EXHIBIT 10.4
DEPOSIT AND SALE AGREEMENT
THE NATIONAL COLLEGIATE STUDENT LOAN TRUST 2004-1
This Deposit and Sale Agreement (the "SALE AGREEMENT"), dated as of
June 10, 2004, between The National Collegiate Funding LLC, in its capacity as
seller (in such capacity, the "SELLER"), and The National Collegiate Student
Loan Trust 2004-1, 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 June 1, 2004
between U.S. Bank National Association (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
A-4 Notes, the Class A-IO-1 Notes and the Class A-IO-2 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 Wachovia
Trust Company, National Association (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 Noteholders 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. 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), 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), 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), 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 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:
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If to the Purchaser, to:
The National Collegiate Student Loan Trust 2004-1
c/o Wachovia Trust Company, National Association, as
Owner Trustee
One Xxxxxx Xxxxxx, 0xx Xxxxx
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxxxx X. Xxxxxxx
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: Xx. Xxx Xxxxx
with a copy to:
First Marblehead Corporation
The Prudential Tower
000 Xxxxxxxx Xxxxxx - 00xx Xxxxx
Xxxxxx, XX 00000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxx
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 Noteholders 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 Noteholders; provided
that such action will not, in the opinion of counsel satisfactory to the
Indenture Trustee, materially affect the interest of any such Noteholder.
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 Notes
evidencing a majority of the Outstanding Amount of the Notes, 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; 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
Noteholders or (b) reduce the aforesaid percentage of the Outstanding
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Amount of the Notes, the Noteholders of which are required to consent to any
such amendment, without the consent of all outstanding Noteholders.
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, and each of the Rating Agencies.
It shall not be necessary for the consent of Noteholders 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 Wachovia Trust Company, National Association,
not in its individual capacity but solely in its capacity as Owner Trustee of
the Purchaser, and in no event shall Wachovia Trust Company, National
Association in its individual capacity or any beneficial owner of the Purchaser
have any liability for the representations, 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
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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: /s/ Xxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
THE NATIONAL COLLEGIATE STUDENT LOAN
TRUST 2004-1, as Purchaser
By: Wachovia Trust Company, National
Association, not in its
individual capacity but solely
as Owner Trustee
By: /s/ Xxxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
DEPOSIT AND SALE AGREEMENT
SCHEDULE A
Pool Supplements
Each of the following Pool Supplements was entered into by and among The First
Marblehead Corporation, The National Collegiate Funding LLC and:
o Bank of America, N.A., dated June 10, 2004, for loans that were
originated under Bank of America's BAGEL Loan Program, CEDU Loan
Program and ISLP Loan Program.
o Bank of America, N.A., dated June 10, 2004, for loans that were
originated under Bank of America's Direct to Consumer Loan Program.
o Bank One, N.A., dated June 10, 2004, for loans that were originated
under Bank One's CORPORATE ADVANTAGE Loan Program and EDUCATION ONE
Loan Program.
o Bank One, N.A., dated June 10, 2004, for loans that were originated
under Bank One's M&T REFERRAL Loan Program
o Charter One Bank, N.A., dated June 10, 2004, for loans that were
originated under the following Charter One programs: AES EducationGAIN
Loan Program, (AMS) TuitionPay Diploma Loan Program, Brazos Alternative
Loan Program, CFS Direct to Consumer Loan Program, Citibank Flexible
Education Loan Program, College Loan Corporation Loan Program, Comerica
Alternative Loan Program, Education Assistance Services Alternative
Loan Program, ESF Alternative Loan Program, Extra Credit II Loan
Program (North Texas Higher Education), M&I Alternative Loan Program,
National Education Loan Program, Navy Federal Alternative Loan Program,
NextStudent Alternative Loan Program, PNC Bank Resource Loan Program,
SAF Alternative Loan Program, Southwest Loan Program and WAMU
Alternative Student Loan Program.
o Chase Manhattan Bank USA, N.A., dated June 10, 2004, for loans that
were originated under Chase's Chase Extra Loan Program.
o Citizens Bank of Rhode Island, dated June 10, 2004, for loans that were
originated under Citizens Bank of Rhode Island's Pennsylvania State
University Undergraduate and Continuing Education Loan Program.
o First National Bank Northeast, dated June 10, 2004, for loans that were
originated under First National Bank Northeast's CASL Undergraduate
Loan Program.
o GMAC Bank, dated June 10, 2004, for loans that were originated under
GMAC Bank's GMAC Alternative Loan Program.
o HSBC Bank USA, N.A., dated June 10, 2004, for loans that were
originated under the HSBC Loan Program. o The Huntington National Bank,
dated June 10, 2004, for loans that were originated under The
Huntington National Bank's Huntington Education Loan Program.
o National City Bank, dated June 10, 2004, for loans that were originated
under National City Bank's National City Loan Program.
o SunTrust Bank, dated June 10, 2004, for loans that were originated
under SunTrust Bank's SunTrust Alternative Loan Program.
