EXHIBIT 10.14
POOL SUPPLEMENT
BANK ONE, N.A. (EDUCATION ONE)
This Pool Supplement (the "SUPPLEMENT") is entered into pursuant to and
forms a part of that certain Amended and Restated Note Purchase Agreement (the
"AGREEMENT") dated as of May 1, 2002, 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 Bank One, N.A. (Columbus,
Ohio) (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
EDUCATION ONE Loan described in the attached SCHEDULE 2 (the "TRANSFERRED
EDUCATION ONE LOANS") along with all of the Program Lender's rights under the
Guaranty Agreement relating to the Transferred EDUCATION ONE Loans. The
Depositor in turn will sell the Transferred EDUCATION ONE Loans to The National
Collegiate Student Loan Trust 2004-1 (the "TRUST"). The Program Lender hereby
transfers and delivers to the Depositor each EDUCATION ONE Note evidencing such
EDUCATION ONE Loan and all Origination Records relating thereto, in accordance
with the terms of the Agreement. The Depositor hereby purchases said EDUCATION
ONE Notes on said terms and conditions.
ARTICLE 2: PRICE.
The amounts paid pursuant to this Supplement are the sum of those
amounts set forth in subsections (A) and (B) below. For Transferred EDUCATION
ONE Loans originated under the Program Guidelines in effect during the 2002-2003
program year, the term 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 (including capitalized interest and
financed fees) of the Seasoned Loans in the Pool; plus
(b) All accrued and unpaid interest on such EDUCATION ONE Loans, in
accordance with the terms of the EDUCATION ONE Notes excluding any
capitalized interest already included in principal; plus
(c) All fees paid by Bank One to The Education Resources Institute,
Inc. ("XXXX") with respect to such EDUCATION ONE Loans pursuant to the
Origination Agreement, plus
(d) A marketing fee and loan premium, computed as a percentage of the
original principal amount (net of financed fees) or (if less) the
remaining principal amount (net of financed fees) of EDUCATION ONE
Loans, as follows (for tier references, see Schedule 3.3 of the
Guaranty Agreement):
(i) With respect to Undergraduate Creditworthy Loans, 5.5% for
tiers 1-3 and 4.5% for tier 4;
(ii) With respect to Graduate Creditworthy Loans, 5.5% for
tiers 1-3 and 4.5% for tier 4;
(iii) With respect to Continuing Education Loans (both
Cosigned and Creditworthy), 5.0% for tiers 1-3 and 4.0% for
tier 4;
(iv) With respect to K-12 loans, 5.5%, plus;
(e) The amount of any Guaranty Fees paid by Program Lender to XXXX at
the time of the Securitization Transaction pursuant to column 6 of
Schedule 3.3 of the Guaranty Agreement. In lieu of such purchase price
adjustment, FMC, the Depositor or the Trust may pay any such Guaranty
Fees directly.
For those Transferred EDUCATION ONE Loans originated under the
2003-2004 Program Guidelines, the term 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 (including capitalized interest and
financed fees) of the Seasoned Loans in the Pool; plus
(b) All accrued and unpaid interest on such EDUCATION ONE Loans, in
accordance with the terms of the EDUCATION ONE Notes excluding any
capitalized interest already included in principal; plus
(c) All fees paid by the Program Lender to XXXX with respect to such
EDUCATION ONE Loans pursuant to the Origination Agreement; plus
(d) The amount of any Guaranty Fees paid by the Program Lender to XXXX
at the time of the Securitization Transaction pursuant to column 6 of
Schedule 3.3 for the EDUCATION ONE program of the Guaranty Agreement
(in lieu of such purchase price adjustment, FMC, the Depositor or the
Trust may pay any such Guaranty Fees directly); plus
(e) A marketing fee and loan premium, computed as a percentage of the
original principal amount (net of financed fees) or (if less) the
remaining principal amount (net of financed fees) of EDUCATION ONE
Loans as follows (for tier references see Schedule 3.3 of the Guaranty
Agreement):
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(i) With respect to K-12 Creditworthy Loans, 5.50%;
(ii) With respect to Continuing Education Creditworthy Loans,
5.00% for tiers 1-3, 4.00% for tier 4 and 2.50% for tier 5;
(iii) With respect to Undergraduate Creditworthy Loans, 5.50%
for tiers 1-3, 4.50% for tier 4 and 2.50% for tier 5; and
(iv) With respect to Graduate Creditworthy Loans, 5.50% for
tiers 1-3, 4.50% for tier 4 and 2.50% for tier 5.
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 EDUCATION ONE 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 EDUCATION ONE 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.
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(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 EDUCATION
ONE 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 Agreement, the
Origination Agreement and the Servicing Agreement to the extent the same relate
to the Transferred EDUCATION ONE 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.
[Remainder of Page Intentionally Left Blank]
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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/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Executive Vice President
BANK ONE, N.A.
(Columbus, Ohio)
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Executive Vice President
THE NATIONAL COLLEGIATE FUNDING LLC
By: GATE Holdings, Inc., Member
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
BANK ONE (ED ONE) POOL SUPPLEMENT
Schedule 1
Minimum Purchase Price
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Schedule 2
Transferred Loans
[On File with the Indenture Trustee]
