Exhibit 99.3
SALE AGREEMENT MASTER
SECURITIZATION TERMS NUMBER 1000
These Sale Agreement Master
Securitization Terms Number 1000 (“Master Sale Terms”)
dated as of November 30, 2006 among SLM Funding LLC (in such
capacity, the “Seller”), SLM Student Loan Trust 2006-10
(the “Purchaser”), and 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 Seller under the Funding
Interim Trust Agreement dated as of November 30, 2006 between
the Seller and the Interim Eligible Lender Trustee, and Chase Bank
USA, National Association, not in its individual capacity but
solely as Eligible Lender Trustee on behalf of SLM Student Loan
Trust 2006-10 (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, legal title to such loans
is vested in the Interim Eligible Lender Trustee, as trustee for
the benefit of the Seller as the sole beneficiary;
WHEREAS, the Seller may desire to
sell its interest in such loans from time to time and the Purchaser
may desire to purchase such loans from the Seller;
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 Supplemental Purchase 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;
WHEREAS, from time to time, Seller
may substitute loans in accordance with these Master Terms;
and
WHEREAS, the Eligible Lender Trustee
is willing to hold legal title to, and serve as eligible lender
trustee with respect to, such loans for the benefit of the
Purchaser.
NOW, THEREFORE, in connection with
the mutual promises contained herein, the parties hereto agree as
follows:
SECTION 1.
TERMS
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 any
Additional Loans or Substituted Loans as the parties may execute
from time to time
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pursuant to these Master Sale Terms. The Initial
Sale Agreement and each Additional Sale 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 these Master Sale Terms, and shall be a separate agreement
among the Seller, the Purchaser, the Eligible Lender Trustee for
the benefit of the Purchaser, and the Interim Eligible Lender
Trustee for the benefit 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 Sale Agreement
and Bill of Sale, shall have the definitions set forth in Appendix
A to the Indenture dated as of November 1, 2006, 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 Bill of
Sale” means each document, in the form of Attachment D
hereto, executed by an authorized officer of the Interim Eligible
Lender Trustee for the benefit of the Seller and the Eligible
Lender Trustee for the benefit of the Purchaser which
shall: (i) set forth the list and certain terms of
(a) Additional Loans offered by the Seller and the Interim
Eligible Lender Trustee for the benefit 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 or (b) Substituted
Loans substituted by Seller, (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 for the benefit of the Seller in
the Additional Loans or Substituted Loans, as applicable, listed on
the related Additional Bill of Sale and (iii) certify that the
representations and warranties made by the Seller pursuant to
Sections 5(A) and (B) of these Master Sale Terms are true and
correct.
(C) “Additional Loans”
means the Eligible Loans evidenced by a Note or Notes sold from
time to time during the Supplemental Purchase 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 (which, with respect to any
Additional Loan purchased with
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funds on deposit in the Supplemental
Purchase Account, will be equal to 100% of the aggregate principal
balance of such Additional Loan, plus accrued interest to be
capitalized).
(E) “Additional Sale
Agreement” means each Additional Sale Agreement (including
the related Additional Bill of Sale, the related Blanket
Endorsement and any attachments thereto), substantially in the form
of Attachment C hereto (of which these Master Sale Terms form a
part by reference, provided that in the event of a substitution,
the form will be modified accordingly), to be executed by the
Seller and the Interim Eligible Lender Trustee (for the benefit of
the Seller), the Purchaser and the Eligible Lender Trustee (for the
benefit 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.
(F) “Bill of Sale” means
the Initial Bill of Sale or an Additional Bill 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 Initial Cutoff Date, Statistical Cutoff Date or any Subsequent
Cutoff Date, as applicable.
