ComplaintCal. Super. - 3rd Dist.August 3, 2017‘ ' . 60971784 2017060914:84 PATENAUDE & FELIX (858) 836-0 ige 5 of 19 PLD-C-001 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): FOR COURT USE ONLY LAW OFFICES OF PATENAUDE & FELIX, A.P.C. Michael R. Boulanger, (#226294) / Michael D. Kahn, (#236898) / Stephanie J. Boone, (#160182) Jeffrey W. Speights (#265206) / Jessica F. Flynn, (#270304) 4545 Murphy Canyon Road, 3rd Floor, San Diego, CA 92123 TELEPHONE NO.: (858) 244-7600 FAX NO. (Optional): (858) 836-0318 E-MAIL ADDRESS (Optional): Michael.Kahn@pandf.us ATTORNEY FOR (Name) PLAINTIFE SUPERIOR COURT OF CALIFORNIA, COUNTY OF PLACER my i STREETADDRESS: 10820 JUSTICE CENTER DRIVE RK 9° oO LU MAILING ADDRESS: 10820 JUSTICE CENTER DRIVE CITY STATE AND ZIP CODE: ROSEVILLE CA 95661-9072 __dake Chatters | BRANCH NAME: _ PLACER DIVISION - UNLIMITED CIVIL CASE ny PLAINTIFF: NATIONAL COLLEGIATE STUDENT LOAN TRUST 2005- 2, ADELAWARE STATUTORY TRUST(S) DEFENDANT(S): MARCIA A LANOIE, PHILIP G LANOIE [Xx] and DOES 1 through 15, inclusive CONTRACT XK COMPLAINT [-] AMENDED COMPLAINT (Number): C] CROSS-COMPLAINT [_] AMENDED CROSS-COMPLAINT (Number) Jurisdiction (check all that apply): CASE NUMBER: [_] ACTION IS A LIMITED CIVIL CASE Amount demanded CT does not exceed $10,000 [_] exceeds $10,000 but does not exceed $25,000 KE ACTION IS AN UNLIMITED CIVIL CASE (exceeds $25,000) p CV 00 398 1 3 ACTION IS RECLASSIFIED by this amended complaint or cross-complaint from limited to unlimited from unlimited to limited 1. Plaintiff (name or names): NATIONAL COLLEGIATE STUDENT LOAN TRUST 2005-2, A DELAWARE STATUTORY TRUST(S) alleges causes of action against defendant(s)* (name or names): MARCIA A LANOIE, PHILIP G LANOIE and DOES 1 through 15, inclusive 2. This pleading, including attachments and exhibits, consists of the following number of pages: 14 3. a. Each plaintiff named above is a competent adult X] except plaintiff (name): NATIONAL COLLEGIATE STUDENT LOAN TRUST 2005-2, A DELAWARE STATUTORY TRUST(S) (1) [Ja corporation qualified to do business in California (2) lan unincorporated entity (describe): a Delaware Statutory Trust(s) (3) [_Jother (specify): b. [[] Plaintiff (name): a. has complied with the fictitious business name laws and is doing business under the fictitious name (specify): b. has complied with all licensing requirements as a licensed (specify): c. [-] Information about additional plaintiffs who are not competent adults is shown in Attachment 3c. 4. a. Each defendant(s) named above is a natural person except defendant (name): C] except defendant (name): (1) a business organization, form unknown (1) a business organization, form unknown (2) a corporation (2) a corporation (3) an unincorporated entity (describe): (3) an unincorporated entity (describe): (4) a public entity (describe): (4) a public entity (describe): (5) other (specify): (5) other (specify): *If this form is used as a cross-complaint, plaintiff means cross-complainant and defendant means cross-defendant. Page 1 of 2 Form Approved for Optional Use COMPLAINT-Contract Code of Civil Procedure, § 425.12 Judicial Council of California PLD-C-001 [Rev. January 1, 2007] CA_03B EFile Complaint Contract P&F File No. 17-27934 5 of 19 ‘ 3 : ‘0971784 2017060914:84 PATENAUDE & FELIX (858) 836-0 ge 6 of 19 PLD-C-001 SHORT TITLE: NATIONAL COLLEGIATE STUDENT LOAN TRUST 2005-2, A DELAWARE STATUTORY CASE NUMBER: TRUST(S) VS. MARCIA A LANOIE, PHILIP G LANOIE 4. (Continued) b. The true names of defendant(s) sued as Does are unknown to plaintiff. (1) [[] Doe defendant(s) (specify Doe numbers): were the agents or employees of the named defendant(s) and acted within the scope of that agency or employment. (2) kX] Doe defendant(s) (specify Doe numbers): 1 through 15 are persons whose capacities are unknown to plaintiff. Cc C] Information about additional defendants who are not natural persons is contained in Attachment 4c. d. C] Defendant(s) who are joined under Code of Civil Procedure section 382 are (names): 5. [_] Plaintiff is required to comply with a claims statute, and a. rj has complied with applicable claims statutes, or b. [_] is excused from complying because (specify): 6. [] This action is subject to | [[] Civil Code section 1812.10 - [[] Civil Code section 2984.4. 7. This court is the proper court because a. C] a defendant(s) entered into the contract here. b. [_] a defendant(s) lived here when the contract was entered into. c. Xx a defendant(s) lives here now. d. [_] the contract was to be performed here. e. tt a defendant(s) is a corporation or unincorporated association and its principal place of business is here. f. Ed real property that is the subject of this action is located here. g. [_] other (specify): | | 8. The following causes of action are attached and the statements above apply to each (each complaint must have one or more causes of action attached): Breach of Contract [_] Common Counts [DX] Other (specify): Refer to Other allegations in number 9. 9. JX Other allegations: Before commencement of this action, in those cases where recovery of costs is dependent on such notices, Plaintiff informed the defendant(s) in writing it intended to file this action and that this action could result in a judgment against defendant(s) that would include court costs and necessary disbursements allowed by CCP Section 1033(b)(2). 10. Plaintiff prays for judgment for costs of suit; for such relief as is fair, just, and equitable; and for a. [X] damages of: $45,304.26 b. [X] interest on the damages (1) BX] according to proof (2) C] at the rate of (specify): percent per year from (date): c. [_] attorney's fees (1) [] of (2) [] according to proof. d. [X] other (specify): For such other relief as the Court deems just and fair. 1. C] The paragraphs of this pleading alleged on information and belief are as follows (specify paragraph numbers): Date: June 09, 2017 [ ] MICHAEL R. BOULANGER [ ] JEFFREY W. SPEIGHTS [ CHAEL D. KAHN [ ] JESSICA F. FLYNN STEPHANIE J. BOONE > (TYPE OR PRINT NAME) (SIGNATURE OF PLAINTIFF OR ATTORNEY) (If you wish to verify this pleading, affix a verification.) PLD-C-001 [Rev. January 1, 2007] COMPLAINT-Contract Page 2 of 2 CA_03B EFile Complaint Contract P&F File No. 17-27934 6 of 19 , 60971784 2017060914:84 PATENAUDE & FELIX (858) 836-( ge 7 of 19 PLD-C-001(1) SHORT TITLE: NATIONAL COLLEGIATE STUDENT LOAN TRUST 2005-2, A DELAWARE STATUTORY TRUST(S) vs. | CASE NUMBER: MARCIA A LANOIE, PHILIP G LANOIE FIRST (number) CAUSE OF ACTION-Breach of Contract ATTACHMENT O [X]Complaint [[] Cross-Complaint (Use a separate cause of action form for each cause of action.) BC-1. Plaintiff (name): NATIONAL COLLEGIATE STUDENT LOAN TRUST 2005-2, A DELAWARE STATUTORY TRUST(S) alleges that