EXHIBIT 10.14
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
EXECUTION
5/1/02
AMENDED AND RESTATED NOTE PURCHASE AGREEMENT
EDUCATION ONE LOAN PROGRAM
This Amended and Restated Note Purchase Agreement, by and between BANK
ONE, NATIONAL ASSOCIATION ("Bank One"), a national banking association organized
under the laws of the United States and having a principal office located at 000
Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, and THE FIRST MARBLEHEAD CORPORATION, a
Delaware corporation having a principal place of business at 00 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxxx ("FMC"), dated as of May 1, 2002;
W I T N E S S E T H:
WHEREAS, Bank One is in the business of making education loans under
education lending programs, including, without limitation, the EDUCATION ONE
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, pursuant to a Note Purchase Agreement between FMC and Bank One
dated April 30, 2001, as amended by two Amendments to Note Purchase Agreement
dated August 1, 2001, and an Amendment to Program Agreements dated October 1,
2001 ("Old Note Purchase Agreement"), Bank One has agreed to sell, from time to
time, pools containing Bank One private education loans originated by Bank One
under a program known as EDUCATION ONE ("EDUCATION ONE") to FMC or a Purchaser
Trust (all as hereinafter defined); and
WHEREAS, the EDUCATION ONE Loans are made by Bank One and purchased by
FMC or a Purchaser Trust on the condition that they qualify for and in fact are
covered by a
guaranty issued by The Education Resources Institute, Inc., a Massachusetts
nonprofit corporation having its principal offices at 000 Xxxxxx Xxxxxx, Xxxxxx,
XX 00000 ("XXXX"); and
WHEREAS the parties wish to amend and restate the Old Note Purchase
Agreement and to enter this Amended and Restated Note Purchase Agreement to take
effect as of May 1, 2002 (the "Effective Date"); and
WHEREAS the parties intend that this Amended and Restated Note Purchase
Agreement supersedes and replaces the Old Note Purchase Agreement in its
entirety and that the purchase of any and all EDUCATION ONE Conforming Loans on
or after the Effective Date will be made under the terms and conditions of this
Amended and Restated Note Purchase Agreement and not under the Old Note Purchase
Agreement;
NOW, THEREFORE, in consideration of these presents and the covenants
contained herein, the parties hereto hereby agree as follows:
I. DEFINITIONS.
"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.
"Bond Insurer" means Ambac, or any other provider of credit insurance
with respect to the obligations of the Purchaser Trust.
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"Business Day" shall mean any day other than: (a) a Saturday or Sunday,
or (b) a day on which banking institutions in the state in which Bank One is
headquartered are required or authorized by law or executive order to be closed.
"Closing Period" means, with respect to any EDUCATION ONE Loan, the
[**]days immediately following a Purchase Period with respect to such loan or
such longer period as may be permitted to schedule a Purchase Date under
Section 2.03.
"Collateral" has the meaning set forth in the Deposit and Security
Agreement.
"Deposit and Security Agreement" means the agreement of that name among
Bank One, Agent, XXXX and FMC dated as of April 30, 2001.
"Education One" means Education One Group, a subsidiary of USA Education,
Inc., f/k/a SLM Holding Corporation, organized under the laws of the State of
Indiana.
"EDUCATION ONE Loan Pool" or "Pool" shall mean and refer to a group of
EDUCATION ONE Notes purchased and pledged or intended to be purchased and
pledged as collateral in a particular Securitization Transaction.
"EDUCATION ONE Loans" shall mean loans (a) that at the time they were
made were in compliance in all material respects with the requirements of the
Program Guidelines, (b) serviced by the Servicer in substantial compliance with
the Program Guidelines at all times prior to the Purchase Date, and (c) covered
by and subject to all the benefits of the Guaranty Agreement.
"EDUCATION ONE Notes" or "Notes" shall mean notes evidencing EDUCATION
ONE Loans.
"EDUCATION ONE Program" shall mean the EDUCATION ONE Loan Program
described in the Program Guidelines.
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"First Marblehead" or "FMC" shall mean The First Marblehead Corporation,
a Delaware corporation.
"Guaranty Agreement" means the Amended and Restated Guaranty Agreement
between Bank One and XXXX dated as of the Conversion Date (as that term is
defined in the Guaranty Agreement).
"Loan Data" means Loan Information deidentified as to both personal
borrower information and Bank One identity that is shared for the purpose of
analyzing loan programs, including without limitation underwriting criteria,
default histories, and portfolio performance.
"Loan Information" means non-public, personal borrower information
pertaining to any EDUCATION ONE Loan included in a Securitization Transaction.
"Market Disruption Event" means any of the following: (a) any suspension
or limitation on trading in securities generally on the New York Stock Exchange
or the National Association of Securities Dealers National Market system; (b)
any banking moratorium declared by federal, Massachusetts, or New York
authorities or authorities of the state in which Bank One is headquartered; (c)
any outbreak or escalation of major hostilities or armed conflict, or any
declaration of war by Congress; or (d) the closing of the market for commercial
paper or asset-backed securities or significant disruption in the functioning of
those markets, if, in the judgment of FMC, the effect of any such event in (a) -
(d) above makes it impractical or inadvisable to proceed with the completion of
a Securitization Transaction; or (e) the occurrence of a XXXX Insolvency Event.
"Minimum Purchase Price" has the meaning set forth in Section 2.05.
"New Loans" means EDUCATION ONE Loans for which applications are received
on or after the Conversion Date (as that term is defined in the Guaranty
Agreement).
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"Offering Material" has the meaning set forth in Section 3.10.
"Old Loans" means EDUCATION ONE Loans for which applications are received
prior to the Conversion Date (as that term is defined in the Guaranty
Agreement).
"Origination Agreement" refers to (a) the Amended and Restated Loan
Origination Agreement with respect to the origination of EDUCATION ONE Loans
entered into between XXXX and Bank One and dated as of the Conversion Date, as
amended from time to time, and (b) any subsequent agreement relating to
origination services provided to Bank One with respect to EDUCATION ONE Loan
Notes purchased under this Agreement that is reasonably acceptable in form and
substance to each of FMC and XXXX.
"Origination Records" means and refers to the original EDUCATION ONE Loan
application and Note, a form of cosigner notice when required under 16 C.F.R.
Section 444, and any other standardized documentation specified from time to
time in the Program Guidelines as required to be received by the Servicer from
Bank One in order to service EDUCATION ONE Loans adequately and accurately.
"Participating Institution" means an educational institution approved by
XXXX for receipt of EDUCATION ONE Loan funds; provided that Bank One shall have
the opportunity to review lists of existing Participating Institutions and
institutions proposed for inclusion as Participating Institutions and consult
with XXXX regarding any concerns Bank One has about including any institution as
a Participating Institution. FMC will use its best efforts to cause XXXX to
exclude from EDUCATION ONE Loans any loan made to finance costs of education at
an institution that Bank One designates as "unacceptable."
"Pledged Account" has the meaning set forth in the Deposit and Security
Agreement.
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"Program Guidelines" means the Program Guidelines attached to the Amended
and Restated Guaranty Agreement, as amended from time to time by mutual
agreement of Bank One and XXXX.
"Program Lender" means Bank One, National Association, a national banking
association or an Affiliate that is a successor through merger or an Affiliate
to whom the rights and obligations of Bank One are assigned under the terms of
this Agreement.
"Public Transaction" means a Securitization Transaction involving the
offering and sale of securities pursuant to an effective registration under the
Securities Act of 1933, as amended, or an exemption from such act (other than an
exemption provided under section 3(a)(3) of such Act).
"Purchase Date" shall mean the (a) the date of consummation of a
Securitization Transaction with respect to a particular Pool of EDUCATION ONE
Loans, which date: (i) shall be set by written notice from FMC to Bank One,
given to Bank One not less than five (5) Business Days in advance of the
specified date, and (ii) shall occur [**] for each loan in the Pool in question,
or (b) the date on which FMC or a designee Purchaser Trust purchases EDUCATION
ONE Loan pursuant to the Right of First Refusal.
"Purchase Period" means, with respect to any particular EDUCATION ONE
Loan, the period beginning on the first date such loan becomes a "Seasoned Loan"
and ending [**] days thereafter.
"Purchaser Trust" shall mean and refer to a trust or other SPE formed for
the purpose of purchasing EDUCATION ONE 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.
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"Rating Agencies" shall mean and refer to Standard and Poor's Corporation
and/or Xxxxx'x Investors Service, Inc., and/or Fitch IBCA, Duff & Xxxxxx,
together with the successors in interest of any of them engaged in the business
of issuing a credit rating for obligations issued in a Securitization
Transaction.
"Right of First Refusal Period" means for an EDUCATION ONE Loan, the
earlier of (i)[**] days after expiration of the relevant [**] or (ii) [**] days
after notice that a bona fide written offer has been received by Bank One under
Section 2.03 with respect to such EDUCATION ONE Loan, provided that no such
notice may be given until after expiration of [**].
"Seasoned Loan" means an EDUCATION ONE Loan as of fifteen (15) days after
the disbursement on the EDUCATION ONE Loan but shall exclude any loan disbursed
by paper check if the paper check has not yet been paid by the drawee. In the
event a disbursement check is paid by the drawee more than 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 (a) defaulted loans not yet purchased by XXXX, and (b) the rights and
obligations of Bank One with respect to defaulted EDUCATION ONE Loans purchased
by XXXX that would have been Seasoned Loans but for such purchase.
"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)
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(Counsel for Indenture Trustee)
(Counsel for FMC)
(Servicer Auditor)
(Bond Insurer)
(Counsel for XXXX)
(Counsel for Bank One)
(SEC Filing Fees, if any)
"Securitization Transaction" shall mean and refer to the purchase of a
Pool of EDUCATION ONE Loans by a Purchaser Trust funded through the issuance and
sale of commercial paper, certificates, bonds or other evidences of
indebtedness, the repayment of which is supported by payments on the EDUCATION
ONE Loans included in such Pool. A Securitization Transaction may include,
without limitation, a continuing series of transactions occurring on a periodic
basis in which Bank One makes a true 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 Pennsylvania Higher Education
Assistance Agency, or such other servicer as may be approved by FMC, XXXX and
the holder of the EDUCATION ONE Loans in question and retained by the holder of
EDUCATION ONE Loans in accordance with the terms hereof and of the Guaranty
Agreement.
"Servicing Agreement" refers to: (a) the Servicing Agreement of
substantially even date herewith to be entered into between Servicer and Bank
One with respect to servicing of EDUCATION ONE Loans, as amended from time to
time, and (b) any subsequent servicing agreement between Bank One and the
Servicer governing servicing of EDUCATION ONE Loans purchased under this
Agreement, in either case such agreement and any amendment thereto to be in good
faith satisfactory in form and substance to FMC and its counsel.
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"SPE" means a special purpose entity formed and operated for the sole
purpose of acting as purchaser and owner of EDUCATION ONE Loans.
"XXXX Insolvency Event" means (1) the commencement by XXXX 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 XXXX to the appointment of or taking possession by a
receiver, liquidator, trustee, custodian (or other similar official) of or for
XXXX or for any substantial part of its property, (3) the making by XXXX of any
assignment for the benefit of creditors, (4) the insolvency or the failure of
XXXX generally to pay its debts as such debts become due, or (5) a default under
one or more guaranty agreements to which XXXX is a party because of a failure to
pay claims, or the taking of action by XXXX in furtherance of any of the
foregoing.
"Term" shall mean the period commencing on the Effective Date and ending
upon termination hereof, all as set forth in Article X (and subject to
Section 11.06).
"Total Principal Amount" means the total principal amount of Seasoned
Loans available to be sold and purchased, plus [**]; provided, however, that
[**] Bank One consents to or waives the condition in Section 3.01(c)(5) and
signs a Co-Lender Indemnification Agreement substantially in the form of
Exhibit B if requested by a lender of Other Loans.
"Trust Agreement" means, with respect to any particular Securitization
Transaction, the agreement pursuant to which a Purchaser Trust is formed, and
any amendments.
"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 EDUCATION ONE
Loans.
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II. AGREEMENT FOR PURCHASE AND SALE OF NOTES.
2.01. PURCHASE AND SALE.
[**] during the Term of this Agreement and subject to Section 2.03 and
the conditions set forth in this Agreement, Bank One shall sell to FMC or a
designee Purchaser Trust, and FMC or such Purchaser Trust shall purchase, every
Seasoned Loan owned by Bank One on the Purchase Date.
2.02. MARKETING.
Bank One shall be responsible for the design and execution of a program
for marketing EDUCATION ONE Loans to consumers and shall bear all costs thereof.
