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Exhibit 10.4

 

STUDENT LOAN PURCHASE AGREEMENT

among

NATIONAL EDUCATION LOAN NETWORK, INC. ,
as Seller,

UNION BANK AND TRUST COMPANY ,
as Seller ELT,

NELNET SUPERCONDUIT FUNDING, LLC ,
as Purchaser,

and

ZIONS FIRST NATIONAL BANK ,
as Purchaser ELT

Dated as of May 13, 2009

 

 

 


 

TABLE OF CONTENTS

 

 

 

 

 

 

 

Page

 

 

 

 

 

 

SECTION 1. TERMS

 

 

1

 

 

 

 

 

 

SECTION 2. COMMITMENT TO LEND UNDER FFELP

 

 

2

 

 

 

 

 

 

SECTION 3. DEFINITIONS

 

 

2

 

 

 

 

 

 

SECTION 4. TRANSFER OF LOANS

 

 

5

 

 

 

 

 

 

SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS

 

 

7

 

 

 

 

 

 

SECTION 6. REPURCHASE

 

 

8

 

 

 

 

 

 

SECTION 7. OBLIGATION TO REMIT SUBSEQUENT PAYMENTS AND FORWARD COMMUNICATIONS

 

 

8

 

 

 

 

 

 

SECTION 8. CONTINUING OBLIGATION OF THE SELLER

 

 

9

 

 

 

 

 

 

SECTION 9. LIABILITY OF THE SELLER; INDEMNITIES

 

 

9

 

 

 

 

 

 

SECTION 10. LIMITATION ON LIABILITY OF ELIGIBLE LENDER TRUSTEES

 

 

11

 

 

 

 

 

 

SECTION 11. EXPENSES

 

 

12

 

 

 

 

 

 

SECTION 12. SURVIVAL OF COVENANTS

 

 

12

 

 

 

 

 

 

SECTION 13. NOTICES

 

 

12

 

 

 

 

 

 

SECTION 14. FORM OF INSTRUMENTS

 

 

12

 

 

 

 

 

 

SECTION 15. WAIVERS AND AMENDMENTS

 

 

13

 

 

 

 

 

 

SECTION 16. NON-PETITION COVENANTS

 

 

13

 

 

 

 

 

 

SECTION 17. GOVERNING LAW

 

 

14

 

 

 

 

 

 

SECTION 18. SUCCESSORS AND ASSIGNS

 

 

14

 

 

 

 

 

 

SECTION 19. INTENDED THIRD PARTY BENEFICIARIES

 

 

14

 

 

 

 

 

 

SECTION 20. TAX TREATMENT

 

 

14

 

 

 

 

 

 

SECTION 21. SUBMISSION TO JURISDICTION

 

 

14

 

 

 

 

 

 

 

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ATTACHMENTS

 

 

 

 

 

Attachment A:

 

Form of Bill of Sale

 

 

 

Attachment B:

 

Form of Blanket Endorsement

 

 

 

Attachment C-1:

 

Seller and Seller ELT Representations and Warranties — General

 

 

 

Attachment C-2:

 

Seller and Seller ELT Representations and Warranties — Loans

 

 

 

Attachment C-3:

 

Seller Representations and Warranties — Additional

 

 

 

Attachment C-4:

 

Purchaser ELT Representations and Warranties

 

 

 

Attachment D-1:

 

Seller Covenants

 

 

 

Attachment D-2:

 

Seller ELT Covenants

 

 

 

Attachment D-3:

 

Purchaser Covenants

 

 

 

Attachment D-4:

 

Purchaser ELT Covenants

 

 

 

Attachment E:

 

Notice Addresses

 

 

 

Attachment F:

 

Form of Subordinated Credit Agreement

 

 

 

Attachment G:

 

Form of Annual Statement of Compliance

 

 


 

