EX-99.2
3
p07-0432ex99_2.htm
AMENDED AND RESTATED
NOTE PURCHASE AGREEMENT
|
CONFIDENTIAL
MATERIALS OMITTED AND FILED
SEPARATELY WITH THE
SECURITIES
AND EXCHANGE COMMISSION.
ASTERISKS DENOTE
OMISSIONS.
|
EXECUTION
COPY
Exhibit
99.2
NOTE
PURCHASE AGREEMENT
BANK
OF
AMERICA DTC
PROGRAM
BANK
OF AMERICA, N.A.
This
Note Purchase Agreement (“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 amended and restated in full as of April 1, 2006
(“Effective
Date”);
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 DTC
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 DTC Loans (as defined in
Section 1), Program Lender has agreed to sell, from time to time, pools
containing Bank of America DTC Loans originated by Program Lender to FMC
or a
Purchaser Trust (as defined in Section 1); and
WHEREAS,
the Bank of America DTC 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. (“▇▇▇▇”).
WHEREAS,
the Program Lender and FMC are parties to a
Note Purchase Agreement dated
as of
June 30, 2003, as amended to date (the “Original
Note Purchase Agreement”).
The parties desire to amend, restate and replace in full the Original
Note
Purchase Agreement with this Agreement.
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 that, 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 DTC 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, (c) covered by and subject
to all the benefits of the Guaranty Agreement, and (d) marketed with the
Education Maximizer ▇▇▇▇.
“Bank
of America DTC Loan Pool”
or “Pool”
shall mean and refer to a group of Bank of America DTC Notes purchased and
pledged or intended to be purchased and pledged as collateral in a particular
Securitization Transaction.
“Bank
of America DTC Notes”
shall mean notes or other forms of consumer debt instruments, evidencing
Bank of
America DTC Loans.
“Bank
of America DTC Program”
shall mean the Bank of America DTC 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 in the State of
North Carolina 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.
“Depositor”
shall mean the depositor, as such term is defined in Regulation AB, with
respect
to a Securitization Transaction.
“Education
Maximizer ▇▇▇▇”
shall mean the Education Maximizer ▇▇▇▇ owned by the Program Lender and licensed
to FMC under the Education Maximizer License Agreement.
“Education
Maximizer License Agreement”
shall mean the license agreement between FMC and Program Lender as defined
in
the Umbrella Agreement.
“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 DTC Loan.
“Guaranty
Agreement”
means the Guaranty Agreement between Program Lender and ▇▇▇▇ dated June 30,
2003, as it may be amended from time to time.
“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 the Loan Origination Agreement, dated as of June 20, 2003, with
respect to origination of Bank of America DTC Loans, as amended from time
to
time.
“Origination
Records”
means and refers to the original Bank of America DTC 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 DTC Loans adequately and accurately.
“Participating
Institution”
means an educational institution approved by ▇▇▇▇ for receipt of Bank of
America
DTC 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 Appendix E to the Program Manual (as defined in the Umbrella
Agreement.
“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 DTC Loan during the Right of
First
Refusal Period.
“Purchase
Period”
means, with respect to any particular Bank of America DTC 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; provided, however, for loans in pricing tiers [**] on
Schedule 3.3 to the Guaranty Agreement, Purchase Period means, with respect
to
any such loan, the period beginning on the first date such loan becomes a
Seasoned Loan and ending [**] days thereafter.
“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 DTC 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.
“Regulation
AB”
means Subpart 229.1100—Asset Backed Securities (Regulation AB), 17 C.F.R.
Sections 229.1100-229.1123, as such may be amended form time to time, and
subject to such clarification and interpretation as have been provided by
the
SEC in the adopting release (Asset-Backed Securities, Securities Act Release
No
33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005)) or by the staff of the
SEC,
or as may be provided by the SEC or its staff from time to time.
“Right
of First Refusal Period”
means for a Bank of America DTC 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 DTC Loan, provided that no such notice
may
be given until after expiration [**].