At the beginning of an academic year, Bank One shall share with FMC its
marketing plan for EDUCATION ONE, which plan shall describe any direct mail
inserts, internet messaging and other marketing initiatives. For the first three
(3) years of this Agreement, Bank One shall maintain at least substantially the
same amount of investment and level of effort in marketing EDUCATION ONE Loans
and the EDUCATION ONE Program that Bank One made with respect to its EDUCATION
ONE products in academic year 2000-2001.
2.03. PRE-CLOSING INFORMATION; FMC PURCHASE.
(a) LOAN INFORMATION. Bank One will cause Servicer to inform FMC
periodically of information reasonably requested by FMC, subject to the
confidentiality provisions of Section 11.09 , 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 EDUCATION ONE Loan, payment status (including defaulted loans
presented for guaranty payment), and the identity of Participating Institutions
affected by the Securitization, together with the information contained in the
model reports set forth in Exhibits C through E, at the
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intervals set forth in said Exhibits. The reports described in Exhibits C
through E shall be provided in electronic media in the Servicer's standard
format. Bank One shall also cause Servicer to provide to FMC, monthly, its AMR
report series.
(b) PURCHASE SCHEDULING. FMC will use its best efforts to specify
Purchase Dates that fall within each May and each November, [**] subject to
Section 3.02(b), purchase or cause a Purchaser Trust to purchase [**] all of the
Seasoned Loans held by Bank One [**]. FMC shall have the sole and exclusive
right to purchase all EDUCATION ONE Loans during the [**] with respect to each
Loan, which right may be assigned to one or more Purchaser Trusts. FMC may
reschedule the Purchase Date without penalty of any kind, [**]. The [**] with
respect to any Loan may be extended for a failure to comply with one or more
conditions as set forth in Section 3.01(b). Bank One agrees, in consideration of
FMC's undertaking pursuant to this section, not to sell or offer to sell to any
third person any interest in any EDUCATION ONE Loan originated by Bank One [**]
with respect to such Loan; PROVIDED, HOWEVER, that after expiration of [**] with
respect to any EDUCATION ONE Loan, Bank One shall use reasonable efforts to
arrange the sale of such EDUCATION ONE Loan and, upon receipt of any bona fide
third-party written offer to purchase such EDUCATION ONE Loan received by Bank
One [**] with respect to such Loan, Bank One shall provide a copy of the same to
FMC, and, in the event that FMC (or a Purchaser Trust) shall fail to purchase
such EDUCATION ONE Loan on the terms of such third-party offer or other mutually
acceptable terms [**], Bank One shall within its sole discretion be entitled to
(i) sell such EDUCATION ONE Loan to any third party or to retain such EDUCATION
ONE Loan, in whole or in part, for its own account free and clear of any claim
under this Agreement, and/or (ii) immediately terminate this Agreement. If FMC
or a Purchaser Trust purchases EDUCATION ONE Loans [**] on the terms of a bona
fide third-party written
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offer or other mutually acceptable terms, FMC shall have no further liability to
Bank One with respect to its obligation to purchase such loans [**].
(c) EXTENSION OF PURCHASE PERIOD AND CLOSING PERIOD DUE TO LACK OF
VOLUME. In the event that the Total Principal Amount of loans eligible for a
Securitization Transaction [**], FMC may, but need not, declare [**] - with
respect to each EDUCATION ONE Loan that is then a Seasoned Loan extended by [**]
days. FMC may continue to declare such extensions, in its discretion, until [**]
this Agreement expires or is terminated (in which event FMC shall schedule a
Purchase Date for all outstanding EDUCATION ONE Loans, to occur prior to the
expiration of the Closing Period for the last loan made subject to this
Agreement; PROVIDED, HOWEVER, that if this Agreement is terminated under
subsection 2.03(b)(ii) on account of FMC's failure to purchase Seasoned Loans,
then Bank One shall not be required to sell loans hereunder and shall have
recourse to its remedies under Section 2.03(d)).
(d) Damages from Failure to Purchase. If FMC or a Purchaser Trust fails
to purchase within a Closing Period (as the same may be extended pursuant to
Section 2.03(c)), and the corresponding Right of First Refusal Period, all
Seasoned Loans held by Bank One at the beginning of the Closing period, to the
extent such failure is not excused under Section 3.02(b); FMC Shall pay to Bank
One the lesser of: (i) [**]% of the total principal amount of all Seasoned Loans
as to which the Right of First Refusal Period has expired or (ii) the difference
between the Minimum Purchase Price and the price Bank One obtains for such
Seasoned Loans pursuant to any transaction entered into by Bank One during the
Right of First Refusal Period. If a failure to purchase is continuing,
additional damages may become payable at thirty-day intervals as the Right of
First Refusal Period expires as to additional loans. Such payments shall
constitute liquidated damages in full satisfaction of FMC's obligations with
respect to the purchase of such loans. Once the Right of First Refusal Period
for an EDUCATION ONE Loan has expired, Bank One shall be under no further
obligation to offer such EDUCATION ONE Loan to FMC (or a Purchaser Trust) for
purchase.
(e) FMC RELIANCE ON PROGRAM GUIDELINES. Bank One further agrees, in
consideration of FMC's undertaking pursuant to this section, that no change will
be made in either the Program Guidelines or the interest rate and terms, as well
as other consumer loan terms and conditions of EDUCATION ONE Loans without FMC's
prior written consent, which consent shall not be unreasonably withheld.
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2.04. POOL SUPPLEMENT.
Each purchase and sale of the EDUCATION ONE Loans included in a Pool on a
Purchase Date shall be made pursuant to a Pool Supplement substantially in the
form of Exhibit A which shall: (1) set forth the Minimum Purchase Price for the
EDUCATION ONE Loans included in the Pool, (2) incorporate by reference the terms
and conditions of this Agreement applicable to sales of EDUCATION ONE Loans, and
(3) include a schedule of EDUCATION ONE 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 Bank One and shall be delivered on
the related Purchase Date. The Purchaser Trust shall provide a preliminary
settlement sheet in the form of Exhibit 1 to the Pool Supplement not less than
two (2) Business Days prior to the Purchase Date.
2.05. MINIMUM PURCHASE PRICE.
On the Purchase Date, Bank One shall assign and convey all EDUCATION ONE
Loans included in the Pool to FMC, or a Purchaser Trust, in consideration of
receipt of the Minimum Purchase Price therefor.
FOR OLD LOANS, the term "Minimum Purchase Price" shall mean the sum of:
(a) The unpaid principal amount of the EDUCATION ONE Loans in question [**];
plus
(b) all accrued and unpaid interest on such EDUCATION ONE Loans, [**]; plus
(c) all fees paid by Bank One to XXXX with respect to such EDUCATION ONE Loans
[**]; plus
(d) a marketing fee and loan premium, [**], as follows:
(A) With respect to [**] as described in Schedule 3.3 to the Guaranty
Agreement:
(i) [**]% with respect to Undergraduate Cosigned Loans;
(ii) [**]% with respect to Graduate Cosigned Loans;
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(iii) [**]% with respect to Continuing Education Loans (both Cosigned
and Creditworthy);
(iv) [**]% with respect to K-12 loans.
(B) With respect to [**] as described in schedule 3.3 to the Guaranty
Agreement:
(i) [**]% with respect to Undergraduate Cosigned Loans;
(ii) [**]% with respect to Graduate Cosigned Loans;
(iii) [**]% with respect to Continuing Education Loans (both Cosigned
and Creditworthy);
(iv) [**]% with respect to K-12 loans;
in either case, plus;
(e) the amount of any Guaranty Fees[**] at the time of the [**] prusuant to
[**]. [**] any such Guaranty Fees [**].
FOR NEW LOANS, the term "Minimum Purchase Price" shall mean the sum of:
(a) The unpaid principal amount [**] of the Seasoned Loans in the Pool; plus
(b) all accrued and unpaid interest on such EDUCATION ONE Loans, in
accordance with [**]; plus
(c) all fees paid by Bank One to XXXX with respect to such EDUCATION ONE
Loans [**], plus
(d) a marketing fee and loan premium, [**], as follows (for tier references,
see Schedule 3.3 of the Guaranty Agreement):
(i) with respect to Undergraduate Creditworthy Loans, [**]%[**]
[**]%[**];
(ii) with respect to Graduate Creditworthy Loans, [**]%[**][**]%[**];
(iii) with respect to Continuing Education Loans (both Cosigned and
Creditworthy), [**]%[**][**]%[**];
(iv) with respect to K-12 loans, [**]%, plus;
(e) the amount of [**] at the time of the [**] pursuant to column 6 of
Schedule 3.3 of the Guaranty Agreement. [**] such [**] or any [**]
any such [**].
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2.06. TRANSITION.
The parties agree that this Amended and Restated Note Purchase Agreement
supersedes and replaces the Old Note Purchase Agreement in its entirety and
the purchase of any and all EDUCATION ONE Conforming Loans after the
Effective Date will be made under the terms and conditions of this Amended
and Restated Note Purchase Agreement and not under the Old Note Purchase
Agreement; provided, however, that the Third Amendment to Program
Agreements, dated November 1, 2001, remains in full force and effect.
III. PROCEDURES AND CONDITIONS FOR TRANSFER.
3.01. CONVEYANCES OF EDUCATION ONE LOANS; CONDITIONS TO PURCHASE.
(a) On each Purchase Date, upon execution and delivery of the related
Pool Supplement, Bank One shall sell, transfer, assign, set over and otherwise
convey to FMC or a Purchaser Trust, without recourse, all right, title and
interest of Bank One in and to:
(1) The EDUCATION ONE Loans included in the related
Securitization Transaction and all payments due or to
become due thereon;
(2) Any proceeds with respect to the EDUCATION ONE Loans
originated by Bank One included in such Pool from recourse
to XXXX under the Origination Agreement regarding
origination of such loans;
(3) All claims of Bank One with respect to past servicing of
such EDUCATION ONE Loans under the Servicing Agreement;
(4) The proceeds of any and all of the foregoing received
after the Purchase Date or received prior thereto and not
credited against the Minimum Purchase Price as computed on
the Purchase Date; and
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(5) All rights of Bank One under the Guaranty Agreement with
respect to the EDUCATION ONE Loans in the Pool.
(b) The obligation of FMC and/or any Purchaser Trust to purchase the
EDUCATION ONE Loans originated by Bank One on the related Purchase Date shall be
subject to satisfaction of the following conditions (each and all of which may
be waived by such Purchaser Trust, in whole or in part in its sole discretion).
In the event of a failure of a condition that is not waived, the Purchase Date
shall be rescheduled by FMC to (i) the earlier of: (A) the date when such
failure of any of the following conditions is cured, or (B) ninety (90) days
after the Purchase Date that would have occurred but for such failure (provided
that FMC shall have up to 180 days to reschedule on account of a Market
Disruption Event), or (ii) such other date as mutually agreed upon by the
parties. FMC, without penalty or liability hereunder, may refuse to purchase any
EDUCATION ONE Loans as to which any failure of conditions precedent are not
cured within such ninety (90) days (or other agreed upon period) or as to which
such failure cannot reasonably be expected to be cured.
(1) Bank One shall have delivered to FMC or the Purchaser
Trust a duly authorized and executed Pool Supplement;
(2) Each of the representations and warranties made by Bank
One with respect to the EDUCATION ONE Loans included in
such Pool shall be true and correct in all material
respects as of the related Purchase Date;
(3) Bank One 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
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and shall not have been modified except with the express
written consent of FMC;
(4) Bank One shall have in all material respects, performed
and observed the terms and conditions of this Agreement,
the Origination Agreement and the Servicing Agreement;
(5) The EDUCATION ONE Loans to be purchased shall have been
originated and serviced in [**] conformity with the
Program Guidelines and shall be covered by the Guaranty
Agreement;
(6) XXXX shall have executed and delivered a confirmatory
Guaranty Agreement, covering all loans being purchased,
for the benefit of the Purchaser Trust and the indenture
trustee in the Securitization Transaction;
(7) 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;
(8) If required by any other Lender whose loans are included
in the Securitization Transaction, Bank One shall have
executed and delivered a Co-Lender Indemnification
Agreement substantially in the form of Exhibit B;
(9) Bank One shall, at its own expense, on or prior to the
Purchase Date, indicate in computer files relating to
EDUCATION ONE Loans that the EDUCATION ONE 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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(10) Bank One shall have executed and delivered for filing a
UCC-1 financing statement, in a form which, assuming a
court or other forum recharacterized the sale of
EDUCATION ONE Notes hereunder as the creation of a
security interest, would be sufficient to perfect all
security interests created by this Agreement with respect
to the EDUCATION ONE Loans originated by Bank One included
in such Pool in the appropriate office of the jurisdiction
in which the chief executive office of Bank One is located
(or, in the event of a change of law, Bank One shall have
taken, but at no additional cost or expense to the Bank
One, such action as may be reasonably required by the
Purchaser Trust);
(11) As of such Purchase Date: (i) Bank One was not insolvent
and will not become insolvent as a result of the transfer
of EDUCATION ONE Loans on such Purchase Date, (ii) Bank
One did not intend to incur or believe that it would incur
debts that would be beyond Bank One'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) Bank One was "Adequately Capitalized," as such term
is defined by the Office of the Comptroller of the
Currency on the Purchase Date; and
(12) In the reasonable judgment of FMC, no Market Disruption
Event has occurred; provided that if satisfaction of the
condition set forth in this Section 3.01(b)(12) is the
only outstanding condition to closing, FMC shall schedule
a new Purchase Date as soon as is reasonably practicable
after the Market Disruption Event has ceased.