STUDENT LOAN PURCHASE AGREEMENT

This Student Loan Purchase Agreement (this “ Agreement ”), dated as of May 13, 2009 (the “ Closing Date ”), among NATIONAL EDUCATION LOAN NETWORK, INC., a Nevada corporation (in such capacity, the “ Seller ”), UNION BANK AND TRUST COMPANY, a Nebraska banking corporation, not in its individual capacity but solely as eligible lender trustee for the benefit of the Seller and its assigns (in such capacity, the “ Seller ELT ” and together with the Seller, the “ Seller Parties ”), NELNET SUPERCONDUIT FUNDING, LLC, a Delaware limited liability company (the “ Purchaser ”), and ZIONS FIRST NATIONAL BANK, a national banking association, not in its individual capacity but solely as eligible lender trustee for the benefit of the Purchaser and its assigns (in such capacity, the “ Purchaser ELT ” and together with the Purchaser, the “ Purchaser Parties ”), shall be effective upon execution by the parties hereto. For all purposes involving the holding or transferring of legal title to the Loans, any references to the Seller herein mean the Seller ELT and any references to the Purchaser herein mean the Purchaser ELT.

PRELIMINARY STATEMENTS

WHEREAS, the Seller is the owner of certain Student Loans;

WHEREAS, legal title to such Student Loans is vested in the Seller ELT, as trustee for the benefit of the Seller as the sole beneficiary;

WHEREAS, from time to time following the Closing Date, the Seller may desire to sell and/or transfer as a capital contribution, and the Purchaser may desire to purchase and/or accept as a capital contribution, such Student Loans in accordance with this Agreement and the related Bill of Sale;

WHEREAS, the Purchaser ELT is willing to hold legal title to, and serve as eligible lender trustee with respect to, Student Loans sold or contributed to the Purchaser hereunder for the benefit of the Purchaser; and

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements herein contained, the parties hereto agree as follows:

SECTION 1. TERMS

This Agreement establishes the terms under which the Seller may, in its sole discretion, sell and/or contribute and the Purchaser may, in its sole discretion, acquire the Student Loans (and all obligations of the Borrowers thereunder) specified in each Bill of Sale from time to time executed and delivered pursuant to the terms of this Agreement. Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein or in any other Transaction Document) and (ii) any reference herein to any Person shall be construed to include such Person’s permitted successors and assigns. Each Bill of Sale shall be substantially in the form of Attachment A hereto, incorporating by reference the terms of this Agreement, and shall be a separate agreement among the Seller Parties and the Purchaser Parties with respect to the Loans covered by the terms of such Bill of Sale. If the terms of a Bill of Sale conflict with the terms of this Agreement, the terms of such Bill of Sale shall supersede and govern.

 

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SECTION 2. COMMITMENT TO LEND UNDER FFELP

By its execution of this Agreement, and upon each Transfer hereunder, the Seller represents to the Department that: (i) during a twenty-four (24) month period commencing with the month in which it Transfers Loans pursuant to this Agreement, it will originate and disburse Stafford Loans or PLUS Loans, or will acquire Stafford Loans or PLUS Loans made by other lenders within the same twenty-four (24) month period, and that the combined amount of such originated and acquired Loans (other than Excluded Loans) shall equal the Commitment Amount for such month; (ii) if the Seller participates solely as a secondary market purchaser and does not originate and disburse Stafford Loans or PLUS Loans in its own right but rather acquires Stafford and PLUS Loans from others, that it will, during the term of this Agreement, acquire Stafford Loans or PLUS Loans first disbursed on or after July 1, 2009 and that have experienced a final disbursement on or before September 30, 2011; (iii) within the twelve (12) months following the month in which it Transfers Loans pursuant to this Agreement, it will conduct activities constituting a continued participation in the FFELP, including but not limited to servicing a pre-existing FFELP loan portfolio, purchasing additional FFELP student loans, or maintaining a platform from which the Seller may originate FFELP student loans; and (iv) not later than twenty-seven (27) months following the month in which it first Transfers Student Loans pursuant to this Agreement (and every six months thereafter until each Commitment Amount has been satisfied, each a “ Commitment Reporting Date ”), it will provide a report to the Department, the Manager and the Conduit Administrator certifying that it has originated and/or acquired FFELP student loans in an amount equal to or exceeding the Commitment Amounts required to be satisfied prior to such Commitment Reporting Date; provided, that, the Seller may satisfy the commitment set forth in this Section 2 by arranging to have another Eligible Lender assume such commitment, in whole or in part, as evidenced by a commitment letter, in form satisfactory to the Department, between such Eligible Lender and the Department, with a copy to the Conduit Administrator.

