**Exhibit 10.2**

 

**EXECUTION COPY**

 

**Confidential Materials omitted andfiled separately with theSecurities and Exchange Commission. Asterisks denote omissions.**

 

**NOTE PURCHASE AGREEMENT**

 

BANK OF AMERICA DTC PROGRAM

 

BANK OF AMERICA, N.A.

 

ThisNote Purchase Agreement (“*Agreement*”),by and between BANK OF AMERICA, N.A. (“*ProgramLender*”), a national banking association organized under the laws ofthe United States and having a principal office located at 100 North TryonStreet, Charlotte, North Carolina, and THE FIRST MARBLEHEAD CORPORATION, aDelaware corporation having a principal place of business at 30 Little Harbor,Marblehead, Massachusetts (“*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 educationlending programs, including, without limitation, the Bank of America DTCProgram (as defined in Section 1); and

 

WHEREAS,FMC exists to provide funds for education loans for the benefit of students atParticipating Institutions (as defined in Section 1); and

 

WHEREAS,in order to facilitate funding of Bank of America DTC Loans (as defined inSection 1), Program Lender has agreed to sell, from time to time, poolscontaining Bank of America DTC Loans originated by Program Lender to FMC or aPurchaser Trust (as defined in Section 1); and

 

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WHEREAS,the Bank of America DTC Loans are made by Program Lender and purchased by FMCon the condition that they qualify for and in fact are covered by a guarantyissued by The Education Resources Institute, Inc. (“*TERI*”).

 

WHEREAS,the Program Lender and FMC are parties to a Note Purchase Agreement dated as ofJune 30, 2003, as amended to date (the “*OriginalNote Purchase Agreement*”). The parties desire to amend, restate andreplace in full the Original Note Purchase Agreement with this Agreement.

 

NOW, THEREFORE, in consideration ofthese presents and the covenants contained herein, the parties hereto herebyagree as follows:

 

I.              **Definitions**. Capitalized terms usedherein without definition have the meanings set forth in the ProgramGuidelines.

 

“*Affiliate*” shall mean, as to any person,any other person that, directly or indirectly, is in control of, is controlledby, or is under common control with, such person. A person shall be deemed tocontrol another person if the controlling person possesses, directly orindirectly, the power to direct or to cause the direction of the management andpolicies of the other person, whether through the ownership of votingsecurities, by contract or otherwise.

 

“*Agent*” means U.S. Bank, N.A., or asuccessor agent under the Deposit and Security Agreement.

 

“*Ambac*” means Ambac Assurance Corporation.

 

“*BAGEL Note Purchase Agreement*” shall meanthe agreement of same name between FMC and Program Lender dated as of April 30,2001.

 

“*BAGEL Seasoned Loans*” shall mean all loansthat fall within the definition of *“SeasonedLoan”* as set forth in the BAGEL Note Purchase Agreement.

 

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“*Bank of America DTC Loans*” shall meanLoans (a) made in accordance with and conforming to the requirements of theProgram Guidelines at the time the Loans were made, (b) serviced by theServicer in accordance with the Program Guidelines, (c) covered by and subjectto all the benefits of the Guaranty Agreement, and (d) marketed with theEducation Maximizer Mark.

 

“*Bank of America DTC Loan Pool*” or “*Pool*” shall mean and refer to a group ofBank of America DTC Notes purchased and pledged or intended to be purchased andpledged as collateral in a particular Securitization Transaction.

 

“*Bank of America DTC Notes*” shall meannotes or other forms of consumer debt instruments, evidencing Bank of AmericaDTC Loans.

 

*“Bank of America DTC Program”* shall meanthe Bank of America DTC Loan Program described in the Program Guidelines.

 

*“Bond Insurer”* means Ambac, MBIA, or anyother provider of credit insurance or note insurance with respect to theobligations of the Purchaser Trust.

 

*“Business Day”* shall mean any day otherthan: (a) a Saturday or Sunday, or (b) a day on which national bankinginstitutions in the State of North Carolina are required or authorized by lawor 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 inthe Deposit and Security Agreement.

 

*“Depositand Security Agreement”* means the agreement of that nameamong Program Lender, Agent, FMC and TERI dated as of June 30, 2003.

 

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*“Depositor”* shall mean the depositor, assuch term is defined in Regulation AB, with respect to a SecuritizationTransaction.

 

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

 

*“Education Maximizer License Agreement”*shall mean the license agreement between FMC and Program Lender as defined inthe Umbrella Agreement.

 

*“First Marblehead”* or *“FMC”* shall mean The First MarbleheadCorporation, a Delaware corporation.

 

*“First Payment Date”* means the date whenthe first monthly payment is due with respect to a particular Bank of AmericaDTC Loan.

 

*“Guaranty Agreement”* means the GuarantyAgreement between Program Lender and TERI dated June 30, 2003, as it may beamended from time to time.

 

*“Market Disruption Event”* means any of thefollowing: (a) any suspension or limitation on trading in securities generallyon the New York Stock Exchange or the National Association of SecuritiesDealers National Market system; (b) any banking moratorium declared by federal,Massachusetts, or New York authorities or authorities of the state in whichProgram Lender is headquartered; (c) any outbreak or escalation of majorhostilities or armed conflict, or any declaration of war by Congress; (d) anychange in federal or state law or regulations that disrupts the functioning ofthe capital markets; (e) the closing of the market for commercial paper orasset-backed securities or significant disruption in the functioning of thosemarkets, if, in the reasonable judgment of FMC, the effect of any such event in(a) – (e) above materially affects

 

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FMC’s ability toeconomically complete a Securitization Transaction; or (f) the occurrence of aTERI Insolvency Event.

 

*“MBIA”* means MBIA Insurance Corporation.

 

*“Minimum Purchase Price”* has the meaningset forth in Section 2.04.

 

*“Loan Origination Agreement”* refers to theLoan Origination Agreement, dated as of June 20, 2003, with respect toorigination of Bank of America DTC Loans, as amended from time to time.

 

*“OriginationRecords”* means and refers to the original Bank of America DTCLoan Application and Note, a form of cosigner notice when required under 16C.F.R. § 444, and any other standardized documentation specified from time totime in the Program Guidelines as required to be received by the Servicer fromthe Program Lender in order to service Bank of America DTC Loans adequately andaccurately.

 

*“Participating Institution”* means aneducational institution approved by TERI for receipt of Bank of America DTCLoan funds.

 

*“PHEAA”* shall mean the Pennsylvania HigherEducation Assistance Agency, a public corporation and governmentinstrumentality organized under the laws of the Commonwealth of Pennsylvania,and having an address at 1200 North Seventh Street, Harrisburg, PA 17102.

 

*“Pledged Account”* has the meaning setforth in the Deposit and Security Agreement.

 

*“Program Guidelines”* means Appendix E tothe Program Manual (as defined in the Umbrella Agreement.

 

*“Purchase Date”* shall mean (a) the date ofconsummation of a Securitization Transaction with respect to a particular Poolof Seasoned Loans originated by Program Lender, which date:  (i) shall be set by written notice from FMCto Program Lender, given to Program

 

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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 ofAmerica DTC  Loan during the Right ofFirst Refusal Period.

 

*“Purchase Period”* means, with respect toany particular Bank of America DTC Loan, the period beginning on the first datesuch loan becomes a *“Seasoned Loan”*and ending [**] days thereafter, as same may be extended pursuant to the termsof this Agreement; provided, however, for loans in pricing tiers [**] onSchedule 3.3 to the Guaranty Agreement, Purchase Period means, with respect toany such loan, the period beginning on the first date such loan becomes aSeasoned Loan and ending [**] days thereafter.

 

*“Purchaser Trust”* shall mean and refer toa trust or other SPE formed or sponsored by FMC or by any Affiliate of FMC forthe purpose of purchasing, directly or indirectly, Bank of America DTC Loans. Anyaction required or permitted to be taken by FMC hereunder may be taken by aPurchaser Trust with respect to a particular Pool, and FMC may assign itsrights hereunder to a Purchaser Trust without the consent of the ProgramLender. If FMC elects to finance the purchase of such Loans on an interim basisby 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 anyother SPE to whom the Loans are ultimately transferred in a SecuritizationTransaction; and (ii) the representations, warranties and indemnities made bythe Program Lender to FMC hereunder shall pass directly to both the interimholder and the ultimate purchaser SPE.

 

*“Rating Agencies”* shall mean and refer toStandard and Poor’s Corporation and/or Moody’s Investors Service, Inc., and/orFitch Investors Services.

 

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*“Regulation AB”* means Subpart229.1100—Asset Backed Securities (Regulation AB), 17 C.F.R. Sections229.1100-229.1123, as such may be amended form time to time, and subject tosuch clarification and interpretation as have been provided by the SEC in theadopting 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 maybe provided by the SEC or its staff from time to time.

 

*“Right of First Refusal Period”* means fora Bank of America DTC Loan, the earlier of (i) [**] days after expiration ofthe relevant Purchase Period or (ii) [**] days after notice that a bona fidewritten offer has been received by Program Lender under Section 2.02 withrespect to such Bank of America DTC Loan, provided that no such notice may begiven until after expiration [**].

 

*“Seasoned Loan”* means a Bank of AmericaDTC Loan as of fifteen (15) days after completion of all scheduleddisbursements on the Bank of America DTC Loan, but shall exclude any loandisbursed by paper check if the paper check has not yet been paid by thedrawee. In the event a disbursement check is paid by the drawee more thanthirty (30) days after it is written, the loan shall become a Seasoned Loan onthe date of such payment. For purposes of computation of the Minimum PurchasePrice, the term also includes defaulted Bank of America DTC Loans not yetpurchased by TERI.

 

*“SEC”* shall mean the Securities andExchange Commission.

 

*“Securitization Costs”* means the actualcosts and expenses incurred by FMC, the Purchaser Trust, and all othersentitled to payment for expenses by the Purchaser Trust or FMC, in connectionwith a Securitization Transaction including, without limitation, the following:

 

(Structuringand Origination Fees; Copy/Binding Costs)

 

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(UnderwritingExpenses)

(RatingFee)

(OwnerTrustee and Indenture Trustee Transaction and First Year Fees; Expenses)

(Counselfor Indenture Trustee)

(Counselfor FMC)

(ServicerAuditor)

(BondInsurer)

 

*“SecuritizationTransaction”*shall mean and refer to the purchase of a Pool of Seasoned Loans by FMC or aPurchaser Trust funded through the issuance and sale of commercial paper,certificates, bonds or other securities or evidences of indebtedness, therepayment of which is supported by payments on the Seasoned Loans included insuch Pool. A Securitization Transaction may include, without limitation, acontinuing series of transactions occurring on a periodic basis in whichProgram Lender makes a sale of then-outstanding Seasoned Loans to a PurchaserTrust, which Purchaser Trust in turn either utilizes the Pool directly ascollateral for its own debt or resells the Pool (in whole or in part) infurther sales to a securitization conduit providing financing to the PurchaserTrust 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 TERI and retained by theholder of Bank of America DTC Loans in accordance with the terms hereof and ofthe Guaranty Agreement.

 

“*Servicing Agreement*” refers to: (a) theServicing Agreement entered into between Servicer and Program Lender withrespect to servicing of Bank of America DTC Loans, as amended from time totime, and (b) any subsequent servicing agreement between Program Lender and theServicer governing servicing of Bank of America DTC Loans purchased under thisAgreement, in either case such agreement and any amendment thereto to besatisfactory in form and substance to FMC and its counsel.

 

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“*SPE*” means a special purpose entity formedand operated for the purpose of acting as purchaser and owner of Bank ofAmerica DTC Loans and other education loans.

 

“*TERI Insolvency Event*” means (1) thecommencement by TERI of a voluntary petition under the federal bankruptcy laws,as now constituted or hereafter amended, or any other applicable federal orstate bankruptcy, insolvency or other similar laws, (2) the consent by TERI tothe appointment of or taking possession by a receiver, liquidator, trustee,custodian (or other similar official) of or for TERI or for any substantialpart of its property, (3) the making by TERI of any assignment for the benefitof creditors, (4) the insolvency or the failure of TERI generally to pay itsdebts as such debts become due, (5) the downgrading of TERI’s credit worthinessbelow the rating on January 2, 2003 or the placement of a negative watch onTERI by one of the Rating Agencies, or (6) a default under one or more GuarantyAgreements to which TERI is a party because of a failure to pay claims, or thetaking of action by TERI in furtherance of any of the foregoing.

 

*“Term”* shall mean the period commencing onthe Effective Date hereof and ending upon termination hereof, all as set forthin Article X.

 

*“Total Principal Amount”* means the totalprincipal amount of Seasoned Loans available to be sold and purchased fromProgram Lender plus the total principal amount of all BAGEL Seasoned Loansavailable to be sold and purchased from Program Lender.