(c) The obligation of Bank One to sell EDUCATION ONE Loans 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 Bank One in whole
or in part, in its sole discretion):
(1) FMC or Purchaser Trust shall have delivered to Bank One a
duly authorized and executed Pool Supplement;
(2) FMC or Purchaser Trust shall have paid the Minimum
Purchase Price to Bank One by wire transfer of immediately
available funds;
18
(3) Subject to Section 3.01(c)(5) hereof, FMC or the Purchaser
Trust shall have delivered to Bank One a Co-Lender
Indemnification Agreement substantially in the form of
Exhibit B duly executed by any other Lender whose loans
are properly included in the Securitization Transaction;
and
(4) [**] FMC shall [**] Bank One (i) [**] in such form from
FMC [**] Bank One and (ii) such [**] Bank One shall [**]
which [**].
(5) EDUCATION ONE Loans will not be included in a particular
Securitization Transaction with loans originated by one
or more other financial institutions unless (i) all the
financial institutions are on the most recent list
submitted to and approved by Bank One on an annual basis,
or (ii) Bank One has provided its prior written consent
with respect to the particular Securitization Transaction.
The list for the year ending on the first anniversary date
of this Agreement is comprised of Chase Manhattan Bank,
Bank of America, and Citibank.
(d) Subject to the terms and conditions provided in this Agreement and to
applicable legal requirements, each of the parties to this Agreement
agrees to use reasonable efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, and to assist and cooperate with
the other party to this Agreement in doing, as promptly as practicable,
all things necessary, proper or advisable under applicable Law to ensure
that the conditions set forth in Section 3.01 hereof are satisfied and to
consummate and make effective the transactions contemplated by this
Agreement.
3.02. DELIVERY OF DOCUMENTS.
On the Purchase Date, Bank One shall deliver to FMC or the Purchaser
Trust or to the Servicer, as agent for FMC or the Purchaser Trust and/or the
trustee of the Trust Indenture, each Bank One Note originated by Bank One
included in the Pool and the related Origination Records (or such alternative
evidence of the Loans as is acceptable to the Guarantor and all parties to the
Securitization Transaction). If a Co-Lender Indemnification Agreement is
required as a condition of FMC's obligations under Section 3.01(b)(8) hereof,
Bank One shall execute and deliver a Co-Lender Indemnification Agreement to each
requesting lender selling loans in the Securitization Transaction.
3.03. CONFIRMATION OF REPRESENTATIONS AND WARRANTIES.
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In each Pool Supplement, Bank One shall confirm its representations and
warranties contained herein with respect to the EDUCATION ONE Loans in such
Pool.
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 EDUCATION ONE Loans and of all of Bank One's interest in such
EDUCATION ONE Loans. As assignee of such EDUCATION ONE Loans, FMC or the
Purchaser Trust shall be [**] of such EDUCATION ONE Loans, [**], such EDUCATION
ONE Loans [**].
3.05. SUBSEQUENT RECEIPTS.
In the event that Bank One shall receive, subsequent to any such
assignment, any amounts whatsoever in respect to the EDUCATION ONE Loans so
assigned in the nature of those described in Section 3.04 above, such amounts
shall be held by Bank One in trust for FMC or the Purchaser Trust to which it
has sold the Notes, and the Bank One shall promptly deliver such amounts to the
trustee under the Trust Indenture.
3.06. ASSIGNMENT OF ORIGINATION RIGHTS.
Bank One shall transfer its rights under the Origination Agreement with
respect to the EDUCATION ONE Loans in each Pool to FMC or the respective
Purchaser Trust by execution and delivery of a Pool Supplement.
3.07. NO ASSUMPTION OF LIABILITY TO FUND BANK ONE LOAN NOTES.
By their purchase of EDUCATION ONE Loan Notes, FMC, and all Purchaser
Trusts, shall assume no liability, responsibility or obligation with respect to
any disbursements or reimbursements which are due and owing, or which are, or
may be alleged to be due and owing,
20
by Bank One to any EDUCATION ONE Loan borrower by reason of the EDUCATION ONE
Loan included in the Pool. Notwithstanding the foregoing, FMC or the Purchaser
Trust shall assume from Bank One any liability to repurchase from XXXX 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 XXXX. Such repurchase
obligation shall be governed by the Confirmatory Guaranty Agreement described
in section 3.01(b)(6), above.
3.08. SERVICING AND ORIGINATION COSTS.
Except as expressly set forth in this Agreement, Bank One shall be solely
responsible for and shall pay all costs due to any third party from Bank One
(including, without limitation, amounts due to XXXX or Servicer) with respect to
origination of EDUCATION ONE Loans and with respect to loan servicing of
EDUCATION ONE Loans incurred prior to purchase of the respective EDUCATION ONE
Loans hereunder. [**].
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 EDUCATION ONE Loans.
3.10. PUBLIC TRANSACTIONS. FMC shall notify Bank One if it decides that
any Securitization Transaction will take the form of a Public Transaction. Such
notification shall occur prior to any announcement of the transaction, release
of offering material for the transaction or regulatory filing relating to the
transaction which would indicate Bank One's involvement in such a Public
Transaction. FMC shall furnish to Bank One for Bank One's review and approval
any and all proposed offering material which includes Bank One's name or
information on the EDUCATION ONE Loans (the "Offering Material"). FMC shall not
use any such Offering Material without Bank One's written approval, which shall
not be unreasonably withheld; it being understood that it shall not be deemed
unreasonable for Bank One to condition such approval on the provision to Bank
One of such certificates, opinions and agreements (including, but not limited to
an indemnification agreement) as is ordinary and customary in public
securitization transactions.
3.11 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. OBLIGATIONS OF FMC AND PURCHASER TRUST.
4.01. Subject to the limitations and conditions in this Agreement, upon
the designation of a Purchase Date by FMC, FMC shall [**].
V. REPRESENTATIONS AND WARRANTIES.
21
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 EDUCATION ONE 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 EDUCATION ONE 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.
(d) No action or proceeding is pending or, to FMC's knowledge,
threatened against FMC or any Purchaser Trust before any court or administrative
agency which might have a materially adverse affect on the ability of FMC to
perform its obligations under this Agreement.
5.02. REPRESENTATIONS AND WARRANTIES OF BANK ONE.
22
Bank One makes the following representations and warranties as of the
date hereof, as of the date of each sale of EDUCATION ONE Loans to FMC or a
Purchaser Trust (solely as to the Loans within the respective Pool with regard
to Section 5.02(d) through (i)), and as of any other date specified below:
(a) Bank One represents and warrants that it is 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) Bank One 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 Bank One enforceable
against Bank One 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 material breach of, or constitute a material default under, any of the
terms, conditions or provisions of any legal restriction or any material
agreement or instrument to which Bank One is now a party or by which it is
bound.
(d) Each of the EDUCATION ONE Loans originated by Bank One 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,
23
enforceable against each borrower, any student maker named therein, and any
cosignor 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" as defined in this Agreement.
(e) [**] each EDUCATION ONE Loan originated by Bank One sold
hereunder and any accompanying notices and disclosures conforms [**] to all
applicable state and federal laws, rules and regulations, (ii) each EDUCATION
ONE Loan was documented on forms set forth in the Program Guidelines and
contained consumer loan terms and involved guaranty fees payable to XXXX in
strict conformity with the Program Guidelines, and (iii) the origination of
each EDUCATION ONE Loan was conducted in [**] the Program Guidelines and [**]
with all applicable state and federal laws [**]; and (iv) Bank One did not
discriminate based upon the age, sex, race, national origin, color, religion
or handicapped status of any Borrower in making such Loan.
(f) At the time of origination, each EDUCATION ONE Loan originated by
Bank One sold to FMC or Purchaser Trust is in compliance with any applicable
usury laws.
(g) There is no defense to payment, counterclaim, or setoff at the
time of origination with respect to EDUCATION ONE Loans included in the Pool. To
the best of Bank One's information and belief, there is no action before any
state or federal court, administrative or regulatory body pending against Bank
One and involving EDUCATION ONE Loans in which an adverse result would have a
material adverse effect upon the validity or enforceability of EDUCATION ONE
Loans.
24
(h) Each and every EDUCATION ONE Loan included in the Pool is owned
by Bank One, free and clear of any liens, claims or demands of any person, and
Bank One has the absolute right to transfer the same to FMC or a Purchaser
Trust.
(i) With respect to each EDUCATION ONE Note 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 EDUCATION ONE Note has been serviced at all times [**] 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 Bank One, its
representatives, agents, officers, directors and other employees, with respect
to this Agreement, any Pool Supplement, any EDUCATION ONE Loan, any obligor, and
the sale of any EDUCATION ONE Loan to FMC or a Purchaser Trust hereunder.
5.04. REMEDY FOR BREACH OF REPRESENTATIONS AND WARRANTIES.
In the event any representation or warranty made by Bank One pursuant to
Section 5.02 above shall prove to be inaccurate or incomplete [**] as of the
date when made, Bank One shall have the right (but not the obligation) to elect
by written notice to FMC to be given by Bank One no later than sixty (60) days
after receipt of written notice from FMC of such alleged breach to repurchase
the affected EDUCATION ONE 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 Bank One Note and the Origination Records
25
relating thereto to Bank One, duly endorsed or assigned to Bank One or to such
person as Bank One may direct, in any such case, without recourse to FMC or the
Purchaser Trust. Whether or not Bank One exercises its right of repurchase, Bank
One shall indemnify FMC or the Purchaser Trust pursuant to Article VIII. [**].
In the event any representation or warranty made by FMC or a Purchaser
Trust pursuant to Section 5.01 above shall prove to be inaccurate or incomplete
in any material and adverse respect as of the date when made, Bank One shall
have the right to terminate this Agreement if the deficiency is not cured within
thirty (30) days after written notice of the deficiency is given to FMC or the
Purchaser Trust. Whether or not Bank One exercises its right to terminate, FMC
or the Purchaser Trust shall indemnify Bank One pursuant to Article VIII.
VI. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND INDEMNITIES.
The representations and warranties contained herein and the
indemnifications contained in Article VIII hereof shall survive until each
EDUCATION ONE Loan sold hereunder 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) Bank One 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 educational loans conforming to the Program
Guidelines to borrowers located in all states and territories of the United
States and (b) FMC shall have the right to create a Purchaser Trust to exercise
FMC's rights to purchase each Pool. No assignment
26
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:
27
If to Bank One:
Bank One, N.A.
Xxxx Xxxxx Xxxxx
Vice President
0000 Xxxxxxxx Xxxxxxx
XX0-0000
Xxxxxxxx, XX 00000
Fax No.: 000 000-0000
E-Mail: Xxxx_Xxxxx_Xxxxx@xxxxxxx.xxx
With a copy to:
EDUCATION ONE Group
00000 XXX Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxx
Fax No.: 000-000-0000
E-Mail: xxxxxx@xxxx0xx0.xxx
If to FMC:
Xxxxxx Xxxxxxx Xxxxxx
The First Marblehead Corporation
00 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
E-Mail: xxxxxxx@xxxxxxxx.xxx
With a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxx Xxxxxx
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
E-Mail: xxxxxxxx@xxxxxxxxxxxx.xxx
7.06. GOVERNING LAW.
This Agreement shall be governed by and construed in accordance with the laws of
the State of New York (without reference to choice-of-law rules).
28
7.07. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, all of
which together shall constitute one agreement.
7.08. 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.
7.09. 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 BANK ONE.
Subject to the procedures regarding breach of representations and
warranties set forth in Section 5.04 above, Bank One shall indemnify and hold
harmless FMC, each Purchaser Trust, and any other purchaser under this
Agreement, 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, reasonable
29
attorneys' fees and legal expenses and sums paid, liabilities incurred or
expenses paid or incurred in connection with settling claims, suits or judgments
which such Indemnified Person may sustain or incur by reason of any material
breach of any representation, warranty or covenant of Bank One contained herein.
