EXHIBIT 10.15
2005-1 POOL SUPPLEMENT
This Pool Supplement (the "SUPPLEMENT") is entered into pursuant to and
forms a part of that certain (i) Note Purchase Agreement dated as of April 30,
2001 and (ii) Note Purchase Agreement dated as of June 30, 2003, each 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 February 23, 2005. 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
student loan set forth on 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 2005-1 (the "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, in accordance with the terms
of the Agreement. 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 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 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 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.
- 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
BANK OF AMERICA, N.A.
By: /s/ Xxxxx Xxxxxx
---------------------------------------
Name: Xxxxx Xxxxxx
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
[**]
[Confidential Treatment Requested]
SCHEDULE 2
[On file with the Indenture Trustee]
