AMENDED AND RESTATED NOTE PURCHASE AGREEMENT BANK OF AMERICA SCHOOL CHANNEL LOAN PROGRAMS
EXHIBIT
99.18
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Confidential
Materials omitted and filed separately with the
Securities
and Exchange Commission. Asterisks denote
omissions.
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AMENDED
AND RESTATED NOTE PURCHASE AGREEMENT
BANK
OF
AMERICA SCHOOL CHANNEL LOAN PROGRAMS
This
Amended and Restated Note Purchase
Agreement (this “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 place of business located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and THE FIRST MARBLEHEAD CORPORATION, a Delaware
corporation having a principal place of business at having a principal place
of
business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (“FMC”), is made and dated as of June 30,
2006;
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 School Channel Loan Programs (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 School Channel Conforming Loans, Program Lender has agreed
to
sell, from time to time, pools containing Bank of America School Channel
Conforming Loans originated by Program Lender to FMC or a Purchaser Trust (all
as hereinafter defined).
WHEREAS,
the Bank of America School Channel 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 or the Umbrella
Agreement, as applicable.
"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.
“Agent”
means
U.S. Bank National
Association, in its capacity as agent pursuant to the Deposit and Security
Agreement.
“Bank
of America Private Loan Programs”
means the prepGATE Loan Program, the Bank of America Private Undergraduate
Loan
Program and the Bank of America Private Graduate Professional Loan Programs,
each as more fully described in the Program Guidelines as the same may be
amended from time to time.
“Bank
of America School Channel Loan
Programs” or “Bank of America SC Loan Programs” means the Bank of America
Private Loan Programs and the Bank of America ▇▇▇▇ Loan Programs, each as more
fully described in the Program Guidelines as the same may be amended from time
to time.
"Bank
of America SC Loan Pool" or
"Pool" shall mean and refer to a group of Bank of America SC Notes purchased
and
pledged or intended to be purchased and pledged as collateral in a particular
Securitization Transaction.
"Bank
of America SC Notes" or “Notes”
shall mean notes or other forms of consumer debt instruments, evidencing Bank
of
America SC Conforming Loans.
“Bank
of America ▇▇▇▇ Loan Programs”
means the Bank of America ▇▇▇▇ Alternative Undergraduate Loan Program, the
Bank
of America ▇▇▇▇ Alternative Graduate Loan Program, the Bank of America ▇▇▇▇
Alternative Continuing Education Loan Program, the Bank of America ▇▇▇▇
Alternative Health Professions Loan Program (including the CVS Loan Program),
and the Bank of America ▇▇▇▇ ISLP Programs, each as more fully described in
the
Program Guidelines as the same may be amended from time to time.
“Bank
of America ▇▇▇▇ ISLP Loan
Programs” means the Bank of America ISLP Undergraduate Loan Program, the Bank of
America ISLP Graduate Loan Program and the Bank of America ISLP Medical Loan
Program, each as more fully described in the Program Guidelines as the same
may
be amended from time to time. It does not include the Bank of America
ISLP CanHelp Program, which is not governed by this Agreement.
"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 A.
“Collateral”
has
the meaning set forth
in the Deposit and Security Agreement.
"Conforming
Loans” shall mean loans (a)
conforming to the requirements of the Program Guidelines at the time the loans
were made, (b) serviced by the Servicer in accordance with the Program
Guidelines, and (c) covered by and subject to all the benefits of the Guaranty
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.
“Guaranty
Agreement” means the Amended
and Restated Guaranty Agreement between Program Lender and ▇▇▇▇, dated as of
June 30, 2006.
"Loan
Origination Agreement" refers to
(a) the Amended and Restated Loan Origination Agreement entered into between
▇▇▇▇ and Program Lender with respect to origination of prepGATE Conforming
Loans
and Bank of America ▇▇▇▇ Loans that are 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 SC Loan Notes
purchased under this Agreement.
"Minimum
Purchase Price" has the
meaning set forth in Section 2.04.