on or about (date): May 25, 2005 aX] written [-] oral (CJ other (specify): agreement was made between (name parties to agreement): Plaintiff's assignor, BANK OF AMERICA, N.A. and MARCIA A LANOIE, PHILIP G LANOIE Ry A copy of the agreement is attached as Exhibit A, or The essential terms of the agreement tC are stated in Attachment BC-1 xX] are as follows (specify): Defendant(s) entered into a written contract with Plaintiff's assignor, BANK OF AMERICA, N.A., whereby Plaintiffs assignor loaned money to Defendant(s) for the financing of Education expenses. Plaintiff is the assignee of this contract. The terms and conditions under which Defendant(s) agreed to repay Plaintiff's assignor for the monies loaned are set forth in a written contract and /or loan agreement between the Defendant(s) and Plaintiff's assignor. Defendant(s) indicated his/her/their consent to be bound by these terms either by an authorizing signature on the agreement or by Defendant(s) taking possession of and using the monies provided by Plaintiff's assignor. BC-2. On or about (date): October 24, 2014 Defendant breached the agreement by [_] the acts specified in Attachment BC-2 [X]_ the following acts (specify): Defendant(s) failed to make payments on the contract as agreed, or otherwise defaulted upon the contract, and despite Plaintiff's demand Defendant(s) continues to refuse to pay Plaintiff the amount owed under the contract. Defendant(s) is/are in default and under the terms of the contract, Plaintiff is entitled to the unpaid balance, interest, and costs. BC-3. Plaintiff has performed all obligations to Defendant(s) except those obligations Plaintiff was prevented or excused from performing. BC-4. Plaintiff suffered damages legally (proximately) caused by Defendant's breach of the agreement [_] as stated in Attachment BC-4_ [X] As follows : 1. The principal sum of $45,304.26; 2. Costs of suit; 3. For such other and further relief as the Court deems just and fair. BC-5. [_] Plaintiff is entitled to attorney fees by an agreement or a statue of $ according to proof: BC-6. [[] Other: Page 3 Page 1 of 7 Form Approved by the Judicial Council of California PLD-C-001(1) [Rev. January 1, 2007] CAUSE OF ACTION-Breach of Contract Code of Civil Procedures, § 425.12 CA_05B EFile Breach of Contract P&F File No. 17-27934 7 of 19 EXHIBIT "A" (Page 4 of 11) NOTE DISCLOSURE STATEMENT $ 54,736.84 Borrower(s) MARCIA A LANOIE mans: PHILIP G LANOIE Loan No. . Student: MEGAN A LANOIE Date: May 25, 2005 MARCIA A LANOIE . Lender Name and Address: ‘ES RCs BANK OF AMERICA, NA ROSEVILLE, CA 95678 600 WILSHIRE BLVD, 4TH FLOOR LOS ANGELES, CA 90017 This disclosure statement relates to one or more advances on your Loan Note disbursed on - May 25, 2005 i Because your Loan is either being disbursed in whole or in part, or is entering repayment, or the repayment terms arc being modified, the following information about your Loan is being given to you. ANNUAL PERCENTAGE RATE FINANCE CHARGE ‘Amount Financed Tota l of Payments The cost of your credit as a The dollar smount the credit |The amount of credit provided [The amo unt you will have paid after yearly rate. will cost you. to you or on your behalf. you have made all payment s scheduled, 6.718 % $ 42,648.80 $ 52,000.00 3 94,648.80 Your payment schedule will be: Number of Payments Amount of Paymenis* When Payments are due 240 $ 394.37 Onthe 25th day of each month beginning on 6/2005 VARIABLE RATE: The Annual Percentage Rate, which is based on an index plus a margin, may increase during the term of the loan if the index rate increases. The index is (check one): OD Prime Rate Index Adjusted Monthly - The highest U.S. bank prime rate published in the "Money Rates" section of The Wall Street Journal on the last business day of each calendar month, O Prime Rate Index Adjusted Quarterly - The highest U.S. bank prime rate published in the "Money Rates" section of The Wall Street Journal on the last business day of each calendar quarter (if the Lender identified above is Citibank ( New York State ), the index will be the highest U.S. Bank prime rate published in the "Money Rates" section of The Wall Street Journal on the date which is 30 days prior to the first day of each quarter). LIBOR Index Adjusted Quarterly - The average of the one-month London Interbank Offered Rates published in the "Money Rates" section of The Wall Street Journal on the first business day of each of the three (3) calendar months immediately preceding the first day of each calendar quarter. Any increase in the index and the Annual Percentage Rate which occurs while principal payments are deferred witl increase the amount of any current and all future payments. Any increase in the Index and the Annual Percentage Rate which occurs while principal and interest payments are deferred will increase the amount of all future payments. Any increase in the index and the Annual Percentage Rate which occurs after you have begun to make principal and interest payments on your Joan will increase the amount of your future principal and interest payments beginning with your next annual payment adjustment date. For example, assume you obtain a loan in your junior year, in the amount of $10,000 at an interest rate of 11%, and you defer principal and interest payments until afler your graduation, and the repayment term of the loan is 20 years. If the interest rate incr eased to 12% on January Ist of your senior year, the interest which accrues while principal and interest payments are deferred will increase by $75.11, and your monthly principal and interest payments would increase by $9.05. SECURITY: You have given a security interest in all refunds or amounts owed to you at any time by the student 's educational institution. Collateral securing other loans with the Lender may also secure this Loan. LATE CHARGES: If a payment is more than 15 days late, you may be charged $5.00 or 5% of the payment, whichever is less. If you default, Lender (or subsequent holder of your Loan Note) may increase the margin uscd to compute the An nual Percentage Rate by two percentage points (2%). PREPAYMENT: If you pay off early, you will not have to pay a penalty. Sce your contract documents for any additional information about non-payment, default, any required repayment in full before the scheduled date, any security interest, and prepayment refunds and penalties. Estimates: All numerical disclosures except the late payment disclosure are estimates. Principal Amount of Note (Amount Financed plus Prepaid Finance Charge) $ 54,736.84 ltemization of Amount Financed Amount paid to __ BROWNING ACADEMY $ 52,000.00 Amount paid to $ Total Amount Financed $ $2,00 0.00 ltemization of Prepaid Finance Charge