DEPOSIT AND SALE AGREEMENT
THE NATIONAL COLLEGIATE STUDENT LOAN TRUST [_____]
This Deposit and Sale Agreement (the "Sale Agreement"), dated as of
[_________], between The National Collegiate Funding LLC, in its capacity as
seller (in such capacity, the "Seller"), and The National Collegiate Student
Loan Trust [_____], as purchaser (the "Purchaser"), shall be effective upon
execution by the parties hereto.
WHEREAS, the Seller is the owner of certain student loans; and
WHEREAS, the Seller desires to sell its interest in such student loans
and the Purchaser desires to purchase such loans from the Seller.
NOW, THEREFORE, in connection with the mutual promises contained
herein, the parties hereto agree as follows:
ARTICLE I
TERMS
This Sale Agreement sets forth the terms under which the Seller is
selling and the Purchaser is purchasing the student loans listed on Schedule 2
to each of the Pool Supplements set forth on Schedule A attached hereto (the
"Transferred Student Loans").
ARTICLE II
DEFINITIONS
Capitalized terms used but not otherwise defined herein shall have the
definitions set forth in Appendix A of the Indenture dated as of [________]
between [_______________] (the "Indenture Trustee") and the Purchaser.
ARTICLE III
SALE AND PURCHASE
Section 3.01. Sale of Loans. The Seller hereby sells and the Purchaser
hereby purchases the Transferred Student Loans.
Section 3.02. Assignment of Rights. The Seller hereby assigns to the
Purchaser and the Purchaser hereby accepts all of the Seller's rights and
interests under each of the Pool Supplements listed on Schedule A attached
hereto and the related Student Loan Purchase Agreements listed on Schedule B
attached hereto.
Section 3.03. Settlement of the Payment. The Purchaser shall pay the
Seller the purchase price set forth in Schedule 1 of each of the Pool
Supplements by wire transfer in immediately available funds to the account
specified by the Seller. In addition, the Purchaser will also issue the Class
[___] Notes and the Class [___] Notes to the Seller pursuant to the Indenture.
Section 3.04. Assistance by Seller. Following the execution of this
Sale Agreement, the Seller shall provide any reasonable assistance requested by
the Purchaser in determining that all required documentation on the Transferred
Student Loans is present and correct.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER
Section 4.01. General. The Seller represents and warrants to the
Purchaser that as of the date of this Sale Agreement:
(a) The Seller is duly organized and existing under the laws of the
State of Delaware; and
(b) The Seller has all requisite power and authority to enter into and
to perform the terms of this Sale Agreement.
Section 4.02. Loan Representations. The Seller represents and warrants
to the Purchaser that with respect to each Transferred Student Loan purchased by
the Purchaser pursuant to this Sale Agreement, the Seller is making the same
representations and warranties made by the respective program lender with
respect to each Transferred Student Loan pursuant to the respective Student Loan
Purchase Agreement listed on Schedule B attached hereto.
Section 4.03. Covenants. The Seller, in its capacity as purchaser of
the Transferred Student Loans pursuant to the Pool Supplements, hereby covenants
that it will enforce the covenants and agreements of each program lender in the
respective Student Loan Purchase Agreement and related Pool Supplement. The
Seller further covenants that it will not waive, amend, modify, supplement or
terminate any Student Loan Purchase Agreement or Pool Supplement or any
provision thereof without the consent of the Purchaser, which consent the
Purchaser hereby agrees not to provide without the prior written consent of the
Indenture Trustee and the Interested Noteholders in accordance with the
Purchaser's covenant in Section 3.07(c) of the Indenture.
ARTICLE V
PURCHASE OF LOANS; REIMBURSEMENT
Each party to this Sale Agreement shall give notice to the other such
parties and to the Servicers, First Marblehead Data Services, Inc. and
[____________________] (the "Owner Trustee") promptly, in writing, upon the
discovery of any breach of the Seller's representations and warranties made
pursuant to this Sale Agreement which has a materially adverse effect on the
interest of the Purchaser in any Transferred Student Loan. In the event of such
a material breach, the Seller shall cure or repurchase the Transferred Student
Loan in accordance with the remedies set forth in the respective Student Loan
Purchase Agreement.
ARTICLE VI
LIABILITY OF SELLER; INDEMNITIES
The Seller shall be liable in accordance herewith only to the extent of
the obligations specifically undertaken by the Seller under this Sale Agreement.
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(a) The Seller shall indemnify, defend and hold harmless the Purchaser
and the Owner Trustee in its individual capacity and their officers, directors,
employees and agents from and against any taxes that may at any time be asserted
against any such Person with respect to the transactions contemplated herein and
in the other Basic Documents (except any such income taxes arising out of fees
paid to the Owner Trustee), including any sales, gross receipts, general
corporation, tangible and intangible personal property, privilege or license
taxes and costs and expenses in defending against the same.
