EXECUTION COPY
CONTRIBUTION AGREEMENT
This Contribution Agreement
(“Contribution Agreement”) dated as of October 31, 2005
among Wachovia Education Loan Funding LLC (the
“Depositor”), Wachovia Student Loan Trust 2005-1 (the
“Trust”), Chase 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 Depositor under the Interim Trust Agreement dated as
of October 31, 2005 between the Depositor and the Interim Eligible
Lender Trustee, and Chase Bank USA, National Association, not in
its individual capacity but solely as Eligible Lender Trustee (the
“Eligible Lender Trustee”) for the benefit of the Trust
under the Amended and Restated Trust Agreement dated as of November
29, 2005 among the Trust, the Eligible Lender Trustee and Wachovia
Bank, National Association, as administrator, shall be effective
upon execution by the parties hereto. References to the
Depositor herein mean the Interim Eligible Lender Trustee, and
references to the Trust herein mean the Eligible Lender Trustee,
for all purposes involving the holding or transferring of legal
title to the Eligible Loans.
WHEREAS, the Depositor is the owner of
certain Student Loans guaranteed under the Higher Education
Act;
WHEREAS, legal title to such Student
Loans is vested in the Interim Eligible Lender Trustee, as trustee
for the benefit of the Depositor as the sole
beneficiary;
WHEREAS, the Depositor desires to
contribute, assign and convey its interest in the portfolio of
Initial Loans and the Trust desires to acquire such Loans from the
Depositor;
WHEREAS, from time to time, the Depositor
may substitute loans in accordance with the terms of Section 6(B)
of this Contribution Agreement; and
WHEREAS, the Eligible Lender Trustee is
willing to hold legal title to, and serve as eligible lender
trustee with respect to, the Acquired Loans on behalf of the
Trust.
NOW, THEREFORE, in connection with the
mutual promises contained herein, the parties hereto agree as
follows:
SECTION 1.
TERMS
This Contribution Agreement establishes
the terms under which the Depositor (and with respect to legal
title, the Interim Eligible Lender Trustee for the benefit of the
Depositor) may contribute, assign and convey and the Trust (and
with respect to legal title, the Eligible Lender Trustee on behalf
of the Trust) may acquire the Loans (and all obligations of the
Borrowers thereunder) specified in the Initial Contribution
Agreement with respect to the Initial Loans or each Subsequent
Contribution Agreement with respect to any Substituted Loans, as
the parties may execute from time to time pursuant to this
Contribution Agreement. The Initial Contribution Agreement
and each Subsequent Contribution Agreement, as applicable, shall be
substantially in the form of Attachment A and Attachment C hereto,
respectively, in each case incorporating by reference the terms of
this Contribution Agreement, and shall be a separate agreement
among the Depositor, the Trust, the Interim Eligible Lender Trustee
for the benefit of the Depositor and the Eligible Lender Trustee on
behalf of the Trust with respect to the Loans covered by the terms
of the Initial Contribution Agreement or the related Subsequent
Contribution Agreement, as applicable. If the terms of the
Initial Contribution Agreement or an Subsequent Contribution
Agreement conflict with the terms of this Contribution Agreement,
the terms of the Initial Contribution Agreement or the related
Subsequent Contribution Agreement, as applicable, shall supersede
and govern.
SECTION 2.
DEFINITIONS
Capitalized terms used but not otherwise
defined herein, including in the related Contribution Agreement and
Conveyance Schedule, shall have the definitions set forth in
Appendix A to the Indenture dated as of November 29, 2005, among
Chase Bank USA, National Association, as Eligible Lender Trustee on
behalf of the Trust, Wachovia Student Loan Trust 2005-1 and Wells
Fargo Bank, National Association, as Indenture Trustee, as it may
be amended or supplemented from time to time.
For purposes hereof:
(A)
“Acquired Loans” means, with
respect to each of the Initial Contribution Agreement and the
Subsequent Contribution Agreements, the Loans selected for
contribution and acquired or substituted pursuant to such
Contribution Agreement.
(B)
“Acquisition Date” means with
respect to the Initial Loans, the Closing Date, and with respect to
any Substituted Loans, the date of the related Subsequent
Conveyance Schedule.
(C)
“Borrower” means the Obligor
on a Loan.
