EXHIBIT 10.7
EXHIBIT 10.7
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
EXECUTION
5/15/02
NOTE: THIS AGREEMENT CONTAINS CONFIDENTIAL & PROPRIETARY INFORMATION AND MAY NOT
BE DISCLOSED WITHOUT THE CONSENT OF BOTH PARTIES OR AS REQUIRED BY LAW
GUARANTY AGREEMENT
BETWEEN
THE EDUCATION RESOURCES INSTITUTE, INC.
AND
CHARTER ONE BANK, N.A.
(CFS Loan Program)
This Guaranty Agreement (this "Agreement") is made as of this 15th day
of May, 2002, by and between The Education Resources Institute, Inc. ("▇▇▇▇"), a
private non-profit corporation organized under Chapter 180 of the Massachusetts
General Laws with its principal place of business at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and Charter One Bank, N.A. (the "Lender"), 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 ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇.
WHEREAS, ▇▇▇▇ is in the business of providing financial assistance in
the form of loan guaranties to and on behalf of students enrolled in programs of
higher education and their parents at ▇▇▇▇-approved schools; and
WHEREAS, the LENDER is willing to make Loans to eligible Borrowers
under the Program, and ▇▇▇▇ is willing to guaranty the payment of principal and
interest against the Borrowers' default or certain other events as more fully
described below, in accordance with the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, ▇▇▇▇ and the LENDER agree as follows:
Section 1: DEFINITIONS
As used in this Agreement the following terms shall have the following meanings:
1
1.1 "Agent" shall mean State Street Bank and Trust Company, its successors
and assigns, in its capacity as Agent under the Deposit and Security
Agreement between ▇▇▇▇ and the LENDER, of even date herewith.
1.2 "Borrower" shall mean the person, or all persons collectively,
including all students, cosigners, coborrowers, guarantors, endorsers,
and accommodation parties, who execute a Promissory Note individually
or, in the case of multiple Borrowers, severally and jointly, for the
purpose of obtaining funds from the LENDER under the Program.
1.3 "CFS" shall mean Collegiate Funding Services, LLC, a limited liability
company organized under the laws of Virginia and having a principal
place of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇.
1.4 "Due Diligence" shall mean the utilization by the LENDER of policies,
practices and procedures in the origination, servicing and collection
of Loans that comply with the standards set forth in the Program
Guidelines and that comply with the requirements of federal and state
law and regulation.
1.5 "Guaranty Event" shall mean any of the following events:
a. failure of the Borrower to make monthly principal and/or
interest payments on a Loan when due, provided such failure
persists for a period of one hundred fifty (150) consecutive
days,
b. the filing of a petition in bankruptcy with respect to the
Borrower, or
c. the death of the Borrower.
For Loans on which the Borrower is two or more persons, none of the
above, with the exception of paragraph b, is a Guaranty Event unless
one or more such events shall have occurred with respect to all such
persons. The foregoing notwithstanding, if a Borrower files a petition
in bankruptcy pursuant to Chapter 7 of the U.S. Bankruptcy Code and
does not seek a discharge of the affected Loan(s) under 11 U.S.C.
ss.523(a)(8)(B) of the U.S. Bankruptcy Code, the LENDER at TERI's
request will withdraw its guaranty claim unless or until one of the
other Guaranty Events shall have occurred with respect thereto.
1.6 "Loan" shall mean a loan of funds, including all disbursements thereof,
made by the LENDER under the Program.
1.7 "Note Purchase Agreement" means the agreement of that name between
LENDER and The First Marblehead Corporation ("FMC") dated as of May 15,
2002, as amended, for Program.
2
1.8 "Program" shall mean the CFS Direct to Consumer Loan Program, as more
fully described in the Program Guidelines.
1.9 "Program Guidelines" shall mean the CFS Direct to Consumer Program
Guidelines attached hereto as Exhibit A, and all changes thereto as
provided in Section 7 hereof. The Program Guidelines (a) consist of the
▇▇▇▇ Underwriting Guidelines, PHEAA Servicing Guidelines, and Program
Borrower Documents (consisting of the forms of Promissory Note and
Truth in Lending Disclosure) and (b) are hereby incorporated in this
Agreement by reference and made a part hereof.
1.10 "Promissory Note" shall mean a promissory note executed by a Borrower
evidencing a Loan, in the form attached hereto as part of the Program
Guidelines or as approved pursuant to Section 3.2 below.
1.11 "Securitization Transaction" shall mean and refer to a purchase of
Loans guaranteed hereunder by a special purpose entity formed by FMC,
which purchase is funded through the issuance of debt instruments or
other securities by such entity, the repayment of which is supported by
payments on the Loans.
Section 2: GUARANTEE OF LOANS
2.1 ▇▇▇▇ hereby guarantees to the LENDER, unconditionally except as set
forth in Section 2.2 below, the payment of 100% of the principal of and
accrued interest on every Loan as to which a Guaranty Event has
occurred. "Accrued interest" shall mean interest accrued and unpaid to
the date of payment in full by ▇▇▇▇, less any interest that shall have
accrued after the filing of a claim for guaranty payment submitted to
▇▇▇▇ by the LENDER but before ▇▇▇▇ shall have received all the
documentation necessary to process the guaranty claim as set forth in
the Program Guidelines. ▇▇▇▇ will use all reasonable efforts to make
payment on its guaranty within sixty (60) days, and will in any event
make payment within ninety (90) days, of receipt of a demand from the
LENDER stating the name of the Borrower and the type of Guaranty Event
that has occurred accompanied by the full claim documentation required
in the Program Guidelines.
2.2 TERI's guaranty is conditioned upon the following:
a. The LENDER must have filed its claim for guaranty payment
within the time period and following the procedures specified
in the Program Guidelines.
b. The LENDER and its predecessors in interest must at all times
have exercised Due Diligence with respect to the Loan (or
shall have cured any failure to exercise Due Diligence under
the reinstatement provisions in Section 2.4 hereof and the
Program Guidelines), and must have complied
3
with all other requirements of the Program Guidelines
applicable to the Loan.
c. The LENDER shall have paid to ▇▇▇▇ the Initial Guaranty Fee
(as defined in Section 3.3.a below) for the Loan in question,
and shall have paid to the Agent any Subsequent Guaranty Fee
(as defined in Section 3.3.b below) for the Loan in question
which is due and payable as provided in Section 3.3.b below.
d. ▇▇▇▇ must have received from the LENDER the original
Promissory Note, enforceable against the Borrower (except as
provided in this Section 2.2(d), below), endorsed to ▇▇▇▇ in
such manner as to transfer to ▇▇▇▇ all rights in and title to
such Promissory Note, free and clear of all liens and
encumbrances, and of all defenses, counterclaims, offsets, and
rights of rescission that might be raised by the Borrower.
Submission of a claim to ▇▇▇▇ shall constitute the LENDER's
certification that the conditions of 2.2.b. and 2.2.d. have
been met, and ▇▇▇▇ is entitled to rely on such certification.
Subsections 2.2.b. and 2.2.d above notwithstanding, if a Loan
submitted for guaranty was originated by ▇▇▇▇ on behalf of the
LENDER pursuant to a Loan Origination Agreement between the
parties, (i) ▇▇▇▇ will not deny the LENDER's guaranty claim on
such Loan if the sole basis for denial is a violation of the
Program Guidelines or a violation of Massachusetts or federal
law committed by ▇▇▇▇ in the origination process, and (ii)
▇▇▇▇ will have no recourse against the LENDER in the event
that TERI's actions or omissions in the origination process
shall have given rise to a defense in favor of the Borrower in
a suit on the Promissory Note.
2.3 TERI's guaranty obligation with respect to any Loan shall not be
terminated or otherwise affected or impaired (i) by the LENDER's
granting an extension to the Borrower of time to make scheduled
payments, or by any other indulgence the LENDER may grant to the
Borrower, provided that all extensions and other indulgences meet the
forbearance standards and other requirements of the Program Guidelines;
or, Section 2.2.d above notwithstanding, (ii) because of any fraud in
the execution of the Promissory Note, (iii) because of any illegal or
improper acts of the Borrower, (iv) because the Borrower may be
relieved of liability for such Loan due to lack of contractual capacity
or any other statutory exemption.
2.4 If ▇▇▇▇ properly denies the LENDER's claim on any Loan on the grounds
of Due Diligence deficiencies, the LENDER may thereafter require that
▇▇▇▇ reinstate the guaranty of such Loan if (a) the LENDER corrects
such deficiencies and receives four (4) consecutive full on-time
monthly payments from the Borrower, according to any schedule permitted
by the Program Guidelines, and if at the time
4
of the LENDER's request the Borrower is within thirty (30) days of
being current on all principal and interest payments on such Loan, or
(b) the LENDER satisfies any other method of cure set forth in the
Program Guidelines.
2.5 TERI's guaranty hereunder is a continuing and absolute guaranty of
payment and not merely of collection, covering Loans made in accordance
herewith either (i) prior to termination of this Agreement, or (ii)
based upon applications received by the LENDER prior to such
termination; and shall not affect TERI's obligations to the LENDER then
existing, whether direct or indirect, absolute or contingent, then due
or thereafter to become due.
2.6 ▇▇▇▇ agrees not to exercise any right of subrogation, reimbursement,
indemnity, contribution or the like against the Borrower of any Loan
unless and until all TERI's obligations under this Agreement with
respect to such Loan have been satisfied in full, except to the extent
that it is deemed a valid claimant as a contingent creditor, for
example, under Title 11 of the United States Code (the "Bankruptcy
Code"), or applicable state law.
