Exhibit 10.4





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.


 


2









 






“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


 


5









 






(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 (3rd) 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.


 


6









 





(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.


 


7









 





(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 30th 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.


 


8









 





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 15th 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 105th 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;


 


9









 





(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 connection with any Transaction Document or any other information or
report delivered by or on behalf of the Seller pursuant hereto, which shall have been false,
incorrect or misleading in any respect when made or deemed made, including, without limitation, any
Repurchase Event;



(d) the failure by the Seller to comply with any applicable law, rule or regulation with
respect to any Loan, or the nonconformity of any Loan to any such applicable law, rule or
regulation, including in each case (without limitation) failure to comply with the Higher Education
Act and all applicable consumer credit laws;



(e) the failure due to acts or omissions of either Seller Party to vest in the Purchaser
Parties an ownership interest and a first priority perfected security interest in each Loan, free
and clear of any lien, other than a lien in favor of the Conduit Lender arising solely as a result
of the transactions contemplated by the Transaction Documents;



(f) any dispute, claim, offset or defense (other than discharge in bankruptcy) of a Borrower
or any Guarantor to the payment of any Loan or any payment made by a Guarantor arising out of the
servicing of the applicable Loan prior to the related Transfer Date (including, without limitation,
a defense based on such Loan or Guarantee Agreement not being a legal, valid and binding obligation
of such Borrower or Guarantor, as the case may be, enforceable against it in accordance with its
terms);



(g) the failure by the Seller to comply with any term, provision or covenant contained in any
Transaction Document to which it is party;



(h) any lien (other than the lien granted to the Purchaser under this Agreement) resulting
from an act or omission of either Seller Party attaching to any Loan or any related assets or
Collections with respect thereto, whether existing at the time that such Loan initially arose or at
any time thereafter;



(i) any claim or action of whatever sort arising out of or in connection with the origination
or servicing of any Loan or any other services with respect to such Loan to the extent such
origination, servicing or services were provided by the Seller or an Affiliate of the Seller on or
before the related Transfer Date or were provided by a Person from whom the Seller is entitled to
recover such Seller Indemnified Amounts;



(j) the failure to pay when due any Taxes and fees payable by the Seller in connection with
the Transfer of any Loan or the execution, delivery, filing and recording of this Agreement or any
of the other agreements and documents to be delivered hereunder (including any UCC financing
statements);



(k) the payment by such Seller Indemnified Party of Indemnified Taxes and, without
duplication, any sales, gross receipts, general corporation, tangible and intangible personal
property, privilege or license taxes that may at any time be asserted against any Seller
Indemnified Party with respect to the Loans or the transactions contemplated by the Transaction
Documents or the Department Put Agreement, and any costs and expenses of defending the same, to the
extent caused by the Seller’s actions or omissions in breach of this Agreement;



(l) the payment by such Seller Indemnified Party of Taxes (other than Taxes described in
clauses (j) and (k) above); provided that the Seller Indemnified Amounts in
this clause (l) with respect to any such Taxes accruing after the applicable Grant Date,
shall not in the aggregate exceed 10% of the Cash Proceeds received by the Seller;



(m) the commingling of Collections with any other funds of the Seller or failure by the Seller
to promptly remit all Collections inadvertently received to the applicable Servicer;


 


10









 





(n) any investigation, litigation or proceeding related to this Agreement or the use of
proceeds of purchases made pursuant to this Agreement or any other Transaction Document to which
the Seller is a party which arises out of any act or omission of the Seller with respect to one or
more Loans;



(o) any claim brought by any Person arising from any activity by the Seller or an Affiliate of
the Seller, prior to the transfer of such Loan to the Purchaser, in servicing, administering or
collecting any Loan;



(p) the sale or pledge by the Seller of any Loan in violation of any applicable law, rule or
regulation;



(q) any attempt by any Person to void any Transfer pursuant to any statutory provision or
common law or equitable action, including, without limitation, any provision of the Bankruptcy
Code, based on any act or omission or illegal conduct of either Seller Party or any Affiliate of
either Seller Party (other than either Purchaser Party);




(r) any failure to pay an Excluded Borrower Benefit prior to the Transfer of any Loan;



(s) the Transfer of any Loans hereunder which were not Eligible Loans as of the related
Transfer Date (unless such Loans are repurchased in accordance with Section 6 hereof); or



(t) with respect to any Loan for which the related Promissory Note is evidenced by an
electronic promissory note or an electronic record, or contains an electronic signature, the
failure of such Promissory Note to comply in all material respects with all regulations, standards
and other requirements provided by the applicable Guarantor (if any) and the Department relating to
the validity and enforceability of such Promissory Note including, but not limited to,
clause (m) and the proviso following such clause under the definition of “Loan Documents”
in the Funding Note Purchase Agreement.



Any amounts subject to the indemnification provisions of this Section 9 shall be paid
by the Seller to the related Seller Indemnified Party on or before the 30th day
following demand therefor accompanied by reasonable supporting documentation with respect to such
amounts.



Indemnification under this Section 9 shall survive the resignation or removal of the
Purchaser ELT and the termination of this 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 9 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.



SECTION 10. LIMITATION ON LIABILITY OF ELIGIBLE LENDER TRUSTEES




Notwithstanding anything contained herein to the contrary, this Agreement has been, and each
Bill of Sale and Blanket Endorsement will be, signed by Union Bank and Trust Company, not in its
individual capacity but solely in its capacity as the Seller ELT, and Zions First National Bank,
not in its individual capacity but solely in its capacity as the Purchaser ELT, as the case may be,
and in no event shall Union Bank and Trust Company, in its individual capacity, or Zions First
National Bank, in its individual capacity, have any liability for the representations, warranties,
covenants, agreements or other obligations of the Seller or the Purchaser under any Transfer
Agreement 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 Seller or the Purchaser, as the case may
be.



The parties hereto agree that each of the Seller ELT and the Purchaser ELT shall be afforded
all of the rights, immunities and privileges afforded to the Eligible Lender Trustee under the
Funding Note Purchase Agreement in connection with its execution of this Agreement.


 


11









 





SECTION 11. EXPENSES




Each of the Seller and the Purchaser shall pay the legal fees and expenses of its attorneys in
connection with the negotiation, preparation, execution and delivery of this Agreement and in
connection with the review and negotiation of the other Transaction Documents; provided
that in partial consideration of the Purchaser’s agreement to purchase Loans hereunder, the Seller
may provide for the payment of all costs and expenses incurred by the Purchaser Parties in
connection herewith.



The Seller shall pay all other costs and expenses incurred in connection with preparation,
execution and delivery of this Agreement, the other Transaction Documents and any Bill of Sale and
the transactions contemplated herein or therein, including, without limitation, the reasonable fees
and out-of-pocket expenses of counsel for each of the Seller Parties, with respect thereto, and all
other costs and expenses incurred in connection with the transfer and delivery of the Loans to the
Purchaser or the Department, including, without limitation, any fees and expenses incurred in
connection with transferring ownership of any Loans to any such entity.



SECTION 12. SURVIVAL OF COVENANTS




All covenants, agreements, representations and warranties made herein or in or pursuant to
each Bill of Sale shall survive the Transfer of the Loans provided for in such Bill of Sale. All
covenants, agreements, representations and warranties made or furnished pursuant hereto by or for
the benefit of the Seller shall bind any successors and assigns of the Seller and inure to the
benefit of any successors or assigns of the Purchaser Parties and shall survive with respect to
each Loan. Each Bill of Sale supersedes all previous agreements and understandings between the
Purchaser Parties and the Seller Parties with respect to the subject matter thereof.



SECTION 13. NOTICES




All notices and other communications provided for hereunder shall, unless otherwise stated
herein, be in writing (including communication by facsimile copy or other electronic means) and
mailed, delivered by nationally recognized overnight courier service, transmitted or delivered by
hand, as to each party hereto and the Department, at its address set forth on Attachment E
hereto or at such other address as shall be designated by such party in a written notice to the
other parties hereto. Each such notice, request or other communication shall be effective (i) if
given by facsimile, when such facsimile is transmitted to the specified facsimile number and an
appropriate confirmation is received, (ii) if given by e-mail (if e-mail address has been
provided), when sent to the specified e-mail address and an appropriate confirmation is received,
(iii) if given by mail, five (5) days after being deposited in the United States mails, first class
postage prepaid, (iv) if given by recognized courier guaranteeing overnight delivery, the Business
Day following the day delivered to such courier (except that notices and communications delivered
to the Department to the extent not e-mailed or mailed by registered or certified mail, return
receipt requested, shall not be effective until received) or (v) if given by any other means, when
delivered at the address specified in this Section 13.



SECTION 14. FORM OF INSTRUMENTS




Each of the instruments and documents delivered in connection with any Transfer Agreement, and
all proceedings to be taken in connection with any Transfer Agreement and the transactions
contemplated herein and therein, shall be in the applicable form set forth in the attachments
hereto, and the Purchaser shall have received such copies thereof as it or its counsel shall
reasonably request in connection therewith. Any instrument or document which is substantially in
the same form as an applicable attachment hereto or recital herein will be deemed to be
satisfactory as to form.


 


12









 





SECTION 15. WAIVERS AND AMENDMENTS




The obligations of any party to any Transfer Agreement and any document or instrument
delivered in accordance therewith (each, a “Transfer Document”) may be waived, only by a written
instrument signed by a duly authorized officer of the party against whom enforcement of any such
waiver is sought with the prior written consent of the Manager and the Department. The waiver by
the Purchaser and the Department of any representation, warranty, covenant or agreement required to
be made or performed under any Transfer Document by any party thereto or of any other provision
contained in any Transfer Document shall not be deemed to be a waiver of any breach of any other
representation, warranty, covenant, agreement or provision contained therein or in any other
Transfer Document, nor shall any waiver or any custom or practice which may evolve between the
parties to any Transfer Document in the administration of the terms thereof be construed to lessen
the right of the Purchaser or the Department to insist upon the performance by the Seller in strict
accordance with said terms.



Any Transfer Document may be amended by a writing executed and delivered by each of the
parties thereto with the prior written consent of the Manager; provided that (i) no amendment to
this Agreement shall be effective without the prior written consent of the Department;
provided that, with not less than ten (10) Business Days’ prior written notice to the
Department, the parties hereto may enter into any such amendment, subject to the provisions in this
Section 15, that does not have an adverse effect on the Department and (ii) no amendment to
this Agreement shall be effective unless each Rating Agency shall have been provided with at least
ten (10) days prior notice and S&P shall not have notified the Manager or the SPV Administrator
that such amendment would result in a reduction, qualification or withdrawal of the then-current
rating of the Funding Note. Notwithstanding the foregoing, if the Conduit Administrator provides
the parties hereto with notice of any proposed amendment to this Agreement that has been approved
by the Conduit Advisory Committee and the Seller Parties shall Transfer, and the Purchaser Parties
shall accept, any Student Loans Transferred hereunder subsequent to receiving such notice, the
Seller Parties and Purchaser Parties shall be deemed to have consented to such amendment. For
purposes of the preceding sentence, notice shall be sufficient if delivered in accordance with
Section 13 or if such amendment shall be posted to a website maintained by the Department.



SECTION 16. NON-PETITION COVENANTS




(a) Notwithstanding any prior termination of this Agreement, the Seller, the Seller ELT and
the Purchaser ELT shall not, prior to the date which is one year and one day after repayment in
full of the Funding Note, acquiesce, petition or otherwise invoke or cause the Purchaser, or
authorize or join with any other person, to invoke the process of any court or government authority
for the purpose of commencing or sustaining a case against the Purchaser under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Purchaser or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the Purchaser;
provided, however, nothing herein shall be deemed to prohibit the Seller, the
Seller ELT or the Purchaser ELT from filing a claim or otherwise participating in any such action
or proceeding.



