NOTE PURCHASE AGREEMENT BANK OF AMERICA GATE® LOAN PROGRAM
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CONFIDENTIAL
MATERIALS OMITTED AND FILED
SEPARATELY WITH THE
SECURITIES
AND EXCHANGE COMMISSION.
ASTERISKS DENOTE
OMISSIONS.
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Exhibit
99.2
BANK
OF
AMERICA GATE®
LOAN
PROGRAM
This
Note
Purchase Agreement, by and between BANK OF AMERICA, N.A. ("Program Lender"),
a
national banking association organized under the laws of the United States
and
having a principal office located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, and THE FIRST MARBLEHEAD CORPORATION, a Delaware corporation having
a principal place of business at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
(“FMC”), dated as of April 30, 2001;
W
I T N E
S S E T H:
WHEREAS,
Program Lender is in the business of making education loans under education
lending programs, including, without limitation, the Bank of America GATE
Education Loan Program (as hereinafter defined); and
WHEREAS,
FMC exists to arrange funding for education loans for the benefit of students
at
Participating Institutions; and
WHEREAS,
in order to facilitate funding of Bank of America GATE Conforming Loans, Program
Lender has agreed to sell, from time to time, pools containing Bank of America
GATE Conforming Loans originated by Program Lender to FMC or a Purchaser Trust
(all as hereinafter defined).
WHEREAS,
the Bank of America GATE Education Loans are made by Program Lender and
purchased by FMC on the condition that they qualify for and in fact are covered
by a guaranty issued by The Education Resources Institute, Inc.
(“▇▇▇▇”).
NOW,
THEREFORE, in consideration of these presents and the covenants contained
herein, the parties hereto hereby agree as follows:
I.
Definitions.
Capitalized
terms used herein without definition have the meanings set forth in the Program
Guidelines.
"Affiliate"
shall mean, as to any person, any other person which, directly or indirectly,
is
in control of, is controlled by, or is under common control with, such person.
A
person shall be deemed to control another person if the controlling person
possesses, directly or indirectly, the power to direct or to cause the direction
of the management and policies of the other person, whether through the
ownership of voting securities, by contract or otherwise.
"Bank
of
America GATE Conforming Loans" shall mean loans (a) conforming to the
requirements of the Product Specifications at the time the loans were made,
(b)
serviced by the Servicer in accordance with the Product Specifications, and
(c)
covered by and subject to all the benefits of the Guaranty
Agreement.
"Bank
of
America GATE Education Loan Pool" or "Pool" shall mean and refer to a group
of
Bank of America GATE Notes purchased and pledged or intended to be purchased
and
pledged as collateral in a particular Securitization Transaction.
"Bank
of
America GATE Notes" shall mean notes or other forms of consumer debt
instruments, evidencing Bank of America GATE Conforming Loans.
"Business
Day" shall mean any day other than: (a) a Saturday or Sunday, or (b) a day
on
which banking institutions in the State of California are required or authorized
by law or executive order to be closed.
“Co-Lender
Indemnification Agreement” means the form of Agreement attached hereto as
Exhibit C.
“Collateral”
has the meaning set forth in the Deposit and Security Agreement.
“Deposit
and Security Agreement” means the agreement of that name among Program Lender,
▇▇▇▇, FMC, and State Street Bank & Trust Company, dated as of April 30,
2001.
"First
Marblehead" or “FMC” shall mean The First Marblehead Corporation, a Delaware
corporation.
"GATE
Program" shall mean the Bank of America GATE Education Loan Program described
in
the Product Specifications.
“Guaranty
Agreement” means the agreement of that name between Program Lender and ▇▇▇▇,
dated as of April 30, 2001.
"Minimum
Purchase Price" has the meaning set forth in Section 2.04.
“Option
Period” means, with respect to any particular Bank of America GATE Conforming
Loan, the period beginning on the first May 1 when such loan first becomes
a
Seasoned Loan and ending [**] days thereafter.
"Origination
Records" means and refers to the original Bank of America GATE Education Loan
Application and Note, a form of cosigner notice when required under 16 C.F.R.
§
444, and any other standardized documentation specified from time to time in
the
Product Specifications as required to be received by the Servicer from the
Program Lender in order to service Bank of America GATE Conforming Loans
adequately and accurately.
"Origination
Services Agreement" refers to (a) the Origination Services Agreement entered
into between Servicer and Program Lender with respect to origination of prepGATE
Conforming Loans, as amended from time to time, and (b) any subsequent agreement
relating to origination services provided to Program Lender with respect to
Bank
of America GATE Education Loan Notes purchased under this
Agreement.
"Participating
Institution" means an educational institution approved by ▇▇▇▇ for receipt
of
Bank of America GATE Program funds.
"Product
Specifications" has the meaning set forth in the Umbrella
Agreement.
"Purchase
Date" shall mean the date of consummation of a Securitization Transaction with
respect to a particular Pool including Bank of America GATE Conforming Loans
originated by Program Lender, which date: (a) shall be set by written notice
from FMC to Program Lender, given to Program Lender not less than five (5)
Business Days in advance of the specified date, and (b) shall occur [**] for
each loan in the Pool in question.
"Purchaser
Trust" shall mean and refer to a trust or other SPE formed for the purpose
of
purchasing Bank of America GATE Conforming Loans by FMC or by any Affiliate
of
FMC. Any action required or permitted to be taken by FMC hereunder may be taken
by a Purchaser Trust with respect to a particular Pool.
"Rating
Agencies" shall mean and refer to Standard and Poor's Corporation and/or ▇▇▇▇▇'▇
Investors Service, Inc., and/or Duff & ▇▇▇▇▇▇, and/or Fitch Investors
Services.
“Seasoned
Loan” means a Bank of America GATE Conforming Loan made by Program Lender that
becomes “seasoned” in accordance with the following criteria:
(a)
The
following Bank of America GATE Conforming Loans will be deemed to be “Seasoned
Loans” immediately upon final disbursement:
(i)
prepGATE
loans (as defined in the Product Specifications);
(b)
The
following Bank of America GATE Conforming Loans will be deemed to be “Seasoned
Loans” twenty-four (24) months following final disbursement:
(i)
Bank
of
America GATE Undergraduate Education Loans (as defined in the Product
Specifications) made to Borrowers in their first (1st),
second
(2nd)
or
third (3d) academic year;
(c) The
following Bank of America GATE Conforming Loans will be deemed to be “Seasoned
Loans” upon
the
scheduled graduation date (i.e., at the beginning of the grace period before
scheduled repayment
begins):
(i)
Bank of America GATE Undergraduate Education Loans (as defined in the Product
Specifications) made to Borrowers in their fourth (4th) or later academic year;
and
(ii)
Bank of America GATE Graduate Professional Education Loans (as defined in the
Product Specifications).
(d)
Notwithstanding
subparagraphs (a) through (c), above, Bank of America GATE Conforming Loans
will
be deemed to be “Seasoned Loan” immediately upon the occurrence of any of the
following events:
(i) the
Bank
of America GATE Conforming Loan enters repayment because the Borrower ceases
to
be enrolled at the Participating Institution or in an approved residency period
in the case of a loan to a Borrower in a medical or dental degree program,
as
and to the extent required by the Product Specifications; or
(ii)
a
“Guaranty Event” (as defined in the Guaranty Agreement) occurs with respect to
such Bank of America GATE Conforming Loan.
"Securitization
Costs" means the actual costs and expenses incurred by FMC, the Purchaser Trust,
and all others entitled to payment for expenses by the Purchaser Trust or FMC,
in connection with a Securitization Transaction, including, without limitation,
the following:
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(Structuring
and Origination Fees;
Copy/Binding
Costs)
(Underwriting
Expenses)
(Rating
Fee)
(Transaction
and First Year Fees; Expenses)
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Owner
Trustee and Indenture
Trustee
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(Transaction
and First Year Fees; Expenses)
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(Counsel
for Indenture Trustee)
(Counsel
for FMC)
(Servicer
Audit)
(Bond
Insurer)
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||
"Securitization
Transaction" shall mean and refer to the purchase of a Pool of Bank of America
GATE Conforming Loans by a Purchaser Trust funded through the issuance and
sale
of commercial paper, certificates, bonds or other securities or evidences of
indebtedness, the repayment of which is supported by payments on the Bank of
America GATE Conforming Loans included in such Pool. A Securitization
Transaction may include, without limitation, a continuing series of transactions
occurring on a periodic basis in which Program Lender makes a sale of
then-outstanding Seasoned Loans to a Purchaser Trust, which Purchaser Trust
in
turn either utilizes the Pool directly as collateral for its own debt or resells
the Pool (in whole or in part) in further sales to a securitization conduit
providing financing to the Purchaser Trust.
"Servicer"
shall mean and refer to The Pennsylvania Higher Education Assistance Agency
("PHEAA"), or such other servicer as may be retained by the holder of Bank
of
America GATE Conforming Loans in accordance with the terms hereof and of the
Umbrella Agreement.
"Servicing
Agreement" refers to: (a) the Servicing Agreement entered into between Servicer
and Program Lender with respect to servicing of Bank of America GATE Conforming
Loans, as amended from time to time, and (b) any subsequent servicing agreement
between Program Lender and the Servicer governing servicing of Bank of America
GATE Conforming Loans purchased under this Agreement.
"Servicing
Assignment and Servicer Consent Letter" means the form of assignment and consent
attached hereto as Exhibit B.
"SPE"
means a special purpose entity formed and operated for the sole purpose of
acting as purchaser and owner of Bank of America GATE Conforming
Loans.
"Term"
shall mean the period commencing on the effective date hereof and ending upon
termination hereof, all as set forth in Article X.
"Trust
Agreement" means, with respect to any particular Securitization Transaction,
the
agreement pursuant to which a Purchaser Trust is formed.
"Trust
Indenture" means, with respect to any particular Securitization Transaction,
the
agreement pursuant to which FMC or a Purchaser Trust issues evidences of
indebtedness secured by the payments on the related Bank of America GATE
Conforming Loans.
"Umbrella
Agreement" shall mean and refer to that certain Umbrella Agreement by and
between Program Lender and First Marblehead, dated as of April 15,
2001.
II.
Agreement
for Purchase and Sale of Notes.
2.01. Purchase
and Sale.
