NOTE PURCHASE AGREEMENT TERI-GUARANTEED CFS LOAN PROGRAM CHARTER ONE BANK, N.A.
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CONFIDENTIAL
MATERIALS OMITTED AND FILED
SEPARATELY WITH THE
SECURITIES
AND EXCHANGE COMMISSION.
ASTERISKS DENOTE
OMISSIONS.
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Exhibit
99.3
EXECUTION
5/15/02
▇▇▇▇-GUARANTEED
CFS LOAN PROGRAM
CHARTER
ONE BANK, N.A.
This
Note
Purchase Agreement, by and between Charter One Bank, N.A., a national bank
organized under the laws of the United States and having a principal office
located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and a student loan
department located at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Program Lender"), and
THE
FIRST MARBLEHEAD CORPORATION, a Delaware corporation having a principal place
of
business at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ (“FMC”), dated as of May
15, 2002.
W
I T N E
S S E T H:
WHEREAS,
Program Lender is in the business of making education loans under education
lending programs, including, without limitation, the CFS Direct to Consumer
Loan
Program (as hereinafter defined); and
WHEREAS,
FMC exists to provide funds for education loans for the benefit of students
at
Participating Institutions; and
WHEREAS,
in order to facilitate funding of CFS Conforming Loans, Program Lender has
agreed to sell, from time to time, pools containing CFS Conforming Loans
originated by Program Lender to FMC or a Purchaser Trust (all as hereinafter
defined); and
WHEREAS,
the CFS Conforming Loans are made by Program Lender and purchased by FMC on
the
condition that they qualify for and in fact are covered by a guaranty issued
by
The Education Resources Institute, Inc. (“▇▇▇▇”).
NOW,
THEREFORE, in consideration of these presents and the covenants contained
herein, the parties hereto hereby agree as follows:
I. Definitions.
Capitalized terms used herein without definition have the meanings set forth
in
the Program Guidelines.
“Affiliate”
shall mean, as to any person, any other person which, directly or indirectly,
is
in control of, is controlled by, or is under common control with, such person.
A
person shall be deemed to control another person if the controlling person
possesses, directly or indirectly, the power to direct or to cause the direction
of the management and policies of the other person, whether through the
ownership of voting securities, by contract or otherwise.
“Agent”
means State Street Bank & Trust Company, or a successor agent under the
Deposit and Security Agreement.
“Ambac”
means Ambac Assurance Corporation.
“Business
Day” shall mean any day other than: (a) a Saturday or Sunday, or (b) a day on
which banking institutions in the State of Ohio are required or authorized
by
law or executive order to be closed.
“CFS”
means Collegiate Funding Services, LLC, a limited liability company organized
under the laws of Virginia and having a principal place of business at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇.
“CFS
Conforming Loans” shall mean loans (a) conforming to the requirements of the
Program Guidelines at the time the loans were made, (b) serviced by the Servicer
in accordance with the Program Guidelines, and (c) covered by and subject to
all
the benefits of the Guaranty Agreement.
“CFS
Loan
Pool” or “Pool” shall mean and refer to a group of CFS Notes purchased and
pledged or intended to be purchased and pledged as collateral in a particular
Securitization Transaction.
“CFS
Notes” shall mean notes or other forms of consumer debt instruments, evidencing
CFS Conforming Loans.
“CFS
Program” shall mean the CFS Direct to Consumer Loan Program described in the
Program Guidelines.
“Collateral”
has the meaning set forth in the Deposit and Security Agreement.
“Deposit
and Security Agreement” means the agreement of that name (applicable to the CFS
Program) among Program Lender, Agent, FMC and ▇▇▇▇ dated as of May 15,
2002.
“First
Marblehead” or “FMC” shall mean The First Marblehead Corporation, a Delaware
corporation.
“Guaranty
Agreement” means the Guaranty Agreement applicable to the CFS Program between
Program Lender and ▇▇▇▇ dated May 15, 2002.
“Marketer”
means CFS.
“Marketing
Agreement” means the Referral Marketing Agreement to be entered into between
Marketer and Program Lender.
“MBIA”
means MBIA Insurance Corporation.
“Minimum
Purchase Price” has the meaning set forth in Section 2.04.
“Note
Insurer” means Ambac, MBIA, or any other provider of credit insurance or note
insurance with respect to the obligations of the Purchaser Trust.
“Option
Period” means, with respect to any particular CFS Conforming Loan, the period
beginning on the first date such loan becomes a “Seasoned Loan” and [**] days
thereafter or such longer period as the parties may agree to in
writing.
“Origination
Agreement” refers to (a) the Origination Agreement to be entered into between
▇▇▇▇ and Program Lender with respect to origination of CFS Conforming Loans,
as
amended from time to time, and (b) any subsequent agreement relating to
origination services provided to Program Lender with respect to CFS Notes
purchased under this Agreement that is acceptable in form and substance to
each
of FMC and ▇▇▇▇.
“Origination
Records” means and refers to the original CFS Loan Application and Note, a form
of cosigner notice when required under 16 C.F.R. § 444, and any other
standardized documentation specified from time to time in the Program Guidelines
as required to be received by the Servicer from the Program Lender in order
to
service CFS Conforming Loans adequately and accurately.
“Participating
Institution” means an educational institution approved by ▇▇▇▇ for receipt of
CFS Conforming Loan funds.
“PHEAA”
shall mean the Pennsylvania Higher Education Assistance Agency, a public
corporation and government instrumentality organized under the laws of the
Commonwealth of Pennsylvania, and having an address at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
“Pledged
Account” has the meaning set forth in the Deposit and Security
Agreement.
“Program
Guidelines” means the Program Guidelines attached to the Guaranty Agreement as
Exhibit A.
“Purchase
Date” shall mean the date of consummation of a Securitization Transaction with
respect to a particular Pool of CFS Conforming Loans originated by Program
Lender, which date: (a) shall be set by written notice from FMC to Program
Lender, given to Program Lender not less than five (5) Business Days in advance
of the specified date, and (b) shall occur [**] for each loan in such
Pool.
“Purchaser
Trust” shall mean and refer to a trust or other SPE formed for the purpose of
purchasing CFS Conforming Loans by FMC or by any Affiliate of FMC. Any action
required or permitted to be taken by FMC hereunder may be taken by a Purchaser
Trust with respect to a particular Pool.
“Rating
Agencies” shall mean and refer to Standard and Poor's Corporation and/or ▇▇▇▇▇'▇
Investors Service, Inc., and/or Fitch Investors Services.
“Seasoned
Loan” means a CFS Conforming Loan fifteen days after disbursement, but shall
exclude any loan disbursed by paper check if the paper check has not yet been
paid by the drawee. In the event a disbursement check is paid by the drawee
more
than fifteen days after it is written, the loan shall become a Seasoned Loan
on
the date of such payment. For purposes of computation of the Minimum Purchase
Price, the term also includes defaulted CFS Conforming Loans not yet purchased
by ▇▇▇▇.
“Securitization
Costs” means the actual costs and expenses incurred by FMC, the Purchaser Trust,
and all others entitled to payment for expenses by the Purchaser Trust or FMC,
in connection with a Securitization Transaction including, without limitation,
the following:
(Structuring
and Origination Fees; Copy/Binding Costs)
(Underwriting
Expenses)
(Rating
Fee)
(Owner
Trustee and Indenture Trustee Transaction and First Year Fees;
Expenses)
(Counsel
for Indenture Trustee)
(Counsel
for FMC)
(Servicer
Auditor)
(Bond
Insurer)
“Securitization
Transaction” shall mean and refer to the purchase of a Pool of CFS Conforming
Loans by a Purchaser Trust funded through the issuance and sale of commercial
paper, certificates, bonds or other securities or evidences of indebtedness,
the
repayment of which is supported by payments on the CFS Conforming Loans included
in such Pool. A Securitization Transaction may include, without limitation,
a
continuing series of transactions occurring on a periodic basis in which Program
Lender makes a sale of then-outstanding Seasoned Loans to a Purchaser Trust,
which Purchaser Trust in turn either utilizes the Pool directly as collateral
for its own debt or resells the Pool (in whole or in part) in further sales
to a
securitization conduit providing financing to the Purchaser Trust.
“Servicer”
shall mean and refer to PHEAA, or such other servicer as may be approved by
FMC
and ▇▇▇▇ and retained by the holder of CFS Conforming Loans in accordance with
the terms hereof and of the Guaranty Agreement.
“Servicing
Agreement” refers to: (a) the Servicing Agreement to be entered into between
Servicer and Program Lender with respect to servicing of CFS Conforming Loans,
as amended from time to time, and (b) any subsequent servicing agreement between
Program Lender and the Servicer governing servicing of CFS Conforming Loans
purchased under this Agreement, in either case such agreement and any amendment
thereto to be satisfactory in form and substance to FMC and its
counsel.
“SPE”
means a special purpose entity formed and operated for the sole purpose of
acting as purchaser and owner of CFS Conforming Loans.