(b) Notwithstanding any prior termination of this Agreement, the Seller ELT, the Purchaser and
the Purchaser ELT shall not, prior to the date which is one year and one day after repayment in
full of the Funding Note, acquiesce, petition or otherwise invoke or cause the Seller, or authorize
or join with any other person, to invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against the Seller under any federal or state
bankruptcy, insolvency or similar law or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Seller or any substantial part of its
property, or ordering the winding up or liquidation of the affairs of the Seller; provided,
however, nothing herein shall be deemed to prohibit the Seller ELT, the Purchaser or the Purchaser
ELT from filing a claim or otherwise participating in any such action or proceeding.


 


13









 





SECTION 17. GOVERNING LAW




THIS AGREEMENT, EACH OTHER TRANSFER AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY FEDERAL LAW OF
THE UNITED STATES. IF THERE SHALL BE NO FEDERAL LAW OF THE UNITED STATES APPLICABLE TO A MATTER
ARISING UNDER THIS AGREEMENT OR ANY OTHER TRANSFER AGREEMENT OR THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER OR THEREUNDER, THE LAWS OF THE STATE OF NEW YORK SHALL BE DEEMED TO BE REFLECTIVE
OF FEDERAL LAW OF THE UNITED STATES INSOFAR AS TO DO SO WOULD NOT FRUSTRATE THE PURPOSES OF ANY
PROVISION OF THIS AGREEMENT OR ANY OTHER TRANSFER AGREEMENT.



SECTION 18. SUCCESSORS AND ASSIGNS




None of the parties hereto shall assign any rights or delegate any duties hereunder without
the prior written consent of each other party hereto, and any assignment made without such consent
shall be void and constitute a default hereunder.



SECTION 19. INTENDED THIRD PARTY BENEFICIARIES




Each of the parties hereto acknowledges and agrees that the Conduit Lender, the Department and
the other Affected Parties are express third party beneficiaries hereof entitled to enforce all of
the obligations of the Seller with respect to payment of Repurchase Amounts, Repurchase Event Fees
and Expenses and indemnities owed by the Seller and to enforce the terms hereof as if they were
parties hereto.



SECTION 20. TAX TREATMENT




The Purchaser and the Seller each agree to treat for United States federal, state, and local
income and franchise tax purposes, (1) the Funding Note as indebtedness, and (2) the Department Put
Agreement and all amounts paid or accrued thereon (to the extent that it relates to the Student
Loans) as consisting of an agreement solely by and between the Department and the Funding Note
Issuer and shall take no position inconsistent with this treatment, unless otherwise required by
law.



SECTION 21. SUBMISSION TO JURISDICTION




(a) EACH OF THE PARTIES HERETO HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING
IN THE BOROUGH OF MANHATTAN FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO
THIS AGREEMENT, ANY OTHER TRANSFER AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO
SO, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH
PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING IN THIS SECTION 21 SHALL AFFECT THE
RIGHT OF ANY PARTY HERETO TO BRING ANY ACTION OR PROCEEDING AGAINST ANY OTHER PARTY HERETO OR ANY
OF ITS PROPERTY IN THE COURTS OF OTHER JURISDICTIONS.



(b) EACH OF THE PARTIES HERETO HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING
ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG ANY OF THEM ARISING OUT OF,
CONNECTED WITH, RELATING TO OR
INCIDENTAL TO THE RELATIONSHIP BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
TRANSFER AGREEMENT.


 


14









 





(c) The Purchaser hereby appoints Corporation Service Company located at 80 State Street,
Albany, NY 12207-2543 as the authorized agent upon whom process may be served in any action arising
out of or based upon this Agreement, any other Transfer Agreement or the transactions contemplated
hereby or thereby that may be instituted in the United States District Court for the Southern
District of New York and of any New York State court sitting in the Borough of Manhattan by any
Affected Party or any successor or assignee of any of them.



[Signatures Follow]



 


15









 





IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective officers hereunto duly authorized, as of the date first written above.



	 	 	 	 	 
	 	NATIONAL EDUCATION LOAN NETWORK, INC., 

as Seller

 	 
	 	By:  	/s/ Michael S. Dunlap
 	 
	 	 	Name:  	Michael S. Dunlap 	 
	 	 	Title:  	President 	 
	 
	 	UNION BANK AND TRUST COMPANY,
 not in its individual capacity
but solely as Seller ELT

 	 
	 	By:  	/s/ Tom Sullivan
 	 
	 	 	Name:  	Tom Sullivan 	 
	 	 	Title:  	Vice President 	 
	 
	 	NELNET SUPERCONDUIT FUNDING, LLC,
 as Purchaser

 	 
	 	By:  	/s/ Hannah Smitterberg
 	 
	 	 	Name:  	Hannah Smitterberg 	 
	 	 	Title:  	Assistant Vice President 	 
	 
	 	ZIONS FIRST NATIONAL BANK,
 not in its individual capacity but
solely as Purchaser ELT

 	 
	 	By:  	/s/ David W. Bata
 	 
	 	 	Name:  	David W. Bata 	 
	 	 	Title:  	Vice President and Trust Officer 	 



 


S-1









 





ATTACHMENT A




FORM OF

BILL OF SALE NUMBER [__]



Dated as of [TRANSFER DATE]




This Bill of Sale (this “Bill of Sale”) is made and entered into as of [TRANSFER DATE], by and
among NATIONAL EDUCATION LOAN NETWORK, INC. (the “Seller”), UNION BANK AND TRUST COMPANY, not in
its individual capacity but solely as the eligible lender trustee for the benefit of the Seller (in
such capacity, the “Seller ELT” and together with the Seller, the “Seller Parties”), NELNET
SUPERCONDUIT FUNDING, LLC (the “Purchaser”), and ZIONS FIRST NATIONAL BANK, not in its individual
capacity but solely as the eligible lender trustee for the benefit of the Purchaser (in such
capacity, the “Purchaser ELT”).



W I T N E S S E T H :




WHEREAS, the parties hereto entered into a Student Loan Purchase Agreement dated as of May 13,
2009 (as amended, amended and restated, supplemented or otherwise modified, the “Student Loan
Purchase Agreement”); and



WHEREAS, subject to the terms and conditions of the Student Loan Purchase Agreement, the
Seller Parties desire to transfer to the Purchaser Parties the Student Loans identified on
Annex I attached hereto and all Related Security with respect thereto (but excluding 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 described in this Bill of Sale) (collectively, the
“Loan Portfolio”) and the Purchaser Parties desire to accept such transfer;



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




	1.	 	Definitions. Each capitalized term used but not defined herein has the meaning ascribed
thereto in the Student Loan Purchase Agreement.







	2.	 	Transfer. Subject to the terms and conditions of the Student Loan Purchase Agreement and in
consideration for payment by the Purchaser to the Seller of the Purchase Price (as set forth
below), the Seller Parties hereby grant, sell, assign, transfer, convey and, to the extent
applicable, contribute to the Purchaser Parties, and the Purchaser Parties hereby accept, the
entire right, title and interest of the Seller Parties in the Loan Portfolio (collectively,
the “Transfer”).







	3.	 	Purchase Price. The purchase price for the Loan Portfolio is $[ ] (the “Purchase Price”).
Each of the parties hereto agrees that the Purchase Price represents fair consideration and
reasonably equivalent value for the Loan Portfolio and is equal to the fair market value of
such Loan Portfolio based on current market conditions as of the date hereof. In payment of
the Purchase Price, the Purchaser has caused $[ ] of immediately available funds to be wire
transferred to the Seller’s Account (as defined below). The Seller and the Purchaser hereby
agree that in accordance with Section 4(c) of the Student Loan Purchase Agreement, the
remaining portion of the Purchase Price 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.







	4.	 	Seller’s Account. The Purchaser has caused the cash portion of the Purchase Price to be wire
transferred to the following account (the “Seller’s Account”):






[INSERT SELLER’S ACCOUNT INFORMATION]




 


A-1









 








	5.	 	Intent. The parties hereto intend that the Transfer be, and be construed as, a true sale
and, if applicable, contribution of the Loan Portfolio from the Seller Parties to the
Purchaser Parties. However, in the event that notwithstanding the intention of the parties
hereto, the Transfer is deemed to be a transfer for security, then the Seller Parties hereby
grant to the Purchaser Parties a continuing security interest in the Loan Portfolio to secure
a loan in an amount equal to the Purchase Price and each of the Seller and the Purchaser
hereby represents and warrants, as to itself, that each remittance by the Purchaser to the
Seller of the Purchase Price (other than any portion of the Purchase Price deemed to be a
capital contribution) will have been (i) the incurrence of a debt incurred in the ordinary
course of business or financial affairs of the Purchaser and the Seller and (ii) made in the
ordinary course of business or financial affairs of the Purchaser and the Seller.







	6.	 	Guarantor Notification. Each of the Seller Parties authorizes the Purchaser ELT to use a
copy of this Bill of Sale, including the Loan Transmittal Summary Form attached hereto (in
lieu of Department Form OE 1074), as official notification to the applicable Guarantors of
assignment to the Purchaser ELT of the Loan Portfolio.







	7.	 	Governing Law. THIS BILL OF SALE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY FEDERAL LAW OF THE UNITED STATES. IF
THERE SHALL BE NO FEDERAL LAW OF THE UNITED STATES APPLICABLE TO A MATTER ARISING UNDER THIS
BILL OF SALE OR THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER, THE LAWS OF THE STATE OF
NEW YORK SHALL BE DEEMED TO BE REFLECTIVE OF FEDERAL LAW OF THE UNITED STATES INSOFAR AS TO DO
SO WOULD NOT FRUSTRATE THE PURPOSES OF ANY PROVISION OF THIS AGREEMENT OR ANY OTHER TRANSFER
AGREEMENT.







	8.	 	Submission to Jurisdiction. EACH OF THE PARTIES HERETO HEREBY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF
ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN FOR PURPOSES OF ALL LEGAL
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS BILL OF SALE OR THE TRANSACTIONS CONTEMPLATED
HEREBY. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE
OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT
IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING IN THIS SECTION 8
SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO BRING ANY ACTION OR PROCEEDING AGAINST ANY OTHER
PARTY HERETO OR ANY OF ITS PROPERTY IN THE COURTS OF OTHER JURISDICTIONS. EACH OF THE PARTIES
HERETO HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG ANY OF THEM ARISING OUT OF, CONNECTED WITH,
RELATING TO OR INCIDENTAL TO THE RELATIONSHIP BETWEEN THEM IN CONNECTION WITH THIS BILL OF
SALE. THE PURCHASER HEREBY APPOINTS CORPORATION SERVICE COMPANY LOCATED AT 80 STATE STREET,
ALBANY, NY 12207-2543 AS THE AUTHORIZED AGENT UPON WHOM PROCESS MAY BE SERVED IN ANY ACTION
ARISING OUT OF OR BASED UPON THIS BILL OF SALE OR THE TRANSACTIONS CONTEMPLATED HEREBY THAT
MAY BE INSTITUTED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
AND OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN BY THE PURCHASER, THE
PURCHASER ELT OR ANY SUCCESSOR TO OR ASSIGNEE OF EITHER OF THEM.





 


A-2









 











	9.	 	Student Loan Purchase Agreement. This Bill of Sale is one of the Bills of Sale referred to
in the Student Loan Purchase Agreement. The terms and provisions of the Student Loan Purchase
Agreement form a part of, and are incorporated by this reference into, this Bill of Sale.
This Bill of Sale sets forth the terms and
conditions of Transfer solely with respect to the Loan Portfolio. This Bill of Sale shall
have no effect upon any other transfer of Student Loans consummated or contemplated prior to
or after the date hereof, and all other terms, conditions and agreements contained in the
Student Loan Purchase Agreement shall remain in full force and effect. Prior or subsequent
purchases and sales of Student Loans shall each be governed by a separate Bill of Sale.