On
each
Purchase Date during the Term of this Agreement and subject to the conditions
set forth herein, Program Lender shall sell to FMC or a designee Purchaser
Trust, and FMC or such Purchaser Trust shall purchase, every Seasoned Loan
owned
by Program Lender on the Purchase Date.
2.02. Pre-Closing
Information; FMC [**].
(a) Reporting.
Program
Lender will cause Servicer to inform FMC periodically of information reasonably
requested by FMC in anticipation of a Securitization Transaction, including,
without limitation, the number of Seasoned Loans ready for purchase, principal
and accrued interest with respect to each such Loan, payment status (including
defaulted loans presented for guaranty payment), and the identity of
Participating Institutions affected by the Securitization. Program Lender shall
also provide summary data, monthly, of applications in process and approved
loans not yet originated (numbers, dollar amounts by program, borrower expected
repayment date and other agreed data). Program Lender will provide summary
data,
monthly, of rejected applications (numbers and dollar amounts by program).
Program Lender shall also cause Servicer to provide its MR50 Reports to FMC.
FMC
covenants and agrees that it will use data in the MR50 Report solely for the
purpose of producing portfolio-level reports specific to forecasting and
structuring Securitization Transactions. After production of such reports,
FMC
will return all data storage devices containing MR50 data to PHEAA and will
delete all MR50 data (other than the portfolio-level reports) from its system.
FMC
will
[**] specify a Purchase Date and consummate a Securitization Transaction in
which a Purchaser Trust will purchase all of the Seasoned Loans, not less than
once each calendar year. FMC shall have the sole and exclusive right to purchase
all Bank of America GATE Conforming Loans [**] for each such loan, which right
may be assigned to one or more Purchaser Trusts. Program Lender agrees, in
consideration of FMC's undertaking pursuant to this section, not to sell to
any
third person any interest in any Bank of America GATE Conforming Loans
originated by Program Lender [**]. Program Lender shall be free to use Bank
of
America GATE Conforming Loans as collateral for loans to Program Lender and/or
to sell participations in its portfolio of Bank of America GATE Conforming
Loans; provided, however, that Program Lender must sell and deliver Seasoned
Loans free and clear of any such interests on any Purchase Date. Program Lender
shall be entitled at any time and from time to time, in its sole discretion,
to
sell a Seasoned Loan to a third party or to retain a Bank of America GATE
Conforming Loan, in whole or in part, for its own account, in the event that
FMC
or its designee is unable to or fails to acquire such Seasoned Loan [**]. In
such event, the Program Lender may sell or retain such Seasoned Loan to any
purchaser, free and clear of any claim under this Agreement.
2.03. Pool
Supplement.
Each
purchase and sale of the Seasoned Loans originated by Program Lender included
in
a Pool on a Purchase Date shall be made pursuant to a Pool Supplement
substantially in the form of Exhibit A which shall: (1) set forth the Minimum
Purchase Price for the Seasoned Loans originated by Program Lender included
in
the Pool, (2) incorporate by reference the terms and conditions of this
Agreement applicable to sales of Seasoned Loans, and (3) include a Schedule
of
Seasoned Loans setting forth the details and characteristics of such Pool.
Each
Pool Supplement shall be executed by an authorized agent of each Purchaser
Trust
and the Program Lender and shall be delivered on the related Purchase Date.
The
Purchaser Trust shall provide a preliminary settlement sheet in the form of
Schedule 1 to the Pool Supplement not less than two (2) Business Days prior
to
the Purchase Date.
2.04. Minimum
Purchase Price.
On
the
Purchase Date, Program Lender shall assign and convey all Seasoned Loans
originated by Program Lender included in the Pool to FMC, or a Purchaser Trust,
in consideration of receipt of the Minimum Purchase Price therefor. For purposes
of this Agreement the term “Minimum Purchase Price” shall mean the sum of:
(a)
The
unpaid principal amount of the Seasoned Loans in question [**]; plus
(b)
all
accrued and unpaid interest on such Seasoned Loans, [**]; plus
(c)
[**],
the
amount of any guaranty fee paid by Program Lender to ▇▇▇▇. If the terms of
the
Guaranty Agreement call for any Guaranty Fees to be paid to ▇▇▇▇ [**];
plus
(d)
a
partial
reimbursement for [**] costs incurred and paid by Program Lender with respect
to
[**] such reimbursement to equal [**]
2.05.
Failure
of FMC to Securitize.
In
the
event that: (a) FMC fails to specify a Purchase Date and to consummate a
Securitization Transaction with respect to a Pool of Seasoned Loans [**], and
(b) Program Lender subsequently sells such a Pool in a transaction that, if
it
had been conducted by a Purchaser Trust, would constitute a Securitization
Transaction, THEN FMC will reimburse Program Lender for [**]. For purposes
only
of this Section 2.06, the following terms have the following
meanings:
[**]
III.
Procedures
and Conditions for Transfer.
3.01. Conveyances
of Bank of America GATE Conforming Loans; Conditions to Purchase.
(a)
On
each
Purchase Date, upon execution and delivery of the related Pool Supplement,
Program Lender shall sell, transfer, assign, set over and otherwise convey
to
FMC or the Purchaser Trust, without recourse, all right, title and interest
of
Program Lender in and to:
(1) The
Seasoned Loans included in the related Pool originated by Program Lender and
all
payments due or to become due thereon;
(2) Any
proceeds with respect to the Seasoned Loans originated by Program Lender
included in such Pool from recourse to ▇▇▇▇ under the Origination Services
Agreement regarding origination of prepGATE Conforming Loans;
(3) Any
claims Program Lender may have under the Servicing Agreement with respect to
acts or omissions of the Servicer affecting the Seasoned Loans being
purchased;
(4) The
proceeds of any and all of the foregoing received after the Purchase Date or
received prior thereto and not credited against the Minimum Purchase Price
as
computed on the Purchase Date (and, pursuant to Section 3.07, the Purchaser
Trust shall assume certain liabilities of Program Lender
thereunder);
(5) All
rights of Program Lender under the Guaranty Agreement with respect to the loans
in the Pool.
(b)
The
obligation of the Purchaser Trust to purchase the Seasoned Loans originated
by
Program Lender on the related Purchase Date shall be subject to satisfaction
of
the following conditions (each and all of which may be waived by such Purchaser
Trust, in whole or in part in its sole discretion):
(1) Program
Lender shall have delivered to the Purchaser Trust a duly authorized and
executed Pool Supplement;
(2) Each
of
the representations and warranties made by Program Lender pursuant to Section
5.02 with respect to the Seasoned Loans originated by Program Lender included
in
such Pool shall be true and correct as of the related Purchase
Date;
(3) The
Origination Services Agreement and the Servicing Agreement shall be in full
force and effect as of the related Purchase Date and Program Lender and Servicer
shall have executed and delivered a Servicing Assignment and Servicer Consent
Letter;
(4) Program
Lender and ▇▇▇▇ shall have performed and observed the terms and conditions
of
this Agreement and the Origination Services Agreement and there shall not have
occurred a default under either the Origination Services Agreement or the
Servicing Agreement;
(5) Program
Lender shall have complied with the provisions of the Umbrella Agreement
applicable to the Seasoned Loans included in the Pool;
(6) The
loans
to be purchased shall have been originated and serviced in conformity with
the
Product Specifications and shall be covered by the Guaranty
Agreement;
(7) The
Agent
pursuant to the Deposit and Security Agreement, shall have transferred to the
indenture trustee in the Securitization Transaction the portion of the Pledged
Account and the Collateral specified in Section 4 of the Deposit and Security
Agreement;
(8) If
required by any other Lender whose loans are included in the Securitization
Transaction, the Program Lender shall have executed and delivered a Co-Lender
Indemnification Agreement substantially in the form of Exhibit C;
(9) Program
Lender shall, at its own expense, on or prior to the Purchase Date, indicate
in
computer files relating to Seasoned Loans that the Seasoned Loans identified
in
the related Pool Supplement have been sold to the Purchaser Trust pursuant
to
this Agreement and such Pool Supplement;
(10) Program
Lender shall have executed and delivered for filing a UCC-1 financing statement
with respect to the Seasoned Loans originated by Program Lender included in
such
Pool in the appropriate office of the jurisdiction in which the chief executive
office of the Program Lender is located (or, in the event of a change of law,
Program Lender shall have taken, but at no additional cost or expense to the
Program Lender, such action as may be reasonably advised by the Purchaser
Trust);
(11) As
of
such Purchase Date: (i) Program Lender was not insolvent and will not become
insolvent as a result of the transfer of Seasoned Loans on such Purchase Date,
(ii) Program Lender did not intend to incur or believe that it would incur
debts
that would be beyond Program Lender's ability to pay as such debts matured,
(iii) such transfer was not made with actual intent to hinder, delay or defraud
any Person, and (iv) Program Lender was "Well Capitalized," as such term is
defined by the Office of the Comptroller of the Currency on the Purchase Date;
and
(12) Program
Lender shall have executed and delivered an Indemnification Agreement
substantially in the form of Exhibit D attached hereto, provided,
however,
that an
Indemnification Agreement shall not be required if FMC executes and delivers
to
Program Lender a certificate which states that no Offering Materials (as defined
in Exhibit D attached hereto) were distributed or provided to any securities
purchaser or prospective purchaser in connection with the Securitization
Transaction in question.
(c) The
obligation of Program Lender to sell the Seasoned Loans originated by Program
Lender included in the Pool on a related Purchase Date are subject to
satisfaction of the following conditions (each and all of which may be waived
by
Program Lender in whole or in part, in its sole discretion):
(1) Purchaser
Trust shall have delivered to Program Lender a duly authorized and executed
Pool
Supplement;
(2) Purchaser
Trust shall have paid the Minimum Purchase Price to Program Lender by wire
transfer of immediately available funds within twenty-four (24) hours after
the
Purchase Date (such Minimum Purchase Price shall be based on the best
information available from the Servicer as of the Purchase Date; no later than
thirty (30) days following the Purchase Date, the Purchaser Trust shall
recalculate the Minimum Purchase Price to reflect adjustments for transactions
(including, without limitation, additional accrued interest and payments
received), and whichever party is deemed to owe the other such adjustment shall
deliver such adjustment to such other party, by wire transfer of immediately
available funds);
(3) FMC
shall
have complied with the terms of the Umbrella Agreement applicable to the
Seasoned Loans included in the Pool and no default of FMC under the Umbrella
Agreement relating to any Seasoned Loans shall have materially impaired the
rights of the Program Lender in connection with the purchase and sale of the
Pool to be sold on the Purchase Date;
(4) FMC
and
Purchaser Trust shall have executed and delivered an Indemnification Agreement
substantially in the form of Exhibit D attached hereto, provided,
however,
that an
Indemnification Agreement shall not be required if FMC executes and delivers
to
Program Lender a certificate which states that no Offering Materials (as defined
in Exhibit D attached hereto) were distributed or provided to any securities
purchaser or prospective purchaser in connection with the Securitization
Transaction in question.