(D)
“Contribution Agreement”
means the Initial Contribution Agreement or a Subsequent
Contribution Agreement, as applicable, substantially in the form of
Attachment A or C hereto, of which this Contribution Agreement
forms a part by reference.
(E)
“Conveyance Schedule” means
the Initial Conveyance Schedule or an Subsequent Conveyance
Schedule, as applicable.
(F)
“Cutoff Date” means the
Initial Cutoff Date.
(G)
“Eligible Loan” means a Loan
selected for contribution or substituted by the Depositor under the
Initial Contribution Agreement or a Subsequent Contribution
Agreement which as of the Initial Cutoff Date, in the case of the
Initial Loans, or as of the effective date of the related
Conveyance Schedule, in the case of any Substituted Loan, is
current or not more past due than permitted under such Contribution
Agreement in payment of principal or interest and which meets the
following criteria as of the Initial Cutoff Date (except that
paragraph (x) shall be satisfied as of the date specified in the
provisions herein), in the case of the Initial Loans, or as of the
effective date of the related Conveyance Schedule (except that
paragraph (x) shall be satisfied as of the date specified in the
provisions herein), in the case of any Substituted Loan:
(i)
is a Consolidation Loan;
(ii)
is owned by the Depositor 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 type of
Loan;
(iv)
is not in claim status and is not in
litigation;
(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 type of 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 Initial
Cutoff Date, in the case of the Initial Loans, or in relation to
any Substituted Loan, the effective date of the related Conveyance
Schedule;
(viii)
the last disbursement was before the
Initial Cutoff Date, in the case of the Initial Loans, or before
the effective date of the related Conveyance Schedule, in the case
of any Substituted Loan;
(ix)
is supported by the following
documentation, in each case fully complete and, if applicable,
executed:
1.
loan application, and any supplement
thereto,
2.
original promissory note and any addendum
thereto (or a true and exact copy thereof) or the electronic
records evidencing the same,
3.
evidence of guarantee,
4.
any other document and/or record which
the Trust 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 Initial Cutoff Date, in the case of the Initial Loans, or
the effective date of the related Conveyance Schedule, in the case
of any Substituted Loan, and (ii) an accounting of the allocation
of all payments by the Borrower or on the Borrower’s behalf
to principal and interest on the Loan,
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, and
(x)
satisfies each of the Representations and
Warranties contained in Section 5(B) hereof.
(H)
“Excess Distribution
Certificates” means the certificates, substantially in the
form of Exhibit A to the Trust Agreement, evidencing the right to
receive payments thereon as set forth in Sections 2.8(m) and 2.9(f)
of the Administration Agreement.
(I)
“Initial Conveyance Schedule”
means the document, in the form of Attachment B hereto, executed by
an authorized officer of the Interim Eligible Lender Trustee on
behalf of the Depositor which shall (i) set forth the applicable
Initial Loans selected for contribution by the Depositor and the
Interim Eligible Lender Trustee and accepted by the Eligible Lender
Trustee for the benefit of the Trust, (ii) contribute, assign and
convey to the Eligible Lender Trustee for the benefit of the Trust
and its assignees all rights, title and interest of the Depositor
and the Interim Eligible Lender Trustee in the Initial Loans listed
on that Conveyance Schedule and (iii) certify that the
representations and warranties made by the Depositor as set forth
in Sections 5 (A) and (B) of this Contribution Agreement are true
and correct.
(J)
“Initial Cutoff Date” means
the close of business of October 31, 2005.
(K)
“Initial Contribution
Agreement” means the Contribution Agreement (including the
related Blanket Endorsement, Initial Conveyance Schedule and any
attachments thereto) substantially in the form of Attachment A
hereto (of which this Contribution Agreement forms a part by
reference), to be executed by the Depositor, the Interim Eligible
Lender Trustee for the benefit of the Depositor, the Interim
Eligible Lender Trustee, the Trust and the Eligible Lender
Trustee.
(L)
“Initial Loans” means the
Eligible Loans evidenced by the Student Loan Notes contributed on
the Closing Date pursuant to the Initial Contribution Agreement and
related documentation, together with any guaranties and other
rights relating thereto including, without limitation, Interest
Subsidy Payments and Special Allowance Payments.
(M)
“Loan” means an Initial Loan
or a Substituted Loan, as applicable, selected for contribution and
acquired, or substituted, pursuant to the related Contribution
Agreement and related documentation together with any guarantees
and other rights relating thereto including, without limitation,
Interest Subsidy Payments and Special Allowance
Payments.
