any Purchased Loan, which
payment is not reflected in the related Loan Transmittal Summary Form,
shall be received by the Seller in trust for the account of the Purchaser
and the Seller hereby disclaims any title to or interest in any such
amounts. Within two (2) Business Days following the date of receipt, the
Seller shall remit to the Purchaser an amount equal to any such payments
along with a listing on a form provided by the Purchaser identifying the
Purchased Loans with respect to which such payments were made, the amount
of each such payment and the date each such payment was received.
(B) Any written communication received at any time by the Seller with
respect to any Loan subject to these Master Sale Terms or the related Sale
Agreement shall be transmitted by the Seller to the Servicer within two (2)
Business Days of receipt. Such communications shall include, but not be
limited to, letters, notices of death or disability, notices of bankruptcy,
forms requesting deferment of repayment or loan cancellation, and like
documents.
SECTION 8. CONTINUING OBLIGATION OF THE 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.
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SECTION 9. LIABILITY OF THE SELLER; INDEMNITIES
The Seller shall be liable in accordance herewith only to the extent of the
obligations specifically undertaken by the Seller under these Master Sale Terms
and each related Sale Agreement.
(i) The Seller shall indemnify, defend and hold harmless the Purchaser
and the Eligible Lender Trustee in its individual capacity and their
officers, directors, employees and agents from and against any taxes
that may at any time be asserted against any such Person with respect
to the transactions contemplated herein and in the other Basic
Documents (except any such income taxes arising out of fees paid to
the Eligible Lender Trustee), including any sales, gross receipts,
general corporation, tangible and intangible personal property,
privilege or license taxes (but, in the case of the Purchaser, not
including any taxes asserted with respect to, and as of the date of,
the sale of the Purchased Loans to the Eligible Lender Trustee on
behalf 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 the officers, directors, employees and agents of the Purchaser and
the Eligible Lender Trustee from and against any and all costs,
expenses, losses, claims, damages and liabilities arising out of, or
imposed upon such Person through, the Seller's willful misfeasance,
bad faith or gross negligence in the performance of its duties under
these Master Sale Terms or by reason of reckless disregard of its
obligations and duties under these Master Sale Terms.
(iii) The Seller shall be liable as primary obligor for, and shall
indemnify, defend and hold harmless the Eligible Lender Trustee in its
individual capacity and its officers, directors, employees and agents
from and against, all costs, expenses, losses, claims, damages,
obligations and liabilities arising out of, incurred in connection
with or relating to these Master Sale Terms, the other Basic
Documents, the acceptance or performance of the trusts and duties set
forth herein and in the Sale Agreement or the action or the inaction
of the 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 made under any of the Basic Documents; or (c) shall arise
from the breach by the Eligible Lender Trustee of any of its
representations or warranties made in its individual capacity set
forth in these Master Sale Terms or any Sale Agreement. In the event
of any claim, action or proceeding for which indemnity will be sought
pursuant to this paragraph, the Eligible Lender Trustee's choice of
legal counsel shall be subject to the approval of the Seller, which
approval shall not be unreasonably withheld.
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Indemnification under this Section 9 shall survive the resignation or
removal of the Eligible Lender Trustee and the termination of these Master Sale
Terms and shall include reasonable fees and expenses of counsel and expenses of
litigation. If the Seller shall have made any indemnity payments pursuant to
this Section 9 and the Person to or on behalf of whom such payments are made
thereafter shall collect any of such amounts from others, such Person shall
promptly repay such amounts to the Seller, without interest.
SECTION 10. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS OF THE
SELLER
Any Person (a) into which the Seller may be merged or consolidated, (b)
which may result from any merger or consolidation to which the Seller shall be a
party or (c) which may succeed to the properties and assets of the Seller
substantially as a whole, shall be the successor to the Seller without the
execution or filing of any document or any further act by any of the parties to
these Master Sale Terms; provided, however, that the Seller hereby covenants
that it will not consummate any of the foregoing transactions except upon
satisfaction of the following: (i) the surviving Person, if other than the
Seller, executes an agreement of assumption to perform every obligation of the
Seller under these Master Sale Terms, each Sale Agreement and each ▇▇▇▇ of Sale;
(ii) immediately after giving effect to such transaction, no representation or
warranty made pursuant to Section 5 shall have been breached; (iii) the
surviving Person, if other than the Seller, shall have delivered to the Eligible
Lender Trustee an Officers' Certificate and an Opinion of Counsel each stating
that such consolidation, merger or succession and such agreement of assumption
comply with this Section 10 and that all conditions precedent, if any, provided
for in these Master Sale Terms relating to such transaction have been complied
with, and that the Rating Agency Condition shall have been satisfied with
respect to such transaction (iv) if the Seller is not the surviving entity, such
transaction will not result in a material adverse Federal or state tax
consequence to the Purchaser or the Noteholders or; (v) if the Seller is not the
surviving entity, the Seller shall have delivered to the Eligible Lender Trustee
an Opinion of Counsel either (A) stating that, in the opinion of such counsel,
all financing statements and continuation statements and amendments thereto have
been executed and filed that are necessary fully to preserve and protect the
interest of the Purchaser and the Eligible Lender Trustee, respectively, in the
Purchased Loans and reciting the details of such filings, or (B) stating that,
in the opinion of such counsel, no such action shall be necessary to preserve
and protect such interests.
