EXHIBIT 10.4
DEPOSIT AND SALE
AGREEMENT
THE NATIONAL COLLEGIATE STUDENT
LOAN TRUST 2005-3
This Deposit and Sale Agreement (the
“ Sale Agreement ”), dated as of October 12,
2005, between The National Collegiate Funding LLC, in its capacity
as seller (in such capacity, the “ Seller ”),
and The National Collegiate Student Loan Trust 2005-3, 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 October 1, 2005 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-5 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 Delaware 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.
(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 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 holders of the grantor trust certificates
(the “ Certificates ”) (the “
Certificateholders ” and together with the
Noteholders, 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 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), a