“Seasoned
Loan”
means a Bank of America DTC Loan as of fifteen (15) days after completion
of all
scheduled disbursements on the Bank of America DTC 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
(30) 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 DTC Loans not yet purchased
by
▇▇▇▇.
“SEC”
shall mean the Securities and Exchange Commission.
“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 DTC Loans in accordance
with the terms hereof and of the Guaranty Agreement.
“Servicing
Agreement”
refers to: (a) the Servicing Agreement entered into between Servicer and
Program
Lender with respect to servicing of Bank of America DTC 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 DTC 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 DTC 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 plus the total principal amount of all BAGEL
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 DTC Loans.
“Umbrella
Agreement”
shall mean that certain agreement of same name between Program Lender and
FMC of
even date.
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 in accordance with Section 6 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 [**] for any loan in the Pool (i.e.,
at
least once every [**]). FMC shall have the sole and exclusive right to purchase
such Seasoned Loans [**], which right may be assigned to one or more Purchaser
Trusts. FMC may reschedule the Purchase Date without penalty of any kind,
provided that the Purchase Date occurs prior to [**] (i.e., before any Seasoned
Loan then held by Program Lender has been seasoned for [**]. The [**] with
respect to any Seasoned 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 Seasoned Loan originated by Program Lender [**]
with
respect to such Seasoned Loan. During [**], if Program Lender receives any
bona
fide third-party written offer to purchase such Seasoned Loan, and if Program
Lender desires to accept such offer, Program Lender shall, prior to accepting
any such offer, provide a certificate of an officer of Program Lender,
certifying to the terms of same to FMC, and FMC (or a Purchaser Trust) shall
have the sole and exclusive right to purchase such Seasoned Loan on the terms
of
such third-party offer [**] for such Seasoned Loan. If FMC (or a Purchaser
Trust) fails to exercise such right [**] with respect to such Seasoned Loan,
Program Lender shall within its sole discretion be entitled to: (i) sell
such
Seasoned Loan to any third party or to retain such Seasoned 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 ($[**]), FMC will [**] purchase or cause the purchase
of
the Seasoned Loans in a Securitization Transaction, but will have no obligation
to do so if FMC is unable to do so [**].
(2)
Greater than [**] Dollars ($[**]) 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 [**] 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 DTC 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
DTC
Loans, to occur [**] 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 Seasoned 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 Seasoned 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 (30)-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 Seasoned 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 DTC Loan has expired, Program
Lender
shall be under no further obligation to offer such Bank of America DTC 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 DTC 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.
(h) Notwithstanding
Section 2.02(b) and (e), with respect to Bank of America DTC Loans in pricing
tiers [**] in Schedule 3.3 to the Guaranty Agreement (“Lower
Tier Loans”),
FMC shall specify a Purchase Date to purchase or cause a Purchaser Trust
to
purchase within the Purchase Period each and every Seasoned Loan held by
Program
Lender that is a Lower Tier Loan. FMC shall have the sole and exclusive right
to
purchase all Lower Tier Loans during the Purchase Period, which right may
be
assigned to one or more Purchaser Trusts. FMC may reschedule the Purchase
Date
without penalty of any kind, provided that the Purchase Date occurs prior
to
[**] for each Seasoned Loan. The [**] with respect to any Lower Tier Loan
that
is a Seasoned Loan may be extended 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 Lower Tier Loan, except
as
set forth herein. In the event that FMC (or a Purchaser Trust) shall fail
to
purchase any Lower Tier Loan [**] then Program Lender shall be entitled to
sell
such Lower Tier Loan to any third party or to retain such Lower Tier Loans,
in
whole or in part, for its own account free and clear of any claim under this
Agreements. In the event that Program Lender elects to sell such Lower Tier
Loans to a third party, FMC shall pay to Program Lender the Lesser of (i)
[**]%
of the total principal amount of all Lower Tier Loans [**], or (ii) the amount
by which [**] such Lower Tier Loans exceeds the [**] for such Seasoned Loans
in
a sale to a third party. Such payments by FMC shall [**] with respect to
the
purchase of such Lower Tier Loans.