(5) In
the
event the subject Pool contains loans originated by persons and entities other
than Program Lender (to the extent permitted under the Umbrella Agreement),
each
such person and entity shall have delivered to Program Lender a Co-Lender
Indemnification Agreement;
(6) If
the
trustee or other fiduciary under the related Trust Indenture is not State Street
Bank and Trust, Program Lender shall have approved such trustee or fiduciary,
with such approval not to have been unreasonably withheld; and
(7) Program
Lender shall have received an opinion of Thacher, ▇▇▇▇▇▇▇▇ & ▇▇▇▇, or other
securities counsel to the Purchaser Trust and FMC, addressed to Program Lender
and satisfactory to Program Lender in form and substance. Such opinion shall,
with respect to any securities issued by the Purchaser Trust, state that nothing
has come to the attention of such counsel that would lead it to believe that
the
Offering Materials (as defined in the Indemnification Agreement attached hereto
as Exhibit D) in connection with the matters described therein contain any
untrue statement of a material fact or omit to state a material fact required
to
be stated therein or necessary to make the statements therein not misleading;
provided,
however,
that
Thacher, ▇▇▇▇▇▇▇▇ & ▇▇▇▇ may except the B of A Information (as
defined in Exhibit D attached hereto) from the scope of its opinion, and
further provided,
however,
that
such opinion shall not be required if FMC executes and delivers to Program
Lender a certificate which states that no Offering Materials (as defined in
Exhibit D attached hereto) were distributed or provided to any securities
purchaser or prospective purchaser in connection with the Securitization
Transaction in question.
3.02.
Delivery
of Documents.
On
the
Purchase Date, Program Lender shall deliver to the Servicer, as agent for the
Purchaser Trust and/or to the trustee of the Trust Indenture, each Bank of
America GATE Note originated by Program Lender included in the Pool and the
related Origination Records. If a Co-Lender Indemnification Agreement is
required as a condition of Program Lender's obligations under Section 3.01(c)(4)
hereof, Program Lender shall execute and deliver a Co-Lender Indemnification
Agreement to each lender selling Bank of America GATE Conforming Loans in the
Securitization Transaction.
3.03.
Confirmation
of Representations and Warranties.
In
each
Pool Supplement, Program Lender shall confirm its representations and warranties
contained in Section 5.02 hereof.
3.04. Rights
Transferred.
The
transfer of funds pursuant to Section 2.04 hereof shall constitute, and the
delivery to FMC, or its designated Purchaser Trust of each Pool Supplement
shall
evidence, a sale and assignment to FMC or the Purchaser Trust of the related
Seasoned Loans and of all of Program Lender's interest in such Seasoned Loans.
As assignee of such Seasoned Loans, FMC or the Purchaser Trust shall receive:
(i) interest on such Seasoned Loans from and after the Purchase Date, and (ii)
any and all other payments and recoveries received by the Servicer or Program
Lender from the borrowers and cosigners of such Seasoned Loans, or others
pursuant to, or in respect of, such Seasoned Loans from and after the Purchase
Date, and all proceeds thereof.
3.05.
Subsequent
Receipts.
In
the
event that Program Lender shall receive, subsequent to any such assignment,
any
amounts whatsoever in respect to the Bank of America GATE Conforming Loans
so
assigned in the nature of those described in Section 3.04 above, such amounts
shall be held by Program Lender in trust for FMC or the Purchaser Trust to
which
it has sold the Notes, and the Program Lender shall promptly deliver such
amounts to the trustee under the Trust Indenture.
3.06.
Assignment
of Origination Rights.
Program
Lender shall insure that Program Lender's rights under the Servicing Agreement
and the Origination Services Agreement with respect to the Seasoned Loans in
each Pool shall be transferred to FMC or the Purchaser Trust by execution and
delivery of a Servicing Assignment and Servicer Consent Letter. Program Lender
shall require ▇▇▇▇ to complete any loan origination services being performed
for
Program Lender under the Origination Services Agreement on the Purchase Date
so
that complete Origination Records are ready for transfer to the Purchaser Trust
(or to Servicer on its behalf).
3.07.
No
Assumption of Liability to Fund Bank of America GATE Education Loan
Notes.
By
their
purchase of Bank of America GATE Education Loan Notes, FMC, and all Purchaser
Trusts, shall assume no liability, responsibility or obligation with respect
to
any payments which are due and owing, or which are, or may be alleged to be
due
and owing, by Program Lender to any Participating Institution or to any GATE
Loan borrower by reason of the Seasoned Loans originated by Program Lender
included in the Pool evidenced by the Bank of America GATE Education Loan Notes.
Program Lender shall be solely responsible to fulfill its obligations under
any
agreements it may have with Participating Institution regarding origination
and
funding of such Seasoned Loans. Notwithstanding the foregoing, the Purchaser
Trust shall assume from Program Lender any liability to repurchase from ▇▇▇▇
a
defaulted Loan upon cure of the default, with respect to any Loan that would
be
a Seasoned Loan but for such default and purchase by ▇▇▇▇.
3.08.
Servicing
and Origination Costs.
Except
as
expressly set forth in the definition of “Minimum Purchase Price,” Program
Lender shall be solely responsible for and shall pay all costs due to any third
party from Program Lender (including, without limitation, amounts due to
Servicer) with respect to origination of Bank of America GATE Conforming Loans
and with respect to loan servicing of Bank of America GATE Conforming Loans
incurred prior to purchase of a Bank of America GATE Conforming Loan hereunder.
FMC shall be solely responsible for and shall pay any obligations it has
incurred in connection with the Bank of America GATE Conforming
Loans.
IV.
Limitation
of Obligations of FMC and Purchaser Trust.
4.01. Except
as
provided in Section 2.05 of this Agreement, FMC's obligation in connection
with
the purchase of Seasoned Loans is [**] to cause a Securitization Transaction
to
occur and to use the proceeds thereof to fund the purchase of Seasoned Loans
by
a Purchaser Trust. Upon the designation of a Purchase Date and a Purchaser
Trust
by FMC, FMC shall be obligated to cause the consummation of a Securitization
Transaction and the payment of the Minimum Purchase Price to Program Lender;
provided,
however,
that
the obligation of FMC and any Purchaser Trust to consummate the Securitization
Transaction shall be conditioned upon and subject to the receipt by the
Purchaser Trust of Securitization Transaction proceeds net of Securitization
Costs equal to or greater than the Minimum Purchase Price.
V.
Representations
and Warranties.
5.01.
Representations
and Warranties of FMC.
FMC
makes
the following representations and warranties as of the date hereof, as of the
date of each purchase of Bank of America GATE Conforming Loans and as of any
other date specified below. FMC shall cause each Purchaser Trust to make
substantially the same representations and warranties in a Pool Supplement
as of
the date of each purchase of Bank of America GATE Conforming Loans:
(a) FMC
represents and warrants that it is and shall remain a Delaware corporation
duly
organized, validly existing and in good standing under the laws of the State
of
Delaware, and has the authority to conduct all activities contemplated by this
Agreement.
(b) FMC
has
full power and authority to perform its obligations under this Agreement, and
has duly authorized the execution, delivery and performance of, and has duly
delivered this Agreement, and this Agreement constitutes the legal, valid and
binding obligation of FMC enforceable against FMC in accordance with its terms,
except that such enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws.
(c) Neither
the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with
the
terms and conditions hereof, will conflict with, or result in a breach of,
or
constitute a default under, any of the terms, conditions or provisions of any
legal restriction or any agreement or instrument to which FMC is now a party
or
by which it is bound.
5.02. Representations
and Warranties of Program Lender.
Program
Lender makes the following representations and warranties as of the date hereof,
as of the date of each sale of Seasoned Loans originated by Program Lender
to
FMC or a Purchaser Trust, and as of any other date specified below:
(a) Program
Lender represents and warrants that it is, and shall continue to be, a national
banking association duly organized, validly existing and in good standing under
the laws of the United States, and has the authority to conduct all activities
contemplated by this Agreement.
(b) Program
Lender has full power and authority to perform its obligations under this
Agreement, and has duly authorized the execution, delivery and performance
of,
and has duly delivered this Agreement, and this Agreement constitutes the legal,
valid and binding obligation of Program Lender enforceable against Program
Lender in accordance with its terms, except as such enforceability may be
limited by (i) receivership, conservatorship and supervisory powers of bank
regulatory agencies generally, (ii) applicable bankruptcy, receivership,
conservatorship, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally from time to time in effect, or (iii)
general principles of equity.
(c) Neither
the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with
the
terms and conditions hereof, will conflict with, or result in a breach of,
or
constitute a default under, any of the terms, conditions or provisions of any
legal restriction or any agreement or instrument to which Program Lender is
now
a party or by which it is bound.
(d) Each
of
the Seasoned Loans originated by Program Lender sold to FMC or a Purchaser
Trust
pursuant to any Securitization Transaction is the valid, binding and enforceable
obligation of the borrower executing the same, and of any cosigner thereto,
enforceable against each borrower, any student maker named therein, and any
cosigner thereunder in accordance with its terms except as enforceability may
be
affected by bankruptcy, insolvency, moratorium or other similar laws affecting
the rights of creditors generally and by equitable principles.
(e) Each
Seasoned Loan originated by Program Lender sold hereunder and any accompanying
notices and disclosures conforms to all applicable state and federal laws,
rules
and regulations. The origination of each Seasoned Loan by Program Lender was
conducted in accordance with all applicable state and federal laws concerning
the actions of the Participating Institution and Program Lender including,
without limitation, the Equal Credit Opportunity Act. No application to Program
Lender for a Bank of America GATE Conforming Loan shall be, or has been,
rejected, approved or discouraged by Program Lender on the basis of race, sex,
color, religion, national origin, age (other than laws limiting the capacity
to
enter a binding contract) or marital status, the fact that all or a part of
the
borrower's or co-signer's, income derives from any public assistance program,
or
the fact that the applicant, borrower or any co-signer has, in good faith,
exercised any right under the Consumer Credit Protection Act.