“▇▇▇▇
Insolvency Event” means (1) the commencement by ▇▇▇▇ of a voluntary case under
the federal bankruptcy law, as now constituted or hereafter amended, or any
other applicable federal or state bankruptcy, insolvency or other similar law,
(2) the consent by ▇▇▇▇ to the appointment of or taking possession by a
receiver, liquidator, trustee, custodian (or other similar official) of or
for
▇▇▇▇ or for any substantial part of its property, (3) the making by ▇▇▇▇ of
any
assignment for the benefit of creditors, (4) the insolvency or the failure
of
▇▇▇▇ generally to pay its debts as such debts become due, or (5) a default
under
one or more Guaranty Agreements to which ▇▇▇▇ is a party because of a failure
to
pay claims, or the taking of action by ▇▇▇▇ in furtherance of any of the
foregoing.
“Term”
shall mean the period commencing on the effective date hereof and ending upon
termination hereof, all as set forth in Article X.
“Trust
Agreement” means, with respect to any particular Securitization Transaction, the
agreement pursuant to which a Purchaser Trust is formed.
“Trust
Indenture” means, with respect to any particular Securitization Transaction, the
agreement pursuant to which FMC or a Purchaser Trust issues evidences of
indebtedness secured by the payments on the related CFS Conforming
Loans.
II. Agreement
for Purchase and Sale of Notes.
2.01. Purchase
and Sale; Best
Efforts by
Program Lender.
On
each
Purchase Date during the Term of this Agreement and subject to the conditions
set forth herein, Program Lender shall sell to FMC or a designee Purchaser
Trust, and FMC or such Purchaser Trust shall purchase, every Seasoned Loan
owned
by Program Lender on the Purchase Date. Program Lender shall enter into and
perform its obligations under the Marketing Agreement.
2.02. Pre-Closing
Information; FMC Best
Efforts.
Program
Lender will cause Servicer or ▇▇▇▇, as applicable, to inform FMC periodically
of
information reasonably requested by FMC in anticipation of a Securitization
Transaction, including, without limitation, the number of Seasoned Loans ready
for purchase, principal and accrued interest with respect to each such Loan,
payment status (including defaulted loans presented for guaranty payment),
the
identity of Participating Institutions affected by the Securitization, together
with the information contained in PHEAA's MR-50 and MR-53 reports and TERI's
weekly origination report, which reports shall be provided in electronic media
in the Servicer's or TERI's standard format. FMC will use its best efforts
to
specify a Purchase Date and consummate a Securitization Transaction in which
a
Purchaser Trust will purchase all of the Seasoned Loans, [**] per calendar
year.
FMC shall have the sole and exclusive right to purchase all CFS Conforming
Loans
[**] for each such loan, which right may be assigned to one or more Purchaser
Trusts. Program Lender agrees, in consideration of FMC's undertaking pursuant
to
this section, not to sell to any third person any interest in any CFS Conforming
Loans originated by Program Lender [**]. FMC may reschedule the Purchase Date
without penalty of any kind, provided that the Purchase Date occurs prior to
the
conclusion of the Option Period for each and every Seasoned Loan affected.
2.03. Pool
Supplement.
Each
purchase and sale of the CFS Conforming Loans originated by Program Lender
included in a Pool on a Purchase Date shall be made pursuant to a Pool
Supplement substantially in the form of Exhibit A which shall: (1) set forth
the
Minimum Purchase Price for the CFS Conforming Loans originated by Program Lender
included in the Pool, (2) incorporate by reference the terms and conditions
of
this Agreement applicable to sales of CFS Conforming Loans, and (3) include
a
Schedule of CFS Conforming Loans setting forth the details and characteristics
of such Pool. Each Pool Supplement shall be executed by an authorized agent
of
each Purchaser Trust and the Program Lender and shall be delivered on the
related Purchase Date. The Purchaser Trust shall provide a preliminary
settlement sheet in the form of Schedule 1 to the Pool Supplement not less
than
two (2) Business Days prior to the Purchase Date.
2.04. Minimum
Purchase Price.
On
the
Purchase Date, Program Lender shall assign and convey all CFS Conforming Loans
originated by Program Lender included in the Pool to FMC, or a Purchaser Trust,
in consideration of receipt of the Minimum Purchase Price therefor. For purposes
of this Agreement the term “Minimum Purchase Price” shall mean the sum of the
following amounts with respect to each of the CFS Conforming Loans to be
purchased:
| (a) |
The
unpaid principal amount (including capitalized interest) of the Seasoned
Loans in the Pool net of financed fees; plus
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(b)
All
accrued and unpaid interest on such Seasoned Loans[**]; plus
| (c) |
[**]
pursuant to the Origination Agreement and the Guaranty Agreement;
plus
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| (d) |
[**]
of the Loans.
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III. Procedures
and Conditions for Transfer.
3.01. Conveyances
of CFS Conforming Loans; Conditions to Purchase.
(a) On
each
Purchase Date, upon execution and delivery of the related Pool Supplement,
Program Lender shall sell, transfer, assign, set over and otherwise convey
to
FMC or the Purchaser Trust, without recourse, all right, title and interest
of
Program Lender in and to:
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(1)
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The
CFS Conforming Loans included in the related Pool originated by Program
Lender and all payments due or to become due thereon;
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(2)
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Any
claims against ▇▇▇▇ and proceeds of such claims with respect to
origination of the CFS Conforming Loans included in the Pool;
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(3)
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Any
claims against Servicer with respect to servicing of the CFS Conforming
Loans prior to the Purchase Date.
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(4)
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The
proceeds of any and all of the foregoing received after the Purchase
Date
or received prior thereto and not credited against the Minimum Purchase
Price as computed on the Purchase Date; and
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(5)
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All
rights of Program Lender under the Guaranty Agreement with respect
to the
loans in the Pool.
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(b) The
obligation of FMC and/or any Purchaser Trust to purchase the CFS Conforming
Loans originated by Program Lender on the related Purchase Date shall be subject
to satisfaction of the following conditions (each and all of which may be waived
by FMC or such Purchaser Trust, in whole or in part in its sole
discretion):
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(1)
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Program
Lender shall have delivered to the Purchaser Trust a duly authorized
and
executed Pool Supplement;
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(2)
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Each
of the representations and warranties made by Program Lender with
respect
to the CFS Conforming Loans originated by Program Lender included
in such
Pool shall be true and correct in all material respects as of the
related
Purchase Date;
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(3)
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Lender
shall have entered into an Origination Agreement and a Servicing
Agreement
satisfactory in form and substance to FMC and such agreements shall
be in
full force and effect as of the Purchase Date and shall not have
been
modified except with the express written consent of FMC and Program
Lender;
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(4)
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(a)
Program Lender shall have performed and observed the terms and conditions
of this Agreement in all material respects;
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(b)
Program Lender and ▇▇▇▇ shall have performed and observed the terms
and
conditions of the Origination Agreement in all material respects
and there
shall not have occurred a default thereunder;
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(c)
Program Lender and Servicer shall have performed and observed the
terms
and conditions of the Servicing Agreement in all material respects
and
there shall not have occurred a default thereunder;
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(5)
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The
loans to be purchased shall have been originated and serviced in
conformity with the Program Guidelines in all material respects and
shall
be covered by the Guaranty Agreement;
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(6)
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If
requested by FMC, ▇▇▇▇ shall have executed and delivered a confirmation
of
guaranty in the form of a Certificate of Guaranty, covering all loans
being purchased, for the benefit of the Purchaser Trust and the indenture
trustee in the securitization transaction;;
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(7)
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The
Agent pursuant to the Deposit and Security Agreement, shall have
transferred to the indenture trustee in the Securitization Transaction
the
portion of the Pledged Account and the Collateral specified in Section
4
of the Deposit and Security Agreement;
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(8)
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If
required by any other Lender whose loans are included in the
Securitization Transaction, the Program Lender shall have executed
and
delivered a Co-Lender Indemnification Agreement substantially in
the form
of Exhibit B;
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(9)
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Program
Lender shall have delivered the opinion of its counsel confirming
the
matters set forth in subsections 5.02(a) and (b), such opinion to
be
satisfactory in form and substance to counsel for FMC;
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(10)
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Program
Lender shall, at its own expense, on or prior to the Purchase Date,
cause
the Servicer to indicate in computer files relating to CFS Conforming
Loans that the CFS Conforming Loans identified in the related Pool
Supplement have been sold to the Purchaser Trust pursuant to this
Agreement and such Pool Supplement;
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(11)
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Program
Lender hereby authorizes the filing of a UCC-1 financing statement
with
respect to the CFS Conforming Loans originated by Program Lender
included
in such Pool in the appropriate office of the jurisdiction in which
the
Program Lender is located (or, in the event of a change of law, Program
Lender shall have taken, but at no additional cost or expense to
the
Program Lender, such action as may be reasonably required by the
Purchaser
Trust);
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(12)
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As
of such Purchase Date: (i) Program Lender was not insolvent and will
not
become insolvent as a result of the transfer of CFS Conforming Loans
on
such Purchase Date, (ii) Program Lender did not intend to incur or
believe
that it would incur debts that would be beyond Program Lender's ability
to
pay as such debts matured, (iii) such transfer was not made with
actual
intent to hinder, delay or defraud any Person, and (iv) Program Lender
was
"Well Capitalized," as such term is defined by the Office of the
Comptroller of the Currency on the Purchase Date.