“Option
Period” means, with respect to
any particular Bank of America SC 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 SC 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 Program
Guidelines as required to be received by the Servicer from the Program Lender
in
order to service Bank of America SC Conforming Loans adequately and
accurately.
"Participating
Institution" means an
institution approved by ▇▇▇▇ for participation in the Bank of America SC Loan
Programs.
"Program"
shall mean, collectively, the
Bank of America Private Loan Programs and the Bank of America ▇▇▇▇ Loan
Programs.
"Program
Guidelines" 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 SC 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
SC
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
SC Conforming Loan made by Program Lender that becomes “seasoned” in accordance
with the following criteria:
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(a)
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The
following Bank of America SC Conforming Loans will be deemed to be
“Seasoned Loans” immediately upon final
disbursement:
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(i) prepGATE
Loans (as defined in the Program Guidelines);
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(b)
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The
following Bank of America SC Conforming Loans will be deemed to be
“Seasoned Loans” twenty-four (24) months following final
disbursement:
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(i)
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Bank
of America Private Undergraduate Education Loans, Bank of America
▇▇▇▇
Alternative Undergraduate Loans, and Bank of America ISLP Undergraduate
Loans (each as defined in the Program Guidelines) made to Borrowers
in
their first (1st),
second
(2nd) or
third (3d) academic year; and,
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(ii)
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Bank
of America ▇▇▇▇ Alternative Continuing Education Loans (as defined
in the
Program Guidelines).
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(c)
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The
following Bank of America SC 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):
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(i)
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Bank
of America Private Undergraduate Education Loans, Bank of America
▇▇▇▇
Alternative Undergraduate Loans, and Bank of America ISLP Undergraduate
Loans made to Borrowers in their fourth (4th) or later academic
year;
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(ii)
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Bank
of America Private Graduate Professional Education Loans and Bank
of
America ▇▇▇▇ Alternative Graduate Loans, Bank of America ISLP Graduate
Loans and Bank of America ISLP Medical Loans (each as defined in
the
Program Guidelines); and,
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(iii)
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Bank
of America ▇▇▇▇ Alternative Health Professions Loans (as defined
in the
Program Guidelines).
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(d)
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Notwithstanding
subparagraphs (a) through (c), above:
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(i)
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any
Bank of America SC Conforming Loans will be deemed to be “Seasoned Loan”
immediately upon the occurrence of any of the following
events:
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(A)
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the
Bank of America SC 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 Program
Guidelines; or
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(B)
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a
“Guaranty Event” (as defined in the Guaranty Agreement) occurs with
respect to such Bank of America SC Conforming
Loan.
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(ii)
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any
Bank of America Conforming Loan that is a Bank of America Gate
Undergraduate Loan, Bank of America ▇▇▇▇ Alternative Undergraduate
Loan,
or Bank of America ISLP Undergraduate Loan and is made to Borrowers
in
their third (3rd)
academic
year that has a scheduled graduation date that occurs prior to twenty-four
months following the final disbursement date of the
loan.
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"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:
(Structuring
and Origination Fees; Copy/Binding Costs)
(Underwriting
Expenses)
(Rating
Fee)
(Owner
Trustee and Indenture Trustee
Transaction and First Year Fees; Expenses)
(Counsel
for Indenture Trustee)
(Counsel
for FMC)
(Servicer
Audit)
(Bond
Insurer)
"Securitization
Transaction" shall mean
and refer to the purchase of a Pool of Bank of America SC 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 SC 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 SC 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 SC 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 SC 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 SC 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 SC Conforming Loans.
"Umbrella
Agreement" shall mean and
refer to that certain Amended and Restated Umbrella Agreement by and between
Program Lender and First Marblehead, dated as of June 30, 2006.
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 SC 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 SC Conforming Loans originated
by Program Lender [**]. Program Lender shall be free to use Bank of
America SC Conforming Loans as collateral for loans to Program Lender and/or
to
sell participations in its portfolio of Bank of America SC 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 SC 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
C 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.
