exv10w28






Exhibit 10.28




Execution Version




     AMENDMENT 2 TO NOTE PURCHASE AGREEMENT



     This AMENDMENT 2, dated as of February 27, 2009 (this “Amendment”), to the
NOTE PURCHASE AND SECURITY AGREEMENT (as previously amended by Amendment 1 thereto dated as of
June 4, 2008, the “Note Purchase Agreement”) is among PHOENIX FUNDINGS I, a statutory trust duly
organized under the laws of the State of Delaware, as the note issuer (the “Trust”), SALLIE MAE,
INC., a Delaware corporation, as administrator (the “Administrator”), THE BANK OF NEW YORK MELLON
TRUST COMPANY, NATIONAL ASSOCIATION (formerly known as The Bank of New York Trust Company,
N.A.), a national banking association, as the eligible lender trustee (the “Eligible Lender
Trustee”), DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking corporation, as the paying
agent (the “Paying Agent”) and the securities intermediary (the “Securities Intermediary”), UBS
REAL ESTATE SECURITIES INC., as the purchaser of the funding note (the “Note Purchaser”) and UBS
SECURITIES LLC, as the administrative agent for the Note Purchaser (in such capacity, the
“Administrative Agent”). Capitalized terms, unless otherwise defined herein, shall have the
meanings set forth in the Note Purchase Agreement.



     W I T N E S S E T H



     WHEREAS, the Trust has requested an extension of the Stated Termination Date (and related
maturity date of the Note) from the current date of February 27, 2009, as contemplated in Section
2.14 of the Note Purchase Agreement;



     WHEREAS, Section 2.14 of the Note Purchase Agreement provides that the Note
Purchaser shall not have any obligation to agree to such a request for extension;



     WHEREAS, the Note Purchaser and the Administrative Agent are willing to agree to an
extension for an additional period of 60 days (i.e., to April 28, 2009), upon the terms and
conditions provided herein; and



     WHEREAS, this Amendment is being executed and delivered pursuant to and in
accordance with Section 10.01 of the Note Purchase Agreement.



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



 









 





[SLM UBS Amendment 2 to Note Purchase Agreement]




ARTICLE I.




AMENDMENTS




     SECTION 1.01. Section 1.01, Certain Defined Terms. The definition of “Eligible
FFELP Loan” in Section 1.01 of the Note Purchase Agreement is hereby amended by replacing
clause (a) of such definition in its entirety with the following:




     (a) is a Stafford Loan, an SLS Loan or a PLUS Loan, in each case, originated
under the FFELP Program prior to October 1, 2007 (but as to which no disbursement of the
proceeds of such loan shall have occurred prior to October 1, 2003), and the Obligor
thereof is an Eligible Obligor, and in all cases shall be eligible for inclusion in the
Department of Education-sponsored STRAIGHT-A FUNDING, LLC Conduit Program;



     SECTION 1.02. Section 1.01, Certain Defined Terms. The definition of “Stated
Termination Date” in Section 1.01 of the Note Purchase Agreement is hereby amended by
replacing such definition in its entirety with the following:




     “Stated Termination Date” means the earlier of (i) April 28, 2009 and
(ii) the date contained in the written notice relating to termination delivered
by the Administrative Agent pursuant to Section 3.2 of Amendment 2, dated as
of February 27, 2009, to this Agreement.



     SECTION 1.03. Section 2.04, Mark to Market Valuation. The last sentence of Section
2.04 of the Note Purchase Agreement is hereby amended by adding the following proviso at the
end of such sentence:




provided, that beginning on the Settlement Date in March 2009, upon receipt of notice of
any Borrowing Base Deficiency, the Trust shall pay down the Aggregate Note Balance in an
amount necessary to fully remedy such Borrowing Base Deficiency.



ARTICLE II.




CONDITIONS TO EFFECTIVENESS AND ADDITIONAL COVENANTS




     SECTION 2.01. Conditions to Effectiveness. This Amendment shall be effective only
upon satisfaction of each of the following conditions:




     (i) delivery to the Administrative Agent of counterparts hereof executed by each of
the parties hereto;




     (ii) payment to the Administrative Agent, by wire transfer of immediately available
funds to an account that the Administrative Agent shall separately designate to the
Administrator, of fees and out-of-pocket expenses incurred by the Administrative Agent in
connection with this Amendment (including reasonable fees and out-of-pocket expenses of
counsel to the Administrative Agent), to the extent that such fees and



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[SLM UBS Amendment 2 to Note Purchase Agreement]





expenses have been invoiced or otherwise notified to the Administrator in writing (and
not in limitation of Section 3.7 of this Amendment below); and




     (iii) payment to the Administrative Agent, by wire transfer of immediately
available funds to an account that the Administrative Agent shall separately designate to
the Administrator, of an extension fee equal to $4,000,000.



     SECTION 2.02. Additional Covenants.



     (a) In each case so as to assure that no Borrowing Base Deficiency occurs as a result of
the amendment to the definition of Eligible FFELP Loan effected by Section 1.1 of this Amendment
above (the “Amended Definition”), the Trust shall, on or prior to March 13, 2009,



     (A) substitute (or cause to be substituted) Eligible FFELP Loans (after giving effect to the
Amended Definition) (“Substitution Loans”) in replacement of otherwise Eligible FFELP Loans that
are no longer Eligible FFELP Loans solely as a result of the Amended Definition (“Affected
Loans”) and/or (B) pay (or cause to be paid) into the Collection Account, in immediately
available funds, repurchase proceeds in an amount equal to the applicable Purchase Amount in
respect of such Affected Loans; provided, that the parties hereto agree that the requirement to
comply with Section 5(b) of the Purchase Agreement to substitute loans with substantially similar
characteristics under Section 2.16 of the Note Purchase Agreement shall not apply to the pool of
Substitution Loans.