(f) Each
Seasoned Loan originated by Program Lender sold to FMC or Purchaser Trust is
in
compliance in all material respects with any applicable usury laws at the time
made and of the time of assignment to FMC or a Purchaser Trust.
(g) Program
Lender has no actual knowledge of any defense to payment with respect to any
Seasoned Loan sold under this Agreement. There is no action before any state
or
federal court, administrative or regulatory body, pending or threatened against
Program Lender in which an adverse result would have a material adverse effect
upon the validity or enforceability of Seasoned Loans originated by Program
Lender and included in the Pool.
(h) Each
and
every Seasoned Loan sold pursuant to this Agreement is free and clear of any
liens, claims or demands of any person claiming by or through Program Lender,
and Program Lender has the absolute right to transfer the same to FMC or a
Purchaser Trust.
(i) With
respect to each GATE Note originated by Program Lender and included in the
Pool,
the terms thereof have not been impaired, waived, altered or modified in any
respect, except pursuant to written forbearance agreements in accordance with
the requirements of and in the terms set forth in the Product
Specifications.
5.03.
Exclusive
Representations and Warranties.
The
representations and warranties set forth in Section 5.02 above are the sole
and
exclusive representations and warranties made by the Program Lender, its
representatives, agents, officers, directors and other employees, with respect
to this Agreement, any Pool Supplement, any Bank of America GATE Conforming
Loan, any obligor, and the sale of any Bank of America GATE Conforming Loan
to
the Purchaser Trust hereunder or otherwise.
5.04.
Remedy
for Breach of Representations and Warranties.
In
the
event any representation or warranty made by Program Lender pursuant to Section
5.02 above shall prove to be inaccurate or incomplete [**] as of the date when
made, Program Lender shall have the right (but not the obligation) to elect
by
written notice to FMC to be given by Program Lender no later than sixty (60)
days after receipt of written notice from FMC of such alleged breach to
repurchase the affected Seasoned Loan or Loans no later than such 60th day
for a
cash purchase price equal to the outstanding principal balance thereof plus
all
accrued and unpaid interest. Upon receipt of said repurchase price, FMC shall,
or, if applicable, shall cause the Purchaser Trust or the Servicer to, deliver
the GATE Note and the Origination Records relating thereto to Program Lender,
duly endorsed or assigned to Program Lender or to such person as Program Lender
may direct, in any such case, without recourse to FMC or the Purchaser Trust.
[**] If Program Lender shall not so elect to repurchase the affected Seasoned
Loans within said sixty (60) day period, then Program Lender shall indemnify
FMC, the Purchaser Trust and any fiduciary under the Trust Agreement from any
and all loss, cost, damage and expense, including reasonable attorneys' fees
and
legal expenses and sums paid, liabilities incurred or expenses paid or incurred
in connection with settling claims, counterclaims, defenses, suits or judgments
or obtaining or attempting to obtain release from liability, in any such case
by
reason of any alleged breach specified in such written notice given by FMC
to
the Program Lender.
VI.
Survival
of Representations, Warranties and Indemnities.
As
to any
Seasoned Loans purchased hereunder, the representations and warranties contained
herein and the indemnifications contained in Article VIII hereof with respect
to
such Seasoned Loans shall survive until each such Seasoned Loan is paid in
full.
VII.
Miscellaneous.
7.01. No
Assignment.
No
party
may assign its rights or obligations under this Agreement without the prior
written consent of the parties hereto, provided,
however,
that:
(a) Program Lender may assign its rights hereunder to an Affiliate that is
a
national banking association having the legal power and right under applicable
law (including, without limitation, usury law in the State where it is located)
to make Bank of America GATE Conforming Loans, and (b) FMC shall have the right
to create a Purchaser Trust to exercise FMC's rights to purchase each Pool.
No
assignment shall relieve the assignor of liability hereunder. Any assignment
in
violation hereof shall be automatically null and void.
7.02.
Amendment.
This
Agreement may not be amended nor terms or provisions hereof waived unless such
amendment or waiver is in writing and signed by all parties hereto.
7.03.
No
Waiver.
No
delay
or failure by any party to exercise any right, power or remedy hereunder shall
constitute a waiver thereof by such party, and no single or partial exercise
by
any party of any right, power or remedy shall preclude other or further exercise
thereof or any exercise of any other rights, powers or remedies.
7.04.
Entire
Agreement.
This
Agreement and the documents and agreements referred to herein embody the entire
agreement and understanding among the parties hereto and supersede all prior
agreements and understandings relating to the subject matter hereof and
thereof.
7.05.
Notices.
All
notices given by any party to the others under this Agreement shall be in
writing delivered: (a) personally, (b) by facsimile transmission, (c) by
overnight courier, prepaid, or (d) by depositing the same in the United States
mail, certified, return receipt requested, with postage prepaid, addressed
to
the party at the address set forth below. Any party may change the address
to
which notices are to be sent by notice of such change to each other party given
as provided herein. Such notices shall be effective on the date received.
Notices shall be given as follows:
If
to
Program Lender:
▇▇▇▇▇
▇▇▇▇▇▇
Bank
of
America
National
Student Lending Group
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇,
▇▇
▇▇▇▇▇
With
a
copy to:
▇▇▇▇
▇▇▇▇▇
Bank
of
America
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If
to
FMC:
▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
The
First
Marblehead Corporation
▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
With
a
copy to:
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
7.06. Attorneys'
Fees.
In
the
event of a lawsuit or arbitration proceeding arising out of or relating to
this
Agreement, the prevailing party shall be entitled to recover costs and
reasonable attorneys' fees incurred in connection with the lawsuit or
arbitration proceeding, as determined by the court or arbitrator.
7.07.
Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of California (without reference to choice-of-law rules).
7.08.
Counterparts.
This
Agreement may be executed in any number of counterparts, all of which together
shall constitute one agreement.
7.09.
No
Third Parties Benefited.
This
Agreement is made and entered into for the protection and legal benefit of
the
parties, and their permitted successors and assigns (including, without
limitation, any Purchaser Trust), and each and every Indemnified Person (all
of
which shall be entitled to enforce the Indemnity contained in Sections 8.01
and
8.02 hereof), and no other person shall be a direct or indirect legal
beneficiary of, or have any direct or indirect cause of action or claim in
connection with, this Agreement.
7.10. Opinions.
Concurrent
with the execution hereof, each party shall deliver to the other the opinion
of
its corporate counsel (which may be internal counsel) to the effect that this
Agreement has been duly authorized by all necessary corporate or other
organizational action, this Agreement is within the corporate or other
organizational power of such party and that this Agreement has been duly
executed and delivered by an authorized officer of the party.
VIII. Indemnification.
8.01.
By
Program Lender - Securities Matters.
Subject
to the limitations on remedies for breach of representations and warranties
set
forth in Section 5.04 above, Program Lender shall indemnify and hold harmless
FMC, each Purchaser Trust and any fiduciary under any Trust Indenture, and
any
officer, director, employee or agent of any of the foregoing (herein,
collectively, referred to as the "Indemnified Persons") against any and all
liabilities, losses, costs, damages and expenses, including, without limitation,
attorneys' fees and legal expenses and sums paid, liabilities incurred or
expenses paid or incurred in connection with settling claims, suits or judgments
or obtaining or attempting to obtain release from liability under the Trust
Indenture or this Agreement which such Indemnified Person may sustain or incur
by reason of any untrue statement of a material fact in any Offering Materials
(as defined in the form of Co-Lender Indemnification Agreement) or by any
failure to state in such Offering Materials a material fact necessary to make
the statements therein not misleading (but only to the extent the same relate
to
information relating to Program Lender and the Bank of America GATE Conforming
Loans originated by Program Lender furnished in writing by Program Lender
expressly for use in the applicable Offering Materials). This section shall
survive any termination of this Agreement.
8.02.
By
Program Lender - Special.
Notwithstanding
any repurchase of Seasoned Loans under Section 5.04 hereof, in
the
event that:
(a) a
claim, counterclaim or defense to payment of a Bank of America GATE Conforming
Loan (hereinafter a "claim") is asserted against FMC, a Purchaser Trust or
any
other Indemnified Person, the substance of which claim, if true, would
constitute a material breach or misrepresentation of the representations and
warranties contained in any of subsections 5.02(d), (e), or (f) and
(b) such
claim is not dismissed or abandoned as against such Indemnified Person following
a repurchase under Section 5.04, then
(c)
Program Lender shall indemnify and hold harmless such Indemnified Person from
all costs of defense of such claim and all costs of settlement and/or payment
of
a judgment on such claim.
IX.
Dispute
Resolution
9.01.
Informal
Dispute Resolution.
Any
controversy or claim between the parties arising from or in connection with
this
Agreement or the relationship of the parties under this Agreement whether based
on contract, tort, common law, equity, statute, regulation, order or otherwise,
and whether arising before or after the termination of this Agreement
("Dispute") shall be resolved as follows:
(a) Upon
written request of either party, the parties will each appoint a designated
representative whose task it will be to meet for the purpose of endeavoring
to
resolve such Dispute.
(b) The
designated representatives shall meet as often as the parties reasonably deem
necessary to discuss the problem in an effort to resolve the Dispute without
the
necessity of any formal proceeding.
(c) Arbitration
proceedings for the resolution of a Dispute under Section 9.02 may not be
commenced until the earlier of:
(i)
the
designated representatives conclude in good faith that amicable resolution
through continued negotiation of the matter does not appear likely; or
(ii)
the
expiration of the thirty (30) day period immediately following the initial
request to negotiate the Dispute.
9.02. Arbitration.
If
the
provisions of Section 9.01 have been satisfied, but the Dispute has not been
resolved, then the Dispute shall be settled pursuant to the
following:
(a) Any
controversy or claim between or among the parties arising out of or relating
to
this Agreement or any agreements or instruments relating hereto or delivered
in
connection herewith and any claim based on or arising from an alleged tort,
shall at the request of any party be determined by arbitration. The arbitration
shall be conducted in accordance with the United States Arbitration Act (Title
9, U.S. Code), notwithstanding any choice of law provision in this Agreement,
and under the Commercial Rules of the American Arbitration Association ("AAA").