This section shall survive any termination of this Agreement.
8.02. BY FMC.
Subject to the procedure set forth in Section 5.04, FMC and the
respective Purchaser Trusts shall indemnify and hold harmless Bank One and any
officer, director, employee or agent of Bank One (herein, collectively referred
to as "Indemnified Persons") against any and all liabilities, losses, costs,
damages, and expenses, including, without limitation, reasonable 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 (i) any material breach of any representation,
warranty or covenant of FMC contained herein or the respective Purchaser Trust
in the Pool Supplement or (ii) by reason of any untrue statement or alleged
untrue statement of a material fact made by FMC or a Purchaser Trust contained
in any offering material used in a Securitization Transaction or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. This section shall survive any termination
of this Agreement.
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,
30
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.
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 under Section 9.01. 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 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
31
anything herein to the contrary, either party may proceed to a court of
competent jurisdiction to obtain equitable relief at any time.
X. TERM AND TERMINATION.
10.01. TERM.
This Agreement shall remain in full force and effect until expiration or
termination of the Guaranty Agreement and thereafter until the expiration of the
Right of First Refusal Period (under Section 2.03 hereof) of all EDUCATION ONE
Loans guaranteed pursuant to the Guaranty Agreement. After termination of this
Agreement, certain obligations hereunder shall survive as provided in Article VI
hereof.
Provided that the Guaranty Agreement remains in effect, the Agreement
shall remain in full force and effect for an initial term of two years from
May 1, 2002, and thereafter shall renew for additional one-year terms unless
either party gives written notice of termination at least sixty (60) days prior
to the then-effective expiration date.
All Education Loans originated prior to such termination shall be
purchased by FMC or a designee Purchaser Trust consistent with the terms of this
Agreement.
XI. MISCELLANEOUS
11.01 SEVERABILITY. If any provision of this Agreement is declared or
found to be illegal, unenforceable or void, then all parties
shall be relieved of all obligations arising under such
provision, but only to the extent that such provision is illegal,
unenforceable or void, it being the intent and agreement of the
parties that this Agreement shall be deemed amended by modifying
such provision to the extent necessary to make it legal and
enforceable while preserving its intent or, if that is not
possible, by substituting therefor another provision that is
legal and enforceable and achieves the same objective.
11.02 HEADINGS. The headings used in this Agreement and/or any schedule
or Exhibit hereto are for reference and convenience purposes only
and shall not in any way limit or affect the meaning or
interpretation of any of the terms hereof.
32
11.03 USE OF BANK ONE'S NAME, LOGO AND MARKS. FMC shall not and shall
cause any Purchaser Trust to not use any trade name, trademark,
service xxxx, or any other information which identifies Bank One
or EDUCATION ONE in any disclosures or materials provided in
connection with any Securitization Transaction or in any sales,
marketing, or publicity activities, including, but not limited
to, press releases, interviews with representatives of any
written publication, television station or network, or radio
station or network, without the prior written consent of Bank
One.
11.04 NOTICE OF CLAIMS. As a continuing obligation of FMC throughout
the term of this Agreement, FMC shall notify Bank One of any
claims, either filed or threatened to be filed, which materially
affect, or could materially affect its performance under this
Agreement. Additionally, in the event FMC is the subject of
material litigation or experiences a material adverse change in
its financial condition or business, FMC shall provide Bank One
with adequate assurance of FMC's ability to perform under this
Agreement.
11.05 LIMITED EXCLUSIVE AGREEMENT. This Agreement establishes an
exclusive arrangement between FMC and Bank One for the purchase
and sale of EDUCATION ONE Loans during the term of this Agreement
and Bank One will use and promote the "EDUCATION ONE" brand name
and market the EDUCATION ONE Program exclusively in connection
with the transactions described in this Agreement. Subject to the
foregoing, FMC recognizes that Bank One now and in the future
will offer and originate other private education loans. Likewise,
Bank One recognizes that FMC will be free now and in the future
to promote other education loans and purchase loans from lenders
under other programs. The parties expressly agree that this
Agreement in no way establishes an exclusive arrangement between
FMC and Bank One except as provided in this Section. FMC
acknowledges and agrees that it acquires no interest in the name
EDUCATION ONE by virtue of this Agreement and that FMC will not
use the name EDUCATION ONE after termination of this Agreement.
11.06 SURVIVAL. The provisions relating to the following rights and
obligations shall survive the termination, cancellation,
expiration and/or rescission of this Agreement: Ownership,
Privacy of Consumer Financial Information, Warranty, Limitation
of Liability, Indemnification, and
Confidentiality/Non-Disclosure. In addition, any provisions
relating to the enforcement of any of the surviving provisions
and any remedies available under this Agreement shall also
survive.
11.07 RELATIONSHIP OF PARTIES. Except as otherwise specifically set
forth in this Agreement, this Agreement shall not be construed as
authority for either party to act for the other in any agency,
partnership, joint venture or any other capacity or to make
commitments of any kind for the account of or on behalf of the
other.
33
11.08 SCHEDULES AND EXHIBITS. In the event of a conflict between the
terms of this Agreement, as may be amended from time to time, and
any schedule or Exhibit, the terms of this Agreement shall
govern.
11.09 CONFIDENTIALITY. Both FMC and Bank One have made and will
continue throughout the term of this Agreement to make available
to the other party confidential and proprietary materials and
information ("Proprietary Information"). Prospectively, each
party shall advise the other of material and information that is
confidential and/or proprietary. All material and information
provided by Bank One or FMC (including any Purchaser Trust) to
the other or any of its Affiliates (including any Purchaser
Trust) relating to the business, policies, procedures, customs,
forms, customers and strategies of the disclosing party or any of
its Affiliates, including information previously divulged or
delivered to FMC or any Purchaser Trust by Bank One or to Bank
One by FMC regarding the aforementioned subject matter is hereby
designated as confidential and proprietary and shall be
considered to be Proprietary Information. It is understood that
the obligations set forth in this Section do not apply to
materials or information that: (i) are already, or otherwise
become, generally known by third parties as a result of no act or
omission of the receiving party; (ii) subsequent to disclosure
hereunder are lawfully received from a third party having the
right to disseminate the information without restriction on
disclosure; (iii) are generally furnished to others by the
disclosing party without restriction on disclosure; (iv) were
already known by the receiving party prior to receiving them from
the disclosing party and were not received from a third party in
breach of that third party's obligations of confidentiality; or
(v) are independently developed by the receiving party without
the use of Proprietary Information of the disclosing party.
Each party shall maintain the confidentiality of the other
party's Proprietary Information and will not use or disclose such
Proprietary Information without the prior written consent of the
other party. Notwithstanding the foregoing, Bank One may disclose
FMC's Proprietary Information to its Affiliates, agents, and
other third parties to effectuate this Agreement, provided that
such parties are under a similar obligation to maintain the
confidentiality of FMC's Proprietary Information. Notwithstanding
the foregoing, FMC may disclose such Proprietary Information to a
Purchaser Trust, to FMC's Affiliates, their agents, and other
third parties to effectuate this Agreement, provided that such
parties are under a corresponding written obligation to maintain
the confidentiality of Bank One's Proprietary Information.
Further, the parties may disclose the other's Proprietary
Information in a judicial or quasi-judicial proceeding when
required to do so by law when responding to a subpoena,
deposition notice or similar judicial or governmental demand; in
such situations, however, the party being requested to disclose
the other's Proprietary Information shall endeavor to provide
notice to the other party whereby the other party may intervene
in the proceeding, if it wishes, and endeavor to prevent such
34
disclosure. Additionally, the parties may disclose the other's
Proprietary Information to their various regulatory agencies.
Notwithstanding any contrary provision of this Agreement, as long
as each party protects the Proprietary Information of the other,
neither the exposure to the other party's Proprietary
Information, nor its ownership of work products, shall prevent
either party from using ideas, concepts, expressions, know-how,
skills and experience possessed by either party prior to its
association with the other party or developed by either party
during its association with the other party, so long as the
Proprietary Information of the other party is not used.
Notwithstanding any contrary provision of this Agreement, the
parties acknowledge and agree that nothing in this Agreement
restricts: (i) sharing Loan Information with FMC or any Purchaser
Trust or any of their Affiliates to track loans in preparation
for a Securitization Transaction as described in Section 2.03
above, (ii) providing Loan Information to FMC or any Purchaser
Trust or any of their Affiliates as a purchaser of loans in a
Securitization Transaction, (iii) sharing Loan Information among
XXXX, FMC, and their Affiliates for purposes of servicing loans
under the Origination Agreement or Sub-Servicing Agreement
between XXXX and Affiliates of FMC, or (iv) using, manipulating,
or sharing Loan Data.
35
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
BANK ONE, NATIONAL ASSOCIATION
(Columbus, Ohio) (Bank One):
By: /s/ Xxxx Xxxxx Xxxxx
-------------------------------------------
Print Name: Xxxx Xxxxx Xxxxx
-----------------------------------
Title: Vice President, Education Lending
----------------------------------------
THE FIRST MARBLEHEAD CORPORATION
(FMC)
By: /s/ Xxxxx Xxxxx
-------------------------------------------
Print Name: Xxxxx Xxxxx
-----------------------------------
Title: President
----------------------------------------
36
NOTE PURCHASE AGREEMENT
INDEX TO EXHIBITS
Exhibit A Pool Supplement
Exhibit B Co-Lender Indemnification Agreement
Exhibit C Monthly File Report Layout - EOM Servicing
Exhibit D Monthly File Report Layout - Transactional Detail
Exhibit E Weekly Origination Transmission File Data Elements
37
EXHIBIT A
Pool Supplement
This Pool Supplement ("Supplement") is entered into pursuant to and forms a part
of that certain Amended and Restated Note Purchase Agreement (the "Agreement")
dated as of __________, 2002 by and between The First Marblehead Corporation
("FMC") and Bank One, National Association (Columbus, Ohio) ("Bank One"). 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
EDUCATION ONE Loan described in the attached Schedule 2 ("the Transferred
EDUCATION ONE Loans") along with all of Program Lender's rights under the
Guaranty Agreement relating to the Transferred EDUCATION ONE Loans. Program
Lender hereby transfers and delivers to the Purchaser Trust each EDUCATION ONE
Note evidencing such EDUCATION ONE Loan and all Origination Records relating
thereto, in accordance with the terms of the Agreement. Purchaser Trust hereby
purchases said EDUCATION ONE Notes on said terms and conditions.
ARTICLE 2: PRICE.
The amounts paid pursuant to this Supplement are:
FOR OLD LOANS, the term "Minimum Purchase Price" shall mean the sum of:
(b) The unpaid principal amount of the EDUCATION ONE Loans in question [**];
plus
(b) all accrued and unpaid interest on such EDUCATION ONE Loans, [**]; plus
(c) all fees paid by Bank One to XXXX with respect to such EDUCATION ONE Loans
[**]; plus
(d) a marketing fee and loan premium, [**], as follows:
(A) With respect to [**] as described in Schedule 3.3 to the Guaranty
Agreement:
(i) [**]% with respect to Undergraduate Cosigned Loans;
(ii) [**]% with respect to Graduate Cosigned Loans;
38
(iii) [**]% with respect to Continuing Education Loans (both Cosigned
and Creditworthy);
(iv) [**]% with respect to K-12 loans.
(B) With respect to Loans that do not qualify as Premium Loans as described
in schedule 3.3 to the Guaranty Agreement:
(i) [**]% with respect to Undergraduate Cosigned Loans;
(ii) [**]% with respect to Graduate Cosigned Loans;
(iii) [**]% with respect to Continuing Education Loans (both Cosigned
and Creditworthy);
(iv) [**]% with respect to K-12 loans;
in either case, plus;
(e) the amount of any Guaranty Fees [**].
FOR NEW LOANS, the term "Minimum Purchase Price" shall mean the sum of:
(a) The unpaid principal amount [**]; plus
(b) all accrued and unpaid interest on such EDUCATION ONE Loans, [**]; plus
(c) all fees paid by Bank One to XXXX with respect to such EDUCATION ONE
Loans [**], plus
(d) a marketing fee and loan premium, [**], as follows (for tier references,
see Schedule 3.3 of the Guaranty Agreement):
(i) with respect to Undergraduate Creditworthy Loans, [**]% [**] and
[**]% for;
(ii) with respect to Graduate Creditworthy Loans, [**]% [**] and [**]%
for [**];
(iii) with respect to Continuing Education Loans (both Cosigned and
Creditworthy), [**]% [**] and [**]% [**];
(iv) with respect to K-12 loans, [**]%, plus;
(e) the amount of any Guaranty Fees [**].