(N)
“Loan Transmittal Summary
Forms” means the forms related to each Conveyance Schedule
provided to the Depositor by the Trust and completed by the
Depositor that list, by Borrower, (i) the Loans subject to the
related Conveyance Schedule and (ii) the outstanding Principal
Balance and accrued interest thereof as of the Initial Cutoff Date,
in the case of the Initial Loans, or as of the effective date of
the related Conveyance Schedule, in the case of any Substituted
Loan.
(O)
“Net Note Proceeds” means the
dollar amount specified as the “Net Note Proceeds” in
the Initial Contribution Agreement.
(P)
[reserved].
(Q)
“Subsequent Contribution
Agreement” means each Subsequent Contribution Agreement
(including the related Subsequent Conveyance Schedule, the related
Blanket Endorsement and any attachments thereto), substantially in
the form of Attachment C hereto (of which this Contribution
Agreement forms a part by reference, provided that in the event of
a substitution, the form will be modified accordingly), to be
executed by the Depositor, the Interim Eligible Lender Trustee, the
Trust and the Eligible Lender Trustee for the benefit of the
Trust.
(R)
“Subsequent Conveyance
Schedule” means each document, in the form of
Attachment D hereto, executed by the Depositor, the Interim
Eligible Lender Trustee, the Trust and the Eligible Lender Trustee
on behalf of the Trust which shall: (i) set forth the
list and certain terms of Substituted Loans substituted by the
Depositor, (ii) contribute, assign and convey to the Eligible
Lender Trustee, for the benefit of the Trust and its assignees, all
right, title and interest of the Depositor and the Interim Eligible
Lender Trustee in the Substituted Loans listed on the related
Subsequent Conveyance Schedule and (iii) certify, in the case of
the Depositor, that the representations and warranties made by the
Depositor pursuant to Sections 5(A) and (B) of this Contribution
Agreement are true and correct.
(S)
“Substituted Loans” means the
Eligible Loans evidenced by a Student Loan Note or Student Loan
Notes substituted by the Depositor pursuant to the terms of Section
6(B) hereof from time to time as evidenced by an Subsequent
Contribution Agreement and related documentation, together with any
guarantees and other rights relating thereto including, without
limitation, Interest Subsidy Payments and Special Allowance
Payments.
SECTION 3.
CONTRIBUTION/ACQUISITION
SECTION
3.1 CONTRIBUTION/ACQUISITION OF INITIAL
LOANS
(A)
Consummation of Contribution and
Acquisition
The contribution and acquisition of
Eligible Loans pursuant to the Initial Contribution Agreement with
respect to the Initial Loans shall be consummated upon: (i) the
Trust’s receipt from the Depositor and the Interim Eligible
Lender Trustee for the benefit of the Depositor of the Initial
Conveyance Schedule, (ii) the conveyance by the Trust to the
Depositor of the Net Note Proceeds, (iii) the delivery of (1) a
63.9% interest Excess Distribution Certificate registered in the
name of the Depositor and (2) a 36.1% interest Excess Distribution
Certificate registered in the name of WELF Holding LLC and (iv) the
delivery of $54,000,000 principal amount of the Class B Notes to
the Depositor. Upon consummation, regardless of whether or
not all conditions precedent to such contribution and acquisition
were satisfied, such contribution and acquisition shall be
effective as of the date of the Initial Conveyance Schedule.
The Depositor and the Trust shall use their best efforts to
perform promptly their respective obligations pursuant to the
Initial Contribution Agreement with respect to each Initial
Loan.
(B)
Settlement of the Net Note
Proceeds
On the date of the Initial Conveyance
Schedule, the Trust shall (i) remit to the Depositor the Net Note
Proceeds by wire transfer of immediately available funds to the
account specified by the Depositor, (ii) delivery or cause the
delivery of the Excess Distribution Certificates specified in
Section 3.1(A) of this Contribution Agreement to the Depositor and
(iii) transfer or cause the transfer of the Class B Notes specified
in Section 3.1(A) of this Contribution Agreement to the Depositor.