For the purposes of confirming compliance with the Seller’s commitment above, the Seller must, on an annual basis, provide annual audited financial statements conducted in accordance with the standards for audits issued by the Department’s Office of Inspector General and a report to the Department setting forth the activities conducted by the Seller with the Net Cash Proceeds received through the sale of Loans under this Agreement, the dollar value and number of loans originated and/or acquired, and detailing any other uses of Net Cash Proceeds received through the sale of Loans under this Agreement and the amounts expended on such “other uses”. In addition, in connection with the Seller’s commitment above, Seller agrees to cooperate with the Conduit Administrator in the preparation of the notices to be provided to the Department pursuant to Article VIII of the Funding Note Purchase Agreement.

SECTION 3. DEFINITIONS

Except as otherwise specified herein or as the context may otherwise require, each capitalized term used but not otherwise defined herein has the meaning ascribed thereto in the Funding Note Purchase Agreement.

Benefit Plan ” means any employee benefit plan as defined in Section 3(3) of ERISA in respect of which the Seller or any ERISA Affiliate is, or at any time during the immediately preceding six years was, an “employer” as defined in Section 3(5) of ERISA.

Bill of Sale ” means each document in the form of Attachment A hereto and executed by an authorized officer of each of the Seller Parties and the Purchaser Parties, which shall sell, assign and convey all rights of the Seller Parties (except as provided therein) with respect to the Student Loans sold thereunder.

Blanket Endorsement ” means a blanket endorsement in substantially the form included as Attachment B hereto.

Cash Proceeds ” is defined in the definition of Net Cash Proceeds in this Agreement.

Collateral Security Interest ” is defined in Section 4(e) hereof.

Commitment Amount ” means, with respect the Seller and all sales or pledges of Student Loans to the Purchaser during a calendar month, an amount equal to the product of (a) the Net Cash Proceeds received by the Seller in such month, multiplied by (b) the applicable Market Adjustment.

 

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Commitment Reporting Date ” is defined in Section 2 hereof.

Deemed Liabilities ” means, with respect to the Seller and Student Loans not pledged to secure indebtedness of the Seller, an amount equal to the product of (a) the Cash Proceeds for such Student Loans and (b) the percentage equivalent of a fraction, the numerator of which equals the total liabilities and the denominator of which equals the total liabilities and stockholder’s equity, in each case calculated in accordance with generally accepted accounting principles and reflected in the most recent consolidated quarterly financial statements for the Seller (or the Seller’s ultimate parent to the extent financial statements are not available for the Seller).

Department Put Option ” means the option of the Conduit Lender and the Conduit Administrator to require the Department to purchase Student Loans subject to the terms and conditions in the Department Put Agreement.

ERISA Affiliate ” means (a) any corporation which is a member of the same controlled group of corporations (within the meaning of Section 414(b) of the Code) as the Seller, (b) a trade or business (whether or not incorporated) under common control (within the meaning of Section 414(c) of the Code) with the Seller, or (c) a member of the same affiliated service group (within the meaning of Section 414(m) of the Code) as the Seller, any corporation described in clause (a) above or any trade or business described in clause (b) above or other Person which is required to be aggregated with the Seller pursuant to regulations promulgated under Section 414(o) of the Code.

Excluded Loan ” means any Loan (a) Transferred pursuant to this Agreement or pledged pursuant to the Funding Note Purchase Agreement, (b) sold to the Department in connection with the Loan Purchase Commitment Program, and (c) with respect to which participation interests are sold to the Department in connection with the Loan Participation Purchase Program.

Funding Note Purchase Agreement ” means that certain Funding Note Purchase Agreement, dated as of May 13, 2009, among the Purchaser, as the funding note issuer, the Purchaser ELT, as the eligible lender trustee, National Education Loan Network, Inc., as the SPV administrator, The Bank of New York Mellon, as the conduit administrator, the securities intermediary and the conduit lender eligible lender trustee, National Education Loan Network, Inc., as master servicer, Nelnet, Inc., as sponsor, BMO Capital Markets Corp., as the manager, and Straight-A Funding, LLC, as the conduit lender, as amended, amended and restated, supplemented or otherwise modified from time to time.

Loan ” means a Student Loan sold to the Purchaser pursuant to a Bill of Sale.

Loan Transfer Statement ” means Department Form OE 1074 or its equivalent.