Origination or Guarantee Fee $ 2,736.84 Other Fees Paid (see yours contract) Total Prepaid Finance Charge(s) s 2,736.84 *Lf your Loan is disbursed in multiple advances, the monthly payment amount disclosed in the payment schedule refle cts only that monthly payment necessary to repay this advance. ‘The actual total monthly payment on your Loon will be based on the sum of all advances under your Loan Note and will be disclosed to you before your Loan enters repayment. Your minimum total monthly payment will be at least $25.00 each month or the entire l oan balance whichever is less. TRAK 6039737 6 BKP6IM PREPGATE File Copy {- (Page 2 of 11) elie AEG ERT pra aa el sli any lbh atsile BRAT pet B} ea ee ruth CGA Roa eC UEE NU ool Aue nai GRE E ae vy aks Rae EUAN BRN RS HL ATEN prepGATE ean Lender: Bank of America, N.A. Student Name: Megan A Lapole Ff nd Student ssn «| stucent’s date of Birth: 5 “ 000,0 Loan Amount Requested: © dae 3.5 ISK CrEDIT BACK TO BORROWER, Loan Origination Fee Percentage: 5.00 School: BROWNING ACADEMY Academic Period: 05/2005-05/2006 TERRE Er A RDO eee cee eee ere a TeBorrower Name; Lenoie Home Address: Roseville, CA 95678 Social Security #: 8872 Date of Birth: 968 Home Telephone: MEY 426 Current Employer: COUNTRYWIDE HOME LOANS Employar Telephone: Current Posillen: Other Years There: 0 Yeas7 Months Years at Previous Employment; 2 Years 1 Months Allmony, chid eupport, or separate maintenance incomes do not have to be revesied If you do not want them constdsred for repaying this obligation. {f you aro relying on euch additional income, please provide datalls on a separate chest of paper, Borrower Citizenship (check one box); U.S, Citizen 0 Eligible Non-Cltizen (Attach fronl & back copy of C'S or student visa card) Note: Parsonal refarence nams and address cannol match that of the Co-Signer. Refersnce Home Tal #: eee Wark Tal #: _ Personal Reference Name:_Renes West Reference Street Address: P| {_Reference City/State/Zip: apne ER Ue EA (ie os eS ib Fae RAIS oa Poa Ba i BPS ie Bl Ree ed by a Co-Sign Name: Lanole ; Rosevile, CA 95878 -- Social Security # 2843 Date of Birth: 1957 Home A a Have you ever defaulted on a student loan or declared bankruptcy? «=f No 0 Yes Current Employer: NONE Employer Telephone a Current Position: Unemployed (n { o Income) Yeare There: . Years at Previous Employment: = | Altmony, child support, or sepatate malntenance Income» do not have to be revealed If you do not want tham conaldered torShering thhs obligation. Hf you ere relying on such edditional Income, pleage provide detalts on a separate sheet of paper. Co-Signer Ciiizenship (check one box): (2 U.S, Citizen 0 Eligible Non-Citizen (Attach front & back copy of CIS) Note: Personal reference name and address cannot match that of the Borrower. Personal Reference Name:_Enma Otto Reference Home Tel ‘ i Work Tel ft Reference Sweat Address:, Reference City/Stata/Zip: Borrower and Co-Signer: Read and, where Indicated, sign and date the next page. BK.05-06.PRGT.10.0105 LENDER COPY PNO1_BK_05-06_K-12_F_X_LANOIE_A102917253.pdf BKP6IM Wd SZ:b7-71 SOOZ/E HS -BIeQ pig abe ChLE+BLP+916 -Woly SK (Page 3 of 11) Pe ye a ae es SP ae eae ae RC AaanoL A i e a RIBEO ATE Mnpall ROMUERL Cred \UAGhvenmptlua cla Returo riage lsimeN. By my signawre, [ certify that { have read, understend and agree to the terms of and undertake the obligations set forth on all six (6) pages of this Loan RequesvCredit Agreement BK.05-06.PRGT.10.0105 (“Credil Agreentent"). I understand thet any person who knowingly makes a false staltment or misrepresentation on this form is subject to penalties, which may include fines or imprisonment This Credit Agreement is signed under seal. 1 understand that | am not required 10 fax my signaiure on nor to sign electronically this Credit Agreement and any related notices chat require signature. If | chooss to fax my signsture on or to sign electronically this Credit Agreement and any related notices that require signature, t intend; (i) my fax or clectroni¢ signature to be an clectronic signature under applicable feders) and state law, (ii) any fax printout or printout of Lender's electronic record of this Credit Agreement and related notices to be an original document, (iii) to conduct business with the Lender by electronic records and electronic signatures, and (iv) thal this Credit Agreement will not be governed by Anicle 3 of the Uniform Commercial Coe, and my obligations under this Credit Agreement will not be subject to, but any transfer of my obtigetions will be subject to, Article 9 of the Uniform Commercial Code, DT ETC ET Bu For the purposes of these Notices, the words “you” and “your” refer to the Cosigner, not the Lender. NOTICE TO COSIGNER (Traducci6n en inglés Se Requlere Por La Lev): You are being asked to guarantee this debt, Think carefully before you do. Ifthe borrower doesn't pay the debt, you will have to. Be sure you can afford to pay if you have to, and that you want to accept this responsibility. You may have to pay up to the full amount of the debt if the borrower does not pay. You may also have to pay late fees or collection costs, which increase this amount. The holder of the loan can colfect this debt from you without first trying to collect from the borrower. The holder of the loan can use the same collection methods against you that can be used against the borrower, such as suing you, gamishing your wages, etc. If this debt is ever in default, that fact may become part of your credit record. ; This notice is not the contract that makes you liable for the debt. AVISO PARA EL FIADOR (Spanish Translation R. Law): Se le est pidiendo que garantice esta deuda. Piénselo con cuidado antes de ponerse de acuerdo, Si la persona que ha pedido este préstamo no paga la deuda, usted tendré que pagarla, Esté seguro de que usted podré pagar si sea obligado a pagarla y de que usted desea aceptar la responsabilidad. ‘ Si la persona que ha pedido el préstamo no paga fa deuda, ¢s posible que usted tenga que pagar Ja suma total de la deuds, mas los cargos por tardarse en el pago o el costo de cobranza, lo cual aumenta el total de esta suma. El acreedor (financiero) puede cobrarle a usted sin, primeramente, tratar de cobrarle al deudor. Los mismos metodas de cobranza que pueden usarse contra el deudor, podran usarse contra usted, tales como presentar una demanda en corte, quilar parte de su sueldo, etc. Si alguna vez no se cumpla con Ia obligacién de pagar esta deuda, se puede incluir esa informacién en la historia de credito de usted, Este aviso no es el contratoe mismo en que se le echa a usted la résponsibilidad de la deuda_ FOR ALABAMA RESIDENTS; CAUTION - IT 1S IMPORTANT THAT YOU THOROUGHLY READ THE CONTRACT BEFORE YOU SIGN IT. FOR