(C)
Interest Subsidy Payments, Special
Allowance Payments and Rebate Fees
The Eligible Lender Trustee on behalf of
the Trust shall be entitled to all Special Allowance Payments and
Interest Subsidy Payments on the Initial Loans received from and
including the day immediately after the Initial Cutoff Date, and
shall be responsible for the payment of any rebate fees applicable
to the Initial Loans from and including the day immediately after
the Initial Cutoff Date.
SECTION
3.2 SUBSTITUTION OF SUBSTITUTED
LOANS
(A)
Requirements Relating to Substituted
Loans
The Depositor may transfer Substituted
Loans to the Trust in satisfaction of any Loan reacquisition
obligations provided under Section 6 of this Contribution
Agreement. The substitution of Substituted Loans pursuant to
an Subsequent Contribution Agreement shall be consummated as set
forth in this Section 3.2.
(B)
Consummation of Substitution
The substitution of Eligible Loans as
Substituted Loans pursuant to an Subsequent Contribution Agreement
shall be consummated upon (i) the Trust’s receipt from the
Depositor of a fully executed copy of the related Subsequent
Contribution Agreement; and (ii) the transfer by the Trust to the
Depositor of the amount set forth in Section 6(B) of this
Contribution Agreement. Upon consummation, regardless of
whether or not all conditions precedent to such substitution were
satisfied, such substitution shall be effective as of the date of
the related Subsequent Conveyance Schedule. The Depositor and
the Trust shall use their best efforts to perform promptly their
respective obligations pursuant to the related Subsequent
Contribution Agreement with respect to each Substituted
Loan.
(C)
Consideration
The consideration for the Substituted
Loans shall be the transfer from the Trust to the Depositor of
ownership of the Loans being substituted for.
(D)
Interest Subsidy Payment and Special
Allowance Payments
The Interest Subsidy Payments and the
Special Allowance Payments shall be made in accordance with Section
6(B) of this Contribution Agreement.
SECTION
3.3 GENERAL
(A)
Special Programs
In consideration of the contribution or
substitution of the Eligible Loans under this Contribution
Agreement, the Initial Contribution Agreement and each Subsequent
Contribution Agreement, the Trust agrees to cause the Master
Servicer to offer each Borrower of a Trust Student Loan contributed
or substituted hereunder all special programs, whether or not in
existence as of the date of any related Contribution Agreement,
generally offered to the obligors of comparable loans owned by the
Depositor or any of its Affiliates, at all times subject to the
terms and conditions of Section 3.12 of the Master Servicing
Agreement. The Depositor is contributing Loans to the Trust
or substituting Loans without regard to the effect of any special
programs.
(B)
Intent of the Parties
With respect to each contribution or
substitution of Eligible Loans pursuant to this Contribution
Agreement and the related Contribution Agreements, it is the
intention of the Depositor, the Interim Eligible Lender Trustee,
the Eligible Lender Trustee and the Trust, and the Depositor hereby
warrants that, except (i) for U.S. federal, State and local income
and franchise tax purposes, the transfer and assignment constitute
a valid contribution of such Loans from the Depositor to the
Eligible Lender Trustee or a valid substitution of such Loans, and
(ii) for other than U.S. federal, State and local income and
franchise tax purposes, the transfer and assignment constitute an
assignment of an ownership interest in such Loans from the
Depositor to the Eligible Lender Trustee, for the benefit of and on
behalf of the Trust, and that the beneficial interest in and title
to such Loans not be part of the Depositor’s property for any
purposes under the UCC or be part of the Depositor’s estate
in the event of the bankruptcy of the Depositor or the appointment
of a receiver with respect to the Depositor.
(C)
Master Promissory Note
Provisions
If any Loans that are to be contributed
under this Contribution Agreement were made under a Master
Promissory Note, the Conveyance Schedule will exclude an assignment
of the Depositor’s right to offer future Loans under such
Master Promissory Note, it being agreed that (i) the Depositor
expressly reserves for itself such right to offer future Loans
under such Master Promissory Note, and (ii) the Trust will not, and
has no right to, offer or make any future loans under such Student
Loan Note. Notwithstanding any other provision of this
Contribution Agreement, the Depositor will deliver (or cause to be
delivered) to the Trust a true and exact copy of the Master
Promissory Note at the time of contribution in accordance with the
provisions of this Contribution Agreement. The Depositor
agrees promptly to deliver (or cause to be delivered) to the Trust
any original Master Promissory Note for a Loan contributed under
this Contribution Agreement to the extent it is necessary for
enforcement in a legal proceeding, it being understood and agreed
that the Trust shall (i) be responsible and liable for custody of
the original Student Loan Note on the Depositor’s behalf
until the Note is returned to the Depositor, and (ii) promptly
return such original Student Loan Note to the Depositor, in the
same condition as provided by the Depositor, upon conclusion of the
legal proceeding.