Market Adjustment ” means, as of any date of determination and any Commitment Amount, the lesser of (a) one (1) and (b) the percentage equivalent of a fraction, (i) the numerator of which is the annualized aggregate original principal balance of all Student Loans originated by all Eligible Lenders (as shown on the Department’s NSLDS system) during the period commencing with the month immediately following the month of the applicable Transfer of Student Loans to the Purchaser and ending at the end of the twenty-fourth month after such Transfer (or at the end of the preceding month if less than twenty-four months have elapsed since such Transfer), and (ii) the denominator of which is the aggregate original principal balance of all Student Loans originated by all Eligible Lenders (as shown on the Department’s NSLDS system) during the twelve month period ending with the month immediately preceding the month of the applicable Transfer of Student Loans to the Purchaser.

Material Adverse Effect ” means a material adverse effect upon the ability of the Seller to perform its obligations under any Transfer Agreement.

Multiemployer Plan ” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA which is or was at any time during the current year or the immediately preceding six years contributed to by the Seller or any ERISA Affiliate.

 

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Net Cash Proceeds ” means an amount equal to (a) the cash proceeds received by the Seller from the Transfer of Student Loans to the Purchaser (including cash proceeds received from the sale and/or pledge of Additional Securities) together with any reserves or expenses withheld or paid from the proceeds of the sale of the related Securities (“ Cash Proceeds ”), minus (b) the amount paid by the Seller in connection with such Transfer of the Student Loans to repay indebtedness secured by the Student Loans or, with respect to any Student Loans that are not pledged to secure indebtedness of the Seller, the Deemed Liabilities allocated to such Student Loans.

Purchase Price ” means, with respect to all Loans subject to a Bill of Sale, the dollar amount specified therein representing the aggregate purchase price therefor.

Related Security ” means, with respect to any Loan, any guaranties and other rights and security relating thereto including, without limitation, the insurance interest of the holder of such Loan under the FFELP, Interest Subsidy Payments, Special Allowance Payments and related assets, whether the same constitute accounts, instruments, chattel paper, investment property or general intangibles, all documents, books, records, Promissory Notes and other information (including without limitation, computer programs, tapes, disks, punch cards, data processing software and related property and rights) maintained with respect to such Loan, supporting obligations, liens securing any of the foregoing, amounts and claims and other rights under insurance policies relating to the foregoing and all related accounts, general intangibles, instruments, investment property, documents, chattel paper, goods, money, letters of credit, letter of credit rights, certificates of deposit, deposit accounts and all other related property and interests in property, and all proceeds of the foregoing, in each case whether now existing or hereafter arising.

Repurchase Amount ” is defined in Section 6(a) hereof.

Repurchase Event ” means the occurrence of any of the following events or circumstances which, if the related Repurchase Amounts are payable to the Department, shall be determined by the Department in its sole, good faith discretion:

(i) any representation or warranty made or furnished by the Seller Parties pursuant to this Agreement shall prove to have been materially incorrect when made;

(ii) a Student Loan is not an Eligible Loan on its Grant Date; or

(iii) a Student Loan shall be subject to an Adverse Claim created by or through the Seller.

Repurchase Event Fees and Expenses ” is defined in Section 6(a) hereof.

Sale Termination Date ” means the earliest to occur of (i) July 1, 2010 and (ii) the occurrence of an Event of Default.

Security Release Certification ” means any release of lien documentation executed by the applicable lienholder with respect to one or more Loans in a form reasonably acceptable to the Department, the Purchaser and the Conduit Administrator.

Seller Indemnified Amounts ” is defined in Section 9 hereof.

Seller Indemnified Party ” is defined in Section 9 hereof.

Servicer ” means, with respect to any Loan, the servicer of such Loan specified on the Loan Transmittal Summary Form incorporated into the related Bill of Sale.

Subordinated Credit Facility ” means a subordinated credit facility of the Purchaser evidenced by a revolving credit agreement substantially in the form attached hereto as Attachment F .

 

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Transfer ” is defined in Section 4(a) hereof.

Transfer Agreement ” means this Agreement or a Bill of Sale.

Transfer Date ” means, with respect to each Loan, the date of the related Bill of Sale.

Transfer Document ” is defined in Section 15 hereof.

