Exhibit 99.1
LOAN PURCHASE
AGREEMENT
This Loan Purchase Agreement (the
“Loan Purchase Agreement”) made and entered into as of
this [ ] day of
[ ],
[•] by and between GOAL CAPITAL FUNDING TRUST
[•]-[•], a Delaware statutory trust (the
“Purchaser”) acting by and through [•], not
individually but as eligible lender trustee (the
“Trustee”) under the Eligible Lender Trust Agreement
(as defined herein) and GOAL CAPITAL FUNDING, LLC , a
limited liability company organized and existing under the laws of
the State of Delaware and having its principal offices at 9477
Waple Street, Suite 100, San Diego, CA 92121, acting by and through
[•], not individually, but as eligible lender trustee (the
“Seller”).
W I T N E S S E T H
:
WHEREAS, the Purchaser, by and through the Trustee,
desires to purchase from the Seller certain FFELP Loans (as defined
below) to assist students in obtaining a post-secondary education,
title to which will be held by the Trustee pursuant to the Eligible
Lender Trust Agreement, and the Seller desires to sell certain
FFELP Loans to the Purchaser, title to which will be held by and
through the Trustee, in accordance with the terms and conditions of
this Loan Purchase Agreement.
NOW , THEREFORE , in consideration of the
premises and mutual covenants herein contained, the parties agree
as follows:
SECTION I.
DEFINITIONS
“Borrower” means the
student or parent obligor under an Eligible Loan.
“Certificate of
Insurance” means a certificate of federal loan insurance
issued with respect to an Eligible Loan by the Secretary of
Education pursuant to the provisions of the Higher Education
Act.
“Contract of Insurance”
means an agreement between the Secretary of Education and either
the Trustee or the Seller providing for the insurance by the
Secretary of Education of the principal of and accrued interest on
a FFELP Loan to the maximum extent permitted under the Higher
Education Act.
“Eligible Lender Trust
Agreement” means the Eligible Lender Trust Agreement dated as
of [
], [•], between the Trustee and the Purchaser, as the same
may be amended, modified, supplemented, restated or otherwise
altered.
“Eligible Loan” means a
FFELP Loan authorized to be acquired by the Purchaser by and
through the Trustee which (i) is either Insured or Guaranteed;
(ii) if such FFELP Loan is a subsidized Stafford loan,
qualifies the holder thereof to receive Interest Subsidy Payments
and Special Allowance Payments; if such FFELP Loan is a
consolidation loan authorized under Section 428C of the Higher
Education Act, qualifies the holder thereof to receive
Interest
Subsidy Payments and Special Allowance Payments
to the extent applicable; and if such FFELP Loan is a PLUS loan
authorized under Section 428B of the Higher Education Act, a
SLS loan authorized under Section 428A of the Higher Education
Act, or an unsubsidized Stafford loan authorized under
Section 428H of the Higher Education Act, such FFELP Loan
qualifies the holder thereof to receive Special Allowance Payments;
(iii) complies with each representation and warranty with
respect thereto contained herein; and (iv) meets the other
criteria set forth in the Loan Purchase Regulations and is eligible
for purchase under the terms of the Financing Agreement.
“Federal Contracts”
means all agreements between a Guarantee Agency and the Secretary
of Education providing for the payment by the Secretary of
Education of amounts authorized to be paid pursuant to the Higher
Education Act, including, but not limited to, reimbursement of
amounts paid or payable upon defaulted Eligible Loans and other
student loans insured or guaranteed by any Guarantee Agency and
federal interest subsidy payments and Special Allowance Payments,
if applicable, to holders of qualifying student loans guaranteed by
any Guarantee Agency.
“FFELP Loans” means
those specific loans acquired by the Trustee, on behalf of the
Purchaser, from the Seller pursuant to this Loan Purchase
Agreement, inclusive of the promissory notes evidencing such loans
and the related documentation in connection with each thereof,
which were originated pursuant to the Federal Family Education Loan
Program and the Higher Education Act.
“Financing Agreement”
means the Indenture of Trust, dated as of
[ ],
[•], by and between the Purchaser and the Indenture Trustee,
as the same may be amended, modified, supplemented, restated or
otherwise altered, which is utilized to finance the
Purchaser’s purchase of the FFELP Loans under this Loan
Purchase Agreement.
