NOTE PURCHASE AGREEMENT TERI-GUARANTEED BANK OF AMERICA DIRECT TO CONSUMER LOAN PROGRAM BANK OF AMERICA, N.A.
Exhibit
99.2
|
Confidential
Materials omitted and filed separately with the
Securities
and Exchange Commission. Asterisks denote
omissions.
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▇▇▇▇-GUARANTEED
BANK OF AMERICA DIRECT TO CONSUMER LOAN PROGRAM
BANK
OF
AMERICA, N.A.
This
Note
Purchase Agreement, by and between Bank of America, N.A. ("Program Lender"),
a
national banking association organized under the laws of the United States
and
having a principal office located at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
and THE
FIRST MARBLEHEAD CORPORATION, a Delaware corporation having a principal place
of
business at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ (“FMC”), is made as of
June 30th, 2003;
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 Direct
to
Consumer Loan Program (as defined in Section 1); and
WHEREAS,
FMC exists to provide funds for education loans for the benefit of students
at
Participating Institutions (as defined in Section 1); and
WHEREAS,
in order to facilitate funding of Bank of America Direct to Consumer Conforming
Loans (as defined in Section 1), Program Lender has agreed to sell, from time
to
time, pools containing Bank of America Direct to Consumer Conforming Loans
originated by Program Lender to FMC or a Purchaser Trust (as defined in Section
1); and
WHEREAS,
the Bank of America Direct to Consumer Conforming Loans are made by Program
Lender and purchased by FMC on the condition that they qualify for and in fact
are covered by a guaranty issued by The Education Resources Institute, Inc.
(“▇▇▇▇”).
NOW,
THEREFORE, in consideration of these presents and the covenants contained
herein, the parties hereto hereby agree as follows:
I. Definitions.
Capitalized terms used herein without definition have the meanings set forth
in
the Program Guidelines.
“Affiliate”
shall mean, as to any person, any other person which, directly or indirectly,
is
in control of, is controlled by, or is under common control with, such person.
A
person shall be deemed to control another person if the controlling person
possesses, directly or indirectly, the power to direct or to cause the direction
of the management and policies of the other person, whether through the
ownership of voting securities, by contract or otherwise.
“Agent”
means U.S. Bank, N.A., or a successor agent under the Deposit and Security
Agreement.
“Ambac”
means Ambac Assurance Corporation.
“BAGEL
Note Purchase Agreement” shall mean the agreement of same name between FMC and
Program Lender dated as of April 30, 2001.
“BAGEL
Seasoned Loans” shall mean all loans that fall within the definition of
“Seasoned Loan” as set forth in the BAGEL Note Purchase Agreement.
“Bank
of
America Direct to Consumer Conforming Loans” shall mean Loans (a) made in
accordance with and 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.
“Bank
of
America Direct to Consumer Loan Pool” or “Pool” shall mean and refer to a group
of Bank of America Direct to Consumer Notes purchased and pledged or intended
to
be purchased and pledged as collateral in a particular Securitization
Transaction.
“Bank
of
America Direct to Consumer Notes” shall mean notes or other forms of consumer
debt instruments, evidencing Bank of America Direct to Consumer Conforming
Loans.
“Bank
of
America Direct to Consumer Program” shall mean the Bank of America Direct to
Consumer Loan Program described in the Program Guidelines.
“Bond
Insurer” means Ambac, MBIA, or any other provider of credit insurance or note
insurance with respect to the obligations of the Purchaser Trust.
“Business
Day” shall mean any day other than: (a) a Saturday or Sunday, or (b) a day on
which national banking institutions are required or authorized by law or
executive order to be closed.
“Co-lender
Indemnification Agreement” means the form of Agreement attached hereto as
Exhibit C.
“Collateral”
has the meaning set forth in the Deposit and Security Agreement.
“Deposit
and Security Agreement” means the agreement of that name among Program Lender,
Agent, FMC and ▇▇▇▇ dated as of June 30, 2003.
“First
Marblehead” or “FMC” shall mean The First Marblehead Corporation, a Delaware
corporation.
“First
Payment Date” means the date when the first monthly payment is due with respect
to a particular Bank of America Direct to Consumer Conforming Loan.
“Guaranty
Agreement” means the Guaranty Agreement between Program Lender and ▇▇▇▇ dated
June 30, 2003, as it may be amended from time to time.
“Loan”
shall mean a loan of funds, including all disbursements thereof, made by the
Program Lender to a Borrower (as defined in the Guaranty Agreement) under the
Bank of America Direct to Consumer Program.
“Market
Disruption Event” means any of the following: (a) any suspension or limitation
on trading in securities generally on the New York Stock Exchange or the
National Association of Securities Dealers National Market system; (b) any
banking moratorium declared by federal, Massachusetts, or New York authorities
or authorities of the state in which Program Lender is headquartered; (c) any
outbreak or escalation of major hostilities or armed conflict, or any
declaration of war by Congress; (d) any change in federal or state law or
regulations that disrupts the functioning of the capital markets; (e) the
closing of the market for commercial paper or asset-backed securities or
significant disruption in the functioning of those markets, if, in the
reasonable judgment of FMC, the effect of any such event in (a) - (e) above
materially affects FMC’s ability to economically complete a Securitization
Transaction; or (f) the occurrence of a ▇▇▇▇ Insolvency Event.
“MBIA”
means MBIA Insurance Corporation.
“Minimum
Purchase Price” has the meaning set forth in Section 2.04.
“Loan
Origination Agreement” refers to (a) the Loan Origination Agreement to be
entered into between ▇▇▇▇ and Program Lender with respect to origination of
Bank
of America Direct to Consumer 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 Direct to Consumer Notes
purchased under this Agreement that is acceptable in form and substance to
each
of FMC and ▇▇▇▇.
“Origination
Records” means and refers to the original Bank of America Direct to Consumer
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 Direct to Consumer
Conforming Loans adequately and accurately.
“Participating
Institution” means an educational institution approved by ▇▇▇▇ for receipt of
Bank of America Direct to Consumer Conforming Loan funds.
“PHEAA”
shall mean the Pennsylvania Higher Education Assistance Agency, a public
corporation and government instrumentality organized under the laws of the
Commonwealth of Pennsylvania, and having an address at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
“Pledged
Account” has the meaning set forth in the Deposit and Security
Agreement.
“Program
Guidelines” means the Program Guidelines attached to the Guaranty Agreement as
Exhibit A.
“Purchase
Date” shall mean (a) the date of consummation of a Securitization Transaction
with respect to a particular Pool of Seasoned Loans originated by Program
Lender, which date: (i) 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 (ii) shall occur [**]] (including any extension
thereof) for each loan in such Pool in question, or (b) the date on which FMC
or
a designee Purchaser Trust purchases a Bank of America Direct to Consumer
Conforming Loan during the Right of First Refusal Period.
“Purchase
Period” means, with respect to any particular Bank of America Direct to Consumer
Loan, the period beginning on the first date such loan becomes a “Seasoned Loan”
and ending [**] days thereafter, as same may be extended pursuant to the terms
of this Agreement.
“Purchaser
Trust” shall mean and refer to a trust or other SPE formed or sponsored by FMC
or by any Affiliate of FMC for the purpose of purchasing, directly or
indirectly, Bank of America Direct to Consumer Conforming Loans. Any action
required or permitted to be taken by FMC hereunder may be taken by a Purchaser
Trust with respect to a particular Pool, and FMC may assign its rights hereunder
to a Purchaser Trust without the consent of the Program Lender. If FMC elects
to
finance the purchase of such Loans on an interim basis by using an SPE or any
other temporary financing vehicle as an interim holder, (i) the term Purchaser
Trust shall include both such interim holder and any other SPE to whom the
Loans
are ultimately transferred in a Securitization Transaction; and (ii) the
representations, warranties and indemnities made by the Program Lender to FMC
hereunder shall pass directly to both the interim holder and the ultimate
purchaser SPE.
“Rating
Agencies” shall mean and refer to Standard and Poor's Corporation and/or ▇▇▇▇▇'▇
Investors Service, Inc., and/or Fitch Investors Services.