The arbitrator(s) shall give effect to statutes of limitation in determining
any
claim. Any controversy concerning whether an issue is arbitrable shall be
determined by the arbitrator(s). Judgment upon the arbitration award may be
entered in any court having jurisdiction. The institution and maintenance of
an
action for judicial relief or pursuit of a provisional or ancillary remedy
shall
not constitute a waiver of the right of any party, including the plaintiff,
to
submit the controversy or claim to arbitration if any other party contests
such
action for judicial relief.
(b) No
provision of this Section shall limit the right of any party to this Agreement
to exercise self-help remedies such as setoff, foreclosure against or sale
of
any real or personal property collateral or security, or obtaining provisional
or ancillary remedies from a court of competent jurisdiction before, after,
or
during the pendency of any arbitration or other proceeding. The exercise of
a
remedy does not waive the right of either party to resort to arbitration or
reference. At the option of any party holding a deed of trust, foreclosure
under
such deed of trust or mortgage may be accomplished either by exercise of power
of sale under the deed of trust or mortgage or by judicial
foreclosure.
9.03.
Permissible
Legal Proceedings.
Notwithstanding
anything contained in Sections 9.01 and 9.02, (a) a party may institute legal
proceedings to seek a temporary restraining order or other temporary or
preliminary injunctive relief to prevent immediate and irreparable harm to
such
party, and for which monetary damages would be inadequate, pending final
resolution of the dispute, controversy or claim pursuant to arbitration, and
(b)
a party may institute legal proceedings if necessary to preserve a superior
position with respect to other creditors. Such conduct shall not constitute
a
waiver of the right of either party to resort to arbitration to obtain relief
other than that specified in this Section
9.03.
X.
Term
and Termination.
10.01.
Term.
This
Agreement shall remain in full force and effect until the later of (a)
expiration or termination of the Umbrella Agreement, or (b) the expiration
of
the Option Period of all Bank of America GATE Conforming Loans made pursuant
to
the Umbrella Agreement. After termination of this Agreement, certain obligations
hereunder shall survive as provided in Article VI hereof.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above written.
|
WITNESS:
|
BANK
OF AMERICA NA
|
|||||
|
/s/
Sherrif ▇. ▇▇▇▇
|
By:
|
/s/
▇ ▇ ▇▇▇▇▇▇
|
||||
|
Print
Name:
|
Sherrif
▇. ▇▇▇▇
|
Print
Name:
|
▇
▇
▇▇▇▇▇▇
|
|||
|
Title:
|
SVP
|
|||||
|
THE
FIRST MARBLEHEAD CORPORATION
|
||||||
|
/s/
▇▇▇▇ ▇▇▇▇▇
|
By:
|
/s/
▇▇▇▇▇ ▇▇▇▇▇
|
||||
|
Print
Name:
|
▇▇▇▇
▇▇▇▇▇
|
Print
Name:
|
▇▇▇▇▇
▇▇▇▇▇
|
|||
|
Title:
|
COO
|
|||||
Index
to Exhibits
|
Exhibit
A
|
Pool
Supplement
|
|
Exhibit
B
|
Servicing
Assignment and Servicer Consent Letter
|
|
Exhibit
C
|
Co-Lender
Indemnification Agreement
|
|
Exhibit
D
|
Indemnification
Agreement
|
EXHIBIT
A
TO NOTE PURCHASE AGREEMENT
[Form
of
Pool Supplement]
This
Pool
Supplement ("Supplement") is entered into pursuant to and forms a part of that
certain Note Purchase Agreement (the "Agreement") dated as of April
30,
2001, by and between The First Marblehead Corporation ("FMC") and Bank of
America NA. This Supplement is dated _________________,
___.
Capitalized terms used in this Supplement without definitions have the meaning
set forth in the Agreement.
Article
1: Purchase and Sale.
In
consideration of the Minimum Purchase Price set forth in Schedule 1 attached
hereto, Program Lender hereby transfers, sells, sets over and assigns to [name
of purchasing entity] ("Purchaser Trust"), 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 Seasoned Loan described
in the attached Schedule 2. Program Lender hereby transfers and delivers to
Purchaser Trust each Bank of America GATE Note evidencing such Seasoned Loan
and
all Origination Records relating thereto, in accordance with the terms of the
Agreement. Purchaser Trust hereby purchases said Seasoned Loans and Bank of
America GATE Notes on said terms and conditions.
Article
2: Price.
The
amounts paid pursuant to this Supplement are:
“Minimum
Purchase Price” shall mean the sum of:
(a)
The
unpaid principal amount of the Seasoned Loans in question [**]; plus
(b)
all
accrued and unpaid interest on such Seasoned Loans, [**]; plus
(c)
[**],
the
amount of any guaranty fee paid by Program Lender to ▇▇▇▇. If the terms of
the
Guaranty Agreement call for any Guaranty Fees to be paid to ▇▇▇▇ [**]; plus
(d)
a
partial
reimbursement for [**] costs incurred and paid by Program Lender with respect
to
[**] such reimbursement to equal [**].
Purchase
Price is: $ ____________________
Article
3: Representations and Warranties.
3.01. By
Program Lender.
Program
Lender repeats the representations and warranties contained in Section 5.02
of
the Agreement and confirms the same are true and correct as of the date
hereof.
3.02. By
Purchaser Trust.
The
Purchaser Trust hereby represents and warrants to the Program Lender that at
the
date of execution and delivery of this Supplement by the Purchaser
Trust:
(a) The
Purchaser Trust is duly organized and validly existing as a business trust
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 Bank of America
GATE Conforming Loans.
(b) The
Purchaser Trust 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
Purchaser Trust has the Power and authority to execute and deliver this Pool
Supplement and to carry out its respective terms; the Purchaser Trust has the
power and authority to purchase the Seasoned Loans and rights relating thereto
as provided herein from the Program Lender and the Purchaser Trust has duly
authorized such purchase from the Program Lender by all necessary action; and
the execution, delivery and performance of this Pool Supplement has been duly
authorized by the Purchaser Trust by all necessary action on the part of the
Purchaser Trust.
(d) This
Pool
Supplement, together with the Agreement of which this Supplement forms a part,
constitutes a legal, valid and binding obligation of the Purchaser Trust,
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 Purchaser Trust or any indenture, agreement or other instrument to which
the
Purchaser Trust 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 Purchaser Trust of any court or of any
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Purchaser Trust 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 Purchaser Trust or its properties: (1) asserting
the invalidity of the Agreement or this Pool Supplement, (2) seeking to prevent
the consummation of any of the transactions contemplated by the Agreement or
this Pool Supplement, or (3) seeking any determination or ruling that is likely
to materially or adversely affect the performance by the Purchaser Trust of
its
obligations under, or the validity or enforceability of the Agreement or this
Pool Supplement.
Article
4: Cross Receipt.
Program
Lender hereby acknowledges receipt of the Minimum Purchase Price. Purchaser
Trust hereby acknowledges receipt of the Seasoned Loans and the Bank of America
GATE Notes included in the Pool.
Article
5: Assignment of Origination and Servicing Rights.
Program
Lender has assigned and set over to Purchaser Trust so much of its rights under
the Origination Services Agreement and the Servicing Agreement as relate to
the
Seasoned Loans described in Schedule 2, including, without limitation, the
right
to continued loan servicing under the Servicing Agreement pursuant to a
Servicing Assignment and Servicer consent Letter delivered
herewith.
IN
WITNESS WHEREOF, the parties have caused this Supplement to be executed as
of
the date set forth above.
PURCHASER
NAME:
|
By:
|
|||||
|
By:
|
|||||
|
Print
Name:
|
|||||
|
Title:
|
|||||
|
BANK
OF AMERICA NA
|
|||||
|
By:
|
|||||
|
Print
Name:
|
|||||
|
Title:
|
|||||
Schedule
1 to Pool Supplement
(SAMPLE)
SETTLEMENT
SCHEDULE
FMC
200__-S-__
XYZ
UNIVERSITY
Disbursement
Date #
of
Loans
Face
Value
Amount
Disbursed
[TO
BE
REVISED]
EXHIBIT
B
TO NOTE PURCHASE AGREEMENT
[PROGRAM
LENDER NAME]
SERVICING
ASSIGNMENT AND
SERVICER
CONSENT LETTER
[Applies
only
if
Program Lender holds
Servicing
Agreement and FMC does
not
hold
direct agreement with Servicer]
[DATE]
[Servicer
Name and Address]
Attention:
President
Ladies
and Gentlemen:
Reference
is hereby made to that certain Servicing Agreement (the "Servicing Agreement"),
dated __________, by and between [Servicer Name] (the "Servicer") and [Program
Lender Name] (“Program Lender”), a copy of which is attached hereto as Exhibit
A. Capitalized terms not otherwise defined herein shall have the meanings set
forth in the Servicing Agreement. Pursuant to Section ____ of the Servicing
Agreement, the parties hereto agree as follows:
1.
Program
Lender hereby assigns its interest in the Servicing Agreement with respect
to
the student loans identified on the attached Schedule I(the "Student Loans")
to
[Name of Securitization SPE] ("SPE"), and the Servicer hereby consents
thereto.
2. The
Servicer hereby consents to the assignment and grant by [SPE] of a security
interest in the Servicing Agreement to [Name of Securitization Indenture
Trustee] (the "Trustee"), as provided in the Indenture, dated as of
[DATE]
between
[SPE] and the Trustee (the "Indenture"), for the benefit of the Bondholders
(as
defined below) and MBIA Insurance Corporation (the "Bond Insurer").
[3. Program
Lender hereby assigns its interest in the Origination Agreement, dated
_________, by and between the Servicer and Program Lender (the "Origination
Agreement"), a copy of which is attached hereto as Exhibit B, to [SPE], with
respect to the Student Loans. The Servicer hereby consents to the foregoing
assignment by Program Lender and of the assignment and grant by [SPE] to the
Trustee of a security interest in the Origination Agreement, as provided in
the
Indenture, for the benefit of the Bondholders and the Bond
Insurer.]