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(c) The
obligation of Program Lender to sell the CFS Conforming Loans originated by
Program Lender included in the Pool on a related Purchase Date is subject to
satisfaction of the following conditions (each and all of which may be waived
by
Program Lender in whole or in part, in its sole discretion):
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(1)
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Purchaser
Trust shall have delivered to Program Lender a duly authorized and
executed Pool Supplement;
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(2)
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Purchaser
Trust shall have paid the Minimum Purchase Price to Program Lender
by wire
transfer of immediately available funds;
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3.02.
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Delivery
of Documents.
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On
the
Purchase Date, Program Lender shall deliver to the Servicer, as agent for the
Purchaser Trust, and/or to the trustee of the Trust Indenture, each CFS Note
originated by Program Lender included in the Pool and the related Origination
Records. If a Co-Lender Indemnification Agreement is required as a condition
of
Program Lender's obligations under Section 3.01(b)(8) hereof, Program Lender
shall execute and deliver a Co-Lender Indemnification Agreement to each lender
selling loans in the Securitization Transaction.
3.03. Confirmation
of Representations and Warranties.
In
each
Pool Supplement, Program Lender shall confirm its representations and warranties
contained herein.
3.04. Rights
Transferred.
The
transfer of funds pursuant to Section 2.04 hereof shall constitute, and the
delivery to FMC, or its designated Purchaser Trust of each Pool Supplement
shall
evidence, a sale and assignment to FMC or the Purchaser Trust of the related
CFS
Conforming Loans and of all of Program Lender's interest in such CFS Conforming
Loans. As Purchaser of such CFS Conforming Loans, FMC or the Purchaser Trust
shall receive: (i) interest on such CFS Conforming Loans from and after the
Purchase Date, and (ii) any and all other payments and recoveries received
by
the Servicer or Program Lender from the borrowers and cosigners of such CFS
Conforming Loans, or others pursuant to, or in respect of, such CFS Conforming
Loans from and after the Purchase Date, and all proceeds thereof.
3.05. Subsequent
Receipts.
In
the
event that Program Lender shall receive, subsequent to any such assignment,
any
amounts whatsoever in respect to the CFS Conforming Loans so assigned in the
nature of those described in Section 3.04 above, such amounts shall be held
by
Program Lender in trust for FMC or the Purchaser Trust to which it has sold
the
Notes, and the Program Lender shall deliver such amounts within ten (10)
business days to the trustee under the Trust Indenture.
3.06. Assignment
of Origination Rights.
Program
Lender shall insure that Program Lender’s rights under the Servicing Agreement
and the Origination Agreement with respect to any matters occurring prior to
the
Purchase Date and affecting the CFS Conforming Loans in each Pool shall be
transferred to FMC or the Purchaser Trust by execution and delivery of a Pool
Supplement. Program Lender shall require the party who originated each CFS
Conforming Loan to complete any loan origination services being performed for
Program Lender on the Purchase Date so that complete Origination Records are
ready for transfer to the Purchaser Trust (or to Servicer on its behalf).
3.07. No
Assumption of Liability to Fund CFS Loan Notes.
By
their
purchase of CFS Notes, FMC, and all Purchaser Trusts, shall assume no liability,
responsibility or obligation with respect to any disbursements or reimbursements
that are due and owing, or which are, or may be alleged to be due and owing,
by
Program Lender to any Participating Institution or to any CFS Conforming Loan
borrower by reason of the CFS Conforming Loans originated by Program Lender
included in the Pool evidenced by the CFS Notes. Program Lender shall be solely
responsible to fulfill its obligations under any agreements it may have with
Participating Institution regarding origination and funding of such CFS
Conforming Loans. Notwithstanding the foregoing, the Purchaser Trust shall
assume from Program Lender any liability to repurchase from ▇▇▇▇ a defaulted
Loan upon cure of the default, with respect to any Loan that would be a Seasoned
Loan but for such default and purchase by ▇▇▇▇. Such repurchase obligation
shall
be governed by the Guaranty Agreement described in Section 3.01(b)(6),
above.
3.08. Servicing
and Origination Costs.
Program
Lender shall be solely responsible for and shall pay all costs due to any third
party from Program Lender (including, without limitation, amounts due to ▇▇▇▇
or
Servicer) with respect to origination of CFS Conforming Loans and with respect
to loan servicing of CFS Conforming Loans incurred prior to purchase of a CFS
Conforming Loan hereunder. FMC shall be solely responsible for and shall pay
any
obligations it has incurred in connection with the CFS Conforming Loans and
shall be solely responsible for arranging and paying all costs for servicing
of
the CFS Conforming Loans after purchase of such Loans.
3.09
Securitization
Costs. FMC
or
the Purchaser Trust shall be solely responsible for and shall pay any
Securitization Costs and any and all obligations it has incurred in connection
with the purchase, financing of purchase and securitization of the CFS
Conforming Loans.
3.10
Effect
of Loan Cancellations.
In the
event that the Borrower cancels a Seasoned Loan in a manner and at a time
permitted under the Program Guidelines, if that loan has already been purchased
under this Agreement, Program Lender will return to the Purchaser Trust all
amounts received by it with respect to such purchase. FMC shall prepare an
accounting of all such cancellations within 30 days after the last date
permitted for cancellation of loans purchased on a particular Purchase
Date.
IV. Limitation
of Obligations of FMC and Purchaser Trust.
4.01. FMC's
obligation in connection with the purchase of Seasoned Loans is limited to
using
its best efforts to cause a Securitization Transaction to occur and to use
the
proceeds thereof to fund the purchase of Seasoned Loans by a Purchaser Trust.
Upon the designation of a Purchase Date and a Purchaser Trust by FMC, FMC shall
be obligated to cause the consummation of a Securitization Transaction and
the
payment of the Minimum Purchase Price to Program Lender; provided,
however,
that
the obligation of FMC and any Purchaser Trust to consummate the Securitization
Transaction shall be conditioned upon and subject to the receipt by the
Purchaser Trust of Securitization Transaction proceeds, net of Securitization
Costs equal to or greater than the Minimum Purchase Price.
V. Representations
and Warranties.
5.01. Representations
and Warranties of FMC.
FMC
makes
the following representations and warranties as of the date hereof, as of the
date of each purchase of CFS Conforming Loans and as of any other date specified
below. FMC shall cause each Purchaser Trust to make substantially the same
representations and warranties in a Pool Supplement as of the date of each
purchase of CFS Conforming Loans:
(a) FMC
represents and warrants that it is and shall remain a Delaware corporation
duly
organized, validly existing and in good standing under the laws of the State
of
Delaware, and has the authority to conduct all activities contemplated by this
Agreement.
(b) FMC
has
full power and authority to perform its obligations under this Agreement, and
has duly authorized the execution, delivery and performance of, and has duly
delivered this Agreement, and this Agreement constitutes the legal, valid and
binding obligation of FMC enforceable against FMC in accordance with its terms,
except that such enforceability may be limited by bankruptcy, insolvency,
reorganization or other similar laws.
(c) Neither
the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with
the
terms and conditions hereof, will conflict with, or result in a breach of,
or
constitute a default under, any of the terms, conditions or provisions of any
legal restriction or any agreement or instrument to which FMC is now a party
or
by which it is bound.
5.02. Representations
and Warranties of Program Lender.
Program
Lender makes the following representations and warranties as of the date hereof,
as of the date of each sale of CFS Conforming Loans originated by Program Lender
to FMC or a Purchaser Trust, and as of any other date specified
below:
(a) Program
Lender represents and warrants that it is, and shall continue to be, a national
bank duly organized, validly existing and in good standing under the laws of
the
United States, and has the authority to conduct all activities contemplated
by
this Agreement.
(b) Program
Lender has full power and authority to perform its obligations under this
Agreement, and has duly authorized the execution, delivery and performance
of,
and has duly delivered this Agreement, and this Agreement, together with each
Pool Supplement executed pursuant hereto, constitutes the legal, valid and
binding obligation of Program Lender enforceable against Program Lender in
accordance with its terms, except as such enforceability may be limited by
(i)
receivership, conservatorship and supervisory powers of bank regulatory agencies
generally, (ii) applicable bankruptcy, receivership, conservatorship,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally from time to time in effect, or (iii) general
principles of equity.
(c) Neither
the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with
the
terms and conditions hereof, will conflict with, or result in a breach of,
or
constitute a default under, any of the terms, conditions or provisions of any
legal restriction or any agreement or instrument to which Program Lender is
now
a party or by which it is bound.
(d) Each
of
the CFS Conforming Loans originated by Program Lender and sold to FMC or a
Purchaser Trust pursuant to any Securitization Transaction (i) is the valid,
binding and enforceable obligation of the borrower executing the same, and
of
any cosigner thereto, enforceable against each borrower, any student maker
named
therein, and any cosigner thereunder in accordance with its terms except as
enforceability may be affected by bankruptcy, insolvency, moratorium or other
similar laws affecting the rights of creditors generally and by equitable
principles, (ii) is covered by and entitled to the benefits of the Guaranty
Agreement, and (iii) is a Seasoned Loan.
