EXHIBIT 10.16
POOL SUPPLEMENT
CHARTER ONE BANK, N.A.
This Pool Supplement (the "SUPPLEMENT") is entered into pursuant to and
forms a part of each of the Note Purchase Agreements (the "AGREEMENTS") set
forth on SCHEDULE 1 attached hereto, each 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 ("FMC") and Charter One Bank, N.A. (the
"PROGRAM LENDER"). This Supplement is dated as of February 23, 2005. Capitalized
terms used in this Supplement without definitions have the meanings set forth in
the Agreements.
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 Agreements (which are incorporated herein by
reference with the same force and effect as if set forth in full herein), each
student loan set forth on attached SCHEDULE 2 (the "TRANSFERRED LOANS") along
with all of the Program Lender's rights under the Guaranty Agreements relating
to the Transferred Loans. The Depositor in turn will sell the Transferred Loans
to The National Collegiate Student Loan Trust 2005-1 (the "Trust"). The Program
Lender hereby transfers and delivers to the Depositor each Note evidencing such
Transferred Loan and all Origination Records relating thereto, in accordance
with the terms of the Agreements. The Depositor hereby purchases said Notes on
said terms and conditions.
ARTICLE 2: PRICE.
The amounts paid pursuant to this Supplement are the sum of the amounts
set forth on SCHEDULE 1 attached hereto.
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 Agreements 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 Agreements 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 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 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 Agreements 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 Agreements
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 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 Agreements or this Supplement, (ii) seeking to
prevent the consummation of any of the transactions contemplated by the
Agreements 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 Agreements 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 Loans
included in the Pool.
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 Agreements, the
Origination Agreements and the Servicing Agreements to the extent the same
relate to the Transferred 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.
2
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/ Xxxx X. Xxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President
CHARTER ONE BANK, N.A.
By: /s/ Xxxxxxx XxXxxxxxx
-------------------------------------
Name: Xxxxxxx XxXxxxxxx
Title: Senior Vice President
THE NATIONAL COLLEGIATE FUNDING LLC
By: GATE Holdings, Inc., Member
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
SCHEDULE 1
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[Confidential Treatment Requested]
SCHEDULE 2
[On file with the Indenture Trustee]