“Guarantee” or
Guaranteed” means, with respect to a FFELP Loan, the
guarantee by the Guarantee Agency, in accordance with the terms and
conditions of the Guarantee Agreement, of the principal of and
accrued interest on the FFELP Loan to the maximum extent permitted
under the Higher Education Act on FFELP Loans which have been
originated, held and serviced in full compliance with the Higher
Education Act, and the coverage of the FFELP Loan by the Federal
Contracts providing, among other things, for reimbursement to the
Guarantee Agency for losses incurred by it on defaulted Eligible
Loans guaranteed by it to the extent of the maximum reimbursement
allowed by the Federal Contracts.
“Guarantee Agency” means
a state agency or a private nonprofit institution or organization
which administers a Guarantee Program within a State or any
successors and assignees thereof administering the Guarantee
Program which has entered into a Guarantee Agreement with the
Trustee on behalf of the Purchaser.
“Guarantee Agreement”
means the Federal Contracts, an agreement between a Guarantee
Agency and either the Trustee or the Seller providing for the
Guarantee by such Guarantee Agency of the principal of and accrued
interest on Eligible Loans to Borrowers, made or acquired by the
Trustee or the Seller from time to time, and any other similar
guarantee or agreement issued by a Guarantee Agency to the
Purchaser or the Trustee pertaining to Financed Eligible
Loans.
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“Guaranteed Loans” means
FFELP Loans that are Guaranteed.
“Guarantee Program”
means a Guarantee Agency’s student loan guaranty program
pursuant to which such Guarantee Agency guarantees or insures
student loans.
“Higher Education Act”
shall mean Title IV, Parts B, F and G, of the Higher Education Act
of 1965, as amended or supplemented and in effect from time to
time, or any successor enactment thereto, and all regulations
promulgated thereunder and any directives issued by the Secretary
of Education.
“Indenture Trustee”
means [•] acting in its capacity as indenture trustee under
the Financing Agreement, and not in its individual
capacity.
“Insurance” or
“Insured” or “Insuring” means, with respect
to a FFELP Loan, the insuring by the Secretary of Education (as
evidenced by a Certificate of Insurance or other document or
certification issued under the provisions of the Higher Education
Act) under the Higher Education Act of the principal of and accrued
interest on such FFELP Loan to the maximum extent permitted under
the Higher Education Act for FFELP Loans originated, held and
serviced in full compliance with the Higher Education
Act.
“Insured Loans” means
FFELP Loans which are Insured.
“Interest Subsidy
Payments” means interest subsidy payments received from the
Secretary of Education pursuant to Section 428 of the Higher
Education Act or similar payments authorized by federal law or
regulation.
“Loan Purchase
Agreement” means this Loan Purchase Agreement including all
exhibits and schedules attached hereto, and any addenda,
supplements or amendments hereto.
“Loan Purchase Date”
means the date as described in Section 2(b) hereof.
“Loan Purchase
Regulations” means the rules and regulations of the
Purchaser, as may be adopted by the Purchaser from time to time
(with the consent of any persons required under the terms of the
Financing Agreement), which pertain to the Program, which shall
incorporate all requirements specified in any indentures or other
financing arrangements to which the Purchaser is
subject.
“Loan Transfer Schedule”
means a written schedule on a form provided by the Purchaser or its
servicing agent identifying the Borrower on the FFELP Loans to be
purchased hereunder.
“Master Note” means a
Master Promissory Note in the form mandated by
Section 432(m)(1)(D) of the Higher Education Act, as added by
Pub. L. 105-244, ss. 427,112 Stat. 1702 (1998) as amended by
Public Law No: 106-554 (enacted December 21, 2000) and as
codified at 20 U.S.C. ss. 1082(m)(1).
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“MPN Loan” means a FFELP
Loan evidenced by a Master Note.
“Program” means the
Purchaser’s Eligible Loan acquisition program under which the
Trustee will acquire Eligible Loans to assist students in obtaining
a post-secondary education.
“Purchaser” means Goal
Capital Funding Trust [•]-[•], a Delaware statutory
trust.
“Secretary of Education”
means the Commissioner of Education and the Secretary of the United
States Department of Education (who succeeded to the functions of
the Commissioner of Education pursuant to the Department of
Education Organization Act), or any officer, board, body,
commission or agency succeeding to the functions thereof under the
Higher Education Act.
“Seller” means Goal
Capital Funding, LLC, a Delaware limited liability company, which
is performing this Loan Purchase Agreement by and through its
eligible lender trustee which is an “eligible lender”
under the criteria established by the Higher Education Act that has
received an eligible lender designation by the Secretary of
Education with respect to Insured Loans or from a Guarantee Agency
with respect to Guaranteed Loans, identified in the introduction to
this Loan Purchase Agreement, which is selling FFELP Loans to the
Purchaser hereunder.