(e) Each
CFS
Conforming Loan originated by Program Lender sold hereunder and any accompanying
notices and disclosures conforms to all applicable state and federal laws,
rules
and regulations and each CFS Conforming Loan was documented on forms set forth
in the Program Guidelines and contained consumer loan terms and involved
guaranty fees payable to ▇▇▇▇ in strict conformity with the Program Guidelines.
The origination of each CFS Conforming Loan was conducted in accordance with
the
Program Guidelines and all applicable state and federal laws including, without
limitation, the Equal Credit Opportunity Act. No application to Program Lender
for a CFS Conforming Loan shall be, or has been, rejected, approved or
discouraged by Program Lender on the basis of race, sex, color, religion,
national origin, age (other than laws limiting the capacity to enter a binding
contract) or marital status, the fact that all or a part of the borrower's
or
co-signer's, income derives from any public assistance program, or the fact
that
the applicant, borrower or any co-signer has, in good faith, exercised any
right
under the Consumer Credit Protection Act.
(f) Each
CFS
Conforming Loan originated by Program Lender sold to FMC or Purchaser Trust
is
in compliance with any applicable usury laws at the time made and of the time
of
assignment to FMC or a Purchaser Trust.
(g) There
is
no defense to payment, counterclaim or setoff with respect to any CFS Conforming
Loan sold under this Agreement. There is no action before any state or federal
court, administrative or regulatory body, pending or threatened against Program
Lender in which an adverse result would have a material adverse effect upon
the
validity or enforceability of CFS Conforming Loans originated by Program Lender
and included in the Pool.
(h) Each
and
every CFS Conforming Loan sold pursuant to this Agreement is owned by Program
Lender free and clear of any liens, claims or demands of any person, and Program
Lender has the absolute right to transfer the same to FMC or a Purchaser
Trust.
(i) With
respect to each CFS Note originated by Program Lender and included in the Pool:
(A) the terms thereof have not been impaired, waived, altered or modified in
any
respect, except pursuant to written forbearance agreements in accordance with
the requirements of and in the terms set forth in the Program Guidelines, and
(B) such CFS Note has been serviced at all times in accordance with the Program
Guidelines.
5.03. Exclusive
Representations and Warranties.
The
representations and warranties set forth in Section 5.02 above are the sole
and
exclusive representations and warranties made by the Program Lender, its
representatives, agents, officers, directors and other employees, with respect
to this Agreement, any Pool Supplement, any CFS Conforming Loan, any obligor,
and the sale of any CFS Conforming Loan to the Purchaser Trust hereunder or
otherwise.
5.04. Remedy
for Breach of Representations and Warranties.
In
the
event any representation or warranty made by Program Lender pursuant to Section
5.02 above shall prove to be inaccurate or incomplete as of the date when made,
Program Lender shall have the right (but not the obligation) to elect by written
notice to FMC to be given by Program Lender no later than sixty (60) days after
receipt of written notice from FMC of such alleged breach to repurchase the
affected CFS Conforming Loan or Loans no later than such 60th day for a cash
purchase price equal to the outstanding principal balance thereof plus all
accrued and unpaid interest. Upon receipt of said repurchase price, FMC shall,
or, if applicable, shall cause the Purchaser Trust or the Servicer to, deliver
the CFS Note and the Origination Records relating thereto to Program Lender,
duly endorsed or assigned to Program Lender or to such person as Program Lender
may direct, in any such case, without recourse to FMC or the Purchaser Trust.
Whether or not Program Lender exercises its right of repurchase, Program Lender
shall indemnify FMC, the Purchaser Trust and any fiduciary under the Trust
Agreement pursuant to Article VIII of this Agreement.
VI. Survival
of Representations, Warranties and Indemnities.
As
to any
CFS Conforming Loans purchased hereunder, the representations and warranties
contained herein and the indemnifications and indemnification procedures
contained in Article VIII hereof with respect to such CFS Conforming Loans
shall
survive until each such CFS Conforming Loan is paid in full.
VII. Miscellaneous.
7.01. No
Assignment.
No
party
may assign its rights or obligations under this Agreement without the prior
written consent of the parties hereto, provided,
however,
that:
(a) Program Lender may assign its rights hereunder to an Affiliate that is
a
national banking association or state-chartered bank having the legal power
and
right under applicable law (including, without limitation, usury law in the
State where it is located) to make CFS Conforming Loans, and (b) FMC shall
have
the right to create a Purchaser Trust to exercise FMC's rights to purchase
each
Pool. No assignment shall relieve the assignor of liability hereunder. Any
assignment in violation hereof shall be automatically null and
void.
7.02. Amendment.
This
Agreement may not be amended nor terms or provisions hereof waived unless such
amendment or waiver is in writing and signed by all parties hereto.
7.03. No
Waiver.
No
delay
or failure by any party to exercise any right, power or remedy hereunder shall
constitute a waiver thereof by such party, and no single or partial exercise
by
any party of any right, power or remedy shall preclude other or further exercise
thereof or any exercise of any other rights, powers or remedies.
7.04. Entire
Agreement.
This
Agreement and the documents and agreements referred to herein embody the entire
agreement and understanding among the parties hereto and supersede all prior
agreements and understandings relating to the subject matter hereof and
thereof.
7.05. Notices.
All
notices given by any party to the others under this Agreement shall be in
writing delivered: (a) personally, (b) by facsimile transmission, (c) by
overnight courier, prepaid, or (d) by depositing the same in the United States
mail, certified, return receipt requested, with postage prepaid, addressed
to
the party at the address set forth below. Any party may change the address
to
which notices are to be sent by notice of such change to each other party given
as provided herein. Such notices shall be effective on the date received.
Notices shall be given as follows:
If
to
Program Lender:
▇▇▇▇▇▇
▇▇▇▇▇▇▇
Charter
One Bank
Student
Lending Dept.
▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
E-mail:
▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
If
to
FMC:
▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
The
First
Marblehead Corporation
▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇)
▇▇▇-▇▇▇▇
E-Mail:
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
With
a
copy to:
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
E-Mail:
▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
7.06. Attorneys'
Fees.
In
the
event of a lawsuit or arbitration proceeding arising out of or relating to
this
Agreement, the prevailing party shall be entitled to recover costs and
reasonable attorneys' fees incurred in connection with the lawsuit or
arbitration proceeding, as determined by the court or arbitrator.
7.07. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
Commonwealth of Massachusetts (without reference to choice-of-law
rules).
7.08. Counterparts.
This
Agreement may be executed in any number of counterparts, all of which together
shall constitute one agreement.
7.09. No
Third Parties Benefited.
This
Agreement is made and entered into for the protection and legal benefit of
the
parties, and their permitted successors and assigns (including, without
limitation, any Purchaser Trust), and each and every Indemnified Person (all
of
which shall be entitled to enforce the Indemnity contained in Sections 8.01
and
8.02 hereof), and no other person shall be a direct or indirect legal
beneficiary of, or have any direct or indirect cause of action or claim in
connection with, this Agreement.
7.10. Opinions.
Concurrent
with the execution hereof, each party shall deliver to the other the opinion
of
its corporate counsel (which may be internal counsel) to the effect that this
Agreement has been duly authorized by all necessary corporate or other
organizational action, this Agreement is within the corporate or other
organizational power of such party and that this Agreement has been duly
executed and delivered by an authorized officer of the party.
VIII. Indemnification.
8.01. By
Program Lender.
Regardless
of the exercise or nonexercise of the repurchase right under Section 5.04,
Program Lender shall indemnify and hold harmless FMC, each Purchaser Trust
and
any fiduciary under any Trust Indenture, and any officer, director, employee
or
agent of any of the foregoing (herein, collectively referred to as the
"Indemnified Persons") against any and all liabilities, losses, costs, damages
and expenses, including, without limitation, attorneys' fees and legal expenses
and sums paid, liabilities incurred or expenses paid or incurred in connection
with settling claims, suits or judgments or obtaining or attempting to obtain
release from liability under the Trust Indenture or this Agreement which such
Indemnified Person may sustain or incur by reason of any breach of any
representation, warranty or covenant of Program Lender contained herein. This
section shall survive any termination of this Agreement.
8.02. By
FMC.
FMC
shall
indemnify and hold harmless Program Lender and any officer, director, employee
or agent of Program Lender (herein, collectively referred to as “Indemnified
Persons”) against any and all liabilities, losses, costs, damages, and expenses,
including, without limitation, attorneys’ fees and legal expenses and sums paid,
liabilities incurred or expenses paid or incurred in connection with settling
claims or judgments or obtaining or attempting to obtain release from liability,
which such Indemnified Person may sustain or incur by reason of any breach
of
any representation, warranty or covenant of FMC contained herein. This section
shall survive any termination of this Agreement.