 

*“Trust Agreement”* means, with respect toany particular Securitization Transaction, the agreement pursuant to which aPurchaser Trust is formed.

 

*“Trust Indenture”* means, with respect toany particular Securitization Transaction, the agreement pursuant to which FMCor a Purchaser Trust issues evidences of indebtedness secured by the paymentson the related Bank of America DTC Loans.

 

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*“Umbrella Agreement”* shall mean thatcertain agreement of same name between Program Lender and FMC of even date.

 

II.            **Agreement for Purchase and Sale of Notes.**

 

2.01.        Purchaseand Sale.

 

[**]during the Term of this Agreement and subject to the conditions set forthherein, Program Lender shall sell to FMC or a designee Purchaser Trust, and FMCor such Purchaser Trust shall purchase, every Seasoned Loan owned by ProgramLender on the Purchase Date.

 

2.02.        Pre-ClosingInformation; FMC Purchase.

 

** **(a)          LoanInformation. Program Lender will cause Servicer to inform FMC periodicallyof information reasonably requested by FMC in anticipation of a SecuritizationTransaction, including, without limitation, the number of Seasoned Loans readyfor purchase, the amount of paid and unpaid principal and accrued interest withrespect to each such Seasoned Loan, payment status (including defaulted loanspresented for guaranty payment), and the identity of Participating Institutionsaffected by the Securitization, together with the information contained inPHEAA’s MR-50 and MR-53 reports and TERI’s weekly origination report, whichreports shall be provided in electronic media in the Servicer’s or TERI’s standardformat. FMC hereby agrees and covenants to hold information contained in thereports confidential and only use such information in accordance with Section 6of the Umbrella Agreement.

 

(b)           PurchaseScheduling. FMC will [**] specify Purchase Dates that fall within eachNovember and each June, but in any event will, subject to Sections 2.02(d) and3.01(b), purchase or cause a Purchaser Trust to purchase [**] all of theSeasoned Loans held by Program Lender prior to the expiration [**] for any loanin the Pool (i.e., at least once every [**]). FMC shall have the sole andexclusive right to purchase such Seasoned Loans [**], which right may be

 

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assigned to one or morePurchaser Trusts. FMC may reschedule the Purchase Date without penalty of anykind, provided that the Purchase Date occurs prior to [**] (i.e., before anySeasoned 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 setforth in Section 2.02(d) or for a failure to comply with one or more conditionsas set forth in Section 3.01(b). Program Lender agrees, in consideration of FMC’sundertaking pursuant to this section, not to sell or offer to sell to any thirdperson any interest in any Seasoned Loan originated by Program Lender [**] withrespect to such Seasoned Loan. During [**], if Program Lender receives any bonafide third-party written offer to purchase such Seasoned Loan, and if ProgramLender desires to accept such offer, Program Lender shall, prior to acceptingany 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) shallhave the sole and exclusive right to purchase such Seasoned Loan on the termsof such third-party offer [**] for such Seasoned Loan. If FMC (or a PurchaserTrust) fails to exercise such right [**] with respect to such Seasoned Loan,Program Lender shall within its sole discretion be entitled to: (i) sell suchSeasoned Loan to any third party or to retain such Seasoned Loan, in whole orin part, for its own account, free and clear of any claim under this Agreement;and/or (ii) immediately terminate this Agreement.

 

(c) Securitization andPurchase Commitment Based Upon Volume. In the event that the TotalPrincipal Amount held by Program Lender is:

 

(1) Less than [**]Dollars ($[**]), FMC will [**] purchase or cause the purchase of the SeasonedLoans in a Securitization Transaction, but will have no obligation to do so ifFMC is unable to do so [**].

 

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(2)Greater than [**] Dollars ($[**]) but less than [**] Dollars ($[**]), FMC shallpurchase or cause the purchase of all Seasoned Loans; provided, however, thatsuch obligation shall be effective only if lenders whose loans aggregate [**]Dollars ($[**]) or more in principal amount agree to have their loans includedin the same Securitization Transaction (FMC shall [**] under this Section2.02(c)(2) to cause lenders to permit the addition of Seasoned Loans in aSecuritization Transaction).

 

(3)Greater than [**] Dollars ($[**]), FMC shall purchase or cause the purchase ofall Seasoned Loans in a Securitization Transaction.

 

(d)           Extensionof Purchase Period Due to Lack of Volume. In the event that the volumeconditions (set forth in Section 2.02(c)) for a binding purchase commitment arenot satisfied, FMC may, but need not, declare [**] with respect to each Bank ofAmerica DTC Loan that is then a Seasoned Loan extended by [**] days. FMC maycontinue to declare such extensions, in its discretion, until the earlier of:(a) the date when such volume conditions have been satisfied or (b) the datethis Agreement expires or is terminated (in which event FMC shall schedule aPurchase Date for all outstanding Bank of America DTC Loans, to occur [**] forthe last loan made subject to this Agreement; provided, however, that ifthis Agreement is terminated under subsection 2.02(b)(ii) on account of FMC’sfailure to purchase Seasoned Loans, then Program Lender shall not be requiredto sell loans hereunder and shall have recourse to its remedies under Section2.02(e)).

 

(e)           Damagesfrom Failure to Purchase. If FMC or a Purchaser Trust fails to purchasewithin a Purchase Period (as the same may be extended pursuant to Section2.02(d)) one or more Seasoned Loans prior to the end of the Purchase Periodwith respect to such Loans, to the extent such failure is not excused underSection 3.01(b), FMC shall pay to Program Lender as

 

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liquidated damages [**]of the Total Principal Amount of all Seasoned Loans as to which the PurchasePeriod has expired; provided, however, that if FMC pays said [**] liquidateddamages amount and Program Lender subsequently sells the Seasoned Loans inquestion to FMC, a Purchaser Trust or any third party during the Right of FirstRefusal Period, the [**] liquidated damages amount shall be refunded to FMC tothe extent the sum of (i) the [**] liquidated damages amount and (ii) the totalamount received by Program Lender for such Seasoned Loans exceeds the MinimumPurchase Price (as defined in Section 2.04 and computed as of the actualpurchase date). If a failure to purchase is continuing, additional damages maybecome payable at thirty (30)-day intervals as the Purchase Period expires asto additional loans. Such payments shall constitute liquidated damages in fullsatisfaction of FMC’s obligations with respect to the purchase of such SeasonedLoans, and FMC shall have no further liability to Program Lender with respectthereto. Once the Right of First Refusal Period for a Bank of America DTC Loanhas expired, Program Lender shall be under no further obligation to offer suchBank of America DTC Loan to FMC (or a Purchaser Trust) for purchase.

 

(f)            FMCReliance on Program Guidelines. Program Lender further agrees, inconsideration of FMC’s undertaking pursuant to this section, that no changewill 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 DTCLoans without FMC’s prior written consent, which consent shall not beunreasonably withheld.

 

(g)           PurchaserTrust Involvement. Any action required or permitted to be taken by FMChereunder 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 theconsent of the Program Lender. If FMC elects to finance the purchase of suchLoans on an interim basis by using an SPE or any

 

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other temporary financingvehicle as an interim holder, (i) the term Purchaser Trust shall include bothsuch interim holder and any other SPE to whom the Loans are ultimatelytransferred in a Securitization Transaction; and (ii) the representations,warranties and indemnities made by the Program Lender to FMC hereunder shallpass directly to both the interim holder and the ultimate purchaser SPE.

 

(h)           NotwithstandingSection 2.02(b) and (e), with respect to Bank of America DTC Loans in pricingtiers [**] in Schedule 3.3 to the Guaranty Agreement (*“Lower Tier Loans”*), FMC shall specify aPurchase Date to purchase or cause a Purchaser Trust to purchase within thePurchase Period each and every Seasoned Loan held by Program Lender that is aLower Tier Loan. FMC shall have the sole and exclusive right to purchase allLower Tier Loans during the Purchase Period, which right may be assigned to oneor more Purchaser Trusts. FMC may reschedule the Purchase Date without penaltyof any kind, provided that the Purchase Date occurs prior to [**] for eachSeasoned Loan. The [**] with respect to any Lower Tier Loan that is a SeasonedLoan may be extended for a failure to comply with one or more conditions as setforth in Section 3.01(b). Program Lender agrees, in consideration of FMC’sundertaking pursuant to this section, not to sell or offer to sell to any thirdperson any interest in any Lower Tier Loan, except as set forth herein. In theevent that FMC (or a Purchaser Trust) shall fail to purchase any Lower TierLoan [**] then Program Lender shall be entitled to sell such Lower Tier Loan toany third party or to retain such Lower Tier Loans, in whole or in part, forits own account free and clear of any claim under this Agreements. In the eventthat Program Lender elects to sell such Lower Tier Loans to a third party, FMCshall pay to Program Lender the Lesser of (i) [**]% of the total principalamount of all Lower Tier Loans [**], or (ii) the amount

 

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by which [**] such LowerTier 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 TierLoans.

 

2.03.        PoolSupplement.

 

Eachpurchase and sale of the Seasoned Loans included in a Pool on a Purchase Dateshall be made pursuant to a Pool Supplement substantially in the form of ExhibitA which shall: (1) set forth the Minimum Purchase Price for the SeasonedLoans included in the Pool, (2) incorporate by reference the terms andconditions of this Agreement applicable to sales of Bank of America DTC Loans,and (3) include a schedule of Seasoned Loans setting forth the details andcharacteristics of each such Seasoned Loan included in the Pool. Each PoolSupplement shall be executed by an authorized agent of each Purchaser Trust andthe Program Lender and shall be delivered on the related Purchase Date. ThePurchaser Trust shall provide a preliminary settlement sheet in the form ofSchedule 1 to the Pool Supplement not less than two (2) Business Days prior tothe Purchase Date.

 

2.04.        MinimumPurchase Price.

 

On thePurchase Date, Program Lender shall assign and convey all Seasoned Loansincluded in the Pool to FMC, or a Purchaser Trust, in consideration of receiptof the Minimum Purchase Price therefor. For purposes of this Agreement the term*“Minimum Purchase Price”* shallmean the sum of:

 

(a)         Theunpaid principal amount [**] of the Seasoned Loans in the Pool; plus

 

(b)           Allaccrued and unpaid interest on such Bank of America DTC Loans, in accordancewith the terms of the Bank of America DTC Notes [**]; plus

 

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(c)           Allfees paid by the Program Lender to TERI with respect to such Bank of AmericaDTC Loans [**]; plus

 

(d)           Theamount of any Guaranty Fees [**] plus

 

(e)           Amarketing fee and loan premium, [**]:

 

1.             Withrespect to K-12 Creditworthy Loans, [**]%;

 

2.             Withrespect to Continuing Education Creditworthy Loans, [**]% [**] and [**]% [**];

 

3.             Withrespect to Undergraduate Creditworthy Loans, [**]% [**],[**]% [**]; [**]% [**];and [**]% [**]; and

 

4.             Withrespect to Graduate Creditworthy Loans, [**]% [**]; [**]% [**]; [**]% [**]; and[**]% [**].

 

2.05       VolumeIncentive. If, during any calendar year during the term of this Agreement,the total principal amount [**] of Bank of America DTC Loans disbursedhereunder during such year exceeds [**] dollars ($[**]), then the premiums tobe paid pursuant to Section 2.04 of this Agreement with respect to *“Undergraduate Creditworthy Loans”* and *“Graduate Creditworthy Loans”* shall beincreased by [**]%) (the *“Additional VolumePremium”*). Such increase in premium under Section 2.04 shall takeeffect with respect to loans made available for sale hereunder during the nextcalendar year. The increased premium shall terminate at the end of any calendaryear in which the total principal amount [**] of Bank of America DTC Loansdisbursed hereunder does not exceed [**] dollars ($[**]), but shall bereinstated if the above requirements are met in any subsequent calendar yearduring the Term of this Agreement. The Additional Volume premium shall not becumulative. For example, in the event that the total principal amount [**] ofBank of America DTC Loans disbursed hereunder during

 

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calendar years 2006 and2007 exceeds [**] dollars ($[**]), there will be [**]%) increase for SeasonedLoans 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 effectivewith respect to Bank of America DTC Loans the applications for which werereceived by Program Lender (or its processing agent) on or after April 1, 2006.

 

III.           **Procedures and Conditions for Transfer**.

 

3.01.        Conveyancesof Bank of America DTC Loans; Conditions to Purchase.

 

(a)           Oneach Purchase Date, upon execution and delivery of the related Pool Supplement,Program Lender shall sell, transfer, assign, set over and otherwise convey toFMC or the Purchaser Trust, without recourse, all right, title and interest ofProgram Lender in and to:

 

(1)           TheSeasoned Loans included in the related Pool originated by Program Lender andall payments due or to become due thereon;

 

(2)           Any claimsagainst TERI and proceeds of such claims with respect to origination of theSeasoned Loans included in the Pool;

 

(3)           Any claimsagainst Servicer with respect to servicing of the Seasoned Loans prior to thePurchase Date.