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2.04.01
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For
Bank of America ▇▇▇▇ Programs (excluding Bank of America ▇▇▇▇
ISLP Programs)
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On
the
Purchase Date, Program Lender shall assign and convey all Seasoned Loans that
are Bank of America ▇▇▇▇ Loans (other than Bank of America ▇▇▇▇ ISLP 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 the following amounts with respect to each of
the Seasoned Loans to be purchased that are Bank of
America ▇▇▇▇ Loans (other than Bank of America ▇▇▇▇ ISLP Loans):
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(a)
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The
unpaid principal amount of the Seasoned Loans in question [**];
plus
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(b)
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All
accrued and unpaid interest on such Seasoned Loans, [**];
plus
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(c)
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[**],
the amount of any guaranty fee paid by the Program Lender to The
Education
Resources Institute, Inc. (“▇▇▇▇”). If the terms of the Guaranty Agreement
call for any Guaranty Fees to be paid to ▇▇▇▇ [**];
plus
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(d)
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All
fees paid by Program Lender to ▇▇▇▇ with respect to such Seasoned
Loans
[**]; plus
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(e)
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A
marketing fee and loan premium,
[**]:
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1.
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with
respect to Bank of America ▇▇▇▇ School Channel Undergraduate Creditworthy
Loans, [**]% [**]; plus
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2.
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with
respect to Bank of America ▇▇▇▇ School Channel Graduate Creditworthy
Loans, [**]% [**]; plus
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3.
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with
respect to Bank of America ▇▇▇▇ School Channel Graduate Credit-ready
Loans, [**]%; plus
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4.
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with
respect to Bank of America ▇▇▇▇ School Channel Continuing Education
Loans,
[**]% [**]; plus
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5.
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with
respect to Bank of America ▇▇▇▇ School Channel Creditworthy Health
Professions Loans (excluding CVS Program Loans eligible for purchase
under
the Umbrella Agreement), [**]% [**];
plus
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6.
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with
respect to Bank of America ▇▇▇▇ School Channel Credit-ready Health
Professions Loans and CVS Creditworthy and Credit-ready Health Professions
Loans eligible for purchase under the Umbrella Agreement, [**]%;
plus
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7.
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with
respect to Bank of America prepGATE Loans,
[**]%;
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8.
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with
respect to School Channel Undergraduate Creditworthy Expanded Tier
Loans,
[**]% [**];
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9.
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with
respect to School Channel Graduate Creditworthy Expanded Tier Loans,
[**]%
[**];
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10.
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with
respect to School Channel Creditworthy Health Profession Expanded
Tier
Loans, [**]% [**].
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2.04.02 For
Bank of America ▇▇▇▇ ISLP Programs
On
the Purchase Date, Program Lender
shall assign and convey all Seasoned Loans that are Bank of America ▇▇▇▇ ISLP
Loans 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 the following
amounts with respect to each of the Seasoned Loans to be
purchased that are Bank of America ▇▇▇▇ ISLP Loans:
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(a)
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The
unpaid principal amount ([**]) of the Seasoned Loans in the Pool;
plus
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(b)
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All
accrued and unpaid interest on such Seasoned Loans, [**];
plus
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(c)
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All
fees paid by Program Lender to ▇▇▇▇ with respect to such Seasoned
Loans
[**]; plus
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(d)
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A
marketing fee and loan premium,
[**]:
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1.
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with
respect to Bank of America Bank School Channel ISLP Undergraduate
Creditworthy Loans, [**]% [**];
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2.
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with
respect to Bank of America Bank School Channel ISLP Graduate Creditworthy
Loans, [**]% [**];
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3.
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with
respect to Bank of America Bank School Channel ISLP Graduate Credit-ready
Loans, [**]%;
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4.
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with
respect to Bank of America Bank School Channel ISLP Medical Creditworthy
Loans, [**]%;
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5.
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with
respect to Bank of America Bank School Channel ISLP Medical Credit-ready
Loans, [**]%;
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6.
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with
respect to Bank of America Bank School Channel ISLP Medical Creditworthy
Residency Loans, [**]%;
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7.
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with
respect to Bank of America Bank School Channel ISLP Medical Credit-ready
Residency Loans, [**]%.
