**Exhibit 10.1**

 

BANK OF AMERICA DIRECT TOCONSUMER LOAN PROGRAM: UMBRELLA AGREEMENT

 

THIS UMBRELLAAGREEMENT (the “*Agreement*”) isamended and restated in full as of the 1st day of April, 2006, byand between THE FIRST MARBLEHEAD CORPORATION, a Delaware corporation (“*FMC*”), and BANK OF AMERICA, N.A., anational banking association having its principal office located in the Stateof North Carolina (the “*Program Lender*”).

 

## RECITALS

##  

A.            FMC and theProgram Lender have established its Bank of America Direct to Consumer LoanProgram (the “*Bank of America DTC Program*”)to assist students and parents in financing education at private elementary andsecondary schools and at various institutions of higher education. Loans madeunder the Bank of America DTC Program are guaranteed by TERI pursuant to aGuaranty Agreement between Program Lender and The Education ResourcesInstitute, Inc., a Massachusetts non-profit corporation (“*TERI*”). Pursuant to the Bank of AmericaDTC Program, FMC promotes the expansion of student and parent loan lendingactivities by agreeing to purchase or cause to be formed one or more specialpurpose business trusts or other entities (each an “*SPE*”) to purchase promissory notes (the “*Notes*”) evidencing Bank of America DTCLoans (as defined below) following origination. The purchase price payable byeach SPE for a given pool of Bank of America DTC Loans is funded throughissuance and sale by the SPE of certificates or other evidences ofindebtedness, or by direct loans to the SPE, in either case the repayment ofwhich is supported or collateralized by the income stream from the Bank ofAmerica DTC Loans included in such pool (each such transaction, a “*Securitization Transaction*”).

 

B.            FMChas requested that the Program Lender originate and make available for purchaseby SPEs from time to time Bank of America DTC Loans and to serve as the solelending institution participating in the Bank of America DTC Program.

 

C.            TheProgram Lender and FMC are parties to a Bank of America Direct to Consumer LoanProgram Umbrella Agreement, dated as of June 30, 2003, as amended to date (the “*Original Umbrella Agreement*”). The partiesdesire to amend, restate and replace in full the Original Umbrella Agreementwith this Agreement to set forth the terms and conditions under which FMC andProgram Lender will participate in the Bank of America DTC Program.

 

NOW,THEREFORE, in consideration of the above Recitals and for other good andvaluable consideration, the receipt and adequacy of which are herebyacknowledged, the parties hereto hereby agree as follows:

 

AGREEMENT

 

1.            Definitions.For purposes of this Agreement, the following terms shall have the followingmeanings:

 

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“*Affiliate*” means any person any otherperson, directly or indirectly, is in control of, is controlled by, or is undercommon control with, such person. A person shall be deemed to control anotherperson if the controlling person possesses directly or indirectly, the power todirect or to cause the direction of the management and policies of the otherperson, whether through the ownership of voting securities, by contract orotherwise.

 

“*Bank of America DTC Loans*” shall meanloans (a) made in accordance with and conforming to the requirements of theProgram Manual in effect at the time the loans were made, (b) serviced by theServicer in accordance with Appendix E to the Program Manual (the “*Program Guidelines*”), (c) covered by andsubject to all the benefits of the Guaranty Agreement; and (d) marketed withthe Education Maximizer Mark.

 

“*Business Day*” shall mean any day otherthan: (a) a Saturday or Sunday, or (b) a day on which banking institutions inthe State of North Carolina are required or authorized by law or executiveorder to be closed.

 

“*Change in Control*” means:

 

(a)           Withrespect to the Program Lender, any of the following:

 

i.      Theacquisition by any other entity, individual or group (within the meaning ofSections 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, asamended (the “*Exchange Act*”) ofbeneficial ownership (as defined in Rule 13d-3 promulgated under the ExchangeAct) of more than fifty percent (50%) of the common stock of the Program Lenderand/or other securities which have more than fifty percent (50%) of thecombined voting power of the Program Lender’s securities entitled to vote inthe election of directors; or

 

ii.     Thesale of all or substantially all of the common stock or assets of the ProgramLender to any other entity, individual or group; or

 

iii.    Thereorganization, merger or consolidation of the Program Lender in which theshareholders of Program Lender immediately before such event will notimmediately thereafter own more than fifty percent (50%) of the combined votingpower entitled to vote in the election of directors of the reorganized, mergedor consolidated Program Lender’s voting securities.

 

(b)           Withrespect to FMC, any one transaction or a series of transactions within six (6)months of each other in which there is a change of beneficial ownership of morethan fifty percent (50%) of the common stock or other equity interestsrepresenting the right to elect directors or otherwise determine the managementof the company.

 

(c)           A “*Change in Control*” shall not include anytransactions with an entity which is an Affiliate immediately prior to suchtransaction.