2.7 ▇▇▇▇ will permit the LENDER, any duly designated representative of the
LENDER, or any governmental body having jurisdiction over the LENDER
(subject to written notice being provided to ▇▇▇▇ by the LENDER,
identifying the requesting party and the date of the review), to
examine and audit the books and records of ▇▇▇▇ pertaining to the
Loans, at any time during TERI's regular business hours, provided that
in the case of examinations by the LENDER or its representative absent
good cause (i) ▇▇▇▇ must be given ten (10) business days' prior written
notice and, (ii) no more than one such audit may be conducted with
respect to any twelve-month period or will take place in any
twelve-month period. In no event will any audit be performed during
July, August, September, or October in any year except at the request
of a regulatory authority having jurisdiction over the LENDER.
2.8 ▇▇▇▇ will indemnify the LENDER and hold it harmless from and against
any loss, cost, damage and expense that the LENDER may suffer as a
result of claims arising out of TERI's actions or omissions relative to
the LENDER's participation in the Program. "Expense" includes, without
limitation, the LENDER's reasonable attorney's fees. ▇▇▇▇ will further
indemnify the LENDER and hold it harmless from and against any claim
brought against the LENDER by any Borrower based on actions or
omissions of the LENDER that were mandated under the Program
Guidelines.
2.9 Although the LENDER agrees not to use any loan servicer not approved by
▇▇▇▇, the LENDER acknowledges that TERI's approval of a servicer is in
no way an endorsement of such servicer and that ▇▇▇▇ shall have no
liability to the LENDER for any losses arising from such servicer's
failure to comply with Due Diligence or the Program Guidelines or
applicable law, nor shall ▇▇▇▇ be
5
required to honor any claim submitted by such servicer if the claim
does not comply with the requirements of this Agreement.
Section 3: OBLIGATIONS OF THE LENDER
3.1 In originating, servicing, disbursing, and collecting Loans, the LENDER
will comply, and cause its servicer and others acting on its behalf to
comply, with all applicable requirements of federal and state laws and
regulations.
3.2 The LENDER will use Promissory Notes, Loan applications, disclosure
statements, and other forms mutually agreeable to the parties. The
forms of application and Promissory Note and disclosure statement
attached hereto as part of the Program Guidelines are agreed to be
satisfactory to both parties. Without limiting the generality of
Section 3.1, the LENDER warrants the conformity of such instruments and
any agreed successors thereto with all applicable legal requirements,
other than those of federal and Massachusetts law and regulation, and
▇▇▇▇ warrants their conformity with Massachusetts and federal law.
3.3 The LENDER will pay a guaranty fee for each Loan (the "Guaranty Fee")
as follows:
a. At the time of disbursement of the Loan, the LENDER will
promptly remit to ▇▇▇▇ [**] percent ([**]%) of the principal
amount of Loan disbursed (the "Initial Guaranty Fee").
b. At the time of disbursement of the Loan, such additional fees
as are set forth in the fifth column of Schedule 3.3
("Subsequent Guaranty Fee").
c. Failure to remit any Guaranty Fee within thirty (30) days of
the time set forth above will not be a breach of this
Agreement but will void TERI's guaranty of the Loan concerned.
d. Anything in the Program Guidelines to the contrary
notwithstanding, if the LENDER is required under the terms of
a Promissory Note to refund all or part of the Guaranty Fees
identified above to a Borrower, ▇▇▇▇ will refund all or part
of the Initial Guaranty Fee and the Agent will refund all or
part of any Subsequent Guaranty Fee it has received to the
LENDER upon being so advised in writing.
3.4 If ▇▇▇▇ shall have purchased a Loan due to the occurrence or alleged
occurrence of a Guaranty Event described in Section 1.4.a and/or 1.4.b
above, the LENDER will promptly repurchase such Loan from ▇▇▇▇, (i) if
▇▇▇▇ succeeds, after purchase, in obtaining from the Borrower three
full consecutive on-time monthly payments, according to any schedule
permitted by the Program Guidelines, provided that on the date of
TERI's notice to repurchase, the Borrower is within thirty (30) days of
being current on his or her payments on such Loan; provided
6
that this repurchase obligation may be invoked by ▇▇▇▇ only once as to
any Loan; or (ii) subject to Section 2.3 above, if ▇▇▇▇ should
determine that the Loan does not meet the conditions set forth in
subsection (b), (c) and (d) of Section 2.2 above.
3.5 To the extent permitted by applicable law, the LENDER will deliver to
▇▇▇▇ such reports, documents, and other information concerning the
Loans as ▇▇▇▇ may reasonably require, and permit independent auditors
or authorized representatives of ▇▇▇▇, and governmental agencies, if
any, having regulatory authority over ▇▇▇▇, to have access to the
operational and financial records and procedures directly applicable to
Loans and to the LENDER's participation in the Program.
3.6 If the LENDER should violate any term of this Agreement, it will be
liable to ▇▇▇▇ for all loss, cost, damage, and expense sustained by
▇▇▇▇ as a result. The LENDER will indemnify ▇▇▇▇ and hold it harmless
from and against all loss, cost, damage, and expense that ▇▇▇▇ may
suffer as a result of claims arising out of the LENDER's actions or
omissions relative to the LENDER's participation in the Program unless
such actions or omissions are specifically required by this Agreement.
The LENDER will similarly indemnify ▇▇▇▇ with respect to any defenses
arising from the LENDER's violation of or failure to comply with any
law, regulation, or order, or any term of this Agreement, that may be
raised by a Borrower to any suit upon a Promissory Note. "Expense"
includes, without limitation, TERI's reasonable attorney's fees.
Section 4: REPRESENTATIONS AND WARRANTIES
4.1 Each party represents and warrants to the other that its execution,
delivery and performance of this Agreement are within its power and
authority, have been authorized by proper proceedings, and do not and
will not contravene any provision of law or such party's organization
documents or by-laws or contravene any provision of, or constitute an
event of default or an event which, with the lapse of time or with the
giving of notice or both, would constitute an event of default, under
any other agreement, instrument or undertaking by which such party is
bound. Each party represents and warrants that it has and will maintain
in full force and effect all licenses required under applicable state,
federal, local or other law for the conduct of all activities
contemplated by this Agreement and comply with all requirements of such
applicable law relative to its licenses and the conduct of all
activities contemplated by this Agreement. This Agreement and all of
its terms and provisions are and shall remain the legal and binding
obligation of the parties, enforceable in accordance with its terms
subject to bankruptcy and insolvency laws. The warranties given herein
shall survive any termination of this Agreement.
4.2 The parties acknowledge that ▇▇▇▇ is not an insurer or reinsurer and
the LENDER expressly waives all claims it might otherwise have under
applicable law were ▇▇▇▇ to be held by any court or regulatory agency
to be acting as an
7
insurer or reinsurer hereunder. The only obligations of ▇▇▇▇ to the
LENDER shall be those expressly set forth herein.
Section 5: MISCELLANEOUS
5.1 Neither party is or will hold itself out to be the agent, partner, or
joint venturer of the other party with regard to any transaction under
or pursuant to this Agreement.
5.2 Each party's respective rights, remedies, powers, privileges, and
discretions ("Rights and Remedies") shall be cumulative and not
exclusive. No delay or omission by either party in exercising or
enforcing any of its Rights and Remedies shall operate as to constitute
a waiver of them. No waiver by a party of any default under this
Agreement shall operate as a waiver of any subsequent or other default
under this Agreement. No single or partial exercise by a party of any
of its Rights and Remedies shall preclude the other or further exercise
of such Rights and Remedies. No waiver or modification by a party of
the Rights and Remedies on any one occasion shall be deemed a
continuing waiver. A party may exercise its various Rights and Remedies
at such time or times and in such order of preference as it in its sole
discretion may determine. In no event will either party be liable to
the other for special, incidental, or consequential damages, including
but not limited to lost profits, even if advised in advance of the
possibility of the same, or for punitive or exemplary damages, provided
that such exclusions shall not apply to the indemnification against an
award of such damages pursuant to a third party claim.
5.3 This Agreement represents the entire understanding of the parties with
respect to the subject matter hereof. This Agreement, together with any
contemporaneous contract concerning credit analysis or other loan
origination functions, supersedes all prior communications whatsoever
between the parties relative in any way to Loans or the LENDER's
participation in the Program. This Agreement may be modified only by
written agreement of the parties hereto, except as may otherwise be set
forth herein.
5.4 Any determination that any provision of this Agreement is invalid,
illegal, or unenforceable in any respect shall not affect the validity,
legality, or enforceability of such provision in any other instance and
shall not affect the validity, legality, or enforceability of any other
provision of this Agreement.
5.5 Each of the parties will timely implement, if it has not already, and
will maintain, a reasonable disaster recovery plan. Subject to the
foregoing, no party hereto shall be responsible for, or in breach of
this Agreement if it is unable to perform as a result of delays or
failures due to any cause beyond its control, howsoever arising, and
not due to its own act or negligence and that cannot be overcome by the
exercise of due diligence. Such causes shall include, but not be
limited to, labor disturbances, riots, fires, earthquakes, floods,
storms, lightning, epidemics, wars, civil disorder, hostilities,
expropriation or confiscation of property, failure
8
or delay by carriers, interference by civil and military authorities
whether by legal proceeding or in fact and whether purporting to act
under some constitution, decree, law or otherwise, acts of God and
perils of the sea.
5.6 This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts, without regard to the
conflict of laws provisions thereof.