“Right
of
First Refusal Period” means for a Bank of America Direct to Consumer Loan, the
earlier of (i) [**] days after expiration of the relevant Purchase Period or
(ii) [**] days after notice that a bona fide written offer has been received
by
Program Lender under Section 2.02 with respect to such Bank of America Direct
to
Consumer Loan, provided that no such notice may be given until after expiration
of [**].
“Seasoned
Loan” means a Bank of America Direct to Consumer Conforming Loan as of fifteen
(15) days after completion of all scheduled disbursements on the Bank of America
Direct to Consumer Conforming Loan, but shall exclude any loan disbursed by
paper check if the paper check has not yet been paid by the drawee. In the
event
a disbursement check is paid by the drawee more than thirty days after it is
written, the loan shall become a Seasoned Loan on the date of such payment.
For
purposes of computation of the Minimum Purchase Price, the term also includes
defaulted Bank of America Direct to Consumer Conforming Loans not yet purchased
by ▇▇▇▇.
“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
Auditor)
(Bond
Insurer)
“Securitization
Transaction” shall mean and refer to the purchase of a Pool of Seasoned Loans by
FMC or 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 Seasoned 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 or to another
Purchaser Trust that issues financial instruments.
“Servicer”
shall mean and refer to PHEAA, or such other servicer as may be approved by
FMC
and ▇▇▇▇ and retained by the holder of Bank of America Direct to Consumer
Conforming Loans in accordance with the terms hereof and of the Guaranty
Agreement.
“Servicing
Agreement” refers to: (a) the Servicing Agreement to be entered into between
Servicer and Program Lender with respect to servicing of Bank of America Direct
to Consumer 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 Direct to Consumer Conforming Loans purchased
under
this Agreement, in either case such agreement and any amendment thereto to
be
satisfactory in form and substance to FMC and its counsel.
“SPE”
means a special purpose entity formed and operated for the purpose of acting
as
purchaser and owner of Bank of America Direct to Consumer Conforming Loans
and
other education loans.
“▇▇▇▇
Insolvency Event” means (1) the commencement by ▇▇▇▇ of a voluntary petition
under the federal bankruptcy laws, as now constituted or hereafter amended,
or
any other applicable federal or state bankruptcy, insolvency or other similar
laws, (2) the consent by ▇▇▇▇ to the appointment of or taking possession by
a
receiver, liquidator, trustee, custodian (or other similar official) of or
for
▇▇▇▇ or for any substantial part of its property, (3) the making by ▇▇▇▇ of
any
assignment for the benefit of creditors, (4) the insolvency or the failure
of
▇▇▇▇ generally to pay its debts as such debts become due, (5) the downgrading
of
TERI’s credit worthiness below the rating on January 2, 2003 or the placement of
a negative watch on ▇▇▇▇ by one of the Rating Agencies, or (6) a default under
one or more Guaranty Agreements to which ▇▇▇▇ is a party because of a failure
to
pay claims, or the taking of action by ▇▇▇▇ in furtherance of any of the
foregoing.
“Term”
shall mean the period commencing on the effective date hereof and ending upon
termination hereof, all as set forth in Article X.
“Total
Principal Amount” means the total principal amount of Seasoned Loans available
to be sold and purchased from Program Lender [**].
“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 Direct
to
Consumer Conforming Loans.
“Umbrella
Agreement” shall mean that certain agreement of same name among Program Lender,
FMC, and ▇▇▇▇ dated as of June 30, 2003.
II. Agreement
for Purchase and Sale of Notes.
2.01. Purchase
and Sale.
[**]
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 Purchase.
(a) Loan
Information.
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, the amount
of paid and unpaid principal and accrued interest with respect to each such
Seasoned Loan, payment status (including defaulted loans presented for guaranty
payment), and the identity of Participating Institutions affected by the
Securitization, together with the information contained in PHEAA's MR-50 and
MR-53 reports and TERI's weekly origination report, which reports shall be
provided in electronic media in the Servicer's or TERI's standard format. FMC
hereby agrees and covenants to hold information contained in the reports
confidential and only use such information for the purposes outlined in Section
VI of the Umbrella Agreement.
(b)
Purchase
Scheduling.
FMC
will [**] specify Purchase Dates that fall within each November and each June,
but in any event will, subject to Sections 2.02(d) and 3.01(b), purchase or
cause a Purchaser Trust to purchase [**] all of the Seasoned Loans held by
Program Lender prior to the expiration of [**] for any loan in the Pool (i.e.,
at least once every six (6) months). FMC shall have the sole and exclusive
right
to purchase such Bank of America Direct to Consumer Loans [**], which right
may
be assigned to one or more Purchaser Trusts. FMC may reschedule the Purchase
Date without penalty of any kind, [**] (i.e., before any Loan then held by
Program Lender has been seasoned for [**]. The [**] with respect to any Loan
may
be extended due to lack of volume as set forth in Section 2.02(d) or for a
failure to comply with one or more conditions as set forth in Section 3.01(b).
Program Lender agrees, in consideration of FMC’s undertaking pursuant to this
section, not to sell or offer to sell to any third person any interest in any
Bank of America Direct to Consumer Loan originated by Program Lender [**]
with respect to such Loan. During [**], if Program Lender receives any bona
fide
third-party written offer to purchase such Bank of America Direct to Consumer
Conforming Loan, and if Program Lender desires to accept such offer, Program
Lender shall, prior to accepting any such offer, provide a copy of same to
FMC,
and FMC (or a Purchaser Trust) shall have the sole and exclusive right to
purchase such Bank of America Direct to Consumer Conforming Loan on the terms
of
such third-party offer [**] for such Bank of America Direct to Consumer
Conforming Loan. If FMC (or a Purchaser Trust) fails to exercise such right
[**]
with respect to such Loan, Program Lender shall within its sole discretion
be
entitled to: (i) sell such Bank of America Direct to Consumer Conforming Loan
to
any third party or to retain such Bank of America Direct to Consumer Conforming
Loan, in whole or in part, for its own account, free and clear of any claim
under this Agreement; and/or (ii) immediately terminate this
Agreement.
(c)
Securitization
and Purchase Commitment Based Upon Volume.
In the
event that the Total Principal Amount held by Program Lender is:
(1)
Less
than [**] Dollars ($[**]), FMC will [**] purchase or cause the purchase of
the
Seasoned Loans in a Securitization Transaction, but will have no obligation
to
do so if FMC is unable to do so after [**].
(2)
Greater than [**] Dollars ($[**]) but less than [**] Dollars ($[**]),] FMC
shall
purchase or cause the purchase of all Seasoned Loans; provided, however, that
such obligation shall be effective only if lenders whose loans aggregate [**]
Dollars ($[**])] or more in principal amount agree to have their loans included
in the same Securitization Transaction (FMC shall use reasonable efforts under
this Section 2.02(c)(2) to cause lenders to permit the addition of Seasoned
Loans in a Securitization Transaction).
(3)
Greater than [**] Dollars ($[**]), FMC shall purchase or cause the purchase
of
all Seasoned Loans in a Securitization Transaction.
(d) Extension
of Purchase Period Due to lack of Volume.
In the
event that the volume conditions (set forth in Section 2.02(c)) for a binding
purchase commitment are not satisfied, FMC may, but need not, declare [**]
with
respect to each Bank of America Direct to Consumer Conforming Loan that is
then
a Seasoned Loan extended by [**] days. FMC may continue to declare such
extensions, in its discretion, until the earlier of: (a) the date when such
volume conditions have been satisfied or (b) the date this Agreement expires
or
is terminated (in which event FMC shall schedule a Purchase Date for all
outstanding Bank of America Direct to Consumer Loans, to occur prior to the
expiration of the Purchase Period for the last loan made subject to this
Agreement; provided,
however,
that if
this Agreement is terminated under subsection 2.02(b)(ii) on account of FMC’s
failure to purchase Seasoned Loans, then Program Lender shall not be required
to
sell loans hereunder and
shall
have recourse to its remedies under Section 2.02(e)).