	10.	 	Amendment. This Bill of Sale may be amended by a writing executed and delivered by each of
the parties thereto with the prior written consent of the Manager; provided that (i) no
amendment to this Agreement shall be effective without the prior written consent of the
Department; provided further that, with not less than ten (10) Business Days’ prior
written notice to the Department, the parties hereto may enter into any such amendment,
subject to the provisions in this Section 10, that does not have an adverse effect on
the Department and (ii) no amendment to this Agreement shall be effective unless each Rating
Agency shall have been provided with at least ten (10) days prior notice and S&P shall not
have notified the Manager or the SPV Administrator that such amendment would result in a
reduction, qualification or withdrawal of the then-current rating of the Funding Note.







	11.	 	Third-Party Beneficiary. Each of the parties hereto acknowledges and agrees that the Conduit
Lender, the Department and the other Affected Parties are express third party beneficiaries
hereof entitled to enforce all of the obligations of the Seller with respect to payment of
Repurchase Amounts, Repurchase Event Fees and Expenses and Seller Indemnified Amounts owed by
the Seller and to enforce the terms hereof as if they were parties hereto. Further, all the
rights of the Purchaser hereunder with respect to any Student Loans included in the Loan
Portfolio 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
all repurchase and other rights against the Seller upon the occurrence of any of the
conditions set forth in the Department Put Agreement with respect to such Student Loan.







	12.	 	Limitation of Liability. Notwithstanding anything contained herein to the contrary, this
Agreement has been, and each Blanket Endorsement will be, signed by Union Bank and Trust
Company, not in its individual capacity but solely in its capacity as the Seller ELT, and
Zions First National Bank, not in its individual capacity but solely in its capacity as the
Purchaser ELT, as the case may be, and in no event shall Union Bank and Trust Company, in its
individual capacity, or Zions First National Bank, in its individual capacity, have any
liability for the representations, warranties, covenants, agreements or other obligations of
the Seller or the Purchaser under any Transfer Agreement 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 Seller or the Purchaser, as the case may be.






[Signatures Follow]



 


A-3









 





IN WITNESS WHEREOF, the parties hereto have caused this Bill of Sale Number [_____] to be duly
executed by their respective officers hereunto duly authorized, as of the date first written above.



	 	 	 	 	 
	 	NATIONAL EDUCATION LOAN NETWORK, INC., as Seller

 	 
	 	By:  	 	 
	 	 	Name: 	 	 
	 	 	Title: 	 	 



[Signatures Continue on the Following Page]




 


A-4









 







	 	 	 	 	 
	 	UNION BANK AND TRUST COMPANY,
 not in its individual capacity
but solely as Seller ELT

 	 
	 	By:  	 	 
	 	 	Name: 	 	 
	 	 	Title: 	 	 



[Signatures Continue on the Following Page]




 


A-5









 







	 	 	 	 	 
	 	NELNET SUPERCONDUIT FUNDING, LLC, 
as Purchaser

 	 
	 	By:  	 	 
	 	 	Name: 	 	 
	 	 	Title: 	 	 



[Signatures Continue on the Following Page]




 


A-6









 







	 	 	 	 	 
	 	ZIONS FIRST NATIONAL BANK,
 not in its individual capacity but solely as Purchaser ELT

 	 
	 	By:  	 	 
	 	 	Name: 	 	 
	 	 	Title: 	 	 



 


A-7









 





Annex I




LOAN TRANSMITTAL SUMMARY FORM




Loan Transmittal File Pipe delimited file




	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	1	 	 	SSN
	 	 	9(009)	 	Yes
	 	2	 	 	LastName
	 	 	X(035)	 	Yes
	 	3	 	 	FirstName
	 	 	X(020)	 	Yes
	 	4	 	 	LoanNumber1
	 	 	X(019)	 	Yes
	 	5	 	 	Principal Balance
	 	 	9(012).99	 	Yes
	 	6	 	 	LoanType
	 	 	 	 	 	 	 	 
	 	7	 	 	Promissory Note Date
	 	 	—	 	 	 	 
	 	8	 	 	First Disbursement Date
	 	 	—	 	 	 	 
	 	9	 	 	Final Disbursement Date
	 	 	—	 	 	 	 
	 	10	 	 	Loan Period Begin Date
	 	 	—	 	 	 	 
	 	11	 	 	Loan Period End Date
	 	 	—	 	 	 	 
	 	12	 	 	Loan Status Code
	 	 	 	 	 	 	 	 
	 	13	 	 	Seller or Eligible
Direct Issuer LID
	 	 	 	 	 	 	 	 
	 	14	 	 	Original Lender LID
	 	 	 	 	 	 	 	 
	 	15	 	 	Guarantor
	 	 	9(003)	 	Yes
	 	16	 	 	Servicer
	 	 	X(008)	 	Yes
	 	17	 	 	School Type
	 	 	X(009)	 	Four Year, Two Year, Proprietary/Vocational, Other; See table below.






Notice information for Servicers:



[NAME]

[ADDRESS]

[ATTENTION]

[TELEPHONE]

[FAX]

[E-MAIL]

[REPEAT AS NECESSARY]




 







	 	 	 
	1	 	Loan Number shall be a unique identifying number for
each Student Loan. Such number must also be included in the information given
to the accountants and the Conduit Administrator for any sample pool of Student
Loans in connection with any Agreed Upon Procedures Letter.




 


A-8









 









ATTACHMENT B




FORM OF

BLANKET ENDORSEMENT

(Bill of Sale Number [__])




[TRANSFER DATE]




Reference is made to that certain Bill of Sale, dated as of [TRANSFER DATE], by and among
NATIONAL EDUCATION LOAN NETWORK, INC., as the seller (the “Seller”), UNION BANK AND TRUST COMPANY,
not in its individual capacity, but solely in its capacity as the eligible lender trustee for the
benefit of the Seller (in such capacity, the “Seller ELT” and together with the Seller, the “Seller
Parties”), NELNET SUPERCONDUIT FUNDING, LLC, as the purchaser (the “Purchaser”), and ZIONS FIRST
NATIONAL BANK, not in its individual capacity, but solely in its capacity as the eligible lender
trustee for the benefit of the Purchaser (in such capacity, the “Purchaser ELT”) (the “Bill of
Sale”). Each capitalized term used but not defined herein has the meaning ascribed thereto in the
Bill of Sale.



The Seller, by execution of this instrument, hereby endorses the attached promissory note
which evidences one of the Student Loans included in the Loan Portfolio (each such promissory note,
a “Promissory Note”). This endorsement is in blank, unrestricted form and without recourse except
as provided in Section 6 of the Student Loan Purchase Agreement.



This endorsement may be effected by attaching either this instrument or a facsimile hereof to
each or any of the Promissory Notes.



Notwithstanding the foregoing, the Seller ELT, on behalf of the Seller agrees to individually
endorse each Promissory Note required to be so endorsed by the Purchaser or the Guarantor of such
Promissory Note, at the sole cost and expense of the Purchaser, in such form as is provided by the
Purchaser and is reasonably acceptable to the Seller ELT and the Department.



Notwithstanding anything contained herein to the contrary, this Agreement has been signed by
Union Bank and Trust Company, not in its individual capacity but solely in its capacity as the
Seller ELT, and Zions First National Bank, not in its individual capacity but solely in its
capacity as the Purchaser ELT, as the case may be, and in no event shall Union Bank and Trust
Company, in its individual capacity, or Zions First National Bank, in its individual capacity, have
any liability for the representations, warranties, covenants, agreements or other obligations of
the Seller or the Purchaser under any Transfer Agreement 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 Seller or the Purchaser, as the case may be.



THE SALE OF THE LOANS SHALL BE SUBJECT TO THE TERMS, CONDITIONS AND COVENANTS SET FORTH IN THE
BILL OF SALE, INCLUDING THIS BLANKET ENDORSEMENT. BY EXECUTION HEREOF, EACH OF THE SELLER PARTIES
ACKNOWLEDGES THAT SUCH PARTY HAS READ, UNDERSTANDS AND AGREES TO BE BOUND BY ALL TERMS, CONDITIONS
AND COVENANTS OF THE BILL OF SALE.


 


B-1









 





IN WITNESS WHEREOF, the parties hereto have caused this Blanket Endorsement to be duly
executed by their respective officers hereunto duly authorized, as of the date first written above.





	 	 	 	 	 	 	 	 	 	 	 	 	 
	SELLER	 	PURCHASER	 
	NATIONAL EDUCATION LOAN NETWORK,
INC.	 	NELNET SUPERCONDUIT FUNDING, LLC	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 	 	 	 	 
	 	 	 	 	 	 	 	 
	 	 	(Signature of Authorized Officer)	 	 	 	(Signature of Authorized Officer)	 
	 

	 	Name:	 	 	 	 	 	Name:	 	 	 
	 

	 	Title:	 	 	 	 	 	Title:	 	 	 
	 
	Date of Sale: 	 	 	Date of Purchase: 	 	 
	 

	 	 	 	 
	 	 	 	 	 	 	 	 








	 	 	 	 	 	 	 	 	 	 	 	 	 
	SELLER ELT	 	PURCHASER ELT	 	 
	UNION BANK AND TRUST COMPANY, not
in its individual capacity but
solely as Seller ELT	 	ZIONS FIRST NATIONAL BANK, not in its
individual capacity but solely as
Purchaser ELT	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	Lender Code: 	 	 	Lender Code: 	 	 	 
	 

	 	 	 	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 
	By: 

	 	 	 	 	 	By: 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	(Signature of Authorized Officer)	 	 	(Signature of Authorized Officer)	 	 
	 

	Name: 	 	 	 	 	Name: 	 	 	 
	 

	Title: 
	 	 	 	 	Title: 	 	 	 
	 
	Date of Sale:	 	 	Date of Purchase: 	 	 	 





 


B-2









 





ATTACHMENT C-1




SELLER AND SELLER ELT REPRESENTATIONS AND WARRANTIES




GENERAL




(i) Each of the Seller and the Seller ELT (1) is duly organized, validly existing and in good
standing under the laws of the State of its formation or of the United States, as applicable,
(2) has all licenses necessary to carry out its business as now being conducted or is otherwise
exempt under applicable law from such licensing or qualification or is otherwise not required under
applicable law to effect such licensing or qualification and no demand for such licensing or
qualification has been made upon it by any such state, and (3) in any event is in compliance with
the laws of any such state to the extent necessary to ensure the enforceability of each Loan. No
licenses or approvals obtained by it have been suspended or revoked by any court, administrative
agency, arbitrator or governmental body and no proceedings are pending which might result in such
suspension or revocation.



(ii) The Seller ELT is an “eligible lender” as such term is defined in Section 435(d) of the
Higher Education Act and has a lender identification number issued by the Department with respect
to the Loans and has in effect a Guarantee Agreement with a Guarantor with respect to each of the
Loans.



(iii) With respect to each state or jurisdiction therein in which the Seller or, in the event
that the Seller is a special purpose entity with respect to a securitization or other financing
facility, its administrator, as applicable, undertakes origination activities, Seller or such
administrator, as applicable, is in full compliance with such state’s or jurisdiction’s (as
applicable) laws, rules, regulations, orders, settlement agreements and other standards and
procedures, including those promulgated by agencies or officers thereof, applicable to it and
pertaining to the conduct of participants in the student loan industry to the extent the Seller has
assented to such voluntary code of conduct (including, without limitation, any applicable “code of
conduct” for participants in the student loan industry that specifically and legally applies to the
Seller or its administrator, as applicable, and the Seller ELT, to the extent that non-compliance
with such a code of conduct would adversely affect the Department’s rights or interest with respect
to the Putable Loans that the Department purchases).



(iv) The Seller or, in the event that the Seller is a special purpose entity with respect to a
securitization or other financing facility, its administrator, as applicable, has administered,
operated and maintained its federal family education loan program in such manner as to ensure that
such program and the Loans will benefit, in all material respects, from the FFELP, the Guarantee
Agreements related thereto and the federal program of reimbursement for FFELP student loans
pursuant to the Higher Education Act.