 

(4)           Theproceeds of any and all of the foregoing received after the Purchase Date orreceived prior thereto and not credited against the Minimum Purchase Price ascomputed on the Purchase Date; and

 

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(5)           All rightsof Program Lender under the Guaranty Agreement with respect to the SeasonedLoans in the Pool.

 

(b)           Theobligation of FMC and/or any Purchaser Trust to purchase the Seasoned Loans onthe related Purchase Date shall be subject to satisfaction of the followingconditions (any of which may be waived by FMC or such Purchaser Trust, in wholeor in part in its sole discretion):

 

(1)           ProgramLender shall have delivered to the Purchaser Trust a duly authorized andexecuted Pool Supplement;

 

(2)           Each ofthe representations and warranties made by Program Lender with respect to theSeasoned Loans included in such Pool shall be true and correct in all materialrespects as of the related Purchase Date;

 

(3)           The LoanOrigination Agreement and Servicing Agreement shall be in full force and effectas of the Purchase Date and shall not have been modified except with theexpress prior written consent of FMC and Program Lender;

 

(4)           (a)Program Lender shall have performed and observed the terms and conditions ofthis Agreement in all material respects;

 

(b)Program Lender and TERI shall have performed and observed the terms andconditions of the Loan Origination Agreement in all material respects and thereshall not have occurred a default thereunder;

 

(c)Program Lender and Servicer shall have performed and observed the terms andconditions of the Servicing Agreement in all material respects and there shallnot have occurred a default thereunder;

 

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(5)           ProgramLender shall have complied with the provisions of the Umbrella Agreementapplicable to the Seasoned Loans included in the Pool;

 

(6)           TheSeasoned Loans to be purchased shall have been originated and serviced inconformity with the Program Guidelines in all material respects and shall becovered by the Guaranty Agreement;

 

(7)           Ifrequested by FMC, TERI shall have executed and delivered a confirmation ofguaranty in the form of a Certificate of Guaranty, covering all Seasoned Loansbeing purchased, for the benefit of the Purchaser Trust and the indenturetrustee in the Securitization Transaction;

 

(8)           The Agent,acting pursuant to the Deposit and Security Agreement, shall have transferredto the indenture trustee in the Securitization Transaction the portion of thePledged Account and the Collateral specified in Section 4 of the Deposit andSecurity Agreement;

 

(9)           If requiredby any other lender whose loans are included in the Securitization Transaction,the Program Lender shall have executed and delivered a Co-LenderIndemnification Agreement substantially in the form of Exhibit B;

 

(10)         ProgramLender shall, at its own expense, on or prior to the Purchase Date, indicate incomputer files relating to Bank of America DTC Loans that the Seasoned Loansidentified in the related Pool Supplement have been sold to the Purchaser Trustpursuant to this Agreement and such Pool Supplement;

 

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(11)         ProgramLender hereby authorizes the filing of a UCC-1 financing statement with respectto the Seasoned Loans included in such Pool in the appropriate office of thejurisdiction in which the Program Lender is located (or, in the event of achange of law, Program Lender shall have taken, but at no additional cost orexpense to the Program Lender, such action as may be reasonably required by thePurchaser Trust);

 

(12)         As of suchPurchase Date: (i) Program Lender was not insolvent and will not becomeinsolvent as a result of the sale and transfer of Seasoned Loans on suchPurchase Date, (ii) Program Lender did not intend to incur or believe that itwould incur debts that would be beyond Program Lender’s ability to pay as suchdebts 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 isdefined by the rules and regulations promulgated by the Office of theComptroller of the Currency as in effect on the Purchase Date;

 

(13)         In thereasonable judgment of FMC, no Market Disruption Event has occurred; providedthat if satisfaction of the condition set forth in this Section 3.01(b)(13) isthe only outstanding condition to closing, FMC shall schedule a new PurchaseDate as soon as is reasonably practicable after the Market Disruption Event hasceased; and

 

(14)         ProgramLender shall have delivered to counsel for FMC a Certificate substantially inthe form of Exhibit D attached hereto.

 

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(c)           Theobligation of Program Lender to sell the Seasoned Loans included in the Pool ona 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 solediscretion):

 

(1)           PurchaserTrust shall have delivered to Program Lender a duly authorized and executedPool Supplement;

 

(2)           PurchaserTrust shall have paid the Minimum Purchase Price to Program Lender by wiretransfer of immediately available funds within twenty-four (24) hours after thePurchase Date (such Minimum Purchase Price shall be based on the bestinformation available from the Servicer as of the Purchase Date; no later thanthirty (30) days following the Purchase Date, the Purchaser Trust shallrecalculate the Minimum Purchase Price to reflect adjustments for transactions(including, without limitation, additional accrued interest and paymentsreceived), and whichever party is deemed to owe the other such adjustment shalldeliver such adjustment to such other party, by wire transfer of immediatelyavailable funds);

 

(3)           FMC shallhave complied with the terms of the Umbrella Agreement applicable to theSeasoned Loans included in the Pool and no default of FMC under the UmbrellaAgreement relating to any Seasoned Loan shall have materially impaired therights of the Program Lender in connection with the purchase and sale of thePool to be sold on the Purchase Date;

 

(4)           FMC andPurchaser Trust shall have executed and delivered an Indemnification Agreementsubstantially in the form of Exhibit C attached hereto, provided,however, that an Indemnification Agreement shall not be

 

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requiredif FMC executes and delivers to Program Lender a certificate which states thatno Offering Materials (as defined in Exhibit C attached hereto) weredistributed or provided to any securities purchaser or prospective purchaser inconnection with the Securitization Transaction in question;

 

(5)           In theevent the subject Pool contains loans originated by persons and entities otherthan Program Lender, and its designated agent (to the extent permitted underthe Umbrella Agreement), each such person and entity shall have delivered toProgram Lender a Co-Lender Indemnification Agreement;

 

(6)           If thetrustee or other fiduciary under the related Trust Indenture is not WachoviaTrust Company, N.A., Program Lender shall have approved such trustee or fiduciary,with such approval not to have been unreasonably withheld;

 

(7)           ProgramLender shall have received an opinion of Thatcher, Profitt & Wood or othersecurities counsel to the Purchaser Trust and FMC, addressed to Program Lenderand satisfactory to Program Lender in form and substance. Such opinion shall,with respect to any securities issued by the Purchaser Trust, state thatnothing has come to the attention of such counsel that would lead it to believethat the Offering Materials (as defined in the Indemnification Agreementattached hereto as Exhibit C) in connection with the matters describedtherein contain any untrue statement of a material fact or omit to state amaterial fact required to be stated

 

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thereinor necessary to make the statements therein not misleading; provided, however,that such securities counsel may except the B of A Information (as defined in ExhibitC attached hereto) from the scope of its opinion, and further provided,however, that such opinion shall not be required if FMC executes anddelivers to Program Lender a certificate which states that no OfferingMaterials (as defined in Exhibit C attached hereto) were distributed orprovided to any securities purchaser or prospective purchaser in connectionwith the Securitization Transaction in question; and

 

(8)           PurchaserTrust assumes certain liabilities as set forth in Section 3.07 of thisAgreement.

 

3.02.        Delivery of Documents.

 

On the Purchase Date, Program Lender shall deliverto the Servicer, as agent for the Purchaser Trust, and/or to the trustee of theTrust Indenture, each Bank of America DTC Note evidencing a Seasoned Loanincluded in the Pool and the related Origination Records. If a Co-LenderIndemnification Agreement is required as a condition of FMC’s or any PurchaserTrust’s obligations under Section 3.01(b) (8) hereof, Program Lender shallexecute and deliver a Co-Lender Indemnification Agreement to each lenderselling loans in the Securitization Transaction.

 

3.03.        Confirmationof Representations and Warranties.

 

Ineach Pool Supplement, Program Lender shall confirm and certify itsrepresentations and warranties contained herein as if fully set forth in thePool Supplement.

 

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3.04.        RightsTransferred.

 

Thetransfer of funds pursuant to Section 2.04 hereof shall constitute, and thedelivery to FMC, or its designated Purchaser Trust of each Pool Supplementshall evidence, a sale and assignment to FMC or the Purchaser Trust of therelated Seasoned Loans and of all of Program Lender’s interest in such SeasonedLoans. As purchaser of such Seasoned Loans, FMC or the Purchaser Trust shallreceive: (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 orProgram Lender from the borrowers and co-signers of such Seasoned Loans, orothers pursuant to, or in respect of, such Seasoned Loans from and after thePurchase Date, and all proceeds thereof.

 

3.05.        SubsequentReceipts.

 

In theevent that Program Lender shall receive, subsequent to any such assignment, anyamounts whatsoever in respect to the Seasoned Loans so assigned in the natureof those described in Section 3.04 above, such amounts shall be held by ProgramLender 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 dayto the trustee under the Trust Indenture.

 

3.06.        Assignmentof Origination Rights.

 

ProgramLender shall insure that Program Lender’s rights under the Servicing Agreementand the Loan Origination Agreement with respect to any matters occurring priorto the Purchase Date and affecting the Seasoned Loans included in each Pool shallbe transferred to FMC or the Purchaser Trust by execution and delivery of aPool Supplement. Program Lender shall require the party who originated eachsuch Seasoned Loan to complete any loan origination services being performedfor Program Lender on the Purchase Date so that complete Origination Recordsare ready for transfer to the Purchaser Trust (or to Servicer on its behalf).

 

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3.07.        NoAssumption of Liability to Fund Bank of America DTC Loan Notes.

 

Bytheir purchase of Seasoned Loans (and any related Bank of America DTC Notes),neither FMC nor any Purchaser Trust, shall assume any liability, responsibilityor obligation with respect to any disbursements or reimbursements that are dueand owing, or which are, or may be alleged to be due and owing, by ProgramLender to any Seasoned Loan borrower by reason of the Seasoned Loans includedin the Pool and evidenced by the Bank of America DTC Notes. Notwithstanding theforegoing, FMC or the Purchaser Trust shall assume from Program Lender anyliability to repurchase from TERI a defaulted Bank of America DTC Loan uponcure of the default, with respect to any such Bank of America DTC Loan thatwould be a Seasoned Loan but for such default and purchase by TERI. Suchrepurchase obligation shall be governed by the Certificate of Guarantydescribed in Section 3.01(b) (7), above. Such Certificate of Guaranty should besubstantially in the form of Exhibit C of the Guaranty Agreement.

 

3.08.        Servicingand Origination Costs.

 

ProgramLender shall be solely responsible for and shall pay all costs due to any thirdparty from Program Lender (including, without limitation, amounts due to TERIor Servicer) with respect to origination of Bank of America DTC Loans and withrespect to loan servicing of Bank of America DTC Loans incurred prior topurchase of a Bank of America DTC Loan hereunder. FMC shall be solelyresponsible for and shall pay any obligations it has incurred in connectionwith the Bank of America DTC Loans and shall be solely responsible forarranging and paying all costs for servicing of the Bank of America DTC Loansafter purchase of such Loans.

 

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3.09.        SecuritizationCosts.  FMC or the Purchaser Trust shall be solely responsiblefor and shall pay any Securitization Costs and any and all obligations it hasincurred in connection with the purchase, financing of purchase andsecuritization of the Seasoned Loans.

 

3.10.        Effectof Loan Cancellations.  In the event that the Borrower cancels aSeasoned Loan in a manner and at a time permitted under the Program Guidelines,if that Seasoned Loan has already been purchased under this Agreement, ProgramLender will return to the Purchaser Trust all amounts received by it withrespect to such purchase. FMC shall prepare an accounting of all suchcancellations within thirty (30) days after the last date permitted forcancellation of Seasoned Loans purchased on a particular Purchase Date.

 

IV.**           Limitation of Obligations of FMC andPurchaser Trust**. [Intentionally Omitted.]

 

V.            **Representations and Warranties**.

 

5.01.        Representationsand Warranties of FMC.

 

FMCmakes the following representations and warranties as of the date hereof, as ofthe date of each purchase of Seasoned Loans and as of any other date specifiedbelow. FMC shall cause each Purchaser Trust to make substantially the samerepresentations and warranties in a Pool Supplement as of the date of eachpurchase of Seasoned Loans:

 

(a)           FMCrepresents and warrants that it is and shall remain a Delaware corporation dulyorganized, validly existing and in good standing under the laws of the State ofDelaware, and has the requisite corporate authority to conduct all activitiesand consummate all transactions contemplated by this Agreement.

 

(b)           FMChas all requisite corporate power and authority to execute, deliver and performits 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

 

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constitutes the legal,valid and binding obligation of FMC enforceable against FMC in accordance withits terms, except that such enforceability may be limited by bankruptcy, insolvency,reorganization or other similar laws.