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2.04.03
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Bank
of America Private Loan
Programs
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On
the
Purchase Date, Program Lender shall assign and convey all Seasoned Loans that
are Bank of America Private Loans 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 the following amounts with respect to each of
the Seasoned Loans to be purchased that are Bank of
America Private Loans:
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(a)
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The
unpaid principal amount of the Seasoned Loans in question [**];
plus
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(b)
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All
accrued and unpaid interest on such Seasoned Loans, [**];
plus
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(c)
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With
respect to [**], the amount of any guaranty fee paid by the Program
Lender
to The Education Resources Institute, Inc. (“▇▇▇▇”) [**];
plus
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(d)
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A
marketing fee and loan premium,
[**]:
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1.
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with
respect to Bank of America Private Loan Generic & Preferred School
Channel Creditworthy Undergraduate Loans,
[**]%;
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2.
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with
respect to Bank of America Private Loan Generic & Preferred School
Channel Creditworthy Graduate Loans,
[**]%;
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3.
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with
respect to Bank of America Private Loan Generic & Preferred School
Channel Creditworthy Law Loans,
[**]%;
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4.
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with
respect to Bank of America Private Loan Generic & Preferred School
Channel Creditworthy Business Loans,
[**]%;
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5.
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with
respect to Bank of America Private Loan Generic & Preferred School
Channel Creditworthy Medical Loans,
[**]%;
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6.
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with
respect to Bank of America Private Loan Generic & Preferred School
Channel Creditworthy Dental Loans,
[**]%;
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7.
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with
respect to Bank of America Private Loan Generic & Preferred School
Channel Credit-ready Graduate Loans,
[**]%;
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8.
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with
respect to Bank of America Private Loan Generic & Preferred School
Channel Credit-ready Law Loans,
[**]%;
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9.
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with
respect to Bank of America Private Loan Generic & Preferred School
Channel Credit-ready Business Loans,
[**]%;
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10.
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with
respect to Bank of America Private Loan Generic & Preferred School
Channel Credit-ready Medical Loans,
[**]%;
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11.
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with
respect to Bank of America Private Loan Generic & Preferred School
Channel Credit-ready Dental Loans,
[**]%;
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12.
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with
respect to Bank of America Private Loan Generic & Preferred School
Channel Credit-ready Bar Loans,
[**]%;
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13.
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with
respect to Bank of America Private Loan Generic & Preferred School
Channel Credit-ready Relocation & Residency Loans,
[**]%;
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14.
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with
respect to Bank of America Private Loan [**] School Channel Creditworthy
Graduate Loans, [**]%;
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15.
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with
respect to Bank of America Private Loan [**]School Channel Creditworthy
Law Loans, [**]%;
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16.
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with
respect to Bank of America Private Loan [**] School Channel Credit-ready
Graduate Loans, [**]%;
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17.
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with
respect to Bank of America Private Loan [**] School Channel Credit-ready
Law Loans, [**]%; and
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18.
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with
respect to Bank of America Private Loan [**] School Channel Credit-ready
Business Loans, [**]%.
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2.04.04
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Administrative
Costs
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In
addition, the Minimum Purchase Price
shall include reimbursement of any subsequent guaranty fees due from Lender
to
▇▇▇▇ [**].
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 2.05, the following
terms have the following meanings:
[**].
III. Procedures
and Conditions for Transfer.
3.01. Conveyances
of Bank of America SC 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:
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(1)
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The
Seasoned Loans included in the related Pool originated by Program
Lender
and all payments due or to become due
thereon;
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(2)
|
Any
proceeds with respect to the Seasoned Loans originated by Program
Lender
included in such Pool from recourse to ▇▇▇▇ under the Loan Origination
Agreement regarding origination of Conforming
Loans;
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(3)
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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;
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(4)
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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);
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(5)
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All
rights of Program Lender under the Guaranty Agreement with respect
to the
loans in the Pool.