(v) The Seller has not, with respect to any Loan Transferred under a Bill of Sale executed
pursuant to this Agreement, agreed to release any Guarantor from any of its contractual obligations
as a guarantor of such Loan or agreed otherwise to alter, amend or renegotiate any material term or
condition under which such Loan is Guaranteed, except as required by law or rules and regulations
issued pursuant to law, without the express prior written consent of the Department.



(vi) Each of the Seller and the Seller ELT (1) has all requisite power and authority to hold
each Loan, to sell each Loan, to pledge each Loan and to execute, deliver and perform, and to enter
into and consummate, all transactions contemplated by this Agreement and each other Transfer
Agreement, (2) has duly authorized the execution, delivery and performance of this Agreement and
each other Transfer Agreement and (3) has duly executed and delivered this Agreement and each
Transfer Agreement. This Agreement and each other Transfer Agreement, assuming due authorization,
execution and delivery by the other parties thereto, constitutes the legal, valid and binding
obligation of the Seller and the Seller ELT, enforceable against it in accordance with its terms
except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting
the enforcement of rights of creditors generally, and to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in equity or law);
provided, however, that if the Seller is not an Eligible Lender, the power and authority to hold,
sell and pledge each Loan described in clause (1) shall refer, with respect to the holder
of the beneficial interests of such Loans, to the beneficial interest of the Seller, and with
respect to the Seller ELT, to its interest as the legal title holder of the Loan.


 


C-1-1









 





(vii) The execution and delivery of this Agreement and each other Transfer Agreement by each
of the Seller and the Seller ELT and the performance of and compliance with the terms of this
Agreement and each other Transfer Agreement will not violate its formation documents or constitute
a default under or result in a breach or acceleration of, any material contract, agreement or other
instrument to which it is a party or which may be applicable to it or its assets.



(viii) Neither the Seller nor the Seller ELT is in violation of, and the execution and
delivery of this Agreement and each other Transfer Agreement by it and its performance and
compliance with the terms of this Agreement and each other Transfer Agreement will not constitute a
violation with respect to, any order or decree of any court or any order or regulation of any
federal, state, municipal or governmental agency having jurisdiction over it or its assets, which
violation might have consequences that would materially and adversely affect the condition
(financial or otherwise) or its operations or its assets or might have consequences that would
materially and adversely affect the performance of its obligations and duties thereunder.



(ix) The Seller does not believe, nor does it have any reason or cause to believe, that it
cannot perform each and every covenant contained in this Agreement and each other Transfer
Agreement.



(x) There are no actions or proceedings against, or investigations of, the Seller before any
court, administrative agency or other tribunal (A) that might prohibit its entering into this
Agreement or any other Transfer Agreement, (B) that seeks to prevent the sale or pledge of Student
Loans or the consummation of the transactions contemplated by this Agreement or any other Transfer
Agreement or (C) that might prohibit or materially and adversely affect the performance by the
Seller of its obligations under, or the validity or enforceability of, this Agreement or any other
Transfer Agreement.



(xi) No consent, approval, authorization or order of any court or governmental agency or body
is required for the execution, delivery and performance by the Seller or the Seller ELT of, or
compliance by it with, this Agreement or any other Transfer Agreement or the consummation of the
transactions contemplated by this Agreement or any other Transfer Agreement, except for such
consents, approvals, authorizations or orders, if any, that have been obtained prior to the related
Transfer Date.



(xii) The transfer of the Loans shall be treated as a sale on the books and records of the
Seller and the Seller ELT, and, to the extent consistent with the facts and the circumstances of
the transaction and applicable tax and accounting standards, the Seller and the Seller ELT will
treat the disposition of the Loans pursuant to this Agreement for tax and accounting purposes as a
sale. Each of the Seller and the Seller ELT shall maintain a complete set of books and records for
each Loan which shall be clearly marked to reflect the ownership of each Loan by the Purchaser
Parties.



(xiii) The consideration received by the Seller upon each Transfer of the Loans constitutes
fair consideration and reasonably equivalent value for such Loans.



(xiv) The Seller is solvent and will not be rendered insolvent by the consummation of the
transactions contemplated hereby. The Seller is not transferring any Loan with any intent to
hinder, delay or defraud any of its creditors.


 


C-1-2









 





(xv) The Seller or, in the event that the Seller is a special purpose entity with respect to a
securitization or other financing facility, its administrator, as applicable, has an internal
quality control program that verifies, on a regular basis, the existence and accuracy of its legal
documents, credit documents and underwriting decisions, including all such documents and decisions
that would affect the validity of the representations and warranties required under this Agreement.
The program shall include evaluating and monitoring the overall quality of the loan production and
servicing of the loans of such Seller or administrator, as applicable. The program is to ensure
that the Loans are originated and serviced in accordance with applicable law; guard against
dishonest, fraudulent, or negligent acts; and guard against errors and omissions by officers,
employees, or other authorized persons.



(xvi) The Seller will not adversely select Loans for sale or pledge under this Agreement;
provided the Loan Sale Allocation Criteria shall be deemed not to be adverse.


 


C-1-3









 





ATTACHMENT C-2




SELLER AND SELLER ELT REPRESENTATIONS AND WARRANTIES




LOANS




(i) The Seller with respect to beneficial ownership and the Seller ELT with respect to record
ownership, each has good and marketable title to, and are the sole owners of, such Loan, free and
clear of any security interest or lien (other than an interest or lien that will be released
simultaneously with the Transfer of such Loan hereunder pursuant to a Security Release
Certification), charges, claims, offsets, defenses, counterclaims or encumbrances of any nature
(including, without limitation, any circumstances that could impair transfer of title to the Loans
free and clear of the claim of any party) and no right of rescission, offsets, defenses or
counterclaims have been asserted or threatened with respect to such Loan. The Transfer of such
Loan constitutes the absolute transfer of all right, title and interests of the Seller with respect
to beneficial ownership, and the Seller ELT, with respect to record ownership in such Loan to the
Purchaser Parties free and clear of any lien or Adverse Claim.



(ii) Such Loan is an Eligible Loan and the description of and information regarding such Loan
set forth in the Bill of Sale, Loan Transmittal Summary Form and any loan schedule prepared or
delivered in connection with the transfer thereof is true, complete and correct as of the date of
the applicable loan schedule.



(iii) The Seller (with respect to beneficial ownership) and the Seller ELT (with respect to
record ownership) is authorized to Transfer and, to the extent required hereunder, reacquire such
Loan; and the Transfer of such Loan is or, in the case of a reacquisition by the Seller (with
respect to beneficial ownership) and the Seller ELT (with respect to record ownership), will be
made pursuant to and consistent with the laws and regulations under which each of the Seller and
the Seller ELT operates, and will not violate any decree, judgment or order of any court or agency,
or conflict with or result in a breach of any of the terms, conditions or provisions of any
agreement or instrument to which it is a party or by which it or its property is bound, or
constitute a default (or an event which could constitute a default with the passage of time or
notice or both) thereunder.



(iv) Such Loan is in full force and effect in accordance with its terms and is the legal,
valid and binding obligations of the respective Borrower thereunder subject to no defenses.



(v) Such Loan has been duly made and serviced in accordance with the provisions of the FFELP
established under the Higher Education Act, and has been duly guaranteed by a Guarantor; the
Guarantee Agreement is in full force and effect, and all premiums due and payable to such Guarantor
as of the related Transfer Date shall have been paid in full.



(vi) Such Loan provides or, when the payment schedule with respect thereto is determined, will
provide for payments on a periodic basis that fully amortize the Principal Balance thereof by its
maturity, as such maturity may be modified in accordance with any applicable deferral or
forbearance periods granted in accordance with applicable laws, including, those of the Higher
Education Act or any applicable Guarantee Agreement, as applicable.



(vii) Any payments on such Loan received by the Purchaser that have been allocated to the
reduction of principal and interest on such Loan have been allocated on a simple interest basis.



(viii) Such Loan has been duly made and serviced in accordance with all applicable federal,
state and local laws.


 


C-2-1









 





(ix) Due diligence and reasonable care have been exercised in the making, administering,
servicing and collecting on such Loan and, all disclosures of information required to be made
pursuant to the Higher Education Act prior to the related Transfer Date have been made.



(x) The related Borrower is an eligible borrower under the terms of Section 428, 428B or 428H
of the Higher Education Act, as applicable.



(xi) All borrower origination and loan fees required by Section 438 of the Higher Education
Act have been paid to the Secretary or appropriately reserved by the Seller or Seller ELT for
payment to the Secretary.




(xii) Such Loan is denominated and payable only in United States dollars.



(xiii) The transfer and assignment herein contemplated constitute a valid Transfer of such
Loan from the Seller with respect to beneficial ownership, and the Seller ELT, with respect to
record ownership to the Purchaser Parties, and the beneficial interest in and title to such Loan
shall not be part of the Seller’s or the Seller ELT’s estate in the event of its bankruptcy or the
appointment of a receiver with respect to the Seller or Seller ELT.



(xiv) With respect to the related Promissory Note, there is only one originally executed
Promissory Note evidencing such Loan, and such original Promissory Note (or a true and correct copy
thereof) has been delivered to the designee of the Purchaser. If a true and exact copy of an
original electronic Promissory Note has been delivered to the Purchaser or its designee, the Seller
of such Loan (or its designee) has possession of such electronic Promissory Note. The related
Promissory Note that constitutes or evidences such Loan does not have any marks or notations
indicating that it has been further pledged, assigned or otherwise conveyed to any Person other
than the Purchaser, the Purchaser ELT or their designee (other than an interest or lien that will
be released simultaneously with the purchase of the Loans under this Agreement).



(xv) To the extent such Loan is evidenced by an electronic Promissory Note, the Seller has
complied (and has caused any originator or servicer of such Loan to comply) with all regulations
and other requirements adopted by the applicable Guarantor or the Department relating to the
validity and enforceability of such Promissory Note.



(xvi) Neither the Seller nor the Seller ELT has pledged, assigned, sold, granted a security
interest in, or otherwise conveyed such Loan (other than an interest or lien released
simultaneously with the Transfer of such Loan hereunder pursuant to a Security Release
Certification). Neither Seller Party has authorized the filing of or is aware of any financing
statements against it that include a description of collateral covering any Loan hereunder (whether
or not any additional collateral is covered by such financing statements) or any other security
interest that has not been terminated with respect to the applicable Loans, or that will not be
terminated with respect to the applicable Loans upon Transfer to the Purchaser Parties. Neither
Seller Party is aware of any judgment or tax lien filings against it.



(xvii) The related Borrower of such Loan as of the related Transfer Date is not noted in any
loan file prepared in connection therewith, including the related Loan Transmittal Summary Form, as
being currently involved in a bankruptcy proceeding.




(xviii) Such Loan satisfies all of the terms and conditions of the Transaction Documents.



(xix) The Seller with respect to beneficial ownership, and the Seller ELT, with respect to
record ownership had title to and ownership of, the Loan on or after the date on which the Seller’s
Notice of Intent to Participate was received and acknowledged by the Department, and before July 1,
2010.



(xx) Such Loan was not delinquent for 210 days or more or at such time subject to a claim
filed with the applicable Guarantor.



(xxi) Such Loan has not been previously pledged to secure the Funding Note.


 


C-2-2









 






(xxii) Such Loan is an Eligible Loan.



(xxiii) Either (i) such Loan is not subject to any Excluded Borrower Benefits or (ii) with
respect to any Loan subject to Excluded Borrower Benefits, the amount required to be deposited into
the Excluded Borrower Benefit Account has been deposited.


 


C-2-3









 





ATTACHMENT C-3




SELLER REPRESENTATIONS AND WARRANTIES




ADDITIONAL




(i) The Seller is not required to register as an “investment company” and is not controlled by
an entity that is required to register as an “investment company” under the Investment Company Act.