“Special Allowance
Payments” means special allowance payments authorized to be
made by the Secretary of Education pursuant to Section 438 of
the Higher Education Act or similar allowances authorized from time
to time by federal law or regulation.
“Trustee” means
[•] acting in its capacity as eligible lender trustee under
the Eligible Lender Trust Agreement, and not in its individual
capacity.
SECTION II.
PURCHASE OF FFELP
LOANS.
(a) Subject to the terms and
conditions and in reliance upon the representations, warranties and
agreements set forth herein, the Seller agrees to sell to the
Trustee, acting on behalf of the Purchaser, and the Purchaser,
acting by and through the Trustee under the Eligible Lender Trust
Agreement on behalf of the Purchaser, agrees to buy from the
Seller, a portfolio of FFELP Loans which are Eligible Loans in the
aggregate unpaid principal amount as set forth in the Loan Transfer
Addendum in the form set forth in Exhibit A hereto. Additional
portfolios of FFELP Loans may be purchased from the Seller
hereunder by the Purchaser by and through the Trustee from time to
time in the future, if the parties hereto execute and deliver a
subsequent Loan Transfer Addendum for each such purchase of a
portfolio in the form set forth in Exhibit A hereto, reflecting the
aggregate unpaid principal balance of Eligible Loans contained in
such portfolio and the Loan Purchase Date, and if the Seller
executes and delivers to the Purchaser all documents required under
Section 4 hereof as of the applicable Loan Purchase Date. Any
subsequent purchase of an additional portfolio of FFELP Loans shall
be governed in all respects by this Loan Purchase Agreement
together with the Loan Transfer Addendum pertaining to such
portfolio. The Seller shall deliver a Loan Transfer Schedule to the
Purchaser, not less than five (5) days prior to the applicable
Loan
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Purchase Date. Consummation of the
sale of each FFELP Loan shall require execution and delivery to the
Purchaser of the Seller’s Closing Certificate in the form of
Exhibit B hereto (and delivery of the documents described in
Exhibit B hereto), the blanket endorsement and bill of sale as well
as execution and delivery by the Seller in the forms set forth in
Exhibits C and D hereto, respectively. It is the intention of the
Seller that the transfer from the Seller to the Trustee on behalf
of the Purchaser constitutes a true sale of the FFELP Loans
hereunder and that neither the interest in nor title to the FFELP
Loans shall become or be deemed property of the Seller for any
purpose under applicable state or federal law.
(b) Delivery and payment for the
FFELP Loans shall take place at a location and on a date (the
“Loan Purchase Date”) to be specified by the Purchaser.
The applicable Loan Purchase Date shall not be later than the date
set forth in the Loan Transfer Addendum pertaining to such FFELP
Loans.
(c) Subject to the terms and
conditions of this Loan Purchase Agreement, the Purchaser agrees to
purchase the FFELP Loans by and through the Trustee at a price
equal to 100.0% of the outstanding unpaid principal amount thereof
on the Loan Purchase Date with proceeds from the obligations issued
pursuant to the Financing Agreement, or such other amount agreed
upon and specified in the Loan Transfer Addendum as set forth in
Exhibit A. The Seller shall be responsible for reporting to the
Secretary of Education and, if required by the provisions of the
Higher Education Act, offsetting against Interest Subsidy Payments
and Special Allowance Payments made to the Seller by the Secretary
of Education the entire amount of any origination fee which is
authorized to be charged by the Higher Education Act with respect
to the FFELP Loans sold hereunder. Additionally, the Seller shall,
as a condition to the purchase by the Purchaser of any FFELP Loan,
be required to pay to the Purchaser on the Loan Purchase Date the
amount of any such origination fee which has not at that time been
used to offset such Special Allowance Payments or Interest Subsidy
Payments, to the extent that the Special Allowance Payments or
Interest Subsidy Payments received by the Trustee in connection
with such FFELP Loans shall be affected. Seller shall continue due
diligence servicing in compliance with the Higher Education Act, at
Seller’s cost, up to the applicable Loan Purchase Date;
thereafter, servicing shall be paid for by, and shall be the
responsibility of, the Purchaser.
(d) Subject to the terms and
conditions of this Loan Purchase Agreement, Seller shall sell to
the Purchaser, by and through the Trustee, all Eligible Loans made
to the same Borrower(s) which are held by or on behalf of Seller
(serial loans).