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(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):
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(1)
|
Program
Lender shall have delivered to the Purchaser Trust a duly authorized
and
executed Pool Supplement;
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(2)
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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;
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(3)
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The
Loan Origination 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;
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(4)
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Program
Lender and ▇▇▇▇ shall have performed and observed the terms and conditions
of this Agreement and the Loan Origination Agreement and there shall
not
have occurred a default under either the Loan Origination Agreement
or the
Servicing Agreement;
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(5)
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Program
Lender shall have complied with the provisions of the Umbrella Agreement
applicable to the Seasoned Loans included in the
Pool;
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(6)
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The
loans to be purchased shall have been originated and serviced in
conformity with the Program Guidelines and shall be covered by the
Guaranty Agreement;
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(7)
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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;
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(8)
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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 A;
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(9)
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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;
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(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);
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(11)
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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
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(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):
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(1)
|
Purchaser
Trust shall have delivered to Program Lender a duly authorized and
executed Pool Supplement;
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(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);
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(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;
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(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.
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(5)
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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;
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(6)
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If
the trustee or other fiduciary
under the related Trust Indenture is not U.S. Bank, N.A., Program
Lender
shall have approved such trustee or fiduciary, with such approval
not to
have been unreasonably withheld;
and
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(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 “BOA 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.
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3.02.
|
Delivery
of Documents.
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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 SC 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 SC 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 SC 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 Loan Origination
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 Loan Origination 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 SC Loan Notes.
By
their purchase of Bank of America SC
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 Bank of America SC Loan borrower by
reason of the Seasoned Loans originated by Program Lender included in the Pool
evidenced by the Bank of America SC Loan Notes. Program Lender shall
be solely responsible to fulfill its obligations under any agreements it may
have with Participating Institutions 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 SC Conforming Loans and with respect to loan
servicing of Bank of America SC Conforming Loans incurred prior to purchase
of a
Bank of America SC Conforming Loan hereunder. FMC shall be solely
responsible for and shall pay any obligations it has incurred in connection
with
the Bank of America SC 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 SC 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 SC 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 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 requisite authority to conduct all
activities and consummate all transactions contemplated by this
Agreement.
(b) Program
Lender has all requisite power and authority to execute, deliver and perform
its
obligations under this Agreement, and has duly authorized the execution,
delivery and performance of, and has duly executed and delivered this Agreement,
and this Agreement together with each Pool Supplement executed pursuant hereto,
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 and sold to FMC or a
Purchaser Trust pursuant to any Securitization Transaction (i) 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, and (ii) is covered by an entitled to the benefits of the Guaranty
Agreement.
(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 and each Seasoned Loan was documented on forms set forth in
the
Program Guidelines and contained consumer loan terms and involved guaranty
fees
payable to ▇▇▇▇ in strict conformity with the Program Guidelines. The
origination of each Seasoned Loan was conducted in accordance with the Program
Guidelines and all applicable state and federal laws including, without
limitation, the Equal Credit Opportunity Act. No application to
Program Lender for a Bank of America SC 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 with any applicable usury laws at the time made and of the time
of
assignment to FMC or a Purchaser Trust.
(g) There
is no defense to payment, counterclaim or setoff 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 owned by Program
Lender free and clear of any liens, claims or demands of any person, and Program
Lender has the absolute right to transfer the same to FMC or a Purchaser
Trust.
(i) With
respect to each Note originated by Program Lender and included in the Pool:
(A)
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 Program Guidelines, and
(B) such Note has been serviced at all times in accordance with the Program
Guidelines.
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 SC Conforming Loan, any obligor, and the sale
of
any Bank of America SC 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. Whether or not Program Lender exercises its right of
repurchase, Program Lender shall indemnify FMC, any Purchaser Trust and any
fiduciary under the Trust Agreement pursuant to Article VIII or this
Agreement.
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 SC 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,
N.A.
Mail
Code:
NC1-002-15-26
▇▇▇▇▇▇▇▇▇,
▇▇
▇▇▇▇▇-▇▇▇▇
With
a copy
to:
▇▇▇▇▇
▇.
▇▇▇▇▇▇
Assistant
General
Counsel
Bank
of America,
N.A.
11th
Floor
▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇.