(ii) (1) No Reportable Event has occurred during the six year period prior to the date on
which this representation is made or deemed made with respect to any Benefit Plan; (2) no steps
have been taken by any Person to terminate any Benefit Plan subject to Title IV of ERISA; (3) no
contribution failure or other event has occurred with respect to any Benefit Plan which is
sufficient to give rise to a lien on the assets of the Seller or any ERISA Affiliate in favor of
the PBGC, during such six-year period; (4) each Benefit Plan has been administered in all material
respects in compliance with its terms and the applicable provisions of ERISA, the Code and all
other applicable laws and regulations; (5) neither the Seller nor any ERISA Affiliate maintains or
contributes to any employee welfare benefit plan within the meaning of Section 3(1) of ERISA which
provides benefits to employees after termination of employment and which is unfunded by a material
amount, except as specifically required by the continuation requirements of Part 6 of Title I of
ERISA; (6) the present value of all accrued benefits under each Benefit Plan subject to Title IV of
ERISA (based on those assumptions used to fund such Benefit Plans) did not, as of the last
valuation date prior to the date on which this representation is made or deemed made, exceed the
value of the assets of such Benefit Plan allocable to such accrued benefits; (7) neither the Seller
nor any ERISA Affiliate has had a complete or partial withdrawal from any Multiemployer Plan and
neither the Seller nor any ERISA Affiliate would become subject to any liability under ERISA if the
Seller or any such ERISA Affiliate were to withdraw completely from all Multiemployer Plans as of
the valuation date most closely preceding the date on which this representation is made or deemed
made and (8) no such Multiemployer Plan is insolvent within the meaning of Section 4245 of ERISA or
in reorganization within the meaning of Section 4241 of ERISA; provided that this
subsection (ii) shall not apply to events which could not reasonably be expected to have a
Material Adverse Effect on the Seller.



(iii) The Seller has caused the filing of all such UCC financing statements in the proper
filing offices of all such jurisdictions as may be necessary under all applicable law in order to
perfect the Collateral Security Interest as a first-priority continuing security interest in each
Loan Transferred hereunder and all such UCC financing statements contain a statement to the
following effect: “A transfer of or grant of a security interest in any collateral described in
this financing statement will violate the rights of the secured party.”



(iv) Together with each other Transfer Agreement, this Agreement creates a valid and
continuing security interest (as defined in the applicable UCC) in all Loans Transferred hereunder
in favor of the Purchaser Parties, which security interest is prior to all other Adverse Claims,
and is enforceable as such as against creditors of, and purchasers from, the Seller Parties.



(v) All information supplied by, or on behalf of, the Seller in writing to either Purchaser
Party and the Department in connection with this Agreement, the related Bill of Sale or any other
Transaction Document is true, accurate and complete in all material respects as of the date thereof
stated or certified. No information, exhibit or report furnished by the Seller to any Purchaser
Party or the Department in connection with this Agreement, the related Bill of Sale or any other
Transaction Document contains any material misstatement. The financial information regarding the
Seller heretofore delivered to the Purchaser Parties and the Department correctly and fairly
presents the financial condition of the Seller as of the date hereof.


 


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ATTACHMENT C-4




PURCHASER AND PURCHASER ELT REPRESENTATIONS AND WARRANTIES




(i) Each of the Purchaser and Purchaser ELT (1) is duly organized, validly existing and in
good standing under the laws of the State of its formation or of the United States, as applicable,
(2) has all licenses necessary to carry out its business as now being conducted or is otherwise
exempt under applicable law from such licensing or qualification or is otherwise not required under
applicable law to effect such licensing or qualification and no demand for such licensing or
qualification has been made upon it by any such state, and (3) in any event is in compliance with
the laws of any such state to the extent necessary to ensure the enforceability of each Loan. No
licenses or approvals obtained by it have been suspended or revoked by any court, administrative
agency, arbitrator or governmental body and no proceedings are pending which might result in such
suspension or revocation.



(ii) The Purchaser ELT is an “eligible lender” as such term is defined in Section 435(d) of
the Higher Education Act, has a lender identification number issued by the Department with respect
to the Loans (which lender identification number is not shared with any other Person and is not
associated with any student loans other than Student Loans pledged to the Conduit Lender) and the
Seller ELT has in effect a Guarantee Agreement with a Guarantor with respect to each of the Loans.



(iii) Each of the Purchaser and Purchaser ELT (1) has duly authorized the execution, delivery
and performance of this Agreement and each other Transfer Agreement and (2) has duly executed and
delivered this Agreement and each Transfer Agreement. This Agreement and each other Transfer
Agreement, assuming due authorization, execution and delivery by the other parties thereto,
constitutes the legal, valid and binding obligation of the Purchaser and the Purchaser ELT,
enforceable against each it in accordance with its terms except as the enforceability thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of rights of creditors generally, and to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or law).



(iv) The execution and delivery of this Agreement and each other Transfer Agreement by the
Purchaser and the Purchaser ELT and the performance of and compliance with the terms of this
Agreement and each other Transfer Agreement will not violate its formation documents or constitute
a default under or result in a breach or acceleration of, any material contract, agreement or other
instrument to which it is a party or which may be applicable to it or its assets.



(v) Neither the Purchaser nor the Purchaser ELT is in violation of, and the execution and
delivery of this Agreement and each other Transfer Agreement by it and its performance and
compliance with the terms of this Agreement and each other Transfer Agreement will not constitute a
violation with respect to, any order or decree of any court or any order or regulation of any
federal, state, municipal or governmental agency having jurisdiction over it or its assets, which
violation might have consequences that would materially and adversely affect the condition
(financial or otherwise) or its operations or its assets or might have consequences that would
materially and adversely affect the performance of its obligations and duties thereunder.



(vi) No consent, approval, authorization or order of any court or governmental agency or body
is required for the execution, delivery and performance by the Purchaser or Purchaser ELT of, or
compliance by it with, this Agreement or any other Transfer Agreement or the consummation of the
transactions contemplated by this Agreement or any other Transfer Agreement, except, with respect
to any other Transfer Agreement, for such consents, approvals, authorizations or orders, if any,
that have been obtained prior to the related Transfer Date.




 


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ATTACHMENT D-1




SELLER COVENANTS




(i) The Seller shall comply with all applicable laws, rules, regulations and orders, except to
the extent that failure to so comply would not have a Material Adverse Effect.



(ii) The Seller shall preserve and maintain its existence as an organization, and its rights,
franchises and privileges in the jurisdiction of its formation, and qualify and remain qualified in
good standing as a foreign organization in each jurisdiction where the failure to preserve and
maintain such existence, rights, franchises, privileges and qualification could have a Material
Adverse Effect.



(iii) The Seller shall not change its legal name, any other name under which it does business,
its principal place of business, its chief executive office, the location where it keeps any
Records in its possession or under its control, its type of organization or its jurisdiction of
formation without:




	 	(A)	 	giving prior written notice to the Purchaser, the Department and the
Conduit Administrator; and







	 	(B)	 	taking, at its own expense, all actions reasonably requested by
either Purchaser Party, the Department or the Conduit Administrator in order to
perfect, maintain and protect the interest of the Purchaser Parties in the Loans
and the Related Security with respect thereto, including, without limitation, the
Collateral Security Interest.






(iv) The Seller shall permit the Purchaser, the Conduit Administrator and the Department, and
their respective agents, upon reasonable notice and from time to time during regular business
hours, upon reasonable notice: (a) to examine and make copies of and take abstracts from all
books, records and documents (including computer tapes and disks) relating to the Loans and (b) to
visit the offices and properties of the Seller for the purpose of examining such materials
described in clause (a) above, and to discuss matters relating to the Loans or the Seller’s
performance hereunder with any of the officers, directors, employees or independent public
accountants of the Seller having knowledge of such matters; provided that prior to the
occurrence of the Sale Termination Date, the Purchaser and the Conduit Administrator shall make not
more than one such inspection per calendar year; it being understood that the Department
shall not be subject to the limitation contained in the immediately preceding proviso. Any
reasonable expenses related to such inspections shall be reimbursable directly by the Purchaser.
In addition, from time to time during the year, the Conduit Administrator may, at its own expense,
conduct any other inspections as it may deem necessary or appropriate, provided such
inspections occur upon reasonable notice and during regular business hours.




(v) Seller shall take all actions necessary to ensure that:




	 	(A)	 	Except as expressly set forth in the Transaction Documents, the
Purchaser’s operating expenses are not paid by the Seller;







	 	(B)	 	The books and records of the Seller are maintained separately from
those of the Purchaser;







	 	(C)	 	Except as expressly set forth in the Transaction Documents, the funds
of the Seller are not commingled with those of the Purchaser;







	 	(D)	 	The Seller strictly observes corporate formalities in its dealing
with the Purchaser;







	 	(E)	 	The Seller maintains an arm’s length relationship with the Purchaser
and the Seller is compensated at market rates for any services it renders or
otherwise furnishes to the Purchaser; and







	 	(F)	 	Except as expressly set forth in the Transaction Documents, the
Seller is not, and does not hold itself out to be, responsible for the debts of
the Purchaser or the decisions or actions in respect of the daily business and
affairs of the Purchaser.





 


D-1-1









 










(vi) The Seller shall take, at its own expense, any and all actions reasonably requested by
either Purchaser Party, the Department or the Conduit Administrator in order to perfect, maintain
and protect the interest of the Purchaser Parties and the Department in the Loans and the Related
Security with respect thereto, including, without limitation, the Collateral Security Interest or
to enable either Purchaser Party to exercise its rights and remedies hereunder with respect to any
of the Loans and the Related Security with respect thereto, including, without limitation:




	 	(A)	 	executing, authorizing and filing financing or continuation
statements, or amendments thereof, in form and substance reasonably satisfactory
to the Purchaser Parties, the Department and the Conduit Administrator;







	 	(B)	 	delivering to the Conduit Administrator, the Department or applicable
Subcustodian, in each case as bailee for the Conduit Lender and in accordance with
the applicable Transfer Agreements, all manually executed Promissory Notes duly
endorsed and accompanied by duly executed instruments of transfer or assignment
and all electronic records evidencing electronically executed Promissory Notes;
and







	 	(C)	 	marking conspicuously each Record in its possession or under its
control with a legend, in form and substance reasonably satisfactory to the
Purchaser, the Department and the Conduit Administrator, indicating that the
related Loan has been sold to the Purchaser and such Record is subject to a
security interest in favor of the Purchaser.






(vii) In the event of (A) any merger or consolidation of the Seller into another Person,
(B) any merger or consolidation to which the Seller shall be a party resulting in the creation of
another Person, (C) any Person succeeding to the properties and assets of the Seller substantially
as a whole or (D) an event or series of events by which any Person acquires the right to vote more
than 50% of the common stock or other voting interest of the Seller, the Seller shall cause such
Person to execute an agreement which states expressly that such Person assumes every obligation of
the Seller hereunder and under each other Transaction Document to which the Seller is party, in
form satisfactory to the Purchaser and the Conduit Administrator.