8.03. Indemnity
Procedures.
(a) In
the
event that any claim or demand for which an indemnifying party would be liable
to an Indemnified Person hereunder is asserted against or sought to be collected
from an Indemnified Person by a third party (the “Action”), the Indemnified
Person shall promptly notify the indemnifying party of such Action, specifying
the nature of such claim or demand and the amount or the estimated amount
thereof to the extent feasible (which estimate shall not be conclusive of the
final amount of such claims and demand) (the “Claim Notice”). The failure to
provide the Claim Notice to the indemnifying party promptly will not relieve
the
indemnifying party of any liability it may have to the Indemnified Person giving
the Claim Notice, except to the extent that the indemnifying party demonstrates
that the defense of such action is prejudiced by the indemnifying party’s
failure to give such Claim Notice promptly. The indemnifying party shall have
ten (10) days from the delivery of the Claim Notice (the “Notice Period”) to
notify the Indemnified Person, (1) whether or not the indemnifying party
disputes liability to the Indemnified Person hereunder with respect to such
claim or demand and (2) notwithstanding any such dispute, whether or not the
indemnifying party desires, at its sole cost and expense, to defend the
Indemnified Person against such claim or demand in which case the indemnifying
party shall assume all past and future responsibility for such action and shall
reimburse the Indemnified Person for all expenses in connection with the Action.
Notwithstanding the assumption by the indemnifying party of the defense of
any
Action, the Indemnified Person shall be permitted to participate in such defense
at its cost and expense.
(b) Pending
the resolution of any dispute by the indemnifying party of its liability with
respect to any claim or demand, such claim or demand shall not be settled
without the prior written consent of the Indemnified Person, which consent
shall
not be unreasonably withheld so long as the Indemnified Person suffers no
economic loss thereby and such settlement includes an unconditional term thereof
given by the claimant or plaintiff of a release of the Indemnified Person from
all liability with respect to the claim or demand. Notwithstanding the
foregoing, if it is reasonably likely that damages in such Action would result
in an injunction or other equitable relief then the Indemnified Person may,
by
notice to the indemnifying party, assume the right to defend, compromise or
settle such Action; provided,
the
indemnifying party may participate in such Action at its expense and;
provided,
further,
no such
Action shall be settled without the consent of both the Indemnified Person
and
the indemnifying party.
(c) In
the
event that an indemnifying party notifies the Indemnified Person within the
Notice Period that the indemnifying party desires to defend the Indemnified
Person against such claim or demand, then, except as hereinafter provided,
the
indemnifying party shall have the right and obligation to defend the Indemnified
Person by appropriate proceedings, which proceedings shall be promptly settled
or prosecuted by the indemnifying party to a final conclusion in such a manner
as to avoid any risk of the Indemnified Person becoming subject to liability
for
any other matter; provided, however, the indemnifying party shall not, without
the prior written consent of the Indemnified Person, consent to the entry of
any
judgment against the Indemnified Person or enter into any settlement or
compromise which does not include, as an unconditional term thereof, the giving
by the claimant or plaintiff to the Indemnified Person of a release, in form
and
substance satisfactory to such Indemnified Person, as the case may be, from
all
liability with respect to such claim or litigation. If any Indemnified Person
desires settlement without the prior consent of the indemnifying party, which
consent shall not be unreasonably withheld, it may do so at its sole cost and
expense.
(d) If
the
indemnifying party elects not to defend the Indemnified Person against such
Action, whether by not giving the Indemnified Person timely notice as provided
above, or otherwise, then the Action may be defended by the Indemnified Person
at the indemnifying party’s cost and expense (without imposing any obligation on
any Indemnified Person to defend any such claim or demand), in which case it
may
defend such Action in such a manner as it may deem appropriate (including
settlement) and then that portion thereof as to which such defense is
unsuccessful, in each case, shall be conclusively deemed to be a liability
of
the indemnifying party hereunder; provided
that if
the indemnifying party shall have disputed its liability to the Indemnified
Person hereunder, as provided in Section 8.03(a) above, then such determination
or settlement shall not affect the right of the indemnifying party to dispute
the Indemnified Person’s claim for indemnification.
(e) In
the
event an Indemnified Person should have a claim against the indemnifying party
hereunder that does not involve a claim or demand being asserted against or
sought to be collected from it by a third party, the Indemnified Person shall
promptly send a Claim Notice with respect to such claim to the indemnifying
party. If the indemnifying party disputes its liability with respect to such
claim or demand, the Indemnified Person shall have the right to pursue all
of
its legal and equitable remedies against the indemnifying party for indemnity
hereunder.
8.04 Payment. Upon
the
determination of the liability under Section 8.03 hereof, the indemnifying
party
shall pay to the Indemnified Person within ten (10) days after such
determination, the amount of any claim for indemnification made hereunder,
subject to the limitations set forth herein. Upon payment in full of any claim,
either by set off or otherwise, the entity making payment shall be subrogated
to
the rights of the Indemnified Person against any Person, with respect to the
subject matter of such claim.
IX. Dispute
Resolution
9.01. Informal
Dispute Resolution.
Any
controversy or claim between the parties arising from or in connection with
this
Agreement or the relationship of the parties under this Agreement whether based
on contract, tort, common law, equity, statute, regulation, order or otherwise,
and whether arising before or after the termination of this Agreement
("Dispute") shall be resolved as follows:
(a) Upon
written request of either party, the parties will each appoint a designated
representative whose task it will be to meet for the purpose of endeavoring
to
resolve such Dispute.
(b) The
designated representatives shall meet as often as the parties reasonably deem
necessary to discuss the problem in an effort to resolve the Dispute without
the
necessity of any formal proceeding.
(c) Arbitration
proceedings for the resolution of a Dispute under Section 9.02 may not be
commenced until the earlier of:
(i) the
designated representatives conclude in good faith that amicable resolution
through continued negotiation of the matter does not appear likely; or
(ii) the
expiration of the thirty (30) day period immediately following the initial
request to negotiate the Dispute.
9.02. Arbitration.
If
the
provisions of Section 9.01 have been satisfied, but the Dispute has not been
resolved, then the Dispute shall be settled pursuant to the
following:
(a) Any
controversy or claim between or among the parties arising out of or relating
to
this Agreement or any agreements or instruments relating hereto or delivered
in
connection herewith and any claim based on or arising from an alleged tort,
shall at the request of any party be determined by arbitration. The arbitration
shall be conducted in accordance with the United States Arbitration Act (Title
9, U.S. Code), notwithstanding any choice of law provision in this Agreement,
and under the Commercial Rules of the American Arbitration Association ("AAA").
The arbitrator(s) shall give effect to statutes of limitation in determining
any
claim. Any controversy concerning whether an issue is arbitrable shall be
determined by the arbitrator(s). Judgment upon the arbitration award may be
entered in any court having jurisdiction. The institution and maintenance of
an
action for judicial relief or pursuit of a provisional or ancillary remedy
shall
not constitute a waiver of the right of any party, including the plaintiff,
to
submit the controversy or claim to arbitration if any other party contests
such
action for judicial relief.
(b) No
provision of this Section shall limit the right of any party to this Agreement
to exercise self-help remedies such as setoff, foreclosure against or sale
of
any real or personal property collateral or security, or obtaining provisional
or ancillary remedies from a court of competent jurisdiction before, after,
or
during the pendency of any arbitration or other proceeding. The exercise of
a
remedy does not waive the right of either party to resort to arbitration or
reference. At the option of any party holding a deed of trust, foreclosure
under
such deed of trust or mortgage may be accomplished either by exercise of power
of sale under the deed of trust or mortgage or by judicial
foreclosure.
9.03. Permissible
Legal Proceedings.
Notwithstanding
anything contained in Sections 9.01 and 9.02, (a) a party may institute legal
proceedings to seek a temporary restraining order or other temporary or
preliminary injunctive relief to prevent immediate and irreparable harm to
such
party, and for which monetary damages would be inadequate, pending final
resolution of the dispute, controversy or claim pursuant to arbitration, and
(b)
a party may institute legal proceedings if necessary to preserve a superior
position with respect to other creditors. Such conduct shall not constitute
a
waiver of the right of either party to resort to arbitration to obtain relief
other than that specified in this Section 9.03.
X. Term
and Termination.
10.01. Term
and Termination.
(a)
Termination
by FMC.
FMC may
terminate this Agreement if:
|
(1)
|
Either
of the Guaranty Agreement or the Marketing Agreement is terminated
by
reason of a breach thereof by Program Lender; or
|
|
(2)
|
Program
Lender materially breaches this Agreement, and fails to cure such
material
breach, within 60 days of written demand for cure; or
|
|
(3)
|
Program
Lender shall file any proceeding under the U.S. Bankruptcy Code or
similar
state insolvency act, or shall be the subject of any involuntary
bankruptcy proceeding, including without limitation a seizure of
assets by
the FDIC, which proceeding is not dismissed within 60 days after
the
filing thereof; or
|
|
(4)
|
the
Guaranty Agreement expires or is not renewed or a ▇▇▇▇ Insolvency
Event
occurs.
|
(b)
Termination
by Program Lender.