5.7 This Agreement will be binding on the parties' respective successors
and assigns. It may not be assigned by either party without the other's
written consent, which will not be unreasonably withheld, provided
that: (a) the LENDER may assign any Loan, together with the provisions
hereof as applicable to such Loan, to FMC or any SPE; and (b) ▇▇▇▇ has
sub-contracted and hereafter may continue to subcontract any
administrative obligations necessary or convenient to ▇▇▇▇ to perform
its obligations hereunder to FMC or any subsidiary or affiliate of FMC.
5.8 Notice for any purpose hereunder may be given by any means requiring
receipt signature, or by facsimile transmission confirmed by first
class mail. In the case of ▇▇▇▇, notices should be sent to its
President, and if by fax, to (▇▇▇) ▇▇▇-▇▇▇▇. In the case of the LENDER,
notices should be sent to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Charter One Bank, N.A.,
Student Lending Department, ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Either
party may from time to time change the person, address or fax number
for notice purposes by formal notice to the other party.
Section 6: CHANGES TO PROGRAM GUIDELINES
The parties agree that the Program Guidelines will need to be updated and
modified to respond to changed conditions from time to time. The parties intend
to make such modifications in a manner that does not interfere with the ordinary
advertising and origination cycle for education loans. Amendments necessary to
meet state or federal regulatory requirements may be made at any time. With
respect to all other changes, the parties shall exchange requests for
modification of the Program Guidelines, including without limitation any
requested changes to the provisions of the Program Guidelines concerning the
Guaranty Fees, in the first part of the first calendar quarter of each year.
Each party shall respond in writing to proposals from the other within 30 days,
in writing, and both parties will attempt to resolve any differences within 30
days after receiving a response to a request. All modifications must be mutually
acceptable. Any modifications approved by the parties and not requiring system
adjustments by the LENDER's loan servicer shall take effect within thirty (30)
days after approval. Modifications requiring system adjustments by the LENDER's
loan servicer shall take effect as soon after approval as such servicer shall be
able to adjust its systems to accept loans made on the modified terms. The
parties shall use their best efforts to conclude all negotiations of proposed
changes prior to May 1 of each year. The foregoing process shall not apply to
modification of the Servicing Guidelines, which are subject to a modification
process contained therein.
9
Section 7: TERM AND TERMINATION
7.1 The initial term of this Agreement shall commence on May 15, 2002, and
shall continue until May 1, 2003. Thereafter, this Agreement shall
automatically renew for successive one-year terms unless either party
provides written notice of non-renewal and termination not less that
ninety (90) days prior to the end of the then-current term.
7.2 In the event that the parties are unable to agree on a proposed
modification to the Program Guidelines as provided in Section 7, above,
the party proposing the modification shall have the option of
terminating this Agreement by providing written notice of termination
to the other party. Such termination will be effective on the following
May 1.
7.3 To the extent permitted by applicable law, if either party should
become subject to bankruptcy, receivership, or other proceedings
affecting the rights of its creditors generally, this Agreement will be
deemed terminated thereupon immediately without the need of notice from
the other party, and the party becoming subject to such proceedings
will promptly notify the other party thereof.
7.4 Termination shall be prospective only and shall not affect the
obligations of the parties hereto which were incurred prior to such
termination or any of the warranties and indemnities contained herein
or the provisions of Section 8 below (regarding confidentiality). Not
less than thirty (30) days prior to the effective date of termination,
▇▇▇▇ may by additional notice to the Lender terminate its obligation to
assume the guaranty of all or any subset of otherwise qualifying Loans
as to which a commitment to lend is made after the Lender's receipt of
such additional notice. In the absence of such additional notice ▇▇▇▇
will, subject to the terms and conditions of this Agreement, assume the
guaranty of all Loans as to which a commitment to lend is made prior to
the effective date of termination. In the event this Agreement
terminates or expires and only one disbursement of a multi-disbursement
loan has been made prior to that date, the other disbursement will also
be guaranteed pursuant to the terms of this Agreement.
Section 8: CONFIDENTIALITY; RESTRICTIONS ON USE OF INFORMATION
8.1 ▇▇▇▇ and the LENDER each acknowledge that in the course of the
operations contemplated by this Agreement, and in the course of
communications relative to this Agreement, it has received and will
receive information concerning the other's finances, business plans,
business methods, and the like that is not generally known in the
student loan industry ("Confidential Information"). Each party will
respect and use all reasonable efforts to maintain the confidentiality
of the other's Confidential Information unless and until such
information becomes generally known through no fault of the receiving
party. Without limiting the foregoing, ▇▇▇▇ may disclose any of
LENDER's Confidential Information to any
10
entity to which ▇▇▇▇ subcontracts its obligations under this Agreement
pursuant to Section 5.7(b) hereof.
8.2 In accordance with the provisions of Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇
Act (the "GLB Act") and Federal Reserve Board Regulation P ("Regulation
P"), ▇▇▇▇ agrees to respect and protect the security and
confidentiality of any "nonpublic personal information" (as defined in
the GLB Act and Regulation P) relating to applicants for Loans and to
Borrowers, including, where applicable, the restrictions on the re-use
and disclosure of such information set forth in the GLB Act and
Regulation P.
8.3 Without limiting the foregoing, ▇▇▇▇ may retain as its own property and
use for any lawful purpose any or all aggregated or de-identified data
concerning Loan applicants and Borrowers, which does not include the
name, address or social security number of the Loan applicants or
Borrowers. ▇▇▇▇ may sell, assign, transfer or disclose such information
to third parties including, without limitation, FMC, who may also use
such information for any lawful purpose.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
11
IN WITNESS WHEREOF, ▇▇▇▇ and the LENDER have caused this instrument to
be executed by their duly authorized officers under seal as of the day and year
indicated above.
THE EDUCATION RESOURCES CHARTER ONE BANK, N.A.
INSTITUTE, INC.
By: /▇▇▇ ▇. ▇▇▇▇▇/ By: /▇▇▇▇▇ ▇. ▇▇▇▇▇▇/
Print Name: ▇▇▇ ▇. ▇▇▇▇▇ Print Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Acting President Title: Production Manager
12
TABLE OF EXHIBITS
Exhibit A - Program Guidelines for CFS Direct to Consumer Loan Program
Schedule 3.3 - Guaranty Fee Amounts
13
EXHIBIT A
PROGRAM GUIDELINES FOR CFS DIRECT TO CONSUMER LOAN PROGRAM
[**]
14
SCHEDULE 3.3
GUARANTY FEE AMOUNTS
[**]
15
AMENDMENT TO GUARANTY AND LOAN ORIGINATION AGREEMENTS
This Amendment to Guaranty and Loan Origination Agreements (this "Amendment") is
made and entered into as of May 15, 2002, by and among THE EDUCATION RESOURCES
INSTITUTE, INC., a private non-profit corporation organized under Chapter 180 of
the Massachusetts General Laws with its principal place of business at ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇"), and CHARTER ONE
BANK, N.A., a national bank with its principal place of business at ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and a student loan department located at
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Lender").
WITNESSETH
WHEREAS ▇▇▇▇ and Lender entered into Guaranty Agreements and Loan
Origination Agreements for the CFS Direct to Consumer Loan Program (dated May
15, 2002); AMS TuitionPay Diploma Loan Program (dated May 15, 2002); Education
Assistance Services Alternative Loan Program (dated May 15, 2002); NextStudent
Alternative Loan Program (dated May 15, 2002); GMAC Alternative Loan Program
(dated July 15, 2002); and CLC Alternative Loan Program (dated July 1, 2002)
(collectively, the "Guaranty Agreements" and the "Loan Origination Agreements");
and
WHEREAS the parties hereto desire to amend the Guaranty Agreements and
the Loan Origination Agreements as set forth herein;
NOW THEREFORE in consideration of the premises and for other good and
valuable consideration, the parties agree as follows:
I. Guaranty Agreement Amendments. ▇▇▇▇ and Lender hereby agree to amend each of
the Guaranty Agreements as set forth below. Each amended section of the Guaranty
Agreements is set forth below in its entirety, with deletions to each section
marked with a strikethrough and additions to each section underlined twice:
A. Section 1.1 of each of the Guaranty Agreements is revised
as follows:
"1.1 "Agent" shall mean State Street Bank and Trust Company, its
successors and assigns, in its capacity as Agent under the Deposit and
Security Agreement among ▇▇▇▇, the LENDER, the Agent, and the First
Marblehead Corporation ("FMC") of even date herewith (the "Deposit and
Security Agreement")."
B. Section 1.10 of each of the Guaranty Agreements is revised
as follows:
"1.10 "Securitization Transaction" shall mean and refer to (a) a
purchase of Loans guaranteed hereunder by a special purpose entity ("SPE")
formed by FMC, which
16
purchase is funded through the issuance of debt instruments or other securities
by such entity, the repayment of which is supported by payments on the Loans or
(b) any other transaction whereby a Loan is transferred from the LENDER to FMC
or one of its affiliates."
C. The second paragraph of Section 2.2.d of each of the Guaranty
Agreements is revised as follows:
"Subsections 2.2.b. and 2.2.d. above notwithstanding, if a Loan
submitted for guaranty was originated by ▇▇▇▇ on behalf of the LENDER pursuant
to a Loan Origination Agreement between the parties, (i) ▇▇▇▇ will not deny the
LENDER's guaranty claim on such Loan if the sole basis for denial is a violation
of the Program Guidelines or a violation of Massachusetts or federal law
committed by ▇▇▇▇ in the origination process, and (ii) ▇▇▇▇ will have no
recourse against the LENDER in the event that TERI's actions or omissions in the
origination process shall have given rise to a successful defense in favor of
the Borrower in a suit on the Promissory Note."