(b) The Seller shall indemnify, defend and hold harmless the Purchaser
and the Owner Trustee in its individual capacity and their officers, directors,
employees and agents of the Purchaser and the Owner Trustee from and against any
and all costs, expenses, losses, claims, damages and liabilities arising out of,
or imposed upon such Person through, the Seller's willful misfeasance, bad faith
or gross negligence in the performance of its duties under this Sale Agreement,
or by reason of reckless disregard of its obligations and duties under this Sale
Agreement.
Indemnification under this Section shall survive the termination of
this Sale Agreement and shall include reasonable fees and expenses of counsel
and expenses of litigation. If the Seller shall have made any indemnity payments
pursuant to this Section and the Person to or for the benefit of whom such
payments are made thereafter shall collect any of such amounts from others, such
Person shall promptly repay such amounts to the Seller, without interest.
ARTICLE VII
MERGER OR CONSOLIDATION OF, OR ASSUMPTION
OF THE OBLIGATIONS OF SELLER
Any Person (a) into which the Seller may be merged or consolidated, (b)
which may result from any merger or consolidation to which the Seller shall be a
party or (c) which may succeed to the properties and assets of the Seller
substantially as a whole, shall be the successor to the Seller without the
execution or filing of any document or any further act by any of the parties to
this Sale Agreement; provided, however, that the Seller hereby covenants that it
will not consummate any of the foregoing transactions except upon satisfaction
of the following: (i) the surviving Person, if other than the Seller, executes
an agreement of assumption to perform every obligation of the Seller under this
Sale Agreement, (ii) immediately after giving effect to such transaction, no
representation or warranty made pursuant to this Sale Agreement shall have been
breached, (iii) the surviving Person, if other than the Seller, shall have
delivered an Officers' Certificate and an opinion of counsel each stating that
such consolidation, merger or succession and such agreement of assumption comply
with this Section and that all conditions precedent, if any, provided for in
this Sale Agreement relating to such transaction have been complied with, and
that the Rating Agency Condition shall have been satisfied with respect to such
transaction, (iv) if the Seller is not the surviving entity, such transaction
will not result in a material adverse federal or state tax consequence to the
Purchaser or the Securityholders and (v) if the Seller is not the surviving
entity, the Seller shall have delivered an opinion of counsel either (A) stating
that, in the opinion of such counsel, all financing statements and continuation
statements and amendments thereto have been executed and filed that are
necessary fully to preserve and protect the interest of the Purchaser in the
Transferred Student Loans and reciting
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the details of such filings, or (B) stating that, in the opinion of such
counsel, no such action shall be necessary to preserve and protect such
interests.
ARTICLE VIII
LIMITATION ON LIABILITY OF SELLER AND OTHERS
The Seller and any director or officer or employee or agent thereof may
rely in good faith on the advice of counsel or on any document of any kind,
prima facie properly executed and submitted by any Person respecting any matters
arising hereunder (provided that such reliance shall not limit in any way the
Seller's obligations under this Sale Agreement). The Seller shall not be under
any obligation to appear in, prosecute or defend any legal action that shall not
be incidental to its obligations under this Sale Agreement or the Student Loan
Purchase Agreements, and that in its opinion may involve it in any expense or
liability.
ARTICLE IX
SURVIVAL OF COVENANTS
All covenants, agreements, representations and warranties made herein
shall survive the consummation of the purchase of the Transferred Student Loans;
provided, however, that to the extent any of the same relate to a corresponding
covenant, agreement, representation or warranty contained in a Student Loan
Purchase Agreement, the same shall survive to the extent that such corresponding
covenant, agreement, representation or warranty survives the applicable Student
Loan Purchase Agreement. All covenants, agreements, representations and
warranties made or furnished pursuant hereto by or for the benefit of the Seller
shall bind and inure to the benefit of any successors or assigns of the
Purchaser, including the Indenture Trustee and the Grantor Trustee. This Sale
Agreement may be changed, modified or discharged, and any rights or obligations
hereunder may be waived, only by a written instrument signed by a duly
authorized officer of the party against whom enforcement of any such waiver,
change, modification or discharge is sought. The waiver by the Indenture
Trustee, at the direction of the Noteholders (pursuant to the Indenture), and
the Grantor Trustee, at the direction of the Certificateholders (pursuant to the
Grantor Trust Agreement), of any covenant, agreement, representation or warranty
required to be made or furnished by the Seller or the waiver by the Indenture
Trustee, at the direction of the Noteholders (pursuant to the Indenture), and
the Grantor Trustee, at the direction of the Certificateholders (pursuant to the
Grantor Trust Agreement), of any provision herein contained shall not be deemed
to be a waiver of any breach of any other covenant, agreement, representation,
warranty or provision herein contained, nor shall any waiver or any custom or
practice which may evolve between the parties in the administration of the terms
hereof, be construed to lessen the right of the Indenture Trustee, at the
direction of the Noteholders (pursuant to the Indenture), and the Grantor
Trustee, at the direction of the Certificateholders (pursuant to the Grantor
Trust Agreement), to insist upon the performance by the Seller in strict
accordance with said terms.