Program
Lender may terminate this Agreement:
|
(1)
|
If
the Guaranty Agreement is terminated by reason of a breach thereof
by
▇▇▇▇; or
|
|
(2)
|
If
FMC materially breaches this Agreement, and fails to cure such material
breach, within 60 days of written demand for cure; or
|
|
(3)
|
If
FMC shall file any proceeding under the U.S. Bankruptcy Code or similar
state insolvency act, or shall be the subject of any involuntary
bankruptcy proceeding, which proceeding is not dismissed within 60
days
after the filing thereof; or
|
|
(4)
|
If
the Marketing Agreement is terminated by reason of breach thereof
by the
Marketer.
|
(c) Termination
by Reason of Expiration or Termination of Guaranty Agreement.
Unless
earlier terminated under Sections 10.01(a) or (b), this Agreement shall remain
in full force and effect until May 1, 2003. Thereafter, this Agreement shall
automatically renew for additional one-year periods unless either party shall
give the other notice of nonrenewal at least 90 days prior to the expiration
of
the then-effective term.
(d)
Effect
of Termination.
(1) In
the
event of termination under any of Sections 10.01(a)(1), (2), or (3) or
10.01(b)(1), (2) or (3), neither party shall have any further obligations to
purchase or sell Loans under this Agreement, but the nonbreaching party shall
have whatever remedies are provided by law.
(2) In
the
event of termination under Section 10.01(a)(4), 10.01(b)(4), or 10.01(c), the
Agreement (i) shall continue in full force and effect with respect to CFS
Conforming Loans made prior to such termination until the expiration of the
Option Period of all Loans guaranteed pursuant to the Guaranty Agreement, and
(ii) FMC or a designee Purchaser Trust has the right to purchase any CFS
Conforming Loans originated prior to such termination, on the terms set forth
in
this Agreement, until the end of the Option Period with respect to such
loans.
(3)
After
termination of this Agreement, certain obligations hereunder shall survive
as
provided in Article VI hereof.
(4) After
notice of termination or expiration hereof is given (including, without
limitation, notice under section 10.02), the parties shall meet to develop
a
transition plan to deal with applications and approved loans that have not
been
fully processed and/or funded. Such plan shall require all parties to fulfill
any legal commitments already made to borrowers or applicants. Subject in all
cases to binding legal rights of borrowers, unless termination notice has been
given under subsections 10.01(a)(4) or (b)(1), (b)(2), or (b)(3), Program Lender
shall continue to process applications until an agreed date not later than
30
days before the effective date of termination, approvals shall cease to be
granted on an agreed date not later than 15 days before termination, and loan
disbursements shall be completed not later than 90 days after termination.
In
the case of a termination notice given under subsections 10.01(a)(4) or (b)(1),
(b)(2), or (b)(3), Program Lender may elect to take only those further actions
as are required to fulfill the legal rights of borrowers and
applicants.
10.02 Effect
of Change in Control or Other Transaction Involving Program
Lender.
If
Program Lender consolidates
with or merges into another person or entity, or conveys, transfers, or leases
all or substantially all of its property to any person or entity, or any person
or entity consolidates with or merges into Program Lender or conveys, transfers,
or leases all or substantially all of its property to Program Lender, FMC may
terminate this Agreement upon 60 Business Days prior written notice; provided,
however, that prior to delivering such notice, Program Lender will arrange
for
FMC to meet with representatives of the Program Lender’s successor entity and
engage in good faith negotiations for the continuation of this Agreement upon
mutually acceptable terms and conditions.
REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above written.
|
WITNESS:
|
CHARTER
ONE BANK, N.A.
|
____________________________
________________________________
By:
/s/▇▇▇▇▇
▇. ▇▇▇▇▇▇
Print
Name:__________________________
Print
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇▇
Title:
Production
Manager
THE
FIRST
MARBLEHEAD CORPORATION
________________________________
By:
/s/▇▇▇▇▇
▇. ▇▇▇▇▇
Print
Name:__________________________
Print
Name: ▇▇▇▇▇
▇. ▇▇▇▇▇
Title:
President
Index
to Exhibits
Exhibit
A Pool
Supplement
Exhibit
B Co-Lender
Indemnification Agreement
EXHIBIT
A
TO NOTE PURCHASE AGREEMENT
[Form
of
Pool Supplement]
This
Pool
Supplement ("Supplement") is entered into pursuant to and forms a part of that
certain Note Purchase Agreement (the "Agreement") dated as of __________, by
and
between The First Marblehead Corporation ("FMC") and [Bank Name]. This
Supplement is dated __________________,
___.
Capitalized terms used in this Supplement without definitions have the meaning
set forth in the Agreement.
Article
1: Purchase and Sale.
In
consideration of the Minimum Purchase Price set forth in Schedule 1 attached
hereto, Program Lender hereby transfers, sells, sets over and assigns to [name
of purchasing entity] ("Purchaser Trust"), upon the terms and conditions set
forth in the Agreement (which are incorporated herein by reference with the
same
force and effect as if set forth in full herein), each CFS Conforming Loan
described in the attached Schedule 2 (“the Transferred CFS Loans”) along with
all of Program Lender’s rights under the Guaranty Agreement relating to the
Transferred CFS Loans. Program Lender hereby transfers and delivers to the
Purchaser Trust each CFS Note evidencing such CFS Conforming Loan and all
Origination Records relating thereto, in accordance with the terms of the
Agreement. Purchaser Trust hereby purchases said CFS Notes on said terms and
conditions.
Article
2: Price.
The
amounts paid pursuant to this Supplement are:
“Minimum
Purchase Price” shall mean the sum of the following amounts with respect to each
of the CFS Conforming Loans to be purchased:
|
(a)
|
The
unpaid principal amount (including capitalized interest) of the Seasoned
Loans in the Pool net of financed fees; plus
|
|
(b)
|
Interest
at a rate [**] on the actual outstanding amount of the loan principal
and
financed fees over the period in which the Program Lender financed
the
loans prior to the Purchase Date; plus
|
|
(c)
|
[**]
pursuant to the Origination Agreement and the Guaranty Agreement;
plus
|
|
(d)
|
([**]
of the Loans.
|
Article
3: Representations and Warranties.
3.01. By
Program Lender.
Program
Lender repeats the representations and warranties contained in Section 5.02
of
the Agreement and confirms the same are true and correct as of the date hereof
with respect to the Agreement and to this Supplement.
3.02. By
Purchaser Trust.
The
Purchaser Trust hereby represents and warrants to the Program Lender that at
the
date of execution and delivery of this Supplement by the Purchaser
Trust:
(a) The
Purchaser Trust is duly organized and validly existing as a business trust
under
the laws of the State of Delaware with the due power and authority to own its
properties and to conduct its business as such properties are currently owned
and such business is presently conducted, and had at all relevant times, and
has, the power, authority and legal right to acquire and own the Transferred
CFS
Loans.
(b) The
Purchaser Trust is duly qualified to do business and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or lease
of
property or the conduct of its business shall require such
qualifications.
(c) The
Purchaser Trust has the power and authority to execute and deliver this Pool
Supplement and to carry out its respective terms; the Purchaser Trust has the
power and authority to purchase the Transferred CFS Loans and rights relating
thereto as provided herein from the Program Lender and the Purchaser Trust
has
duly authorized such purchase from the Program Lender by all necessary action;
and the execution, delivery and performance of this Pool Supplement has been
duly authorized by the Purchaser Trust by all necessary action on the part
of
the Purchaser Trust.
(d) This
Pool
Supplement, together with the Agreement of which this Supplement forms a part,
constitutes a legal, valid and binding obligation of the Purchaser Trust,
enforceable in accordance with its terms.
(e) The
consummation of the transactions contemplated by the Agreement and this
Supplement and the fulfillment of the terms hereof do not conflict with, result
in any breach of any of the terms and provisions of, or constitute (with or
without notice or lapse of time) a default under, the governing instruments
of
the Purchaser Trust or any indenture, agreement or other instrument to which
the
Purchaser Trust is a party or by which it is bound; or result in the creation
or
imposition of any lien upon any of its properties pursuant to the terms of
any
such indenture, agreement or other instrument; or violate any law or any order,
rule or regulation applicable to the Purchaser Trust of any court or of any
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Purchaser Trust or its
properties.
(f) There
are
no proceedings or investigations pending, or threatened, before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Purchaser Trust or its properties: (1) asserting
the invalidity of the Agreement or this Pool Supplement, (2) seeking to prevent
the consummation of any of the transactions contemplated by the Agreement or
this Pool Supplement, or (3) seeking any determination or ruling that is likely
to materially or adversely affect the performance by the Purchaser Trust of
its
obligations under, or the validity or enforceability of the Agreement or this
Pool Supplement.
Article
4: Cross Receipt.
Program
Lender hereby acknowledges receipt of the Minimum Purchase Price. Purchaser
Trust hereby acknowledges receipt of the Transferred CFS Loans included in
the
Pool.
Article
5: Assignment of Origination, Guaranty and Servicing Rights.