SECTION 11. LIMITATION ON LIABILITY OF THE SELLER AND OTHERS
The Seller and any director or officer or employee or agent thereof may
rely in good faith on the advice of counsel or on any document of any kind,
prima facie properly executed and submitted by any Person respecting any matters
arising hereunder (provided that such reliance shall not limit in any way the
Seller's obligations under Section 6). The Seller shall not be under any
obligation to appear in, prosecute or defend any legal action that shall not be
incidental to its obligations under these Master Sale Terms or any Sale
Agreement, and that in its opinion may involve it in any expense or liability.
Except as provided herein, the repurchase (or substitution) and reimbursement
obligations of the Seller will constitute the sole remedy available to the
applicable Purchaser for uncured breaches; provided, however, that the
information with respect to the Purchased Loans listed on the related ▇▇▇▇ of
Sale may be adjusted in the ordinary course
19
of business subsequent to the date of the related ▇▇▇▇ of Sale and to the extent
that the aggregate Principal Balance of the Purchased Loans 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 Interim Eligible
Lender Trustee, for the benefit of and on behalf of the Purchaser. Such
reconciliation payment shall be made from time to time but no less frequently
than semi-annually.
SECTION 12. LIMITATION OF LIABILITY OF INTERIM ELIGIBLE LENDER
Notwithstanding anything contained herein to the contrary, these Master
Sale Terms and the Initial Sale Agreement have been, and any Additional Sale
Agreement will be, signed by Chase Manhattan Bank USA, National Association not
in its individual capacity but solely in its capacity as Eligible Lender Trustee
for the Purchaser and Interim Eligible Lender Trustee for the Purchaser, and in
no event shall Chase Manhattan Bank USA, National Association in its individual
capacity have any liability for the representations, warranties, covenants,
agreements or other obligations of the Eligible Lender Trustee, the Interim
Eligible Lender Trustee, the Purchaser or the Seller under these Master Sale
Terms or any Sale Agreements or in any of the certificates, notices or
agreements delivered pursuant hereto, as to all of which recourse shall be had
solely to the assets of the Purchaser or the Seller, as the case may be.
SECTION 13. EXPENSES
Except as otherwise provided herein, each party to these Master Sale Terms
or any Sale Agreement shall pay its own expense incurred in connection with the
preparation, execution and delivery of these Master Sale Terms and any Sale
Agreement and the transactions contemplated herein or therein.
SECTION 14. SURVIVAL OF COVENANTS/SUPERSESSION
All covenants, agreements, representations and warranties made herein and
in or pursuant to each Sale Agreement, executed pursuant to these Master Sale
Terms shall survive the consummation of the acquisition of the Purchased Loans
provided for in the related Sale Agreement. All covenants, agreements,
representations and warranties made or furnished pursuant hereto by or on behalf
of the Seller shall bind and inure to the benefit of any successors or assigns
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. These
Master Sale Terms and any 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, nor shall any waiver or
any custom or practice which may evolve between the parties in the
administration of the terms hereof or of any Sale Agreement, be construed to
lessen the right of the Purchaser to insist upon the performance by the Seller
in strict accordance with said terms.
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SECTION 15. COMMUNICATION AND NOTICE REQUIREMENTS
All communications, notices and approvals provided for hereunder shall be
in writing and mailed or delivered to the Seller or the Purchaser, as the case
may be, addressed as set forth in the related Sale Agreement or at such other
address as either party may hereafter designate by notice to the other party.
Notice given in any such communication, mailed to the Seller or the Purchaser by
appropriately addressed registered mail, shall be deemed to have been given on
the day following the date of such mailing.