SECTION 4.
CONDITIONS PRECEDENT TO ACQUISITION OR
SUBSTITUTION
Any acquisition or substitution of Loans
pursuant to this Contribution Agreement is subject to the following
conditions precedent being satisfied (and the Depositor, by
accepting the transfer of the Net Note Proceeds, shall be deemed to
have certified that all such conditions are satisfied on the date
of such acquisition):
(A)
Activities Prior to the Related
Acquisition Date
The Depositor shall provide any
assistance reasonably requested by the Trust in determining that
all required documentation on the related Loans is present and
correct.
(B)
Continued Servicing
Following the execution of each of the
Initial Contribution Agreement and the Subsequent Contribution
Agreements, the Depositor shall service, or cause to be serviced,
all Loans subject to such Contribution Agreement as required under
the Higher Education Act until the date of the related Conveyance
Schedule.
(C)
Conveyance Schedule/Loan Transmittal
Summary Form
The Depositor shall deliver to the
Trust:
(i)
a Conveyance Schedule that (a) has
been duly authorized, executed and delivered by an authorized
officer of the Depositor and the Interim Eligible Lender Trustee
for the benefit of the Depositor, covering the applicable Loans
selected for contribution by the Depositor, (b) has been
accepted by the Trust as set forth thereon, contributing, assigning
and conveying to the Eligible Lender Trustee on behalf of the Trust
and its assignees all right, title and interest of the Depositor
and the Interim Eligible Lender Trustee for the benefit of the
Depositor, including the insurance interest of the Interim Eligible
Lender Trustee for the benefit of the Depositor, in each of the
related Loans, and (c) states that the representations and
warranties made by the Depositor in Sections 5(A) and (B) of this
Contribution Agreement are true and correct on and as of the date
of the Conveyance Schedule; and
(ii)
the Loan Transmittal Summary Form,
attached to the Conveyance Schedule, identifying each of the
Eligible Loans which is the subject of the Conveyance Schedule and
setting forth the unpaid Principal Balance of each such
Loan.
(D)
Endorsement
The Depositor shall provide a blanket
endorsement transferring the entire interest of the Depositor and
the Interim Eligible Lender Trustee for the benefit of the
Depositor in the related Eligible Loans to the Eligible Lender
Trustee on behalf of the Trust with the form of endorsement
provided for in the Initial Contribution Agreement with respect to
the Initial Loans or the Subsequent Contribution Agreement with
respect to the Substituted Loans.
At the direction of and in such form as
the Trust may reasonably designate, the Depositor also agrees to
individually endorse any Eligible Loan as the Trust may reasonably
request from time to time.
(E)
Officer’s Certificate
The Depositor shall furnish to the Trust,
with each Conveyance Schedule provided in connection with each
acquisition or substitution of Loans pursuant to this Contribution
Agreement, an Officer’s Certificate with respect to the
representations and warranties made by the Depositor pursuant to
Section 5(A) and Section 5(B) hereof, with respect to the Initial
Loans, dated the Closing Date and with respect to the Substituted
Loans, dated the date of the related Acquisition Date.
(F)
Loan Transfer Statement
Upon the Trust’s request, the
Depositor shall deliver to the Trust one or more Loan Transfer
Statements (Department of Education Form OE 1074 or its equivalent)
provided by the Trust, executed by Interim Eligible Lender Trustee
for the benefit of the Depositor and dated the date of the related
Conveyance Schedule. The Depositor agrees that the Trust and
the Eligible Lender Trustee may use the related Conveyance
Schedule, including the Loan Transmittal Summary Form attached to
that Conveyance Schedule, in lieu of OE Form 1074, as official
notification to the Guarantor of the assignment by Interim Eligible
Lender Trustee for the benefit of the Depositor to the Eligible
Lender Trustee on behalf of the Trust of the Loans listed on the
related Conveyance Schedule.