WISCONSIN RESIDENTS - NOTICE TO CUSTOMER: (a) DO NOT SIGN THIS CREDIT AGREEMENT BEFORE YOU READ THE WRITING ON THE FOLLOWING PAGES, EVEN IF OTHERWISE ADVISED. (b) DO NOT SIGN THIS CREDIT AGREEMENT IF If CONTAINS ANY BLANK SPACES. (ce) YOY ARE ENTITLED TO AN EXACT COPY OF ANY AGREEMENT YOU SIGN. (4) YOU HAVE THE RIGHT AT ANY TIME TO PAY IN ADVANCE THE UNPAID BALANCE UNDER THIS CREDIT AGREEMENT AND YOU MAY BE ENTITLED TO A PARTIAL REFUND OF THE FINANCE CHARGE. BY SIGNING THIS CREDIT AGREEMENT, BELOW, I CERTIFY THAT | INTEND TO (1) APPLY FOR JOINT CREDIT AND (il) BE JOINTLY LIABLE {2 THE BORROWER FOR THI t } Signature of Cosigner pate 5 ~/ 5 “OS” BK.05-06.PRGT.10.0105 LENDER COPY PNO1_BK_05-06_K-12_F_X_LANOIJE_A10291725: BKP6IM Wd S2-PZ:7b SOOZ/E LS A180 Piz bed CRLTHBLP +946 “WOs4 In this Credit Agreement, the words ‘I’, “me”, “my’, and “mine” mean the person(s) who signed this Credit Agreement as Borrower and Cosigner. The words “you”, “your”, “yours”, and “Lender” mean Bank of America, National Association, its successors and assigns, and any other holder of this Credit Agreement. “School” means the school named at the top of the first page of this Credit Agreement. The ‘servicer’ means the Lender or any entity it designates to service my loan. A. PROMISE TO PAY: | promise to pay to you the Loan Amount Requested shown on the first page of this Credit Agreement, to the extent it is advanced to me or paid on my behalf, and any Loan Origination Fee added to my loan (see Paragraph F) (together, the “Principal Sum’), interest on such Principal Sum, interest on any unpaid interest added to the Principal Sum and any late fees (see Paragraph E.5). B. IMPORTANT - READ THIS CAREFULLY: 1. When you receive my signed Credit Agreement, you are not agreeing to lend me money. If you decide to make a loan to me, you will electronically transfer the loan funds to the School for me, mail a loan check to the School for me, or mail a loan check directly to me. You have the right to not make a loan or to lend an amount less than the Loan Amount Requested. | agree to accept an amount less than the Loan Amount Requested and to repay that portion of the Loan Amount Requested that you actually lend to me. You have the right to disburse my loan through an agent. At your option, you may also make any loan check co-payable to me and the Cosigner or to me and the School. You may also increase or decrease the amount of any disbursement by one cent ($.01) to equalize the amount of disbursements. 2. HOW | AGREE TO THE TERMS OF THIS LOAN. By signing this Credit Agreement, and submitting it to the Lender, | am requesting that you make this loan to me in an amount equal to the Loan Amount Requested plus any Loan Origination Fee described in Paragraph F of this Credit Agreement. If you approve this request and agree to make this loan, you will notify me in writing and provide me, as required by law, with one Disclosure Statement at the time of the first disbursement or a Disclosure Statement at the time of each disbursement. Each Disclosure Statement is incorporated herein by reference and made a part hereof. Each Disclosure Statement will tell me the amount of the loan that you have approved, the amount of the Loan Origination Fee, and other important information. | will let you know that | agree to the terms of the loan as set forth in this Credit Agreement and in each Disclosure Statement by doing either of the following: (a) endorsing or depositing the check that disburses the loan proceeds; or (b) allowing the loan proceeds to be used by or on behalf of the Student without objection. Upon receipt of each Disclosure Statement, | will review it and notify you in writing if | have any questions. If | am not satisfied with the terms of my loan as disclosed in a Disclosure Statement that covers my entire loan amount, | may cancel my loan by giving you a written cancellation notice within ten (10) days after | receive the Disclosure Statement. If | am not satisfied with the terms of my loan as disclosed in a Disclosure Statement that covers only one of multiple disbursements of my loan, to cancel the disbursement covered by that Disclosure Statement, | will give you a written cancellation notice within ten (10) days after | receive the Disclosure Statement and | understand that unless | withdraw from the School or | or my School specifies otherwise, the cancellation of any disbursement will not cancel any future disbursements or any previous disbursements. | understand that | must repay, in accordance with the terms of this Credit Agreement, all amounts disbursed but not canceled. If loan proceeds have been disbursed, | agree that | will immediately return the canceled disbursement to you, will not endorse any check that disburses the loan proceeds to be canceled, and will instruct the School to return the canceled disbursement to you. If | give notice of cancellation but do not cause the return of the disbursement as stated above, the disbursement will not be canceled and | will be in default of this Credit Agreement. (See Paragraph |.) C. DEFINITIONS: 1. “Disbursement Date” means the date(s) on which you lend money to me or on my behalf in consideration for my Credit Agreement and will be the date(s) shown on any loan check you prepare (not the date | endorse or negotiate my check) or the date(s) you initiate any electronic funds transfer to the School. 2. The “Repayment Period” begins 30-60 days after the final Disbursement Date. The Repayment Period is 20 years unless monthly payments equal to the minimum monthly payment amount (See Paragraph E.1) will repay all amounts owed in less than 20 years, in which case the Repayment Period {W0276658.4) BK.05-06.PRGT.10.0105 will be the number of months necessary to pay in full the amount | owe at the minimum payment. D. INTEREST: 1. Accrual - Beginning on the first Disbursement Date, interest will be calculated at the Variable Rate (Paragraph D.2) and charged on the Principal Sum, and on any unpaid interest later added to the Principal Sum according to Paragraphs D.3 and H. During the Repayment Period, interest will be calculated at the Variable Rate and charged on the outstanding balance of this Credit Agreement until all amounts are paid in full. Interest will be calculated on a daily simple interest basis. The daily interest rate will be equal to the annual interest rate in effect on that day, divided by the number of days in that calendar year. 2. Variable Rate - The “Variable Rate” is equal to the Current Index plus a Margin. The Margin is shown on the first page of this Credit Agreement. In no event will the Variable Rate exceed the maximum interest rate allowed by the laws of the State of California. The