(e) If Seller originates or
purchases a FFELP Loan which is a consolidation loan under
Section 428C of the Higher Education Act, and the proceeds of
such consolidation loan are used to repay the principal and
interest due on a FFELP Loan sold by Seller to the Purchaser
hereunder, then Seller shall rebate the premiums paid by the
Purchaser to Seller in connection with the purchase of said FFELP
Loan by paying to the Purchaser an amount equal to the same
percentage of the principal balance of said FFELP Loan then
outstanding as was originally paid by the Purchaser
therefor.
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SECTION III.
REPRESENTATIONS,
WARRANTIES,
COVENANTS AND AGREEMENTS OF THE
SELLER.
(a) With respect to FFELP Loans sold
on a Loan Purchase Date, the Seller hereby makes the
representations and warranties set forth in Exhibit E hereto as of
such Loan Purchase Date. Each representation, warranty,
certification, covenant and agreement contained in this Loan
Purchase Agreement shall survive the applicable Loan Purchase
Date.
(b) The Seller shall not organize
under the law of any jurisdiction other than the State under which
it is organized as of the Date of Issuance (whether changing its
jurisdiction of organization or organizing under an additional
jurisdiction) without giving 30 days prior written notice of such
action to the Purchaser. Before effecting such change, the Seller
shall prepare and file in the appropriate filing office any
financing statements or other statements necessary to continue the
perfection of the Purchaser’s interests in the FFELP
Loans.
SECTION IV.
CONDITIONS OF
PURCHASE.
The Purchaser’s obligation to
purchase and pay for the FFELP Loans hereunder by and through the
Trustee as of any applicable Loan Purchase Date shall be subject to
each of the following conditions precedent:
(a) All representations, warranties
and statements by or on behalf of the Seller contained in this Loan
Purchase Agreement shall be true on the applicable Loan Purchase
Date.
(b) Any notification to or approval
by the Secretary of Education or a Guarantee Agency required by the
Higher Education Act or a Guarantee Agreement as a condition to the
assignment of the FFELP Loans shall have been made or received and
evidence thereof delivered to the Purchaser.
(c) The entire interest of the
Seller in each FFELP Loan shall have been duly assigned by
endorsement in the form set forth in Exhibit C hereto, such
endorsement to be without recourse except as provided in
Section 6 hereof.
(d) Physical custody and possession
of the FFELP Loans (including all information and documentation
which is described in the Seller’s Closing Certificate as
specified in Exhibit B hereto) shall be transferred in the manner
directed by the Purchaser.
(e) The Purchaser shall receive an
opinion of the Seller’s counsel, dated as of the first Loan
Purchase Date covering such first sale and any other sale of FFELP
Loans, in form and substance satisfactory to the Purchaser and the
Trustee to the effect that (i)
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this Loan Purchase Agreement has
been duly authorized, executed and delivered by the Seller and
constitutes the legal, valid, binding and enforceable obligation of
the Seller, (ii) the blanket endorsement and bill of sale
required by this Loan Purchase Agreement have been duly authorized,
executed and delivered by the Seller, (iii) with respect to
all Insured Loans being acquired, the applicable Contract of
Insurance has been duly authorized, executed and delivered by the
Seller, (iv) with respect to all Guaranteed Loans being
acquired, the applicable Guarantee Agreement has been duly
authorized, executed and delivered by the Seller, and
(v) assuming the due execution and delivery thereof, each
FFELP Loan constitutes the legal, valid and binding obligation of
the Borrower (and of each endorser, if any) thereof, enforceable in
accordance with its terms, (vi) to the knowledge of the
Seller’s counsel, the execution and delivery of this Loan
Purchase Agreement, the consummation of the transactions therein
contemplated and compliance with the terms, conditions and
provisions of this Loan Purchase Agreement do not and will not
conflict with or result in a breach of any of the terms, conditions
or provisions of the charter, articles or bylaws of the Seller or
any agreement or instrument to which the Seller is a party or by
which it is bound or constitute a default thereunder, (vii) to
the knowledge of the Seller’s counsel, the Seller is not a
party to or bound by any agreement or instrument or subject to any
charter or other corporation restriction or judgment, order, writ,
injunction, decree, law, rule or regulation which may materially
and adversely affect the ability of the Seller to perform its
obligations under this Loan Purchase Agreement, (viii) no