 

(c)           Neitherthe execution and delivery of this Agreement, the consummation of thetransactions contemplated hereby, nor the fulfillment of or compliance with theterms and conditions hereof, will conflict with, or result in a breach of, orconstitute a default under, any of the terms, conditions or provisions of anylegal restriction or any agreement or instrument to which FMC is now a party orby which it is bound.

 

5.02.        Representationsand Warranties of Program Lender.

 

ProgramLender makes the following representations and warranties as of the datehereof, as of the date of each sale of Seasoned Loans to FMC or a PurchaserTrust, and as of any other date specified below:

 

(a)           ProgramLender represents and warrants that it is, and shall continue to be, a nationalbanking association duly organized, validly existing and in good standing underthe laws of the United States, and has the requisite authority to conduct allactivities and consummate all transactions contemplated by this Agreement.

 

(b)           ProgramLender has all requisite power and authority to execute, deliver and performits obligations under this Agreement, and has duly authorized the execution,delivery and performance of, and has duly executed and delivered thisAgreement, and this Agreement, together with each Pool Supplement executedpursuant hereto, constitutes the legal, valid and binding obligation of ProgramLender enforceable against Program Lender in accordance with its terms, exceptas such enforceability may be limited by (i) receivership, conservatorship andsupervisory powers of bank regulatory agencies generally, (ii) applicablebankruptcy,

 

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receivership,conservatorship, insolvency, reorganization, moratorium or other similar lawsaffecting creditors’ rights generally from time to time in effect, or (iii)general principles of equity.

 

(c)           Neitherthe execution and delivery of this Agreement, the consummation of thetransactions contemplated hereby, nor the fulfillment of or compliance with theterms and conditions hereof, will conflict with, or result in a breach of, orconstitute a default under, any of the terms, conditions or provisions of anylegal restriction or any agreement or instrument to which Program Lender is nowa party or by which it is bound.

 

(d)           Eachof the Bank of America DTC Loans originated by Program Lender and sold to FMCor a Purchaser Trust pursuant to any Securitization Transaction (i) is thevalid, binding and enforceable obligation of the borrower executing the same,and of any cosigner thereto, duly and properly executed by each borrower, anystudent maker named therein, and any cosigner thereunder, and enforceableagainst each borrower, any student maker named therein, and any cosignerthereunder in accordance with its terms except as enforceability may beaffected by bankruptcy, insolvency, moratorium or other similar laws affectingthe rights of creditors generally and by equitable principles, (ii) is covered byand 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 SeasonedLoan, fully disbursed with no further requirement for future advancesthereunder.

 

(e)           Each Bank of America DTC Loan was originated in theUnited States of America, its territories, its possessions or other areassubject to its jurisdiction by Program Lender, or its agents, in the ordinarycourse of its business and was made to a borrower with legal capacity toexecute and deliver the Bank of America DTC Note under applicable law. EachBank of

 

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America DTC Loan originated by Program Lender soldhereunder and any accompanying notices and disclosures;

 

(i)            Conforms to allapplicable state and federal laws, rules and regulations, and

 

(ii)           Was documentedon 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 thepayment schedule with respect thereto is determined, will provide for paymentson a periodic basis that fully amortize the principal amount of the Bank ofAmerica DTC Loan by its maturity, as such maturity may be modified inaccordance with any applicable deferral or forbearance periods granted inaccordance with applicable laws and the Program Guidelines; and

 

(iii)          Containedconsumer loan terms and involved guaranty fees payable to TERI in strictconformity with the Program Guidelines.

 

Theorigination, servicing andcollection (if any) of each Bank of America DTC Loan wasconducted in accordance with;

 

(i)            The ProgramGuidelines, including, without limitation, the requirements therein that

 

(A)          No loan be originatedfor a dead borrower or a borrower involved in a bankruptcy proceeding.

 

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(B)           At least one borrowerfor each loan must be a United States citizen/national or a permanent residentalien of the United States, and

 

(C)           The borrower must haveattained the age of majority at the time of the loan application, and

 

(ii)           And allapplicable state and federal laws including, without limitation, the EqualCredit Opportunity Act.

 

Noapplication to Program Lender for a Bank of America DTC Loan shall be, or hasbeen, rejected, approved or discouraged by Program Lender on the basis of race,sex, color, religion, national origin, age (other than laws limiting thecapacity to enter a binding contract) or marital status, the fact that all or apart of the borrower’s or co-signer’s, income derives from any publicassistance program, or the fact that the applicant, borrower or any co-signerhas, in good faith, exercised any right under the Consumer Credit ProtectionAct.

 

(f)            EachBank of America DTC Loan originated by Program Lender sold to FMC or PurchaserTrust is in compliance with any applicable usury laws at the time made and as of the time ofassignment to FMC or a Purchaser Trust.

 

(g)           Thereis no defense to payment, counterclaim, right of rescission or setoff withrespect 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 AmericaDTC Loan sold under this Agreement has taken place on the part of any partyinvolved in the origination of the Bank of America DTC Loan (including, withoutlimitation, fraud by the obligor under the Bank of America DTC Note.There is no action before any state or federal court, administrative orregulatory body, pending or threatened against Program Lender in which

 

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an adverse result would havea material adverse effect upon the validity or enforceability of Bank ofAmerica DTC Loans originated by Program Lender and included in the Pool.

 

(h)           Eachand every Bank of America DTC Loan sold pursuant to this Agreement is owned byProgram 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 aPurchaser Trust.

 

(i)            Withrespect to each Bank of America DTC Note originated by Program Lender andincluded in the Pool:  (A) the termsthereof have not been impaired, waived, altered or modified in any respect,except pursuant to written forbearance agreements in accordance with therequirements of and in the terms set forth in the Program Guidelines, (B) the borrower is not entitled to anyrefund, rebate, or reduction of any amounts paid or due except in accordancewith Section 3.10 hereof and the cancellation policy in the Program Guidelines,and (C) such Bank of America DTC Note has been serviced at alltimes in accordance with the Program Guidelines, including, without limitation the forms of promissory notetherein, and is held by the Servicer pursuant to the Servicing Agreement.

 

5.03.        ExclusiveRepresentations and Warranties.

 

Therepresentations and warranties set forth in Section 5.02 above are the sole andexclusive representations and warranties made by the Program Lender, itsrepresentatives, agents, officers, directors and other employees, with respectto this Agreement, any Pool Supplement, any Bank of America DTC Loan, anyobligor, and the sale of any Bank of America DTC Loan to the Purchaser Trusthereunder or otherwise. 

 

5.04.        Remedyfor Breach of Representations and Warranties.

 

In theevent any representation or warranty made by Program Lender pursuant to Section5.02 above shall prove to be inaccurate or incomplete as of the date when made,Program Lender

 

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shall have the right (butnot the obligation) to elect by written notice to FMC to be given by ProgramLender no later than sixty (60) days after receipt of written notice from FMCof such alleged breach to repurchase the affected Bank of America DTC Loan orLoans no later than such sixtieth (60th) day for a cash purchaseprice equal to the outstanding principal balance thereof plus all accrued andunpaid interest. Upon receipt of said repurchase price, FMC shall, or, ifapplicable, shall cause the Purchaser Trust or the Servicer to, immediatelydeliver the Bank of America DTC Note and the Origination Records relatingthereto to Program Lender, duly endorsed or assigned to Program Lender or tosuch person as Program Lender may direct, in any such case, without recourse toFMC or the Purchaser Trust. Whether or not Program Lender exercises its rightof repurchase, Program Lender shall indemnify FMC, any Purchaser Trust and anyfiduciary under the Trust Agreement pursuant to Article VIII of this Agreement; provided, however, that if thebreach of the representation and warranty is due to fraud by the obligor underthe Bankof 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 (includingany marketing fee and loan premium previously paid to Program Lender for theaffected loan) and (c) the provisions of Article VIII of this Agreement shallbe inapplicable to the affected loan.

 

VI.           [Intentionally LeftBlank]

 

VII.          **Miscellaneous**.

 

7.01.        NoAssignment.

 

Noparty may assign its rights or obligations under this Agreement without theprior written consent of the parties hereto, provided, however,that: (a) Program Lender may assign its rights hereunder to an Affiliate thatis a national banking association, state-chartered bank or other lenderhaving the legal power and right under applicable law (including, withoutlimitation,

 

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usury law in the Statewhere it is located) to make Bank of America DTC Loans, and (b) FMC shall mayassign its rights hereunder to one or more Purchaser Trusts or other interim orpermanent holders of Bank of America DTC Loans. No assignment shall relieve the assignor of liability hereunder. Anyassignment in violation of this Section 7.01 shall be automatically null andvoid.

 

7.02.        Amendment.

 

ThisAgreement may not be amended nor terms or provisions hereof waived unless suchamendment or waiver is in writing and signed by all parties hereto.

 

7.03.        NoWaiver.

 

Nodelay or failure by any party to exercise any right, power or remedy hereundershall constitute a waiver thereof by such party, and no single or partialexercise by any party of any right, power or remedy shall preclude other orfurther exercise thereof or any exercise of any other rights, powers orremedies.

 

7.04.        EntireAgreement.

 

ThisAgreement and the documents and agreements referred to herein embody the entireagreement and understanding among the parties hereto and supersede all prioragreements and understandings relating to the subject matter hereof andthereof.

 

7.05.        Notices.

 

Allnotices 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. Noticesshall be given as follows:

 

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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 acopy to:

 

Laura L. Rogers

Assistant General Counsel

Bank of America, N.A.

800Market Street

11th Floor

St. Louis, MO 63101

 

 

If toFMC:

 

President

TheFirst Marblehead Corporation

34thFloor

800Boylston Street

Boston,MA  02199-8157

 

 

With acopy to:

 

LegalDepartment

TheFirst Marblehead Corporation

34thFloor

800Boylston Street

Boston,MA  02199-8157

Legal@FirstMarblehead.com

 

7.06.        Attorneys’Fees.

 

In theevent of a lawsuit or arbitration proceeding arising out of or relating to thisAgreement, the prevailing party shall be entitled to recover costs andreasonable attorneys’ fees

 

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incurred in connectionwith the lawsuit or arbitration proceeding, as determined by the court orarbitrator.

 

7.07.        GoverningLaw. This Agreement shall be governed by and construed in accordance withthe laws of North Carolina (without reference to choice-of-law rules).

 

7.08.        Counterparts.

 

ThisAgreement may be executed in any number of counterparts, all of whichtogether shall constitute one agreement.

 

7.09.        NoThird Parties Benefited.

 

ThisAgreement is made and entered into for the protection and legal benefit of theparties, and their permitted successors and assigns (including, withoutlimitation, any Purchaser Trust), and each and every Indemnified Person (all ofwhich shall be entitled to enforce the Indemnity contained in Sections 8.01 and8.02 hereof), 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.

 

7.10.        Opinions.

 

Concurrentwith the execution hereof, each party shall deliver to the other the opinion ofits corporate counsel (which may be internal counsel) to the effect thatthis Agreement has been duly authorized by all necessary corporate or otherorganizational action, this Agreement is within the corporate or otherorganizational power of such party and that this Agreement has been dulyexecuted and delivered by an authorized officer of the party.

 

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VIII.        **Indemnification.**

 

8.01.        ByProgram Lender.

 

Regardlessof the exercise or nonexercise of the repurchase right under Section 5.04,Program Lender shall indemnify and hold harmless FMC, each Purchaser Trust andany fiduciary under any Trust Indenture, and any officer, director, employee oragent of any of the foregoing (herein, collectively referred to as the *“Indemnified Persons”*) against any and allliabilities, losses, costs, damages and expenses, including, withoutlimitation, attorneys’ fees and legal expenses and sums paid, liabilitiesincurred or expenses paid or incurred in connection with settling claims, suitsor judgments or obtaining or attempting to obtain release from liability underthe Trust Indenture or this Agreement which such Indemnified Person may sustainor incur by reason of any uncured breach of any representation, warranty orcovenant of Program Lender contained herein; provided, furtherthat the foregoing indemnification shall also apply to a breach ofrepresentation, warranty or covenant that has been cured, to the extent thatthe cure in question did not reimburse the Indemnified Person for damages orlosses incurred on account of such breach prior to the date of such cure.

 

8.02.        ByFMC.

 

FMC orthe applicable Purchaser Trust, as the case may be, shall indemnify andhold harmless Program Lender, its successors and permitted assigns and anyofficer, director, employee or agent of Program Lender (herein, collectivelyreferred to as *“Indemnified Persons”*)against any and all liabilities, losses, costs, damages, and expenses,including, without limitation, attorneys’ fees and legal expenses and sumspaid, liabilities incurred or expenses paid or incurred in connection withsettling claims or judgments or obtaining or attempting to obtain release fromliability, which such Indemnified Person may sustain or incur by reason ofany uncured breach of

 

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any representation,warranty or covenant of FMC or the applicable Purchaser Trust, as the case may be,contained herein; provided, further that the foregoing indemnificationshall also apply to a breach of representation, warranty or covenant that hasbeen cured, to the extent that the cure in question did not reimburse theIndemnified Person for damages or losses incurred on account of such breachprior to the date of such cure.