 

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“*Co-Lender Indemnification Agreement*” shallmean a mutual indemnification agreement between Program Lender and any otherperson or entity originating loans which will be pooled with Bank of AmericaDTC Loans in any Securitization Transaction, which mutual indemnificationagreement shall be satisfactory in form and substance in all reasonablerespects to Program Lender.

 

“*Confidential Information*” shall have the meaninggiven such term in Section 6(a) below.

 

“*Currently Scheduled Termination Date*”shall mean May 31, 2008.

 

“*Education Maximizer Mark*” shall mean theEducation Maximizer mark owned by Program Lender and licensed to FMC under theEducation Maximizer License Agreement.

 

“*Education Maximizer License Agreement*”shall mean that certain agreement of the same name between Program Lender andFMC in the form attached as Exhibit A, as amended from time to time.

 

“*Effective Date*” shall have the meaninggiven such term in Section 20 below.

 

“*Guaranty Agreement*” means that certainagreement of same name between Program Lender and TERI for the Bank of AmericaDTC Program dated June 30, 2003, as amended from time to time.

 

“*LoanOrigination Agreement*” shall mean the agreement attached as ExhibitB as amended from time to time.

 

“*Note Purchase Agreement*” shall mean thatcertain agreement of that name between Program Lender and FMC for the Bank ofAmerica DTC Program in the form attached as Exhibit C.

 

“*Notes*” shall have the meaning given suchterm in Recital A above.

 

“*Program Manual*” shall mean a detailedmanual setting forth the terms, conditions, eligibility, policies andprocedures for the Bank of America DTC Program as the same may be amended fromtime to time as provided in Section 7 below.

 

“*Proprietary Information*” shall have themeaning given such term in Section 6(b) below.

 

“*SPE*” shall have the meaning given suchterm in Recital A above.

 

“*Securitization Transaction*” shall have themeaning given such term in Recital A above.

 

“*Servicer*” shall mean and refer to PHEAA,or such other servicer as may be approved by FMC and TERI and retained by theholder of Bank of America Direct to Consumer Loans in accordance with the NotePurchase Agreement and the Guaranty Agreement.

 

“*Termination Date*” shall mean the earliestto occur of:

 

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(a)           TheCurrently Scheduled Termination Date;

 

(b)           Theninetieth (90th) calendar day after delivery by FMC, on the onehand, or the Program Lender, on the other hand, of written notice that theparty giving notice has elected to terminate this Agreement for its convenience,provided,however,that notice under this subsection shall not be delivered prior to June 1, 2007;

 

(c)           Thedate of delivery by FMC, on the one hand, or the Program Lender, on the otherhand, of written notice that the other party has failed to consummate aSecuritization Transaction pursuant to the Note Purchase Agreement,notwithstanding that all conditions precedent to such party’s obligation to doso set forth in the Note Purchase Agreement have been satisfied, which failureis not cured within five (5) Business Days;

 

(d)           Thesixtieth (60th) day following the date of delivery by FMC, on theone hand, or the Program Lender, on the other hand, of written notice that theother party has materially breached this Agreement or the Note PurchaseAgreement, unless such party cures such breach on or before such sixtieth (60th)day, it being expressly understood and agreed that the failure to make anypayment required hereunder shall constitute a material breach;

 

(e)           Anyparty hereto shall file any proceeding under the U.S. Bankruptcy Code orsimilar state insolvency act, or shall be the subject of any involuntarybankruptcy proceeding, including, without limitation, a seizure of assets bythe FDIC, which proceeding is not dismissed within sixty (60) days after thefiling thereof;

 

(f)            Thedate of delivery by FMC or the Program Lender of written notice that there hasoccurred a Change in Control of the party receiving such notice and that theparty giving notice, in its sole and absolute discretion, has elected toterminate this Agreement;

 

(g)           Thedate the Guaranty Agreement expires or is not renewed or a TERI InsolvencyEvent occurs; or

 

(h)           Thedate the Guaranty Agreement is terminated by reason of breach thereof by eitherProgram Lender or TERI.

 

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2.             Termof Agreement; Effect of Termination.

 

a.             ThisAgreement shall be effective from the Effective Date to but not including theTermination Date. In the event the Termination Date shall occur by reason of:

 

(i)            Breachof the Guaranty Agreement by either TERI or Program Lender, material breach ofthe Note Purchase Agreement by FMC or Program Lender, or by the filing of anyproceeding under the U.S. Bankruptcy Code by FMC or Program Lender, neitherparty shall have any further obligations to purchase or sell loans under theNote Purchase Agreement, but the nonbreaching party shall have whateverremedies are provided by the Guaranty Agreement, the Note Purchase Agreement orotherwise by law.

 

(ii)           Theoccurrence of a TERI Insolvency Event, by the expiration of or failure to renewthe Guaranty Agreement, or for any other reason:

 

(1)           TheNote Purchase Agreement shall remain in full force and effect with respect toBank of America DTC Loans made prior to the Termination Date; and

 

(2)           FMCor a designee SPE shall have the right to purchase any such Bank ofAmerica DTC Loans, on the terms set forth in the Note Purchase Agreement;

 

each until the end of theRight of First Refusal Period (as that term is defined in the Note PurchaseAgreement) with respect to such Bank of America DTC Loans.

