Confidential Materials Omitted and Filed Separately with the Securities and Exchange Commission. Asterisks Denote Omissions.
|
Confidential
Materials Omitted and Filed Separately with the Securities and
Exchange
Commission.
Asterisks
Denote Omissions.
|
EXHIBIT
99.29
POOL
SUPPLEMENT (DTC ONLY)
BANK
OF AMERICA, N.A.
This
Pool
Supplement (the “Supplement”) is entered into pursuant to and forms a
part of that certain Amended and Restated Note Purchase Agreement dated as
of
April 1, 2006, as amended or supplemented from the date of execution of the
Agreement through the date of this Supplement (together, the
“Agreement”), by and between The First Marblehead Corporation and Bank of
America, N.A. (the “Program Lender”). This Supplement is dated
as of September 20, 2007. 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 below, 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 student loan set forth on
the
attached Schedule 1 (the “Transferred Bank of America Loans”)
along with all of the Program Lender’s rights under the Guaranty Agreement, and
any agreement pursuant to which XXXX granted collateral for its obligations
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 a Purchaser Trust. The Program Lender hereby
transfers and delivers to the Depositor each Note evidencing such Transferred
Bank of America Loan and all Origination Records relating thereto, together
with
any additional information relating to the Transferred Bank of America Loans
heretofore provided by XXXX (as origination agent) to the Servicer or FMC in
connection with the subject Securitization Transaction. The Depositor
hereby purchases said Notes on said terms and conditions.
Article
2: Price.
The
amounts paid pursuant to this
Supplement are the amounts set forth on Schedule 2 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 Agreement for the benefit of each of the Depositor and the Purchaser
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 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 1, 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.
The Program Lender also hereby assigns and sets over to the Depositor any claims
it may now have or hereafter have to any collateral pledged by XXXX to the
Program Lender to secure its obligations under the Guaranty Agreement that
relates to the Transferred Bank of America Loans, and the Program Lender hereby
releases any security interest it may have in such collateral. The
Program Lender hereby authorizes the Depositor, its successors and assigns,
to
file in any public filing office where a Uniform Commercial Code Filing with
respect to collateral pledged by XXXX is of record, any partial release or
assignment that it deems necessary or appropriate to reflect in the public
records the conveyance and assignment effected hereby.
[Remainder
of page intentionally blank]
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. Xxxxxxxxx | |
| Xxxx X. Xxxxxxxxx | |||
| Senior Vice President | |||
|
BANK
OF AMERICA, N.A.
|
|||
|
|
By:
|
/s/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Senior Vice President | |||
|
THE
NATIONAL COLLEGIATE FUNDING LLC
|
|||
| By: | GATE Holdings, Inc., Member | ||
|
|
By:
|
/s/ Xxxx X. Xxxxxxxxx | |
| Xxxx X. Xxxxxxxxx | |||
| Senior Vice President | |||
Schedule
1
[Transferred
Bank of America Loans]
Schedule
2
Direct
to Consumer – Prior to June 22, 2006
For
Transferred Bank of America Loans for which applications were received by the
Program Lender prior to June 22, 2006, for purposes of this Supplement the
term
“Minimum Purchase Price” shall mean the sum of the following amounts with
respect to each of such Transferred Bank of America Loans to be
purchased:
(a) The unpaid
principal amount ([**])
of the Transferred Bank of
America Loans;
plus
(b) All
accrued and unpaid interest on such
Transferred Bank of America Loans, in accordance with
the terms of the
Bank of America DTC Notes
[**];
plus
(c) All
fees paid by the Program Lender to
XXXX with respect to such Transferred Bank of America Loans [**];
plus
(d) The
amount of any Guaranty
Fees [**];
plus
(e) A
marketing fee and loan
premium, [**]:
1. With
respect to K-12 Creditworthy Loans,
[**]%;
2. With
respect to Continuing Education
Creditworthy Loans, [**]%
for [**] and
[**]% for [**];
3. With
respect to Undergraduate
Creditworthy Loans, [**]%
for
[**];[**]% for
[**];[**]%
for
[**];
and [**]%
for [**];
and
4. With
respect to Graduate Creditworthy
Loans, [**]%
for [**];
[**]% for
[**];
[**]% for [**];
and [**]%
for [**].
Direct
to Consumer – On or After June 22, 2006
For
Transferred Bank of America Loans for which applications were received by the
Program Lender on or after June 22, 2006, for purposes of this Supplement the
term “Minimum Purchase Price” shall mean the sum of the following amounts with
respect to each of such Transferred Bank of America Loans to be
purchased:
|
(a)
|
The
unpaid principal amount ([**]) of the Transferred
Bank of America Loans; plus
|
|
(b)
|
All
accrued and unpaid interest on such Transferred Bank of America Loans,
in
accordance with the terms of the Bank of America Direct to Consumer
Notes
(as defined in the Guaranty Agreement) [**];
plus
|
|
(c)
|
To
the extent not paid by Advanced Fees (as defined in Schedule 3.3
of the
Guaranty Agreement):
|
|
|
|
(i)
[**] paid by Program Lender to XXXX with respect to such
Transferred Bank of America Loans [**];
plus
|
|
|
(ii) The
amount of any Subsequent Administrative Guaranty Fees (as defined
in the
Guaranty Agreement) [**];
plus
|
|
|
(iii)
The amount of any Guaranty Fees [**];
plus
|
|
|
(iv)
The amount of any Subsequent DSA Guaranty Fees (as defined in the
Guaranty
Agreement) [**];
plus
|
|
(d)
|
A
marketing fee and loan premium, [**]:
|
|
1.
|
with
respect to Direct to Consumer K-12 Creditworthy Loans, [**]%;
|
|
2.
|
with
respect to Direct to Consumer Continuing Education Creditworthy Loans,
[**]% for [**],
and [**]% for [**];
|
|
3.
|
with
respect to Direct to Consumer Undergraduate Creditworthy Loans, [**]% for [**]
and [**]% for [**];
|
|
4.
|
with
respect to Direct to Consumer Graduate Creditworthy Loans, [**]% for [**],
and [**]% for [**];
|
|
5.
|
with
respect to Direct to Consumer Undergraduate Creditworthy Expanded
Tier
Loans, [**]% for
[**];
|
|
6.
|
with
respect to Direct to Consumer Graduate Creditworthy Expanded Tier
Loans,
[**]% for [**];
and
|
|
7.
|
with
respect to Direct to Consumer Continuing Education Creditworthy Expanded
Tier Loans, [**]%
for [**].
|
(e)
MINUS
any Advanced Fees (as defined in Schedule 3.3 to the Guaranty Agreement) [**].