consent, approval or authorization of any government or
governmental body, including, without limitation, the Federal
Deposit Insurance Corporation (“FDIC”), the Comptroller
of the Currency, the Board of Governors of the Federal Reserve
System or any state bank regulatory agency, is required in
connection with the consummation of the transactions contemplated
in this Loan Purchase Agreement, (ix) this Loan Purchase
Agreement shall constitute a security agreement under [Delaware]
law and shall be effective to create, in favor of the Purchaser, a
perfected valid security interest in the FFELP Loans subject to no
prior liens, (x) if the Purchaser and the Seller are
affiliates, that if the Seller became a debtor under the United
States Bankruptcy Code, 11 U.S.C. ss.ss. 101 et seq., as amended
(the “Bankruptcy Code”),
(1) Section 541(a)(1) of the Bankruptcy Code would not
apply to deem the FFELP sold by the Seller to the Purchaser and the
proceeds therefrom as property of the bankruptcy estate of the
Seller and therefore (2) Section 362(a) of the bankruptcy
Code would not apply to stay payment to the Purchaser or its
assignees, (xi) if the Seller is the parent of the Purchaser,
if the Seller became a debtor under the Bankruptcy Code, a court
would not disregard the separate identity of the Purchaser so that
the assets of the Seller would be consolidated with and become a
part of the Seller’s bankruptcy estate, and (xii) if the
Seller is a bank or savings association the deposits of which are
insured by the FDIC (a “Bank”) and the FDIC were
appointed as receiver or conservator of such Bank, a court would
not recharacterize the transfer and assignment of the FFELP Loans
to the Borrower as a pledge to secure a borrowing rather than a
sale of the FFELP Loans.
(f) Delivery by the Seller to the
Purchaser on or before the applicable Loan Purchase Date of the
following documentation: Seller’s Closing Certificate in the
form of Exhibit B hereto; blanket endorsement in the form of
Exhibit C hereto; bill of sale in the form of Exhibit D hereto;
UCC-1 Financing Statements evidencing the transfer from the Seller
to the Trustee on behalf of the Purchaser, and UCC lien searches
sufficiently in
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advance of the Loan Purchase Date so
as to permit review thereof by the Purchaser to its satisfaction,
if either or both are requested by the Purchaser or a party to the
Financing Agreement; and UCC termination statements or releases, if
any, to the extent necessary to release any security interest
granted by the Seller in any FFELP Loan.
(g) Delivery by the Seller to the
Purchaser, prior to the Loan Purchase Date, of a fully executed and
completed Loan Transfer Addendum substantially in the form of
Exhibit A hereto with respect to FFELP Loans referred to in the
bill of sale, and delivery of a Loan Transfer Schedule as required
in Section 2(a) hereof.
(h) Adequate funds are available to
the Purchaser to finance the purchase of FFELP Loans under this
Loan Purchase Agreement.
(i) Delivery by the Seller of a
closing certificate dated as of the date of the first sale of FFELP
Loans hereunder in form and substance satisfactory to the Purchaser
and Trustee and a certificate dated as of the date of the first
sale of FFELP Loans hereunder of the certificates attached to the
true sale/non-consolidation opinion and the perfection opinion of
Mayer, Brown, Rowe & Maw LLP, each dated as of
approximately even date therewith.
SECTION V.
REJECTION OF FFELP
LOANS.
(a) If (i) the Seller is unable
to make or furnish the representations and warranties required to
be made or furnished by it pursuant to this Loan Purchase Agreement
as to a FFELP Loan or (ii) the Purchaser determines that the
Seller is unable to fulfill one or more covenants or conditions of
this Loan Purchase Agreement as to a FFELP Loan, or (iii) the
Purchaser, in its reasonable judgment, deems that a FFELP Loan does
not comply with the terms and conditions of this Loan Purchase
Agreement or is not being delivered in compliance with such terms
and conditions, or (iv) the Purchaser, in its reasonable
judgment deems that a FFELP Loan is for any reason unacceptable to
it, then the Purchaser, within thirty days of the Loan Purchase
Date, may refuse to accept and pay for such FFELP Loan (or any
substitute FFELP Loan offered by the Seller in lieu
thereof).
(b) If the Purchaser rejects a FFELP
Loan, any such FFELP Loan shall be returned to the Seller by
registered mail (for repurchase pursuant to Section 6 hereof
if the student loan has previously been purchased by the
Purchaser), together with a letter identifying each returned FFELP
Loan and stating the basis for its return. The Purchaser shall
cause any FFELP Loan returned to the Seller which has been endorsed
to the Trustee to be endorsed by the Trustee to the Seller in the
form set forth in Exhibit F hereto.
The li