(J) “Eligible Loan”
means a Loan offered for sale or substituted by Seller under a Sale
Agreement which as of the Statistical Cutoff Date, in the case of
the Initial Loans, or as of the related Subsequent Cutoff Date, in
the case of any Additional Loan or Substituted Loan, is current or
not more past due than permitted under such Sale Agreement in
payment of principal or interest and which meets the following
criteria as of the Statistical Cutoff Date, in the case of the
Initial Loans, or as of the effective date of the related Bill of
Sale, in the case of any Additional Loan or Substituted
Loan:
(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;
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(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 Statistical Cutoff Date, in the case of the Initial Loans, or
in relation to any Additional Loan or Substituted Loan, the related
Subsequent Cutoff Date;
(viii) the last disbursement was
before the Statistical Cutoff Date, in the case of the Initial
Loans, or before the related Subsequent Cutoff Date, in the case of
any Additional Loan or Substituted Loan;
(ix) is supported by the following
documentation:
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1.
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loan
application, and any supplement thereto,
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2.
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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,
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3.
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evidence of
guarantee,
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4.
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any other
document and/or record which the Purchaser may be required to
retain pursuant to the Higher Education Act,
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5.
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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 Statistical Cutoff Date, in
the case of the Initial Loans, or, the related Subsequent Cutoff
Date, in the case of any Additional Loan or 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,
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6.
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if applicable,
documentation which supports periods of current or past deferment
or past forbearance,
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7.
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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
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letters and other correspondence
relating to due diligence processing,
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8.
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if applicable,
evidence of all requests for skip-tracing assistance and current
address of Borrower, if located,
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9.
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if applicable,
evidence of requests for pre-claims assistance, and evidence that
the Borrower’s school(s) have been notified, and
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10.
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if applicable,
a record of any event resulting in a change to or confirmation of
any data in the Loan file.
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(K) “Excess Distribution
Certificate” means the certificate, substantially in the form
of Exhibit A to the Trust Agreement, evidencing the right to
receive payments thereon as set forth in Sections 2.8(l) and 2.9(f)
of the Administration Agreement.
(L) “Initial Bill of
Sale” means the document, in the form of Attachment B hereto,
executed by an authorized officer of the Interim Eligible Lender
Trustee for the benefit of the Seller and the Eligible Lender
Trustee for the benefit of the Purchaser which shall (i) set
forth the applicable Initial Loans offered by the Seller and the
Interim Eligible Lender Trustee for the benefit 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 for the benefit of the Seller in
the Initial Loans listed on that Bill 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.
(M) “Initial Cutoff
Date” means November 30, 2006.
(N) “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.
(O) “Initial Payment”
means the dollar amount specified as the “Initial
Payment” in the applicable Sale Agreement.
(P) “Initial Sale
Agreement” means the Sale Agreement (including the related
Blanket Endorsement, Initial Bill of Sale and any attachments
thereto) substantially in the form of Attachment A hereto (of which
these Master Sale Terms form a part by reference), to be executed
by the Seller, the Interim Eligible Lender Trustee for the benefit
of the Seller, the Purchaser and the Eligible Lender Trustee for
the benefit 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.
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(Q) “Loan” means an
Initial Loan, Additional Loan or Substituted Loan, as applicable,
offered for sale and purchased, or substituted, pursuant to the
related Sale Agreement.
(R) “Loan Transmittal Summary
Forms” means the forms related to each Bill of Sale provided
to the Seller by the Purchaser and completed by the Seller which
list, by Borrower, (i) the Loans subject to the related Bill
of Sale and (ii) the outstanding Principal Balance and accrued
interest thereof as of the related Cutoff Date.
(S) “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.
(T) “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).
(U) “Purchase Date”
means with respect to the Initial Loans, the Closing Date, and with
respect to any Additional Loans or Substituted Loans, the date of
the related Additional Bill of Sale.
(V) “Purchase Price”
means the Initial Payment or the Additional Loans Purchase Price,
as applicable.
(W) “Purchased Loans”
means, with respect to each Sale Agreement, the Loans offered for
sale and purchased or substituted pursuant to such Sale
Agreement.
(X) “Sale Agreement”
means the Initial Sale Agreement or an Additional Sale Agreement,
as applicable.