 

(b)           Thefollowing provisions shall survive any termination of this Agreement:  Sections 5, 6 and 19 of this Agreement andArticles V and VIII of the Note Purchase Agreement.

 

(c)           Afternotice of termination or expiration of the Note Purchase Agreement is given(including, without limitation, notice of Change of Control), the parties shallmeet within seven (7) Business Days to develop a transition plan to deal withapplications and approved loans that have not been fully processed and/orfunded. Such plan shall require all parties to fulfill any legal commitments alreadymade to borrowers or applicants. Subject in all cases to binding legal rightsof borrowers, unless termination notice has been given because of expiration ofthe Guaranty Agreement, occurrence of a TERI Insolvency Event, breach of theGuaranty Agreement by TERI, breach of the Note Purchase Agreement by FMC, orbecause of the initiation of a proceeding made under the U.S. Bankruptcy Codeor similar proceeding by FMC, and unless otherwise agreed in the transitionplanning meetings, Program Lender shall continue to process applications untilthirty (30) days before the effective Termination Date, approvals shall ceaseto be granted fifteen (15) days before the Termination Date, and loandisbursements shall be completed not later than ninety (90) days after theTermination Date. In the case of a termination notice given because ofexpiration of the Guaranty Agreement, occurrence of a TERI Insolvency Event,breach of the Guaranty Agreement by TERI, breach of the Note Purchase Agreementby FMC, or because of the initiation of a proceeding made under the U.S.Bankruptcy Code or similar proceeding by FMC, Program Lender may elect to takeonly those further actions as are required to fulfill the legal rights ofborrowers and applicants.

 

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3.             [Reserved]

 

4.             MarketingEfforts. Program Lender is responsible for developing marketing materialsfor distribution to potential borrowers relating to the Bank of America DTCProgram. Subject to the confidentiality provisions of Section 6 below, eachparty hereto agrees to provide such information as may be reasonably requiredby the other parties in connection therewith. During the term of thisAgreement, the Program Lender shall grant to FMC (a) a nonexclusive license touse the Program Lender’s name and logo pursuant to a license agreement betweenFMC and Program Lender dated as of November 21, 1996, as hereafter amended, and(b) a nonexclusive license to use the Program Lender’s mark “EducationMaximizer” pursuant to the Education Maximizer License Agreement.

 

5.             OtherBusiness; Exclusivity.

 

(a)           OtherBusiness. Except as set forth in Section 5(b), below, nothing containedherein, or in any other document, instrument or agreement executed inconnection with the Bank of America DTC Program shall in any manner or to anyextent affect the rights of:

 

(i)The Program Lender to engage in any other business including, withoutlimitation, offering credit products to Bank of America DTC Program borrowersat any time; provided, however, that the Program Lender shall protectProprietary Information from unnecessary disclosure; or

 

(ii)FMC to offer other loan products to potential borrowers or any other person; provided,however, that without the prior written consent of Program Lender, givenin Program Lender’s sole and absolute discretion, FMC shall not market to anyBank of America DTC Loan borrower directly, or indirectly through anotherlender, any private student loan offered by a different lender, pursuant to apromotional scheme that is targeted specifically to Bank of America DTC Loanborrowers whose loans are owned by Program Lender. This restriction does notapply after sale of a loan.

 

(b)           Exclusivity.This Agreement and the other Bank of America DTC Program documents establish anexclusive arrangement between FMC and Program Lender during the term of thisAgreement for the origination, marketing, purchase and sale of Bank of AmericaDTC Loans. During the term of this Agreement, Program Lender and FMC will useand promote the Education Maximizer Mark exclusively in connection with theBank of America DTC Program. Both parties remain free to promote or deal inother loan products not associated with the Education Maximizer Mark.

 

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6.             ConfidentialInformation: Proprietary Information.

 