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 DTC 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 DTC Loans, in accordance
with the terms of the Bank of America DTC Notes [**]; plus
(c) All
fees paid by the Program Lender to ▇▇▇▇ with respect to such Bank of America
DTC
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, [**]% [**] and [**]%
[**];
3. With
respect to Undergraduate Creditworthy Loans, [**]% [**],[**]% [**]; [**]%
[**];
and [**]% [**]; and
4. With
respect to Graduate Creditworthy Loans, [**]% [**]; [**]% [**]; [**]% [**];
and
[**]% [**].
2.05 Volume
Incentive.
If, during any calendar year during the term of this Agreement, the total
principal amount [**] of Bank of America DTC Loans disbursed hereunder during
such year exceeds [**] dollars ($[**]), then the premiums to be paid pursuant
to
Section 2.04 of this Agreement with respect to “Undergraduate
Creditworthy Loans”
and “Graduate
Creditworthy Loans”
shall be increased by [**]%) (the “Additional
Volume Premium”).
Such increase in premium under Section 2.04 shall take effect with respect
to
loans made available for sale hereunder during the next calendar year. The
increased premium shall terminate at the end of any calendar year in which
the
total principal amount [**] of Bank of America DTC Loans disbursed hereunder
does not exceed [**] dollars ($[**]), but shall be reinstated if the above
requirements are met in any subsequent calendar year during the Term of this
Agreement. The Additional Volume premium shall not be cumulative. For example,
in the event that the total principal amount [**] of Bank of America DTC
Loans
disbursed hereunder during calendar years 2006 and 2007 exceeds [**] dollars
($[**]), there will be [**]%) increase for Seasoned Loans purchased in calendar
year 2007 and 2008 and no additional [**]%) increase for Seasoned Loans
purchased in calendar year 2008.
2.06 Transition.
The changes to the Original
Note Purchase Agreement effected hereby, including,
without limitation, the new prices and payments contained herein, shall be
effective with respect to Bank of America DTC Loans the applications for
which
were received by Program Lender (or its processing agent) on or after April
1,
2006.
III. Procedures
and Conditions for Transfer.
3.01. Conveyances
of Bank of America DTC 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)
|
The
Loan Origination Agreement and Servicing Agreement 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 Loan 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 DTC 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 such securities counsel 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 DTC 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 (1) 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 Loan 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 DTC Loan Notes.
By
their purchase of Seasoned Loans (and any related Bank of America DTC 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 DTC Notes. Notwithstanding
the
foregoing, FMC or the Purchaser Trust shall assume from Program Lender any
liability to repurchase from ▇▇▇▇ a defaulted Bank of America DTC Loan upon
cure
of the default, with respect to any such Bank of America DTC 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 DTC Loans and with
respect to loan servicing of Bank of America DTC Loans incurred prior to
purchase of a Bank of America DTC Loan hereunder. FMC shall be solely
responsible for and shall pay any obligations it has incurred in connection
with
the Bank of America DTC Loans and shall be solely responsible for arranging
and
paying all costs for servicing of the Bank of America DTC 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 thirty (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 DTC 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, duly and properly executed by each borrower, any student
maker named therein, and any cosigner thereunder, and 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,
to the extent of 100% of the principal thereof and accrued interest
thereon,
and (iii) is a Seasoned Loan,
fully disbursed with no further requirement for future advances
thereunder.