39
ARTICLE 3: REPRESENTATIONS AND WARRANTIES.
3.01. BY PROGRAM LENDER.
Bank One 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 Bank One 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 EDUCATION ONE 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
EDUCATION ONE Loans and rights relating thereto as provided herein from the Bank
One and the Purchaser Trust has duly authorized such purchase from the Bank One
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.
40
(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.
Bank One hereby acknowledges receipt of the Minimum Purchase Price.
Purchaser Trust hereby acknowledges receipt of the Transferred EDUCATION ONE
Loans included in the Pool.
ARTICLE 5: ASSIGNMENT OF ORIGINATION, GUARANTY AND SERVICING RIGHTS.
Bank One 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 EDUCATION ONE 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 Bank One 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 Bank One 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 EDUCATION ONE Notes.
41
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:
------------------------------
BANK ONE, N.A.
(Columbus, Ohio)
---------------------------------
By:
---------------------------------
Print Name:
-------------------------
Title:
------------------------------
42
Schedule 1 to Pool Supplement
(SAMPLE)
SETTLEMENT SCHEDULE
FMC 200__-CP-__
PROGRAM NAME LOANS
# of Loans Total Principal Accrued Interest at Note Rate
---------- --------------- -----------------------------
43
EXHIBIT B
CO-LENDER INDEMNIFICATION AGREEMENT
THIS CO-LENDER INDEMNIFICATION AGREEMENT (the "Agreement") is made as of
[DATE], by and between [Names and Addresses of Co-Lenders] ("Co-Lender"), and
Bank One, National Association (Columbus, Ohio) ("Bank One"), a national banking
association organized under the laws of the United States, with its headquarters
and principal place of business located at Columbus, Ohio (Co-Lender and Bank
One 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 XXXX Program (the
"Participating Institutions") whereunder such loans (the "XXXX
Loans") are guaranteed by The Education Resources Institute, Inc.
("XXXX") (collectively, the "XXXX 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 XXXX
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 XXXX Loans (the "Subject
Securitization Transaction").
C. As a condition precedent to the obligation of each Lender to
consummate the sale of XXXX Loans originated by them to the Purchaser Trust, all
Lenders whose XXXX-Guaranteed 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
44
hold XXXX 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 XXXX 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 XXXX 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-XXXX 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 XXXX 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 XXXX Loans in which an adverse result would have a material adverse
effect upon the validity or enforceability of its XXXX 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 XXXX Loan) and
each person who controls such other Lender within the meaning of either
45
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 XXXX 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
46
Party is or could have been a party and indemnity could have been sought
hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability on claims
that are the subject of such proceeding.
ARTICLE 3
MISCELLANEOUS
3.01 Notices. All demands, notices and communications upon or to any
Lender under this Agreement shall be in writing, personally delivered or mailed
by certified mail, return receipt requested, to such Lender at its address set
forth below or to such other address as may hereafter be furnished by such
Lender to the other Lenders hereunder in writing, and shall be deemed to have
been duly given upon receipt.
If to Co-Lender:
--------------------------
--------------------------
--------------------------
with a copy to:
--------------------------
--------------------------
--------------------------
If to Bank One:
Bank One, N.A.
Xxxx X. Xxxxxxx
Vice President
0 Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Fax No.: 000-000-0000
With a copy to:
EDUCATION ONE Group
00000 XXX Xxxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx X. Xxxxx
Fax No.: 000-000-0000
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
47
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.
48
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:
49
EXHIBIT C TO NOTE PURCHASE AGREEMENT
MONTHLY FILE REPORT LAYOUT - EOM SERVICING
BF-SSN 1 9 N X(9) Spaces
Borrower Social Security Number
LN-SEQ 10 4 N 9(4) Zeros
Loan sequence number
LD-END-GRC-PRD 14 10 A/N MM/DD/CCYY Spaces
Grace period end date
Field sign. Positive or negative value. 24 1 N X(1) Spaces
Blank value = positive
XX-XXX-XXX-XXX-XXX 00 3 N 9(3) Zeros
Number of months disclosed for the grace
period.
XX-XXX-XXX 00 00 X/X XX/XX/XXXX Spaces
Loan term end date
XX-XXX-XXX 00 00 X/X XX/XX/XXXX Spaces
Loan term begin date
LF-GTR-RFR 48 12 A/N X(12) Spaces
Guarantor reference identification number
XX-XXX-SCL-ORG 60 8 A/N X(8) Spaces
Original school identifier
LC-SCY-PGA 68 2 A/N X(2) Spaces
Secondary program administrator code
WX-SCY-PGA 70 20 A/N X(20) Spaces
Text description for Secondary program
administrator code
IC-LON-PGM 90 6 A/N X(6) Spaces
Type of Loan
LF-RGL-CAT-LP06 96 7 A/N Internal Use Spaces
Regulatory category code for Interest Rate
XX-XXX-XXX 000 0 A/N X(8) Spaces
Lender Department of Education code
XX-XXX 000 0 A/N X(6) Spaces
Guarantor code
XX-XXX-SSN 117 9 A/N X(9) Spaces
Student's social security number
XX-XXX-0-XXX 000 00 X/X XX/XX/XXXX Spaces
Date of the first disbursement for the loan
LC-ACA-GDE-LEV 136 2 A/N X(2) Spaces
Academic Grade Level
WX-ACA-GDE-LEV 138 20 A/N X(20) Spaces
Text description for Academic Grade Level
LC-SCY-PGA-PGM-YR 158 1 A/N X(1) Spaces
Secondary party administration program year
code
WX-SCY-PGA-PGM-YR 159 20 A/N X(20) Spaces
Text description for Secondary party
administration program year
IC-HSP-CSE 179 3 A/N X(3) Spaces
Hospital course code
WX-HSP-CSE 182 20 A/N X(20) Spaces
51
Text description for Hospital course code
IF-OWN 202 8 A/N X(8) Spaces
Current Owner code
XX-XXX-EFF-ADD 210 10 A/N MM/DD/CCYY Spaces
Effective loan add date
Field sign. Positive or negative value. 220 1 N X(1) Spaces
Blank value = positive
LA-R78-INT-MAX 221 8 N 99999.99 Zeros
Maximum amount of Rule 78 interest charged
to the loan
Field sign. Positive or negative value. 229 1 N X(1) Spaces
Blank value = positive
WN-DAY-GRC-RMN 230 4 N 9(4) Zeros
Number of days remaining in grace
Field sign. Positive or negative value. 234 1 N X(1) Spaces
Blank value = positive
WN-DAY-ENR-ELP 235 4 N 9(4) Zeros
Number of days elapsed in enrollment
WD-RPY-BEG 239 10 A/N MM/DD/CCYY Spaces
Repayment begin date
Field sign. Positive or negative value. 249 1 N X(1) Spaces
Blank value = positive
WN-DAY-RPD-ELP 250 5 N 9(5) Zeros
Number of days elapsed in repayment
Field sign. Positive or negative value. 255 1 N X(1) Spaces
Blank value = positive
WN-MTH-RPD-ELP 256 3 N 9(3) Zeros
52
Number of months elapsed in repayment
IM-PGA-SHO 259 20 A/N X(20) Spaces
Program Administration Short Name
IM-GTR-SHO 279 20 A/N X(20) Spaces
Guarantor's Short Name
Field sign. Positive or negative value. 299 1 N X(1) Spaces
Blank value = positive
WA-CUR-PRI 300 9 N 999999.99 Zeros
Current end of month principal amount
Field sign. Positive or negative value. 309 1 N X(1) Spaces
Blank value = positive
WA-CUR-BR-INT
Current end of month borrower interest 310 9 N 999999.99 Zeros
amount
Field sign. Positive or negative value. 319 1 N X(1) Spaces
Blank value = positive
WA-CUR-GOV-INT 320 8 N 99999.99 Zeros
Current end of month government interest
amount
Field sign. Positive or negative value. 328 1 N X(1) Spaces
Blank value = positive
WA-CUR-OTH-CHR 329 8 N 99999.99 Zeros
Current end of month "other charges" amount
Field sign. Positive or negative value. 337 1 N X(1) Spaces
Blank value = positive
WA-AVG-DAY-BAL 338 9 N 999999.99 Zeros
Average daily balance amount
Field sign. Positive or negative value. 347 1 N X(1) Spaces
53
Blank value = positive
WA-PRV-MTH-PRI 348 9 N 999999.99 Zeros
Amount of previous month principal
Field sign. Positive or negative value. 357 1 N X(1) Spaces
Blank value = positive
WA-PRV-MTH-BR-INT 358 9 N 999999.99 Zeros
Amount of previous month borrower interest
Field sign. Positive or negative value. 367 1 N X(1) Spaces
Blank value = positive
WA-PRV-MTH-GOV-INT 368 8 N 99999.99 Zeros
Amount of previous month government
interest
Field sign. Positive or negative value. 376 1 N X(1) Spaces
Blank value = positive
WA-PRV-MTH-OTH-CHR 377 8 N 99999.99 Zeros
Amount of previous month "other charges"
WM-BR-1 385 13 A/N X(13) Spaces
Borrower's first name
WM-BR-MID 398 13 A/N X(13) Spaces
Borrower's middle name
WM-BR-LST 411 23 A/N X(23) Spaces
Borrower's last name
WM-BR-LST-SFX 434 4 A/N X(04) Spaces
Borrower's last name suffix
XX-XXX 000 00 X/X XX/XX/XXXX Spaces
Borrower's birth date
54
XX-XXX-1 448 13 A/N X(13) Spaces
Student's first name
XX-XXX-MID 461 13 A/N X(13) Spaces
Student's middle name
XX-XXX-LST 474 23 A/N X(23) Spaces
Student's last name
XX-XXX-LST-SFX 497 4 A/N X(04) Spaces
Student's last name suffix
WX-STR-ADR-1 501 32 A/N X(32) Spaces
Borrower's street address line 1
WX-STR-ADR-2 533 32 A/N X(32) Spaces
Borrower's street address line 2
WX-STR-ADR-3 565 32 A/N X(32) Spaces
Borrower's street address line 3
WM-CT-T 597 22 A/N X(22) Spaces
Borrower's city (post office) address
DC-DOM-ST 619 2 A/N X(2) Spaces
Borrower's state code
DF-ZIP-CDE 621 9 A/N X(9) Spaces
Borrower's zip code
DI-VLD-ADR 630 1 A/N 'Y' Valid Address Spaces
Borrower's address indicator 'N' Invalid Address
DD-STA-PDEM30 631 10 A/N MM/DD/CCYY Spaces
Date of last change to borrower's address
information
DM-FGN-CNY 641 15 A/N X(15) Spaces
Borrower's Foreign country address
55
DM-FGN-ST 656 15 A/N X(15) Spaces
Borrower's Foreign state address.