(a)           Allinformation of any kind and description relating to borrowers under Bank ofAmerica DTC Loans (and rejected applicants for such loans) and their accounts,whether in paper, electronic, or other form, that is maintained by or on behalfof Program Lender for a business purpose (“*Confidential Information*”)is made available by the Program Lender and accepted by FMC with theunderstanding and agreement that such Confidential Information is propertyvaluable to the Program Lender which has been developed through the expenditureof substantial time and money and that the Program Lender desires to retain itin confidence and withhold its availability to others. Under Section502(e)(l)(C) of the Gramm, Leach, Bliley Act and the regulations thereunder (12C.F.R. §§ 40.14(a)(3); 216.14(a)(3); 332.14(a)(3); and 573.14(a)(3)), FMC ispermitted to receive such Confidential Information as a potential purchaser ofloans and/or the arranger of a Securitization Transaction. FMC agrees that,except as required by law and except as is reasonably necessary in connectionwith any Securitization Transaction, any and all Confidential Information andany information or knowledge which may be imparted through receipt or examinationof Confidential Information will not be copied or communicated to any thirdparty or used by FMC or any of its officers, employees, agents or otherrepresentatives except for the purposes of this Agreement and the Note PurchaseAgreement. FMC will take reasonable precautions to prevent any unauthorizeddisclosure of Confidential Information. Upon purchase of the Notes in aSecuritization Transaction, borrower data for the Notes received as part of thepurchase shall become the property of the purchaser, free and clear of theforegoing restrictions; provided, however, that (i) Program Lender shallhave the right to own in perpetuity with the purchaser all borrower dataobtained up until the time of such sale, and (ii) subject to applicable privacyand other laws affecting disclosure of consumer information, FMC shall causethe purchaser and the Servicer to be obligated to provide a report to ProgramLender within 30 days after the close of each calendar quarter, substantiallyin the form of Exhibit D attached hereto.

 

The obligations of FMCset forth in this Section 6(a) with respect to confidentiality and use ofConfidential Information received from Program Lender prior to purchase of Bankof America DTC Program Loans, and with respect to reporting of deidentifieddata after purchase of loans shall survive the Termination Date.

 

(b)           Allinformation relating to the pricing of the Bank of America DTC Program Loansincluded in the Note Purchase Agreement shall constitute ProprietaryInformation that has been or will be made available to the Program Lender orany of its Affiliates by FMC or has otherwise been obtained by the ProgramLender or any of its Affiliates from FMC. Such Proprietary Information isproperty valuable to FMC and has been developed through the expenditure ofsubstantial time and money and that FMC desires to retain it in confidence andnot to permit its commercial use by others. “*ProprietaryInformation*”, at a minimum, shall not include: (i) information thathas become generally available to the public other than as a result of adisclosure by or through the Program Lender, (ii) information derived byProgram Lender from sources other than activities under or related to thisAgreement, (iii) information required by law to be disclosed (but only to theextent such disclosure is legally required) and (iv) underwriting guidelinesnot developed by FMC. Program Lender will take reasonable precautions toprevent any unauthorized commercial use of Proprietary Information,

 

(c)           BorrowerPrivacy. Unless FMC obtains direct authorization from any borrower, itshall not disclose and/or use any of the borrower’s nonpublic personalinformation obtained under this Agreement for any

 

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purpose other than those specifically provided for in this Agreement,nor will it provide such information to any other party, including itsAffiliates, except as allowed by law.

 

7.             ProgramManual. FMC has collaborated with TERI to draft and deliver to the ProgramLender the Program Manual, which has been reviewed and approved by the ProgramLender. Such Program Manual may not be modified in any Lender-related mannerduring the term of this Agreement without the prior written consent of theProgram Lender, which consent shall not be unreasonably withheld. Lender-relatedmodifications to the Program Manual shall mean any change to Bank of AmericaDTC loan terms, borrower eligibility, or any other change that would affectProgram Lender’s rights, obligations, responsibilities, or costs.

 

8.             SecuritizationProvisions. FMC agrees that:

 

(a)          AnyOffering Materials (as defined in the Note Purchase Agreement) relating to eachSecuritization Transaction will contain a statement to the effect that: (i) thecertificates being offered thereunder do not represent an interest in, orobligation of, the Program Lender or its parent, Bank of America Corporation,(ii) no purchaser of such certificates shall have any recourse to the ProgramLender or Bank of America Corporation, (iii) neither the certificates nor thenotes evidencing Bank of America DTC Loans supporting such certificates areinsured or guaranteed by the Federal Deposit Insurance Corporation or, at therequest of or for the account of the Program Lender or Bank of America Corporation,by any other governmental agency, and (iv) the underwriting criteria employedby the Program Lender in originating the Bank of America DTC Loans may bedifferent from those utilized by the Program Lender and its Affiliates inoriginating student loans under other existing student loan programs;

 

(b)          FMCshall, or shall cause the applicable SPE to, perform the acts and assume the dutiesof depositor and manager pursuant to the provisions of the trust or otheragreement or instrument under which the certificates or other evidences ofindebtedness will be issued in any Securitization Transaction. Under nocircumstances shall Program Lender be obligated to perform any such duties.Neither Program Lender nor any of its directors or other representatives shallexecute any registration statement filed with the Securities and ExchangeCommission in connection with any Securitization Transaction.