 

8.03.**       **Indemnity Procedures.

 

(a)           Inthe event that any claim or demand for which an indemnifying party would beliable to an Indemnified Person hereunder is asserted against or sought to becollected from an Indemnified Person by a third party (an *“Action”*), the Indemnified Person shallpromptly notify the indemnifying party of such Action, specifying the nature ofsuch claim or demand and the amount or the estimated amount thereof to theextent feasible (which estimate the parties agree shall not be conclusive ofthe final amount of such claims and demand) (the *“Claim Notice”*). The failure to provide the Claim Notice tothe indemnifying party promptly will not relieve the indemnifying party of anyliability it may have to the Indemnified Person giving the Claim Notice,except to the extent that the indemnifying party demonstrates that the defenseof such action is actually and materially prejudiced by the indemnifying party’sfailure to give such Claim Notice promptly. The indemnifying party shall haveten (10) days from the delivery of the Claim Notice (the *“Notice Period”*) to notify the IndemnifiedPerson: (1) whether or not the indemnifying party disputes liability tothe Indemnified Person hereunder with respect to such claim or demand; and (2) notwithstandingany such dispute, whether or not the indemnifying party desires, at its solecost and expense, to defend the Indemnified Person against such claim or demandin which case the indemnifying party shall assume all past and future responsibilityfor such action and shall reimburse the Indemnified Person for all expenses inconnection with the

 

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Action. Notwithstandingthe assumption by the indemnifying party of the defense of any Action, theIndemnified Person shall be permitted to participate in such defense at itscost and expense. If the indemnifying person elects to defend the IndemnifiedPerson, notice shall be given within the Notice Period, then the indemnifyingparty will have the right and obligation to defend the Indemnified Person byappropriate proceedings, which shall be followed to a final conclusion.

 

(b)           Ifthe indemnifying party elects not to defend the Indemnified Person against suchAction, whether by not giving the Indemnified Person timely notice as providedabove, or otherwise, then the Action may be defended by the IndemnifiedPerson at the indemnifying party’s cost and expense (without imposing anyobligation on any Indemnified Person to defend any such claim or demand), inwhich case it may defend such Action in such a manner as it may deemappropriate (including settlement) and then that portion thereof as to whichsuch defense is unsuccessful, in each case, shall be conclusively deemed to bea liability of the indemnifying party hereunder; provided that if theindemnifying party shall have disputed its liability to the Indemnified Personhereunder, then such determination or settlement shall not affect the right ofthe indemnifying party to dispute the Indemnified Person’s claim forindemnification.

 

(c)           Inthe event an Indemnified Person should have a claim against the indemnifyingparty hereunder that does not involve a claim or demand being asserted againstor sought to be collected from it by a third party, the Indemnified Personshall promptly send a Claim Notice with respect to such claim to theindemnifying party. If the indemnifying party disputes its liability withrespect to such claim or demand, the Indemnified Person shall have the right topursue all of its legal and equitable remedies against the indemnifying partyfor indemnity hereunder.

 

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8.04.**       **Payment. Upon the determination ofthe liability under Section 8.03 hereof, the indemnifying party shall payto the Indemnified Person within ten (10) days after such determination,the amount of any claim for indemnification made hereunder, subject to thelimitations set forth herein. Upon payment in full of any claim, either by setoff or otherwise, the entity making payment shall be subrogated to the rightsof the Indemnified Person against any Person, with respect to the subjectmatter of such claim.

 

IX**.****           DisputeResolution**

 

9.01.        InformalDispute Resolution.

 

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:

 

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

 

(b)           Thedesignated representatives shall meet beginning within five (5) BusinessDays after the last representative is appointed as described above and shallmeet as often as the parties reasonably deem necessary to discuss the problemin an effort to resolve the Dispute without the necessity of any formalproceeding.

 

(c)           Arbitrationproceedings for the resolution of a Dispute under Section 9.02 may notbe commenced until the earlier to occur of the following:

 

(i)            The designatedrepresentatives conclude in good faith that amicable resolution throughcontinued negotiation of the matter does not appear likely; or

 

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(ii)           The expiration of thethirty (30)-day period immediately following the initial request to negotiatethe Dispute.

 

9.02.        Arbitration.

 

If the provisions of Section 9.01 have beensatisfied, but the Dispute has not been resolved, then the Dispute shall besettled pursuant to the following:

 

(a)           Anycontroversy or claim between or among the parties arising out 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 giveeffect to statutes of limitation in determining any claim. Any controversyconcerning whether an issue is arbitrable shall be determined by thearbitrator(s). Judgment upon the arbitration award may be entered in anycourt having jurisdiction. The institution and maintenance of an action forjudicial relief or pursuit of a provisional or ancillary remedy shall notconstitute a waiver of the right of any party, including the plaintiff, tosubmit the controversy or claim to arbitration if any other party contests suchaction for judicial relief.

 

(b)           Noprovision of this Section shall limit the right of any party to thisAgreement to exercise self-help remedies such as setoff, foreclosure against orsale of any real or personal property collateral or security, or obtainingprovisional or ancillary remedies from a court of competent jurisdictionbefore, after, or during the pendency of any arbitration or other proceeding. Theexercise of a remedy does not waive the right of either party to resort toarbitration or reference.

 

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(c)           Eachparty shall bear its own costs and expenses and an equal share of thearbitrator’s and administrative fees of arbitration.

 

9.03.        PermissibleLegal Proceedings.

 

Notwithstanding anything contained in Sections 9.01and 9.02, (a) a party may institute legal proceedings to seek atemporary restraining order or other temporary or preliminary injunctive reliefto prevent 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 (b) 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 9.03.

 

X.            **Term and Termination.**

 

10.01.      Termand Termination. This Agreement shall remain in full force and effect untilexpiration or termination of the Umbrella Agreement. The provisions of thefollowing sections shall survive in perpetuity any termination of thisAgreement:

 

a.                                       Section 2(b) ofthe Umbrella Agreement;

 

b.                                      Asto any Bank of America DTC Loan purchased hereunder, until such loan is repaidin full, the representations and warranties contained in Article V of thisAgreement; and

 

c.                                       Article VIIIof this Agreement.

 

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XI.           **Facsimile Communications.**

 

Inorder to comply with federal regulations governing unsolicited facsimilecommunications, senders of facsimile communications must obtain express writtenpermission from the recipients of such communications prior to initiating suchcommunications. By executing this Agreement, each party hereby gives itsexpress permission to the other parties to initiate facsimile communications,and consents to receiving facsimile communications from the other parties. Allsuch facsimile communications should be directed to the applicable facsimilenumber for each party listed in the applicable Program Agreement, unlessotherwise instructed in writing by the recipient of the facsimile. This consentto facsimile communications does not supersede any requirement in thisAgreement or the Umbrella Agreement to deliver notices thereunder by meansother than facsimile.

 

XII.         **Compliance With Regulation AB** .

 

12.01Information to be provided by Program Lender

 

Inconnection with any Securitization Transaction, the Program Lender shall, (i) withinfive (5) Business Days following request by FMC or any Depositor, provideto FMC and such Depositor, in writing and in form and substance reasonablysatisfactory to FMC and such Depositor, the information and materials specifiedin paragraph (a) of this Section, and (ii) as promptly as practicablefollowing notice to or discovery by the Program Lender, provide to FMC and anyDepositor (in writing and in form and substance reasonably satisfactory toFMC and such Depositor) the information specified in paragraph (b) of thisSection.

 

(a)           Ifso requested by FMC or any Depositor, the Program Lender shall provide suchinformation regarding (i) the Program Lender, as originator of the Bank ofAmerica DTC Loans,

 

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as is requested forcompliance with Items 1103(a)(l), 1110, 1117 and 1119 of Regulation AB. Suchinformation shall include, at a minimum:

 

(A) TheProgram Lender’s form of organization;

 

(B) A description ofthe Program Lender’s origination program and how long the Program Lender hasbeen engaged in originating student loans, which description shall include adiscussion of the Program Lender’s experience in originating student loans of asimilar type as the Bank of America DTC Loans, information regarding the sizeand composition of the Program Lender’s origination portfolio and informationthat 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’scredit-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 anyDepositor may reasonably request for the purpose of compliance with Item1110(b)(2) of Regulation AB;

 

(C) Adescription of any material legal or governmental proceedings pending (or knownto be contemplated) against the Program Lender (including without limitationany 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)          Adescription of any affiliation or relationship between the Program Lender andany of the following parties to a Securitization Transaction, as such partiesare identified to the Program Lender or any Depositor in writing in advance ofsuch Securitization Transaction: (1) the sponsor; (2) the Depositor; (3) theissuing entity; (4) any servicer; (5) any

 

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trustee; (6) anyoriginator; (7) any significant obligor; (8) any enhancement orsupport provider; and (9) any other material transaction party.

 

(b) For the purpose of satisfying reportingobligations under the Securities Exchange Act of 1934, as amended, the ProgramLender shall notify FMC or any Depositor in writing of (A) any materiallitigation or governmental proceedings pending against the Program Lender(including without limitation any legal or governmental proceedings pending, orknown to be contemplated, material to the Bank of America DTC Loans or loans ofa similar type), (B) any affiliations or relationships that developfollowing the closing date of a Securitization Transaction between the ProgramLender and any of the parties specified in (a) (D) of this Section withrespect to such Securitization Transaction, (C) any event of default underthe terms of this Agreement, (D) any merger, consolidation or sale ofsubstantially all of the assets of the Program Lender, and (ii) provide toFMC, and any Depositor a description of such proceedings, affiliations orrelationships.

 

 [Balance of this page intentionallyleft blank]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement asof the day and year first above written.

 
| WITNESS:                  | BANK OF AMERICA,  N.A.:           |   |
|---------------------------|-----------------------------------|--------|
|                      |                              |   |
|                      |                              |   |
|                      |                              |   |
|                      |                              |   |
| /s/ Carole G.  McSwain    |                              | By:    | /s/ Tracy J. Grooms |   |
| Print Name:               |  Carole G.  McSwain          |   | Print Name: | Tracy J. Grooms |   |
|                      |                              | Title: | Senior Vice President |   |
|                      |                              |   |   |
|                      | THE FIRST  MARBLEHEAD CORPORATION |
|                      |                              |   |   |
|  /s/ Steven J. Scott |                              | By:    | /s/ Jack L. Kopnisky |   |
| Print Name:               |   Steven  J. Scott      |   | Print Name: | Jack L. Kopnisky |   |
|                      |                              | Title: | CEO |   |
|                           |                                   |        |  |  |  |  |  |  |  |  |

 

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Note Purchase Agreement

Index to Exhibits

 

Exhibit A                PoolSupplement

 

Exhibit B                IndemnificationAgreement

 

Exhibit C                Co-LenderIndemnification Agreement

 

Exhibit D                Certificateof Bank of America, N.A.

 

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EXHIBIT ATO NOTE PURCHASE AGREEMENT

 

[Form ofPool Supplement]

 

This PoolSupplement (“Supplement”) is entered into pursuant to and forms a part ofthat 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 meaningset forth in the Agreement.

 

Article 1:  Purchase and Sale.

 

Inconsideration of the Minimum Purchase Price set forth in Schedule 1attached hereto, Program Lender hereby transfers, sells, sets over and assignsto [name of purchasing entity] (“Purchaser Trust”), upon the terms andconditions set forth in the Agreement (which are incorporated herein byreference with the same force and effect as if set forth in full herein), eachBank of America DTC Loan described in the attached Schedule 2 (“theTransferred Bank of America DTC Loans”) along with all of Program Lender’srights under the Guaranty Agreement relating to the Transferred Bank of AmericaDTC Loans. Program Lender hereby transfers and delivers to the Purchaser Trusteach Bank of America DTC Note evidencing such Bank of America DTC Loan and allOrigination Records relating thereto, in accordance with the terms of theAgreement. Purchaser Trust hereby purchases said Bank of America DTC Notes onsaid terms and conditions.

 

Article 2:  Price.

 

Theamount paid pursuant to this Supplement is the MinimumPurchase Price, as that term is defined in Section 2.04 of the Agreement.

 

Article 3:  Representations and Warranties.

 

3.01.        By Program Lender.

 

ProgramLender repeats the representations and warranties contained in Section 5.02of the Agreement and confirms the same are true and correct as of the datehereof with respect to the Agreement and to this Supplement.

 

3.02.        By Purchaser Trust.

 

ThePurchaser Trust hereby represents and warrants to the Program Lender that atthe date of execution and delivery of this Supplement by the Purchaser Trust:

 

(a)           The Purchaser Trust is duly organized andvalidly existing as a business trust under the laws of the State of Delawarewith the due power and authority to own its properties

 

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and to conductits business as such properties are currently owned and such business ispresently conducted, and had at all relevant times, and has, the power,authority and legal right to acquire and own the Transferred Bank of AmericaDTC Loans.