SECTION 4. TRANSFER OF LOANS

(a)  Consummation of Transfer . From time to time prior to the Sale Termination Date, the Seller may offer Student Loans as selected in accordance with the Loan Sale Allocation Criteria and the Related Security for sale and/or as a capital contribution to the Purchaser and the Purchaser may accept such offer pursuant to the terms of a Bill of Sale (each, a “ Transfer ” or such other conjugation thereof as is required by the context). Each Transfer shall, subject to the terms and conditions set forth therein, be consummated upon satisfaction of the conditions precedent set forth in Section 4(d) below. Upon consummation, such Transfer shall be effective as of the Transfer Date.

(b)  Interest Subsidy and Special Allowance Payments . The Seller Parties shall be entitled to all Interest Subsidy Payments and Special Allowance Payments on the Loans sold hereunder up to but not including the related Transfer Date, and shall be responsible for the payment of fees and other amounts due to the Department, if any, including, but not limited to, Negative Special Allowance Payments, applicable to Student Loans sold hereunder accruing from the date upon which the applicable Student Loans were sold pursuant to this Agreement, up to but not including the related Transfer Date. The Department shall be entitled to all interest and other payments on the Student Loans sold under the Department Put Agreement that accrues on and after the related Department Put Date.

(c)  Settlement of Purchase Price . The Purchase Price for Loans and Related Security Transferred hereunder shall be equal to the fair market value of such Loans based on current market conditions at the time of such Transfer. The Purchase Price shall be paid as follows:

(i) first, to the extent the Purchaser has funds available for such purpose, the Purchase Price shall be paid by the Purchaser to the Seller by wire transfer of immediately available funds to the account specified therefor in the related Bill of Sale; and

(ii) second, the remaining portion of the Purchase Price, if any, shall be deemed to be a capital contribution by the Seller to the Purchaser in respect of the Seller’s 100% membership interest in the Purchaser.

Funds available to the Purchaser pursuant to clause (i) shall include the Net Cash Advance Amount and may also include borrowings made by the Purchaser under a Subordinated Credit Facility. The Purchaser may borrow funds under such Subordinated Credit Facility only if all of the following conditions are satisfied:

(i) the Purchaser’s total assets exceed its total liabilities;

(ii) the Purchaser’s cash on hand is sufficient to satisfy all of its current obligations (other than any amounts due under such Subordinated Credit Facility and the obligation to pay the outstanding Funding Note);

(iii) the Purchaser is adequately capitalized at a commercially reasonable level;

(iv) the Purchaser has determined that its financial capacity to meet its financial commitment under such Subordinated Credit Facility is adequate; and

 

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(v) the principal amount outstanding under such Subordinated Credit Facility, together with interest owing thereon, does not exceed the excess of the aggregate Collateral Value of all Financed Student Loans, over the aggregate amount of all Obligations.

(d)  Conditions Precedent to Transfer . Each Transfer is subject to satisfaction of the following conditions precedent (and the Seller, by accepting payment of the Purchase Price, shall be deemed to have certified that all such conditions (other than the authority of any Purchaser Party) are satisfied on the date of such Transfer):

(i) Execution and Delivery of Bill of Sale . The related Bill of Sale shall have been executed and delivered (with a copy to the Conduit Administrator and the Department) by a duly authorized officer of each of the Seller Parties and the Purchaser Parties and shall include a complete Loan Transmittal Summary Form.

(ii) Endorsement . The Seller Parties shall have (A) delivered to the Purchaser, with a copy to the Conduit Administrator and the Department, a Blanket Endorsement transferring to the Purchaser ELT the entire interest (except as set forth in the related Bill of Sale) of the Seller Parties in the Loans to be Transferred or (B) individually endorsed each of the related Promissory Notes at the direction of, and in such form as has been requested by, the Purchaser or the Department. The Seller Parties shall have delivered any UCC-3 financing statements in a form ready to be filed and/or other required Security Release Certifications as may be necessary to terminate any security interest related to the Loans listed on the related Bill of Sale.