 

(c)          Thecertificates or other evidences of indebtedness to be issued by FMC and/or anySPEs in Securitization Transactions shall be issued and sold by FMC and/or suchSPEs, with or without the assistance of FMC, but in any event without anyparticipation whatsoever on the part of Program Lender except as expresslyprovided in subparagraph (ii) below. Without limiting the generality of theforegoing, it is expressly acknowledged and agreed by FMC that Program Lendershall not (i) actively participate in any “road shows” or meetings withinvestors or prospective investors, (ii) prepare, assist in preparing or reviewany written or oral materials or prospectuses to be provided to investors orpotential investors or to be filed with the Securities and Exchange Commission,any state securities commission, any stock exchange or NASDAQ other thanexcerpts from such documents describing the Program Lender and its proceduresdrafted expressly for inclusion in such documents, or (iii) otherwise beresponsible in any way for soliciting, or assisting FMC or any SPE insoliciting, the purchases of certificates or other evidences of indebtedness tobe issued in any Securitization Transaction provided, however,that (i) nothing herein shall prohibit the Program Lender from attending roadshows or meetings with investors or prospective investors as a silent observer,and (ii) Program Lender will provide the information required

 

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under Article XIIof the Note Purchase Agreement.

 

(d)           Withoutthe prior written consent of Program Lender, which consent shall not be unreasonablywithheld, loans originated by any person or entity other than Program Lenderwill not be included in any Securitization Transaction that includes Bank ofAmerica DTC Program Loans, and by proposing that such be included in anySecuritization Transaction which will include Bank of America DTC Loansoriginated by Program Lender, FMC and the applicable SPE shall be deemed tohave represented and warranted that such other loans were originated underdetailed guidelines approved by TERI. The execution and delivery to Program Lenderof a Co-Lender Indemnification Agreement by other participating “ProgramLenders” in any Securitization Transaction shall be a condition precedent toany agreement of Program Lender to permit the pooling of TERI-guaranteed loansoriginated by such other person or entity with Bank of America DTC Loansoriginated by Program Lender in a Securitization Transaction.

 

9.            NoAssignment. No party may assign its rights or obligations under thisAgreement without the prior written consent of the parties hereto; provided,however that:

 

(a)    ProgramLender may assign its rights hereunder to an Affiliate that is a national bankingassociation, state chartered bank or other lender having the legal power andright under applicable law (including, without limitation, the usury laws ofthe State where it is located) to make Bank of America DTC Loans and to “export”the laws of the State where it is located pursuant to federal law, if TERIagrees to the transfer of the Guaranty Agreement and the Loan OriginationAgreement to such Affiliate (which agreement will not be unreasonablywithheld). Program Lender shall bear all costs arising out of such assignment,including, without limitation, any costs for legal advice relating to loancompliance and regulation.

 

(b)   FMCmay assign its rights hereunder to a warehouse to hold pooled Bank of AmericaDTC Loans in the period of time between the point at which the Bank of AmericaDTC Loans become Seasoned Loans (as that term is defined in the Note PurchaseAgreement) and the date of the Securitization Transaction.

 

(c)    Anyassignment in violation hereof shall be automatically null and void.

 

10.           Amendment.This Agreement may not be amended nor terms or provisions hereof waived unlesssuch amendment or waiver is in writing and signed by parties hereto.

 

11.           NoWaiver. No delay or failure by any party to exercise any right, power or remedyhereunder shall constitute a waiver thereof by such party, and no single orpartial exercise by any party of any right, power or remedy shall precludeother or further exercise thereof or any exercise of any other rights, powersor remedies.

 

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12.           EntireAgreement. This Agreement and the documents and agreements referred toherein embody the entire agreement and understanding among the parties heretoand supersede all prior agreements and understandings relating to the subjectmatter hereof and thereof

 

13.           Notices.All notices given by any party to the others under this Agreement shall be inwriting delivered: (a) personally, (b) by facsimile transmission, (c) byovernight courier, prepaid, or (d) by depositing the same in the United Statesmail, certified, return receipt requested, with postage prepaid, addressed tothe party at the address set forth below. Any party may change the address towhich notices are to be sent by notice of such change to each other party givenas provided herein. Such notices shall be effective on the date received.Notices shall be given as follows:

 

 
| If to Program Lender:             |
|-----------------------------------|
|                              |
| Tracy J. Grooms                   |
| Senior Vice President             |
| Bank of America, N.A.             |
| Mail Code:  NC1-002-15-26         |
| Charlotte, NC  28255-0001         |
|                              |
| With a copy to:                   |
|                              |
| Laura L. Rogers                   |
| Assistant General  Counsel        |
| Bank of America, N.A.             |
| 11th Floor                        |
| 800 Market Street                 |
| St. Louis, MO 63101               |
|                              |
| If to FMC:                        |
|                              |
| President                         |
| The First Marblehead  Corporation |
| 34th Floor                        |
| 800 Boylston Street               |
| Boston, MA 02199-8157             |
|                              |
| With a copy to:                   |
|                              |
| Legal Department                  |
| The First Marblehead  Corporation |
| 34th Floor                        |
| 800 Boylston Street               |
| Boston, MA 02199-8157             |

 

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14.           Attorneys’Fees. In the event of a lawsuit or arbitration proceeding arising out of orrelating to this Agreement, the prevailing party shall be entitled to recovercosts and reasonable attorneys, fees incurred in connection with the lawsuit orarbitration proceeding, as determined by the court or arbitrator.