(G)
Power of Attorney
The Depositor and the Interim Eligible
Lender Trustee hereby grant to the Trust and the Eligible Lender
Trustee, on behalf of and for the benefit of the Trust, 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 Depositor and the
Interim Eligible Lender Trustee for the benefit of the Depositor
any Eligible Loan to evidence the
transfer of such Eligible Loan to the Trust and the Eligible Lender
Trustee for the benefit of the Trust and to cause to be transferred
physical possession of any physical Student Loan Note or control as
defined in the applicable UCC of any electronic Student Loan Note
from the Depositor or the Master Servicer to the Trust or the
Eligible Lender Trustee or any custodian on their
behalf.
(H)
Contemporaneous Contribution
Subject to the conditions set forth in
Section 3.2(A) hereof, with respect to the acquisition of
Substituted Loans, such Substituted Loans shall be
contemporaneously contributed to the Eligible Lender Trustee on
behalf of the Trust in accordance with Section 4(H) of the
Contribution Agreement.
SECTION 5.
REPRESENTATIONS AND WARRANTIES OF THE
DEPOSITOR AND THE INTERIM ELIGIBLE LENDER TRUSTEE AND COVENANT OF
THE DEPOSITOR
(A)
General
The Depositor represents and warrants to
the Trust that with respect to the Initial Loans, as of the Closing
Date, and with respect to any Substituted Loans substituted by it,
as of the related Acquisition Date:
(i)
The Interim Eligible Lender Trustee is an
eligible lender or other qualified holder of loans originated
pursuant to the Federal Family Education Loan Program established
under the Higher Education Act;
(ii)
The Interim Eligible Lender Trustee and
the Depositor are duly organized and existing under the laws of its
governing jurisdiction; and
(iii)
The Interim Eligible Lender Trustee and
the Depositor have all requisite power and authority to enter into
and to perform the terms of this Contribution Agreement, the
Initial Contribution Agreement and any Subsequent Contribution
Agreement, the Initial Conveyance Schedule and any Subsequent
Conveyance Schedule and, upon execution, each such document shall
be enforceable against the Interim Eligible Lender Trustee and the
Depositor in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter
in effect affecting enforcement of creditors’ rights in
general and except as such enforceability may be limited by general
principles of equity (whether considered in a proceeding at law or
in equity).
(B)
Particular
The Depositor represents and warrants to
the Trust as to the Acquired Loans acquired by the Trust under the
Initial Contribution Agreement with respect to the Initial Loans,
or each Subsequent Contribution Agreement with respect to any
Substituted Loans, in each case executed pursuant to this
Contribution Agreement that, as of the related Acquisition Date or
as of the date otherwise noted:
(i)
The Interim Eligible Lender Trustee for
the benefit of the Depositor has good and marketable title to, and
is the sole owner of, the Acquired Loans, free and clear of all
security interests, liens, charges, claims, offsets, defenses,
counterclaims or encumbrances of any nature and no right of
rescission, offsets, defenses or counterclaims have been asserted
or threatened with respect to those Loans;
(ii)
This Contribution Agreement creates a
valid and continuing security interest (as defined in the
applicable UCC) in the Acquired Loans in favor of the Eligible
Lender Trustee, which security interest is prior to all other
security interests, liens, charges, claims, offsets, defenses,
counterclaims or encumbrances, and is enforceable as such as
against creditors of and transferees from the Interim Eligible
Lender Trustee and the Depositor;
(iii)
The Acquired Loans constitute
“payment intangibles” within the meaning of the
applicable UCC and are within the coverage of Section 432(m)(1)(E)
of the Higher Education Act;
(iv)
As of the Initial Cutoff Date, in the
case of the Initial Loans, or as of the effective date of the
related Conveyance Schedule, in the case of any Substituted Loan,
the Acquired Loans are Eligible Loans and the description of such
Loans set forth in the related Contribution Agreement and the
related Loan Transmittal Summary Form is true and
correct;
(v)
The Interim Eligible Lender Trustee and
the Depositor is authorized to contribute, assign, transfer,
substitute and reacquire the Acquired Loans; and the contribution,
assignment and transfer of such Loans is or, in the case of a
Contributed Loan reacquisition or substitution by the Depositor and
or the Interim Eligible Lender Trustee, will be made pursuant to
and consistent with the laws and regulations under which the
Depositor 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 material breach of any of the
terms, conditions or provisions of any agreement or instrument to
which the Interim Eligible Lender Trustee or the Depositor is a
party or by which the Interim Eligible Lender Trustee or the
Depositor or its property is bound, or constitute a material
default (or an event which could constitute a default with the