ARTICLE X
COMMUNICATION AND NOTICE REQUIREMENTS
All communications, notices and approvals provided for hereunder shall
be in writing and mailed or delivered to the Seller or the Purchaser, as the
case may be. Notice given in any such
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communication, mailed to the Seller or the Purchaser by appropriately addressed
registered mail, shall be deemed to have been given on the day following the
date of such mailing and shall be addressed as follows:
If to the Purchaser, to:
The National Collegiate Student Loan Trust [____]
c/o [___________________], as Owner Trustee
[Address of Owner Trustee]
Attention: [___________]
If to the Seller, to:
The National Collegiate Funding LLC
c/o First Marblehead Data Services, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: [__________]
with a copy to:
First Marblehead Corporation
The Prudential Tower
000 Xxxxxxxx Xxxxxx - 00xx Xxxxx
Xxxxxx, XX 00000-0000
Attention: [__________]
or to such other address as either party shall have provided to the other
parties in writing. Any notice required to be in writing hereunder shall be
deemed given if such notice is mailed by certified mail, postage prepaid, or
hand-delivered to the address of such party as provided above.
ARTICLE XI
AMENDMENT
This Sale Agreement may be amended by the parties hereto without the
consent of the related Securityholders for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of the Sale
Agreement or of modifying in any manner the rights of such Securityholders;
provided that such action will not, in the opinion of counsel satisfactory to
the Indenture Trustee and the Grantor Trustee, materially affect the interest of
any such Securityholder.
In addition, this Sale Agreement may also be amended from time to time
by the Seller and the Purchaser, with the consent of the Noteholders of the
Notes evidencing a majority of the Outstanding Amount of the Notes and the
consent of the Certificateholders of the Certificates evidencing a majority of
the Outstanding Amount of the Certificates, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Sale Agreement or of modifying in any manner the rights of the Noteholders
or the Certificateholders,
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respectively; provided, however, that no such amendment shall (a) increase or
reduce in any manner the amount of, or accelerate or delay the time of,
collections of payments with respect to Transferred Student Loans or
distributions that shall be required to be made for the benefit of the
Securityholders or (b) reduce the aforesaid percentage of the Outstanding Amount
of the Notes or the Certificates, the Noteholders or the Certificateholders of
which are required to consent to any such amendment, without the consent of all
outstanding Noteholders or Certificateholders, respectively.
Promptly after the execution of any such amendment or consent (or, in
the case of the Rating Agencies, five Business Days prior thereto), the
Purchaser shall furnish written notification of the substance of such amendment
or consent to the Indenture Trustee, the Grantor Trustee and each of the Rating
Agencies.
It shall not be necessary for the consent of Securityholders pursuant
to this Section to approve the particular form of any proposed amendment or
consent, but it shall be sufficient if such consent shall approve the substance
thereof.
Prior to the execution of any amendment to this Sale Agreement, the
Owner Trustee shall be entitled to receive and rely upon an opinion of counsel
stating that execution of such amendment is authorized or permitted by this Sale
Agreement, the Owner Trustee may, but shall not be obligated to, enter into any
such amendment which affects the Owner Trustee's own rights, duties or
immunities under this Sale Agreement or otherwise.
ARTICLE XII
ASSIGNMENT
The Seller hereby assigns its entire right, title and interest as
purchaser under this Sale Agreement and the Student Loan Purchase Agreement
thereunder to the Purchaser as of the date hereof and acknowledges that the
Purchaser will assign the same, together with the right, title and interest of
the Purchaser hereunder, to the Indenture Trustee under the Indenture.
ARTICLE XIII
GOVERNING LAW
THIS SALE AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTIONS 5-1401 AND 5-1402 OF
THE NEW YORK GENERAL OBLIGATIONS LAW, BUT OTHERWISE WITHOUT REGARD TO CONFLICT
OF LAW PRINCIPLES, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES,
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
ARTICLE XIV
LIMITATION OF LIABILITY OF OWNER TRUSTEE
Notwithstanding anything contained herein to the contrary, this
instrument has been executed by [__________________], not in its individual
capacity but solely in its capacity as Owner Trustee of the Purchaser, and in no
event shall [__________________] in its individual capacity or any beneficial
owner of the Purchaser have any liability for the representations,
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warranties, covenants, agreements or other obligations of the Purchaser
hereunder, as to all of which recourse shall be had solely to the assets of the
Purchaser. For all purposes of this Sale Agreement, in the performance of any
duties or obligations of the Purchaser hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of
Articles VIII, IX and X of the Trust Agreement.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties hereto have caused this Sale Agreement
to be duly executed by their respective officers hereunto duly authorized, as of
the day and year first above written.
THE NATIONAL COLLEGIATE FUNDING LLC, as
Seller
By: GATE Holdings, Inc., Member
By:_______________________________________
Name:
Title:
THE NATIONAL COLLEGIATE STUDENT LOAN
TRUST [______], as Purchaser
By: [___________________________________],
not in its individual capacity but solely
as Owner Trustee
By:___________________________________
Name:
Title:
SCHEDULE A
Pool Supplements
o
SCHEDULE B
Student Loan Purchase Agreements