(e) Each
Bank of America DTC Loan
was originated in the United States of America, its territories, its possessions
or other areas subject to its jurisdiction by Program Lender, or its agents,
in
the ordinary course of its business and was made to a borrower with legal
capacity to execute and deliver the Bank of America DTC Note under applicable
law. Each Bank of America DTC Loan originated by Program Lender sold hereunder
and any accompanying notices and disclosures;
| |
(i)
|
Conforms
to all applicable state and federal laws, rules and
regulations,
and
|
| |
(ii)
|
Was
documented on forms set forth in the Program Guidelines,
including without limitation, promissory note forms
that
|
| |
(A)
|
Require
interest accrual (whether or not such interest is being paid currently
or
is being capitalized) and yield interest at the rate applicable
thereto;
and
|
| |
(B)
|
Provide
or, when the payment schedule with respect thereto is determined,
will
provide for payments on a periodic basis that fully amortize the
principal
amount of the Bank of America DTC Loan by its maturity, as such
maturity
may be modified in accordance with any applicable deferral or forbearance
periods granted in accordance with applicable laws and the Program
Guidelines; and
|
| |
(iii)
|
Contained
consumer loan terms and involved guaranty fees payable to ▇▇▇▇
in strict
conformity with the Program Guidelines.
|
The
origination,
servicing and collection (if any)
of each Bank of America DTC Loan was conducted in accordance with;
| |
(i)
|
The
Program Guidelines, including, without limitation, the requirements
therein that
|
| |
(A)
|
No
loan be originated for a dead borrower or a borrower involved in
a
bankruptcy proceeding.
|
| |
(B)
|
At
least one borrower for each loan must be a United States citizen/national
or a permanent resident alien of the United States,
and
|
| |
(C)
|
The
borrower must have attained the age of majority at the time of
the loan
application, and
|
| |
(ii)
|
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 DTC 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 DTC Loan originated by Program Lender sold to FMC or Purchaser
Trust is in compliance with any applicable usury laws at the time made and
as
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 DTC Loan sold under this
Agreement,
and no fraud, error, omission, misrepresentation, or similar occurrence with
respect to any Bank of America DTC Loan sold under this Agreement has taken
place on the part of any party involved in the origination of the Bank of
America DTC Loan (including, without limitation, fraud by the obligor under
the
Bank of America DTC Note.
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 DTC Loans originated by Program Lender
and
included in the Pool.
(h) Each
and every Bank of America DTC 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 DTC 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, (B)
the
borrower is not entitled to any refund, rebate, or reduction of any amounts
paid
or due except in accordance with Section 3.10 hereof and the cancellation
policy
in the Program Guidelines, and (C) such
Bank of America DTC Note has been serviced at all times in accordance with
the
Program Guidelines,
including, without limitation the forms of promissory note therein, and is
held
by the Servicer pursuant to the Servicing Agreement.
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 DTC Loan, any
obligor, and the sale of any Bank of America DTC 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 DTC Loan or Loans no later than such
sixtieth (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,
immediately deliver the Bank of America DTC 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;
provided, however, that if the breach of the representation and warranty
is due
to fraud by the obligor under the Bank
of America DTC Note,
(a) Program Lender shall repurchase the affected loan under this Section
5.04,
(b) Program Lender’s liability shall be limited to such repurchase (including
any marketing fee and loan premium previously paid to Program Lender for
the
affected loan) and (c) the provisions of Article VIII of this Agreement shall
be
inapplicable to the affected loan.
VI. [Intentionally
Left Blank]
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,
state-chartered bank
or other lender
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
DTC 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
DTC
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
Bank
of America, N.A.
Mail
Code: NC1-002-15-26
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
With
a copy to:
▇▇▇▇▇
▇. ▇▇▇▇▇▇
Assistant
General Counsel
Bank
of America, N.A.
▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇
▇▇.
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If
to FMC:
President
The
First Marblehead Corporation
34th
Floor
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
With
a copy to:
Legal
Department
The
First Marblehead Corporation
34th
Floor
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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
North Carolina (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 uncured breach of any
representation, warranty or covenant of Program Lender contained herein;
provided,
further
that the foregoing indemnification shall also apply to a breach of
representation, warranty or covenant that has been cured, to the extent that
the
cure in question did not reimburse the Indemnified Person for damages or
losses
incurred on account of such breach prior to the date of such cure.