 

(b)           The Purchaser Trust is duly qualified todo business and has obtained all necessary licenses and approvals, in alljurisdictions in which the ownership or lease of property or the conduct of itsbusiness shall require such qualifications.

 

(c)           The Purchaser Trust has the power andauthority to execute and deliver this Pool Supplement and to carry out itsrespective terms; the Purchaser Trust has the power and authority to purchasethe Transferred Bank of America DTC Loans and rights relating thereto asprovided herein from the Program Lender and the Purchaser Trust has dulyauthorized such purchase from the Program Lender by all necessary action; andthe execution, delivery and performance of this Pool Supplement has been dulyauthorized by the Purchaser Trust by all necessary action on the part ofthe Purchaser Trust.

 

(d)           This Pool Supplement, together with theAgreement of which this Supplement forms a part, constitutes a legal, valid andbinding obligation of the Purchaser Trust, enforceable in accordance with itsterms.

 

(e)           The consummation of the transactionscontemplated by the Agreement and this Supplement and the fulfillment of theterms hereof do not conflict with, result in any breach of any of the terms andprovisions of, or constitute (with or without notice or lapse of time) adefault under, the governing instruments of the Purchaser Trust or anyindenture, agreement or other instrument to which the Purchaser Trust is aparty or by which it is bound; or result in the creation or imposition of anylien 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 orregulation applicable to the Purchaser Trust of any court or of any federal orstate regulatory body, administrative agency or other governmentalinstrumentality having jurisdiction over the Purchaser Trust or its properties.

 

(f)            There are no proceedings orinvestigations pending, or threatened, before any court, regulatory body,administrative agency or other governmental instrumentality having jurisdictionover the Purchaser Trust or its properties: (1) asserting the invalidityof the Agreement or this Pool Supplement, (2) seeking to prevent theconsummation of any of the transactions contemplated by the Agreement or thisPool Supplement, or (3) seeking any determination or ruling that is likelyto materially or adversely affect the performance by the Purchaser Trust of itsobligations under, or the validity or enforceability of the Agreement or thisPool Supplement.

 

Article 4:  Cross Receipt.

 

ProgramLender hereby acknowledges receipt of the Minimum Purchase Price. PurchaserTrust hereby acknowledges receipt of the Transferred Bank of America DTC Loansincluded in the Pool.

 

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Article 5:  Assignment of Origination, Guaranty andServicing Rights.

 

OPTIONONE – Purchaser Assures Program Lender’s Servicing Agreement Program Lenderhereby assigns and sets over to Purchaser Trust so much of its rights under theGuaranty Agreement, the Loan Origination Agreement, and the Servicing Agreementas relate to the Transferred Bank of America DTC Loans described in Schedule 2,including, without limitation, the right to continued loan servicing under theServicing Agreement pursuant to a Servicing Assignment and Servicer consentLetter delivered herewith.

 

Article 6:Owner Trustee.

 

It isexpressly understood and agreed by the parties hereto that (a) this PoolSupplement is executed and delivered by                                                     (the“Owner Trustee”) not individually or personally, but solely as owner trustee ofthe Purchaser Trust under the Trust Agreement dated as of                                              ,with                                              ,in the exercise of the powers and authority conferred and vested in it, (b) eachof the representations, undertakings and agreements herein made on the part ofthe Purchaser Trust are made and intended not as personal representations,undertakings and agreements by the Owner Trustee, but are made and intended forthe purpose for binding only the Purchaser Trust, (c) nothing hereincontained shall be construed as creating any personal or individual liabilityon the Owner Trustee, to perform any covenant either expressed or impliedcontained herein, all such liability, if any, being expressly waived by theparties hereby and by any person claiming by, through, or under the partieshereto, and (d) under no circumstances shall the Owner Trustee bepersonally liable for the payment of any indebtedness or expenses of thePurchaser Trust or be liable for the breach or failure of any obligation,representation, warranty or covenant made or undertaken by the Purchaser Trustunder this Supplement or any other documents related to the Bank of America DTCNotes.

 

INWITNESS WHEREOF, the parties have caused this Supplement to be executed as ofthe date set forth above.

 

 
|   | THE FIRST  MARBLEHEAD  CORPORATION |
|--------|------------------------------------|
|   |                               |
|   |                               |
|   | By:                                |   |   |
|   | Name:                              |   |   |
|   | Title:                             |   |   |
|        |                                    |  |  |  |  |

 

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|   | PURCHASER  NAME:        |
|--------|-------------------------|
|   |                    |
|   |                    |
|   | By: OWNER  TRUSTEE      |
|   |                    |
|   | By:                     |   |   |
|   | Print Name:             |   |   |
|   | Title:                  |   |   |
|   |                    |
|   |                    |
|   | BANK OF  AMERICA, N.A.: |
|   |                    |
|   |                    |
|   |                    |   |
|   |                    |
|   |                    |
|   | By:                     |   |   |
|   | Print Name:             |   |   |
|   | Title:                  |   |   |
|        |                         |  |  |  |  |  |  |  |

 

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**EXECUTION COPY**

 

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: UndergraduateLoans

 
| **Number**        | ** ** | ** **                 | ** ** | ** **                 | ** ** | ** **                | ** ** | ** **              | ** ** | ** **    | ** ** | ** **               | ** ** |
|-------------------|------------|----------------------------|------------|----------------------------|------------|---------------------------|------------|-------------------------|------------|---------------|------------|--------------------------|------------|
| **Of Loans** | ** ** | **Total Outstanding** | ** ** | **Total Outstanding** | ** ** | **TERI Origination** | ** ** | **Marketing Fee/** | ** ** | **Net**       | ** ** | **Marketing Fee**   | ** ** |
| **Loan**          | ** ** | **Principal**              | ** ** | **Interest**               | ** ** | **Fees**                  | ** ** | **Premium**             | ** ** | **Principal** | ** ** | **as% of Net** | ** ** |
|              |       |                       |       |                       |       |                      |       |                    |       |          |       |                     |       |
|              |       |                       |       |                       |       |                      |       |                    |       |          |       |                     |       |
|              |       |                       |       |                       |       |                      |       |                    |       |          |       |                     |       |

 

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EXHIBIT B TO NOTE PURCHASE AGREEMENT

CO-LENDER INDEMNIFICATION AGREEMENT

 

 THIS CO-LENDER INDEMNIFICATION AGREEMENT (the “Agreement”)is made as of [**DATE]**, byand between [Names and Addresses of Co-Lenders] (“Co-Lender”), and Bank ofAmerica, N.A. (“Program Lender”), a national banking association organizedunder the laws of the United States, with its headquarters and principal placeof business located at 600 Wilshire Blvd., Los Angeles, California (Co-Lenderand Bank of America are sometimes collectively referred to as the “Lenders” andare each sometimes severally referred to as a “Lender”).

 

RECITALS

 

A.            The Lendersare participants in certain private education loan programs to pay the costs ofattending institutions of education which are themselves participants in theTERI Program (the “Participating Institutions”) whereunder such loans (the “TERILoans”) are guaranteed by The Education Resources Institute, Inc. (“TERI”)(collectively, the “TERI Programs”).

 

B.            Each ofthe Lenders, individually, have entered into an agreement (each, a “PurchaseAgreement”) with The First Marblehead Corporation or The National CollegiateTrust, pursuant to which Purchase Agreements such Lenders have agreed to sellcertain TERI Loans to [Name of Purchasing Entity] (the “Purchaser Trust”), eachsuch purchase to be funded through the issuance and sale of certificates, bondsor other evidences of indebtedness, the repayment of which are supported bysuch TERI Loans (the “Subject Securitization Transaction”).

 

C.            As acondition precedent to the obligation of each Lender to consummate the sale ofTERI Loans originated by them to the Purchaser Trust, all Lenders whose TERILoans will be included in the Subject Securitization Transaction are requiredto execute and deliver to the other Lenders requesting same a copy of thisAgreement.

 

NOW, THEREFORE, in consideration of the foregoingRecitals and for other good and valuable consideration, the receipt andadequacy of which are hereby acknowledged, the parties hereto hereby agree asfollows:

 

ARTICLE I

REPRESENTATIONS AND WARRANTIES

 

1.01.        EachLender represents and warrants to each other Lender requesting this Agreement,as to itself, that as of the date hereof:

 

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(a)           It is a [             ]duly organized, validly existing and in good standing under the laws of theUnited States and has the power and authority to originate and/or hold TERILoans, to consummate the transaction contemplated by the Purchase Agreement towhich it is a party, and to execute and deliver and perform itsobligations under this Agreement;

 

(b)           ThisAgreement has been duly authorized, executed and delivered and constitutes itslegal, valid and binding obligation, enforceable against it in accordance withits terms except as enforceability may be limited by (a) thereceivership, conservatorship and similar supervisory powers of bank regulatoryagencies generally, as well as bankruptcy, insolvency, liquidation,receivership, moratorium, reorganization or other similar laws affecting theenforcement of the rights of creditors; (b) general principles of equity(including availability of equitable remedies), whether enforcement is soughtin a proceeding in equity or at law; and (c) applicable securities lawsand public policy considerations underlying the securities laws to the extentthat such public policy considerations limit the enforceability of theprovisions of this Agreement which purport to provide indemnification withrespect to securities law liabilities;

 

(c)           EachTERI Loan included in the Subject Securitization Transaction originated by itis the valid, binding and enforceable obligation of the borrower executing thesame, and of any cosigner thereto, enforceable against the borrower andcosigner thereunder in accordance with its terms except as enforceability may beaffected by bankruptcy, insolvency, moratorium or other similar laws affectingthe rights of creditors generally and by equitable principles;

 

(d)           Atthe time of origination, each TERI Loan included in the Subject SecuritizationTransaction originated by it and any accompanying notices and disclosures conformsin all material respects to all applicable state and federal laws, rules andregulations and the origination thereof was conducted in material compliancewith all applicable state and federal laws concerning the actions of theLender, including, without limitation, the Equal Credit Opportunity Act;

 

(e)           Atthe time of origination, each TERI Loan included in the Subject SecuritizationTransaction originated by it is in compliance in all material respects with anyapplicable usury laws at the time made and as of the time of sale to thePurchaser Trust pursuant to the Purchase Agreement to which Lender is a party;and

 

(f)            Therespective Lender has no actual knowledge of any defense to payment withrespect to any TERI Loan included in the Subject Securitization Transactionoriginated by it nor is there any action before any state or federal court,administrative or regulatory body, pending against the Lender with regard toits TERI Loans in which an adverse result would have a material adverse effectupon the validity or enforceability of its TERI Loans.

 

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# ARTICLE 2

INDEMNIFICATION

 

2.01.        Cross-Indemnification.Each Lender (an “Indemnifying Party”) hereby agrees to indemnify, hold harmlessand defend each other and such other Lender’s respective officers, directors,employees, attorneys, agents (not including any Participating Institution orthe servicer of any TERI Loan) and each person who controls such other Lenderwithin the meaning of either Section 15 of the Securities Act of 1933, asamended, or Section 20 of the Securities Exchange Act of 1934, as amended(collectively and severally, the “Indemnified Parties”), from and against anyand all claims, obligations, penalties, actions, suits, judgments, costs,disbursements, losses, liabilities and/or damages (including, withoutlimitation, reasonable external attorneys’ fees and the allocated costs ofinternal salaried attorneys) of any kind whatsoever which may at any timebe imposed on, assessed against or incurred by any such Indemnified Party inany way relating to or arising out of the material inaccuracy or incompleteness of any representation or warrantymade by the Indemnifying Lender hereunder or the material inaccuracy orincompleteness of any representation or warranty made by the IndemnifyingLender to any Participating Institution in connection with the TERI Program orthe Subject Securitization Transaction. The indemnity provided by eachIndemnifying Lender hereunder is in addition to any liability which such Lendermay otherwise have to the Indemnified Parties, at law, in equity orotherwise, in connection with the Subject Securitization Transaction.