SECTION 16. FORM OF INSTRUMENTS
All instruments and documents delivered in connection with these Master
Sale Terms and any Sale Agreement, and all proceedings to be taken in connection
with these Master Sale Terms and any Sale Agreement, and the transactions
contemplated herein and therein, shall be in a form as set forth in the
attachments hereto, and the Purchaser shall have received copies of such
documents as it or its counsel shall reasonably request in connection therewith.
Any instrument or document which is substantially in the same form as an
attachment hereto or a recital herein will be deemed to be satisfactory as to
form.
SECTION 17. AMENDMENT
These Master Sale Terms, any Sale Agreement, any ▇▇▇▇ of Sale and any
document or instrument delivered in accordance herewith or therewith may be
amended by the parties thereto without the consent of the related Noteholders
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions in the related document or modifying in any
manner the rights of such Noteholders; provided that such action will not, in
the opinion of counsel satisfactory to the related Indenture Trustee, materially
and adversely affect the interest of any such Noteholder.
These Master Sale Terms, any Sale Agreement and any document or instrument
delivered in accordance herewith or therewith may also be amended from time to
time by the Seller, the Interim Eligible Lender Trustee, the Eligible Lender
Trustee and the Purchaser, with the consent of the Noteholders of Notes
evidencing a majority of the Outstanding Amount of the Notes, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions in the related document or modifying in any manner the rights of the
Noteholders; provided, however, that no such amendment shall (a) increase or
reduce in any manner the amount of, or accelerate or delay the time of,
collections of payments with respect to Purchased Loans or distributions that
shall be required to be made for the benefit of the Noteholders or (b) reduce
the aforesaid percentage of the Outstanding Amount of the Notes, the Noteholders
of which are required to consent to any such amendment, without the consent of
all outstanding Noteholders.
Promptly after the execution of any such amendment or consent (or, in the
case of the Rating Agencies, five Business Days prior thereto), the Interim
Eligible Lender Trustee shall furnish written notification of the substance of
such amendment or consent to the Indenture Trustee and each of the Rating
Agencies.
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It shall not be necessary for the consent of Noteholders pursuant to this
Section 17 to approve the particular form of any proposed amendment or consent,
but it shall be sufficient if such consent shall approve the substance thereof.
Prior to the execution of any amendment to these Master Sale Terms, the
Eligible Lender Trustee shall be entitled to receive and rely upon an Opinion of
Counsel stating that execution of such amendment is authorized or permitted by
these Master Sale Terms and the Opinion of Counsel referred to in Section
7.1(i)(i) of the Administration Agreement. The Eligible Lender Trustee may, but
shall not be obligated to, enter into any such amendment which affects the
Eligible Lender Trustee's own rights, duties or immunities under these Master
Sale Terms or otherwise.
SECTION 18. NONPETITION COVENANTS
Notwithstanding any prior termination of these Master Sale Terms, the
Seller and the Interim Eligible Lender Trustee shall not acquiesce, petition or
otherwise invoke or cause the Purchaser to invoke the process of any court or
government authority for the purpose of commencing or sustaining a case against
the Purchaser under any Federal or state bankruptcy, insolvency or similar law
or appointing a receiver, liquidator, assignees, trustee, custodian,
sequestrator or other similar official of the Purchaser or any substantial part
of its property, or ordering the winding up or liquidation of the affairs of the
Purchaser.
Notwithstanding any prior termination of these Master Sale Terms, the
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 Purchaser.
SECTION 19. ASSIGNMENT
The Seller and the Interim Eligible Lender Trustee each hereby assigns its
entire right, title and interest as purchaser and as the Interim Eligible Lender
Trustee under (ii) the Purchase Agreement Master Securitization Terms Number
1000, the SLMA Master Purchase Terms, the SLM ELC Master Purchase Terms and the
VG Funding Master Purchase Terms (including the contract rights in and to the
SLM ECFC Purchase Agreement, as defined in the VG Funding Master Purchase Terms)
that have been assigned to the Seller by VG Funding in the VG Funding Master
Purchase Terms under, and (ii) any Purchase Agreement thereunder to the
Purchaser as of the date hereof and acknowledges that the Purchaser and the
Eligible Lender Trustee on behalf of the Purchaser will assign the same,
together with the right, title and interest of the Purchaser and the Eligible
Lender Trustee hereunder, to the Indenture Trustee under the Indenture.
SECTION 20. GOVERNING LAW
These Master Sale Terms and any Sale Agreement shall be governed by and
construed in accordance with the laws of the State of New York without reference
to its conflict of law provisions, and the obligations, rights and remedies of
the parties, hereunder shall be determined in accordance with such laws.
