EXHIBIT 10.15
POOL SUPPLEMENT
BANK OF AMERICA, N.A. (BAGEL & ▇▇▇▇ ALTERNATIVE)
This Pool Supplement (the "SUPPLEMENT") is entered into pursuant to and
forms a part of that certain Note Purchase Agreement (the "AGREEMENT") dated as
of April 30, 2001, as amended or supplemented from the date of execution of the
Agreement through the date of this Supplement, by and between The First
Marblehead Corporation and Bank of America, N.A. (the "PROGRAM LENDER"). This
Supplement is dated as of June 10, 2004. Capitalized terms used in this
Supplement without definitions have the meanings set forth in the Agreement.
ARTICLE 1: PURCHASE AND SALE.
In consideration of the Minimum Purchase Price set forth in SCHEDULE 1
attached hereto, the Program Lender hereby transfers, sells, sets over and
assigns to The National Collegiate Funding LLC (the "DEPOSITOR"), upon the terms
and conditions set forth in the Agreement (which are incorporated herein by
reference with the same force and effect as if set forth in full herein), each
Bank of America Conforming Loan described in the attached SCHEDULE 2 (the
"TRANSFERRED BANK OF AMERICA LOANS") along with all of the Program Lender's
rights under the Guaranty Agreement relating to the Transferred Bank of America
Loans. The Depositor in turn will sell the Transferred Bank of America Loans to
The National Collegiate Student Loan Trust 2004-1 (the "TRUST"). The Program
Lender hereby transfers and delivers to the Depositor each Bank of America Note
evidencing such Bank of America Conforming Loan and all Origination Records
relating thereto, in accordance with the terms of the Agreement. The Depositor
hereby purchases said Bank of America Notes on said terms and conditions.
ARTICLE 2: PRICE.
The amounts paid pursuant to this Supplement are the Minimum Purchase
Price for the Transferred Bank of America Loans. "Minimum Purchase Price" shall
mean the sum of the following amounts with respect to each of the Seasoned Loans
to be purchased:
(a) The unpaid principal amount of the Seasoned Loans in question
including, without limitation, any financed fees and
capitalized interest; plus
(b) All accrued and unpaid interest on such Seasoned Loans, in
accordance with the terms of the Bank of America Notes,
excluding any capitalized interest already included in
principal; plus
(c) With respect to Seasoned Loans as to which no financed fee was
added to the principal amount, the amount of any guaranty fee
paid by the Program Lender to The Education Resources
Institute, Inc. ("▇▇▇▇") (except that for Generic Creditready
Medical loans and the loans to graduate and professional
students at the College of ▇▇▇▇▇▇▇ and ▇▇▇▇, no such amount
shall be paid to the Program Lender for fees paid under
columns 4 and 5 of Exhibit K to the Guaranty Agreement, as
amended). If the terms of the Guaranty Agreement call for any
Guaranty Fees to be paid to ▇▇▇▇ or to the Agent concurrent
with the Securitization Transaction, the Program Lender may
elect either: (i) to pay the
fees and be reimbursed under this clause, or (ii) for the
Depositor or the Trust to pay the fees directly; plus
(d) A partial reimbursement for servicing costs incurred and paid
by the Program Lender with respect to Seasoned Loans described
in subsection (b) of the definition of "Seasoned Loans" other
than Bank of America ▇▇▇▇ Program Loans, such reimbursement to
equal one-third of the cost of servicing from the Purchase
Date of the first Securitization Transaction that occurs after
such loan is first disbursed until the Purchase Date when such
loan is sold to the Depositor.
ARTICLE 3: REPRESENTATIONS AND WARRANTIES.
3.01. BY PROGRAM LENDER.
The Program Lender repeats the representations and warranties contained
in Section 5.02 of the Agreement for the benefit of each of the Depositor and
the Trust and confirms the same are true and correct as of the date hereof with
respect to the Agreement and to this Supplement.
3.02. BY DEPOSITOR.
The Depositor hereby represents and warrants to the Program Lender that
at the date of execution and delivery of this Supplement by the Depositor:
(a) The Depositor is duly organized and validly existing as a limited
liability company under the laws of the State of Delaware with the due power and
authority to own its properties and to conduct its business as such properties
are currently owned and such business is presently conducted, and had at all
relevant times, and has, the power, authority and legal right to acquire and own
the Transferred Bank of America Loans.
(b) The Depositor is duly qualified to do business and has obtained all
necessary licenses and approvals in all jurisdictions in which the ownership or
lease of property or the conduct of its business shall require such
qualifications.
(c) The Depositor has the power and authority to execute and deliver
this Supplement and to carry out its respective terms; the Depositor has the
power and authority to purchase the Transferred Bank of America Loans and rights
relating thereto as provided herein from the Program Lender, and the Depositor
has duly authorized such purchase from the Program Lender by all necessary
action; and the execution, delivery and performance of this Supplement has been
duly authorized by the Depositor by all necessary action on the part of the
Depositor.
(d) This Supplement, together with the Agreement of which this
Supplement forms a part, constitutes a legal, valid and binding obligation of
the Depositor, enforceable in accordance with its terms.
(e) The consummation of the transactions contemplated by the Agreement
and this Supplement and the fulfillment of the terms hereof do not conflict
with, result in any breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time) a
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default under, the governing instruments of the Depositor or any indenture,
agreement or other instrument to which the Depositor is a party or by which it
is bound; or result in the creation or imposition of any lien upon any of its
properties pursuant to the terms of any such indenture, agreement or other
instrument; or violate any law or any order, rule or regulation applicable to
the Depositor of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over the Depositor or its properties.
(f) There are no proceedings or investigations pending, or threatened,
before any court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its properties: (i)
asserting the invalidity of the Agreement or this Supplement, (ii) seeking to
prevent the consummation of any of the transactions contemplated by the
Agreement or this Supplement, or (iii) seeking any determination or ruling that
is likely to materially or adversely affect the performance by the Depositor of
its obligations under, or the validity or enforceability of the Agreement or
this Supplement.
ARTICLE 4: CROSS RECEIPT.
The Program Lender hereby acknowledges receipt of the Minimum Purchase
Price. The Depositor hereby acknowledges receipt of the Transferred Bank of
America Loans.
ARTICLE 5: ASSIGNMENT OF ORIGINATION, GUARANTY AND SERVICING RIGHTS.
The Program Lender hereby assigns and sets over to the Depositor any
claims it may now or hereafter have under the Guaranty Agreement, the
Origination Agreement and the Servicing Agreement to the extent the same relate
to the Transferred Bank of America Loans described in SCHEDULE 2, other than any
right to obtain servicing after the date hereof. It is the intent of this
provision to vest in the Depositor any claim of the Program Lender relating to
defects in origination, guaranty or servicing of the loans purchased hereunder
in order to permit the Depositor to assert such claims directly and obviate any
need to make the same claims against the Program Lender under this Supplement.
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IN WITNESS WHEREOF, the parties have caused this Supplement to be
executed as of the date set forth above.
THE FIRST MARBLEHEAD CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
BANK OF AMERICA, N.A.
By: /s/ K ▇. ▇▇▇▇▇▇
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K ▇. ▇▇▇▇▇▇
Senior Vice President
THE NATIONAL COLLEGIATE FUNDING LLC
By: GATE Holdings, Inc., Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA (BAGEL) POOL SUPPLEMENT
Schedule 1
Minimum Purchase Price
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Schedule 2
Bank of America Conforming Loans
[On File with the Indenture Trustee]