D. Section 2.4 of each of the Guaranty Agreements is revised as
follows:
▇▇▇▇ may deny the LENDER's Guaranty Claim on any Loan on the grounds of
Due Diligence deficiencies. If ▇▇▇▇ properly denies the LENDER's claim on any
Loan on the grounds of Due Diligence deficiencies, the LENDER may thereafter
require that ▇▇▇▇ reinstate the guaranty of such Loan if (a) the LENDER corrects
such deficiencies and receives four (4) consecutive full on-time monthly
payments from the Borrower, according to any schedule permitted by the Program
Guidelines, and if at the time of the LENDER's request the Borrower is within
thirty (30) days of being current on all principal and interest payments on such
Loan, or (b) the LENDER satisfies any other method of cure set forth in the
Program Guidelines.
E. Section 2.8 of each of the Guaranty Agreements is revised as
follows:
"2.8 ▇▇▇▇ will indemnify the LENDER and hold it harmless from and
against any loss, cost, damage or expense that the LENDER may suffer as a result
of claims to the extent they arise out of TERI's actions or omissions relative
to the LENDER's participation in the Program and do not arise out of the
LENDER's actions or omissions. "Expense" includes, without limitation, the
LENDER's reasonable attorney's fees. ▇▇▇▇ will further indemnify the LENDER and
hold it harmless from and against any claim brought against the LENDER by any
Borrower based on actions or omissions of the LENDER that were mandated under
the Program Guidelines."
F. Section 3.1 of each of the Guaranty Agreements is revised as
follows:
"3.1 In originating, servicing, disbursing, and collecting Loans, the
LENDER will comply, and cause its servicer and others acting on its
behalf to comply, at all
17
times with all Program Guidelines (including Due Diligence
requirements) and all applicable requirements of federal and state laws
and regulations."
G. Section 3.2 of each of the Guaranty Agreements is revised as
follows:
"3.2 The LENDER will use Promissory Notes, Loan applications,
disclosure statements, and other forms mutually agreeable to the parties. The
forms of Promissory Notes, Loan applications and disclosure statement attached
hereto as part of the Program Guidelines are agreed to be satisfactory to both
parties. Without limiting the generality of Sections 3.1 and 4.1, the LENDER
warrants the conformity of such instruments and any agreed successors thereto
with all applicable legal requirements, other than those of federal and
Massachusetts laws and regulations, and ▇▇▇▇ warrants their conformity with
Massachusetts and federal law laws. In addition, upon TERI's request, the LENDER
will submit to ▇▇▇▇ sample copies of promotional and marketing materials used in
connection with the Program. No such delivery of materials shall constitute or
be construed as a representation or warranty by ▇▇▇▇ that such materials comply
with applicable law or with the LENDER's obligations under this Agreement, and
no such delivery shall excuse the LENDER's performance of any of its obligations
under this Agreement."
H. Section 3.3.b of each of the Guaranty Agreements, except for the
Guaranty Agreement dated May 15, 2002, for the CFS Direct-to-Consumer Loan
Program, is revised as follows:
"b. At such times as are set forth in Schedule 3.3 attached hereto and
incorporated herein by reference, such additional fees as are set forth in the
fifth and sixth columns of Schedule 3.3 ("Subsequent Guaranty Fee"). If the
terms of Schedule 3.3 call for any Guaranty Fees to be paid to ▇▇▇▇ or to the
Agent concurrent with the Securitization Transaction, LENDER shall pay the fees
directly (and be reimbursed in the Securitization Transaction to the extent
provided in the Note Purchase Agreement), or (ii) for the purchaser to pay the
fees directly. In the event that a Guaranty claim is made with respect to a Loan
before a Subsequent Guaranty Fee is scheduled to be paid by the LENDER for such
Loan, the Subsequent Guaranty Fee shall become immediately due and payable. In
the event that a loan is prepaid in full prior to the date that a Subsequent
Guaranty Fee is scheduled to be paid by the LENDER for such Loan, the Subsequent
Guaranty Fee shall nevertheless become due and payable at the time that would
have applied if such prepayment had not occurred. For example, if a Subsequent
Guaranty Fee is due at the time of a Securitization Transaction and a Loan is
prepaid before it is eligible for Securitization, then the Subsequent Guaranty
Fee with respect to such Loan shall become due at the first Securitization
Transaction when such Loan would have been eligible for inclusion, had
prepayment not occurred. In the event that FMC fails to purchase any loan under
the Note Purchase Agreement, and the LENDER sells such loan to a third party,
the Guaranty Fees due with respect to such loan at the time of a Securitization
Transaction will instead be paid by the LENDER at the time the loan is sold to
the third party."
18
I. Section 3.3.c of each of the Guaranty Agreements is revised as
follows:
"c. Failure to remit any Guaranty Fee within thirty (30) days of the
time set forth above will not affect the validity of the guaranty for any Loan
for which the Guaranty Fee has already been paid in full, but, as a result, ▇▇▇▇
will have the right, at its discretion to (i) void its obligation to guarantee
or collect the Loan to which such Guaranty Fee relates or (ii) collect the
amount of any such Guaranty Fee and to add interest at the rate of eighteen
percent (18%) per annum from the disbursement date of the Loan to which such
Guaranty Fee relates, plus any costs (including attorneys' fees and expenses)
incurred by ▇▇▇▇ in collecting or attempting to collect such Guaranty Fee from
the LENDER."
J. Section 3.4 of each of the Guaranty Agreements is revised as
follows:
"3.4 If ▇▇▇▇ shall have purchased a Loan pursuant to Section 2.1 above,
the LENDER will promptly repurchase such Loan upon request from ▇▇▇▇ if (i) ▇▇▇▇
succeeds, after purchasing, in obtaining from the Borrower three full
consecutive on-time monthly payments, according to any schedule permitted by the
Program Guidelines, provided that on the date of TERI's notice to repurchase,
the Borrower is within thirty (30) days of being current on his or her payments
on such Loan, and provided further that this repurchase obligation may be
invoked by ▇▇▇▇ only once as to any Loan (in which case, the Loan shall be
considered "rehabilitated"); or (ii) , if ▇▇▇▇ should determine that the Loan
does not meet the conditions set forth in subsections b., c. and d. of Section
2.2 above. With respect to the repurchase of any Guaranteed Loan pursuant to
this Section 3.4, the repurchase price shall be equal to (1) the remaining
unpaid principal balance of such Loan, plus (2) any accrued and unpaid interest
thereon."
K. (1) Section 3.5 of each of the Guaranty Agreements is revised as
follows:
"3.5 To the extent permitted by applicable law, the LENDER will (i)
deliver to ▇▇▇▇ such reports, documents, and other information concerning the
Loans as ▇▇▇▇ may reasonably require, and (ii) permit independent auditors,
authorized representatives of ▇▇▇▇ and governmental agencies, if any, having
regulatory authority over ▇▇▇▇, to have access to the operational and financial
records and procedures directly applicable to Loans and to the LENDER's
participation in the Program. LENDER will cause its loan servicer to deliver to
▇▇▇▇ such reports, documents, and other detailed information concerning each
Loan as ▇▇▇▇ may reasonably require. LENDER shall provide a monthly report
containing the information set forth on Exhibit B hereto at LENDER's actual
cost, if any. Any other reporting or information shall be provided upon TERI's
agreement to reimburse LENDER for its incremental cost of such report."
19
(2) Exhibit B is added to each of the Guaranty Agreements in the form
of Exhibit B attached hereto.
L. Section 3.6 of each of the Guaranty Agreements is revised as
follows:
"3.6 If the LENDER should violate any term of this Agreement, it will
be liable to ▇▇▇▇ for all loss, cost, damage or expense sustained by ▇▇▇▇ as a
result. The LENDER will indemnify ▇▇▇▇ and hold it harmless from and against all
loss, cost, damage or expense that ▇▇▇▇ may suffer as a result of claims to the
extent they arise out of the LENDER's actions or omissions relative to the
LENDER's participation in the Program unless such actions or omissions are
specifically required by this Agreement, and do not arise out of TERI's actions
or omissions. The LENDER will similarly indemnify ▇▇▇▇ with respect to any
defenses arising from the LENDER's violation of or failure to comply with any
law, regulation or order, or any term of this Agreement, that may be raised by a
Borrower to any suit upon a Promissory Note. "Expense" includes, without
limitation, TERI's reasonable attorney's fees."
M. Section 5.7 of each of the Guaranty Agreements is revised as
follows:
"5.7 This Agreement will be binding on the parties' respective
successors and assigns. Except as otherwise set forth in this Section 5.7, this
Agreement may not be assigned by either party without the other's written
consent.
a. The LENDER may, without TERI's consent, assign any Loan, together
with the provisions hereof as applicable to such Loan, to another
entity participating in the Program, or to an SPE formed by the
LENDER, in each case upon written notice to ▇▇▇▇.
b. ▇▇▇▇ specifically acknowledges that FMC or an SPE sponsored by FMC
is expected to purchase some or all of the Loans, and this Agreement
shall inure to the benefit of FMC or any such SPE upon such
purchase. No notice of such purchase or consent to the assignment of
the LENDER's rights under this Agreement in connection with a
purchase of some or all of the Loans by FMC or any SPE sponsored by
FMC shall be necessary.
c. In assigning any Loan and its rights under this Agreement relating
to such Loan in accordance with Section 5.7(a), (i) the LENDER's
written notice to ▇▇▇▇ must be made within thirty (30) days after
said assignment and must identify each Loan to which such assignment
relates, and (ii) ▇▇▇▇ will fully cooperate with any Securitization
Transaction or other sale of a portfolio of Loans, provided it is
given thirty (30) days advance written notice of the date that
information or documents are required of it and provided that its
reasonable legal fees and other expenses incurred in connection with
such transaction are reimbursed by the seller of such Loans.