DN-PHN-XTN 671 4 A/N X(04) Spaces
Borrower's Phone extension
DN-DOM-PHN-LCL 675 4 A/N X(04) Spaces
Borrower's Phone number
DN-DOM-PHN-XCH 679 3 A/N X(03) Spaces
Borrower's Phone exchange
DN-DOM-PHN-ARA 682 3 A/N X(03) Spaces
Borrower's Phone area code
DN-FGN-PHN-INL 685 3 A/N X(3) Spaces
Borrower's Foreign phone international
access number
DN-FGN-PHN-CNY 688 3 A/N X(3) Spaces
Borrower's Foreign phone country number
DN-FGN-PHN-CT 691 4 A/N X(4) Spaces
Borrower's Foreign phone city number
DN-FGN-PHN-LCL 695 7 A/N X(7) Spaces
Borrower's Foreign phone local number
DI-PHN-VLD 702 1 A/N 'Y' Valid Phone Spaces
Borrower's Phone indicator 'N' Invalid Phone
DD-SKP-BEG 703 10 A/N MM/DD/CCYY Spaces
Skip Tracing begin date
WI-LON-COS 713 1 A/N 'Y' Have cosigner Spaces
Cosigner indicator 'N' No cosigner
WI-LON-CMK 714 1 A/N 'Y' Have co-maker Spaces
Comaker indicator 'N' No co-maker
56
WI-LON-CBR 715 1 A/N 'N' Spaces
Coborrower indicator
WI-OTH-EDS-TYP 716 1 A/N 'N' Spaces
Other endorser indicator
XX-XXX-SCL-ORG 717 20 A/N X(20) Spaces
Name of the originating school
WC-TYP-SCL-ORG 737 2 A/N X(2) Spaces
Original school type code
WX-TYP-SCL-ORG 739 20 A/N X(20) Spaces
Text description for Original school type
code
WI-PPR-SCL-ORG 759 1 A/N X(01) Spaces
Original school proprietary school
indicator
XX-XXX-SCL-ENR-CUR 760 8 A/N X(8) Spaces
Identifier of the school currently enrolled
in
LD-SCL-SPR 768 10 A/N MM/DD/CCYY Spaces
Last day of enrollment
Field sign. Positive or negative value. 778 1 N X(1) Spaces
Blank value = positive
WN-DAY-GRC-ELP 779 4 N 9(4) Zeros
Number of days elapsed in grace status
Field sign. Positive or negative value. 783 1 N X(1) Spaces
Blank value = positive
WN-DAY-ENR-RMN
Number of days remaining in enrollment
status 784 4 N 9(4) Xxxxx
00
XX-XXX-XXX-XXX 000 0 A/N X(2) Spaces
Current school type code
WX-TYP-SCL-CUR 790 20 A/N X(20) Spaces
Text description for Current school type
code
WI-PPR-SCL-CUR 810 1 A/N X(01) Spaces
Current school proprietary school indicator
IF-GTR-RPT-SCL 811 8 A/N X(8) Spaces
Guarantor reporting code for school
WC-SCL-CUR-DOM-ST 819 2 A/N X(2) Spaces
Current school state mail code
WC-SCL-ORG-DOM-ST 821 2 A/N X(2) Spaces
Original school state mail code
LD-RPS-1-PAY-DU 823 10 A/N MM/DD/CCYY Spaces
When the borrower's first payment is due
LD-SNT-RPD-DIS 833 10 A/N MM/DD/CCYY Spaces
Date repayment disclosure sent
LD-BIL-DU 843 10 A/N MM/DD/CCYY Spaces
Date the next installment xxxx is due
Field sign. Positive or negative value. 853 1 N X(1) Spaces
Blank value = positive
WN-MTH-INT-CAP-FRQ 854 2 N 9(2) Zeros
Interest capitalization frequency (in
number of months)
WX-INT-CAP-FRQ 856 15 A/N X(15) Spaces
Text description for the Interest
capitalization frequency
58
LC-TYP-SCH-DIS 871 2 A/N X(2) Spaces
Type of repayment schedule disclosed
WX-TYP-SCH-DIS 873 20 A/N X(20) Spaces
Text description for type of repayment
schedule disclosed
Field sign. Positive or negative value. 893 1 N X(1) Spaces
Blank value = positive
WA-RPS-ISL-1 894 8 N 99999.99 Zeros
Installment amount of loan repayment
schedule 1
Field sign. Positive or negative value. 902 1 N X(1) Spaces
Blank value = positive
WA-RPS-ISL-2 903 8 N 99999.99 Zeros
Installment amount of loan repayment
schedule 2
Field sign. Positive or negative value. 911 1 N X(1) Spaces
Blank value = positive
WA-RPS-ISL-3 912 8 N 99999.99 Zeros
Installment amount of loan repayment
schedule 3
Field sign. Positive or negative value. 920 1 N X(1) Spaces
Blank value = positive
WA-RPS-ISL-4 921 8 N 99999.99 Zeros
Installment amount of loan repayment
schedule 4
Field sign. Positive or negative value. 929 1 N X(1) Spaces
Blank value = positive
59
WA-RPS-ISL-5 930 8 N 99999.99 Zeros
Installment amount of loan repayment
schedule 5
Field sign. Positive or negative value. 938 1 N X(1) Spaces
Blank value = positive
WA-RPS-ISL-6
Installment amount of loan repayment 939 8 N 99999.99 Zeros
schedule 6
Field sign. Positive or negative value. 947 1 N X(1) Spaces
Blank value = positive
WA-RPS-ISL-7 948 8 N 99999.99 Zeros
Installment amount of loan repayment
schedule 7
Field sign. Positive or negative value. 956 1 N X(1) Spaces
Blank value = positive
WN-RPS-TRM-1 957 3 N 9(3) Zeros
Loan repayment term 1
Field sign. Positive or negative value. 960 1 N X(1) Spaces
Blank value = positive
WN-RPS-TRM-2 961 3 N 9(3) Zeros
Loan repayment term 2
Field sign. Positive or negative value. 964 1 N X(1) Spaces
Blank value = positive
WN-RPS-TRM-3 965 3 N 9(3) Zeros
Loan repayment term 3
Field sign. Positive or negative value. 968 1 N X(1) Spaces
Blank value = positive
WN-RPS-TRM-4 969 3 N 9(3) Zeros
60
Loan repayment term 4
Field sign. Positive or negative value. 972 1 N X(1) Spaces
Blank value = positive
WN-RPS-TRM-5 973 3 N 9(3) Zeros
Loan repayment term 5
Field sign. Positive or negative value. 976 1 N X(1) Spaces
Blank value = positive
WN-RPS-TRM-6 977 3 N 9(3) Zeros
Loan repayment term 6
Field sign. Positive or negative value. 980 1 N X(1) Spaces
Blank value = positive
WN-RPS-TRM-7 981 3 N 9(3) Zeros
Loan repayment term 7
Field sign. Positive or negative value. 984 1 N X(1) Spaces
Blank value = positive
WN-RPS-TRM-INI 985 3 N 9(3) Zeros
Initial loan repayment term
Field sign. Positive or negative value. 988 1 N X(1) Spaces
Blank value = positive
WA-1-DSB 989 9 N 999999.99 Zeros
Amount of first disbursement
Field sign. Positive or negative value. 998 1 N X(1) Spaces
Blank value = positive
WA-LON-TOT-DSB 999 9 N 999999.99 Zeros
Total amount disbursed for loan
61
Field sign. Positive or negative value. 1008 1 N X(1) Spaces
Blank value = positive
WA-LON-TOT-INS-PRM 1009 8 N 99999.99 Zeros
Total amount of loan insurance premiums
Field sign. Positive or negative value. 1017 1 N X(1) Spaces
Blank value = positive
WA-LON-TOT-ORG-FEE 1018 8 N 99999.99 Zeros
Total amount of loan origination fees
Field sign. Positive or negative value. 1026 1 N X(1) Spaces
Blank value = positive
WA-LON-TOT-OTH-FEE 1027 8 N 99999.99 Zeros
Total amount of other fees for loan
Field sign. Positive or negative value. 1035 1 N X(1) Spaces
Blank value = positive
WA-ORG-PRI 1036 9 N 999999.99 Zeros
Original amount of principal
WI-LON-FUL-DSB 1045 1 A/N X(01) Spaces
Fully disbursed loan indicator
LD-DSB 1046 10 A/N MM/DD/CCYY Spaces
Disbursement date
Field sign. Positive or negative value. 1056 1 N X(1) Spaces
Blank value = positive
WA-LST-DSB 1057 9 N 999999.99 Zeros
Amount of last disbursement
LD-DFR-BEG 1066 10 A/N MM/DD/CCYY Spaces
62
Date deferment begins
LD-DFR-END 1076 10 A/N MM/DD/CCYY Spaces
Date deferment ends
Field sign. Positive or negative value. 1086 1 N X(1) Spaces
Blank value = positive
WN-DAY-DFR-RMN 1087 4 N 9(4) Zeros
Number of days remaining in deferment
LC-DFR-TYP 1091 2 A/N X(2) Spaces
Deferment type code
WX-DFR-TYP 1093 20 A/N X(20) Spaces
Text description for deferment type code
Field sign. Positive or negative value. 1113 1 N X(1) Spaces
Blank value = positive
WN-MTH-IN-DFR 1114 3 N 9(3) Zeros
Number of months elapsed in deferment
LD-FOR-BEG
Date current forbearance began 1117 10 A/N MM/DD/CCYY Spaces
LD-FOR-END 1127 10 A/N MM/DD/CCYY Spaces
Date current forbearance ends
Field sign. Positive or negative value. 1137 1 N X(1) Spaces
Blank value = positive
WN-DAY-FOR-RMN 1138 4 N 9(4) Zeros
Number of days remaining in forbearance
LC-FOR-TYP 1142 2 A/N X(2) Spaces
Forbearance type code
WX-FOR-TYP 1144 20 A/N X(20) Spaces
Text description for forbearance type code
63
Field sign. Positive or negative value. 1164 1 N X(1) Spaces
Blank value = positive
WN-MTH-IN-FOR 1165 3 N 9(3) Zeros
Number of months elapsed in forbearance
WI-INI-FOR-APL 1168 1 A/N 'Y' Initial Spaces
Indicates initial forbearance applied forbearance applied
during this period within month
'N' Initial
forbearance not
applied within
month or no
forbearance exists
Field sign. Positive or negative value. 1169 1 N X(1) Spaces
Blank value = positive
WN-SQ-FOR-APL 1170 3 N 9(3) Zeros
Number of subsequent forbearances applied
during this period
WD-SBM-PCL 1173 10 A/N MM/DD/CCYY Spaces
Date pre-claim submitted
WD-INI-CLM-SBM 1183 10 A/N MM/DD/CCYY Spaces
Date initial claim submitted
LC-REA-CLP-LON 1193 2 A/N X(2) Spaces
Reason code for the claim/preclaim
WX-REA-CLP-LON 1195 20 A/N X(20) Spaces
Text description for reason code for the
claim/pre-claim
LD-CLM-REJ-RTN-ACL 1215 10 A/N MM/DD/CCYY Spaces
Claim rejection/return actual posted date
64
WD-INI-CLM-PD 1225 10 A/N MM/DD/CCYY Spaces
Date initial claim paid
Field sign. Positive or negative value. 1235 1 N X(1) Spaces
Blank value = positive
WA-INI-CLM-INT-PD 1236 8 N 99999.99 Zeros
Amount of initial claim interest paid
Field sign. Positive or negative value. 1244 1 N X(1) Spaces
Blank value = positive
WA-INI-CLM-PRI-PD 1245 9 N 999999.99 Zeros
Amount of initial claim principal paid
Field sign. Positive or negative value. 1254 1 N X(1) Spaces
Blank value = positive
WN-DAY-CLM-AGE 1255 4 N 9(4) Zeros
Number of days aging for the claim
WD-RS-INI-CLM 1259 10 A/N MM/DD/CCYY Spaces
Date initial claim resubmitted
WD-SUP-CLM-SBM 1269 10 A/N MM/DD/CCYY Spaces
Date supplemental claim submitted
WD-SUP-CLM-PD 1279 10 A/N MM/DD/CCYY Spaces
Date supplemental claim paid
Field sign. Positive or negative value. 1289 1 N X(1) Spaces
Blank value = positive
WA-SUP-CLM-INT-PD 1290 8 N 99999.99 Zeros
Amount of supplemental claim interest paid
Field sign. Positive or negative value. 1298 1 N X(1) Spaces
Blank value = positive
65
WA-SUP-CLM-PRI-PD 1299 9 N 999999.99 Zeros
Amount of supplemental claim principal paid
Field sign. Positive or negative value. 1308 1 N X(1) Spaces
Blank value = positive
WA-FAT-NSI-AT-PR 1309 8 N 99999.99 Zeros
Amount of borrower interest at time of
purchase
Field sign. Positive or negative value. 1317 1 N X(1) Spaces
Blank value = positive
WA-PRI-AT-PR 1318 9 N 999999.99 Zeros
Amount of principal at time of purchase
Field sign. Positive or negative value. 1327 1 N X(1) Spaces
Blank value = positive
WN-DAY-RPD-AFT-CVN 1328 5 N 9(5) Zeros
Number of days in repayment after
conversion
WD-FAT-APL-LST-CAP 1333 10 A/N MM/DD/CCYY Spaces
Date the last capitalization was applied
Field sign. Positive or negative value. 1343 1 N X(1) Spaces
Blank value = positive
WA-FAT-NSI-LST-CAP 1344 8 N 99999.99 Zeros
Amount last capitalized