Program
Lender hereby assigns and sets over to Purchaser Trust any claims it may now
or
hereafter have under the Guaranty Agreement the Origination Agreement, and
the
Servicing Agreement to the extent the same relate to the Transferred CFS Loans
described in Schedule 2, other than any right to obtain servicing after the
date
hereof. It is the intent of this provision to vest in Purchaser Trust any claim
of Program Lender relating to defects in origination, guaranty, or servicing
of
the loans purchased hereunder in order to permit Purchaser Trust to assert
such
claims directly and obviate any need to make the same claims against Program
Lender under this Agreement.
Article
6: Owner Trustee.
It
is
expressly understood and agreed by the parties hereto that (a) this Pool
Supplement is executed and delivered by ________________________________
(the
“Owner Trustee”) not individually or personally, but solely as owner trustee of
the Purchaser Trust under the Trust Agreement dated as of
_________________________,
with
_______________________________,
in the
exercise of the powers and authority conferred and vested in it, (b) each of
the
representations, undertakings and agreements herein made on the part of the
Purchaser Trust are made and intended not as personal representations,
undertakings and agreements by the Owner Trustee, but are made and intended
for
the purpose for binding only the Purchaser Trust, (c) nothing herein contained
shall be construed as creating any personal or individual liability on the
Owner
Trustee, to perform any covenant either expressed or implied contained herein,
all such liability, if any, being expressly waived by the parties hereby and
by
any person claiming by, through, or under the parties hereto, and (d) under
no
circumstances shall the Owner Trustee be personally liable for the payment
of
any indebtedness or expenses of the Purchaser Trust or be liable for the breach
or failure of any obligation, representation, warranty or covenant made or
undertaken by the Purchaser Trust under this Supplement or any other documents
related to the CFS Notes.
IN
WITNESS WHEREOF, the parties have caused this Supplement to be executed as
of
the date set forth above.
THE
FIRST
MARBLEHEAD CORPORATION
By:
________________________________
Name:
______________________________
Title:
_______________________________
PURCHASER
NAME:
By:
OWNER
TRUSTEE
By:
________________________________
Print
Name: __________________________
Title:
_______________________________
PROGRAM
LENDER:
________________________________
By:
________________________________
Print
Name: __________________________
Title:
_______________________________
Schedule
1 to Pool Supplement
(SAMPLE)
SETTLEMENT
SCHEDULE
FMC
200__-CP-__
PROGRAM
NAME LOANS
#
of
Loans Total
Principal
Accrued
Interest at Note Rate
EXHIBIT
B
TO NOTE PURCHASE AGREEMENT
CO-LENDER
INDEMNIFICATION AGREEMENT
THIS
CO-LENDER INDEMNIFICATION AGREEMENT (the "Agreement") is made as of
[DATE],
by and
between [Names and Addresses of Co-Lenders] ("Co-Lender"), and [LENDER NAME]
("Program Lender"), a [type of bank] organized under the laws of the
______________________,
with
its headquarters and principal place of business located at _____________
(Co-Lender and [Lender Name] are sometimes collectively referred to as the
"Lenders" and are each sometimes severally referred to as a
"Lender").
RECITALS
| A. |
The
Lenders are participants in certain private education loan programs
to pay
the costs of attending institutions of education which are themselves
participants in the ▇▇▇▇ Program (the "Participating Institutions")
whereunder such loans (the "▇▇▇▇ Loans") are guaranteed by The Education
Resources Institute, Inc. (“▇▇▇▇”) (collectively, the "▇▇▇▇
Programs").
|
| B. |
Each
of the Lenders, individually, have entered into an agreement (each,
a
"Purchase Agreement") with The First Marblehead Corporation or The
National Collegiate Trust, pursuant to which Purchase Agreements
such
Lenders have agreed to sell certain ▇▇▇▇ Loans to [Name of Purchasing
Entity] (the "Purchaser Trust"), each such purchase to be funded
through
the issuance and sale of certificates, bonds or other evidences of
indebtedness, the repayment of which are supported by such ▇▇▇▇ Loans
(the
"Subject Securitization
Transaction").
|
|
C.
|
As
a condition precedent to the obligation of each Lender to consummate
the
sale of ▇▇▇▇ Loans originated by them to the Purchaser Trust, all
Lenders
whose ▇▇▇▇ Loans will be included in the Subject Securitization
Transaction are required to execute and deliver to the other Lenders
requesting same a copy of this
Agreement.
|
NOW,
THEREFORE, in consideration of the foregoing Recitals and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE
I
REPRESENTATIONS
AND WARRANTIES
1.01 Each
Lender represents and warrants to each other Lender requesting this Agreement,
as to itself, that as of the date hereof:
(a) It
is a
national banking association, duly organized, validly existing and in good
standing under the laws of the United States and has the power and authority
to
originate and/or hold ▇▇▇▇ Loans, to consummate the transaction contemplated
by
the Purchase Agreement to which it is a party, and to execute and deliver and
perform its obligations under this Agreement;
(b) This
Agreement has been duly authorized, executed and delivered and constitutes
its
legal, valid and binding obligation, enforceable against it in accordance with
its terms except as enforceability may be limited by (a) the receivership,
conservatorship and similar supervisory powers of bank regulatory agencies
generally, as well as bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization or other similar laws affecting the enforcement
of
the rights of creditors; (b) general principles of equity (including
availability of equitable remedies), whether enforcement is sought in a
proceeding in equity or at law; and (c) applicable securities laws and public
policy considerations underlying the securities laws to the extent that such
public policy considerations limit the enforceability of the provisions of
this
Agreement which purport to provide indemnification with respect to securities
law liabilities;
(c) Each
▇▇▇▇
Loan included in the Subject Securitization Transaction originated by it is
the
valid, binding and enforceable obligation of the borrower executing the same,
and of any cosigner thereto, enforceable against the borrower and cosigner
thereunder in accordance with its terms except as enforceability may be affected
by bankruptcy, insolvency, moratorium or other similar laws affecting the rights
of creditors generally and by equitable principles;
(d) At
the
time of origination, each ▇▇▇▇ Loan included in the Subject Securitization
Transaction originated by it and any accompanying notices and disclosures
conforms in all material respects to all applicable state and federal laws,
rules and regulations and the origination thereof was conducted in material
compliance with all applicable state and federal laws concerning the actions
of
the Lender, including, without limitation, the Equal Credit Opportunity
Act;
(e) At
the
time of origination, each ▇▇▇▇ Loan included in the Subject Securitization
Transaction originated by it is in compliance in all material respects with
any
applicable usury laws at the time made and as of the time of sale to the
Purchaser Trust pursuant to the Purchase Agreement to which Lender is a party;
and
(f) The
respective Lender has no actual knowledge of any defense to payment with respect
to any ▇▇▇▇ Loan included in the Subject Securitization Transaction originated
by it nor is there any action before any state or federal court, administrative
or regulatory body, pending against the Lender with regard to its ▇▇▇▇ Loans
in
which an adverse result would have a material adverse effect upon the validity
or enforceability of its ▇▇▇▇ Loans.
ARTICLE
2
INDEMNIFICATION
2.01 Cross-Indemnification.
Each Lender (an “Indemnifying Party”) hereby agrees to indemnify, hold harmless
and defend each other and such other Lender’s respective officers, directors,
employees, attorneys, agents (not including any Participating Institution or
the
servicer of any ▇▇▇▇ Loan) and each person who controls such other Lender within
the meaning of either Section 15 of the Securities Act of 1933, as amended,
or
Section 20 of the Securities Exchange Act of 1934, as amended (collectively
and
severally, the “Indemnified Parties”), from and against any and all claims,
obligations, penalties, actions, suits, judgments, costs, disbursements, losses,
liabilities and/or damages (including, without limitation, reasonable external
attorneys’ fees and the allocated costs of internal salaried attorneys) of any
kind whatsoever which may at any time be imposed on, assessed against or
incurred by any such Indemnified Party in any way relating to or arising out
of
the material inaccuracy or incompleteness of any representation or warranty
made
by the Indemnifying Lender hereunder or the material inaccuracy or
incompleteness of any representation or warranty made by the Indemnifying Lender
to any Participating Institution in connection with the ▇▇▇▇ Program or the
Subject Securitization Transaction. The indemnity provided by each Indemnifying
Lender hereunder is in addition to any liability which such Lender may otherwise
have to the Indemnified Parties, at law, in equity or otherwise, in connection
with the Subject Securitization Transaction.
2.02
Procedure for Indemnification. In case any proceeding (including any
governmental investigation) shall be instituted against any Indemnified Party
in
respect of which indemnity is sought pursuant to Section 2.01, such Indemnified
Party shall promptly notify the applicable Indemnifying Party in writing. The
Indemnifying Party, upon request of the Indemnified Party, shall acknowledge
its
obligation, subject to the terms hereof, to indemnify the Indemnified Party
in
writing and shall retain counsel reasonably satisfactory to the Indemnified
Party to represent the Indemnified Party and any others the Indemnifying Party
may designate in such proceeding and the Indemnifying Party shall pay the fees
and disbursements of such counsel related to such proceeding, within a
reasonable period of time after such fees and disbursements are billed by such
counsel. If the Indemnifying Party fails to acknowledge its obligation, subject
to the terms hereof, to indemnify in writing or fails to retain such counsel
within a reasonable period of time after such notice was given, then the
Indemnified Party shall have the right to retain its own counsel, and the fees
and expenses of such counsel shall be at the expense of the Indemnifying Party.