20
d. Except for any assignment hereunder to FMC or any SPE sponsored by
FMC in connection with a purchase of Loans as described in
subsection b., above, no assignment of Loans or the LENDER's rights
hereunder without TERI's express written consent shall release the
LENDER from any liability to ▇▇▇▇ under this Agreement arising out
of the LENDER's ownership of such Loans (whether arising prior to,
as a result of or after the sale of such Loans by the LENDER)
including, without limitation, the LENDER's obligation to pay any
unpaid Guaranty Fees and to repurchase Loans pursuant to Section
3.4.
e. The Lender acknowledges that ▇▇▇▇ has outsourced or subcontracted
some or all of its administrative functions, including but not
limited to the processing of guarantee claims, to First Marblehead
Education Resources, Inc. In addition, the Lender acknowledges that
▇▇▇▇ has subcontracted and may hereafter subcontract any
administrative obligations necessary or convenient to ▇▇▇▇ to
perform its obligations hereunder, and that such subcontracts do not
and shall not require the consent of the LENDER. Such outsourcing or
subcontracting shall not relieve ▇▇▇▇ of its obligations under this
Agreement."
N. Section 6 of the Guaranty Agreements is revised as follows:
"The parties agree that the Program Guidelines will need to be updated
and modified from time to time to respond to changed conditions. The parties
intend to make such modifications in a manner that does not interfere with the
ordinary advertising and origination cycle for education loans. Amendments
necessary to meet state or federal regulatory requirements may be made at any
time. With respect to all other changes, the parties shall exchange requests for
modification of the Program Guidelines, including without limitation any
requested changes to the provisions of the Program Guidelines concerning the
Guaranty Fees, in the first part of the first calendar quarter of each year.
Each party shall respond in writing to proposals from the other within thirty
(30) days, and both parties will attempt to resolve any differences within
thirty (30) days after receiving a response to a request. All modifications must
be mutually acceptable. Any modifications approved by the parties and not
requiring system adjustments by the LENDER's loan servicer shall take effect
within thirty (30) days after approval. Modifications requiring system
adjustments by the LENDER's loan servicer shall take effect as soon after
approval as such servicer shall be able to adjust its systems to accept loans
made on the modified terms, and the LENDER agrees to take such actions as are
reasonably necessary to ensure that such servicer adjusts its systems as
promptly as practicable. The parties shall use their best efforts to conclude
all negotiations of proposed changes prior to May 1 of each year. The foregoing
process shall not apply to modification of the Servicing Guidelines, which are
subject to the modification process contained therein."
O. Section 7.2 of each of the Guaranty Agreements is revised as
follows:
"7.2 In the event that the parties are unable to agree on a proposed
modification to the Program Guidelines as provided in Section 6.1, above, the
party proposing the
21
modification shall have the option of terminating this Agreement effective
immediately upon written notice of termination to the other party, provided that
the party desiring to exercise this option to terminate does so within thirty
(30) days of the end of the thirty (30) day period provided in Section 6.1 for
the resolution of any differences."
II. Loan Origination Agreement Amendments. ▇▇▇▇ and Lender hereby agree to amend
each of the Loan Origination Agreements as set forth below. Each amended section
of the Loan Origination Agreements is set forth below in its entirety, with
deletions to each section marked with a strikethrough and additions to each
section underlined twice:
A. The last paragraph of Section 4 of each of the Loan Origination
Agreements is revised to read:
"All billed fees will be paid within thirty (30) days of the Lender's
receipt of TERI's invoice, except fees subject to good faith dispute. Any
nondisputed amounts unpaid after sixty (60) days will be subject to a late fee
of 1.5% per month until paid in full. TERI's invoice will state the number of
applications received, approved, and processed during the month covered by the
invoice."
B. Section 11.b of each of the Loan Origination Agreements is revised
to read:
"b. If either party is in breach hereof, the other may terminate this
Agreement upon written notice, unless the breach is cured within (i) ten (10)
business days after written notice in the case of failure to pay monies due, and
(ii) thirty days in the case of all other breaches. If the breach is governed by
Section 10 above ("Force Majeure"), the 30-day cure period will be extended
day-for-day by the number of days, not to exceed 60, that the party is prevented
from performing by circumstances beyond its reasonable control."
C. Section 11.d of each of the Loan Origination Agreements is revised
to read:
"d. Upon termination of this Agreement, all books and records in TERI's
possession relating to Loan origination and history under this Agreement will
promptly be turned over to the Lender, provided that ▇▇▇▇ may keep copies as it
deems advisable for archival purpose or as required by applicable law. The
foregoing provision shall not affect TERI's right to retain and use loan data in
its capacity as guarantor under the Guaranty Agreement."
III. Effectiveness. For each Guaranty Agreement and Loan Origination Agreement
listed in the first recital above, this Amendment shall take effect as of the
date of the original Agreements, as listed in the first recital above. Except as
22
expressly amended herein, each of the Guaranty Agreements and Loan Origination
Agreements remains in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their respective officers, being first duly authorized, as of the day and
year first above written.
THE EDUCATION RESOURCES INSTITUTE, INC.
By: /▇▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇/
CHARTER ONE BANK, N.A.
By: /▇▇▇▇▇ ▇. ▇▇▇▇▇▇/
23
EXHIBIT B
SERVICER DATA REQUIREMENTS
[**]
24
AMENDMENT
to
PROGRAM AGREEMENTS
Charter One Bank, N.A.
(CFS Alternative Loan Program)
This Amendment is entered into as of the 1st day of May, 2003 by and among
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 ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ (the "Lender"), The First Marblehead Corporation, a Delaware corporation
having a principal place of business at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ("FMC"), and The Education Resources Institute, Inc., a private
non-profit corporation organized under Chapter 180 of the Massachusetts General
Laws with its principal place of business at ▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇") with regard to the Guaranty Agreement
between Lender and ▇▇▇▇ dated May 15, 2002 (the " Guaranty Agreement"), the Loan
Origination Agreement between the same parties dated May 15, 2002 (the "Loan
Origination Agreement") and the Note Purchase Agreement between Lender and FMC
dated May 15, 2002. Capitalized terms used herein without definition have the
meaning set forth in the Guaranty Agreement.
WHEREAS the parties entered into a Deposit and Security Agreement, Guaranty
Agreement, Loan Origination Agreement, Note Purchase Agreement, and Marketing
Agreement, all as heretofore amended, and including all Exhibits and Schedules
thereto, on May 15, 2002 (collectively, the "Program Agreements"); and
WHEREAS, pursuant to the terms of the Guaranty Agreement, ▇▇▇▇ provides
guaranties of education loans made by the Lender; and
WHEREAS, ▇▇▇▇ and Lender desire to adopt new program terms and to improve the
customer service and pricing that they offer to borrowers; and
WHEREAS, such improvements include offering risk-based pricing to borrowers;
WHEREAS, as a loan guarantor, ▇▇▇▇ has established a program of risk-based
pricing based on tiered guaranty fees and/or tiered interest rates ("Risk-Based
Pricing"), which pricing is set forth on Exhibit A, that it believes correspond
with the actual risk of lending to borrowers with lesser creditworthiness;
WHEREAS, Lender desires to make use of the ▇▇▇▇ Risk-Based Pricing system in
order to increase overall approval rates and increase its business; and
25
WHEREAS, Lender is free to set its prices to consumers at any level it desires,
free from constraint by ▇▇▇▇, so long as Lender pays ▇▇▇▇ the guaranty fees
required under the Guaranty Agreement and the Program Guidelines incorporated
therein; and
WHEREAS, in an effort to offer a more diverse education loan program, the
parties wish to amend and expand the Program to include loans disbursed through
school channels.
NOW, THEREFORE, in consideration of the mutual promises contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties, it is hereby agreed as follows:
1. Pricing. ▇▇▇▇ and the Lender hereby amend and restate Schedule 3.3 to the
Guaranty Agreement by adopting the Schedule 3.3 attached hereto. ▇▇▇▇ bases Risk
Based Pricing upon the projected net cost of defaults, which ▇▇▇▇ believes
provides business justification for the pricing levels set forth in the
risk-based pricing it has offered to Lender. Any representation or warranty of
compliance with federal or state law made by ▇▇▇▇ in the Guaranty Agreement or
the Loan Origination Agreement that may relate to Risk Based Pricing does not
extend beyond the pricing actually included in the Program Guidelines and in
Schedule 3.3 attached hereto.
2. Program Guidelines. ▇▇▇▇ and the Lender hereby amend and restate the Program
Guidelines by adopting the Program Guidelines attached hereto as Exhibit A.
Promissory notes and the Truth-in-Lending Disclosure for program year 2003-04
for the CFS Alternative Loan Program shall be agreed to by the parties in
separate writings (which may take the form of e-mail correspondence).
3. Purchase Price. The Lender and FMC hereby amend and restate Section 2.04 of
the Note Purchase Agreement to read in its entirety as set forth on Exhibit B
attached hereto.
4. Definitions in the Note Purchase Agreement. In the Note Purchase Agreement,
(a) The Lender and FMC hereby amend and restate the definition of
"Seasoned Loan" to read in its entirety as set forth on Exhibit C attached
hereto.