Field sign. Positive or negative value. 1352 1 N X(1) Spaces
Blank value = positive
WA-TOT-INT-CAP 1353 8 N 99999.99 Zeros
Total amount of interest capped
Field sign. Positive or negative value. 1361 1 N X(1) Spaces
66
Blank value = positive
WN-DAY-INT-CAP 1362 4 N 9(4) Zeros
Number of days of interest capped
Field sign. Positive or negative value. 1366 1 N X(1) Spaces
Blank value = positive
WA-INT-WOF 1367 8 N 99999.99 Zeros
Amount of interest write-off
Field sign. Positive or negative value. 1375 1 N X(1) Spaces
Blank value = positive
WA-PRI-WOF 1376 9 N 999999.99 Zeros
Amount of principal write-off
WD-LST-BR-PAY 1385 10 A/N MM/DD/CCYY Spaces
Date of the last borrower payment
Field sign. Positive or negative value. 1395 1 N X(1) Spaces
Blank value = positive
WA-LST-PRI-PAY 1396 9 N 999999.99 Zeros
Amount of the last principal payment
Field sign. Positive or negative value. 1405 1 N X(1) Spaces
Blank value = positive
WA-LST-INT-PAY 1406 8 N 99999.99 Zeros
Amount of the last interest payment
WC-REA-ZRO-BAL 1414 2 A/N X(2) Spaces
Zero balance reason code
WX-REA-ZRO-BAL 1416 20 A/N X(20) Spaces
Text description for zero balance reason
code
WC-SUB-REA-ZRO-BAL 1436 2 A/N X(2) Spaces
67
Zero balance sub type reason code
WX-SUB-REA-ZRO-BAL 1438 20 A/N X(20) Spaces
Text description for zero balance sub-type
reason code
WD-ZRO-BAL-APL 1458 10 A/N MM/DD/CCYY Spaces
Date zero balance applied
WD-ZRO-BAL-EFF 1468 10 A/N MM/DD/CCYY Spaces
Date zero balance effective
Field sign. Positive or negative value. 1478 1 N X(1) Spaces
Blank value = positive
WN-DAY-DLQ-ISL 1479 4 N 9(4) Zeros
Number of days of delinquent installment
WD-DLQ-DCO-ISL 1483 10 A/N MM/DD/CCYY Spaces
Date condition occurred - delinquency for
installment
Field sign. Positive or negative value. 1493 1 N X(1) Spaces
Blank value = positive
WN-DAY-DLQ-INT 1494 4 N 9(4) Zeros
Number of days of delinquency interest
WD-DLQ-DCO-INT 1498 10 A/N MM/DD/CCYY Spaces
Date condition occurred - delinquency for
interest
XX-XXX-XXX 0000 2 A/N X(2) Spaces
Loan life cycle status code
WX-LON-STA 1510 10 A/N MM/DD/CCYY Spaces
Text description decoded for loan life
68
cycle status code
XX-XXX-SUB-STA 1520 2 A/N X(2) Spaces
Loan life cycle sub status code
WX-LON-SUB-STA 1522 12 A/N X(12) Spaces
Text description decoded for loan life
cycle sub-status code
Field sign. Positive or negative value. 1534 1 N X(1) Spaces
Blank value = positive
WN-RPS-TRM-RMN 1535 3 N 9(3) Zeros
Remaining loan repayment term
Field sign. Positive or negative value. 1538 1 N X(1) Spaces
Blank value = positive
WA-CUR-ISL 1539 8 N 99999.99 Zeros
Current installment amount
WD-XPC-POF 1547 10 A/N MM/DD/CCYY Spaces
Expected payoff date
Field sign. Positive or negative value. 1557 1 N X(1) Spaces
Blank value = positive
WN-DAY-RPD-RMN 1558 5 N 9(5) Zeros
Number of days remaining in repayment
IM-OWN-SHO 1563 20 A/N X(20) Spaces
Institution short name
IF-OWN-PRN 1583 8 A/N X(8) Spaces
Owner parent identifier
WM-OWN-PRN-SHO 1591 20 A/N X(20) Spaces
Super owner short name
69
IF-BND-ISS 1611 8 A/N X(8) Spaces
Owner bond issue identifier
LF-CUR-POR 1619 20 A/N X(20) Spaces
Current portfolio assigned by secondary
market
LD-OWN-EFF-SR 1639 10 A/N MM/DD/CCYY Spaces
Ownership Effective Start Date
II-TX-BND 1649 1 A/N 'Y' Bond issue Spaces
Taxable bond indicator taxable
'N' Bond issue is
not taxable
ID-LON-SLE 1650 10 A/N MM/DD/CCYY Spaces
Date the Loan was Sold
IF-SLL-OWN 1660 8 A/N X(8) Spaces
Seller's Owner ID Code
IC-OWN-DOM-ST 1668 2 A/N X(2) Spaces
Owner's State code
WC-ITR-TYP-1 1670 2 A/N X(2) Spaces
Interest type code 1
WC-ITR-TYP-2 1672 2 A/N X(2) Spaces
Interest type code 2
WC-ITR-TYP-3 1674 2 A/N X(2) Spaces
Interest type code 3
WC-ITR-TYP-4 1676 2 A/N X(2) Spaces
Interest type code 4
WX-ITR-TYP-1 1678 20 A/N X(20) Spaces
Text description for interest type code 1
70
WX-ITR-TYP-2 1698 20 A/N X(20) Spaces
Text description for interest type code 2
WX-ITR-TYP-3 1718 20 A/N X(20) Spaces
Text description for interest type code 3
WX-ITR-TYP-4 1738 20 A/N X(20) Spaces
Text description for interest type code 4
WD-ITR-EFF-BEG-1 1758 10 A/N MM/DD/CCYY Spaces
Effective begin date for interest type 1
WD-ITR-EFF-BEG-2 1768 10 A/N MM/DD/CCYY Spaces
Effective begin date for interest type 2
WD-ITR-EFF-BEG-3 1778 10 A/N MM/DD/CCYY Spaces
Effective begin date for interest type 3
WD-ITR-EFF-BEG-4 1788 10 A/N MM/DD/CCYY Spaces
Effective begin date for interest type 4
WD-ITR-EFF-END-1 1798 10 A/N MM/DD/CCYY Spaces
Effective end date for interest type code 1
WD-ITR-EFF-END-2 1808 10 A/N MM/DD/CCYY Spaces
Effective end date for interest type code 2
WD-ITR-EFF-END-3 1818 10 A/N MM/DD/CCYY Spaces
Effective end date for interest type code 3
WD-ITR-EFF-END-4 1828 10 A/N MM/DD/CCYY Spaces
Effective end date for interest type code 4
WD-ITR-APL-1 1838 10 A/N MM/DD/CCYY Spaces
Application date for interest type code 1
WD-ITR-APL-2 1848 10 A/N MM/DD/CCYY Spaces
Application date for interest type code 2
71
WD-ITR-APL-3 1858 10 A/N MM/DD/CCYY Spaces
Application date for interest type code 3
WD-ITR-APL-4 1868 10 A/N MM/DD/CCYY Spaces
Application date for interest type code 4
Field sign. Positive or negative value. 1878 1 N X(1) Spaces
Blank value = positive
WR-ITR-1 1879 6 N 99.999 Zeros
Interest rate for interest type code 1
Field sign. Positive or negative value. 1885 1 N X(1) Spaces
Blank value = positive
WR-ITR-2 1886 6 N 99.999 Zeros
Interest rate for interest type code 2
Field sign. Positive or negative value. 1892 1 N X(1) Spaces
Blank value = positive
WR-ITR-3
Interest rate for interest type code 3 1893 6 N 99.999 Zeros
Field sign. Positive or negative value. 1899 1 N X(1) Spaces
Blank value = positive
WR-ITR-4 1900 6 N 99.999 Zeros
Interest rate for interest type code 4
WI-SPC-ITR-1 1906 1 A/N X(01) Spaces
Special interest indicator for interest
type code 1
WI-SPC-ITR-2 1907 1 A/N X(01) Spaces
Special interest indicator for interest
type code 2
WI-SPC-ITR-3 1908 1 A/N X(01) Spaces
Special interest indicator for interest
72
type code 3
WI-SPC-ITR-4 1909 1 A/N X(01) Spaces
Special interest rate eligibility for
interest type code 4
XX-XXX-SIN-1 1910 1 A/N X(1) Spaces
Subsidized interest eligibility code for
interest type code 1
XX-XXX-SIN-2 1911 1 A/N X(1) Spaces
Subsidized interest eligibility code for
interest type code 2
XX-XXX-SIN-3 1912 1 A/N X(1) Spaces
Subsidized interest eligibility code for
interest type code 3
XX-XXX-SIN-4 1913 1 A/N X(1) Spaces
Subsidized interest eligibility code for
interest type code 4
WX-ELG-SIN-1 1914 20 A/N X(20) Spaces
Text description for subsidized interest
eligibility code 1
WX-ELG-SIN-2 1934 20 A/N X(20) Spaces
Text description for subsidized interest
eligibility code 2
WX-ELG-SIN-3 1954 20 A/N X(20) Spaces
Text description for subsidized interest
eligibility code 3
WX-ELG-SIN-4 1974 20 A/N X(20) Spaces
Text description for subsidized interest
eligibility code 4
73
Field sign. Positive or negative value. 1994 1 N X(1) Spaces
Blank value = positive
WN-PAY-RPD 1995 3 N 9(3) Zeros
WD-FNL-DMD-BR 1998 10 A/N MM/DD/CCYY Spaces
Unused
WD-FNL-DMD-COS 2008 10 A/N MM/DD/CCYY Spaces
Unused
WF-POR-AGE-LN-1 2018 3 A/N X(3) Spaces
Identifies the portfolio aging line
WF-POR-AGE-LN-2 2021 3 A/N X(3) Spaces
Identifies the portfolio aging line
WF-POR-RPT-LN-1 2024 3 A/N X(3) Spaces
Identifier / name of PCR/PAR report lines
WF-POR-RPT-LN-2 2027 3 A/N X(3) Spaces
Identifier / name of PCR/PAR report line
WF-POR-RPT-LN-3 2030 3 A/N X(3) Spaces
Identifier / name of PCR/PAR report line
WF-P0R-RPT-LN-4 2033 3 A/N X(3) Spaces
Identifier / name of PCR/PAR report line
WF-POR-RPT-LN-5 2036 3 A/N X(3) Spaces
Identifier / name of PCR/PAR report line
WF-POR-TME-LN 2039 3 A/N X(3) Spaces
Identifies the portfolio time line
WD-MR50-CRT 2042 10 A/N MM/DD/CCYY Spaces
Creation date for this record
LC-LIT-STA 2052 2 A/N 'C' Canceled Spaces
74
Litigation status code 'D' Default Claim
'E' Judgement
Received
'G' Garnishment
'B' Bankruptcy
'R' Referred
'S' Sent claim
'V' Out of State
LD-LIT-BEG 2054 10 A/N MM/DD/CCYY Spaces
Date litigation began
WI-NEW-LON 2064 1 A/N X(01) Spaces
New loan indicator
WI-LON-1-OWN-MR50 2065 1 A/N X(01) Spaces
Earliest owner for reporting period
WF-TIR-PCE-LN35 2066 3 A/N X(01) Spaces
Tier price
Field sign. Positive or negative value. 2069 1 N X(1) Spaces
Blank value = positive
LA-LON-AMT-GTR 2070 9 N 999999.99 Zeros
Amount guaranteed
XX-XXX-GTR 2079 10 A/N MM/DD/CCYY Spaces
Date guaranteed
Field sign. Positive or negative value. 2089 1 N X(1) Spaces
Blank value = positive
WN-MTH-GRC-RMN 2090 3 N 9(3) Zeros
Number of months remaining in grace
Field sign. Positive or negative value. 2093 1 N X(1) Spaces
Blank value = positive
75
WN-MTH-DFR-RMN 2094 3 N 9(3) Zeros
Number of months remaining in deferment
Field sign. Positive or negative value. 2097 1 N X(1) Spaces
Blank value = positive
WN-MTH-FOR-RMN 2098 3 N 9(3) Zeros
Number of months remaining in forbearance
Field sign. Positive or negative value. 2101 1 N X(1) Spaces
Blank value = positive
WN-MTH-ENR-RMN 2102 3 N 9(3) Zeros
Number of months remaining in enrollment
Field sign. Positive or negative value. 2105 1 N X(1) Spaces
Blank value = positive
WN-MTH-RPD-RMN 2106 3 N 9(3) Zeros
Number of months remaining in repayment
Field sign. Positive or negative value. 2109 1 N X(1) Spaces
Blank value = positive
WN-MTH-ZRO-ELP 2110 3 N 9(3) Zeros
Number of months elapsed in zero balance
Field sign. Positive or negative value. 2113 1 N X(1) Spaces
Blank value = positive
WN-MTH-GRC-ELP 2114 3 N 9(3) Zeros
Number of months elapsed in grace
Field sign. Positive or negative value. 2117 1 N X(1) Spaces
Blank value = positive
76
WN-MTH-ENR-ELP 2118 3 N 9(3) Zeros
Number of months elapsed in enrollment
Field sign. Positive or negative value. 2121 1 N X(1) Spaces
Blank value = positive
WN-MTH-LIT-ELP 2122 3 N 9(3) Zeros
Number of months elapsed in litigation
LC-RPD-SLE 2125 1 A/N X(1) Spaces
Code for whether a loan is to be sold, not
sold, or already sold at repayment
WX-RPD-SLE 2126 20 A/N X(20) Spaces
Text description for Code for whether a loan
is to be sold, not sold, or already sold at
repayment
LC-ST-BR-RSD-APL 2146 2 A/N X(2) Spaces
Code for the borrower's state of residence at
time of application.