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IN WITNESS WHEREOF, the parties hereto have caused these Master Sale Terms
to be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
STUDENT LOAN MARKETING SLM FUNDING LLC
ASSOCIATION (Seller) (Purchaser)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President Title: Vice President
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Interim Eligible Lender Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
23
Exhibit A
INITIAL SALE AGREEMENT
Dated as of June 10, 2004
SALE AGREEMENT NUMBER 1
Pursuant to the Master Sale Terms (as defined below), each of Chase
Manhattan Bank USA, National Association, as Interim Eligible Lender Trustee
(the "Interim Eligible Lender Trustee") for the benefit of SLM Funding LLC (the
"Seller") and the Seller hereby offers for sale to Chase Manhattan Bank USA,
National Association as Eligible Lender Trustee for the benefit of SLM Student
Loan Trust 2004-5 (the "Purchaser"), the entire right, title and interest of the
Seller and the Interim Eligible Lender Trustee in the Loans described in the
related ▇▇▇▇ of Sale and the related Loan Transmittal Summary Form incorporated
herein and, to the extent indicated below, the Eligible Lender Trustee for the
benefit of the Purchaser accepts the Seller's and the Interim Eligible Lender
Trustee's offer. In order to qualify as Eligible Loans, no payment of principal
or interest shall be more than two hundred and ten (210) days past due as of the
Statistical Cutoff Date, which date shall be May 24, 2004.
TERMS, CONDITIONS AND COVENANTS
In consideration of the Purchase Price, each of the Seller and the Interim
Eligible Lender Trustee for the benefit of the Seller hereby sells to the
Eligible Lender Trustee for the benefit of the Purchaser the entire right, title
and interest of the Seller and the Interim Eligible Lender Trustee in the
Initial Loans accepted for purchase, subject to all the terms and conditions of
the Sale Agreement Master Securitization Terms Number 1000 (the "Master Sale
Terms") and any amendments thereto, incorporated herein by reference, among the
Seller, the Purchaser, the Interim Eligible Lender Trustee and the Eligible
Lender Trustee. The Initial Payment for the Initial Loans shall equal
$2,392,936,321.48 equal to $1,735,631,500 (representing the sale price of the
Floating Rate Notes less underwriters' discounts and fees), plus $1,295,956,000
(representing the sale price of the Reset Rate Notes less initial purchasers'
discounts and fees), less $7,425,742 (representing the Reserve Account Initial
Deposit), less $35,000,000 (representing the Capitalized Interest Account
Initial Deposit), less $155,000 (representing the Interest Rate Cap Agreement
Upfront Payment), less 3,200,000 (representing the Collection Account Initial
Deposit) and less $589,349,348 (representing the Pre-Funding Account Initial
Deposit).
This document shall constitute the Initial Sale Agreement referred to in
the Master Sale Terms and, except as modified herein, each term used herein
shall have the same meaning as in the Master Sale Terms. All references in the
Master Sale Terms to Loans or Initial Loans or to Purchased Loans, as
applicable, shall be deemed to refer to the Loans governed by this Initial Sale
Agreement. The Seller hereby makes the representations and warranties set forth
in Sections 5(A) and (B) of the Master Sale Terms regarding the Initial Loans
described in the Initial ▇▇▇▇ of Sale and the related Loan Transmittal Summary
Form, as of the Closing Date.
Each of the Seller and the Interim Eligible Lender Trustee for the benefit
of the Seller authorizes the Eligible Lender Trustee for the benefit of the
Purchaser to use a copy of the Initial
1
▇▇▇▇ of Sale, including the Loan Transmittal Summary Form attached to the
Initial ▇▇▇▇ of Sale (in lieu of OE Form 1074), as official notification to the
applicable Guarantor of assignment to the Eligible Lender Trustee on behalf of
the Purchaser of the Initial Loans purchased pursuant hereto on the Closing
Date.
The parties hereto intend that the transfer of Purchased Loans described in
the Initial ▇▇▇▇ of Sale and related Loan Transmittal Summary Form be, and be
construed as, a valid sale of such Purchased Loans. However, in the event that
notwithstanding the intention of the parties, such transfer is deemed to be a
transfer for security, then each of the Interim Eligible Lender Trustee and the
Seller hereby grants to the Eligible Lender Trustee for the benefit of the
Purchaser a first priority security interest in and to all Purchased Loans
described in the Initial ▇▇▇▇ of Sale and related Loan Transmittal Summary Form
to secure a loan in an amount equal to the Purchase Price of such Purchased
Loans.