(Y) “Secretary” means
the United States Secretary of Education or any
successor.
(Z) “SLM ECFC” means SLM
Education Credit Finance Corporation.
(AA) “SLM ECFC Master Purchase
Terms” means the Purchase Agreement Master Securitization
Terms Number 1000 dated November 30, 2006, among SLM ECFC, as
seller, SLM Funding LLC and the Interim Eligible Lender Trustee for
the benefit of SLM Funding LLC.
(BB) “Statistical Cutoff
Date” means October 23, 2006.
(CC) “Subsequent Cutoff
Date” means the date specified in the related Additional Sale
Agreement agreed to by the Seller and the Purchaser for the
purposes of determining the Principal Balance and accrued interest
to be capitalized, as applicable, for purposes of completing each
related Loan Transmittal Summary Form.
(DD) “Subsidized Consolidation
Loan” means a Loan for which the interest rate is governed by
Section 427A(a) or 427A(d) of the Higher Education
Act.
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(EE) “Substituted Loans”
means the Eligible Loans evidenced by a Note or Notes substituted
by the Seller, pursuant to the terms of Section 6(B) hereof,
from time to time as evidenced by an Additional Sale Agreement and
related documentation, together with any guarantees and other
rights relating thereto including, without limitation, Interest
Subsidy Payments and Special Allowance Payments. For all purposes
hereunder, except with respect to Purchase Price or as otherwise
set forth herein, Substituted Loans shall be treated as Additional
Loans.
(FF) “Trust Student
Loan” means any student loan that is listed on the Schedule
of Trust Student Loans on the Closing Date, plus any Additional
Loan, plus any Substituted Loan that is permissibly substituted for
a Trust Student Loan by the Depositor pursuant to Section 6(B)
of this Sale Agreement or pursuant to Section 6(B) of an
Additional Sale Agreement, or by the Servicer pursuant to
Section 3.5 of the Servicing Agreement, and shall, for all
purposes hereunder, also include any Add-On Consolidation Loan
whose principal balance is added to an existing Trust Student Loan
during the Consolidation Loan Add-On Period, 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.
(GG) “Unsubsidized
Consolidation Loan” means a Loan made pursuant to
Section 428H of the Higher Education Act.
(HH) “VG Funding” means
VG Funding, LLC.
(II) “VG Funding Master
Purchase Terms” means the Purchase Agreement Master
Securitization Terms Number 1000 dated November 30, 2006,
among VG Funding, LLC, as seller; Chase Bank USA National
Association, as interim eligible lender trustee for the benefit of
VG Funding; SLM Funding LLC; and the Interim Eligible Lender
Trustee for the benefit of the SLM Funding LLC.
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 Bill of
Sale, (ii) the payment by the Purchaser to the Seller of the
Initial Payment and (iii) the issuance by the Trust of the
Excess Distribution Certificate to the Seller. Upon consummation,
such sale and purchase shall be effective as of the date of the
Initial Bill 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.
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(B) Settlement of the Initial
Payment
On the date of the Initial Bill of
Sale, the Purchaser shall pay the Seller the Initial Payment by
wire transfer in immediately available funds to the account
specified by the Seller.
(C) Interest Subsidy and Special
Allowance Payments and Rebate Fees
The Seller shall be entitled to all
Interest Subsidy Payments and Special Allowance Payments on each
Initial Loan up to but not including the Initial Cutoff Date, and
shall be responsible for the payment of rebate fees, if any,
applicable to the Initial Loans accruing up to but not including
the Initial Cutoff Date. The Purchaser and the Eligible Lender
Trustee, for the benefit 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 Initial Cutoff Date.
SECTION
3.2 SALE/PURCHASE OF ADDITIONAL LOANS AND SUBSTITUTION OF
SUBSTITUTED LOANS
(A) Requirements Relating to
Additional Loans
From time to time during the
Supplemental Purchase Period, the Seller may, but shall not be
obligated to sell Eligible Loans to the Purchaser, and the
Purchaser may (but only to the extent that funds are available at
such time in the Supplemental Purchase Account) purchase such
Additional Loans from the Seller at the related Additional Loans
Purchase Price set forth in the related Additional Sale Agreement.