 

15.           GoverningLaw. This Agreement shall be governed by and construed in accordance withthe laws of the State of North Carolina.

 

16.           Counterparts.This Agreement may be executed in any number of counterparts, all of whichtogether shall constitute one agreement.

 

17.           NoThird Parties Benefited. This Agreement is made and entered into for thesole protection and legal benefit of the parties, and their permittedsuccessors and assigns, and no other person shall be a direct or indirect legalbeneficiary of, or have any direct or indirect cause of action or claim inconnection with, this Agreement. 

 

18.           Consentto Jurisdiction. SUBJECT TO SECTION 19 BELOW, ANY LEGAL ACTION ORPROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THESTATE OF NORTH CAROLINA OR OF THE UNITED STATES FOR THE WESTERN DISTRICT OFNORTH CAROLINA, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THEPARTIES HERETO CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THENON-EXCLUSIVE JURISDICTION OF THOSE COURTS, EACH OF THE PARTIES HERETOIRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OFVENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENT WHICH IT MAY NOW ORHEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTIONIN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO.

 

19.           DisputeResolution.

 

(a)         Anycontroversy or claim between the parties arising from or in connection withthis Agreement or the relationship of the parties under this Agreement whetherbased on contract, tort, common law, equity, statute, regulation, order orotherwise, and whether arising before or after the termination of this Agreement(“*Dispute*”) shall be resolved asfollows:

 

(i)            Uponwritten request of either party, the parties will each appoint a designatedrepresentative within three (3) Business Days whose task it will be to meet forthe purpose of endeavoring to resolve such Dispute.

 

(ii)           Thedesignated representatives shall meet, beginning within five (5) Business Daysafter the last representative is appointed, and shall meet as often as theparties reasonably deem necessary to discuss the problem in an effort toresolve the Dispute without the necessity of any formal proceeding.

 

(iii)          Arbitrationproceedings for the resolution of a Dispute under Section 19(b) may not becommenced until the earlier to occur of the following:

 

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(1)           Thedesignated representatives conclude in good faith that amicable resolutionthrough continued negotiation of the matter does not appear likely; or

 

(2)           Theexpiration of the thirty (30)-day period immediately following the initialrequest to negotiate the Dispute.

 

(b)           Arbitration.           Ifthe provisions of Section 19(a) have been satisfied, but the Dispute has notbeen resolved, then the Dispute shall be settled pursuant to the following:

 

(i)            Anycontroversy or claim between or among the parties arising our of or relating tothis Agreement or any agreements or instruments relating hereto or delivered inconnection herewith and any claim based on or arising from an alleged tort,shall at the request of any party be determined by arbitration. The arbitrationshall be conducted in accordance with the United States Arbitration Act (Title9, 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 effectto statutes of limitation in determining any claim. Any controversy concerningwhether 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 ofa provisional or ancillary remedy shall not constitute a waiver of the right ofany party, including the plaintiff, to submit the controversy or claim toarbitration if any other party contests such action for judicial relief.

 

(ii)           Noprovision of this Section 19(b) shall limit the right of any party to exerciseself-help remedies such as setoff, or to obtain provisional or ancillaryremedies from a court of competent jurisdiction before, after, or during thependency of any arbitration or other proceeding. The exercise of a remedy doesnot waive the right of any party to resort to arbitration or reference.

 

(c)           PermissibleLegal Proceedings. Notwithstanding anything contained in Sections 19(a) and(b), (i) a party may institute legal proceedings to seek a temporaryrestraining order or other temporary or preliminary injunctive relief toprevent immediate and irreparable harm to such party, and for which monetarydamages would be inadequate, pending final resolution of the dispute,controversy or claim pursuant to arbitration, and (ii) a party may institutelegal proceedings if necessary to preserve a superior position with respect toother creditors. Such conduct shall not constitute a waiver of the right ofeither party to resort to arbitration to obtain relief other than thatspecified in this Section 19(c).

 

20.           EffectiveDate. This Agreement shall be generally effective as of April 1, 2006 (the “*Effective Date*”), except that obligationsthat relate to particular Bank of America DTC Loans shall become effective withrespect to Bank of America DTC Loans the applications for which are received byProgram Lender (or its processing agent) on or after April 1, 2006; and providedfurther that this Agreement shall not become effective until all of thefollowing events have occurred:

 

(a)          TheProgram Lender and FMC shall have executed and delivered to the other acounterpart of this Agreement;

 

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(b)          TheProgram Lender and FMC shall have executed and delivered to the other the NotePurchase Agreement; and

 

(c)           TERIand Program Lender shall have executed and delivered to each other an amendmentto the Guaranty Agreement adopting the pricing set forth in Schedule 3.3attached hereto as Exhibit E.