(b) The following definitions are added to Section I:
(i) "School Channel" loans are those CFS Conforming Loans for
which school certification is obtained, as set forth in the Program Guidelines.
"School Channel" loans are identified in Schedule 3.3 of the Guaranty Agreement
under the heading "Charter One School Channel Collegiate Funding Services
Referral Loan Products."
(ii) "Direct to Consumer" loans are those CFS Conforming Loans
for which proof of enrollment, but no school certification, is obtained, as set
forth in the Program Guidelines. "Direct to Consumer" loans are identified in
Schedule 3.3 of the Guaranty Agreement under the heading "Charter One Direct to
Consumer Collegiate Funding Services Referral Loan Products."
26
5. Program Name. In each of the Program Agreements, the "CFS Direct to Consumer
Loan Program" is hereby renamed the "CFS Alternative Loan Program".
6. Transition. This Amendment shall be effective for each Program loan for which
applications are received on or after a date set by ▇▇▇▇ by notice delivered to
Lender as soon as reasonably possible.
6. Full Force and Effect. As amended herein, the Guaranty Agreement, Loan
Origination Agreement, and Note Purchase Agreement remain in full force and
effect.
IN WITNESS WHEREOF, the parties hereto by their duly authorized
representatives have executed this Amendment as of the date first written above.
THE EDUCATION RESOURCES CHARTER ONE BANK, N.A.
INSTITUTE, INC.
By: /▇▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇/ By: /▇▇▇▇▇ ▇. ▇▇▇▇▇▇/
Name: Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Title: Production Manager
THE FIRST MARBLEHEAD CORPORATION
By: /▇▇▇▇▇ ▇▇▇▇▇/
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: President
27
SCHEDULE 3.3 TO GUARANTY AGREEMENT BETWEEN ▇▇▇▇ AND CHARTER ONE BANK
[**]
28
EXHIBIT A
CFS ALTERNATIVE LOAN PROGRAM
PROGRAM GUIDELINES
UPDATED:
APRIL 3, 2002
REV 1.0
[GRAPHIC OMITTED]
[GRAPHIC OMITTED]
29
Table of Contents
Program Overview
1. Schedule 3.3
2. ▇▇▇▇ Underwriting Guidelines
3. PHEAA Servicing Guidelines
4. Program Borrower Documents
A. Promissory Notes
B. Truth in Lending Disclosure
[**]
30
EXHIBIT B
2.04 Minimum Purchase Price
[**]
31
EXHIBIT C
[**]
32
EXHIBIT D
Amendment to Referral Marketing Agreement
[**]
33
AMENDMENT TO GUARANTY AND LOAN ORIGINATION AGREEMENTS
This Amendment to Guaranty and Loan Origination Agreements (this "Amendment") is
made and entered into as of January 1, 2004, by and between THE EDUCATION
RESOURCES INSTITUTE, INC., a private non-profit corporation organized under
Chapter 180 of the Massachusetts General Laws with its principal place of
business at ▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
("▇▇▇▇"), and CHARTER ONE BANK, N.A., a national bank with its principal place
of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and a student loan
department located at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Lender").
WITNESSETH
WHEREAS ▇▇▇▇ and Lender entered into Guaranty Agreements and Loan
Origination Agreements identified on Exhibits A and B hereto (respectively, the
"Guaranty Agreements" and the "Loan Origination Agreements"); and
WHEREAS the parties hereto desire to amend the Guaranty Agreements and
the Loan Origination Agreements as set forth herein;
NOW THEREFORE in consideration of the premises and for other good and
valuable consideration, the parties agree as follows:
I. Guaranty Agreement Amendments. ▇▇▇▇ and Lender hereby agree to amend and
restate certain sections of each of the Guaranty Agreements as set forth below.
A. The definition of "Guaranty Event" in each of the Guaranty
Agreements is revised as follows:
"1.5 'Guaranty Event' shall mean any of the following events with
respect to a Loan:
a. failure of a Borrower to make monthly principal
and/or interest payments on a Loan when due, provided
such failure persists for a period of one hundred
eighty (180) consecutive days,
b. the filing of a petition in bankruptcy with respect
to a Borrower, or
c. the death of a Borrower.
For Loans on which the Borrower is two or more persons, none
of the above, with the exception of paragraph b., shall be a
Guaranty Event unless one or more such events shall have
occurred with
34
respect to all such persons. The foregoing notwithstanding, if
a Borrower files a petition in bankruptcy pursuant to Chapter
7 of the U.S. Bankruptcy Code and does not seek a discharge of
the affected Loan(s) under 11 U.S.C. ss.523(a)(8)(B) of the
U.S. Bankruptcy Code, the LENDER at TERI's request will
withdraw its guaranty claim unless or until one of the other
Guaranty Events shall have occurred with respect thereto."
B. The following provision is hereby added to Section 3.3 of each of
the Guaranty Agreements, as follows:
"In the event FMC has no further right or obligation under the
Note Purchase Agreement to purchase a Loan in a Securitization
Transaction, the LENDER shall pay all Subsequent Guaranty Fees
that are due to be paid at the time of securitization as set
forth in Schedule 3.3. Such fees shall be payable (A) with
respect to any Loan already funded, within thirty (30) days
after presentation of an invoice by ▇▇▇▇ to the Lender, and
(B) with respect to Loans funded after the date of such
invoice, at the time of disbursement."
C. Section 8 of each of the Guaranty Agreements is hereby amended and
restated to read in its entirety as follows:
"Section 8: CONFIDENTIALITY; RESTRICTIONS ON USE OF INFORMATION
8.1 During the course of negotiating this Agreement and hereafter
during the pendency of this Agreement, the parties from time
to time may have revealed or may hereafter reveal to each
other certain information concerning their respective business
plans, business methods, financial data and projections,
and/or information that is not generally known in the student
loan industry, including, without limitation, the terms and
conditions of this Agreement. All the foregoing is referred to
herein as "Confidential Information." In TERI's case, its
Confidential Information also includes, but is not limited to,
information concerning the operation of its telephone and
on-line loan applications procedures, and its online credit
scoring system. Each party will use reasonable efforts to
preserve the confidentiality of Confidential Information
contained herein or disclosed to it by the other party, such
efforts to be not less vigilant than those that such party
uses to protect its own proprietary information. The foregoing
is subject to the following qualifications:
a. No party will be so bound with respect to information
that is or becomes public knowledge in the student
loan industry
35
(but if it does so through any fault of such party
that fault will be considered a material breach of
this Agreement);
b. No party will be so bound with respect to information
that is now or hereafter comes into its possession by
its own documented independent efforts or from a
third party who, so far as the recipient party has
reason to believe, is under no comparable restriction
with respect to such information;
c. Either party may disclose Confidential Information to
its attorneys, auditors, agents, and consultants who
are bound to maintain the confidentiality of such
information;
d. Either party may disclose Confidential Information in
the context of any regulatory review of its
operations or as compelled by law, regulation, or
court order, provided that in the context of a court
order the party required to disclose will (i) give
the other party prompt written notice upon learning
of the requirement so that the other party may take
appropriate action to prevent or limit the
disclosure, (ii) consult with the other party and use
all reasonable efforts to agree on the nature, form,
timing and content of the disclosure, (iii) except as
otherwise agreed under (ii), disclose no more than
its counsel advises is legally required, and (iv)
inform the Court and all counsel concerned that such
information is and should be treated as confidential
information of the other party; and
e. Information concerning Loans and Borrowers that comes
into TERI's possession shall not be considered
Confidential Information of the Lender.
f. Without limiting the foregoing, ▇▇▇▇ may disclose any
of the LENDER's Confidential Information to any entity
to which ▇▇▇▇ subcontracts its obligations under this
Agreement pursuant to Section 5.7(e) hereof.
8.2 In accordance with the provisions of Title V of the
▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act (the "GLB Act") and Federal Reserve
Board Regulation P ("Regulation P"), ▇▇▇▇ agrees, as a
financial institution subject to Regulation P, to respect and
protect the security and confidentiality of any "nonpublic
personal information" (as defined in the GLB Act and
Regulation P) relating to applicants for Loans and to
Borrowers, including, where applicable, the restrictions on
the re-use and disclosure of such information set forth in the
GLB Act and Regulation P.
36
8.3 Without limiting the foregoing, ▇▇▇▇ may retain as its own
property and use for any lawful purpose any or all data
concerning Loan applicants and Borrowers that does not include
names, addresses or social security numbers. ▇▇▇▇ may sell,
assign, transfer or disclose aggregated or de-indentified data
concerning Loan applicants and Borrowers that does not include
names, addresses, social security numbers, account numbers, or
any other identifying information to third parties including,
without limitation, FMC, who may also use such information for
any lawful purpose.
8.4 The parties acknowledge that a breach of any of the terms of
this Section 8 would cause irreparable harm to the
non-breaching party for which it could not be adequately
compensated by monetary damages. Accordingly, both parties
agree that, in addition to all other remedies available to the
non-breaching party in an action at law, in the event of any
breach or threatened breach by either party of the terms of
this Section 8, the non-breaching party shall, without the
necessity of proving actual damages or posting any bond or
other security, be entitled to temporary and permanent
injunctive relief, including, but not limited to, specific
performance of the terms of this Section 8."
II. Loan Origination Agreement Amendments. ▇▇▇▇ and Lender hereby agree to amend
and restate certain sections of each of the Loan Origination Agreements as set
forth below.