2
IN WITNESS WHEREOF, the parties hereto have caused this Initial Sale
Agreement Number 1 to be duly executed by their respective officers hereunto
duly authorized, as of the day and year first above written.
SLM FUNDING LLC SLM STUDENT LOAN TRUST 2004-5
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(Seller) (Purchaser)
by Chase Manhattan Bank USA, National
Association, not in its individual
capacity but solely as Eligible Lender
Trustee
By: By:
---------------------------------- -------------------------------------
Name: Name:
-------------------------------- -----------------------------------
Title: Title:
------------------------------- ----------------------------------
CHASE MANHATTAN BANK USA, CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, not in its NATIONAL ASSOCIATION,not in its
individual capacity but solely as individual capacity but solely as
Interim Eligible Lender Trustee Eligible Lender Trustee
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
3
INITIAL SALE AGREEMENT NUMBER 1
BLANKET ENDORSEMENT DATED JUNE 10, 2004
Chase Manhattan Bank USA, National Association as Interim Eligible Lender
Trustee for the benefit of SLM Funding LLC (the "Seller"), by execution of this
instrument, hereby endorses the attached promissory note which is one (1) of the
promissory notes (the "Notes") described in the Initial ▇▇▇▇ of Sale executed by
the Seller and the Interim Eligible Lender Trustee for the benefit of the Seller
in favor of Chase Manhattan Bank USA, National Association, as the Eligible
Lender Trustee for the benefit of SLM Student Loan Trust 2004-5 (the
"Purchaser"). This endorsement is in blank, unrestricted form and without
recourse except as provided in Section 6 of the Master Sale Terms referred to in
the Initial Sale Agreement among the Seller, the Purchaser, Interim Eligible
Lender Trustee 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 Interim Eligible Lender Trustee for the
benefit of the Seller agrees to individually endorse each Note in the form
provided by the Purchaser as the Purchaser may from time to time require or if
such individual endorsement is required by the Guarantor of the Note.
THE SALE AND PURCHASE OF THE PURCHASED LOANS SHALL BE SUBJECT TO THE TERMS,
CONDITIONS AND COVENANTS, INCLUDING THIS BLANKET ENDORSEMENT, AS SET FORTH IN
THE INITIAL 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 INITIAL SALE AGREEMENT. THE SALE AND PURCHASE SHALL BE
CONSUMMATED UPON PURCHASER'S PAYMENT TO THE SELLER OF THE INITIAL PAYMENT (AS
DEFINED IN THE MASTER SALE TERMS) AND, UNLESS OTHERWISE AGREED BY THE SELLER AND
PURCHASER, SHALL BE EFFECTIVE AS OF THE DATE OF THE INITIAL ▇▇▇▇ OF SALE.
4
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
------------------------------------- ----------------------------------------
Chase Manhattan Bank USA, National Chase Manhattan Bank USA, National
Association, not in its individual Association, not in its individual
capacity but solely as Interim capacity but solely as Eligible
Eligible Lender Trustee for the Lender Trustee for the benefit of
benefit of SLM Funding LLC SLM Student Loan Trust 2004-5
Lender Code: 833 253
By: By:
--------------------------------- ------------------------------------
(Signature of Authorized Officer) (Signature of Authorized Signatory
for the Purchaser)
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
Date of Purchase:
----------------------
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5
Exhibit B
INITIAL ▇▇▇▇ OF SALE DATED JUNE 10, 2004
The undersigned SLM Funding LLC ("Seller") and Chase Manhattan Bank USA,
National Association as Interim Eligible Lender Trustee for the benefit of the
Seller under the Interim Trust Agreement dated as of June 1, 2004 ("Interim
Eligible Lender Trustee"), for value received and pursuant to the terms and
conditions of Initial Sale Agreement Number 1 ("Initial Sale Agreement") among
the Seller, the Interim Eligible Lender Trustee, SLM Student Loan Trust 2004-5
("Purchaser") and Chase Manhattan Bank USA, National Association as the Eligible
Lender Trustee, do hereby sell, assign and convey to the Eligible Lender Trustee
on behalf of the Purchaser and its assignees all right, title and interest of
the Seller and the Interim Eligible Lender Trustee, including the insurance
interest of the Seller and the Interim Eligible Lender Trustee under the Federal
Family Education Loan Program (20 U.S.C. 1071 et seq.), that the Eligible Lender
Trustee on behalf of the Purchaser has accepted for purchase. The portfolio of
Initial Loans accepted for purchase by the Eligible Lender Trustee on behalf of
the Purchaser and the effective date of sale and purchase are described below
and the individual accounts are listed on the Schedule A attached hereto.