In any such proceeding, any Indemnified Party shall have the right to retain
its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such Indemnified Party unless (a) the preceding sentence is applicable,
(b)
the Indemnifying Party and the Indemnified Party shall have mutually agreed
to
the retention of such counsel or (c) the named parties to any such proceeding
(including any impleaded parties) include both the Indemnifying Party and the
Indemnified Party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
It
is understood that the Indemnifying Party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to
any
local counsel) for all such Indemnified Parties, and that all such fees and
expenses shall be reimbursed as they are incurred.
2.03
Settlements of Proceedings. The Indemnifying Party shall not be liable for
any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the
Indemnifying Party agrees to indemnify the Indemnified Party from and against
any loss or liability by reason of such settlement or judgment. No Indemnifying
Party, without the prior written consent of the Indemnified Party, shall effect
any settlement of any pending or threatened proceeding in respect of which
any
Indemnified Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such settlement includes
an
unconditional release of such Indemnified Party from all liability on claims
that are the subject of such proceeding.
ARTICLE
3
MISCELLANEOUS
3.01
Notices. All demands, notices and communications upon or to any Lender under
this Agreement shall be in writing, personally delivered or mailed by certified
mail, return receipt requested, to such Lender at its address set forth below
or
to such other address as may hereafter be furnished by such Lender to the other
Lenders hereunder in writing, and shall be deemed to have been duly given upon
receipt.
If
to
Co-Lender:
___________________________
___________________________
___________________________
with
a
copy to:
___________________________
___________________________
___________________________
If
to
Program Lender:
___________________________
___________________________
___________________________
With
a
copy to:
___________________________
___________________________
___________________________
3.02
Successors and Assigns. This Agreement is binding on the Lenders and their
respective successors and assigns. No Lender shall assign its rights or
obligations under this Agreement without the prior written consent of all other
Lender hereunder, other than to its wholly owned affiliate, and any assignment
in violation of this prohibition shall be automatically deemed null and
void.
3.03
Arbitration. The parties acknowledge that this Agreement evidences a transaction
involving interstate commerce. Any controversy or claim arising out of or
relating to this Agreement, or the breach of the same, shall be settled through
consultation and negotiation in good faith and a spirit of mutual cooperation
for up to fifteen (15) days commencing on the date when one party gives written
notice to the other party of any controversy or claim. However, if those
attempts fail, the parties agree that any misunderstandings or disputes arising
from this Agreement shall be decided by binding arbitration which shall be
conducted, upon request by either party, in New York, New York or such other
mutually agreed upon location, before one (1) arbitrator designated by the
American Arbitration Association (the “AAA”), in accordance with the terms of
the Commercial Arbitration Rules of the AAA, and, to the maximum extent
applicable, the United States Arbitration Act (Title 9 of the United States
Code). Notwithstanding anything herein to the contrary, either party may proceed
to a court of competent jurisdiction to obtain equitable relief at any
time.
3.04 Severability.
Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
3.05 Counterparts.
This Agreement may be executed by the parties hereto in separate counterparts,
each of which when so executed and delivered shall be an original, but all
such
counterparts shall together constitute but one and the same
instrument.
3.06 Headings.
The headings of the various Articles and Sections herein are for convenience
of
reference only and shall not define or limit any of the terms or provisions
hereof.
3.07 Amendment.
This Agreement may not be amended nor terms or provisions hereof waived unless
such amendment or waiver is in writing and signed by all parties
hereto.
3.08 No
Waiver. No delay or failure by any party to exercise any right, power or remedy
hereunder shall constitute a waiver thereof by such party, and no single or
partial exercise by any party of any right, power or remedy shall preclude
other
or further exercise thereof or any exercise of any other rights, powers or
remedies.
3.09 Entire
Agreement. This Agreement embodies the entire agreement and understanding
between the parties with respect to the subject matter hereof and supersedes
all
prior agreements and understandings relating to the subject matter hereof and
thereof.
3.10 Governing
Law. This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York without regard to its conflict of laws
doctrine.
3.11 No
Third
Party Beneficiaries. This Agreement is made and entered into for the protection
and legal benefit of the parties hereto, their permitted successors and assigns,
and each and every Indemnified Party, and no other person shall be a direct
or
indirect beneficiary of, or have any direct or indirect cause of action or
claim
in connection with, this Agreement.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as
of the day and year first above written.
CO-LENDER(S)
____________________________
By:
____________________________
Print
Name: _____________________
Title:
__________________________
[LENDER
NAME]
____________________________
By:
____________________________
Print
Name: _____________________
Title:
__________________________
AMENDMENT
TO NOTE PURCHASE AGREEMENT
This
AMENDMENT TO NOTE PURCHASE AGREEMENT (this “Amendment”) is by and between
Charter One Bank, N.A., a national bank organized under the laws of the United
States and having a principal office located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇, and a student loan department located at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇
▇▇▇▇▇ (“Program Lender”), and THE FIRST MARBLEHEAD CORPORATION, a Delaware
corporation having a principal place of business at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ (“FMC”), and is effective as of May 15, 2002.
WITNESSETH
WHEREAS,
FMC and Program Lender have entered into a certain Note Purchase Agreement
dated
as of May 15, 2002, with respect to purchase of the loans described therein
(the
“NPA”); and
WHEREAS,
the NPA contains an error in the calculation of the Minimum Purchase Price
for
loans purchased, whereby Program Lender receives [**]
NOW,
THEREFORE, in consideration of the mutual covenants contained herein, the
parties hereto hereby agree as follows:
1. Amendment
to Minimum Purchase Price.
Section
2.04(d) of the NPA is hereby amended to read in its entirety:
|
[**]
of the Loans.
|
2. Effectiveness
of Amendment.
This
amendment is effective as of May 15, 2002, and shall apply to each and every
CFS
Conforming Loan purchased under the NPA in accordance with its terms.
In
all
other respects the NPA is hereby ratified and confirmed.
IN
WITNESS WHEREOF, the parties hereto have set their hands and seals by their
duly
authorized officers as of the date first written above.
THE
FIRST
MARBLEHEAD
CHARTER
ONE BANK, N.A.
CORPORATION
By:_/s/▇▇▇▇▇
▇. Lepenfeld_________
By:__/s/▇▇▇▇▇
▇.
▇▇▇▇▇▇
Print
Name___
▇▇▇▇▇
▇.
Lepenfeld
Print
Name
▇▇▇▇▇
▇. ▇▇▇▇▇▇
Title________Secretary Title
Production
Manager
SECOND
AMENDMENT TO NOTE PURCHASE AGREEMENT
This
SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT (this “Second Amendment”) is by and
between Charter One Bank, N.A., a national bank organized under the laws
of the
United States and having a principal office located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and a student loan department located at ▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (“Program Lender”), and THE FIRST MARBLEHEAD CORPORATION, a
Delaware corporation having a principal place of business at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ (“FMC”), and is effective as of December 6, 2002.
WITNESSETH
WHEREAS,
FMC and Program Lender have entered into a certain Note Purchase Agreement
dated
as of May 15, 2002, with respect to purchase of the loans described therein
(the
“NPA”);
WHEREAS,
the Minimum Purchase Price of the NPA was amended effective May 15, 2002
(“First
Amendment”); and
WHEREAS,
the Marketing Fee to be paid to CFS was, in effect, reduced to [**]% from
[**]%
pursuant to an Amendment dated December 6, 2002, to the Referral Marketing
Agreement among Program Lender, FMC, and Collegiate Funding Services, LLC,
dated
May 15, 2002;
NOW,
THEREFORE, in consideration of the mutual covenants contained herein, the
parties hereto hereby agree as follows:
1. Amendment
to Minimum Purchase Price.
Section
2.04(d) of the NPA is hereby amended to read in its entirety:
|
[**]
of the Loans.
|
2. Effectiveness
of Second Amendment.
This
Second Amendment is effective as of December 6, 2002, and shall apply to
each
and every CFS Conforming Loan that is purchased under the NPA in accordance
with
its terms.
In
all
other respects the NPA is hereby ratified and confirmed.
IN
WITNESS WHEREOF, the parties hereto have set their hands and seals by their
duly
authorized officers as of the date first written above.
THE
FIRST
MARBLEHEAD
CHARTER
ONE BANK, N.A.
CORPORATION
By:/s/▇▇▇▇▇
▇▇▇▇▇
By:_/s/▇▇▇▇▇
▇. ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
Print
Name
▇▇▇▇▇
▇▇▇▇▇
Print
Name
▇▇▇▇▇
▇. ▇▇▇▇▇▇-▇▇▇▇▇▇▇
Title President
Title_____Production
Manager