Variable Rate will change quarterly on the first day of each January, April, July and October (the “Change Date(s)’) if the Current Index changes. The “Current Index" for any calendar quarter beginning on a Change Date (or for any shorter period beginning on a Disbursement Date and ending on the last day of a calendar quarter) is based on the one-month London Interbank Offered Rate (“LIBOR’) as published in the “Money Rates” section of The Wall Street Journal. The index for each calendar quarter (or for any shorter period beginning on a Disbursement Date and ending on the last day of a calendar quarter) will equal the average of the LIBOR rates published on the first business day of each of the three (3) immediately preceding calendar months, rounded to the nearest one-hundredth percent (0.01%). If The Wall Street Journal is not published or the Current Index is not given on that date, then the Current Index will be determined by using the immediately preceding published Current Index. If the Current Index is no longer available, you will choose a comparable index. 3. Capitalization - If there will be more than one disbursement under this Credit Agreement, | understand that you will add to the principal balance of my loan (“capitalize interest’) prior to the due date of the first payment all interest that accrues between the first disbursement of my loan and the final disbursement of my loan. Thereafter, the sum is considered the principal, and interest will accrue on the new principal balance. E. TERMS OF REPAYMENT: 1. Repayment Period - The amount of my monthly payment (‘Monthly Payment Amount’) will be established based on the rules in this Credit Agreement when my Repayment Period begins. During the Repayment Period, you will send me monthly statements that show the Monthly Payment Amount and the payment due dates, and | will pay the Monthly Payment Amount shown on my monthly statement, which amount will in no event be less than $25 or the unpaid balance, whichever is less. | understand that the Monthly Payment Amount is due each month. | may pay more than my Monthly Payment Amount at any time without penalty or charge. If my loan is in paid-ahead status, | may, but will not be required to make monthly payments. You reserve the right to send monthly statements to the Borrower and/or the Cosigner. Even if | do not receive monthly statements, | will make consecutive monthly payments in amounts at least equal to the Monthly Payment Amount by the applicable payment due dates until | have paid all of the principal and interest and any other charges | may owe under this Credit Agreement. 2. Repayment Terms - My Monthly Payment Amount will be calculated as of the day the Repayment Period begins (“Repayment Date’). It will be recalculated (a) once each year prior to the anniversary of the Repayment Date, (b) if the Variable Rate changes between anniversaries of the Repayment Date to the extent that the Monthly Payment Amount would not pay in full the accrued monthly interest on my loan, (c) following any subsequent deferment or forbearance period or (d) following any request by the Borrower to the servicer to change the monthly payment due date (each of which events is a new “Repayment Date”). As of any Repayment Date, my Monthly Payment Amount will be recalculated. My new Monthly Payment Amount will be disclosed to me by the servicer. The new Monthly Payment Amount will equal the amount necessary to pay in full, over the number of months remaining in the Repayment Period, the amount | owe in equal monthly installments of principal and interest at the Variable Rate in effect at the time of the calculation. | understand that this may result in a reduction or increase in my monthly payment as calculated as of each Repayment Date. 3 of 6 | understand that during the Repayment Period the servicer may change the monthly payment due date of future payments to a later date for the convenience of the servicer in processing payments or in order to coordinate the due dates of all of my loans processed by the servicer. 3. Amounts Owing at the End of the Repayment Period - Since interest accrues daily upon the unpaid principal balance of my loan, if | make payments after my payment due dates, | may owe additional interest. If | have not paid my late fees, | will also owe additional amounts for those late fees. In such cases you will increase the amount of my last monthly payment to the amount necessary to repay my loan in full. 4, Payments - Payments will be applied first to late fees, other fees and charges, accrued interest, and the remainder to principal. 5. Other Charges - If any part of a monthly payment remains unpaid for a period of more than 15 days after the payment due date, | will pay a late fee not exceeding $5.00 or 5% of the payment amount, whichever is less. To the extent permitted by law, | agree to pay you all amounts you incur in enforcing the terms of this Credit Agreement, including reasonable collection agency and attorney's fees and court costs and other collection costs. F. LOAN ORIGINATION FEE: If you charge me, | will pay you a Loan Origination Fee at the time my loan is disbursed. The dollar amount of any Loan Origination Fee will be determined by multiplying the Principal Sum times the Loan Origination Fee Percentage shown on the first page of this Credit Agreement. The percentage would be higher if computed only on the amount advanced rather than on the entire Principal Sum (Loan Origination Fee plus the loan amount advanced). For example, a nominal Loan Origination Fee of 6.5% on the entire principal amount would equal 6.9519% of the amount advanced. The Loan Origination Fee | will pay, if any, will be shown on my Disclosure Statement and included with the Principal Sum. To the extent permitted by law, and unless | timely cancel this Credit Agreement (see Paragraph B.2), | will not be entitled to a refund of any Loan Origination Fee after my loan has been disbursed. G. RIGHT TO PREPAY: | have the right to prepay all or any part of my loan at any time without penalty. H. FORBEARANCE: If! am unable to repay my loan in accordance with the terms established under this Credit Agreement because of a hardship such as financial or medical difficulty, | may request that you modify these terms. | understand that such modification would be at your option. | understand that | will remain responsible for all interest accruing during any period of forbearance and that you will add any interest that | do not pay during any forbearance period to the principal balance as described in Paragraph D.3. |. WHOLE LOAN DUE: To the extent permitted by applicable law, | will be in default and you have the right to give me notice that the