4. The
Servicer hereby confirms that it will not terminate the Servicing Agreement
until the appointment of a successor servicer by [SPE], with the consent of
the
Bond Insurer for so long as Bonds are outstanding, unless the Servicing
Agreement otherwise expires in accordance with its terms.
5. [SPE]
hereby confirms that (i) it will not terminate the Servicer for cause pursuant
to Section ____ of the Servicing Agreement (a) without the consent of the Bond
Insurer for so long as Bonds are outstanding, and (b) until a successor servicer
acceptable to the Bond Insurer is appointed, and (ii) it will terminate the
Servicer for cause pursuant to Section ____ of the Servicing Agreement, if
directed by the Bond Insurer to do so.
6. The
representations and warranties of the Servicer in the Servicing Agreement are
true and correct in all material respects at and on the date hereof (the
"Closing Date"), with the same effect as if made on the Closing
Date.
7. The
Servicer hereby confirms that it has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied under
the
Servicing Agreement.
8. The
Servicer agrees not to cause the filing of a petition in bankruptcy against
[SPE] for the nonpayment to the Servicer of any amounts owed to it under the
Servicing Agreement until at least 366 days after the payment in full of the
Bonds.
9. The
Servicer hereby agrees to provide the Bond Insurer with copies of all notices,
reports and other information at the same time and in the same manner in which
such information is required to be given to Program Lender and [SPE] pursuant
to
the Servicing Agreement or other information as is requested by the Bond
Insurer. In addition, for so long as any Bonds are outstanding, any action
that
requires the consent of [SPE] under the Servicing Agreement, including, without
limitation, any amendment to the Servicing Agreement with respect to the Student
Loans, shall also require the prior consent of the Bond Insurer.
10. The
Servicer hereby agrees to provide the Bond Insurer with its quarterly and annual
audited financial statements.
11. The
Servicer hereby grants the Bond Insurer the right for so long as any of the
Bonds remain outstanding, to perform ongoing due diligence review of the
Servicer's servicing activities with respect to the Student Loans provided
that
such due diligence be conducted in a reasonable manner, convenient to both
the
Servicer and the Bond Insurer.
12. It
is
expressly understood and agreed by the parties hereto that (a) this Agreement
is
executed and delivered by [SPE Owner Trustee], not individually or personally
solely as Owner Trustee of [SPE] under the Trust Agreement dated as of
[DATE],
with
[SPE Sponsor], in the exercise of the powers and authority conferred and vested
in it, (b) each of the representations, undertakings and agreements herein
made
on the part of the Trust is made and intended not as personal representations,
undertaking and agreements by the Owner Trustee but is made and intended for
the
purpose for binding only the Trust, (c) nothing herein contained shall be
construed as creating any liability on the Owner Trustee, individually or
personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties hereby
and by any Person claiming by, through or under the parties hereto, and (d)
under no circumstances shall the Owner Trustee be personally liable for the
payment of any indebtedness or expenses of the Trust or be liable for the breach
or failure of any obligation, representation, warranty or covenant made or
undertaken by the Trust under this Agreement or the other Trust Related
Documents.
13. The
parties hereto acknowledge and agree that for so long as any Bonds are
outstanding, the Bond Insurer is a third-party beneficiary hereof and of the
Servicing Agreement, and the Bond Insurer shall have the right to exercise
all
rights of [SPE] under the Servicing Agreement.
Please
acknowledge your acceptance and agreement to the foregoing by signing and
returning the enclosed duplicate letter.
| Very truly yours, | |||||
|
PROGRAM
LENDER
|
|||||
|
By:
|
|||||
|
Print
Name:
|
|||||
|
Title:
|
|||||
|
Accepted
and Agreed:
|
|||||
|
[SERVICER
|
|||||
|
By:
|
|||||
|
Print
Name:
|
|||||
|
Title:
|
|||||
|
[SPE
NAME]
|
|||||
|
By:
[OWNER TRUSTEE]
|
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By:
|
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|
Print
Name:
|
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|
Title:
|
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EXHIBIT
C
TO NOTE PURCHASE AGREEMENT
CO-LENDER
INDEMNIFICATION AGREEMENT
THIS
CO-LENDER INDEMNIFICATION AGREEMENT (the "Agreement") is made as of
[DATE],
by and
between [Names and Addresses of Co-Lenders] ("Co-Lender"), and BANK OF AMERICA
NA ("BOA"), a national banking association organized under the laws of the
United States, with its headquarters and principal place of business located
at
_____________ (Co-Lender and BOA are sometimes collectively referred to as
the
"Program Lenders" and are each sometimes severally referred to as a "Program
Lender").
RECITALS
A.
The
Program Lenders are participants in the GATE: Guaranteed Access to
Education®
Program
and/or the Bank of America GATE® Loan Program and/or the prepGATESM
Loan
Program (collectively, the "GATE Program") pursuant to which each of the Program
Lenders originate educational loans (the "GATE Loans") to pay the costs of
attending institutions of education which are themselves participants in the
GATE Program (the "Participating Institutions").
B. Each
of
the Program Lenders, individually, have entered into an agreement (each, a
"Purchase Agreement") with The First Marblehead Corporation or The National
Collegiate Trust, pursuant to which Purchase Agreements such Program Lenders
have agreed to sell certain GATE Loans to [Name of Purchasing Entity] (the
"Purchaser Trust"), each such purchase to be funded through the issuance and
sale of certificates, bonds or other evidences of indebtedness, the repayment
of
which are supported by such GATE Loans (the "Subject Securitization
Transaction").
C. As
a
condition precedent to the obligation of each Program Lender to consummate
the
sale of GATE Loans originated by them to the Purchaser Trust, all Program
Lenders whose GATE Loans will be included in the Subject Securitization
Transaction are required to execute and deliver to the other Program Lenders
a
copy of this Agreement.
NOW,
THEREFORE, in consideration of the foregoing Recitals and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE
I
REPRESENTATIONS
AND WARRANTIES
1.01 Each
Program Lender represents and warrants to each other Program Lender, as to
itself, that as of the date hereof:
(a) It
is and
shall continue to be a national banking association, duly organized, validly
existing and in good standing under the laws of the United States and has the
power and authority to originate and/or hold GATE Loans, to consummate the
transaction contemplated by the Purchase Agreement to which it is a party,
and
to execute and deliver and perform its obligations under this
Agreement;
(b) This
Agreement has been duly authorized, executed and delivered and constitutes
its
legal, valid and binding obligation, enforceable against it in accordance with
its terms except as enforceability may be limited by (a) the receivership,
conservatorship and similar supervisory powers of bank regulatory agencies
generally, as well as bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization or other similar laws affecting the enforcement
of
the rights of creditors; (b) general principles of equity (including
availability of equitable remedies), whether enforcement is sought in a
proceeding in equity or at law; and (c) applicable securities laws and public
policy considerations underlying the securities laws to the extent that such
public policy considerations limit the enforceability of the provisions of
this
Agreement which purport to provide indemnification with respect to securities
law liabilities;
(c) Each
GATE
Loan included in the Subject Securitization Transaction originated by it is
the
valid, binding and enforceable obligation of the borrower executing the same,
and of any cosigner thereto, enforceable against the borrower and cosigner
thereunder in accordance with its terms except as enforceability may be affected
by bankruptcy, insolvency, moratorium or other similar laws affecting the rights
of creditors generally and by equitable principles;
(d) Each
GATE
Loan included in the Subject Securitization Transaction originated by it and
any
accompanying notices and disclosures conforms to all applicable state and
federal laws, rules and regulations and the origination thereof was conducted
in
accordance with all applicable state and federal laws concerning the actions
of
the Participating Institution and the Program Lender, including, without
limitation, the Equal Credit Opportunity Act;
(e) Each
GATE
Loan included in the Subject Securitization Transaction originated by it is
in
compliance in all material respects with any applicable usury laws at the time
made and as of the time of sale to the Purchaser Trust pursuant to the Purchase
Agreement to which the Program Lender is a party; and
(f) The
Program Lender has no actual knowledge of any defense to payment with respect
to
any GATE Loan included in the Subject Securitization Transaction originated
by
it nor is there any action before any state or federal court, administrative
or
regulatory body, pending or threatened against the Program Lender in which
an
adverse result would have a material adverse effect upon the validity or
enforceability of any such GATE Loan.
ARTICLE
2
INDEMNIFICATION
2.01 Cross-Indemnification.
Each Program Lender (an “Indemnifying Program Lender”) hereby agrees to
indemnify, hold harmless and defend each other Program Lender and such other
Program Lender’s respective officers, directors, employees, attorneys, agents
(not including any Participating Institution or the servicer of any GATE Loan)
and each person who controls such other Program Lender within the meaning of
either Section 15 of the Securities Act of 1933, as amended, or Section 20
of
the Securities Exchange Act of 1934, as amended (collectively and severally,
the
“Indemnified Parties”), from and against any and all claims, obligations,
penalties, actions, suits, judgments, costs, disbursements, losses, liabilities
and/or damages (including, without limitation, reasonable external attorneys’
fees and the allocated costs of internal salaried attorneys) of any kind
whatsoever which may at any time be imposed on, assessed against or incurred
by
any such Indemnified Party in any way relating to or arising out of the
inaccuracy or incompleteness of any representation or warranty made by the
Indemnifying Program Lender hereunder or the inaccuracy or incompleteness of
any
representation or warranty made by the Indemnifying Program Lender to any
Participating Institution in connection with the GATE Program or the Subject
Securitization Transaction. The indemnity provided by each Indemnifying Program
Lender hereunder is in addition to any liability which such Program Lender
may
otherwise have to the Indemnified Parties, at law, in equity or otherwise,
in
connection with the Subject Securitization Transaction.