8.02. By
FMC.
FMC
or the applicable Purchaser Trust, as the case may be, shall indemnify and
hold
harmless Program Lender,
its successors and permitted assigns
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 uncured
breach of any representation, warranty or covenant of FMC or the applicable
Purchaser Trust, as the case may be, contained herein; provided,
further
that the foregoing indemnification shall also apply to a breach of
representation, warranty or covenant that has been cured, to the extent that
the
cure in question did not reimburse the Indemnified Person for damages or
losses
incurred on account of such breach prior to the date of such cure.
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 within three (3) Business Days whose task it will be to meet
for
the purpose of endeavoring to resolve such Dispute.
(b) The
designated representatives shall meet beginning within five (5) Business
Days
after the last representative is appointed as described above and 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.
(c) Each
party shall bear its own costs and expenses and an equal share of the
arbitrator’s and administrative fees of arbitration.
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.
The provisions of the following sections shall survive in perpetuity any
termination of this
Agreement:
a. Section
2(b) of the Umbrella Agreement;
b. As
to any Bank of America DTC
Loan
purchased hereunder, until such loan is repaid in full, the representations
and
warranties contained in Article V of this Agreement; and
c. Article
VIII of this Agreement.
XI. Facsimile
Communications.
In
order to comply with federal regulations governing unsolicited facsimile
communications, senders of facsimile communications must obtain express written
permission from the recipients of such communications prior to initiating
such
communications. By executing this Agreement, each party hereby gives its
express
permission to the other parties to initiate facsimile communications, and
consents to receiving facsimile communications from the other parties. All
such
facsimile communications should be directed to the applicable facsimile number
for each party listed in the applicable Program Agreement, unless otherwise
instructed in writing by the recipient of the facsimile. This consent to
facsimile communications does not supersede any requirement in this Agreement
or
the Umbrella Agreement to deliver notices thereunder by means other than
facsimile.
XII. Compliance
With Regulation AB .
12.01
Information to be provided by Program Lender
In
connection with any Securitization Transaction, the Program Lender shall,
(i)
within five (5) Business Days following request by FMC or any Depositor,
provide
to FMC and such Depositor, in writing and in form and substance reasonably
satisfactory to FMC and such Depositor, the information and materials specified
in paragraph (a) of this Section, and (ii) as promptly as practicable following
notice to or discovery by the Program Lender, provide to FMC and any Depositor
(in writing and in form and substance reasonably satisfactory to FMC and
such
Depositor) the information specified in paragraph (b) of this
Section.
(a) If
so requested by FMC or any Depositor, the Program Lender shall provide such
information regarding (i) the Program Lender, as originator of the Bank of
America DTC Loans, as is requested for compliance with Items 1103(a)(l),
1110,
1117 and 1119 of Regulation AB. Such information shall include, at a
minimum:
(A)
The Program Lender’s form of organization;
(B)
A description of the Program Lender’s origination program and how long the
Program Lender has been engaged in originating student loans, which description
shall include a discussion of the Program Lender’s experience in originating
student loans of a similar type as the Bank of America DTC Loans, information
regarding the size and composition of the Program Lender’s origination portfolio
and information that may be material, in the good faith judgment of FMC or
any
Depositor, to an analysis of the performance of the Bank of America DTC Loans,
including the Program Lender’s credit-granting or underwriting criteria for
student loans of similar type(s) as the Bank of America DTC Loans and such
other
information as FMC or any Depositor may reasonably request for the purpose
of
compliance with Item 1110(b)(2) of Regulation AB;
(C)
A description of any material legal or governmental proceedings pending (or
known to be contemplated) against the Program Lender (including without
limitation any legal or governmental proceedings pending, or known to be
contemplated, material to the Bank of America DTC Loans or loans of a similar
type); and
(D) A
description of any affiliation or relationship between the Program Lender
and
any of the following parties to a Securitization Transaction, as such parties
are identified to the Program Lender or any Depositor in writing in advance
of
such Securitization Transaction: (1) the sponsor; (2) the Depositor; (3)
the
issuing entity; (4) any servicer; (5) any trustee; (6) any originator; (7)
any
significant obligor; (8) any enhancement or support provider; and (9) any
other
material transaction party.