(e)
Damages
from Failure to Purchase. If FMC or a Purchaser Trust fails to purchase
within a Purchase Period (as the same may be extended pursuant to Section
2.02(d)) one or more Seasoned Loans prior to the end of the Purchase Period
with
respect to such Loans, to the extent such failure is not excused under Section
3.01(b), FMC shall pay to Program Lender as liquidated damages [**] of the
Total
Principal Amount of all Seasoned Loans as to which the Purchase Period has
expired; provided, however, that if FMC pays said [**] liquidated damages amount
and Program Lender subsequently sells the Loans in question to FMC, a Purchaser
Trust or any third party during the Right of First Refusal Period, the [**]
liquidated damages amount shall be refunded to FMC to the extent the sum of
(i)
the [**] liquidated damages amount and (ii) the total amount received by Program
Lender for such Loans exceeds the Minimum Purchase Price (as defined in Section
2.04 and computed as of the actual purchase date). If a failure to purchase
is
continuing, additional damages may become payable at thirty-day intervals as
the
Purchase Period expires as to additional loans. Such payments shall constitute
liquidated damages in full satisfaction of FMC's obligations with respect to
the
purchase of such loans, and FMC shall have no further liability to Program
Lender with respect thereto. Once the Right of First Refusal Period for a Bank
of America Direct to Consumer Loan has expired, Program Lender shall be under
no
further obligation to offer such Bank of America Direct to Consumer Loan to
FMC
(or a Purchaser Trust) for purchase.
(f) FMC
Reliance on Program Guidelines.
Program
Lender further agrees, in consideration of FMC's undertaking pursuant to this
section, that no change will be made in either the Program Guidelines or the
interest rate and terms, as well as other consumer loan terms and conditions
of
Bank of America Direct to Consumer Loans without FMC’s prior written consent,
which consent shall not be unreasonably withheld.
(g)
Purchaser
Trust Involvement.
Any
action required or permitted to be taken by FMC hereunder may be taken by a
Purchaser Trust with respect to a particular Pool, and FMC may assign its rights
hereunder to a Purchaser Trust without the consent of the Program Lender. If
FMC
elects to finance the purchase of such Loans on an interim basis by using an
SPE
or any other temporary financing vehicle as an interim holder, (i) the term
Purchaser Trust shall include both such interim holder and any other SPE to
whom
the Loans are ultimately transferred in a Securitization Transaction; and (ii)
the representations, warranties and indemnities made by the Program Lender
to
FMC hereunder shall pass directly to both the interim holder and the ultimate
purchaser SPE.
2.03. Pool
Supplement.
Each
purchase and sale of the Seasoned Loans included in a Pool on a Purchase Date
shall be made pursuant to a Pool Supplement substantially in the form of Exhibit
A which shall: (1) set forth the Minimum Purchase Price for the Seasoned Loans
included in the Pool, (2) incorporate by reference the terms and conditions
of
this Agreement applicable to sales of Bank of America Direct to Consumer
Conforming Loans, and (3) include a Schedule of Seasoned Loans setting forth
the
details and characteristics of each such Seasoned Loan included in the Pool.
Each Pool Supplement shall be executed by an authorized agent of each Purchaser
Trust and the Program Lender and shall be delivered on the related Purchase
Date. The Purchaser Trust shall provide a preliminary settlement sheet in the
form of Schedule 1 to the Pool Supplement not less than two (2) Business Days
prior to the Purchase Date.
2.04. Minimum
Purchase Price.
On
the
Purchase Date, Program Lender shall assign and convey all Seasoned Loans
included in the Pool to FMC, or a Purchaser Trust, in consideration of receipt
of the Minimum Purchase Price therefor. For purposes of this Agreement the
term
“Minimum Purchase Price” shall mean the sum of:
| (a) |
The
unpaid principal amount [**]of the Seasoned Loans in the Pool;
plus
|
| (b) |
All
accrued and unpaid interest on such Bank of America Direct to Consumer
Loans, [**]; plus
|
| (c) |
All
fees paid by Bank of America to ▇▇▇▇ with respect to such Bank of
America
Direct to Consumer Loans [**]; plus
|
| (d) |
The
amount of any Guaranty Fees [**];
plus
|
| (e) |
A
marketing fee and loan premium,
[**]:
|
| 1. |
with
respect to K-12 Creditworthy Loans,
[**]%
|
| 2. |
with
respect to Continuing Education Creditworthy Loans, [**]% [**][**]%
[**];
|
| 3. |
with
respect to Undergraduate Creditworthy Loans, [**]% [**][**]%[**];
and
|
| 4. |
with
respect to Graduate Creditworthy Loans, [**]%[**][**]%
[**].
|
III. Procedures
and Conditions for Transfer.
3.01. Conveyances
of Bank of America Direct to Consumer Conforming Loans; Conditions to
Purchase.
(a) On
each
Purchase Date, upon execution and delivery of the related Pool Supplement,
Program Lender shall sell, transfer, assign, set over and otherwise convey
to
FMC or the Purchaser Trust, without recourse, all right, title and interest
of
Program Lender in and to:
|
(1)
|
The
Seasoned Loans included in the related Pool originated by Program
Lender
and all payments due or to become due
thereon;
|
|
(2)
|
Any
claims against ▇▇▇▇ and proceeds of such claims with respect to
origination of the Seasoned Loans included in the Pool;
|
|
(3)
|
Any
claims against Servicer with respect to servicing of the Seasoned
Loans
prior to the Purchase Date.
|
|
(4)
|
The
proceeds of any and all of the foregoing received after the Purchase
Date
or received prior thereto and not credited against the Minimum Purchase
Price as computed on the Purchase Date;
and
|
| (5) |
All
rights of Program Lender under the Guaranty Agreement with respect
to the
Seasoned Loans in the Pool.
|
(b) The
obligation of FMC and/or any Purchaser Trust to purchase the Seasoned Loans
on
the related Purchase Date shall be subject to satisfaction of the following
conditions (any of which may be waived by FMC or such Purchaser Trust, in whole
or in part in its sole discretion):
|
(1)
|
Program
Lender shall have delivered to the Purchaser Trust a duly authorized
and
executed Pool Supplement;
|
|
(2)
|
Each
of the representations and warranties made by Program Lender with
respect
to the Seasoned Loans included in such Pool shall be true and correct
in
all material respects as of the related Purchase
Date;
|
|
(3)
|
Lender
shall have entered into an Origination Agreement and a Servicing
Agreement
satisfactory in form and substance to FMC and such agreements shall
be in
full force and effect as of the Purchase Date and shall not have
been
modified except with the express prior written consent of FMC and
Program
Lender;
|
|
(4)
|
(a)
Program Lender shall have performed and observed the terms and conditions
of this Agreement in all material
respects;
|
|
(b)
Program Lender and ▇▇▇▇ shall have performed and observed the terms
and
conditions of the Origination Agreement in all material respects
and there
shall not have occurred a default thereunder;
|
|
(c)
Program Lender and Servicer shall have performed and observed the
terms
and conditions of the Servicing Agreement in all material respects
and
there shall not have occurred a default
thereunder;
|
|
(5)
|
Program
Lender shall have complied with the provisions of the Umbrella Agreement
applicable to the Seasoned Loans included in the
Pool;
|
|
(6)
|
The
Seasoned Loans to be purchased shall have been originated and serviced
in
conformity with the Program Guidelines in all material respects and
shall
be covered by the Guaranty
Agreement;
|
|
(7)
|
If
requested by FMC, ▇▇▇▇ shall have executed and delivered a confirmation
of
guaranty in the form of a Certificate of Guaranty, covering all Seasoned
Loans being purchased, for the benefit of the Purchaser Trust and
the
indenture trustee in the Securitization
Transaction;
|
|
(8)
|
The
Agent, acting 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;
|
| (9) |
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 B;
|
| (10) |
Program
Lender shall, at its own expense, on or prior to the Purchase Date,
indicate in computer files relating to Bank of America Direct to
Consumer
Conforming 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;
|
| (11) |
Program
Lender hereby authorizes the filing of a UCC-1 financing statement
with
respect to the Seasoned Loans included in such Pool in the appropriate
office of the jurisdiction in which 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 required by the Purchaser Trust);
|
| (12) |
As
of such Purchase Date: (i) Program Lender was not insolvent and will
not
become insolvent as a result of the sale and 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 rules and regulations
promulgated by the Office of the Comptroller of the Currency as in
effect
on the Purchase Date;
|
| (13) |
In
the reasonable judgment of FMC, no Market Disruption Event has occurred;
provided that if satisfaction of the condition set forth in this
Section
3.01(b)(13) is the only outstanding condition to closing, FMC shall
schedule a new Purchase Date as soon as is reasonably practicable
after
the Market Disruption Event has ceased;
and
|
| (14) |
Program
Lender shall have delivered to counsel for FMC a Certificate substantially
in the form of Exhibit D attached
hereto.