In addition, at any time the Seller may transfer Substituted Loans
to the Purchaser in satisfaction of any Loan repurchase obligations
hereunder. The sale and purchase (or substitution) of Additional
Loans (or Substituted Loans) pursuant to an Additional Sale
Agreement shall be consummated as set forth in this
Section 3.2.
(B) Consummation of Sale and
Purchase
During the Supplemental Purchase
Period with respect to the Additional Loans (and thereafter with
respect to any Substituted Loans), 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 Bill 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 Bill of Sale for an Additional Loan, the Purchaser shall
pay the Seller the related Purchase Price by wire transfer of
immediately
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available funds to the account
specified by the Seller (except that with respect to Substituted
Loans, the consideration for such Loans shall be the transfer from
the Purchaser to the Seller of ownership of the Loans being
substituted).
(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 each
Additional Loan or Substituted Loan 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
Purchased Loans subject to the related Bill of Sale accruing up to
but not including the related Subsequent Cutoff Date. The Purchaser
and the Eligible Lender Trustee on behalf of the Purchaser shall be
entitled to all Special Allowance Payments and Interest Subsidy
Payments accruing from the related Subsequent Cutoff Date with
respect to the Additional Loans or Substituted 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 Bill of Sale accruing from the date of the related
Subsequent Cutoff Date.
SECTION
3.3 GENERAL
(A) Special Programs
In consideration of the sale or
substitution of the Eligible Loans under these Master Sale Terms
and each Sale Agreement, the Purchaser agrees to cause the Servicer
to offer each Borrower of a Trust Student Loan sold or substituted
hereunder all special programs, whether or not in existence as of
the date of any related Sale Agreement, 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
or substituting Loans without regard to the effect of the special
programs. The Seller shall remit to the Purchaser any amounts
necessary to offset any effective yield reductions on any related
Trust Student Loans as set forth in Section 3.12 of the
Servicing Agreement.
(B) Intent of the Parties
With respect to each sale or
substitution 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, except for
U.S. federal, state and local income and franchise tax purposes,
the transfer and assignment constitute a valid sale of such Loans
from the Seller to the Eligible Lender Trustee or a valid
substitution, 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.
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SECTION 4. CONDITIONS PRECEDENT TO SALE AND
PURCHASE OR SUBSTITUTION
Any purchase or substitution of
Loans pursuant to these Master Terms is subject to the following
conditions precedent being satisfied (and SLM ECFC and VG Funding,
by accepting payment, shall be deemed to have certified that all
such conditions are satisfied on the date of such
purchase):
(A) Activities Prior to a Sale or
Substitution
Following the execution of a Sale
Agreement, the Seller shall provide any assistance requested by the
Purchaser in determining that all required documentation on the
related Loans is present and correct.
(B) Continued Servicing
The Seller shall service, or cause
to be serviced, all Loans as required under the Higher Education
Act until the date of the related Bill of Sale.
(C) Bill of Sale/Loan Transmittal
Summary Form
The Seller shall deliver to the
Purchaser:
(i) a Bill 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, (b) has been accepted by the Purchaser as set
forth thereon, selling, assigning and conveying 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 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 Bill of Sale;
and
(ii) the Loan Transmittal Summary
Form, attached to the Bill of Sale, identifying each of the
Eligible Loans which is the subject of the Bill of Sale and setting
forth the unpaid Principal Balance of each such Loan.
(D) Endorsement
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 Loans to the Eligible Lender Trustee for the benefit of the
Purchaser with the form of endorsement provided for in the Initial
Sale Agreement with respect to the Initial Loans or any Additional
Sale Agreement with respect to any Additional Loans or Substituted
Loans.