▇▇▇▇▇, ▇▇
▇▇▇▇▇
If
to
FMC:
▇▇▇▇▇
▇ ▇▇▇▇, Chairman and General Counsel
The
First Marblehead Corporation
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
With
a copy to:
Corporate
Law Department
The
First Marblehead Corporation
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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.
Regardless
of the exercise or
nonexercise of the repurchase right under Section 5.04, 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 breach of any
representation, warranty or covenant of Program Lender contained herein. This
section shall survive any termination of this Agreement.
8.02. FMC.
FMC
or the applicable Purchaser Trust,
as the case may be, shall indemnify and hold harmless Program Lender and any
officer, director, or employee or agent of Program Lender (herein collectively
referred to as “Indemnified Persons”) against any and all liabilities, losses,
cost, 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 or judgments or obtaining or attempting
to
obtain release from liability, which such Indemnified Person may sustain or
incur by reason of any breach of any representation, warranty or covenant of
FMC
or the applicable Purchaser Trust, as the case may be, contained herein. This
section shall survive termination of this Agreement.
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 SC 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:
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BANK
OF AMERICA, N.A.
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/s/
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By:
/s/
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Print
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Print
Name:
▇▇▇▇ ▇▇▇▇▇▇
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Title:
Senior Vice President
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THE
FIRST MARBLEHEAD CORPORATION
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/s/
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
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By:
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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|||
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Print
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Print
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title:
Executive Vice President
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Index
to Exhibits
Exhibit
A Co-Lender
Indemnification Agreement
Exhibit
B Servicing
Assignment and Servicer Consent Letter
Exhibit
C Pool
Supplement
Exhibit
D Indemnification
Agreement
EXHIBIT
A 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,
N.A. ("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 Bank of America School Channel Loan
Programs (collectively, the "Program") pursuant to which each of the Program
Lenders originate educational loans (the "Loans") to pay the costs of attending
institutions of education which are themselves participants in the 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 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 Loans (the "Subject Securitization
Transaction").
C. As
a condition precedent to the obligation of each Program Lender to consummate
the
sale of Loans originated by them to the Purchaser Trust, all Program Lenders
whose 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 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
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
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
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 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 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 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 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,
N.A.
Mail
Code:
NC1-002-15-26
▇▇▇▇▇▇▇▇▇,
▇▇
▇▇▇▇▇-▇▇▇▇
With
a copy to:
▇▇▇▇▇
▇. ▇▇▇▇▇▇
Assistant
General
Counsel
Bank
of America,
N.A.
11th
Floor
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇.
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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, N.A. | |||
|
|
By:
|
||
| Print Name: | |||
| Title: | |||
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: | ||
| Accepted and Agreed: | ||
|
[SPE
NAME]
|
||
| By: [OWNER TRUSTEE] | ||
|
By:
|
||
|
Print Name:
|
||
| Title: | ||
EXHIBIT
C 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 ________, 2005, by and
between The First Marblehead Corporation ("FMC") and Bank of America,
N.A. 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 SC 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
Notes on said terms and conditions.
Article
2: Price.
|
|
2.04.01
|
For
Bank of America ▇▇▇▇ Programs (excluding Bank of America ▇▇▇▇
ISLP Programs)
|
On
the
Purchase Date, Program Lender shall assign and convey all Seasoned Loans that
are Bank of America ▇▇▇▇ Loans (other than Bank of America ▇▇▇▇ ISLP 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 the following amounts with respect to each of
the Seasoned Loans to be purchased that are Bank of
America ▇▇▇▇ Loans (other than Bank of America ▇▇▇▇ ISLP Loans):
|
|
(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 the Program Lender to The
Education
Resources Institute, Inc. (“▇▇▇▇”). If the terms of the Guaranty Agreement
call for any Guaranty Fees to be paid to ▇▇▇▇ [**];
plus
|
|
|
(d)
|
All
fees paid by Program Lender to ▇▇▇▇ with respect to such Seasoned
Loans
[**]; plus
|
|
|
(e)
|
A
marketing fee and loan premium,
[**]:
|
|
3.