|
(c) The
obligation of Program Lender to sell the Seasoned Loans included in the Pool
on
a related Purchase Date is subject to satisfaction of the following conditions
(any of which may be waived by Program Lender in whole or in part, in its sole
discretion):
|
(1)
|
Purchaser
Trust shall have delivered to Program Lender a duly authorized and
executed Pool Supplement;
|
| (2) |
Purchaser
Trust shall have paid the Minimum Purchase Price to Program Lender
by wire
transfer of immediately available funds within twenty-four (24) hours
after the Purchase Date (such Minimum Purchase Price shall be based
on the
best information available from the Servicer as of the Purchase Date;
no
later than thirty (30) days following the Purchase Date, the Purchaser
Trust shall recalculate the Minimum Purchase Price to reflect adjustments
for transactions (including, without limitation, additional accrued
interest and payments received), and whichever party is deemed to
owe the
other such adjustment shall deliver such adjustment to such other
party,
by wire transfer of immediately available
funds);
|
| (3) |
FMC
shall have complied with the terms of the Umbrella Agreement applicable
to
the Seasoned Loans included in the Pool and no default of FMC under
the
Umbrella Agreement relating to any Seasoned Loan shall have materially
impaired the rights of the Program Lender in connection with the
purchase
and sale of the Pool to be sold on the Purchase
Date;
|
| (4) |
FMC
and Purchaser Trust shall have executed and delivered an Indemnification
Agreement substantially in the form of Exhibit C 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 C attached hereto) were distributed
or
provided to any securities purchaser or prospective purchaser in
connection with the Securitization Transaction in
question;
|
| (5) |
In
the event the subject Pool contains loans originated by persons and
entities other than Program Lender, and its designated agent (to
the
extent permitted under the Umbrella Agreement), each such person
and
entity shall have delivered to Program Lender a Co-Lender Indemnification
Agreement;
|
| (6) |
If
the trustee or other fiduciary under the related Trust Indenture
is not
Wachovia Trust Company, N.A., Program Lender shall have approved
such
trustee or fiduciary, with such approval not to have been unreasonably
withheld;
|
| (7) |
Program
Lender shall have received an opinion of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇ 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 C) 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 ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇ may except the B of A Information (as
defined in Exhibit C 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 C attached hereto) were distributed or provided
to any
securities purchaser or prospective purchaser in connection with
the
Securitization Transaction in question;
and
|
| (8) |
Purchaser
Trust assumes certain liabilities as set forth in Section 3.07 of
this
Agreement.
|
3.02.
Delivery
of Documents.
On
the
Purchase Date, Program Lender shall deliver to the Servicer, as agent for the
Purchaser Trust, and/or to the trustee of the Trust Indenture, each Bank of
America Direct to Consumer Note evidencing a Seasoned Loan included in the
Pool
and the related Origination Records. If a Co-Lender Indemnification Agreement
is
required as a condition of FMC’s or any Purchaser Trust’s obligations under
Section 3.01(b)(8) hereof, Program Lender shall execute and deliver a Co-Lender
Indemnification Agreement to each lender selling loans in the Securitization
Transaction.
3.03. Confirmation
of Representations and Warranties.
In
each
Pool Supplement, Program Lender shall confirm and certify its representations
and warranties contained herein as if fully set forth in the Pool
Supplement.
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 purchaser 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 co-signers 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 Seasoned 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 deliver such amounts within one business day to
the
trustee under the Trust Indenture.
3.06. Assignment
of Origination Rights.
Program
Lender shall insure that Program Lender’s rights under the Servicing Agreement
and the Origination Agreement with respect to any matters occurring prior to
the
Purchase Date and affecting the Seasoned Loans included in each Pool shall
be
transferred to FMC or the Purchaser Trust by execution and delivery of a Pool
Supplement. Program Lender shall require the party who originated each such
Seasoned Loan to complete any loan origination services being performed for
Program Lender 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 Direct to Consumer Loan
Notes.
By
their
purchase of Seasoned Loans (and any related Bank of America Direct to Consumer
Notes), neither FMC nor any Purchaser Trust, shall assume any liability,
responsibility or obligation with respect to any disbursements or reimbursements
that are due and owing, or which are, or may be alleged to be due and owing,
by
Program Lender to any Seasoned Loan borrower by reason of the Seasoned Loans
included in the Pool and evidenced by the Bank of America Direct to Consumer
Notes. Notwithstanding the foregoing, FMC or 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 ▇▇▇▇. Such repurchase obligation shall be
governed by the Certificate of Guaranty described in Section 3.01(b)(7), above.
Such Certificate of Guaranty should be substantially in the form of Exhibit
C of
the Guaranty Agreement.
3.08. Servicing
and Origination Costs.
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 ▇▇▇▇
or
Servicer) with respect to origination of Bank of America Direct to Consumer
Conforming Loans and with respect to loan servicing of Bank of America Direct
to
Consumer Conforming Loans incurred prior to purchase of a Bank of America Direct
to Consumer Conforming Loan hereunder. FMC shall be solely responsible for
and
shall pay any obligations it has incurred in connection with the Bank of America
Direct to Consumer Conforming Loans and shall be solely responsible for
arranging and paying all costs for servicing of the Bank of America Direct
to
Consumer Conforming Loans after purchase of such Loans.
3.09.
Securitization
Costs. FMC
or
the Purchaser Trust shall be solely responsible for and shall pay any
Securitization Costs and any and all obligations it has incurred in connection
with the purchase, financing of purchase and securitization of the Seasoned
Loans.
3.10.
Effect
of Loan Cancellations.
In the
event that the Borrower cancels a Seasoned Loan in a manner and at a time
permitted under the Program Guidelines, if that Seasoned Loan has already been
purchased under this Agreement, Program Lender will return to the Purchaser
Trust all amounts received by it with respect to such purchase. FMC shall
prepare an accounting of all such cancellations within 30 days after the last
date permitted for cancellation of Seasoned Loans purchased on a particular
Purchase Date.
| IV. |
Limitation
of Obligations of FMC and Purchaser Trust.
[Intentionally Omitted.]
|
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 Seasoned 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 Seasoned 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 requisite corporate authority to conduct all activities
and consummate all transactions contemplated by this Agreement.
(b) FMC
has
all requisite corporate 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 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 Bank of America Direct to Consumer Conforming 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, (ii) is covered by and entitled
to the benefits of the Guaranty Agreement, and (iii) is a Seasoned
Loan.
(e) Each
Bank
of America Direct to Consumer Conforming 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 Bank of
America Direct to Consumer Conforming 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 Bank of America Direct to Consumer Conforming 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 Direct to Consumer
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
Bank
of America Direct to Consumer Conforming 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, right of rescission or setoff with respect
to any Bank of America Direct to Consumer Conforming 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 Bank of America Direct to Consumer Conforming Loans originated
by Program Lender and included in the Pool.
(h) Each
and
every Bank of America Direct to Consumer Conforming 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 Bank of America Direct to Consumer 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 Bank of America Direct to
Consumer Note has been serviced at all times in accordance with the Program
Guidelines.
(j)
Such
other reasonable representations and warranties relating to the origination,
servicing, characteristics, legality, conditions and status of the Bank of
America Direct to Consumer Conforming Loans as may reasonably be required by
the
Bond Insurer for the first securitization occurring prior to December 31, 2003,
and are customary and prudent in the securitization of student loans. Any
representation or warranty required under this subsection 5.02(j) shall be
set
forth in detail in the relevant Pool Supplement.
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 Direct to Consumer
Conforming Loan, any obligor, and the sale of any Bank of America Direct to
Consumer 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 Bank of America Direct to Consumer Conforming 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 Bank of America Direct to Consumer 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 of this Agreement.
VI. Survival
of Representations, Warranties and Indemnities.