The Seller hereby makes the representations and warranties set forth in
Section 5 of the Sale Agreement Master Securitization Terms Number 1000
incorporated by reference in the Initial Sale Agreement. The Seller and the
Interim Eligible Lender Trustee authorize the Eligible Lender Trustee on behalf
of the Purchaser to use a copy of this document (in lieu of OE Form 1074) as
official notification to the Guarantor(s) of assignment to the Eligible Lender
Trustee on behalf of the Purchaser of the Initial Loans on the date of purchase.
LISTING OF LOANS ON FOLLOWING PAGE
1
CERTAIN OTHER LOAN CRITERIA
.. Not in claims status, not previously rejected
.. Not in litigation
.. Last disbursement was on or before the related Cutoff Date
.. Loan is not swap-pending
*Based upon the Seller's estimated calculations, which may be adjusted upward or
downward based upon the Seller's reconciliation.
** Includes interest to be capitalized.
2
Guarantor(s):
American Student Assistance
California Student Aid Commission
Colorado Student Loan Program
Connecticut Student Loan Foundation
Educational Credit Management Corporation of Virginia
Florida Bureau of Student Financial Assistance
Georgia Higher Education Assistance Corporation
Great Lakes Higher Education Corporation
Illinois Student Assistance Commission
Iowa College Student Aid Commission
Kentucky Higher Education Assistance Authority
Louisiana Office of Student Financial Assistance
Michigan Guaranty Agency
Montana Guaranteed Student Loan Program
Nebraska Student Loan Program
New Jersey Office of Student Assistance
New York State Higher Education Services Corporation
Northwest Education Loan Association
Oklahoma Guaranteed Student Loan Program
Oregon State Scholarship Commission
Pennsylvania Higher Education Assistance Agency
Student Loan Guarantee Foundation of Arkansas, Inc.
Texas Guaranteed Student Loan Corporation
United Student Aid Funds, Inc.
3
IN WITNESS WHEREOF, the parties hereto have caused this Initial ▇▇▇▇ of Sale to
be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
------------------------------------- ----------------------------------------
SELLER PURCHASER
------------------------------------- ----------------------------------------
Chase Manhattan Bank USA, National Chase Manhattan Bank USA, National
Association not in its individual Association, not in its individual
capacity but solely as Interim capacity but solely as Eligible
Eligible Lender Trustee for the Lender Trustee for the benefit of SLM
benefit of SLM Funding LLC Student Loan Trust 2004-5
Lender Code:
------------------------
By: By:
--------------------------------- ------------------------------------
(Signature of Authorized Officer) (Signature of Authorized Signatory
for the Purchaser)
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
Date of Purchase:
----------------------
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4
Exhibit C
ADDITIONAL SALE AGREEMENT NUMBER [ ]
---
Dated as of [ ], 2004
--------
ADDITIONAL SALE AGREEMENT NUMBER [ ]
---
Each of Chase Manhattan Bank USA, National Association, as Interim Eligible
Lender Trustee (the "Interim Eligible Lender Trustee") for the benefit of SLM
Funding LLC (the "Seller") and the Seller hereby offers for sale to Chase
Manhattan Bank USA, National Association, as Eligible Lender Trustee for the
benefit of SLM Student Loan Trust 2004-5 (the "Purchaser"), the entire right,
title and interest of the Seller and the Interim Eligible Lender Trustee in the
Loans described in the related Additional ▇▇▇▇ of Sale and the related Loan
Transmittal Summary Form incorporated herein, and, to the extent indicated
below, the Eligible Lender Trustee for the benefit of the Purchaser accepts the
Seller's and the Interim Eligible Lender Trustee's offer.
TERMS, CONDITIONS AND COVENANTS
In consideration of the Purchase Price, each of the Seller and the Interim
Eligible Lender Trustee for the benefit of the Seller hereby sells to the
Eligible Lender Trustee for the benefit of the Purchaser the entire right, title
and interest of the Seller and the Interim Eligible Lender Trustee in the Loans
accepted for purchase, subject to all the terms and conditions of the Sale
Agreement Master Securitization Terms Number 1000, dated June 10, 2004 (the
"Master Sale Terms"), and any amendments thereto permitted by its terms,
incorporated herein by reference, among the Seller, the Purchaser, the Interim
Eligible Lender Trustee and the Eligible Lender Trustee. The applicable
Additional Loans Purchase Price shall be $[ ].