(viii) The Seller shall deliver to the Purchaser, the Department and the Conduit
Administrator:




	 	(A)	 	promptly and in any event within 45 days after the filing or
receiving thereof, copies of all reports, documentation and notices with respect
to (A) any “Reportable Event,” relating to a Benefit Plan (B) the institution of
proceedings or the taking of any other action regarding the termination of,
withdrawal from, reorganization within the meaning of Section 4241 of ERISA or
insolvency within the meaning of Section 4245 of ERISA, any Benefit Plan subject
to Title IV of ERISA which the Seller or any of its ERISA Affiliates files under
ERISA with the Internal Revenue Service, the PBGC or the U.S. Department of Labor
or which the Seller or any of its ERISA Affiliates receives from the PBGC, (C) a
failure to make any required contribution to a Benefit Plan, (D) the creation of
any lien against the assets of the Seller or an ERISA Affiliate in favor of the
PBGC or a Benefit Plan under ERISA or (E) the taking of any action with respect to
a Benefit Plan which could result in the requirement that the Seller or any ERISA
Affiliate furnish a bond or other security to the PBGC or such Benefit Plan;







	 	(B)	 	immediately upon becoming aware (i) of any failure of the Seller to
comply with the terms and conditions of this Agreement, or (ii) that any
representation, warranty or statement made by the Seller pursuant to this
Agreement was false or incorrect in any material respect when made or
deemed made, a written statement of the chief financial officer or chief
accounting officer of the Seller setting forth details of such event and the
action that the Seller proposes to take with respect thereto;





 


D-1-2









 











	 	(C)	 	promptly (but in any event within five (5) Business Days) after the
Seller’s actual knowledge or receipt of notice thereof, written notice of:







	 	(1)	 	the submission of any claim or the initiation or threat
of, or any material adverse development in, any legal process, litigation,
administrative or judicial investigation, or rule making or disciplinary
proceeding by or against the Seller that could have a Material Adverse
Effect;







	 	(2)	 	the receipt of notice (A) that the Seller is being placed
under regulatory supervision, (B) that any license, permit, charter,
registration or approval necessary for the conduct of the Seller’s business
is to be, or may be, suspended or revoked, or (C) ordering the Seller to
cease and desist from any practice, procedure or policy employed by the
Seller in the conduct of its business, and such cessation could have a
Material Adverse Effect;







	 	(3)	 	the commencement of any proceedings by or against the
Seller under any applicable bankruptcy, reorganization, liquidation,
rehabilitation, insolvency or other similar law now or hereafter in effect
or of any proceeding in which a receiver, liquidator, conservator, trustee
or similar official shall have been, or may be, appointed or requested for
the Seller or any of its assets; or







	 	(4)	 	changes in any law, rule or regulation or the
promulgation of any proceeding or any proposed or final rule that could have
a Material Adverse Effect; or







	 	(D)	 	to the extent such are available without undue hardship or expense,
promptly after receipt of written request therefor, such other information,
documents, records or reports respecting the Loans or the condition or operations
(financial or otherwise) of the Seller as the Purchaser, the Department or the
Conduit Administrator may reasonably request in order to protect the interests of
the Purchaser Parties and the Department hereunder.






(ix) The Seller shall from and after the Closing Date, (i) cause the Seller ELT to maintain
the applicable Guarantee Agreements and diligently enforce the Seller ELT’s rights thereunder;
(ii) cause the Seller ELT to enter into such other similar or supplemental agreements as shall be
required to maintain benefits for all Loans covered thereby; and (iii) not voluntarily consent to
or permit any rescission of or consent to any amendment to or otherwise take any action under or in
connection with any such Guarantee Agreement or any similar or supplemental agreement in any manner
which would materially and adversely affect the ability of the Funding Note Issuer to perform its
obligations under the Funding Note Purchase Agreement or cause a Material Adverse Effect with
respect to the Funding Note Issuer without the prior written consent of the Conduit Administrator
and the Manager, except as shall be required by applicable laws or regulations.


 


D-1-3









 





ATTACHMENT D-2




SELLER ELT COVENANTS




The Seller ELT shall not change its legal name, any other name under which it does business or
the state where it is located for purposes of Section 9-307 of the New York UCC without:




	 	(A)	 	giving prior written notice to the Purchaser, the Department and the
Conduit Administrator; and







	 	(B)	 	cooperating, at the sole cost and expense of the Seller, with all
actions reasonably requested by either Purchaser Party, the Department or the
Conduit Administrator in order to perfect, maintain and protect the interest of
the Purchaser Parties in the Loans and the Related Security with respect thereto,
including, without limitation, the Collateral Security Interest.





 


D-2-1









 





ATTACHMENT D-3




PURCHASER COVENANTS




The Purchaser shall not change its legal name, any other name under which it does business or
the state where it is located for purposes of Section 9-307 of the New York UCC without:




	 	(A)	 	giving prior written notice to the Department and the Conduit
Administrator; and







	 	(B)	 	taking, at the sole cost and expense of the Purchaser, all actions
reasonably requested by the Department or the Conduit Administrator in order to
perfect, maintain and protect the interest of the Purchaser in the Loans and the
Related Security with respect thereto, including, without limitation, the
Collateral Security Interest.





 


D-3-1









 





ATTACHMENT D-4




PURCHASER ELT COVENANTS




(i) The Purchaser ELT shall not change its legal name, any other name under which it does
business or the state where it is located for purposes of Section 9-307 of the New York UCC
without:




	 	(A)	 	giving prior written notice to the Purchaser, the Department and the
Conduit Administrator; and







	 	(B)	 	cooperating, at the sole cost and expense of the Purchaser, with all
actions reasonably requested by the Purchaser, the Department or the Conduit
Administrator in order to perfect, maintain and protect the interest of the
Purchaser in the Loans and the Related Security with respect thereto, including,
without limitation, the Collateral Security Interest.






(ii) The Purchaser ELT shall hold title to all Loans for the benefit of the Purchaser and not
for its own account.




 


D-4-1









 







ATTACHMENT E




NOTICE ADDRESSES




If to the Seller:




National Education Loan Network, Inc.

121 South 13th Street

Suite 201

Lincoln NE 68508

Attention: Carol Aversman

Fax: (402) 458-2399

Email: carol.aversman@nelnet.com




If to the Seller ELT:




Union Bank and Trust Company

6801 South 27th Street

Lincoln, NE 68506

Attention: Jon Gross

Fax: (402) 323-1105

Email: jon.gross@ubt.com




If to the Purchaser:




Nelnet Superconduit Funding, LLC

c/o National Education Loan Network, Inc.

121 South 13th Street

Suite 201

Lincoln NE 68508

Attention: Carol Aversman

Fax: (402) 458-2399

Email: carol.aversman@nelnet.com




with a copy to:




National Education Loan Network, Inc.

121 South 13th Street

Suite 201

Lincoln NE 68508

Attention: Carol Aversman

Fax: (402) 458-2399

Email: carol.aversman@nelnet.com



 


E-1









 





If to the Purchaser ELT:




Zions First National Bank

1001 17th Street, Suite 1050

Denver, CO 80202

Fax: (720) 947-7480

Email: casey.gunning@zionsbank.com




If to the Conduit Administrator:




The Bank of New York Mellon

101 Barclay Street, 4E

New York, NY 10286

Attention: Andrew J Taylor

Fax: (212) 815-2020

e-mail: BMOStraightA@bnymellon.com




If to the Department:




By U.S. Postal Service mail:




United States Department of Education

400 Maryland Avenue, SW

UCP, Room 111G3

Washington, DC 20202-5402

Attention: FFELP Agreement Process Team

e-mail: FFEL.agreementprocess@ed.gov




By courier or express mail:




United States Department of Education

830 First Street, N.E.

Room 111G3

Washington, DC 20202-5402

Attention: FFELP Agreement Process Team

e-mail: FFEL.agreementprocess@ed.gov




If to the Rating Agencies:




Standard & Poor’s Ratings Services

55 Water Street, 35th floor

New York, NY 10041

Attention: Dev Vithani

e-mail: servicer_reports@sandp.com




Fitch, Inc.

One State Street Plaza

New York, New York 10004

Attention: Asset-Backed Securities

Fax: (212) 514-9879

e-mail: notifications.abs@fitchratings.com




If to a Servicer:




The address set forth in the Bill of Sale with respect to the applicable Loan.




 


E-2









 







ATTACHMENT F




FORM OF SUBORDINATED CREDIT AGREEMENT




THIS SUBORDINATED CREDIT AGREEMENT (this “Agreement”) is made as of May 13, 2009, between
NATIONAL EDUCATION LOAN NETWORK, INC., a Nevada corporation (the “Lender”), and NELNET SUPERCONDUIT
FUNDING, LLC, a Delaware limited liability company (the “Company”).



PRELIMINARY STATEMENTS




WHEREAS, the Company will initially issue a variable funding note (the “Funding Note”)
pursuant to the Funding Note Purchase Agreement, dated as of May 13, 2009, among Straight-A
Funding, LLC, as conduit lender (the “Conduit Lender”), the Company, Zions First National Bank, as
eligible lender trustee, Nelnet, Inc., as sponsor, The Bank of New York Mellon, as conduit
administrator, securities intermediary and conduit lender eligible lender trustee, BMO Capital
Markets Corp., as manager, and National Education Loan Network, Inc., as master servicer, and
National Education Loan Network, Inc., as SPV administrator (as amended, restated, supplemented or
otherwise modified, the “Funding Note Purchase Agreement”);



WHEREAS, from time to time, the Company will purchase certain Eligible Loans from the Seller
pursuant to the terms of the Student Loan Purchase Agreement;



WHEREAS, the Company desires to borrow from the Lender in connection with any purchase of
Eligible Loans, the amount of the difference, if any, between the purchase price of the Eligible
Loans purchased pursuant to the Student Loan Purchase Agreement on such date (being their fair
market value based on current market conditions at the time of transfer) and the amount of funds
the Company otherwise has available to pay such purchase price; and



WHEREAS, the Lender may be willing to make subordinated loans to Company to fund such amounts
on the terms and conditions set forth herein.



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



ARTICLE I




Section 1.01. Defined Terms. Except as otherwise specified herein or as the context may
otherwise require, capitalized terms used but not otherwise defined herein are defined in
Appendix A to the Funding Note Purchase Agreement. The principles of construction and
rules of interpretation set forth in Appendix A to the Funding Note Purchase Agreement
shall apply, mutatis mutandis, to this Agreement, with each reference to “this Agreement” in such
Section being a reference to this Agreement. The following terms have the following meanings:




“Event of Default” means any event of default specified in Section 5.01.




“LIBOR Rate” means, the daily weighted average of the rate per annum for each day during
the period equal to the rate determined by the Lender be the offered rate that appears on the
page of the Reuters Screen that displays an average British Bankers Association Interest
Settlement Rate (such page currently being LIBOR01) for deposits in United States dollars
(for delivery on the first day of such period) with a one-month period, determined as of
approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of such
period.




“Loan” means each loan of funds made to the Company by the Lender pursuant to
Section 2.01.


 


F-1









 






“Maturity Date” means the earlier to occur of (i) the date designated as such in writing
by the Company and the Lender from time to time and (ii) the date this Agreement is
terminated by the Lender pursuant to Section 5.02; provided, that in no event
shall the Maturity Date occur prior to the date that is one year and one day after the Final
Maturity Date under the Funding Note Purchase Agreement and the payment in full of the
Obligations thereunder.




“Scheduled Expiration Date” means the date that is 364 days after the date hereof, which
shall be automatically renewed for an additional term of 364 days unless either the Company
or the Lender sends written notice to the other party not less than 30 days prior to the next
applicable Scheduled Expiration Date of such party’s desire not to extend the Scheduled
Expiration Date for an additional term.




“Spread” means 0.50%.



ARTICLE II




Section 2.01. Loans to Company. Subject to the terms and conditions of this Agreement and in
reliance on the representations and warranties set forth herein, the Lender, in its sole
discretion, may make Loans to the Company, from time to time from the date of this Agreement to but
excluding the Scheduled Expiration Date, in an aggregate principal amount outstanding at any one
time not to exceed One Hundred Million Dollars ($100,000,000); provided that no Loan shall
be made at any time if, after giving effect to such Loan, the aggregate principal amount
outstanding, together with interest owing thereon, shall exceed the excess of the aggregate
Collateral Value of all Financed Student Loans, over the aggregate amount of all Obligations. The
determination of the Lender to make a Loan will also be subject to the conditions that (and the
Company shall not request a Loan unless) (i) no event has occurred and is continuing, or would
occur by the borrowing of the Loan, which constitutes an Event of Default or which, upon the giving
of notice, the lapse of time, or both, would constitute an Event of Default and (ii) the
representations and warranties contained in Section 3.01 are true and correct on and as of
the date of each such Loan and will continue to be true and correct after such Loan is made. The
Loans shall be evidenced by a subordinated note in the form attached as Exhibit A.