whole outstanding principal balance, accrued interest, and all other amounts payable to you under the terms of this Credit Agreement, are due and payable at once (subject to any applicable law which may give me a right to cure my default) if: (1) | fail to make any monthly payment to you when due, (2)! die, (3) | break any of my other promises in this Credit Agreement, (4) any bankruptcy proceeding is begun by or against me, or | assign any of my assets for the benefits of my creditors, or (5) | make any false written statement in applying for this loan or any other loan or at any time during the Repayment Period. If | default, | will be required to pay interest on this loan accruing after default. The interest rate after default will be subject to adjustment in the same manner as before default. Upon default, you may also capitalize any interest and fees (i.e., add accrued and unpaid interest and fees to the principal balance, and increase the Margin used to compute the Variable Rate by two percentage points (2%). J. NOTICES: 1. | will send written notice to you, any subsequent holder of this Credit Agreement, and the servicer within ten days after any change in name, address, or enrollment status (for example, if the Student withdraws from the School or transfers to another school participating in this loan program). 2. Any notice required to be given to me by you will be effective when mailed by first class mail to the latest address you have for me. Unless required by applicable law, you need not give a separate notice to the Cosigner, if any. K. INFORMATION: 1. | must update the information | provided to you whenever you ask me to do so. 2. | authorize you from time to time to request and receive from others credit related information about me (and about my spouse if | live in a community property state). {w0276658.4} BK.05-06.PRGT.10.0105 3, CREDIT BUREAU REPORTING 4 You may report information about my account to credit Sarena. Late payments, missed payments, or other defaults in my accolnt may be reflected in my credit report. { | understand that the reporting of information about my accolint to credit bureaus may adversely affect my credit rating and my ability to‘obtain other credit. You may also report the status of my loan and my payrent history, including information about a late payment, missed payment or other defaults in accordance with applicable law. L. ADDITIONAL AGREEMENTS: 1. | understand that you are located in CALIFORNIA and that this Credit Agreement will be entered into in the same state. CONSEQUENTLY, THE PROVISIONS OF THIS CREDIT AGREEMENT WILL BE GOVERNED BY FEDERAL LAW AND THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICT OF LAW RULES. 2. The proceeds of this loan will be used only for the educational expenses of the Student at the School. Neither | nor the Cosigner, if any, will receive any of the loan proceeds. 3. My responsibility for paying the loan evidenced by this Credit Agreement is unaffected by the liability of any other person to me or by your failure to notify me that a required payment has not been made. Without losing any of your rights under this Credit Agreement you may accept (a) late payments, (b) partial payments or (c) payments marked “paid in full” or with other restrictions. You may delay, fail to exercise, or waive any of your rights on any occasion without losing your entitlement to exercise the right at any future time, or on any future occasion. You will not be obligated to make any demand upon me, send me any notice, present this Credit Agreement to me for payment or make protest of non-payment to me before suing to collect on this Credit Agreement if | am in default, and to the extent permitted by applicable law, | hereby waive any right | might otherwise have to require such actions. | WILL NOT SEND YOU PAYMENTS MARKED “PAID IN FULL", “WITHOUT RECOURSE” OR WITH OTHER SIMILAR LANGUAGE UNLESS THOSE PAYMENTS ARE MARKED FOR SPECIAL HANDLING AND SENT TO THE ADDRESS IDENTIFIED FOR SUCH PAYMENTS ON MY BILLING STATEMENT, OR TO SUCH OTHER ADDRESS AS | MAY BE GIVEN IN THE FUTURE. 4, | may not assign this Credit Agreement or any of it ‘benefits or obligations. You may assign this Credit Agreement at any time. * 5. The terms and conditions set forth in this Credit Agierient and Instructions and the Disclosure Statement constitute the eniire agreement between you and me. 6. If any provision of this Credit Agreement is held invalid or uneeforssable, that provision shall be considered omitted from this Credit Agreement without affecting the validity or enforceability of the remainder ofthis Credit Agreement. 7. A provision of this Credit Agreement may only be modified if jointly agreed upon in writing by you and me. Any modification will not affect the validity or enforceability of the remainder of this Credit Agreement. i 8. To the extent permitted by law, you have the right to apply money from any of my deposit account(s) with you to pay all or a portion of any amount overdue under this Credit Agreement. | hereby authorize you to obtain from the School all amounts which may be owed to me by the School, including any refund due to overpayment, early termination of enrollment, or otherwise. 9. If this Credit Agreement is executed by more than one Borrower, each Borrower agrees that any communication between you and any of the Borrowers will be binding on all of the Borrowers. | intend to be treated as a principal of this Credit Agreement and not as a surety. To the extent | may be treated as a surety, | waive all notices to which | might otherwise be entitled as such by law, and all suretyship defenses that might be available to me (including, without limitation, contribution, subrogation and exoneration). | agree that the Borrower may agree to any forbearance or other modification of the repayment schedule and that such agreement will be binding on me. It shall not be necessary for you to resort to or exhaust your remedies against the borrower before calling upon me to make repayment. For purposes of this paragraph only, “l" and “me” refer to the Cosigner only. 10. All dollar amounts stated in this Credit Agreement are in United States dollars. | will make all payments in United States Dollars with no deduction for currency exchange. 4 of 6 11. If the Student fails to complete the education program paid for with this loan, the Cosigner and | are not relieved of any obligation within or pursuant to this Credit Agreement. 12. | acknowledge that the requested loan is subject to the limitations on dischargeability in bankruptcy contained in Section 523 (a) (8) of the United States Bankruptcy Code. Specifically, | understand that you have purchased a guaranty of this loan, and that this loan is guaranteed by The Education Resources Institute, Inc. (“TERI”), a non- profit institution. 