SCHEDULE B
Student Loan Purchase Agreements
Each of the Note Purchase Agreements, as amended or supplemented, was entered
into by and between The First Marblehead Corporation and:
o Bank of America, N.A., dated April 30, 2001, for loans that were
originated under Bank of America's BAGEL Loan Program, CEDU Loan
Program and ISLP Loan Program.
o Bank of America, N.A., dated June 30, 2003, for loans that were
originated under Bank of America's Direct to Consumer Loan Program.
o Bank One, N.A., dated May 1, 2002, for loans that were originated under
Bank One's CORPORATE ADVANTAGE Loan Program and EDUCATION ONE Loan
Program.
o Bank One, N.A., dated July 26, 2002, for loans that were originated
under Bank One's M&T REFERRAL Loan Program
o Charter One Bank, N.A., dated October 31, 2003, for loans that were
originated under Charter One's AES EducationGAIN Loan Program.
o Charter One Bank, N.A., dated May 15, 2002, for loans that were
originated under Charter One's (AMS) TuitionPay Diploma Loan Program.
o Charter One Bank, N.A., dated July 15, 2003, for loans that were
originated under Charter One's Brazos Alternative Loan Program.
o Charter One Bank, N.A., dated May 15, 2002, for loans that were
originated under Charter One's CFS Direct to Consumer Loan Program.
o Charter One Bank, N.A., dated June 30, 2003, for loans that were
originated under Charter One's Citibank Flexible Education Loan
Program.
o Charter One Bank, N.A., dated July 1, 2002, for loans that were
originated under Charter One's College Loan Corporation Loan Program.
o Charter One Bank, N.A., dated December 4, 2002, for loans that were
originated under Charter One's Comerica Alternative Loan Program.
o Charter One Bank, N.A., dated May 15, 2002, for loans that were
originated under Charter One's Education Assistance Services
Alternative Loan Program.
o Charter One Bank, N.A., dated May 15, 2003, for loans that were
originated under Charter One's ESF Alternative Loan Program.
o Charter One Bank, N.A., dated September 15, 2003, for loans that were
originated under Charter One's Extra Credit II Loan Program (North
Texas Higher Education).
o Charter One Bank, N.A., dated September 20, 2003, for loans that were
originated under Charter One's M&I Alternative Loan Program.
o Charter One Bank, N.A., dated November 17, 2003, for loans that were
originated under Charter One's National Education Loan Program.
o Charter One Bank, N.A., dated May 15, 2003, for loans that were
originated under Charter One's Navy Federal Alternative Loan Program.
o Charter One Bank, N.A., dated May 15, 2002, for loans that were
originated under Charter One's NextStudent Alternative Loan Program.
o Charter One Bank, N.A., dated March 17, 2003, for loans that were
originated under Charter One's PNC Bank Resource Loan Program.
o Charter One Bank, N.A., dated May 1, 2003, for loans that were
originated under Charter One's SAF Alternative Loan Program.
o Charter One Bank, N.A., dated September 20, 2002, for loans that were
originated under Charter One's Southwest Loan Program.
o Charter One Bank, N.A., dated May 15, 2003, for loans that were
originated under Charter One's WAMU Alternative Student Loan Program.
o Chase Manhattan Bank USA, N.A., dated September 30, 2003, for loans
that were originated under Chase's Chase Extra Loan Program.
o Citizens Bank of Rhode Island, dated October 1, 2002, for loans that
were originated under Citizens Bank of Rhode Island's Pennsylvania
State University Undergraduate and Continuing Education Loan Program.
o First National Bank Northeast, dated August 1, 2001, for loans that
were originated under First National Bank Northeast's CASL
Undergraduate Loan Program.
o GMAC Bank, dated May 30, 2003, for loans that were originated under
GMAC Bank's GMAC Alternative Loan Program.
o HSBC Bank USA, N.A., dated April 17, 2002, for loans that were
originated under the HSBC Loan Program. o The Huntington National Bank,
dated May 20, 2003, for loans that were originated under The Huntington
National Bank's Huntington Education Loan Program.
o National City Bank, dated November 13, 2002, for loans that were
originated under National City Bank's National City Loan Program.
o SunTrust Bank, dated March 1, 2002, for loans that were originated
under SunTrust Bank's SunTrust Alternative Loan Program.