Section 2.02. Company’s Obligations. The Company hereby promises to pay in full the unpaid
principal amount of the Loans on the Maturity Date and any and all accrued and unpaid interest on
the Loans as more fully set forth in Section 2.04 below. The obligation of the Company to
pay the principal of and interest on the Loans shall be absolute and unconditional, shall be
binding and, to the fullest extent permitted by law, enforceable in all circumstances whatsoever
and shall not be subject to setoff, recoupment or counterclaim; provided, however, that the Company
shall only be obligated to pay principal of and interest on the Loans from distributions of
Available Funds (if any) pursuant to and in accordance with the priority of payments set forth in
Section 1.05(c) of the Funding Note Purchase Agreement and, after termination of the
Funding Note Purchase Agreement, from funds of the Company. The Lender, as agent for the Company,
shall maintain on its books and records a register on which it will record each Loan made, each
repayment of any Loan and interest thereon, each transfer of any Loan, and each owner of any Loan.
Any such recordation by the Lender shall be presumptively correct, absent manifest error. Failure
to make any such recordation, or any error in such recordation, shall not affect the Company’s
obligations hereunder. The register shall be available for inspection by the Company at any
reasonable time and from time to time upon reasonable prior notice.



Section 2.03. Requests for Loans. The Company will give the Lender notice of a request for a
Loan at least one (1) Business Day prior to the day on which the Company wishes to receive the
Loan. Subject to the terms and conditions of this Agreement, the Lender will make the requested
Loan on the Business Day specified in the notice in immediately available funds in accordance with
the Company’s payment instructions.


 


F-2









 





Section 2.04. Interest. (a) Interest will accrue on the average daily balance of the unpaid
principal amount of the Loans, for each day from the date such Loans are made until they become due
or are paid in full, at a rate per
annum equal to the sum of the LIBOR Rate then in effect plus the Spread. Should any principal
of, or accrued interest on, a Loan not be paid when due, such amount will bear interest from its
due date until paid in full, at a rate per annum equal to the LIBOR Rate then in effect plus
1.00%). In no event will the rate of interest hereunder exceed the maximum rate allowed by law. A
certificate of the Lender as to determination of the LIBOR Rate, the Spread, the calculation of the
interest rate therefrom and the calculation of any interest due and payable will be, absent
manifest error, conclusive and binding on the Company.



(b) Interest shall be payable on each Settlement Date during the term of this Agreement;
provided, that if such day is not a Business Day, the payment date for such period shall be
the Business Day immediately following such day (but only to the extent that the Company has funds
for such purpose in accordance with Section 2.02 hereof) and on the Maturity Date.
Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months. Such
computations shall be made including the first day but excluding the last day occurring in the
period for which such interest or other amounts are payable.



Section 2.05. Repayment and Prepayment of the Loans. The outstanding principal amount of all
Loans and all accrued and unpaid interest thereon will be due and payable in full on the Maturity
Date. The Company may prepay any outstanding Loan, in whole or in part, at any time without
penalty. Any amounts prepaid may be reborrowed. All payments of principal of and interest on the
Loans will be made in lawful money of the United States, in immediately available funds, to the
agent of the Lender (as may be designated in writing by the Lender from time to time). If any such
payment falls due on a day which is not a Business Day, such payment will be due on the next
following Business Day. Payments received by the Lender will be applied: first, to
accrued and unpaid interest on the Loans, and second, to the principal of the Loans.



ARTICLE III




Section 3.01. Representations and Warranties. To induce the Lender to extend this Agreement
and to make Loans in its sole discretion hereunder, the Company represents and warrants as follows:



(a) It is a limited liability company duly organized, validly existing and in good standing
solely under the laws of the State of Delaware and is duly qualified to do business, and is in good
standing, in every jurisdiction in which the nature of its business requires it to be so qualified;



(b) It has full power and authority to enter into the transactions provided for in this
Agreement and has been duly authorized to do so by all necessary and appropriate action and when
executed and delivered by it, this Agreement will constitute the legal, valid and binding
obligations of the Company enforceable in accordance with their terms;



(c) There does not exist any default or violation by it of or under any of the terms,
conditions or obligations of: (i) its organizational documents; (ii) any material agreement or
other instrument to which it is a party or by which it is bound; or (iii) any law, regulation,
ruling, order, injunction, decree, condition or other requirement applicable to or imposed upon it
by any law or by any governmental authority, court or agency; and



(d) At the time of (and immediately after) each Loan is made hereunder, (i) the Company’s
total assets exceed its total liabilities, (ii) the Company’s cash on hand is sufficient to
satisfy all of its current obligations (other than any amounts due under this Agreement and the
obligation to pay the outstanding Funding Note), (iii) the Company is adequately capitalized at a
commercially reasonable level, (iv) the Company has determined that its financial capacity to meet
its financing commitment under this Agreement is adequate and (v) the principal amount outstanding
under this Agreement, together with the interest owning thereon, does not exceed the excess of the
aggregate Collateral Value of all Financed Student Loans, over the aggregate amount of all
Obligations.


 


F-3









 





ARTICLE IV




Section 4.01 Compliance with Laws. The Company shall comply with all applicable laws, rules
and regulations in all material respects.



Section 4.02 Keeping of Records and Books of Account. The Company shall maintain and keep
proper books and records and account which enable the Company to prepare and issue financial
statements in accordance with generally accepted accounting principles and as otherwise may be
required by any applicable law, rule or regulation and in which full, true and correct entries
shall be made of all of its dealings and business and financial affairs. The Company shall permit
the Lender to examine and make excerpts from such books and records at such times and as often as
the Lender may reasonably request. The Company shall permit, upon the request of the Lender, an
audit to be conducted of the Company’s financial statements and books and records. Any such audit
shall be at the Company’s expense and shall be conducted by independent accountants selected by the
Lender.



Section 4.03 No Distributions. The Company will not make any cash or in-kind distributions to
its equity holders unless both before and after each such distribution the representations and
warranties contained in Section 3.01 above would be true and correct.



ARTICLE V




Section 5.01 Events of Default. Each of the following shall constitute an Event of Default
(“Event of Default”):



(a) the Company fails to pay, within five (5) Business Days after it is due and payable, any
principal of or interest on any of the Loans; provided, that for purposes of this
Section 5.01(a), no principal or interest shall be considered due and payable on a date
that is prior to the Maturity Date; or



(b) the Company fails to perform or observe any other term or condition of any of this
Agreement applicable to it and such event or circumstance, if capable of being cured, is not cured
within 30 days after written notice thereof is given by the Lender to the Company; or




(c) an Event of Bankruptcy occurs with respect to the Company.



Section 5.02 Remedies. Upon the occurrence of an Event of Default, the Lender may do any one
or more of the following (without presentment, protest or notice of protest, all of which are
expressly waived by the Company): (i) terminate this Agreement and declare the principal of and
interest on the Loans and all other sums owing by the Company to the Lender under this Agreement
forthwith due and payable, whereupon this Agreement will terminate and the principal of, and
interest on, the Loans and all such other sums will become forthwith due and payable; and
(ii) subject to Section 5.03, exercise all rights granted pursuant to this Agreement, in
such order and in such manner as the Lender may, in its sole and exclusive judgment, determine.



Section 5.03 Subordination. Notwithstanding anything contained in this Agreement to the
contrary, to the extent that the Lender is deemed to have any interest in any assets of the
Company, the Lender agrees that all amounts outstanding hereunder and its interest in those assets
are subordinate in all respects to claims or rights of the Conduit Lender and the Department under
the Funding Note issued pursuant to the Funding Note Purchase Agreement; and provided further, that
notwithstanding any rights or remedies available to the Lender under this Agreement, applicable law
or otherwise, prior to the time that all secured indebtedness or other secured obligations owned by
the Company, including the obligations of the Company under the Funding Note Purchase Agreement,
shall have been repaid in full, (i) the Lender shall not, directly or indirectly, seek to
accelerate or enforce (judicially or non-judicially) its rights hereunder or assert any claims or
interests therein (including, without limitation, by setoff or notification of account debtors) and
(ii) in the event that the Lender shall receive any payment or other distribution of any kind or
character
from the Company constituting collateral that is pledged to a Conduit Lender other than funds
transferred to the Lender, that are expressly permitted to be released to the Lender pursuant to
Section 4.05 of the Funding Note Purchase Agreement, such payment or other distribution
shall be received in trust for such Conduit Lender and shall be turned over to such Conduit Lender
forthwith by the Lender. The Lender agrees that this Agreement constitutes a subordination
agreement for purposes of Section 510(a) of the United States Bankruptcy Code, as amended from time
to time (11 U.S.C. §§ 101 et seq.).


 


F-4









 





ARTICLE VI




Section 6.01 Amendments and Waivers. Any provision of this Agreement may be amended or waived
if, but only if, such amendment or waiver is in writing and, in the case of an amendment, is signed
by all the parties hereto and, in the case of a waiver, is signed by the party granting the waiver
and then such waiver shall be effective only in the specific instance and for the specific purpose
for which given; provided that (a) no amendment to this Agreement shall be effective without the
prior written consent of the Department; provided that, with not less than ten
(10) Business Days’ prior written notice to the Department, the parties hereto may enter into any
such amendment, subject to the provisions in this Section 6.01, that does not have an
adverse effect on the Department and (b) no amendment to this Agreement shall be effective unless
each Rating Agency shall have been provided with at least ten (10) days notice and S&P shall not
have notified the Manager or the SPV Administrator that such amendment would result in a reduction,
qualification or withdrawal of the then-current rating of the Funding Note. To the extent the
consent of the Lender is required under this Agreement, the determination as to whether to grant or
withhold such consent shall be made by the Lender in its sole discretion without any implied duty
toward any other Person, except as otherwise expressly provided herein or therein.



Section 6.02 Notices. All notices and other communications provided for hereunder shall,
unless otherwise stated herein, be in writing (including communication by facsimile copy or other
electronic means) and mailed, delivered by nationally recognized overnight courier service,
transmitted or delivered by hand, as to each party hereto, at its address set forth on the
signature pages hereto or at such other address as shall be designated by such party in a written
notice to the other parties hereto. Each such notice, request or other communication shall be
effective (i) if given by facsimile, when such facsimile is transmitted to the specified facsimile
number and an appropriate confirmation is received, (ii) if given by mail, five days after being
deposited in the United States mails, first class postage prepaid, (iii) if given by recognized
courier guaranteeing overnight delivery, the Business Day following such day after such
communication is delivered to such courier or (iv) if given by any other means, when delivered at
the address specified in this Section 6.02.



Section 6.03. No Waivers; Remedies. No failure or delay by any party hereto in exercising,
any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of
any right hereunder preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any remedies provided by
law.



Section 6.04 Successors and Assigns. The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors and permitted
assigns, except that no party may assign or otherwise transfer any of its rights or obligations
under this Agreement without the prior written consent of each other party, except as otherwise
permitted by this Agreement, and any such purported assignment without such consent shall be void.
The Lender may not transfer interest in the Loans to persons other than affiliates of the Lender
that are U.S. Persons, as defined in Section 7701(a)(30) of the Internal Revenue Code of 1986, as
amended.



Section 6.05 Governing Law. THIS AGREEMENT 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).


 


F-5









 





Section 6.06 Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law, but if any
provision of this Agreement shall be prohibited by or invalid under applicable law, such provision
shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the
remainder of such provisions or the remaining provisions of this Agreement.



Section 6.07. Submission to Jurisdiction. EACH OF THE PARTIES HERETO HEREBY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
AND OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN FOR PURPOSES OF ALL LEGAL
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO
SO, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH
PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING IN THIS SECTION 6.07 SHALL AFFECT THE
RIGHT OF ANY PARTY HERETO TO BRING ANY ACTION OR PROCEEDING AGAINST ANY OTHER PARTY HERETO OR ANY
OF THEIR PROPERTY IN THE COURTS OF OTHER JURISDICTIONS.