2.02
Procedure for Indemnification. In case any proceeding (including any
governmental investigation) shall be instituted against any Indemnified Party
in
respect of which indemnity is sought pursuant to Section 2.01, such Indemnified
Party shall promptly notify the applicable Indemnifying Program Lender in
writing. The Indemnifying Program Lender, upon request of the Indemnified Party,
shall acknowledge its obligation, subject to the terms hereof, to indemnify
the
Indemnified Party in writing and shall retain counsel reasonably satisfactory
to
the Indemnified Party to represent the Indemnified Party and any others the
Indemnifying Program Lender may designate in such proceeding and the
Indemnifying Program Lender shall pay the fees and disbursements of such counsel
related to such proceeding, within a reasonable period of time after such fees
and disbursements are billed by such counsel. If the Indemnifying Program Lender
fails to acknowledge its obligation, subject to the terms hereof, to indemnify
in writing or fails to retain such counsel within a reasonable period of time
after such notice was given, then the Indemnified Party shall have the right
to
retain its own counsel, and the fees and expenses of such counsel shall be
at
the expense of the Indemnifying Program Lender. In any such proceeding, any
Indemnified Party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Party
unless (a) the preceding sentence is applicable, (b) the Indemnifying Program
Lender and the Indemnified Party shall have mutually agreed to the retention
of
such counsel or (c) the named parties to any such proceeding (including any
impleaded parties) include both the Indemnifying Program Lender and the
Indemnified Party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
It
is understood that the Indemnifying Program Lender shall not, in connection
with
any proceeding or related proceedings in the same jurisdiction, be liable for
the reasonable fees and expenses of more than one separate firm (in addition
to
any local counsel) for all such Indemnified Parties, and that all such fees
and
expenses shall be reimbursed as they are incurred.
2.03
Settlements of Proceedings. The Indemnifying Program Lender shall not be liable
for any settlement of any proceeding effected without its written consent,
but
if settled with such consent or if there be a final judgment for the plaintiff,
the Indemnifying Program Lender agrees to indemnify the Indemnified Party from
and against any loss or liability by reason of such settlement or judgment.
No
Indemnifying Program Lender, without the prior written consent of the
Indemnified Party, shall effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Party is or could have been
a
party and indemnity could have been sought hereunder by such Indemnified Party,
unless such settlement includes an unconditional release of such Indemnified
Party from all liability on claims that are the subject of such
proceeding.
ARTICLE
3
MISCELLANEOUS
3.01
Notices. All demands, notices and communications upon or to any Program Lender
under this Agreement shall be in writing, personally delivered or mailed by
certified mail, return receipt requested, to such Program Lender at its address
set forth below or to such other address as may hereafter be furnished by such
Program Lender to the other Program Lenders hereunder in writing, and shall
be
deemed to have been duly given upon receipt.
If
to
Co-Lender:
with
a
copy to:
If
to
BOA:
▇▇▇▇▇
▇▇▇▇▇▇
Bank
of
America
National
Student Lending Group
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇,
▇▇
▇▇▇▇▇
with
a
copy to:
▇▇▇▇
▇▇▇▇▇
Bank
of
America
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
3.02
Successors and Assigns. This Agreement is binding on the Program Lenders
and their respective successors and assigns. No Program Lender shall assign
its
rights or obligations under this Agreement without the prior written consent
of
all other Program Lenders hereunder, and any assignment in violation of this
prohibition shall be automatically deemed null and void.
3.03
Arbitration.
(a) Any
controversy or claim between or among the Program Lenders hereunder arising
out
of or relating to this Agreement or any agreements or instruments relating
hereto or delivered in connection herewith and any claim based on or arising
from an alleged tort relating hereto, shall, at the request of any party, be
determined by arbitration. The arbitration shall be conducted in accordance
with
the United States Arbitration Act (Title 9, U.S. Code), notwithstanding any
choice of law provision of this Agreement, and under the Commercial Rules of
the
American Arbitration Association ("AAA"). The arbitrator(s) shall give effect
to
statutes of limitation in determining any claim. Any controversy concerning
whether an issue is arbitrable shall be determined by the arbitrator(s).
Judgment upon the arbitration award may be entered in any court having
jurisdiction. The institution and maintenance of an action for judicial relief
or pursuit of a provisional or ancillary remedy shall not constitute a waiver
of
the right of any party, including the plaintiff, to submit the controversy
or
claim to arbitration if any other party contests such action for judicial
relief.
(b) No
provision of this Section 3.03 shall limit the right of any party to this
Agreement to exercise self-help remedies such as setoff, foreclosure against
or
sale of any real or personal property collateral or security, or obtaining
provisional or ancillary remedies from a court of competent jurisdiction before,
after, or during the pendency of any arbitration or other proceeding. The
exercise of a remedy does not waive the right of either party to resort to
arbitration or reference.
3.04 Costs
and
Attorneys' Fees. In the event of a lawsuit or arbitration proceeding arising
out
of or relating to this Agreement, the prevailing party(ies) is (are) entitled
to
recover costs and reasonable attorneys' fees (including the allocated cost
of
internal salaried attorneys) incurred in connection with the lawsuit or
arbitration proceeding, as determined by the court or arbitrator.
3.05 Severability.
Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
3.06 Counterparts.
This Agreement may be executed by the parties hereto in separate counterparts,
each of which when so executed and delivered shall be an original, but all
such
counterparts shall together constitute but one and the same
instrument.
3.07 Headings.
The headings of the various Articles and Sections herein are for convenience
of
reference only and shall not define or limit any of the terms or provisions
hereof.
3.08 Amendment.
This Agreement may not be amended nor terms or provisions hereof waived unless
such amendment or waiver is in writing and signed by all parties
hereto.
3.09 No
Waiver. No delay or failure by any party to exercise any right, power or remedy
hereunder shall constitute a waiver thereof by such party, and no single or
partial exercise by any party of any right, power or remedy shall preclude
other
or further exercise thereof or any exercise of any other rights, powers or
remedies.
3.10 Entire
Agreement. This Agreement embodies the entire agreement and understanding
between the parties with respect to the subject matter hereof and supersedes
all
prior agreements and understandings relating to the subject matter hereof and
thereof.
3.11 Governing
Law. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of Delaware without regard to its conflict of laws
doctrine.
3.12 No
Third
Party Beneficiaries. This Agreement is made and entered into for the protection
and legal benefit of the parties hereto, their permitted successors and assigns,
and each and every Indemnified Party, and no other person shall be a direct
or
indirect beneficiary of, or have any direct or indirect cause of action or
claim
in connection with, this Agreement.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as
of the day and year first above written.
CO-LENDER(S)
| By: | |||
| Print Name: | |||
| Title: |
BANK
OF
AMERICA NA
| By: | |||
| Print Name: | |||
| Title: |
EXHIBIT
D
TO NOTE PURCHASE AGREEMENT
INDEMNIFICATION
AGREEMENT
This
INDEMNIFICATION AGREEMENT (the “Agreement”) is made ,
2000,
by and among [NAME OF PURCHASER TRUST (the “Trust”), The First Marblehead
Corporation (“First Marblehead”), and BANK OF AMERICA NA
(“B of A”).
WITNESSETH:
WHEREAS,
pursuant to that certain Note Purchase Agreement dated April 30, 2001 (the
“Note
Purchase Agreement”) between First Marblehead, as purchaser, and
B of A, B of A will sell to the Trust and the Trust will
purchase from B of A certain Bank of America GATE Conforming Loans
(“Contracts”);
WHEREAS,
contemporaneously with the transactions contemplated by the Note Purchase
Agreement, the Trust will sell securities backed by a pool consisting of the
Contracts (the “Securitization”);
WHEREAS,
First Marblehead assists the Trust in the Securitization process;
and
WHEREAS,
the parties wish to set forth their agreements with respect to certain aspects
of the Securitization, on the terms and subject to the conditions set forth
in
this Agreement;
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants set forth
herein, the parties hereto agree as follows:
ARTICLE
1
DEFINITIONS
SECTION
1.01. Definitions.
Capitalized terms used herein without definition have the meanings assigned
thereto in the Note Purchase Agreement. Whenever used in this Agreement, the
following words and phrases shall have the following meanings:
“Agreement”
means this Indemnification Agreement, as it may be amended from time to
time.
“Commission”
means the Securities and Exchange Commission.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended from time to
time.
“B of A
Information” means solely the information set forth [to be
determined]
“Indemnified
Party” has the meaning set forth in Section 4.03.
“Indemnifying
Party” has the meaning set forth in Section 4.03.
“Offering
Materials” means: (a) any private placement memoranda and any other offering
material given in connection with a sale or offer to sell, whether or not such
sale or offer to sell was required to be registered under the Securities Act,
and (b) any Registration Statement filed with the Commission pursuant to which
any Contract or interest therein is sold or offered for sale, including the
Prospectus relating thereto and any preliminary prospectuses and amendments
and
supplements to such Registration Statement, Prospectus and preliminary
prospectus, including post-effective amendments and all exhibits and all
material incorporated by reference therein.
“Prospectus”
has the meaning given to such term in the Securities Act.
“Registration
Statement” has the meaning given to such term in the Securities
Act.
“Securities”
means securities backed by the pool of Contracts that are to be issued by the
Trust.
“Securities
Act” means the Securities Act of 1933, as amended from time to
time.
“Transaction
Documents” means the Note Purchase Agreement and the Pool Supplement issued
pursuant thereto.
ARTICLE
2
REPRESENTATIONS
AND WARRANTIES
Each
of
the Trust and First Marblehead jointly and severally represents and warrants
to
B of A, and B of A hereby represents and warrants to the
Trust and First Marblehead, as of the date hereof and the Purchase Date, as
follows:
(1) It
is a
corporation, business trust, or, in the case of B of A, a national
banking association, duly organized, validly existing and in good standing
under
the laws of the jurisdiction of its organization, and it has the corporate
power
to own its assets and to transact the respective business in which it is
currently engaged. It is duly qualified to do business as a foreign corporation
or other entity and is in good standing in each jurisdiction in which its type
of organization and the character of the business transacted by it or properties
owned or leased by it requires such qualification and in which the failure
to so
qualify would have a material adverse effect on its business, properties,
assets, or condition (financial or other);
(2) It
has
obtained all necessary licenses and approvals, in all jurisdictions in which
the
ownership or lease of property or the conduct of its business and its type
of
organization requires such licenses or approvals unless the failure to obtain
any such licenses or approvals would have no material adverse effect on the
ability of such party to fulfill its obligations hereunder;
(3) It
has
the power and authority to execute and deliver this Agreement and to carry
out
the terms hereof; and the execution, delivery and performance of this Agreement
by it has been duly authorized by all necessary action;
(4) This
Agreement constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms except as enforcement of such terms
may
be limited by bankruptcy, insolvency or similar laws affecting the enforcement
of creditors’ rights generally and by the availability of equitable remedies,
and except as enforcement of any terms relating to indemnification may be
limited by applicable securities law;
(5) For
B of A and the Trust only, the consummation of the transactions
contemplated by this Agreement 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, its
governing documents, or any material indenture, agreement or other instrument
to
which it 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 it of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over it or its properties; and
(6) There
are
no proceedings or investigations pending, or threatened, before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over it or its properties: (1) asserting the invalidity
of
this Agreement (2) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement, or (3) seeking any determination
or
ruling that is likely to materially and adversely affect the performance by
it
of its obligations hereunder or the validity and enforceability of this
Agreement.