(iii) Loan Transfer Statement . If the Purchaser has provided the Seller with one or more Loan Transfer Statements with respect to the Loans to be Transferred, the Seller shall have executed and delivered, and shall have caused the Seller ELT to execute and deliver, to the Purchaser and the Department such Loan Transfer Statement(s) dated as of the Transfer Date. The Seller agrees that the Purchaser Parties may use the related Bill of Sale, including the Loan Transmittal Summary Form attached thereto, in lieu of a Loan Transfer Statement, as official notification to the applicable Guarantors of the assignment by the Seller ELT to the Purchaser ELT of the Loans listed on the related Bill of Sale.

(iv) Payment of Purchase Price . The Purchaser shall have paid the related Purchase Price (other than any portion of the Purchase Price deemed to be a capital contribution) in accordance with Section 4(c) hereof.

(v) Servicing Agreement . A copy of the fully executed Servicing Agreement relating to the Loans being transferred on such Transfer Date, to the extent not delivered in connection with a prior Transfer, shall be delivered to the Department and the Manager.

(vi) Loan Data Schedule . The Seller shall deliver the Loan Data Schedule to the Department no later than the third (3 rd ) Business Day prior to the Transfer Date.

(vii) Notice of Intent to Participate . The Seller shall have executed and delivered a Notice of Intent to Participate to the Department with a copy to the Conduit Administrator.

(viii) Trust Receipt . The related Subcustodian shall be in possession of the Loan Documents with respect to the Student Loans being Transferred to the Purchaser Parties on the related Transfer Date and such Subcustodian shall have delivered a certification in the form specified in the related Servicing Agreement to the Conduit Administrator.

(ix) Power of Attorney . The Seller shall have executed and delivered the Power of Attorney in favor of the Conduit Lender and the Conduit Administrator.

 

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(e)  Grant of Collateral Security Interest . Each of the Seller Parties and the Purchaser Parties, by its acceptance of the terms hereof, hereby acknowledges its intent that each Transfer be, and be construed as, a true sale or contribution of Loans from the Seller Parties to the Purchaser Parties. However, in the event that notwithstanding the intention of the parties, any Transfer is deemed to be a transfer for security, then the Seller Parties hereby grant to the Purchaser Parties, as of such Transfer Date, a continuing security interest (the “ Collateral Security Interest ”) in (i) all Loans described in the related Bill of Sale, (ii) all Related Security with respect to such Loans and (iii) all proceeds of such Loans and Related Security to secure a loan in an amount equal to the Purchase Price for such Loans; provided such Collateral Security Interest shall not include any right to make subsequent loans to a Borrower under any Promissory Note included in the Collateral Security Interest or any disbursement under a Promissory Note included in the Collateral Security Interest to the extent not constituting a Loan. Additionally, in the event that any Transfer is deemed to be a transfer for security, notwithstanding the intention of the parties, each of the Seller and the Purchaser hereby represents and warrants, as to itself, that each remittance of the Purchase Price (other than any portion of the Purchase Price deemed to be a capital contribution) by the Purchaser to the Seller hereunder will have been (i) the incurrence of a debt incurred in the ordinary course of business or financial affairs of the Seller and the Purchaser and (ii) made in the ordinary course of business or financial affairs of the Seller and the Purchaser.

(f)  Intent of the Parties . With respect to each Transfer, it is the intention of the Seller Parties and the Purchaser Parties, and the Seller hereby warrants that, except for United States federal, state and local income and franchise tax purposes, such Transfer constitutes a true sale of Loans from the Seller Parties to the Purchaser Parties and that the beneficial interest in, and title to, such Loans will not be part of either Seller Party’s estate in the event of the bankruptcy of such Seller Party or the appointment of a receiver with respect to such Seller Party.

(g)  Power of Attorney . The Seller Parties hereby grant to the Purchaser ELT, for the benefit of the Purchaser, an irrevocable power of attorney, which power of attorney is assignable to the Department and coupled with an interest, to individually endorse or cause to be individually endorsed in the name of the Seller Parties any Loan to evidence the Transfer of such Loan to the Purchaser ELT and to transfer or cause to be transferred any Promissory Note from the Seller Parties to the Conduit Administrator or a Subcustodian on its behalf.

SECTION 5. REPRESENTATIONS, WARRANTIES AND COVENANTS

(a)  Representations and Warranties of the Seller with respect to the Seller . The Seller, and to the extent expressly required in Attachment C-1 , the Seller ELT, makes each of the representations and warranties set forth on Attachment C-1 and Attachment C-3 hereto to the Purchaser Parties and the Department as of the Closing Date and each Transfer Date.