Section 6.08. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY WAIVES ANY RIGHT TO
HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE,
AMONG ANY OF THEM ARISING OUT OF, CONNECTED WITH, RELATING TO OR INCIDENTAL TO THE RELATIONSHIP
BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT.



Section 6.09. Appointment of Service Agent. The Company hereby appoints Corporation Service
Company located at 80 State Street, Albany, NY 12207-2543, as the authorized agent upon whom
process may be served in any action arising out of or based upon this Agreement or the transactions
contemplated hereby that may be instituted in the United States District Court for the Southern
District of New York and of any New York State court sitting in the Borough of Manhattan by the
Lender or any successor or assignee of any of them.



Section 6.10. Bankruptcy Non-Petition and Limited Recourse. Notwithstanding any other
provision of this Agreement, the Lender covenants and agrees that it shall not, prior to the date
which is one year and one day (or, if longer, any applicable preference period plus one day) after
payment in full of all “Obligations” (as defined in the Funding Note Purchase Agreement), institute
against, or join any other Person in instituting against, the Company, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding, or any similar proceeding under
any federal or state bankruptcy or similar law; provided that nothing in this provision shall
preclude or be deemed to stop any other party hereto from taking any action prior to the expiration
of the aforementioned one year and one day period in (i) any case or proceeding voluntarily filed
or commenced by the Company or (ii) any involuntary insolvency proceeding filed or commenced
against the Company by a Person other than any other party hereto. The obligations of the Company
under this Agreement are unsecured obligations. The Lender acknowledges that the Company has no
assets other than the Pledged Collateral and all amounts owed hereunder are limited recourse
obligations payable solely from Available Funds generated by the Pledged Collateral and available
for payment of such obligations under Section 1.05(c) of the Funding Note Purchase
Agreement. In addition, no recourse shall be had for any amounts payable or any other obligations
arising under this Agreement against any officer, member, director, employee, partner or security
holder of the Company or any of its successors or assigns. The provisions of this
Section 6.10 shall survive the termination of this Agreement.


 


F-6









 





Section 6.11. Execution in Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together shall constitute
one and the same agreement. Delivery by facsimile or electronic mail of an executed signature page
of this Agreement shall be effective as delivery of an executed counterpart hereof.



Section 6.12. Integration. This Agreement, including all exhibits, schedules and appendices
and other documents attached hereto or incorporated by reference herein, constitutes the entire
agreement of the parties with respect to the subject matter hereof and supersedes all other
negotiations, understandings and representations, oral or written, with respect to the subject
matter hereof.



Section 6.13. Section Titles. The section titles contained in this Agreement shall be without
substantive meaning or content of any kind whatsoever and are not a part of the agreement between
the parties.



Section 6.14. Survival. The provisions of this Article VI shall be continuing and
shall survive termination of this Agreement.


 


F-7









 





IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date and year first above written.



	 	 	 	 	 
	 	NELNET SUPERCONDUIT FUNDING, LLC, as the Company

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 
	 

	 	Address for Notices:
	 
	 	 
	 

	 	Nelnet Superconduit Funding, LLC

c/o National Education Loan Network, Inc.

121 South 13th Street

Suite 201

Lincoln NE 68508

Attention: Carol Aversman

Fax: (402) 458-2399

Email: carol.aversman@nelnet.com






	 	 	 	 	 
	 	NATIONAL EDUCATION LOAN NETWORK, INC., as the Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



	 	 	 
	 

	 	Address for Notices:
	 
	 	 
	 

	 	National Education Loan Network, Inc.

121 South 13th Street

Suite 201

Lincoln NE 68508

Attention: Carol Aversman

Fax: (402) 458-2399

Email: carol.aversman@nelnet.com






 


F-8









 





FORM OF SUBORDINATED PROMISSORY NOTE




THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “ACT”), OR ANY STATE SECURITIES LAW, AND MAY NOT BE DIRECTLY OR INDIRECTLY OFFERED OR SOLD OR
OTHERWISE DISPOSED OF BY THE OWNER HEREOF UNLESS SUCH TRANSACTION IS EXEMPT FROM REGISTRATION UNDER
THE ACT AND SUCH STATE LAWS, AND WILL NOT BE A “PROHIBITED TRANSACTION” UNDER THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”). BY ACCEPTANCE OF THIS NOTE, THE
HOLDER AGREES TO BE BOUND BY ALL THE TERMS OF THE SUBORDINATED CREDIT AGREEMENT.



[        
            ], 200[__]




FOR VALUE RECEIVED, the undersigned, NELNET SUPERCONDUIT FUNDING, LLC, a Delaware limited
liability company (the “Purchaser”), promises to pay to the order of NATIONAL EDUCATION
LOAN NETWORK, INC., a Nevada corporation (the “Payee”), on                     
 _____, 20_____ 
(the “Maturity
Date”) the aggregate unpaid principal amount of all amounts loaned hereunder pursuant to
Section 2.01 of that certain Subordinated Credit Agreement, dated as of May 13, 2009 (together with
all amendments and other modifications, if any, from time to time thereafter made thereto, the
“Subordinated Credit Agreement”), between the Purchaser and the Payee, together with any
and all accrued and unpaid interest on all amounts loaned hereunder.



Interest will accrue on the average daily balance of the unpaid principal amount of all
amounts loaned hereunder for each day from the date such loan amounts are made until they become
due and or are paid in full, at a rate per annum equal to the sum of (i) the LIBOR Rate (as defined
below) and (ii) a spread of 0.50% or such other amount designated as such in writing by the Payee
to the Purchaser from time to time (the “Spread”). Interest will be computed on the basis of a
360-day year consisting of twelve 30-day months. Such computations shall be made including the
first day but excluding the last day occurring in the period for which such interest or other
amounts are payable. Should any principal of, or accrued interest on, any amounts loaned hereunder
not be paid when due, such amount will bear interest from its due date until paid in full, at a
rate per annum equal to the sum of (i) the LIBOR Rate, (ii) the Spread and (iii) 0.50%.



Interest shall be payable on the unpaid principal balance of this note (this “Note”)
commencing on May 25, 2009 and continuing on the 25th day of each month, but only to the
extent there is cash available, as provided below. With respect to any such 25th day
that is not a Business Day, the interest payment otherwise due on such 25th day shall be
due on the next subsequent day that is a Business Day.



For the purposes of this Note, “LIBOR Rate” means the daily weighted average of the rate per
annum for each day during the period equal to the rate determined by the Lender be the offered rate
that appears on the page of the Reuters Screen that displays an average British Bankers Association
Interest Settlement Rate (such page currently being LIBOR01) for deposits in United States dollars
(for delivery on the first day of such period) with a one-month period, determined as of
approximately 11:00 a.m. (London time) two Business Days prior to the first day of such period.



Unless plainly wrong, the computer records of the holder hereof shall on any day conclusively
evidence the unpaid balance of this Note and its advances and payments history posted up to that
day. All loans and advances and all payments and permitted prepayments made hereon may be (but are
not required to be) set forth by or on behalf of such holder on the schedule which is attached
hereto or otherwise recorded in such holder’s computer or manual records; provided, that any
failure to make notation of any principal advance or accrual of interest shall not cancel, limit or
otherwise affect Purchaser’s obligations or any of such holder’s rights with respect to that
advance or accrual.
Unless otherwise defined, capitalized terms used herein have the meanings provided in or
specified in accordance with the Subordinated Credit Agreement.


 


F-9









 





The obligation of the Purchaser to pay the principal of, and interest on, all loans and
advances on this Note shall be absolute and unconditional, shall be binding and, to the fullest
extent permitted by law, enforceable in all circumstances whatsoever and shall not be subject to
setoff, recoupment or counterclaim; provided, however, that the Purchaser shall
only be obligated to pay principal of and interest on the Loans from distributions of Available
Funds (if any) pursuant to and in accordance with the priority of payments set forth in
Section 1.05(c) of the Funding Note Purchase Agreement and, after termination of the Funding Note
Purchase Agreement, from funds of the Purchaser.



Purchaser may prepay at any time, without penalty or fee, the principal or interest
outstanding hereunder or any portion of such principal or interest. Payments of both principal and
interest are to be made in lawful money of the United States of America in same day or immediately
available funds.



The Payee hereby agrees, prior to the date that is 367 days after the Maturity Date, not to
acquiesce, petition, or invoke the process of any court or government authority (or to encourage or
cooperate with others) for the purpose of commencing or sustaining a case against the Payee under
any Federal or state bankruptcy, insolvency or similar law or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of or for the Payee or any
substantial part of its property, or ordering the winding up or liquidation of the affairs of the
Payee. The foregoing shall not limit the rights of the Purchaser to file any claim in, or to
otherwise take any action with respect to, any insolvency proceeding instituted against the Payee
by any other unaffiliated entity.



Notwithstanding anything contained herein to the contrary, to the extent that the Payee is
deemed to have any interest in any assets of the Purchaser, the Payee agrees that its interest in
those assets is subordinate to claims or rights of creditors of the Purchaser. The Payee agrees
that this Note constitutes a subordinated note for purposes of Section 510(a) of the United States
Bankruptcy Code, as amended from time to time (11 U.S.C. §§ 101 et seq.).



The Purchaser hereby represents and warrants as of each loan and advance made hereon that at
the time of (and immediately after) each loan and advance made hereunder, (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 this Agreement 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
financing commitment under this Agreement is adequate and (v) the principal amount outstanding
under this Agreement, together with the interest owning thereon, does not exceed the excess of the
aggregate Collateral Value of all Financed Student Loans, over the aggregate amount of all
Obligations. Each loan or advance made hereunder by the Payee to the Purchaser is subject to the
accuracy of the representations and warranties herein made on the part of the Purchaser.



This Note is the Subordinated Promissory Note referred to in, and evidences indebtedness
incurred under, the Subordinated Credit Agreement, and the holder hereof is entitled to the
benefits of the Subordinated Credit Agreement. Upon and subject to the terms and conditions of the
Subordinated Credit Agreement, Purchaser may borrow, repay and reborrow against this Note under the
circumstances, in the manner and for the purposes specified in the Subordinated Credit Agreement
and this Note, but for no other purposes. All parties hereto, whether as makers, endorsers or
otherwise, severally waive presentment for payment, demand, protest and notice of dishonor.


 


F-10









 





THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS.



	 	 	 	 	 
	 	NELNET SUPERCONDUIT FUNDING, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 


F-11









 





ATTACHMENT G




FORM OF ANNUAL STATEMENT OF COMPLIANCE




NELNET SUPERCONDUIT FUNDING, LLC




[DATE]




The Bank of New York Mellon, as Conduit Administrator

101 Barclay Street, 4E

New York, NY 10286

Attention: Andrew J Taylor

Fax: (212) 815-2020

Email: BMOStraightA@bnymellon.com



The undersigned, a duly authorized officer of National Education Loan Network, Inc., as seller (in
such capacity, the “Seller”) under the Student Loan Purchase Agreement, dated as of May 13,
2009 (as amended and supplemented, or otherwise modified and in effect from time to time, the
“Student Loan Purchase Agreement”), by and among Seller, Union Bank and Trust Company, as
Seller ELT, Nelnet Superconduit Funding, LLC, as purchaser and Zions First National Bank, as
purchaser eligible lender trustee, does hereby certify that:





	 	1.	 	A review of the activities of the Seller as they relate to the Transaction
Documents (as defined in the Student Loan Purchase Agreement), and of the Seller’s
performance under the Transaction Documents, for the period from January 1 through
December 31 has been made under my supervision.







	 	2.	 	To the best of my knowledge, based on such review, Seller has fulfilled all of
its obligations in all material respects under the Transaction Documents throughout the
period from January 1 through December 31.





IN WITNESS WHEREOF, the undersigned has duly executed this certificate on behalf of the Seller as
of the day and year first written above.




	 	 	 	 	 
	 	NATIONAL EDUCATION LOAN NETWORK, INC., as Seller

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 




 


G-1