     (b) Failure to comply with Section 2.2(a) above shall constitute a new Termination Event
under Section 7.01(d) of the Note Purchase Agreement, and the 30 day cure period referred to
in Section 7.01(d) shall not apply thereto.



ARTICLE III.




MISCELLANEOUS




     SECTION 3.01. Representations and Warranties. The Administrator (on behalf of
the Trust) makes the following representations and warranties for the benefit of the Secured
Creditors:




     (a) as of the date of this Amendment, representations and warranties equivalent
to those contained at Sections 5.01(a), (b), (c), (d) and (e) of the Note Purchase
Agreement, but where the Note Purchase Agreement is referred to in such provisions,
such reference shall be deemed to refer to this Amendment instead;




     (b) as of the date of this Amendment (and after giving effect to this Amendment and
the transactions contemplated thereby), no Termination Event or, to the best of the
Trust’s knowledge, Potential Termination Event has occurred and is continuing; and




     (c) as of the date of this Amendment, and except for matters contained in previous
public filings made by SLM Corporation with the United States Securities and Exchange
Commission on August 28, 2008, October 6, 2008 and February 2, 2009, no other amendment,
consent, modification or waiver (any of the foregoing, a



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[SLM UBS Amendment 2 to Note Purchase Agreement]





“Modification”) has been effected, entered into or granted in respect of any Churchill
Note Purchase Agreement (as defined below), except Modifications substantially similar to
this Amendment that effect a 60 day extension of the stated maturity date, stated
termination date or analogous date in respect thereof (together with the incurrence and/or
payment of any associated extension fee obligation).


As used in this Section 3.1, “Churchill Note Purchase Agreements” has the meaning assigned to
such term in the Mutual Closing Representation Letter, dated February 29, 2008, among the
Administrative Agent, Bank of America, N.A. (as administrative agent) and JPMorgan Chase Bank,
N.A., as Syndication Agent. Any inaccuracy or breach of the foregoing representations and
warranties set forth in this Section 3.1 shall be deemed to constitute a Termination Event under
Section 7.01(c) of the Note Purchase Agreement, and the 30 day cure period referred to in Section
7.01(c) shall not apply thereto (except as to the equivalent representation set forth in
subsection (a) of this Section 3.1 above made by reference to Section 5.01(a), as to which the 30
day cure period shall apply).




     SECTION 3.02. Modifications to Other Financing Facilities. Upon the effectiveness
of this Amendment, and until all Obligations (within the meaning of the Note Purchase Agreement)
shall have been paid in full, if any Modification (as defined in Section 3.1 above) has been
effected, entered into or granted in respect of any Churchill Note Purchase Agreement (as defined
in Section 3.1 above) on any date after the effectiveness of this Amendment, the Administrator
shall provide notice to the Administrative Agent of such Modification within two (2) Business Days
of the effectiveness of such Modification. Within ten (10) Business Days of receipt of such
notification, the Administrative Agent on behalf of the Note Purchaser may, in its sole
discretion, elect to amend, or amend and restate, as applicable, the Note Purchase Agreement in
accordance with Section 10.01 thereof to the extent required to conform its terms and provisions
to the substantially analogous terms and provisions set forth in the Modification (a “Conforming
Amendment”). If such election is made, then the Administrator and the Trust agree promptly to
enter into a Conforming Amendment (which, if required, shall also include amendments or
amendments and restatements of any other Transaction Documents). If the Administrator and the
Trust fail to comply with the foregoing undertaking to enter into a Conforming Amendment, then
the Administrative Agent may, in its sole discretion, send written notice to the Administrator
that it is unilaterally modifying the definition of “Stated Termination Date” to a date not
earlier than three (3) Business Days following receipt of such written notice. Each of the
parties hereto hereby grant to the Administrative Agent the power to unilaterally make such
definitional change upon the occurrence of the circumstances set forth above.



     SECTION 3.03. Transaction Documents. Any reference to the Note Purchase Agreement
in any other Transaction Document shall be deemed to refer to the Note Purchase Agreement as
amended hereby. This Amendment shall also constitute a Transaction Document within the meaning
of such term in the Note Purchase Agreement.



     SECTION 3.04. Limited Effect. Except as expressly amended hereby, all of the
provisions, covenants, terms and conditions of the Note Purchase Agreement shall continue to
be, and shall remain, in full force and effect in accordance with its terms.



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[SLM UBS Amendment 2 to Note Purchase Agreement]




     SECTION 3.05. Governing Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREOF (OTHER THAN
SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).



     SECTION 3.06. Counterparts. This Amendment may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.



     SECTION 3.07. Expense Provisions Apply. For the avoidance of doubt, Section 10.11
of the Note Purchase Agreement shall apply in respect of this Amendment.



     SECTION 3.08. Eligible Lender Trustee. Notwithstanding anything contained herein to
the contrary, this Amendment has been signed by The Bank of New York Mellon Trust Company,
National Association, not in its individual capacity but solely as Eligible Lender Trustee, and
in no event shall The Bank of New York Mellon Trust Company, National Association have any
liability for the representations, warranties, covenants, agreements or other obligations of the
Trust or the other parties to this Amendment or in any of the certificates, notices or agreements
delivered pursuant hereto, as to all of which recourse shall be had solely to the assets of the
Trust.



[signatures follow]




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