A. Section 7 of each of the Loan Origination Agreements is hereby
amended to read as follows:
"Section 7: WARRANTIES AND REPRESENTATIONS
a. ▇▇▇▇ and the Lender each represents and warrants to the
other that it has full power and authority to enter into, deliver and
perform this Agreement.
b. ▇▇▇▇ and the Lender each represents and warrants to the
other that it will at all times comply with the Truth-in-Lending Act,
the Equal Credit Opportunity Act and similar consumer protection
statutes adopted by the Federal Government and all other applicable
jurisdictions and duly adopted regulations pertaining to each party.
The foregoing notwithstanding, ▇▇▇▇ will comply with all federal, state
and local laws, rules and regulations applicable to the origination,
disbursement, and maintenance of records concerning Loans subject to
this Agreement, it being understood and agreed that such state and
local laws, rules, and
37
regulations shall, with respect to ▇▇▇▇, only include (1) the laws of
the Commonwealth of Massachusetts, (2) the laws of any other state that
duplicate federal requirements, and (3) those state and local laws,
rules, and regulations of which LENDER specifically informs ▇▇▇▇ in
writing and with which ▇▇▇▇ specifically agrees in writing to comply
(collectively, "Applicable Laws").
c. Without limiting the generality of the foregoing, ▇▇▇▇
represents and warrants that:
(1) the origination of each Loan and any accompanying
notices and disclosures conform to all Applicable Laws;
(2) the origination of each Loan was conducted in
accordance with the Program Guidelines, including, without limitation,
the requirements therein that (A) no loan be originated for a dead
borrower or a borrower involved in a bankruptcy proceeding; (B) at
least one borrower for each loan must be a United States
citizen/national or a permanent resident alien of the United States,
and (C) the borrower must have attained the age of majority at the time
of the loan application;
(3) following procedures, policies, and underwriting
criteria set forth in the Program Guidelines, ▇▇▇▇ will obtain for each
Loan a promissory note duly and properly executed by each borrower, any
student maker named therein, and any cosigner thereunder;
(4) the promissory notes ▇▇▇▇ uses in the performance
of its obligations hereunder will conform to the promissory note forms
included in the Program Guidelines and shall require interest accrual
(whether or not such interest will be paid beginning shortly after
disbursement of the loan or shall instead be capitalized) and provide
or, when the payment schedule with respect thereto is determined, will
provide for payments on a periodic basis that fully amortize the
principal amount of the loan by its maturity, as such maturity may be
modified in accordance with any applicable deferral forbearance periods
granted in accordance with applicable law and the Program Guidelines;
(5) each Loan will be originated by ▇▇▇▇ in the
United States in the ordinary course of its business;
(6) each Loan will be made to an eligible borrower
under the Program Guidelines with legal capacity to execute and deliver
the promissory note under Applicable Laws;
38
(7) each promissory note documenting a Loan will
contain consumer loan terms and involve guaranty fees payable to ▇▇▇▇
in strict conformity with the Program Guidelines;
(8) no application for a Loan shall be rejected,
approved, or discouraged by ▇▇▇▇ 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 borrower or any co-signer has,
in good faith, exercised any right under the Consumer Credit Protection
Act; and
(9) ▇▇▇▇ will commit no fraud, error, omission,
misrepresentation, or similar occurrence with respect to any Loan
originated hereunder and TERI's guaranty obligation under the Guaranty
Agreement shall not be terminated or otherwise affected or impaired
with respect to any Loan (A) by the LENDER's granting an extension of
time to the Borrower to make scheduled payments, or by any other
indulgence the LENDER may grant to the Borrower, provided that all
extensions and other indulgences meet the forbearance standards and
other requirements of the Program Guidelines, (B) because of any fraud
in the execution of the promissory note relating to such Loan, (C)
because of any illegal or improper acts of the Borrower, or (D) because
the Borrower may be relieved of liability for such Loan due to lack of
contractual capacity or any other statutory exemption."
III. Effectiveness. This Amendment shall take effect as of the date first listed
above. Except as expressly amended herein, each of the Guaranty Agreements and
Loan Origination Agreements remains in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their respective officers, being first duly authorized, as of the day and
year first above written.
THE EDUCATION RESOURCES INSTITUTE, INC.
By: /▇▇▇▇▇▇▇▇ ▇. O'Tooole/
CHARTER ONE BANK, N.A.
By: /▇▇▇▇▇ ▇. ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇/
39
EXHIBIT A
Guaranty Agreements
------------------------------------------
May 15, 2002, as amended in amendments
dated May 15, 2002 and May 1, 2003
(Collegiate Funding Services, LLC)
------------------------------------------
May 15, 2002, as amended in amendments
dated May 15, 2002, May 1, 2003,
October 1, 2003, and November 17, 2003
(Academic Management Services, Inc.)
------------------------------------------
May 15, 2002, as amended May 1, 2003
(Pinnacle Peak Solutions, Inc., d/b/a
NextStudent)
------------------------------------------
May 15, 2002, as amended in amendments
dated May 15, 2002 and May 1, 2003
(EAS Group, LLC)
------------------------------------------
July 1, 2002, as amended May 1, 2003
(College Loan Corporation)
------------------------------------------
September 20, 2002, as amended May 1,
2003 (Southwest Student Services
Corporation)
------------------------------------------
December 4, 2002, as amended May 1,
2003 and November 17, 2003 (Comerica
Bank)
------------------------------------------
March 17, 2003, as amended May 1, 2003
(PNC Bank)
------------------------------------------
May 1, 2003
(Student Assistance Foundation of
Montana)
------------------------------------------
May 15, 2003
(Navy Federal Credit Union)
------------------------------------------
May 15, 2003, as amended in an
amendment dated May 15, 2003
(Washington Mutual Bank, F.A.)
------------------------------------------
40
------------------------------------------
May 15, 2003
(Education Services Foundation)
------------------------------------------
June 30, 2003, as amended September
30, 2003 and November 17, 2003
(effective September 30, 2003)
(Student Loan Corporation)
------------------------------------------
July 15, 2003
(Brazos Higher Education Service
Corporation)
------------------------------------------
September 15, 2003
(Higher Education Servicing
Corporation)
------------------------------------------
September 20, 2003
(▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Bank)
------------------------------------------
October 31, 2003
(Pennsylvania Higher Education
Assistance Agency)
------------------------------------------
November 17, 2003
(Illinois Designated Account
Purchasing Program)
------------------------------------------
December 1, 2003
(Creditron Financial Services, Inc.)
------------------------------------------
December 29, 2003
(AAA Southern New England Bank)
------------------------------------------
41
EXHIBIT B
Loan Origination Agreements
------------------------------------------
May 15, 2002, as amended in amendments
dated May 15, 2002 and May 1, 2003
(Collegiate Funding Services, LLC)
------------------------------------------
May 15, 2002, as amended in amendments
dated May 15, 2002 and May 1, 2003
(Academic Management Services, Inc.)
------------------------------------------
May 15, 2002, as amended May 1, 2003
(Pinnacle Peak Solutions, Inc., d/b/a
NextStudent)
------------------------------------------
May 15, 2002, as amended May 15, 2002
(EAS Group, LLC)
------------------------------------------
July 1, 2002, as amended in an
amendment effective July 1, 2002
(College Loan Corporation)
------------------------------------------
September 20, 2002
(Southwest Student Services Corporation)
------------------------------------------
December 4, 2002
(Comerica Bank)
------------------------------------------
March 17, 2003
(PNC Bank)
------------------------------------------
May 1, 2003
(Student Assistance Foundation of
Montana)
------------------------------------------
May 15, 2003
(Navy Federal Credit Union)
------------------------------------------
May 15, 2003
(Washington Mutual Bank, F.A.)
------------------------------------------
May 15, 2003
(Education Services Foundation)
------------------------------------------
June 30, 2003, as amended September
30, 2003
------------------------------------------
42
------------------------------------------
(Student Loan Corporation)
------------------------------------------
July 15, 2003
(Brazos Higher Education Service
Corporation)
------------------------------------------
September 15, 2003
(Higher Education Servicing
Corporation)
------------------------------------------
September 20, 2003
(▇▇▇▇▇▇▇▇ & Ilsley Bank)
------------------------------------------
October 31, 2003
(Pennsylvania Higher Education
Assistance Agency)
------------------------------------------
November 17, 2003
(Illinois Designated Account
Purchasing Program)
------------------------------------------
December 1, 2003
(Creditron Financial Services, Inc.)
------------------------------------------
December 29, 2003
(AAA Southern New England Bank)
------------------------------------------
43
FIFTH AMENDMENT
to
PROGRAM AGREEMENTS
Charter One Bank, N.A.
(CFS Alternative Loan Program)
This Amendment is entered into as of the 1st day of March, 2004 by and among
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 ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ (the "Lender") and The Education Resources Institute, Inc., a private
non-profit corporation organized under Chapter 180 of the Massachusetts General
Laws with its principal place of business at ▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇") with regard to the Guaranty Agreement
between Lender and ▇▇▇▇ dated May 15, 2002 (the " Guaranty Agreement").
Capitalized terms used herein without definition have the meaning set forth in
the Guaranty Agreement.
WHEREAS, documents for the Program have been previously amended in an Amendment
to the Note Purchase Agreement dated May 15, 2002; an Amendment to the Referral
Marketing Agreement dated December 6, 2002; a Second Amendment to the Note
Purchase Agreement dated December 6, 2002; and an Amendment to Program
Agreements dated May 1, 2003, for program year 2003-04; and
WHEREAS, ▇▇▇▇ and Lender desire to adopt new program terms for the 2004-2005
program year for the CFS Alternative Loan Program;
NOW, THEREFORE, in consideration of the mutual promises contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties, it is hereby agreed as follows:
1. Pricing. ▇▇▇▇ and the Lender hereby amend and restate Schedule 3.3 to the
Guaranty Agreement by adopting the Schedule 3.3 attached hereto.