(b)
For the purpose of satisfying reporting obligations under the Securities
Exchange Act of 1934, as amended, the Program Lender shall notify FMC or
any
Depositor in writing of (A) any material litigation or governmental proceedings
pending against the Program Lender (including without limitation any legal
or
governmental proceedings pending, or known to be contemplated, material to
the
Bank of America DTC Loans or loans of a similar type), (B) any affiliations
or
relationships that develop following the closing date of a Securitization
Transaction between the Program Lender and any of the parties specified in
(a)
(D) of this Section with respect to such Securitization Transaction, (C)
any
event of default under the terms of this Agreement, (D) any merger,
consolidation or sale of substantially all of the assets of the Program Lender,
and (ii) provide to FMC, and any Depositor a description of such proceedings,
affiliations or relationships.
[Balance
of this page intentionally left blank]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above written.
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WITNESS:
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BANK
OF AMERICA, N.A.:
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/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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By:
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/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Print
Name:
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▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
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Print
Name:
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▇▇▇▇▇
▇. ▇▇▇▇▇▇
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| | | |
Title:
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Senior
Vice President
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| | |
THE
FIRST MARBLEHEAD CORPORATION
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/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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By:
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/s/
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Print
Name:
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▇▇▇▇▇▇
▇. ▇▇▇▇▇
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Print
Name:
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▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
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Title:
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CEO
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Note
Purchase Agreement
Index
to Exhibits
|
Exhibit
A
|
Pool
Supplement
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| | |
|
Exhibit
B
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Indemnification
Agreement
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| | |
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Exhibit
C
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Co-Lender
Indemnification Agreement
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| | |
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Exhibit
D
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Certificate
of Bank of America, N.A.
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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 DTC
Loan
described in the attached Schedule 2 (“the Transferred Bank of America DTC
Loans”) along with all of Program Lender’s rights under the Guaranty Agreement
relating to the Transferred Bank of America DTC Loans. Program Lender hereby
transfers and delivers to the Purchaser Trust each Bank of America DTC Note
evidencing such Bank of America DTC Loan and all Origination Records relating
thereto, in accordance with the terms of the Agreement. Purchaser Trust hereby
purchases said Bank of America DTC Notes on said terms and
conditions.
Article
2: Price.
The
amount 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 DTC 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 DTC 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 DTC
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 DTC 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 DTC Notes.
IN
WITNESS WHEREOF, the parties have caused this Supplement to be executed as
of
the date set forth above.
|
THE
FIRST MARBLEHEAD CORPORATION
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By:
| |
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Name:
| |
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Title:
| |
| |
| |
|
PURCHASER
NAME:
By:
OWNER TRUSTEE
|
| | |
|
By:
| |
|
Print
Name:
| |
|
Title:
| |
| |
| |
|
BANK
OF AMERICA, N.A.:
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| | |
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By:
| |
|
Print
Name:
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|
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
|
Total
Outstanding
|
Total
Outstanding
|
▇▇▇▇
Origination
|
Marketing
Fee/
|
Net
|
Marketing
Fee
|
|
Of
Loans
|
Principal
|
Interest
|
Fees
|
Premium
|
Principal
|
as
% of Net Loan
|
EXECUTION
COPY
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.
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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").
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B.
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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").
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C.
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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.
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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 [ ] 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.:
______________
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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By:
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Print
Name:
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Title:
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BANK
OF AMERICA, N.A.
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By:
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Print
Name:
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Title:
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EXECUTION
COPY
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 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 arbitratable
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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Print
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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Print
Name:
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Title:
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THE
FIRST MARBLEHEAD CORPORATION
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By:
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Print
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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Title:
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Senior
Vice President
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