 

21.           PublicAnnouncement. All media releases, public announcements and publicdisclosures by either party, or their representatives, employees or agents,relating to this Agreement or the name or logo of Program Lender, including,without limitation, promotional or marketing material, but not including anydisclosure required by legal, accounting or regulatory requirements beyond thereasonable control of the releasing party, shall be coordinated with andapproved by the other party in writing prior to the release thereof.

 

 

IN WITNESS WHEREOF, theparties hereto have executed this Agreement as of the day and year first abovewritten.

 

 
|   | THE FIRST MARBLEHEAD  CORPORATION, a Delaware corporation |
|--------|-----------------------------------------------------------|
|   |                                                      |
|   |                                                      |
|   | By:                                                       | /s/ Jack L. Kopnisky |
|   | Name:                                                     | Jack L. Kopnisky |
|   | Title:                                                    | Chief Executive Officer |
|   |                                                      |
|   | BANK OF AMERICA, N.A.                                     |
|   |                                                      |
|   |                                                      |
|   | By:                                                       | /s/ Tracy J. Grooms |
|   | Name:                                                     | Tracy J. Grooms |
|   | Title:                                                    | Senior Vice President |
|        |                                                           |  |  |

 

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INDEX TO EXHIBITS

 

EXHIBIT A           EDUCATIONMAXIMIZER LICENSE AGREEMENT

 

EXHIBIT B            LOANORIGINATION AGREEMENT

 

EXHIBIT C            NOTEPURCHASE AGREEMENT

 

EXHIBIT D            PERFORMANCEREPORT TEMPLATE

 

EXHIBIT E            SCHEDULE3.3 TO GUARANTY AGREEMENT

 

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EXHIBIT A TOUMBRELLA AGREEMENT

 

EDUCATIONMAXIMIZER

LICENSE AGREEMENT

BANK OF AMERICA,N.A.

TO

THE FIRSTMARBLEHEAD CORPORATION

 

This License Agreement (“License”),entered into as of this 1st day of April, 2006, by and between Bankof America, N.A., a national banking association (*“Owner”*), with a principal place of business in Charlotte,North Carolina, and The First Marblehead Corporation, a Delaware corporation (*“User”*), with a principal place ofbusiness at 800 Boylston Street, Boston, Massachusetts.

 

### RECITALS

###  

Owner is the owner of theservice marks listed and depicted on Schedule A attached hereto andincorporated herein and of all goodwill associated therewith (said servicemarks and associated goodwill being collectively referred to herein as the *“Marks”*); and

 

User wishes to license the Marks for use in connectionwith its business of acting as financial advisor and marketing facilitator ofthe Bank of America DTC Program (the “Business”) pursuant to that certainUmbrella Agreement by and between Owner and User, dated as of April 1, 2006(the *“Umbrella Agreement”*).Capitalized terms used herein without definition have the meaning set forth inthe Umbrella Agreement.

 

**NOW,THEREFORE,**in consideration of the foregoing and in considerationof the mutual promises contained in this License, the parties hereto agree asfollows:

 

1.             GRANTOF LICENSE. Owner grants to User a nonexclusive, nontransferable license touse, display and advertise the Marks solely in connection with the Business.

 

User’s use of the Marks shall be limited to use inconnection with the Bank of America DTC Loan Program. User accepts this licensesubject to the terms and conditions contained in this License.

 

2.             OWNERSHIPOF MARKS. (a) User acknowledges that ownership of the Marks is in Owner. Useragrees that it will do nothing inconsistent with such ownership. User furtheragrees to assist owner in recording this License with all appropriategovernmental authorities. User shall execute all documents reasonably deemednecessary by Owner or its attorneys to accomplish such recording. User agreesthat nothing in this License shall give User any right, title or interest inthe Marks other than the right to use the Marks in accordance with this License.User agrees that it will not at any time during the term of this License orafter its termination (i) use any mark or other term confusingly similar to theMarks, or (ii) challenge the title of Owner to any of the Marks or challengethe validity of this License.

 

(b)           Useracknowledges that, in order to protect Owner’s rights and good will in theMarks, Owner must supervise and control User’s uses of the Marks. User furtheracknowledges that Owner maintains high standards for the services provided toits clients at all times. Owner and User agree and acknowledge that the powersgranted to Owner herein with respect to review of User’s Business documents,agreements and materials are granted to Owner to enable Owner to ensure thatUser maintains the quality of services it provides in connection with the Marksat a level commensurate with the quality of the services associated with theMarks and with the quality standards set by Owner for use of the Marks.

 

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3.             QUALITYSTANDARDS. User agrees that the nature and quality of all services renderedby User in connection with all of the Marks, all loans originated by User underany of the Marks and all related advertising, promotional and other uses of theMarks by User (together, the *“Uses”*)shall conform to standards set by Owner under the Umbrella Agreement and therelated agreements referred to therein. Owner shall have the right to request,review, and approve or disapprove copies or samples of all written materials,and demonstrations of all other Uses at any time, and shall be entitled torequire that User modify any of the Uses to conform to User’s agreements withOwner.