 

2.02. Procedurefor Indemnification. In case any proceeding (including any governmental investigation)shall be instituted against any Indemnified Party in respect of which indemnityis sought pursuant to Section 2.01, such Indemnified Party shall promptlynotify 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 andshall retain counsel reasonably satisfactory to the Indemnified Party torepresent the Indemnified Party and any others the Indemnifying Party may designatein such proceeding and the Indemnifying Party shall pay the fees anddisbursements of such counsel related to such proceeding, within a reasonableperiod of time after such fees and disbursements are billed by such counsel. Ifthe Indemnifying Party fails to acknowledge its obligation, subject to theterms hereof, to indemnify in writing or fails to retain such counsel within areasonable period of time after such notice was given, then the IndemnifiedParty shall have the right to retain its own counsel, and the fees and expensesof such counsel shall be at the expense of the Indemnifying Party. In any suchproceeding, any Indemnified Party shall have the right to retain its owncounsel, but the fees and expenses of such counsel shall be at the expense ofsuch Indemnified Party unless (a) the preceding sentence is applicable, (b) theIndemnifying Party and the Indemnified Party shall have mutually agreed to theretention of such counsel or (c) the named parties to any such proceeding(including any impleaded parties) include both the Indemnifying Party and theIndemnified Party and representation of both parties by the same counsel wouldbe inappropriate due to actual or potential differing interests between them. Itis understood that the Indemnifying Party shall not, in connection with anyproceeding or related proceedings in the same jurisdiction, be liable for thereasonable fees and expenses of more than one separate firm (in addition to anylocal counsel) for all such Indemnified Parties, and that all such fees andexpenses shall be reimbursed as they are incurred.

 

2.03. Settlementsof Proceedings. The Indemnifying Party shall not be liable for any settlementof any proceeding effected without its written consent, but if settled withsuch consent

 

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or if there be a finaljudgment for the plaintiff, the Indemnifying Party agrees to indemnify theIndemnified Party from and against any loss or liability by reason of suchsettlement or judgment. No Indemnifying Party, without the prior writtenconsent of the Indemnified Party, shall effect any settlement of any pending orthreatened proceeding in respect of which any Indemnified Party is or couldhave been a party and indemnity could have been sought hereunder by suchIndemnified Party, unless such settlement includes an unconditional release ofsuch Indemnified Party from all liability on claims that are the subject ofsuch proceeding.

 

# ARTICLE 3

MISCELLANEOUS

 

3.01. Notices.All demands, notices and communications upon or to any Lender under thisAgreement shall be in writing, personally delivered or mailed by certifiedmail, return receipt requested, to such Lender at its address set forth belowor to such other address as may hereafter be furnished by such Lender tothe other Lenders hereunder in writing, and shall be deemed to have been dulygiven upon receipt.

 

If toCo-Lender:

 

 

 

 

with a copy to:

 

 

 

 

If to Bank ofAmerica, N.A.:

 

 

 

 

With acopy to:

 

LauraRogers

800 MarketStreet

11thFloor

StLouis, MO 63101

 

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3.02. Successorsand Assigns. This Agreement is binding on the Lenders and their respectivesuccessors and assigns. No Lender shall assign its rights or obligations underthis Agreement without the prior written consent of all other Lender hereunder,other than to its wholly owned affiliate, and any assignment in violation ofthis prohibition shall be automatically deemed null and void.

 

3.03. Arbitration.The parties acknowledge that this Agreement evidences a transaction involvinginterstate commerce. Any controversy or claim arising out of or relating tothis Agreement, or the breach of the same, shall be settled throughconsultation and negotiation in good faith and a spirit of mutual cooperationfor up to fifteen (15) days commencing on the date when one party gives writtennotice to the other party of any controversy or claim. However, if thoseattempts fail, the parties agree that any misunderstandings or disputes arisingfrom this Agreement shall be decided by binding arbitration which shall beconducted, upon request by either party, in New York, New York or such othermutually agreed upon location, before one (1) arbitrator designated by theAmerican Arbitration Association (the “AAA”), in accordance with the terms ofthe Commercial Arbitration Rules of the AAA, and, to the maximum extentapplicable, the United States Arbitration Act (Title 9 of the United StatesCode). Notwithstanding anything herein to the contrary, either party may proceedto a court of competent jurisdiction to obtain equitable relief at any time.

 

3.04.        Severability. Anyprovision of this Agreement that is prohibited or unenforceable in anyjurisdiction shall, as to such jurisdiction, be ineffective to the extent ofsuch prohibition or unenforceability without invalidating the remainingprovisions hereof, and any such prohibition or unenforceability in anyjurisdiction shall not invalidate or render unenforceable such provision in anyother jurisdiction.

 

3.05.        Counterparts. ThisAgreement may be executed by the parties hereto in separate counterparts,each of which when so executed and delivered shall be an original, but all suchcounterparts shall together constitute but one and the same instrument.

 

3.06.        Headings. The headings ofthe various Articles and Sections herein are for convenience of reference onlyand shall not define or limit any of the terms or provisions hereof.

 

3.07.        Amendment. This Agreement may notbe amended nor terms or provisions hereof waived unless such amendment orwaiver is in writing and signed by all parties hereto.

 

3.08.        No Waiver. No delay orfailure by any party to exercise any right, power or remedy hereunder shallconstitute a waiver thereof by such party, and no single or partial exercise byany party of any right, power or remedy shall preclude other or furtherexercise thereof or any exercise of any other rights, powers or remedies.

 

3.09.        Entire Agreement. ThisAgreement embodies the entire agreement and understanding between the partieswith respect to the subject matter hereof and

 

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supersedesall prior agreements and understandings relating to the subject matter hereofand thereof.

 

3.10.        Governing Law. ThisAgreement shall be governed by and construed in accordance with the internallaws of the State of New York without regard to its conflict of laws doctrine.

 

3.11.        No Third PartyBeneficiaries. This Agreement is made and entered into for the protection andlegal benefit of the parties hereto, their permitted successors and assigns,and each and every Indemnified Party, and no other person shall be a direct orindirect beneficiary of, or have any direct or indirect cause of action orclaim in connection with, this Agreement.

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to beexecuted as of the day and year first above written.

 
|   | CO-LENDER(S)          |
|--------|-----------------------|
|   |                  |   |
|   |                  |
|   |                  |
|   | By:                   |   |   |
|   | Print Name:           |
|   | Title:                |
|   |                  |
|   |                  |
|   | BANK OF AMERICA, N.A. |
|   |                  |
|   |                  |   |
|   |                  |
|   |                  |
|   | By:                   |   |   |
|   | Print Name:           |
|   | Title:                |
|        |                       |  |  |  |  |  |

 

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**EXECUTION COPY**

 

EXHIBIT C TO NOTE PURCHASE AGREEMENT

INDEMNIFICATION AGREEMENT

 

ThisINDEMNIFICATION AGREEMENT (the “Agreement”) is made                                           ,2000, by and among [NAME OF PURCHASER TRUST (the “Trust”), The First MarbleheadCorporation (“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, andB of A, B of A will sell to the Trust and the Trust willpurchase from B of A certain Bank of America GATE  Loans (“Contracts”);

 

WHEREAS,contemporaneously with the transactions contemplated by the Note PurchaseAgreement, the Trust will sell securities backed by a pool consisting of theContracts (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 aspectsof the Securitization, on the terms and subject to the conditions set forth inthis Agreement;

 

NOW,THEREFORE, in consideration of the foregoing and the mutual covenants set forthherein, the parties hereto agree as follows:

 

ARTICLE 1

DEFINITIONS

 

SECTION 1.01.      Definitions.Capitalized terms used herein without definition have the meanings assignedthereto in the Note Purchase Agreement. Whenever used in this Agreement, thefollowing words and phrases shall have the following meanings:

 

“Agreement”means this Indemnification Agreement, as it may be amended from time totime.

 

“Commission”means the Securities and Exchange Commission.

 

“ExchangeAct” means the Securities Exchange Act of 1934, as amended from time to time.

 

“B of AInformation” means solely the information set forth [to be determined]

 

“IndemnifiedParty” has the meaning set forth in Section 4.03.

 

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“IndemnifyingParty” has the meaning set forth in Section 4.03.

 

“OfferingMaterials” means: (a) any private placement memoranda and any otheroffering material given in connection with a sale or offer to sell, whether ornot such sale or offer to sell was required to be registered under the SecuritiesAct, and (b) any Registration Statement filed with the Commission pursuantto which any Contract or interest therein is sold or offered for sale,including the Prospectus relating thereto and any preliminary prospectuses andamendments and supplements to such Registration Statement, Prospectus andpreliminary prospectus, including post-effective amendments and all exhibitsand all material incorporated by reference therein.

 

“Prospectus”has the meaning given to such term in the Securities Act.

 

“RegistrationStatement” 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 theTrust.

 

“SecuritiesAct” means the Securities Act of 1933, as amended from time to time.

 

“TransactionDocuments” means the Note Purchase Agreement and the Pool Supplement issuedpursuant thereto.

 

ARTICLE 2

REPRESENTATIONS AND WARRANTIES

 

Eachof the Trust and First Marblehead jointly and severally represents and warrantsto B of A, and B of A hereby represents and warrants to theTrust and First Marblehead, as of the date hereof and the Purchase Date, asfollows:

 

(1)           Itis a corporation, business trust, or, in the case of B of A, anational banking association, duly organized, validly existing and in goodstanding under the laws of the jurisdiction of its organization, and it has thecorporate power to own its assets and to transact the respective business inwhich it is currently engaged. It is duly qualified to do business as a foreigncorporation or other entity and is in good standing in each jurisdiction inwhich its type of organization and the character of the business transacted byit or properties owned or leased by it requires such qualification and in whichthe failure to so qualify would have a material adverse effect on its business,properties, assets, or condition (financial or other);

 

(2)           Ithas obtained all necessary licenses and approvals, in all jurisdictions inwhich the ownership or lease of property or the conduct of its business and itstype of organization requires such licenses or approvals unless the failure toobtain any such licenses or approvals would have no material adverse effect onthe ability of such party to fulfill its obligations hereunder;

 

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(3)           Ithas the power and authority to execute and deliver this Agreement and to carryout the terms hereof; and the execution, delivery and performance of thisAgreement by it has been duly authorized by all necessary action;

 

(4)           ThisAgreement constitutes its legal, valid and binding obligation, enforceableagainst it in accordance with its terms except as enforcement of such terms may belimited by bankruptcy, insolvency or similar laws affecting the enforcement ofcreditors’ rights generally and by the availability of equitable remedies, andexcept as enforcement of any terms relating to indemnification may belimited by applicable securities law;

 

(5)           ForB of A and the Trust only, the consummation of the transactionscontemplated by this Agreement and the fulfillment of the terms hereof do notconflict with, result in any breach of any of the terms and provisions of, orconstitute (with or without notice or lapse of time) a default under, itsgoverning documents, or any material indenture, agreement or other instrumentto which it is a party or by which it is bound; or result in the creation orimposition of any lien upon any of its properties pursuant to the terms of anysuch 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 orstate regulatory body, administrative agency or other governmentalinstrumentality having jurisdiction over it or its properties; and

 

(6)           Thereare no proceedings or investigations pending, or threatened, before any court,regulatory body, administrative agency or other governmental instrumentalityhaving jurisdiction over it or its properties: (1) asserting theinvalidity of this Agreement (2) seeking to prevent the consummation ofany of the transactions contemplated by this Agreement, or (3) seeking anydetermination or ruling that is likely to materially and adversely affect theperformance by it of its obligations hereunder or the validity and enforceabilityof this Agreement.

 

ARTICLE 3

CONDITIONS TO CLOSING

[Intentionally Omitted]

 

ARTICLE 4

INDEMNIFICATION

 

SECTION 4.01.      Indemnificationby First Marblehead and the Trust. The Trust and First Marblehead jointlyand severally agree to indemnify, hold harmless and defend B of A,its officers, directors, employees, attorneys, agents and each Person whocontrols B of A within the meaning of either Section 15 of theSecurities Act or Section 20 of the Exchange Act, as follows:

 

(a)           againstany and all loss, liability, claim, damage and expense whatsoever arising outof any untrue statement or alleged untrue statement of a material factcontained in any Offering Materials under the heading, [to be determined] [“Methodof Distribution”] or the omission or alleged omission therefrom of a materialfact necessary

 

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inorder to make the statements therein, in light of the circumstances under whichthey were made, not misleading;

 

(b)           againstany and all loss, liability, claim, damage and expense whatsoever to the extentof the aggregate amount paid in settlement of any litigation, or investigationor proceeding by any governmental agency or body, commenced or threatened, orof any claim whatsoever, based upon any such untrue statement or omission, orany such inaccuracy, if such settlement is effected with the written consent ofthe Trust and First Marblehead; and

 

(c)           againstany and all expense whatsoever (including the fees and disbursements of counselchosen by the B of A) reasonably incurred in investigating, preparingor defending against any litigation, or investigation or proceeding by anygovernmental agency or body, commenced or threatened, or any claim whatsoever,based upon any such untrue statement or omission, or any such inaccuracy, tothe extent that any such expense is not paid under (a) or (b) above.

 

Thisindemnity agreement will be in addition to any liability which the Trust andFirst Marblehead may otherwise have.