|
with
respect to Bank of America ▇▇▇▇ School Channel Undergraduate Creditworthy
Loans, [**]% [**]; plus
|
|
4.
|
with
respect to Bank of America ▇▇▇▇ School Channel Graduate Creditworthy
Loans, [**]% [**]; plus
|
|
|
3.
|
with
respect to Bank of America ▇▇▇▇ School Channel Graduate Credit-ready
Loans, [**]%; plus
|
|
|
4.
|
with
respect to Bank of America ▇▇▇▇ School Channel Continuing Education
Loans,
[**]% [**]; plus
|
|
|
5.
|
with
respect to Bank of America ▇▇▇▇ School Channel Creditworthy Health
Professions Loans (excluding CVS Program Loans eligible for purchase
under
the Umbrella Agreement), [**]% [**];
plus
|
|
6.
|
with
respect to Bank of America ▇▇▇▇ School Channel Credit-ready Health
Professions Loans and CVS Creditworthy and Credit-ready Health Professions
Loans eligible for purchase under the Umbrella Agreement, [**]%;
plus
|
|
7.
|
with
respect to Bank of America prepGATE Loans,
[**]%;
|
|
8.
|
with
respect to School Channel Undergraduate Creditworthy Expanded Tier
Loans,
[**]% [**];
|
|
9.
|
with
respect to School Channel Graduate Creditworthy Expanded Tier Loans,
[**]%
[**];
|
|
10.
|
with
respect to School Channel Creditworthy Health Profession Expanded
Tier
Loans, [**]% [**].
|
2.04.02 For
Bank of America ▇▇▇▇ ISLP Programs
On
the Purchase Date, Program Lender
shall assign and convey all Seasoned Loans that are Bank of America ▇▇▇▇ ISLP
Loans 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 the following
amounts with respect to each of the Seasoned Loans to be
purchased that are Bank of America ▇▇▇▇ ISLP Loans:
|
(c)
|
The
unpaid principal amount ([**]) of the Seasoned Loans in the Pool;
plus
|
|
(d)
|
All
accrued and unpaid interest on such Seasoned Loans, [**];
plus
|
|
|
(c)
|
All
fees paid by Program Lender to ▇▇▇▇ with respect to such Seasoned
Loans
[**]; plus
|
|
|
(d)
|
A
marketing fee and loan premium,
[**]:
|
|
1.
|
with
respect to Bank of America Bank School Channel ISLP Undergraduate
Creditworthy Loans, [**]% [**];
|
|
2.
|
with
respect to Bank of America Bank School Channel ISLP Graduate Creditworthy
Loans, [**]% [**];
|
|
3.
|
with
respect to Bank of America Bank School Channel ISLP Graduate Credit-ready
Loans, [**]%;
|
|
4.
|
with
respect to Bank of America Bank School Channel ISLP Medical Creditworthy
Loans, [**]%;
|
|
5.
|
with
respect to Bank of America Bank School Channel ISLP Medical Credit-ready
Loans, [**]%;
|
|
6.
|
with
respect to Bank of America Bank School Channel ISLP Medical Creditworthy
Residency Loans, [**]%;
|
|
7.
|
with
respect to Bank of America Bank School Channel ISLP Medical Credit-ready
Residency Loans, [**]%.
|
2.04.03 Bank
of America Private Loan Programs
On
the
Purchase Date, Program Lender shall assign and convey all Seasoned Loans that
are Bank of America Private Loans 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 the following amounts with respect to each of
the Seasoned Loans to be purchased that are Bank of
America Private Loans:
|
|
(a)
|
The
unpaid principal amount of the Seasoned Loans in question including,
without limitation, [**]; plus
|
|
|
(b)
|
All
accrued and unpaid interest on such Seasoned Loans, [**];
plus
|
|
|
(c)
|
With
respect to[**] the amount of any guaranty fee paid by the Program
Lender
to The Education Resources Institute, Inc. (“▇▇▇▇”) [**];
plus
|
|
|
(d)
|
A
marketing fee and loan premium,
[**]:
|
|
|
1.