As
to any
Bank of America Direct to Consumer Conforming Loans purchased hereunder, the
representations and warranties contained herein and the indemnifications and
indemnification procedures contained in Article VIII hereof with respect to
such
Bank of America Direct to Consumer Conforming Loans shall survive until each
such Bank of America Direct to Consumer Conforming 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 or state-chartered bank 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 Direct to Consumer Conforming
Loans, and (b) FMC shall may assign its rights hereunder to one or more
Purchaser Trusts or other interim or permanent holders of Bank of America Direct
to Consumer Conforming Loans. No assignment shall relieve the assignor of
liability hereunder. Any assignment in violation of this Section 7.01 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:
▇▇▇▇▇
▇▇▇▇▇▇
Senior
Vice President
National
Student Lending Group
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇ ▇▇▇▇▇
▇▇
9-169-04-02
▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With
a
copy to:
▇▇▇▇
▇▇▇▇▇
Bank
of
America
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If
to
FMC:
▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
The
First
Marblehead Corporation
▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇)
▇▇▇-▇▇▇▇
E-Mail:
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
With
a
copy to:
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
E-Mail:
▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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
Commonwealth of Massachusetts (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. By
FMC.
FMC
or
the applicable Purchaser Trust, as the case may be, shall indemnify and hold
harmless Program Lender and any officer, director, employee or agent of Program
Lender (herein, collectively referred to as “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 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 any termination
of this Agreement.
8.03. Indemnity
Procedures.
(a) In
the
event that any claim or demand for which an indemnifying party would be liable
to an Indemnified Person hereunder is asserted against or sought to be collected
from an Indemnified Person by a third party (an “Action”), the Indemnified
Person shall promptly notify the indemnifying party of such Action, specifying
the nature of such claim or demand and the amount or the estimated amount
thereof to the extent feasible (which estimate the parties agree shall not
be
conclusive of the final amount of such claims and demand) (the “Claim Notice”).
The failure to provide the Claim Notice to the indemnifying party promptly
will
not relieve the indemnifying party of any liability it may have to the
Indemnified Person giving the Claim Notice, except to the extent that the
indemnifying party demonstrates that the defense of such action is actually
and
materially prejudiced by the indemnifying party’s failure to give such Claim
Notice promptly. The indemnifying party shall have ten (10) days from the
delivery of the Claim Notice (the “Notice Period”) to notify the Indemnified
Person: (1) whether or not the indemnifying party disputes liability to the
Indemnified Person hereunder with respect to such claim or demand; and (2)
notwithstanding any such dispute, whether or not the indemnifying party desires,
at its sole cost and expense, to defend the Indemnified Person against such
claim or demand in which case the indemnifying party shall assume all past
and
future responsibility for such action and shall reimburse the Indemnified Person
for all expenses in connection with the Action. Notwithstanding the assumption
by the indemnifying party of the defense of any Action, the Indemnified Person
shall be permitted to participate in such defense at its cost and expense.
If
the indemnifying person elects to defend the Indemnified Person, notice shall
be
given within the Notice Period, then the indemnifying party will have the right
and obligation to defend the Indemnified Person by appropriate proceedings,
which shall be followed to a final conclusion.
(b) If
the
indemnifying party elects not to defend the Indemnified Person against such
Action, whether by not giving the Indemnified Person timely notice as provided
above, or otherwise, then the Action may be defended by the Indemnified Person
at the indemnifying party’s cost and expense (without imposing any obligation on
any Indemnified Person to defend any such claim or demand), in which case it
may
defend such Action in such a manner as it may deem appropriate (including
settlement) and then that portion thereof as to which such defense is
unsuccessful, in each case, shall be conclusively deemed to be a liability
of
the indemnifying party hereunder; provided
that if
the indemnifying party shall have disputed its liability to the Indemnified
Person hereunder, then such determination or settlement shall not affect the
right of the indemnifying party to dispute the Indemnified Person’s claim for
indemnification.
(c) In
the
event an Indemnified Person should have a claim against the indemnifying party
hereunder that does not involve a claim or demand being asserted against or
sought to be collected from it by a third party, the Indemnified Person shall
promptly send a Claim Notice with respect to such claim to the indemnifying
party. If the indemnifying party disputes its liability with respect to such
claim or demand, the Indemnified Person shall have the right to pursue all
of
its legal and equitable remedies against the indemnifying party for indemnity
hereunder.
8.04. Payment. Upon
the
determination of the liability under Section 8.03 hereof, the indemnifying
party
shall pay to the Indemnified Person within ten (10) days after such
determination, the amount of any claim for indemnification made hereunder,
subject to the limitations set forth herein. Upon payment in full of any claim,
either by set off or otherwise, the entity making payment shall be subrogated
to
the rights of the Indemnified Person against any Person, with respect to the
subject matter of such claim.
IX. Dispute
Resolution
9.01. Informal
Dispute Resolution.
Any
controversy or claim between the parties arising from or in connection with
this
Agreement or the relationship of the parties under this Agreement whether based
on contract, tort, common law, equity, statute, regulation, order or otherwise,
and whether arising before or after the termination of this Agreement
("Dispute") shall be resolved as follows:
(a) Upon
written request of either party, the parties will each appoint a designated
representative whose task it will be to meet for the purpose of endeavoring
to
resolve such Dispute.
(b) The
designated representatives shall meet as often as the parties reasonably deem
necessary to discuss the problem in an effort to resolve the Dispute without
the
necessity of any formal proceeding.
(c) Arbitration
proceedings for the resolution of a Dispute under Section 9.02 may not be
commenced until the earlier to occur of the following:
(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.
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
and Termination.
This
Agreement shall remain in full force and effect until expiration or termination
of the Umbrella Agreement. After termination, certain obligations will continue
as provided in Article VI of this Agreement and Section 2(b) of the Umbrella
Agreement.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above written.
|
WITNESS:
|
BANK
OF AMERICA, N.A.:
|
||||
|
|
By:
/s/
▇▇▇▇▇ ▇▇▇▇▇▇
|
||||
|
Print
Name:__________________
|
Print
Name:
|
▇▇▇▇▇
▇▇▇▇▇▇
|
|||
|
Title:
|
Senior
Vice President
|
||||
|
THE
FIRST MARBLEHEAD CORPORATION
|
|||||
|
|
By:
/s/
▇▇▇▇▇ ▇▇▇▇▇
|
||||
|
Print
Name:__________________
|
Print
Name:
|
▇▇▇▇▇
▇▇▇▇▇
|
|||
|
Title:
|
President
|
||||
Index
to Exhibits
|
Exhibit
A
|
Pool
Supplement
|
|
Exhibit
B
|
Indemnification
Agreement
|
|
Exhibit
C
|
Co-Lender
Indemnification Agreement
|
|
Exhibit
D
|
Certificate
of Bank of America, N.A.
|
EXHIBIT
A
TO NOTE PURCHASE AGREEMENT
[Form
of
Pool Supplement]
This
Pool
Supplement ("Supplement") is entered into pursuant to and forms a part of that
certain Note Purchase Agreement (the "Agreement") dated as of __________, 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 Bank of America Direct
to
Consumer Conforming Loan described in the attached Schedule 2 (“the Transferred
Bank of America Direct to Consumer Loans”) along with all of Program Lender’s
rights under the Guaranty Agreement relating to the Transferred Bank of America
Direct to Consumer Loans. Program Lender hereby transfers and delivers to the
Purchaser Trust each Bank of America Direct to Consumer Note evidencing such
Bank of America Direct to Consumer Conforming Loan and all Origination Records
relating thereto, in accordance with the terms of the Agreement. Purchaser
Trust
hereby purchases said Bank of America Direct to Consumer Notes on said terms
and
conditions.
Article
2: Price.
The
amounts paid pursuant to this Supplement is the Minimum
Purchase Price, as that term is defined in Section 2.04 of the Agreement.
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
with respect to the Agreement and to this Supplement.
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 Transferred
Bank of America Direct to Consumer 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 Transferred Bank of America Direct to
Consumer 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 Transferred Bank of America Direct
to
Consumer Loans included in the Pool.
Article
5: Assignment of Origination, Guaranty and Servicing Rights.
OPTION
ONE - Purchaser Assures Program Lender’s Servicing Agreement Program Lender
hereby assigns and sets over to Purchaser Trust so much of its rights under
the
Guaranty Agreement, the Loan Origination Agreement, and the Servicing Agreement
as relate to the Transferred Bank of America Direct to Consumer 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.