(b)  Representations and Warranties of the Seller with respect to the Loans . With respect to each Loan Transferred by the Seller pursuant to a Bill of Sale, the Seller, and to the extent expressly required in Attachment C-2 , the Seller ELT, makes each of the representations and warranties set forth on Attachment C-2 hereto to the Purchaser Parties and the Department as of the related Transfer Date.

(c)  Representations and Warranties of the Purchaser . The Purchaser makes each of the representations and warranties set forth on Attachment C-4 hereto to the Department as of the Closing Date and each Transfer Date.

(d)  Representations and Warranties of the Purchaser ELT . The Purchaser ELT makes each of the representations and warranties set forth on Attachment C-4 hereto to the Purchaser and the Department as of the Closing Date and each Transfer Date.

(e)  Covenants of the Seller . The Seller makes each of the covenants set forth on Attachment D-1 hereto with the Purchaser Parties and the Department.

 

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(f)  Covenants of the Seller ELT . The Seller ELT makes each of the covenants set forth on Attachment D-2 hereto with the Purchaser Parties and the Department.

(g)  Covenants of the Purchaser . The Purchaser makes each of the covenants set forth on Attachment D-3 hereto with the Purchaser ELT and the Department.

(h)  Covenants of the Purchaser ELT . The Purchaser ELT makes each of the covenants set forth on Attachment D-4 hereto with the Purchaser and the Department.

SECTION 6. REPURCHASE

(a)  Repurchase of Student Loans; Repurchase . Upon the occurrence of a Repurchase Event with respect to any Student Loan, if the circumstances giving rise to such Repurchase Event shall not be cured within 30 days after written demand by the Purchaser, the Conduit Administrator or the Department, on or prior to such 30 th day, the Seller shall be required to remit to the Funding Note Issuer Collection Account an amount equal to the unpaid Principal Balance of each related Student Loan, plus accrued and unpaid interest thereon (to the extent not included in the Principal Balance), and, if applicable, Negative Special Allowance Payments with respect to such Student Loan from the related Transfer Date to and including the date of repayment in connection with such Repurchase Event (such amount, the “ Repurchase Amount ”); provided that if a Department Put Event shall have occurred with respect to such Student Loan, after the Revocation Date for such Student Loan, the Repurchase Amount shall be paid to the Department. The Seller shall reimburse the Purchaser and all Affected Parties for all attorneys’ fees, legal expenses, court costs, servicing fees or other fees and expenses incurred by the Purchaser and all Affected Parties in connection with each Student Loan for which the Seller is required to pay a Repurchase Amount pursuant to this Section 6 , including any amount required to be paid by the Funding Note Issuer pursuant to Section 1.03(g) of the Funding Note Purchase Agreement (collectively, “ Repurchase Event Fees and Expenses ”).

All of the rights of the Seller Parties under this Agreement with respect to any Student Loans for which the Department Put Option is exercised shall be assigned to the Department and after the Department Put Date with respect to a Student Loan, the Department shall have the right to enforce all repurchase and other rights against the Seller Parties.

(b)  Release of Lien Upon Purchase of Student Loan . The Purchaser hereby agrees to reconvey to the Seller and release its lien on and security interest in any Student Loan for which the Seller has remitted to the Funding Note Issuer Collection Account or the Department, as required by Section 6(a) , an amount equal to the Repurchase Amount and paid all other Repurchase Event Fees and Expenses payable pursuant to Section 6(a) .

SECTION 7. OBLIGATION TO REMIT SUBSEQUENT PAYMENTS AND FORWARD COMMUNICATIONS

(a) Any payment received by the Seller of amounts accrued on any Loan after the related Cut-off Date, which payment is not reflected in the related Loan Transmittal Summary Form, shall be received by the Seller in trust for the account of the Purchaser and the Seller hereby disclaims any title to or interest in any such amounts. Within two (2) Business Days following the date of receipt of good funds, the Seller shall remit to the Funding Note Issuer Collection Account immediately available funds in an amount equal to any such payment and shall deliver written notice to the Purchaser and the Conduit Administrator identifying the Loan with respect to which such payment was made, the amount of such payment and the date such payment was received.