13. | authorize the School and any other school that the Student may attend to release to you, and any other persons designated by you, any requested information pertinent to this loan (e.g., enrollment status, prior loan history, and current address). 14. | authorize the Lender, any subsequent holder of this Credit Agreement, and their agents (including TERI) to: (1) advise the School of the status of my application and my loan, (2) respond to inquiries from prior or subsequent lenders or holders with respect to my Credit Agreement and related documents, (3) release information and make inquiries to the persons | have given you as references, for the purposes of learning my current address and telephone number, (4) check my credit and employment history and to answer questions about their credit experience with me, and (5) disclose to the Borrower, and/or the Cosigner either in connection with this transaction or any future transaction all information (including status information and non-public personal information) of the Borrower and/or the Cosigner provided in connection with this Credit Agreement. 15. Waiver by Lender: You waive (give up) any right to claim a security interest in any property to secure this Credit Agreement. This does not affect any right to offset as a matter of law. 16. If | fax my signature(s) on the first page of this Credit Agreement back to you and keep the copy | signed, | understand that under federal law the fax you receive will be an original of the first page of this Credit Agreement. You and | agree that all copies of this Credit Agreement (including the fax you receive and the copy | retain), taken together, shall constitute a single original agreement. 17. If any Borrower or Cosigner elects to sign electronically an electronic record of this Credit Agreement, then the following will apply as between Lender and such person: (a) Lender will keep a non-modifiable electronic record of this document and provide a copy to me upon request, (b) | can and have downloaded and/or printed a copy of this document for my records or notified the Lender to mail me a copy of this document, and (c) the Lender's electronic record of this document and any printout from that record shall be an original for all purposes, including any lawsuit to collect amounts that | owe. If | physically sign a copy of this document that has been electronically signed by any other Cosigner or Borrower, as between me and the Lender the copy | sign (and any fax of that copy | may send to Lender) will be an original. However, the electronic signature of another party to this Credit Agreement and the Lender’s electronic record of this document containing that signature will be as valid against me as an original, physical document that is physically signed by all parties. M. DISCLOSURE NOTICES ALL APPLICANTS: IMPORTANT FEDERAL LAW NOTICE- Important information about procedures for opening a new account: To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account. What this means for you: When you open an account, we will ask for your name, address, date of birth, and other information that will allow us to identify you. We may also ask to see your driver’s license or other identifying documents. CALIFORNIA RESIDENTS: | have the right to prohibit the use of information contained in my credit file in connection with transactions not initiated by me. | may exercise this right by notifying the consumer credit reporting agency. A married applicant may apply for a separate account. If you take any adverse {W0276658.4} BK.05-06.PRGT.10.0105 action as defined by Section 1785.3 of the California Civil Code and the adverse action is based, in whole or in part, on any information contained in a consumer credit report, | have the right to obtain within 60 days a free copy of my consumer credit report from the consumer reporting agency who furnished you my consumer credit report and from any other consumer credit reporting agency which compiles and maintains files on consumers on a nationwide basis. | have the right as described by Section 1785.16 of the California Civil Code to dispute the accuracy or completeness of any information in a consumer credit report furnished by the consumer credit reporting agency. CALIFORNIA AND UTAH RESIDENTS: As required by California and Utah law, | am hereby notified that a negative credit report reflecting on my credit record may be submitted to a credit reporting agency if | fail to fulfill the terms of my credit obligations. IOWA, KANSAS AND NEBRASKA RESIDENTS (For purposes of the following notice, the word “you” refers to the Borrower and the Cosigner, not the Lender): NOTICE TO CONSUMER. This is a consumer credit transaction. 1. DO NOT SIGN THIS:CREDIT AGREEMENT BEFORE YOU READ THIS CREDIT AGREEMENT. 2. YOU ARE ENTITLED TO A COPY OF THIS CREDIT AGREEMENT. 3. YOU MAY PREPAY THE UNPAID BALANCE AT ANY TIME WITHOUT PENALTY AND MAY BE ENTITLED TO A REFUND OF UNEARNED CHARGES IN ACCORDANCE WITH LAW. MARYLAND RESIDENTS: In Paragraph L.1, Lender and | have suse that this Credit Agreement is governed by federal law and the laws of CALIFORNIA, without regard to conflict of laws rules; if any court should nevertheless determine that this Credit Agreement is subject to Maryland laws concerning credit, then only to the extent that Maryland law applies, Lender and | agree and elect that this loan is made under and governed by Subtitle 10, Credit Grantor Closed End Credit Provisions, of Title 12 of the Commercial Law Article of the Annotated Code of Maryland, except as preempted by federal law. MISSOURI RESIDENTS: Oral agreements or commitments to loan money, extend credit or to forbear from enforcing repayment of a debt including promises to extend or renew such debt are not enforceable. To protect me (borrower(s)) and you (creditor) from misunderstanding or disappointment, any agreements we reach covering such matters are contained in this writing, which is the complete and exclusive statement of the agreement between us, except as we may later agree in writing to modify it. NEVADA RESIDENTS: This is a loan for study. NEW JERSEY RESIDENTS: The section headings of this Credit Agreement are a table of contents and not contract terms. Portions of this Credit Agreement with references to actions taken to the extent of applicable law apply to acts or practices that New Jersey law permits or requires. In this Credit Agreement, acts or practices (i) by you which are or may be permitted by “applicable law" are permitted by New Jersey law, and (ii) that may or will be taken by you unless prohibited by “applicable law’ are