Article
6: Owner Trustee.
It
is
expressly understood and agreed by the parties hereto that (a) this Pool
Supplement is executed and delivered by _______________________________ (the
“Owner Trustee”) not individually or personally, but solely as owner trustee of
the Purchaser Trust under the Trust Agreement dated as of ________________,
with
________________, 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 Purchaser Trust are made and intended not as
personal representations, undertakings and agreements by the Owner Trustee,
but
are made and intended for the purpose for binding only the Purchaser Trust,
(c)
nothing herein contained shall be construed as creating any personal or
individual liability on the Owner Trustee, 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 Purchaser Trust or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Purchaser Trust
under this Supplement or any other documents related to the Bank of America
Direct to Consumer Notes.
IN
WITNESS WHEREOF, the parties have caused this Supplement to be executed as
of
the date set forth above.
|
THE
FIRST MARBLEHEAD CORPORATION
|
|
|
By:
|
|
|
Name:
|
|
|
Title:
|
|
|
PURCHASER
NAME:
|
|
|
By:
|
OWNER
TRUSTEE
|
|
By:
|
|
|
Print
Name:
|
|
|
Title:
|
|
|
BANK
OF AMERICA, N.A.:
|
|
|
By:
|
|
|
Print
Name:
|
|
|
Title:
|
|
Schedule
1 to the Pool Supplement (Sample
Note
Purchase Agreement for _________ Bank Dated ________
The
National Collegiate Master Student Loan Trust ___
Settlement
Schedule ( ________ Bank) - _________, 2003 Sale (Final
Reconciliation)
All
numbers are final and are based on _________, 2003 PHEAA Servicing
Tapes
Category
1: Undergraduate Loans
|
Number
Of Loans
|
Total
Outstanding Principal
|
Total
Outstanding Interest
|
▇▇▇▇
Origination Fees
|
Marketing
Fee/ Premium
|
Net
Principal
|
Marketing
Fee as % of Net Loan
|
EXHIBIT
B
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. ("Program Lender"), 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 Bank
of
America are sometimes collectively referred to as the "Lenders" and are each
sometimes severally referred to as a "Lender").
RECITALS
|
A.
|
The
Lenders are participants in certain private education loan programs
to pay
the costs of attending institutions of education which are themselves
participants in the ▇▇▇▇ Program (the "Participating Institutions")
whereunder such loans (the "▇▇▇▇ Loans") are guaranteed by The Education
Resources Institute, Inc. (“▇▇▇▇”) (collectively, the "▇▇▇▇
Programs").
|
|
B.
|
Each
of the 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
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 Lender to consummate
the
sale of ▇▇▇▇ Loans originated by them to the Purchaser Trust, all
Lenders
whose ▇▇▇▇ Loans will be included in the Subject Securitization
Transaction are required to execute and deliver to the other Lenders
requesting same 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
Lender represents and warrants to each other Lender requesting this Agreement,
as to itself, that as of the date hereof:
(a) It
is 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) At
the
time of origination, each ▇▇▇▇ Loan included in the Subject Securitization
Transaction originated by it and any accompanying notices and disclosures
conforms in all material respects to all applicable state and federal laws,
rules and regulations and the origination thereof was conducted in material
compliance with all applicable state and federal laws concerning the actions
of
the Lender, including, without limitation, the Equal Credit Opportunity
Act;
(e) At
the
time of origination, 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 Lender is a party;
and
(f) The
respective 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 against the Lender with regard to its ▇▇▇▇ Loans
in
which an adverse result would have a material adverse effect upon the validity
or enforceability of its ▇▇▇▇ Loans.
ARTICLE
2
INDEMNIFICATION
2.01. Cross-Indemnification.
Each Lender (an “Indemnifying Party”) hereby agrees to indemnify, hold harmless
and defend each other and such other 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 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 material inaccuracy or incompleteness of any representation or warranty
made
by the Indemnifying Lender hereunder or the material inaccuracy or
incompleteness of any representation or warranty made by the Indemnifying
Lender
to any Participating Institution in connection with the ▇▇▇▇ Program or the
Subject Securitization Transaction. The indemnity provided by each Indemnifying
Lender hereunder is in addition to any liability which such 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 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, within a
reasonable period of time after 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.
2.03.
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 of such proceeding.
ARTICLE
3
MISCELLANEOUS
3.01.
Notices. All demands, notices and communications upon or to any Lender under
this Agreement shall be in writing, personally delivered or mailed by certified
mail, return receipt requested, to such Lender at its address set forth below
or
to such other address as may hereafter be furnished by such Lender to the
other
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
Bank of America, N.A.:
▇▇▇▇▇
▇▇▇▇▇▇
Bank
of
America
National
Student Lending Group
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇
▇▇▇▇,
▇▇
▇▇▇▇▇
With
a
copy to:
▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
3.02.
Successors and Assigns. This Agreement is binding on the Lenders and their
respective successors and assigns. No Lender shall assign its rights or
obligations under this Agreement without the prior written consent of all
other
Lender hereunder, other than to its wholly owned affiliate, and any assignment
in violation of this prohibition shall be automatically deemed null and
void.
3.03.
Arbitration. The parties acknowledge that this Agreement evidences a transaction
involving interstate commerce. Any controversy or claim arising out of or
relating to this Agreement, or the breach of the same, shall be settled through
consultation and negotiation in good faith and a spirit of mutual cooperation
for up to fifteen (15) days commencing on the date when one party gives written
notice to the other party of any controversy or claim. However, if those
attempts fail, the parties agree that any misunderstandings or disputes arising
from this Agreement shall be decided by binding arbitration which shall be
conducted, upon request by either party, in New York, New York or such other
mutually agreed upon location, before one (1) arbitrator designated by the
American Arbitration Association (the “AAA”), in accordance with the terms of
the Commercial Arbitration Rules of the AAA, and, to the maximum extent
applicable, the United States Arbitration Act (Title 9 of the United States
Code). Notwithstanding anything herein to the contrary, either party may
proceed
to a court of competent jurisdiction to obtain equitable relief at any
time.
3.04. 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.
3.05. 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.
3.06. 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.
3.07. 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.
3.08. 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.
3.09. 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.
3.10. Governing
Law. This Agreement shall be governed by and construed in accordance with
the
internal laws of the State of New York without regard to its conflict of
laws
doctrine.
3.11. 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.
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CO-LENDER(S)
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Name:
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BANK
OF AMERICA, N.A.
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Name:
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EXHIBIT
C
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.
(“B of A”).
WITNESSETH:
WHEREAS,
pursuant to that certain Note Purchase Agreement dated April 30, 2001 (the
“Note
Purchase Agreement”) between First Marblehead, as purchaser, and
B of A, B of A will sell to the Trust and the Trust will
purchase from B of A certain Bank of America GATE Conforming Loans
(“Contracts”);
WHEREAS,
contemporaneously with the transactions contemplated by the Note Purchase
Agreement, the Trust will sell securities backed by a pool consisting of
the
Contracts (the “Securitization”);
WHEREAS,
First Marblehead assists the Trust in the Securitization process;
and
WHEREAS,
the parties wish to set forth their agreements with respect to certain aspects
of the Securitization, on the terms and subject to the conditions set forth
in
this Agreement;
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants set
forth
herein, the parties hereto agree as follows:
ARTICLE
1
DEFINITIONS
SECTION
1.01. Definitions.
Capitalized terms used herein without definition have the meanings assigned
thereto in the Note Purchase Agreement. Whenever used in this Agreement,
the
following words and phrases shall have the following meanings:
“Agreement”
means this Indemnification Agreement, as it may be amended from time to
time.
“Commission”
means the Securities and Exchange Commission.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended from time to
time.
“B of A
Information” means solely the information set forth [to be
determined]
“Indemnified
Party” has the meaning set forth in Section 4.03.
“Indemnifying
Party” has the meaning set forth in Section 4.03.
“Offering
Materials” means: (a) any private placement memoranda and any other offering
material given in connection with a sale or offer to sell, whether or not
such
sale or offer to sell was required to be registered under the Securities
Act,
and (b) any Registration Statement filed with the Commission pursuant to
which
any Contract or interest therein is sold or offered for sale, including the
Prospectus relating thereto and any preliminary prospectuses and amendments
and
supplements to such Registration Statement, Prospectus and preliminary
prospectus, including post-effective amendments and all exhibits and all
material incorporated by reference therein.