 

SECTION 4.02.      Indemnificationby B of A. B of A agrees to indemnify and hold harmlessthe Trust and First Marblehead and each person, if any, who controls NCT orFirst Marblehead within the meaning of Section 15 of the Securities Act of1933, as amended (the “1993 Act”), as follows:

 

(a)           againstany and all loss, liability, claim, damage and expense whatsoever arising outof any untrue statement or alleged untrue statement of a material factcontained in the B of A Information (or any amendment or supplementthereto approved in writing by B of A) or the omission or allegedomission therefrom of a material fact necessary in order to make the statementstherein, in light of the circumstances under which they were made, notmisleading;

 

(b)           againstany and all loss, liability, claim, damage and expense whatsoever to the extentof the aggregate amount paid in settlement of any litigation, or investigationor proceeding by any governmental agency or body, commenced or threatened, orof any claim whatsoever, based upon any such untrue statement or omission, orany such inaccuracy, if such settlement is effected with the written consent ofB of A; and

 

(c)           againstany and all expense whatsoever (including the fees and disbursements of counselchosen by the Trust and First Marblehead) reasonably incurred in investigating,preparing or defending against any litigation, or investigation or proceedingby any governmental agency or body, commenced or threatened, or any claimwhatsoever, 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.

 

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Thisindemnity agreement will be in addition to any liability which B of Amay otherwise have.

 

SECTION 4.03.      Procedurefor Indemnification. In case any proceeding (including any governmentalinvestigation) shall be instituted involving any Person in respect of whichindemnity may be sought pursuant to Section 4.01 or 4.02, such Person(hereinafter called the “Indemnified Party”) shall promptly notify the personagainst whom such indemnity may be sought (hereinafter called the “IndemnifyingParty”) in writing. The Indemnifying Party, upon request of the IndemnifiedParty, shall acknowledge its obligation, subject to the terms hereof, toindemnify the Indemnified Party in writing and shall retain counsel reasonablysatisfactory to the Indemnified Party to represent the Indemnified Party andany others the Indemnifying Party may designate in such proceeding and theIndemnifying Party shall pay the fees and disbursements of such counsel relatedto such proceeding, as and when such fees and disbursements are billed by suchcounsel. If the Indemnifying Party fails to acknowledge its obligation, subjectto the terms hereof, to indemnify in writing or fails to retain such counselwithin a reasonable period of time after such notice was given, then theIndemnified Party shall have the right to retain its own counsel, and the feesand 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 retainits own counsel, but the fees and expenses of such counsel shall be at theexpense of such Indemnified Party unless (a) the preceding sentence isapplicable, (b) the Indemnifying Party and the Indemnified Party shallhave mutually agreed to the retention of such counsel or (c) the namedparties to any such proceeding (including any impleaded parties) include boththe Indemnifying Party and the Indemnified Party and representation of bothparties by the same counsel would be inappropriate due to actual or potentialdiffering interests between them. It is understood that the Indemnifying Partyshall not, in connection with any proceeding or related proceedings in the samejurisdiction, be liable for the reasonable fees and expenses of more than oneseparate firm (in addition to any local counsel) for all such IndemnifiedParties, and that all such fees and expenses shall be reimbursed as they areincurred.

 

SECTION 4.04.      Settlementsof Proceedings. The Indemnifying Party shall not be liable for anysettlement of any proceeding effected without its written consent, but ifsettled with such consent or if there be a final judgment for the plaintiff,the Indemnifying Party agrees to indemnify the Indemnified Party from andagainst any loss or liability by reason of such settlement or judgment. NoIndemnifying Party, without the prior written consent of the Indemnified Party,shall effect any settlement of any pending or threatened proceeding in respectof which any Indemnified Party is or could have been a party and indemnitycould have been sought hereunder by such Indemnified Party, unless suchsettlement includes an unconditional release of such Indemnified Party from allliability 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 inwhich the indemnification provided for in Sections 4.01 and 4.02 hereof is forany reason held to be unenforceable by the Indemnified Parties althoughapplicable in accordance with its terms, B of A, on the one hand, andthe Trust and First Marblehead, on the other, shall contribute to the aggregatelosses, liabilities, claims, damages and

 

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expenses of the naturecontemplated 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 andFirst Marblehead shall be responsible for that portion represented by thepercentage that the gross fee earnings of First Marblehead in theSecuritization bear to the sum of such fees and the purchase price paid by theTrust for the Contracts, and (ii) B of A shall be responsiblefor the balance; provided, however, that no person guilty of fraudulentmisrepresentation (within the meaning of Section 11(f) of the 1933Act) shall be entitled to contribution from any person who was not guilty ofsuch fraudulent misrepresentation.

 

TheTrust, First Marblehead and B of A agree that it would not be justand equitable if contribution pursuant to this Section 4.05 weredetermined by pro rata allocation or by any other method of allocationthat does not take account of the equitable considerations referred to in theimmediately preceding paragraph. The amount paid or payable by an IndemnifiedParty pursuant to Section 4.01 or 4.02 shall be deemed to include, subjectto the limitations set forth above, any legal or other expense reasonablyincurred by such Indemnified Party in connection with investigating ordefending any such action or claim. No person guilty of fraudulentmisrepresentation (within the meaning of Section 11(f) of theSecurities Act) shall be entitled to contribution from any person who was notguilty of such fraudulent misrepresentation.

 

ARTICLE 5

MISCELLANEOUS

 

SECTION 5.01.      Notices.All demands, notices and communications upon or to B of A, the Trustand First Marblehead under this Agreement shall be in writing, personallydelivered or mailed by certified mail, return receipt requested, and shall bedeemed to have been duly given upon receipt (a) The First MarbleheadCorporation, 30 Little Harbor, Marblehead, MA 01945; (b) [ADDRESS FOR PURCHASER TRUST], (c) B of A                                                                                                          ,or such other address as may hereafter be furnished to the other partiesin writing.

 

SECTION 5.02.      Successorsand Assigns. This Agreement is binding on B of A’s, the Trust’sand First Marblehead’s successors and assignees. Each party hereto agrees thatit will not assign this Agreement without the other parties’ prior writtenconsent.

 

SECTION 5.03.      Arbitration.

 

(a)           Anycontroversy or claim between or among the parties arising out 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. Thearbitration shall be conducted in accordance with the United States ArbitrationAct (Title 9, U.S. Code), notwithstanding any choice of law provision in thisAgreement, and under the Commercial Rules of the American ArbitrationAssociation (“AAA”). The arbitrator(s) shall give effect to statutes oflimitation in determining any claim. Any controversy concerning whether anissue is arbitratable shall be determined by the arbitrator(s). Judgment uponthe arbitration award

 

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may beentered in any court having jurisdiction. The institution and maintenance of anaction for judicial relief or pursuit of a provisional or ancillary remedyshall 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 contestssuch action for judicial relief.

 

(b)           Noprovision of this Section 5.03 shall limit the right of any party to thisAgreement to exercise self-help remedies such a setoff, foreclosure against orsale of any real or personal property collateral or security, or obtainingprovisional or ancillary remedies from a court of competent jurisdictionbefore, after, or during the pendency of any arbitration or other proceeding. Theexercise of a remedy does not waive the right of either party to resort toarbitration or reference.

 

SECTION 5.04.      Costsand Attorneys’ Fees. In the event of a lawsuit or arbitration proceedingarising out of or relating to this Agreement, the prevailing party is entitledto recover costs and reasonable attorneys’ fees incurred in connection with thelawsuit 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 anyjurisdiction shall, as to such jurisdiction, be ineffective to the extent ofsuch prohibition or unenforceability without invalidating the remainingprovisions hereof, and any such prohibition or unenforceability in anyjurisdiction shall not invalidate or render unenforceable such provision in anyother jurisdiction.

 

SECTION 5.06.      Counterparts.This Agreement may be executed by the parties hereto in separatecounterparts, each of which when so executed and delivered shall be anoriginal, but all such counterparts shall together constitute but one and thesame instrument.

 

SECTION 5.07.      Headings.The headings of the various Articles and Sections herein are for convenience ofreference only and shall not define or limit any of the terms or provisionshereof.

 

SECTION 5.08.      Limitationof Recourse to the Trust. Notwithstanding any provision of this Agreementto the contrary, all obligations of the Trust under this Agreement shall bepayable only from the rights of the Trust in the Contracts. No recourse shallbe had against the general funds of the Trust, nor against any income orproceeds of the Contracts not available, in accordance with the TrustInstrument, for distribution. To the extent that the interests of the Trusteeand the bond holders under the Trust Instrument are fully satisfied, or ifproceeds of the Contracts are otherwise distributed to the owners of the Trustfree and clear of claims of said Trustee (as defined in the Trust Instrument),claims against the Trust may be satisfied from the Contracts or thedistributable proceeds thereof.

 
|   | BANK OF AMERICA  NA |
|--------|---------------------|
|   |                |
|   | By:                 |   |   |
|   | Print Name:         |

 

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|   | Title:                                                                                        |
|--------|-----------------------------------------------------------------------------------------------|
|   |                                                                                          |
|   | [NAME OF  PURCHASER TRUST]                                                                    |
|   | By: [NAME OF TRUSTEE],  not in its individual  capacity but solely in its capacity as Trustee |
|   |                                                                                          |
|   | By:                                                                                           |   |   |
|   | Print Name:                                                                                   |
|   | Title:                                                                                        |
|   |                                                                                          |
|   | THE FIRST  MARBLEHEAD CORPORATION                                                             |
|   |                                                                                          |
|   | By:                                                                                           |   |   |
|   | Print Name:                                                                                   |
|   | Title:                                                                                        |

 

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**EXHIBIT D**

 

**CERTIFICATE**

**OF**

**BANK OFAMERICA, N.A.**

 

This Certificate is being delivered to ThacherProffitt & Wood (“TPW”) for reliance hereon by TPW in renderingits opinion letter to which this Certificate is annexed, dated the date hereof(the “Opinion Letter”). The undersigned understands, acknowledges andagrees that the facts set forth in the Opinion Letter have been relied upon byTPW in rendering the Opinion Letter and by each addressee thereof and otherparties to the transactions to which the Opinion Letter relates in theconsummation of those transactions. Capitalized terms not defined herein havethe meanings assigned to them in the Opinion Letter and the Agreements. Theundersigned hereby represents, warrants, covenants and certifies, afterreasonable investigation and review and consultation as appropriate with itsattorneys and independent accountants, as follows:

 

1.             Thetransfers pursuant to the Agreements of the Student Loans by the Bank to theTrust were intended to constitute sales. Those transfers will be reported assuch in the general ledgers and other accounting records, and in any separateunconsolidated financial statements of the Bank. Those transfers  (i) were intended to constitute a saleof the Student Loans and will be reported as such under United States generallyaccepted accounting principles (“GAAP”) and for United States federalincome tax purposes such that the Student Loans will no longer be included inany consolidated financial statements in which the financial statements of theBank are included and (ii) meet all of the requirements for suchaccounting and tax treatment, except that the undersigned makes norepresentation, warranty, covenant or certification herein as to whether anyrequirement under GAAP that the Student Loans have been legally isolated fromthe Bank has been satisfied, which requirement is the subject of the OpinionLetter.

 

2.             Exceptas described in the Agreements and the Opinion Letter, neither the Bank nor anyaffiliate thereof now has or intends to acquire at any time any other direct orindirect ownership or other economic interest in, or other right or obligationwith respect to, any Student Loan or security backed thereby.

 

3.             TheAgreements have been approved by the Board of Directors of the Bank actingthrough 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 theBank and its Finance Committee, and copies thereof will be maintainedcontinuously from the time of execution in the official records of the Bank.

 

4.             Thefactual statements in the Opinion Letter are accurate, including withlimitation the following:

 

(i)            Pursuantto [the 2000 Student Loan Purchase Agreement,] [the 2000 Pool Supplement,] [the2001 Student Loan Purchase Agreement] [and the 2001 Pool Supplement,] the Banksold 100% of its ownership interest in the Student Loans to the Trust forconsideration

 

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consisting only of cash. Simultaneouslywith the transfer of ownership of the Student Loans to the Trust, pursuant tothe Indenture the Trust assigned and granted a security interest in the StudentLoans and certain other property to the Trustee as secured party on behalf ofthe holders of the Notes and the Bond Insurer. Except as described in theAgreements, the Bank has not acquired, and does not intend to acquire at anytime, directly or indirectly any residual, equity or other ownership oreconomic interest, or any other right or obligation that could be determined toconstitute recourse with respect to any Student Loan or Note.

 

(ii)           TheNotes are also entitled to the benefits of the Note Guaranty Insurance Policywith respect to amounts required to be available for distribution thereon. Neitherthe Bank or the Trust nor any affiliate of either has any liability to the BondInsurer except for payment of the premium therefor, the Indemnity Agreement andfor the usual and customary representations and warranties.

 

The undersigned has executed this Certificate asof the date of the Opinion Letter.

 
|   | BANK  OF AMERICA, N.A. |
|--------|------------------------|
|   |                   |
|   |                   |
|   | By:                    |   |   |
|   |                   | Name: |   |   |
|   |                   | Title: | Senior  Vice President |
|        |                        |  |  |  |  |

 

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