|
with
respect to Bank of America Private Loan Generic & Preferred School
Channel Creditworthy Undergraduate Loans,
[**]%;
|
|
|
2.
|
with
respect to Bank of America Private Loan Generic & Preferred School
Channel Creditworthy Graduate Loans,
[**]%;
|
|
|
3.
|
with
respect to Bank of America Private Loan Generic & Preferred School
Channel Creditworthy Law Loans,
[**]%;
|
|
|
4.
|
with
respect to Bank of America Private Loan Generic & Preferred School
Channel Creditworthy Business Loans,
[**]%;
|
|
|
5.
|
with
respect to Bank of America Private Loan Generic & Preferred School
Channel Creditworthy Medical Loans,
[**]%;
|
|
|
6.
|
with
respect to Bank of America Private Loan Generic & Preferred School
Channel Creditworthy Dental Loans,
[**]%;
|
|
|
7.
|
with
respect to Bank of America Private Loan Generic & Preferred School
Channel Credit-ready Graduate Loans,
[**]%;
|
|
|
8.
|
with
respect to Bank of America Private Loan Generic & Preferred School
Channel Credit-ready Law Loans,
[**]%;
|
|
|
9.
|
with
respect to Bank of America Private Loan Generic & Preferred School
Channel Credit-ready Business Loans,
[**]%;
|
|
|
10.
|
with
respect to Bank of America Private Loan Generic & Preferred School
Channel Credit-ready Medical Loans,
[**]%;
|
|
|
11.
|
with
respect to Bank of America Private Loan Generic & Preferred School
Channel Credit-ready Dental Loans,
[**]%;
|
|
|
12.
|
with
respect to Bank of America Private Loan Generic & Preferred School
Channel Credit-ready Bar Loans,
[**]%;
|
|
|
13.
|
with
respect to Bank of America Private Loan Generic & Preferred School
Channel Credit-ready Relocation & Residency Loans,
[**]%;
|
|
|
14.
|
with
respect to Bank of America Private Loan [**] School Channel Creditworthy
Graduate Loans, [**]%;
|
|
|
15.
|
with
respect to Bank of America Private Loan [**] School Channel Creditworthy
Law Loans, [**]%;
|
|
|
16.
|
with
respect to Bank of America Private Loan [**] School Channel Credit-ready
Graduate Loans, [**]%;
|
|
|
17.
|
with
respect to Bank of America Private Loan [**] School Channel Credit-ready
Law Loans, [**]%; and
|
|
|
18.
|
with
respect to Bank of America Private Loan [**] School Channel Credit-ready
Business Loans, [**]%.
|
|
2.04.04
|
Administrative
Costs
|
In
addition, the Minimum Purchase Price
shall include reimbursement of any subsequent guaranty fees due from Lender
to
▇▇▇▇ [**].
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
SC 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 SC 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 Loan Origination
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, N.A. | |||
|
|
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
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, N.A.
(“BOA”).
WITNESSETH:
WHEREAS,
pursuant to that certain Note
Purchase Agreement dated ________, 2005 (the “Note Purchase Agreement”) between
First Marblehead, as purchaser, and BOA, BOA will sell to the Trust and the
Trust will purchase from BOA certain Bank of America SC 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.
“BOA
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 BOA, and BOA 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 BOA, 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
BOA 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 BOA, its officers, directors,
employees, attorneys, agents and each Person who controls BOA 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 BOA) 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
BOA. BOA 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 BOA Information (or any amendment or supplement thereto approved in writing
by BOA) 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
BOA;
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 BOA 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, BOA, 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 BOA, 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) BOA 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 BOA
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 BOA, 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)
Bank of America, N.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 BOA’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, N.A. | |||
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Print Name:
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| [NAME OF PURCHASER TRUST] | |||
| By: [NAME OF TRUSTEE], not in its individual capacity but solely in its capacity as Trustee | |||
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By:
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Print Name:
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| Title: | |||
| THE FIRST MARBLEHEAD CORPORATION | |||
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By:
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Print Name:
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| Title: | |||