passage of time or notice or both) thereunder;
(vi)
The Acquired 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 Acquired Loans for the consummation of the
contribution of the Acquired Loans hereunder to the Eligible Lender
Trustee;
(viii)
As of the Initial Cutoff Date, in the
case of the Initial Loans, or as of the effective date of the
related Conveyance Schedule, in the case of any Substituted Loan,
each Contributed Loan has been duly made and serviced in accordance
with the provisions of the Federal Family Education Loan Program
established under the Higher Education Act, and has been duly
insured by a Guarantor; as of the Initial Cutoff Date, in the case
of the Initial Loans, or as of the effective date of the related
Conveyance Schedule, in the case of any Substituted Loan, such
guaranty is in full force and effect and is freely transferable to
the Eligible Lender Trustee on behalf of the Trust as an incident
to the acquisition 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 Conveyance Schedule;
(ix)
Any payments on the Acquired Loans
received by the Interim Eligible Lender Trustee for the benefit of
the Depositor that have been allocated to the reduction of
principal and interest on such Acquired Loans have been allocated
on a simple interest basis; the information with respect to the
applicable Acquired Loans as of the Initial Cutoff Date, in the
case of the Initial Loans, or as of the effective date of the
related Conveyance Schedule, in the case of any Substituted Loan,
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 Acquired 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 210 days past due as
of the Initial Cutoff Date, with respect to the Initial Loans, or
as of the effective date of the related Conveyance Schedule, with
respect to any Substituted Loans, and no default, breach, violation
or event permitting acceleration under the terms of any Loan has
arisen; and neither the Depositor 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 Depositor, the
Interim Eligible Lender Trustee, the Eligible Lender Trustee and
the Trust, and the Depositor hereby warrants that, the transfer and
assignment herein contemplated constitute a valid contribution
assignment of an ownership interest in the Loans from the Depositor
and the Interim Eligible Lender Trustee to the Eligible Lender
Trustee, for the benefit of and on behalf of the Trust, and that
the beneficial interest in and title to such Loans not be part of
the Depositor’s property for any purposes under the UCC or be
part of the Depositor’s estate in the event of the bankruptcy
of the Depositor or the appointment of a receiver with respect to
the Depositor;
(xv)
The Interim Eligible Lender Trustee and
the Depositor have caused or will have caused, within ten days of
the Closing Date, the filing of all appropriate financing
statements in the proper filing office in the appropriate
jurisdictions under applicable law in order to perfect the security
interest in the Loans granted or otherwise transferred to the
Eligible Lender Trustee hereunder;
(xvi)
There is only one original executed copy
of the Student Loan Note evidencing each Contributed Loan. For
Acquired Loans that were executed electronically, the Master
Servicer, directly or through sub-servicers (or, if applicable,
third-party sub-custodians), has possession of the electronic
records evidencing the Student Loan Note. The Eligible Lender
Trustee has in its possession a copy of the endorsement and Loan
Transmittal Summary Form identifying the Student Loan Notes that
constitute or evidence the Acquired Loans. The Student Loan
Notes that constitute or evidence the Acquired 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 Depositor in favor of the Eligible Lender
Trustee on behalf of the Trust in connection herewith describing
the Loans contain a statement to the following effect:
“An acquisition 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
Depositor and the Interim Eligible Lender Trustee have not pledged,
assigned, contributed, granted a security interest in, or otherwise
conveyed any of the Acquired Loans. The Depositor and the
Interim Eligible Lender Trustee have not authorized the filing of
and is not aware of any financing statements against the Depositor
or the Interim Eligible Lender Trustee that include a description
of collateral covering the Acquired 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 Depositor is not aware of any judgment or tax
lien filings against the Depositor;
(xviii)
No Borrower of an Acquired Loan as of the
Initial Cutoff Date, in the case of the Initial Loans, or as of the
effective date of the related Conveyance Schedule, in the case of
any Substituted Loan, is noted in the related Loan File, or to the
best of the Depositor’s knowledge, as being currently
involved in a bankruptcy proceeding;
(xix)
The Depositor has taken all steps
necessary to perfect its security interest against WEF and Wachovia
Bank in the Acquired Loans; and
(xx)
Each promissory note (including an
electronic note) executed by a borr