“Prospectus”
has the meaning given to such term in the Securities Act.
“Registration
Statement” has the meaning given to such term in the Securities
Act.
“Securities”
means securities backed by the pool of Contracts that are to be issued by
the
Trust.
“Securities
Act” means the Securities Act of 1933, as amended from time to
time.
“Transaction
Documents” means the Note Purchase Agreement and the Pool Supplement issued
pursuant thereto.
ARTICLE
2
REPRESENTATIONS
AND WARRANTIES
Each
of
the Trust and First Marblehead jointly and severally represents and warrants
to
B of A, and B of A hereby represents and warrants to the
Trust and First Marblehead, as of the date hereof and the Purchase Date,
as
follows:
(1) It
is a
corporation, business trust, or, in the case of B of A, a national
banking association, duly organized, validly existing and in good standing
under
the laws of the jurisdiction of its organization, and it has the corporate
power
to own its assets and to transact the respective business in which it is
currently engaged. It is duly qualified to do business as a foreign corporation
or other entity and is in good standing in each jurisdiction in which its
type
of organization and the character of the business transacted by it or properties
owned or leased by it requires such qualification and in which the failure
to so
qualify would have a material adverse effect on its business, properties,
assets, or condition (financial or other);
(2) It
has
obtained all necessary licenses and approvals, in all jurisdictions in which
the
ownership or lease of property or the conduct of its business and its type
of
organization requires such licenses or approvals unless the failure to obtain
any such licenses or approvals would have no material adverse effect on the
ability of such party to fulfill its obligations hereunder;
(3) It
has
the power and authority to execute and deliver this Agreement and to carry
out
the terms hereof; and the execution, delivery and performance of this Agreement
by it has been duly authorized by all necessary action;
(4) This
Agreement constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms except as enforcement of such terms
may
be limited by bankruptcy, insolvency or similar laws affecting the enforcement
of creditors’ rights generally and by the availability of equitable remedies,
and except as enforcement of any terms relating to indemnification may be
limited by applicable securities law;
(5) For
B of A and the Trust only, the consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof do
not
conflict with, result in any breach of any of the terms and provisions of,
or
constitute (with or without notice or lapse of time) a default under, its
governing documents, or any material indenture, agreement or other instrument
to
which it is a party or by which it is bound; or result in the creation or
imposition of any lien upon any of its properties pursuant to the terms of
any
such indenture, agreement or other instrument; or violate any law or any
order,
rule or regulation applicable to it of any court or of any federal or state
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over it or its properties; and
(6) There
are
no proceedings or investigations pending, or threatened, before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over it or its properties: (1) asserting the invalidity
of
this Agreement (2) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement, or (3) seeking any determination
or
ruling that is likely to materially and adversely affect the performance
by it
of its obligations hereunder or the validity and enforceability of this
Agreement.
ARTICLE
3
CONDITIONS
TO CLOSING
[Intentionally
Omitted]
ARTICLE
4
INDEMNIFICATION
SECTION
4.01. Indemnification
by First Marblehead and the Trust.
The
Trust and First Marblehead jointly and severally agree to indemnify, hold
harmless and defend B of A, its officers, directors, employees,
attorneys, agents and each Person who controls B of A within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, as follows:
(a) against
any and all loss, liability, claim, damage and expense whatsoever arising
out of
any untrue statement or alleged untrue statement of a material fact contained
in
any Offering Materials under the heading, [to be determined] [“Method of
Distribution”] or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading;
(b) against
any and all loss, liability, claim, damage and expense whatsoever to the
extent
of the aggregate amount paid in settlement of any litigation, or investigation
or proceeding by any governmental agency or body, commenced or threatened,
or of
any claim whatsoever, based upon any such untrue statement or omission, or
any
such inaccuracy, if such settlement is effected with the written consent
of the
Trust and First Marblehead; and
(c) against
any and all expense whatsoever (including the fees and disbursements of counsel
chosen by the B of A) reasonably incurred in investigating, preparing
or defending against any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever,
based upon any such untrue statement or omission, or any such inaccuracy,
to the
extent that any such expense is not paid under (a) or (b) above.
This
indemnity agreement will be in addition to any liability which the Trust
and
First Marblehead may otherwise have.
SECTION
4.02. Indemnification
by B of A.
B of A agrees to indemnify and hold harmless the Trust and First
Marblehead and each person, if any, who controls NCT or First Marblehead
within
the meaning of Section 15 of the Securities Act of 1933, as amended (the
“1993
Act”), as follows:
(a) against
any and all loss, liability, claim, damage and expense whatsoever arising
out of
any untrue statement or alleged untrue statement of a material fact contained
in
the B of A Information (or any amendment or supplement thereto
approved in writing by B of A) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading;
(b) against
any and all loss, liability, claim, damage and expense whatsoever to the
extent
of the aggregate amount paid in settlement of any litigation, or investigation
or proceeding by any governmental agency or body, commenced or threatened,
or of
any claim whatsoever, based upon any such untrue statement or omission, or
any
such inaccuracy, if such settlement is effected with the written consent
of
B of A; and
(c) against
any and all expense whatsoever (including the fees and disbursements of counsel
chosen by the Trust and First Marblehead) reasonably incurred in investigating,
preparing or defending against any litigation, or investigation or proceeding
by
any governmental agency or body, commenced or threatened, or any claim
whatsoever, based upon any such untrue statement or omission, or any such
inaccuracy, to the extent that any such expense is not paid under (a) or
(b)
above.
This
indemnity agreement will be in addition to any liability which B of A
may otherwise have.
SECTION
4.03. Procedure
for Indemnification.
In case
any proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant
to
Section 4.01 or 4.02, such Person (hereinafter called the “Indemnified Party”)
shall promptly notify the person against whom such indemnity may be sought
(hereinafter called the “Indemnifying Party”) in writing. The Indemnifying
Party, upon request of the Indemnified Party, shall acknowledge its obligation,
subject to the terms hereof, to indemnify the Indemnified Party in writing
and
shall retain counsel reasonably satisfactory to the Indemnified Party to
represent the Indemnified Party and any others the Indemnifying Party may
designate in such proceeding and the Indemnifying Party shall pay the fees
and
disbursements of such counsel related to such proceeding, as and when such
fees
and disbursements are billed by such counsel. If the Indemnifying Party fails
to
acknowledge its obligation, subject to the terms hereof, to indemnify in
writing
or fails to retain such counsel within a reasonable period of time after
such
notice was given, then the Indemnified Party shall have the right to retain
its
own counsel, and the fees and expenses of such counsel shall be at the expense
of the Indemnifying Party. In any such proceeding, any Indemnified Party
shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Party unless (a) the
preceding sentence is applicable, (b) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (c)
the
named parties to any such proceeding (including any impleaded parties) include
both the Indemnifying Party and the Indemnified Party and representation
of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the Indemnifying
Party
shall not, in connection with any proceeding or related proceedings in the
same
jurisdiction, be liable for the reasonable fees and expenses of more than
one
separate firm (in addition to any local counsel) for all such Indemnified
Parties, and that all such fees and expenses shall be reimbursed as they
are
incurred.
SECTION
4.04. Settlements
of Proceedings.
The
Indemnifying Party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or
if
there be a final judgment for the plaintiff, the Indemnifying Party agrees
to
indemnify the Indemnified Party from and against any loss or liability by
reason
of such settlement or judgment. No Indemnifying Party, without the prior
written
consent of the Indemnified Party, shall effect any settlement of any pending
or
threatened proceeding in respect of which any Indemnified Party is or could
have
been a party and indemnity could have been sought hereunder by such Indemnified
Party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability on claims that are the subject matter
of
such proceeding.
SECTION
4.05. Contribution.
In
order to provide for just and equitable contribution in circumstances in
which
the indemnification provided for in Sections 4.01 and 4.02 hereof is for
any
reason held to be unenforceable by the Indemnified Parties although applicable
in accordance with its terms, B of A, on the one hand, and the Trust
and First Marblehead, on the other, shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature contemplated in Sections
4.01 and 4.02 that are incurred by B of A, the Trust and First
Marblehead in such proportions that (i) the Trust and First Marblehead shall
be
responsible for that portion represented by the percentage that the gross
fee
earnings of First Marblehead in the Securitization bear to the sum of such
fees
and the purchase price paid by the Trust for the Contracts, and (ii)
B of A shall be responsible for the balance; provided,
however,
that no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was
not guilty of such fraudulent misrepresentation.