2. Program Guidelines. ▇▇▇▇ and the Lender hereby amend and restate the Program
Guidelines by adopting the Program Guidelines attached hereto as Exhibit A.
3. Transition. This Amendment shall be effective for each Program loan for which
applications are received on or after a date set by ▇▇▇▇ by notice delivered to
Lender as soon as reasonably possible.
4. Full Force and Effect. As amended herein, the Guaranty Agreement remains in
full force and effect.
44
IN WITNESS WHEREOF, the parties hereto by their duly authorized
representatives have executed this Amendment as of the date first written above.
THE EDUCATION RESOURCES CHARTER ONE BANK, N.A.
INSTITUTE, INC.
By: /▇▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇/ By: /▇▇▇▇▇ ▇. ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇/
Name: Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
Title: President Title: Production Manager
45
SCHEDULE 3.3 TO GUARANTY AGREEMENT BETWEEN ▇▇▇▇ AND CHARTER ONE BANK
[**]
46
EXHIBIT A
CFS ALTERNATIVE LOAN PROGRAM
PROGRAM GUIDELINES
UPDATED:
FEBRUARY 10, 2004
EFFECTIVE: PROGRAM YEAR 2004-5
[GRAPHIC OMITTED]
[GRAPHIC OMITTED]
47
Table of Contents
Program Overview
1. Schedule 3.3
2. ▇▇▇▇ Underwriting Guidelines
3. PHEAA Servicing Guidelines
4. Program Borrower Documents
A. Promissory Notes
B. Truth in Lending Disclosure
[**]
48
AMENDMENT TO GUARANTY AND LOAN ORIGINATION AGREEMENTS
This Amendment to Guaranty and Loan Origination Agreements (this "Amendment") is
made and entered into as of, and shall be effective as of, March 1, 2004, by and
between THE EDUCATION RESOURCES INSTITUTE, INC., a private non-profit
corporation organized under Chapter 180 of the Massachusetts General Laws with
its principal place of business at ▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇"), and CHARTER ONE BANK, N.A., a national bank with
its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
and a student loan department located at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
("Lender").
WITNESSETH
WHEREAS ▇▇▇▇ and Lender entered into Guaranty Agreements and Loan
Origination Agreements identified on Exhibits A and B hereto (respectively, the
"Guaranty Agreements" and the "Loan Origination Agreements"); and
WHEREAS the parties hereto desire to amend the Guaranty Agreements and
the Loan Origination Agreements to replace references to and associated with (a)
Deposit and Security Agreements among Lender, FMC, The Education Resources
Institute, Inc. ("▇▇▇▇"), and U.S. Bank National Association ("U.S. Bank"), and
(b) Control Agreements and Security Agreements entered into prior to the date
hereof, to references to and associated with a Security Agreement of even date
herewith between Lender and ▇▇▇▇ ("Security Agreement") and a Control Agreement
of even date herewith among Lender, U.S. Bank, and FMC ("Control Agreement");;
NOW THEREFORE in consideration of the premises and for other good and
valuable consideration, the parties agree as follows:
1. Guaranty Agreement Amendments. ▇▇▇▇ and Lender hereby amend each of the
Guaranty Agreements as follows:
a. Each definition of "Agent" is deleted and references to the
term "Agent" are replaced with references to "Custodian";
b. Each definition of "Borrower" is renumbered as Section 1.1;
c. A defined term "Custodian" is hereby added (or, if applicable,
revised) as Section 1.2 to read as follows: "`Custodian' shall
mean U.S. Bank National Association, its successors and
assigns, in its capacity as Depository Institution under the
Security Agreement dated March 1, 2004, and as Bank under the
Control Agreement dated March 1, 2004 (together, "Security
Documents"), or a successor custodian appointed in accordance
with the Security Documents;"
49
d. A defined term "Security Documents" is added (or, as
applicable, revised) as Section 1.12 to read as follows:
"`Security Documents' shall have the meaning assigned in
Section 1.2;"
e. In Section 3.3(b)(i) the words "to ▇▇▇▇ or to the Agent" are,
as applicable, deleted so that Section 3.3(b)(i) of each
Guaranty Agreement reads in its entirety as follows: "If the
terms of Schedule 3.3 call for any Guaranty Fees to be paid
concurrent with the Securitization Transaction, the LENDER
shall pay such fees directly (and be reimbursed in the
Securitization Transaction to the extent provided in the Note
Purchase Agreement)."
f. Each and every reference to the "Deposit and Security
Agreement" is replaced with a reference to the "Security
Documents."
II. Loan Origination Agreement Amendments. ▇▇▇▇ and Lender hereby
amend each of the Loan Origination Agreements by replacing
each reference to the "Deposit and Security Agreement" with a
reference to the "Security Agreement."
III. Full Force and Effect. Except as expressly amended herein,
each of the Guaranty Agreements and Loan Origination
Agreements remains in full force and effect, each according to
its terms.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their respective officers, being first duly authorized, as of the day and
year first above written.
THE EDUCATION RESOURCES INSTITUTE, INC.
By: /▇▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇/
CHARTER ONE BANK, N.A.
By: /▇▇▇▇▇ ▇. ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇/
50
EXHIBIT A
GUARANTY AGREEMENTS
------------------------------------------
May 15, 2002, as amended in amendments
dated May 15, 2002 and May 1, 2003
(Collegiate Funding Services, LLC)
------------------------------------------
May 15, 2002, as amended in amendments
dated May 15, 2002, May 1, 2003,
October 1, 2003, and November 17, 2003
(Academic Management Services, Inc.)
------------------------------------------
May 15, 2002, as amended May 1, 2003
(Pinnacle Peak Solutions, Inc., d/b/a
NextStudent)
------------------------------------------
May 15, 2002, as amended in amendments
dated May 15, 2002 and May 1, 2003
(EAS Group, LLC)
------------------------------------------
July 1, 2002, as amended May 1, 2003
(College Loan Corporation)
------------------------------------------
September 20, 2002, as amended May 1,
2003
(Southwest Student Services Corporation)
------------------------------------------
December 4, 2002, as amended May 1,
2003 and November 17, 2003
(Comerica Bank)
------------------------------------------
March 17, 2003, as amended May 1, 2003
(PNC Bank)
------------------------------------------
May 1, 2003
(Student Assistance Foundation of
Montana)
------------------------------------------
May 15, 2003
(Navy Federal Credit Union)
------------------------------------------
May 15, 2003, as amended in an
amendment dated May 15, 2003
(Washington Mutual Bank, F.A.)
------------------------------------------
May 15, 2003
------------------------------------------
51
------------------------------------------
(Education Services Foundation)
------------------------------------------
June 30, 2003, as amended September
30, 2003 and November 17, 2003
(effective September 30, 2003)
(Student Loan Corporation)
------------------------------------------
July 15, 2003
(Brazos Higher Education Service
Corporation)
------------------------------------------
September 15, 2003
(Higher Education Servicing Corporation)
------------------------------------------
September 20, 2003
(▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ Bank)
------------------------------------------
October 31, 2003
(Pennsylvania Higher Education
Assistance Agency)
------------------------------------------
November 17, 2003
(Illinois Designated Account
Purchasing Program)
------------------------------------------
December 1, 2003
(Creditron Financial Services, Inc.)
------------------------------------------
December 29, 2003
(AAA Southern New England Bank)
------------------------------------------
February 17, 2004
(Next Student Consolidation)
------------------------------------------
52
EXHIBIT B
LOAN ORIGINATION AGREEMENTS
------------------------------------------
May 15, 2002, as amended in amendments
dated May 15, 2002 and May 1, 2003
(Collegiate Funding Services, LLC)
------------------------------------------
May 15, 2002, as amended in amendments
dated May 15, 2002 and May 1, 2003
(Academic Management Services, Inc.)
------------------------------------------
May 15, 2002, as amended May 1, 2003
(Pinnacle Peak Solutions, Inc., d/b/a
NextStudent)
------------------------------------------
May 15, 2002, as amended May 15, 2002
(EAS Group, LLC)
------------------------------------------
July 1, 2002, as amended in an
amendment effective July 1, 2002
(College Loan Corporation)
------------------------------------------
September 20, 2002
(Southwest Student Services
Corporation)
------------------------------------------
December 4, 2002
(Comerica Bank)
------------------------------------------
March 17, 2003
(PNC Bank)
------------------------------------------
May 1, 2003
(Student Assistance Foundation of
Montana)
------------------------------------------
May 15, 2003
(Navy Federal Credit Union)
------------------------------------------
May 15, 2003
(Washington Mutual Bank, F.A.)
------------------------------------------
May 15, 2003
(Education Services Foundation)
------------------------------------------
June 30, 2003, as amended September
30, 2003
(Student Loan Corporation)
------------------------------------------
53
------------------------------------------
July 15, 2003
(Brazos Higher Education Service
Corporation)
------------------------------------------
September 15, 2003
(Higher Education Servicing Corporation)
------------------------------------------
September 20, 2003
(▇▇▇▇▇▇▇▇ & Ilsley Bank)
------------------------------------------
October 31, 2003
(Pennsylvania Higher Education
Assistance Agency)
------------------------------------------
November 17, 2003
(Illinois Designated Account
Purchasing Program)
------------------------------------------
December 1, 2003
(Creditron Financial Services, Inc.)
------------------------------------------
December 29, 2003
(AAA Southern New England Bank)
------------------------------------------
54