penis by New Jersey law. NEW YORK, RHODE ISLAND AND VERMONT RESIDENTS: A ‘consumer report (credit report) may be obtained from a consumer-reporting,agency (credit bureau) in connection with this loan. If | request (1) | will be informed whether or not consumer reports were obtained, and (2) if reports. were obtained, | will be informed of the names and addresses of the credit bureaus that furnished the reports. If you agree to make this loan to me, a consumer credit report may be requested or used in connection with renewals or extensions of any credit for which | have applied, reviewing my loan, taking collection action on my loan, or legitimate purposes associated with my loan. OHIO RESIDENTS: The Ohio laws against discrimination require that all creditors make credit equally available to all credit worthy customers, and that credit reporting agencies maintain separate credit histories on each individual upon request. The Ohio Civil Rights Commission administers compliance with this law. WISCONSIN RESIDENTS: For married Wisconsin residents, my signature on this Credit Agreement confirms that this loan obligation is being incurred in the interest of my marriage or family. No provision of any marital property agreement (pre-marital agreement), unilateral statement under Section 766.59 or court decree under Section 766.70 adversely affects the interest of the Lender unless the Lender, prior to the time that the loan is approved, is furnished with a copy of the agreement, statement, or decree or has actual knowledge of the adverse provision when the obligation to the Lender is 5 of 6 incurred. If the loan for which | am applying is granted, my spouse will also receive notification that credit has been extended to me. N. BORROWER'S CERTIFICATION: | declare under penalty of perjury under the laws of the United States of America that the following is true and correct. | certify that all information | provided to you in connection with this loan, including without limitation, the information contained in this Credit Agreement, is true, complete and correct to the best of my knowledge and belief and is made in good faith. | understand that | am responsible for repaying immediately any funds that | receive which are not to be used or are not used for educational expenses related to attendance at the School for the academic period stated. | certify that | am not now in default on a Federal Perkins Loan, a Federal Stafford Loan, a Federally Insured Student Loan, a Federal Supplemental Loan for Students (SLS), a Federal PLUS Loan, an Income Contingent Loan, a Federal Consolidation Loan, a Federal Ford Direct Loan, or any other education loan received for attendance at any school. O. STATE-SPECIFIC COSIGNER NOTICES: For the purposes of the following notices only, the words “you” and “your” refer to the Co-Signer, where applicable, not to the lender. FOR OBLIGORS COSIGNING IN WEST VIRGINIA: NOTICE TO COSIGNER You are being asked to guarantee this debt. Think carefully before you do. If the borrower doesn’t pay the debt, you will have to. Be sure you can afford to pay it if you have to, and that you want to accept this responsibility. You may have to pay up to the full amount of the debt if the borrower does not pay. You may also have to pay late fees or collection costs, which increase this amount. The creditor can collect this debt from you without first trying to collect from the borrower. The creditor can use the same collection methods against you that can be used against the borrower, such as suing you, garnishing your wages, etc. If this debt is ever in default, that fact may become a part of your credit record. This notice is not the contract that makes you liable for the debt. (W0276658.4) BK.05-06.PRGT.10.0105 FOR OBLIGORS COSIGNING IN IOWA, NEW _YORK AND SOUTH CAROLINA: NOTICE: You agree to pay the debt identified below although you may not personally receive any property, goods, services, or money. You may be sued for payment although the person who receives the property, goods, services, or money is able to pay. You should know that the Total of Payments listed below does not include finance charges resulting from delinquency, late charges, repossession or foreclosure costs, court costs or attorney's fees, or other charges that may be stated in the Note or contract. You will also have to pay some or all of these costs and charges if the Note or contract, the payment of which you are guaranteeing requires the borrower to pay such costs and charges. This notice is not the Note or contract that obligates you to pay the debt. Read the Note or contract for the exact terms of your obligation. IDENTIFICATION OF DEBT (S) YOU MAY HAVE TO PAY Name of Debtor: The Borrower and Cosigner identified on the at page of this Credit Agreement. Name of Creditor: Bank of America, National Association, and ie Ineo and assigns. Date: If the loan is disbursed by check, the date of the check. i the loan is disbursed electronically, the date the creditor transmits the funds to the School. Kind of Debt: Education loan. Total of Payments: The Loan Amount Requested set forth on the first page of this Credit Agreement (to the extent advanced), plus interest andthe Loan Origination Fee set forth in this Credit Agreement. “ FOR OBLIGORS COSIGNING IN VERMONT: NOTICE TO COSIGNER YOUR SIGNATURE ON THIS CREDIT AGREEMENT MEANS THAT YOU ARE EQUALLY LIABLE FOR REPAYMENT OF THIS LOAN. IF THE BORROWER DOES NOT PAY, THE LENDER HAS A LEGAL RIGHT TO COLLECT FROM YOU. 6 of 6 EX-10.15 16 nationalcollegiate_ex10-15.htm POOL SUPPLEMENT 2005-2 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 Apri] 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 June 9, 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 Joan 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 2005-2 (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 | 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 Jegal right to acquire and own the Transferred Bank of America Loans. Page | of 4 http://www.sec.gov/Archives/edgar/data/1327893/000088237705001 569/nationalcollegiat... 10/5/2011 (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. http://www.sec.gov/Archives/edgar/data/1327893/000088237705001 569/nationalcollegiat... Page 2 of 4 10/5/2011 Page 3 of 4 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/ John A. Hupalo Name: John A. Hupaio Title: Executive Vice President BANK OF AMERICA, N.A. By: /s/ K L Connor Name: K L Connor Title: Senior Vice President THE NATIONAL COLLEGIATE FUNDING LLC By: GATE Holdings, Inc., Member By: /s/ Stephen Anbinder Name: Stephen Anbinder Title: President http://www.sec.gov/Archives/edgar/data/1327893/000088237705001 569/nationalcollegiat... 10/5/2011