(b) Any written communication received at any time by the Seller with respect to any Loan shall be transmitted by the Seller to the applicable Servicer promptly upon receipt. Such communications shall include, without limitation, letters, notices of death or disability, notices of bankruptcy and forms requesting deferment of repayment or loan cancellation.

 

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SECTION 8. CONTINUING OBLIGATION OF THE SELLER

The Seller shall provide all reasonable assistance necessary in order for the Purchaser to resolve account problems raised by any Borrower, the Guarantor or the Department provided such account problems are attributable to or are alleged to be attributable to (a) an event occurring during the period the Seller owned the related Loan, or (b) a payment made or alleged to have been made to the Seller. In addition, the Seller agrees to reasonably cooperate in the preparation and filing of any UCC financing statements or amendments thereto at the request of the Purchaser Parties or the Department in order to reflect the Purchaser Parties respective interests in the Loans.

The Seller acknowledges that from time to time, the Department and its representatives shall have the right to request, schedule and conduct, during normal business hours and upon reasonable prior notice, additional due diligence of the Seller, relating to Student Loans subject to this Agreement, at the Seller’s expense and that before May 15 th of each year, the Seller shall be required to provide to the Conduit Administrator an annual statement of compliance with respect to the Transaction Documents, substantially in the form of Attachment G hereto, together with an Agreed Upon Procedures Letter. Additionally, on a periodic basis as requested by the Department, the Seller will provide to the Department all requested reports including, but not limited to standard reporting packages containing information on the Student Loans sorted by schools, delinquencies and other features identified by the Seller. As soon as available and in any event no later than the 105 th day following the end of the Seller’s fiscal year, the Seller shall provide to the Purchaser, the Conduit Administrator and the Manager, copies of the annual audited financial statements of the Seller, and certified by an independent certified public accounting firm.

Without the express prior written consent of the Department, the Purchaser and the Conduit Administrator, the Seller Parties shall not agree to release any Guarantor from any of its contractual obligations as a guarantor of any Loan or agree otherwise to alter, amend or renegotiate any material term or condition under which such Loan is guaranteed, except as required by applicable law or rules and regulations issued pursuant to applicable law.

SECTION 9. LIABILITY OF THE SELLER; INDEMNITIES

Without limiting any other rights that any such Person may have hereunder or under applicable law (including, without limitation, the right to recover damages for breach of contract), the Seller hereby agrees to indemnify (a) the Purchaser, (b) the Purchaser ELT and (c) each Affected Party, in their individual capacities and all successors, transferees, participants and assigns, and all officers, directors, employees, advisors and agents of any of the foregoing (each a “ Seller Indemnified Party ”), forthwith on demand, from and against any and all damages, losses, claims, liabilities and costs and expenses, including attorneys’ fees and disbursements (all of the foregoing being collectively referred to as “ Seller Indemnified Amounts ”) awarded against or incurred by any of them arising out of or relating to (i) the ownership of the Loans by the Seller Parties before the Transfer of such Loans to the Purchaser Parties, (ii) the Transfer of the Loans to the Purchaser Parties as of each Transfer Date, (iii) the servicing of the Loans before the transfer, (iv) the breach by the Seller of its representations, warranties and/or obligations under any Transaction Document to which it is a party or (v) any acts or omissions by the Seller relating to the Loans, excluding , however , (x) Seller Indemnified Amounts to the extent finally determined by a court of competent jurisdiction in a non-appealable judgment to have resulted from negligence or willful misconduct on the part of such Seller Indemnified Party and (y) recourse for defaulted Student Loans (except as specifically provided herein) or losses attributed to changes in the market value of the Loans, including, without limitation, because of changes in market interest rates or in the rate of prepayment. Without limiting the foregoing, the Seller shall indemnify each Seller Indemnified Party for Seller Indemnified Amounts arising out of or relating to, among other things:

(a) the adjustment or any non-cash reduction by the Seller in the outstanding Principal Balance of any Loan made by or at the direction of the Seller other than in connection with any borrower benefit that is not prohibited under the Funding Note Purchase Agreement;

 

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(b) the transfer by the Seller of any interest in any Loan other than a Transfer to the Purchaser Parties as contemplated by this Agreement;

(c) any representation or warranty made or deemed made by the Seller (or any of its officers or Affiliates) under or in


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