 

4.             FORMOF USE. User agrees to use the Marks only in the form and manner permittedfrom time to time by Owner, with all appropriate legends prescribed by Owner. Inorder to avoid public confusion about the Marks, User further agrees not to useany other trademark or service mark (other than GATE-related marks andTERI-related marks) in combination with any of the Marks without obtaining theprior written consent of Owner. User shall indicate that the Marks are servicemarks of Owner by using the symbol Ô in connection withall displays of the Marks.

 

5.             PROHIBITIONON SUBLICENSING. Except pursuant to a permitted assignment of the UmbrellaAgreement, User shall not be entitled to sublicense the Marks without Owner’sprior written consent. User shall not permit anyone other than User to use theMarks without Owner’s prior written consent.

 

6.             BUSINESSDOCUMENTS. Owner shall be entitled to receive and review all printeddocuments and marketing information and other printed communication provided byUser. User agrees that the Business forms it shall use in connection with theMarks shall have the prior written approval of Owner, and that it shall not useany forms on which any of the Marks are placed in connection with the operationof the Business that have not been previously approved by Owner.

 

7.             INFRINGEMENTPROCEEDINGS. User agrees to notify Owner of any unauthorized use of theMarks by others and of any challenge(s) to User’s use of any of the Marks byany third party promptly as they come to User’s attention. Owner shall have thesole right to bring infringement or unfair competition proceedings involvingthe Marks, in its sole discretion. User shall reasonably cooperate in all suchproceedings.

 

8.             CONSIDERATION.Consideration for this License is the mutual promises in this License and inthe Umbrella Agreement. No royalty shall be paid.

 

9.             TERM.Except as provided in section 10 hereof, this License shall continue in fullforce for so long as the Umbrella Agreement remains in force and shallterminate on the same date as the Umbrella Agreement.

 

10.           EFFECTOF TERMINATION. Upon termination of this License for any reason, Useragrees to discontinue all use of the Marks and any term confusingly similarthereto immediately and to cooperate with Owner or its appointed agent tonotify the appropriate authorities of the cancellation of this License to theextent the same is recorded; provided, however, use of the Marks inconnection with servicing Bank of America DTC loans outstanding at the time ofsuch termination may continue after termination of this License, but all suchuse shall continue to be subject to the terms of this License, notwithstandingits termination. User agrees that all rights in the Marks and the goodwillconnected therewith shall remain the property of Owner.

 

11.           ASSIGNMENT.All of Owner’s rights hereunder may be assigned, in Owner’s sole and exclusivediscretion. User shall not be entitled to assign its rights hereunder withoutOwner’s prior written consent; provided, however, that User may assignits rights hereunder to a permitted assignee under the Umbrella Agreement.

 

12.           MISCELLANEOUS.This License shall be interpreted according to the laws of the State of NorthCarolina. In the event that any part of this License is held to be ineffectiveor unenforceable, it shall have no effect on the balance of the License, whichshall be enforceable according to its terms. This Agreement constitutes theentire agreement between the parties and supersedes any and all prioragreements between the parties with regard to

 

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the subject matter addressed herein. No amendment, modification orwaiver of any of the provisions of this Agreement shall be valid unless setforth in writing and signed by the parties hereto.

 

 

[Balance of thispage intentionally left blank]

 

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IN WITNESS WHEREOF, theparties hereto have executed this License as of the date first stated above.

 

 
|   | BANK OF  AMERICA, N.A., a national banking association    |
|--------|-----------------------------------------------------------|
|   |                                                      |
|   |                                                      |
|   | By:                                                       | /s/ Tracy J. Grooms |   |
|   | Its:                                                      | Senior Vice President |
|   | Printed Name:                                             | Tracy J. Grooms |
|   |                                                      |   |
|   | THE FIRST MARBLEHEAD  CORPORATION, a Delaware corporation |
|   |                                                      |
|   |                                                      |
|   | By:                                                       | /s/ Jack L. Kopnisky |   |
|   | Its:                                                      | Chief Executive Officer |
|   | Printed Name:                                             | Jack L.  Kopnisky |
|        |                                                           |  |  |  |

 

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Schedule A

 

Marks

 

 

Education Maximize

 

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EXHIBIT B TOUMBRELLA AGREEMENT

 

 

[Intentionallyomitted; the registrant is not a party to the loan origination agreement]

 

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EXHIBIT C TOUMBRELLA AGREEMENT

 

 

[Filed as exhibit10.2 to the registrant’s quarterly report on Form 10-Q

for the quarterlyperiod ended March 31, 2006]

 

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EXHIBIT D TOUMBRELLA AGREEMENT

 

 

[Form of templateprovides for reporting of delinquency aging

and number ofclaims]

 

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EXHIBIT E TOUMBRELLA AGREEMENT

 

[Intentionallyomitted; the registrant is not a party to the guaranty agreement]

 

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