The
Trust, First Marblehead and B of A agree that it would not be just and
equitable if contribution pursuant to this Section 4.05 were determined by
pro
rata
allocation or by any other method of allocation that does not take account
of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an Indemnified Party pursuant to Section 4.01
or
4.02 shall be deemed to include, subject to the limitations set forth above,
any
legal or other expense reasonably incurred by such Indemnified Party in
connection with investigating or defending any such action or claim. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of
the Securities Act) shall be entitled to contribution from any person who
was
not guilty of such fraudulent misrepresentation.
ARTICLE
5
MISCELLANEOUS
SECTION
5.01. Notices.
All
demands, notices and communications upon or to B of A, the Trust and
First Marblehead under this Agreement shall be in writing, personally delivered
or mailed by certified mail, return receipt requested, and shall be deemed
to
have been duly given upon receipt (a) The First Marblehead Corporation, ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; (b) [ADDRESS FOR PURCHASER TRUST], (c)
B of
A ____________________
___________________________________,
or such other address as may hereafter be furnished to the other parties
in
writing.
SECTION
5.02. Successors
and Assigns.
This
Agreement is binding on B of A’s, the Trust’s and First Marblehead’s
successors and assignees. Each party hereto agrees that it will not assign
this
Agreement without the other parties’ prior written consent.
SECTION
5.03. Arbitration.
(a) Any
controversy or claim between or among the parties arising out of or relating
to
this Agreement or any agreements or instruments relating hereto or delivered
in
connection herewith and any claim based on or arising from an alleged tort,
shall at the request of any party, be determined by arbitration. The arbitration
shall be conducted in accordance with the United States Arbitration Act (Title
9, U.S. Code), notwithstanding any choice of law provision in this Agreement,
and under the Commercial Rules of the American Arbitration Association (“AAA”).
The arbitrator(s) shall give effect to statutes of limitation in determining
any
claim. Any controversy concerning whether an issue is arbitrable shall be
determined by the arbitrator(s). Judgment upon the arbitration award may
be
entered in any court having jurisdiction. The institution and maintenance
of an
action for judicial relief or pursuit of a provisional or ancillary remedy
shall
not constitute a waiver of the right of any party, including the plaintiff,
to
submit the controversy or claim to arbitration if any other party contests
such
action for judicial relief.
(b) No
provision of this Section 5.03 shall limit the right of any party to this
Agreement to exercise self-help remedies such a setoff, foreclosure against
or
sale of any real or personal property collateral or security, or obtaining
provisional or ancillary remedies from a court of competent jurisdiction
before,
after, or during the pendency of any arbitration or other proceeding. The
exercise of a remedy does not waive the right of either party to resort to
arbitration or reference.
SECTION
5.04. Costs
and Attorneys’ Fees.
In the
event of a lawsuit or arbitration proceeding arising out of or relating to
this
Agreement, the prevailing party is entitled to recover costs and reasonable
attorneys’ fees incurred in connection with the lawsuit or arbitration
proceeding, as determined by the court or arbitrator.
SECTION
5.05. Severability.
Any
provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision
in any
other jurisdiction.
SECTION
5.06. Counterparts.
This
Agreement may be executed by the parties hereto in separate counterparts,
each
of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same
instrument.
SECTION
5.07. Headings.
The
headings of the various Articles and Sections herein are for convenience
of
reference only and shall not define or limit any of the terms or provisions
hereof.
SECTION
5.08. Limitation
of Recourse to the Trust.
Notwithstanding any provision of this Agreement to the contrary, all obligations
of the Trust under this Agreement shall be payable only from the rights of
the
Trust in the Contracts. No recourse shall be had against the general funds
of
the Trust, nor against any income or proceeds of the Contracts not available,
in
accordance with the Trust Instrument, for distribution. To the extent that
the
interests of the Trustee and the bond holders under the Trust Instrument
are
fully satisfied, or if proceeds of the Contracts are otherwise distributed
to
the owners of the Trust free and clear of claims of said Trustee (as defined
in
the Trust Instrument), claims against the Trust may be satisfied from the
Contracts or the distributable proceeds thereof.
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BANK
OF AMERICA NA
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By:
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Name:
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Title:
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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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Name:
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Title:
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THE
FIRST MARBLEHEAD CORPORATION
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By:
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Name:
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Title:
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EXHIBIT
D
CERTIFICATE
OF
BANK
OF AMERICA, N.A.
This
Certificate is being delivered to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇ (“TPW”)
for reliance hereon by TPW in rendering its opinion letter to which this
Certificate is annexed, dated the date hereof (the “Opinion
Letter”).
The undersigned understands, acknowledges and agrees that the facts set forth
in
the Opinion Letter have been relied upon by TPW in rendering the Opinion
Letter
and by each addressee thereof and other parties to the transactions to which
the
Opinion Letter relates in the consummation of those transactions. Capitalized
terms not defined herein have the meanings assigned to them in the Opinion
Letter and the Agreements. The undersigned hereby represents, warrants,
covenants and certifies, after reasonable investigation and review and
consultation as appropriate with its attorneys and independent accountants,
as
follows:
1. The
transfers pursuant to the Agreements of the Student Loans by the Bank to
the
Trust were intended to constitute sales. Those transfers will be reported
as
such in the general ledgers and other accounting records, and in any separate
unconsolidated financial statements of the Bank. Those
transfers (i) were intended to constitute a sale of the Student Loans and
will
be reported as such under United States generally accepted accounting principles
(“GAAP”)
and for United States federal income tax purposes such that the Student Loans
will no longer be included in any consolidated financial statements in which
the
financial statements of the Bank are included and (ii) meet all of the
requirements for such accounting and tax treatment, except that the undersigned
makes no representation, warranty, covenant or certification herein as to
whether any requirement under GAAP that the Student Loans have been legally
isolated from the Bank has been satisfied, which requirement is the subject
of
the Opinion Letter.
2. Except
as described in the Agreements and the Opinion Letter, neither the Bank nor
any
affiliate thereof now has or intends to acquire at any time any other direct
or
indirect ownership or other economic interest in, or other right or obligation
with respect to, any Student Loan or security backed thereby.
3. The
Agreements have been approved by the Board of Directors of the Bank acting
through its Finance Committee pursuant to resolutions dated ___________ and
a
written consent of the Finance Committee effective as of _____________, which
approval is reflected in the minutes of the Board of Directors of the Bank
and
its Finance Committee, and copies thereof will be maintained continuously
from
the time of execution in the official records of the Bank.
4. The
factual statements in the Opinion Letter are accurate, including with limitation
the following:
(i) Pursuant
to [the 2000 Student Loan Purchase Agreement,] [the 2000 Pool Supplement,]
[the
2001 Student Loan Purchase Agreement] [and the 2001 Pool Supplement,] the
Bank
sold 100% of its ownership interest in the Student Loans to the Trust for
consideration consisting only of cash. Simultaneously with the transfer of
ownership of the Student Loans to the Trust, pursuant to the Indenture the
Trust
assigned and granted a security interest in the Student Loans and certain
other
property to the Trustee as secured party on behalf of the holders of the
Notes
and the Bond Insurer. Except as described in the Agreements, the Bank has
not
acquired, and does not intend to acquire at any time, directly or indirectly
any
residual, equity or other ownership or economic interest, or any other right
or
obligation that could be determined to constitute recourse with respect to
any
Student Loan or Note.
(ii) The
Notes
are also entitled to the benefits of the Note Guaranty Insurance Policy with
respect to amounts required to be available for distribution thereon. Neither
the Bank or the Trust nor any affiliate of either has any liability to the
Bond
Insurer except for payment of the premium therefor, the Indemnity Agreement
and
for the usual and customary representations and warranties.
The
undersigned has executed this Certificate as of the date of the Opinion
Letter.
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BANK
OF AMERICA, N.A.
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By:
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Name:
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▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
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Title:
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Senior
Vice President
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