-------
This document shall constitute an Additional Sale Agreement as referred to
in the Master Sale Terms and, except as modified herein, each term used herein
shall have the same meaning as in the Master Sale Terms. All references in the
Master Sale Terms to Loans or Additional Loans or to Purchased Loans, as
applicable, shall be deemed to refer to the Additional Loans governed by this
Additional Sale Agreement. The Seller hereby makes the representations and
warranties set forth in Sections 5(A) and (B) of the Master Sale Terms regarding
the Additional Loans described in the related Additional ▇▇▇▇ of Sale and the
related Loan Transmittal Summary Form, as of the related Purchase Date.
Each of the Seller and the Interim Eligible Lender Trustee for the benefit
of the Seller authorizes the Eligible Lender Trustee for the benefit of the
Purchaser to use a copy of the related Additional ▇▇▇▇ of Sale, including the
Loan Transmittal Summary Form attached to such Additional ▇▇▇▇ of Sale (in lieu
of OE Form 1074), as official notification to the applicable Guarantors of
assignment to the Eligible Lender Trustee on behalf of the Purchaser of the
Loans purchased pursuant hereto on the Purchase Date.
The parties hereto intend that the transfer of Additional Loans described
in the related Additional ▇▇▇▇ of Sale and related Loan Transmittal Summary Form
be, and be construed as, a
1
valid sale of such Purchased Loans. However, in the event that notwithstanding
the intention of the parties, such transfer is deemed to be a transfer for
security, then each of the Interim Eligible Lender Trustee and the Seller hereby
grants to the Eligible Lender Trustee for the benefit of the Purchaser a first
priority security interest in and to all Additional Loans described in the
related Additional ▇▇▇▇ of Sale and related Loan Transmittal Summary Form to
secure a loan in an amount equal to the Purchase Price of such Purchased Loans.
IN WITNESS WHEREOF, the parties hereto have caused this Additional Sale
Agreement Number [ ] to be duly executed by their respective officers hereunto
--
duly authorized, as of the day and year first above written.
------------------------------------- ----------------------------------------
SELLER PURCHASER
------------------------------------- ----------------------------------------
Chase Manhattan Bank USA, National Chase Manhattan Bank USA, National
Association not in its individual Association, not in its individual
capacity but solely as Interim capacity but solely as Eligible
Eligible Lender Trustee for the Lender Trustee for the benefit of SLM
benefit of SLM Funding LLC Student Loan Trust 2004-5
Lender Code: 833 253
By: By:
--------------------------------- ------------------------------------
(Signature of Authorized Officer) (Signature of Authorized Signatory
for the Purchaser)
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
Date of Purchase:
----------------------
------------------------------------- ----------------------------------------
2
ADDITIONAL SALE AGREEMENT NUMBER [ ]
---
[ ] BLANKET ENDORSEMENT DATED [ ], 2004
-- ----
Student Loan Marketing Association (the "Seller"), by execution of this
instrument, hereby endorses the attached promissory note which is one (1) of the
promissory notes (the "Notes") described in the Additional ▇▇▇▇ of Sale executed
by the Seller in favor of Chase Manhattan Bank USA, National Association, as the
Interim Eligible Lender Trustee for the benefit of SLM Student Loan Trust 2004-5
(the "Purchaser"). This endorsement is in blank, unrestricted form and without
recourse except as provided in Section 6 of the Master Sale Terms referred to in
the Additional Sale Agreement among the Seller, the Purchaser, the Interim
Eligible Lender Trustee and the Eligible Lender Trustee which covers the
promissory note (the "Additional Sale Agreement").
This endorsement may be effected by attaching either this instrument or a
facsimile hereof to each or any of the Notes.
Notwithstanding the foregoing, the Interim Eligible Lender Trustee for the
benefit of the Seller agrees to individually endorse each Note in the form
provided by the Purchaser as the Purchaser may from time to time require or if
such individual endorsement is required by the Guarantor of the Note.
THE SALE AND PURCHASE OF THE ADDITIONAL LOANS SHALL BE SUBJECT TO THE TERMS,
CONDITIONS AND COVENANTS, INCLUDING THIS BLANKET ENDORSEMENT, AS SET FORTH IN
THE RELATED ADDITIONAL SALE AGREEMENT. BY EXECUTION HEREOF, THE SELLER
ACKNOWLEDGES THAT THE SELLER HAS READ, UNDERSTANDS AND AGREES TO BE BOUND BY ALL
TERMS, CONDITIONS AND COVENANTS OF THE ADDITIONAL SALE AGREEMENT. THE SALE AND
PURCHASE SHALL BE CONSUMMATED UPON FUNDING'S PAYMENT TO THE SELLER OF THE
ADDITIONAL LOANS PURCHASE PRICE AND, UNLESS OTHERWISE AGREED BY THE SELLER AND
FUNDING, SHALL BE EFFECTIVE AS OF THE DATE OF THE ADDITIONAL ▇▇▇▇ OF SALE.