ARTICLE
3
CONDITIONS
TO CLOSING
[Intentionally
Omitted]
ARTICLE
4
INDEMNIFICATION
SECTION
4.01. Indemnification
by First Marblehead and the Trust.
The
Trust and First Marblehead jointly and severally agree to indemnify, hold
harmless and defend B of A, its officers, directors, employees,
attorneys, agents and each Person who controls B of A within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, as follows:
(a) against
any and all loss, liability, claim, damage and expense whatsoever arising out
of
any untrue statement or alleged untrue statement of a material fact contained
in
any Offering Materials under the heading, [to be determined] [“Method of
Distribution”] or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading;
(b) against
any and all loss, liability, claim, damage and expense whatsoever to the extent
of the aggregate amount paid in settlement of any litigation, or investigation
or proceeding by any governmental agency or body, commenced or threatened,
or of
any claim whatsoever, based upon any such untrue statement or omission, or
any
such inaccuracy, if such settlement is effected with the written consent of
the
Trust and First Marblehead; and
(c) against
any and all expense whatsoever (including the fees and disbursements of counsel
chosen by the B of A) reasonably incurred in investigating, preparing
or defending against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever,
based upon any such untrue statement or omission, or any such inaccuracy, to
the
extent that any such expense is not paid under (a) or (b) above.
This
indemnity agreement will be in addition to any liability which the Trust and
First Marblehead may otherwise have.
SECTION
4.02. Indemnification
by B of A.
B of A agrees to indemnify and hold harmless the Trust and First
Marblehead and each person, if any, who controls NCT or First Marblehead within
the meaning of Section 15 of the Securities Act of 1933, as amended (the “1993
Act”), as follows:
(a) against
any and all loss, liability, claim, damage and expense whatsoever arising out
of
any untrue statement or alleged untrue statement of a material fact contained
in
the B of A Information (or any amendment or supplement thereto
approved in writing by B of A) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading;
(b) against
any and all loss, liability, claim, damage and expense whatsoever to the extent
of the aggregate amount paid in settlement of any litigation, or investigation
or proceeding by any governmental agency or body, commenced or threatened,
or of
any claim whatsoever, based upon any such untrue statement or omission, or
any
such inaccuracy, if such settlement is effected with the written consent of
B of A; and
(c) against
any and all expense whatsoever (including the fees and disbursements of counsel
chosen by the Trust and First Marblehead) reasonably incurred in investigating,
preparing or defending against any litigation, or investigation or proceeding
by
any governmental agency or body, commenced or threatened, or any claim
whatsoever, based upon any such untrue statement or omission, or any such
inaccuracy, to the extent that any such expense is not paid under (a) or (b)
above.
This
indemnity agreement will be in addition to any liability which B of A
may otherwise have.
SECTION
4.03. Procedure
for Indemnification.
In case
any proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant to
Section 4.01 or 4.02, such Person (hereinafter called the “Indemnified Party”)
shall promptly notify the person against whom such indemnity may be sought
(hereinafter called the “Indemnifying Party”) in writing. The Indemnifying
Party, upon request of the Indemnified Party, shall acknowledge its obligation,
subject to the terms hereof, to indemnify the Indemnified Party in writing
and
shall retain counsel reasonably satisfactory to the Indemnified Party to
represent the Indemnified Party and any others the Indemnifying Party may
designate in such proceeding and the Indemnifying Party shall pay the fees
and
disbursements of such counsel related to such proceeding, as and when such
fees
and disbursements are billed by such counsel. If the Indemnifying Party fails
to
acknowledge its obligation, subject to the terms hereof, to indemnify in writing
or fails to retain such counsel within a reasonable period of time after such
notice was given, then the Indemnified Party shall have the right to retain
its
own counsel, and the fees and expenses of such counsel shall be at the expense
of the Indemnifying Party. In any such proceeding, any Indemnified Party shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Party unless (a) the
preceding sentence is applicable, (b) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (c) the
named parties to any such proceeding (including any impleaded parties) include
both the Indemnifying Party and the Indemnified Party and representation of
both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the Indemnifying Party
shall not, in connection with any proceeding or related proceedings in the
same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm (in addition to any local counsel) for all such Indemnified
Parties, and that all such fees and expenses shall be reimbursed as they are
incurred.
SECTION
4.04. Settlements
of Proceedings.
The
Indemnifying Party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Party agrees
to
indemnify the Indemnified Party from and against any loss or liability by reason
of such settlement or judgment. No Indemnifying Party, without the prior written
consent of the Indemnified Party, shall effect any settlement of any pending
or
threatened proceeding in respect of which any Indemnified Party is or could have
been a party and indemnity could have been sought hereunder by such Indemnified
Party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability on claims that are the subject matter
of
such proceeding.
SECTION
4.05. Contribution.
In
order to provide for just and equitable contribution in circumstances in which
the indemnification provided for in Sections 4.01 and 4.02 hereof is for any
reason held to be unenforceable by the Indemnified Parties although applicable
in accordance with its terms, B of A, on the one hand, and the Trust
and First Marblehead, on the other, shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated in Sections
4.01 and 4.02 that are incurred by B of A, the Trust and First
Marblehead in such proportions that (i) the Trust and First Marblehead shall
be
responsible for that portion represented by the percentage that the gross fee
earnings of First Marblehead in the Securitization bear to the sum of such
fees
and the purchase price paid by the Trust for the Contracts, and (ii)
B of A shall be responsible for the balance; provided,
however,
that no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who
was
not guilty of such fraudulent misrepresentation.
The
Trust, First Marblehead and B of A agree that it would not be just and
equitable if contribution pursuant to this Section 4.05 were determined by
pro
rata
allocation or by any other method of allocation that does not take account
of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Party pursuant to Section 4.01
or
4.02 shall be deemed to include, subject to the limitations set forth above,
any
legal or other expense reasonably incurred by such Indemnified Party in
connection with investigating or defending any such action or claim. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
ARTICLE
5
MISCELLANEOUS
SECTION
5.01. Notices.
All
demands, notices and communications upon or to B of A, the Trust and
First Marblehead under this Agreement shall be in writing, personally delivered
or mailed by certified mail, return receipt requested, and shall be deemed
to
have been duly given upon receipt (a) The First Marblehead Corporation, ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; (b) [ADDRESS FOR PURCHASER TRUST], (c)
B of
A ,
or such
other address as may hereafter be furnished to the other parties in
writing.
SECTION
5.02. Successors
and Assigns.
This
Agreement is binding on B of A’s, the Trust’s and First Marblehead’s
successors and assignees. Each party hereto agrees that it will not assign
this
Agreement without the other parties’ prior written consent.
SECTION
5.03. Arbitration.
(a) Any
controversy or claim between or among the parties arising out of or relating
to
this Agreement or any agreements or instruments relating hereto or delivered
in
connection herewith and any claim based on or arising from an alleged tort,
shall at the request of any party, be determined by arbitration. The arbitration
shall be conducted in accordance with the United States Arbitration Act (Title
9, U.S. Code), notwithstanding any choice of law provision in this Agreement,
and under the Commercial Rules of the American Arbitration Association (“AAA”).
The arbitrator(s) shall give effect to statutes of limitation in determining
any
claim. Any controversy concerning whether an issue is arbitrable shall be
determined by the arbitrator(s). Judgment upon the arbitration award may be
entered in any court having jurisdiction. The institution and maintenance of
an
action for judicial relief or pursuit of a provisional or ancillary remedy
shall
not constitute a waiver of the right of any party, including the plaintiff,
to
submit the controversy or claim to arbitration if any other party contests
such
action for judicial relief.
(b) No
provision of this Section 5.03 shall limit the right of any party to this
Agreement to exercise self-help remedies such a setoff, foreclosure against
or
sale of any real or personal property collateral or security, or obtaining
provisional or ancillary remedies from a court of competent jurisdiction before,
after, or during the pendency of any arbitration or other proceeding. The
exercise of a remedy does not waive the right of either party to resort to
arbitration or reference.
SECTION
5.04. Costs
and Attorneys’ Fees.
In the
event of a lawsuit or arbitration proceeding arising out of or relating to
this
Agreement, the prevailing party is entitled to recover costs and reasonable
attorneys’ fees incurred in connection with the lawsuit or arbitration
proceeding, as determined by the court or arbitrator.
SECTION
5.05. Severability.
Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
SECTION
5.06. Counterparts.
This
Agreement may be executed by the parties hereto in separate counterparts, each
of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same
instrument.
SECTION
5.07. Headings.
The
headings of the various Articles and Sections herein are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
SECTION
5.08. Limitation
of Recourse to the Trust.
Notwithstanding any provision of this Agreement to the contrary, all obligations
of the Trust under this Agreement shall be payable only from the rights of
the
Trust in the Contracts. No recourse shall be had against the general funds
of
the Trust, nor against any income or proceeds of the Contracts not available,
in
accordance with the Trust Instrument, for distribution. To the extent that
the
interests of the Trustee and the bond holders under the Trust Instrument are
fully satisfied, or if proceeds of the Contracts are otherwise distributed
to
the owners of the Trust free and clear of claims of said Trustee (as defined
in
the Trust Instrument), claims against the Trust may be satisfied from the
Contracts or the distributable proceeds thereof.
BANK
OF
AMERICA NA
| By: | ||
| Print Name: | ||
|
Title:
|
[NAME
OF
PURCHASER TRUST]
By:
[NAME
OF TRUSTEE], not in its individual capacity but solely
in its
capacity as Trustee
| By: | ||
| Print Name: | ||
|
Title:
|
THE
FIRST
MARBLEHEAD CORPORATION
| By: | ||
| Print Name: | ▇▇▇▇▇ ▇▇▇▇▇ | |
|
Title:
|
CEO |