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At the direction of and in such form
as the Purchaser may designate, the Seller also agrees to
individually endorse any Eligible Loan as the Purchaser may request
from time to time.
(E) Officer’s
Certificate
The Seller shall furnish to the
Purchaser, with each Bill of Sale provided in connection with each
sale or substitution of Loans pursuant to these Master Sale Terms,
an Officer’s Certificate, dated as of the date of such Bill
of Sale.
(F) Loan Transfer
Statement
Upon the Purchaser’s request,
the Seller shall deliver to the Purchaser one (1) or more Loan
Transfer Statements (Department Form OE 1074 or its equivalent)
provided by the Purchaser, executed by the Interim Eligible Lender
Trustee for the benefit of the Seller and dated the date of the
related Bill of Sale. The Seller agrees that the Purchaser and the
Eligible Lender Trustee may use the related Bill of Sale, including
the Loan Transmittal Summary Form attached to that Bill 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 for the
benefit of the Purchaser of the Loans listed on the related Bill of
Sale.
(G) Power of Attorney
The Seller and the Interim Eligible
Lender Trustee hereby grant to the Eligible Lender Trustee, for the
benefit of and on behalf of the Purchaser, an irrevocable power of
attorney, which power of attorney is coupled with an interest, to
individually endorse or cause to be individually endorsed in the
name of the Seller and the 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 on behalf of the
Purchaser and to transfer or to cause to be transferred any Note
from SLM ECFC, VG Funding or the Servicer to the Eligible Lender
Trustee or the Indenture Trustee or any other custodian on behalf
of either of them.
(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 the Eligible Lender Trustee on behalf of the
Trust.
(I) Sufficient Funds
With respect to the Additional
Loans, the amount on deposit in the Supplemental Purchase Account
shall be greater than or equal to the related Additional Loans
Purchase Price.
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SECTION 5. REPRESENTATIONS AND WARRANTIES OF
SELLER AND ELIGIBLE LENDER TRUSTEE
(A) General
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
or Substituted Loans substituted by it, as of the related Purchase
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 Seller are duly organized and existing under the
laws of their respective governing jurisdictions;
(iii) 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 Bill of Sale and any Additional Bill of Sale;
(iv) 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; and
(v) The Seller has the right to
cause the Servicer, SLM ECFC or VG Funding, as applicable, to
modify, discontinue or terminate any borrower benefit incentive
program at any time and for any reason.
(B) Particular
The Seller represents and warrants
to the Purchaser as to the Purchased Loans purchased by the
Purchaser or substituted by the Seller under the Initial Sale
Agreement with respect to the Initial Loans, or each Additional
Sale Agreement with respect to any Additional Loans or Substituted
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, or as of the date otherwise
noted:
(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,
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defenses, or counterclaims have been
asserted or threatened with respect to those Loans;
(ii) These Master 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, 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
either “Payment Intangibles” or “Accounts”
within the meaning of the applicable UCC and are within the
coverage of Sections 432(m)(1)(E) and 439(d)(3) of the Higher
Education Act;
(iv) As of the Statistical Cutoff
Date, in the case of the Initial Loans, or as of the related
Subsequent Cutoff Date, in the case of any Additional Loan or
Substituted Loan, 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,
substitute and repurchase the Purchased Loans; and the sale,
assignment and transfer of such Loans is or, in the case of a Loan
repurchase or substitution by the Seller and or the 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 Interim Eligible Lender
Trustee or the Seller is a party or by which the Interim Eligible
Lender Trustee or the Seller or its property is bound, or
constitute a default (or an event which could constitute a default
with the passage of time or notice or both) thereunder;
(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 Interim
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 Lender Trustee for the benefit of the Purchaser as an
incident to the purchase of
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each Loan; and all premiums due and
payable to such Guarantor shall have been paid in full as of the
date of the related Bill 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
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 past due as of the Statistical Cutoff
Date, with respect to the Initial Loans, and the Subsequent Cutoff
Date, as to the Additional Loans or Substituted Loans, 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, th