1
IN WITNESS WHEREOF, the parties hereto have caused this Blanket Endorsement
to be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
------------------------------------- ----------------------------------------
SELLER PURCHASER
------------------------------------- ----------------------------------------
Chase Manhattan Bank USA, National Chase Manhattan Bank USA, National
Association not in its individual Association, not in its individual
capacity but solely as Interim capacity but solely as Eligible
Eligible Lender Trustee for the Lender Trustee for the benefit of SLM
benefit of SLM Funding LLC Student Loan Trust 2004-5
Lender Code: 833 253
By: By:
--------------------------------- ------------------------------------
(Signature of Authorized Officer) (Signature of Authorized Signatory
for the Purchaser)
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
Date of Purchase:
----------------------
------------------------------------- ----------------------------------------
2
Exhibit D
ADDITIONAL ▇▇▇▇ OF SALE
DATED [ ], 2004
-------
The undersigned SLM Funding LLC (the "Seller") and Chase Manhattan Bank
USA, National Association as Interim Eligible Lender Trustee for the benefit of
the Seller under the Interim Trust Agreement dated as of June 1, 2004 ("Interim
Eligible Lender Trustee"), for value received and pursuant to the terms and
conditions of Additional Sale Agreement Number [ ] (the "Sale Agreement")
-----
among the Seller, the Interim Eligible Lender Trustee, SLM Student Loan Trust
2004-5 (the "Purchaser") and Chase Manhattan Bank USA, National Association, as
the Eligible Lender Trustee, does hereby sell, assign and convey to the Eligible
Lender Trustee for the benefit of the Purchaser and its assignees all right,
title and interest of the Seller and the Interim Eligible Lender Trustee,
including the insurance interest of the Seller under the Federal Family
Education Loan Program (20 U.S.C. 1071 et seq.), that the Eligible Lender
Trustee for the benefit of the Purchaser has accepted for purchase. The
portfolio of Additional Loans accepted for purchase by the Eligible Lender
Trustee for the benefit of the Purchaser and the effective date of sale and
purchase are described below and the individual accounts are listed on the
Schedule A attached hereto.
The Seller hereby makes the representations and warranties set forth in
Section 5 of the Sale Agreement Master Securitization Terms Number 1000
incorporated by reference in the Additional Sale Agreement related hereto. The
Seller and the Interim Eligible Lender Trustee authorize the Eligible Lender
Trustee on behalf of the Purchaser to use a copy of this document (in lieu of OE
Form 1074) as official notification to the Guarantor(s) of assignment to the
Eligible Lender Trustee for the benefit of the Purchaser of the portfolio of
Additional Loans accepted for purchase, on the date of purchase.
LISTING OF LOANS ON FOLLOWING PAGE
1
CERTAIN OTHER LOAN CRITERIA
.. Not in claims status, not previously rejected
.. Not in litigation
.. Last disbursement was on or before the related Cutoff Date
.. Loan is not swap-pending
*Based upon the Seller's estimated calculations, which may be adjusted upward or
downward based upon the Seller's reconciliation.
** Includes interest to be capitalized.
2
Guarantor(s):
[TO BE PROVIDED]
3
IN WITNESS WHEREOF, the parties hereto have caused this Additional ▇▇▇▇ of
Sale to be duly executed by their respective officers hereunto duly authorized,
as of the day and year first above written.
------------------------------------- ----------------------------------------
SELLER PURCHASER
------------------------------------- ----------------------------------------
Chase Manhattan Bank USA, National Chase Manhattan Bank USA, National
Association not in its individual Association, not in its individual
capacity but solely as Interim capacity but solely as Eligible
Eligible Lender Trustee for the Lender Trustee for the benefit of
benefit of SLM Funding LLC SLM Student Loan Trust 2004-5
Lender Code:
------------------------
By: By:
--------------------------------- ------------------------------------
(Signature of Authorized Officer) (Signature of Authorized Signatory
for the Purchaser)
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
Date of Purchase:
----------------------
------------------------------------- ----------------------------------------
4
Annex I
LOAN TRANSMITTAL SUMMARY FORM
Principal Balance
Additional Loans as of the related Subsequent Cutoff Date Purchase Price
---------------- ---------------------------------------- --------------
5