Field sign. Positive or negative value. 2148 1 N X(1) Spaces
Blank value = positive
WA-LON-SLE-TRF-PRI 2149 9 N 999999.99 Zeros
Amount of Principal Transferred at the last
sale
Field sign. Positive or negative value. 2158 1 N X(1) Spaces
Blank value = positive
WA-LON-SLE-TRF-INT 2159 9 N 999999.99 Zeros
Amount of Interest Transferred at the last
sale
WA-SUB-STA-RPT 2168 2 A/N X(2) Spaces
Loan Sub-status used for reporting
77
WC-REA-ZRO-NEW 2170 2 A/N X(2) Spaces
A new attribute to report zero balance reason
code not due to write-off
WX-REA-ZRO-NEW 2172 20 A/N X(20) Spaces
Text description of the new attribute to
report zero balance reason not due to write-
off
WC-SUB-REA-ZRO-NEW 2192 2 A/N X(2) Spaces
A new attribute to report zero balance sub-
reason code not due to write-off
WX-SUB-REA-ZRO-NEW 2194 20 A/N X(20) Spaces
Text description for a new attribute to
report zero balance sub-reason code not due
to write-off
WD-ZRO-BAL-APL-NEW 2214 10 A/N X(10) Spaces
A new attribute for date zero balance applied
not due to write-off
WD-ZRO-BAL-EFF-NEW 2224 10 A/N X(10) Spaces
A new attribute for date zero balance
effective not due to write-off
DC-ADR-EML 2234 1 A/N X(1) Spaces
E-mail address type code
DD-VER-ADR-EML 2235 10 A/N X(10) Spaces
Date e-mail address verified
DI-VLD-ADR-EML 2245 1 A/N X(1) Spaces
Validity indicator for this e-mail address
WX-ADR-EML-L 2246 4 9(4) Zeros
Length of E-mail address text
78
WX-ADR-EML-T 2250 75 A/N X(75) Spaces
E-mail address text
LC-MPN-TYP 2325 1 A/N X(1) Spaces
Code for master prom note application type
LD-MPN-EXP 2326 10 A/N X(10) Spaces
Date master prom note expires
LC-MPN-SRL-LON 2336 1 A/N X(1) Spaces
Code for type of master prom note
LC-MPN-REV-REA 2337 2 N X(2) Spaces
Master prom note revocation reason
LF-ORG-RGN 2339 8 N X(8) Spaces
Origination reason
XX-XXX-ALT 2347 17 N X(17) Spaces
Alternate identifier of a loan
AN-SEQ-COM-LN-APL 2364 4 N 9(4) Zeros
Sequence for a Commomnline application
Filler 2368 37 A/N X(37) Spaces
Total record length: 2404
79
EXHIBIT D TO NOTE PURCHASE AGREEMENT
MONTHLY REPORT TRANSACTION DETAIL
BF-SSN 1 9 N X(9) Spaces
Borrower Social Security Number
LN-SEQ 10 4 N S9(4) Zeroes
Loan sequence number
LN-FAT-SEQ 14 4 N S9(4) Zeroes
Numeric sequence of financial activity
transaction
LC-FAT-REV-REA 18 1 A/N X(1) Spaces
Encoded value for the reversal reason
WX-FAT-REV-REA 19 20 A/N X(20) Spaces
Text description for reversal reason
XX-XXX-XXX 00 00 A/N MM/DD/CCYY Spaces
Date financial activity transaction applied
LD-FAT-PST 49 10 A/N MM/DD/CCYY Spaces
Date financial activity transaction posted
LD-FAT-EFF 59 10 A/N MM/DD/CCYY Spaces
Date financial activity transaction effect
LD-FAT-DPS 69 10 A/N MM/DD/CCYY Spaces
Date financial activity transaction deposited
LC-CSH-ADV 79 1 A/N X(1) Spaces
Financial Activity transaction cash/adv code
WX-CSH-ADV 80 20 A/N X(20) Spaces
Text description for financial cash/adv code
LD-STA-LON90 100 10 A/N MM/DD/CCYY Spaces
Status date of this LON90
LC-STA-LON90 110 1 A/N X(1) Spaces
Status code of this XXX00
XX-XXX-XXX00 111 20 A/N X(20) Spaces
Text description for status code of this
LON90
Field Sign for LA-FAT-PCL-FEE 131 1 N X(1) Spaces
(Positive if blank)
LA-FAT-PCL-FEE 132 8 N 99999.99 Zeroes
Amount of preclaim fee financial activity
transaction
Field Sign for XX-XXX-XXX 000 0 N X(1) Spaces
(Positive if blank)
XX-XXX-XXX 000 0 N 99999.99 Zeroes
Amount non-subsidized borrower interest
financial activity transaction
Field Sign for LA-FAT-LTE-FEE 149 1 N X(1) Spaces
(Positive if blank)
LA-FAT-LTE-FEE 150 8 N 99999.99 Zeroes
Amount of late fee financial activity transaction
Field sign for LA-FAT-ILG-PRI 158 1 N X(1) Spaces
(Positive if blank)
LA-FAT-ILG-PRI 159 9 N 999999.99 Zeroes
Amount of ineligible principal financial
activity transaction
Field Sign for LA-FAT-CUR-PRI 168 1 N X(1) Spaces
81
(Positive if blank)
LA-FAT-CUR-PRI 169 9 N 999999.99 Zeroes
Amount of current principal financial
activity transaction
PC-FAT-TYP 178 2 A/N X(2) Spaces
Financial activity transaction type code
WX-FAT-TYP 180 20 A/N X(20) Spaces
Text description for financial activity
transaction type code
PC-FAT-SUB-TYP 200 2 A/N X(2) Spaces
Financial activity transaction subtype code
WX-FAT-SUB-TYP 202 20 A/N X(20) Spaces
Text description for financial activity
transaction subtype code
Field Sign for XX-XXX-XXX-XXX 000 0 N X(1) Spaces
(Positive if blank)
XX-XXX-XXX-XXX 000 0 N 99999.99 Zeroes
Amount of non-subsidized interest accrual
WD-RPT-MTH-BEG 231 10 A/N MM/DD/CCYY Spaces
First day of reporting month
WD-RPT-MTH-END 241 10 A/N MM/DD/CCYY Spaces
Last day of reporting month
WX-FIN-ATY-RPT-LN 251 3 A/N X(3) Spaces
Financial activity transaction report line
text
LI-FAT-RAP 254 1 A/N X(1) Spaces
Indicates this is the reapplied financial
activity of a prior, now inactive financial
82
activity transaction
IF-OWN 255 8 A/N X(8) Spaces
Owner code
IF-BND-ISS 263 8 A/N X(8) Spaces
Owner bond issue identifier
IC-LON-PGM 271 6 A/N X(6) Spaces
Current loan program being displayed
Filler 277 50 A/N X(50) Spaces
Total record length: 326
83
EXHIBIT E TO NOTE PURCHASE AGREEMENT
WEEKLY ORIGINATION TRANSMISSION FILE DATA ELEMENTS
I. STUDENT INFO
STUSSN $9. /* SOCIAL SECURITY NUMBER */
AN_SEQ 4. /* APPLICATION SEQUENCE NUMBER */
SLAST $30. /* LAST NAME */
SFIRST $13. /* FIRST NAME */
XXXX $1. /* MIDDLE INITIAL */
SDOB MMDDYY10. /* DATE OF BIRTH */
SUSSTA $1. /* U.S. CITIZENSHIP INDICATOR */
SALREG $10. /* ALIEN REGISTRATION */
II. APPLICANT 1 INFORMATION
DM_PRS_L $30. /* APPLICANT LAST NAME */
DM_PRS_1 $12. /* APPLICANT FIRST NAME */
DM_PRS_M $1. /* APPLICANT MID INITIAL */
BF_SSN $9. /* APPLICANT SOCIAL SECURITY NUM */
DD_BRT MMDDYY10. /* APPLICANT DATE OF BIRTH */
LC_REL_T $2. /* APPLICANT RELATION TO XXXX */
AA_SAL_S 7. /* APPLICANT ANNUAL INCOME */
OTHRINCM 8. /* APPLICANT OTHER ANNUAL INCOME */
III. APPLICANT 2 INFORMATION (IF APPLICABLE)
ALAST $30. /* APPLICANT LAST NAME */
AFIRST $12. /* APPLICANT FIRST NAME */
AMID $1. /* APPLICANT MID INITIAL */
LF_EDS $9. /* APPLICANT SOCIAL SECURITY NUM */
ADOB MMDDYY10. /* APPLICANT DATE OF BIRTH */
AMANNINC 8. /* APPLICANT ANNUAL INCOME */
AMOANINC 8. /* APPLICANT OTHER ANNUAL INCOME */
IV. LOAN INFORMATION
AD_LON10 MMDDYY10. /* LOAN TERM BEGIN DATE */
AD_LON_T MMDDYY10. /* LOAN TERM END DATE */
AD_GRD_X MMDDYY10. /* EXPECTED GRADUATION DATE */
AC_ACA_G $2. /* STUDENT GRADE LEVEL */
AC_STU_S $1. /* ENROLLMENT STATUS */
AD_PNT_P MMDDYY10. /* P-NOTE GENERATION DATE */
AC_ITR_T $1. /* INTEREST RATE TYPE GUARANTOR */
AR_GTR 9.3 /* INTEREST RATE GUARANTOR */
AC_ORG_P $1. /* ORIGINATION STATUS */
AF_DOE_S $8. /* SCHOOL CODE */
AX_SCL_B $2. /* SCHOOL BRANCH ID */
AF_DOE_L $8. /* LENDER CODE */
AF_LON_A $17. /* COMMONLINE UNIQUE IDENTIFIER */
DISB1 MMDDYY10. /* RECOMMENDED DISBURSEMENT DATE 1 */
LA_DSB1 8.2 /* DISBURSEMENT AMOUNT 1 */
DISBORG1 8.2 /* ORIGINATION FEE 1 */
NTDISB1 8.2 /* NET DISBURSEMENT AMOUNT 1 */
ADISB1 MMDDYY10. /* ACTUAL DISBURSEMENT DATE 1 */
DISB2 MMDDYY10. /* RECOMMENDED DISBURSEMENT DATE 2 */
LA_DSB2 8.2 /* DISBURSEMENT AMOUNT 2 */
IV. LOAN INFORMATION (CONT.)
DISBORG2 8.2 /* ORIGINATION FEE 2 */
NTDISB2 8.2 /* NET DISBURSEMENT AMOUNT 2 */
ADISB2 MMDDYY10. /* ACTUAL DISBURSEMENT DATE 2 */
DISB3 MMDDYY10. /* RECOMMENDED DISBURSEMENT DATE 3 */
LA_DSB3 8.2 /* DISBURSEMENT AMOUNT 3 */
DISBORG3 8.2 /* ORIGINATION FEE 3 */
NTDISB3 8.2 /* NET DISBURSEMENT AMOUNT 3 */
ADISB3 MMDDYY10. /* ACTUAL DISBURSEMENT DATE 3 */
DISB4 MMDDYY10. /* RECOMMENDED DISBURSEMENT DATE 4 */
LA_DSB4 8.2 /* DISBURSEMENT AMOUNT 4 */
DISBORG4 8.2 /* ORIGINATION FEE 4 */
NTDISB4 8.2 /* NET DISBURSEMENT AMOUNT 4 */
ADISB4 MMDDYY10. /* ACTUAL DISBURSEMENT DATE 4 */
AA_REQ_7 8. /* SCHOOL CERTIFIED AMOUNT */
AD_CRT_A MMDDYY10. /* DATE RECORD CREATED */
AC_APL_1 $2. /* REJECT CODE */
AC_APL_3 $2. /* SUSPEND CODE */
AF_CRD_R $4. /* CREDIT SCORE */
AF_FIL $10. /* REFERENCE NUMBER */
IC_LON_P $6. /* LOAN PROGRAM */
AD_LON_G MMDDYY10. /* DATE LOAN CREATED */
AD_ORG_P MMDDYY10. /* PROCESS DATE */
AR_INC_A 9. /* DEBT TO INCOME ANALYSIS */
AC_DFR_R $1. /* REPAYMENT OPTION */
LN_SEQ 4. /* LOAN SERVICING SEQUENCE NUMBER */
LONBEG MMDDYYYY /* LOAN PERIOD START - SCHOOL */
LONEND MMDDYYYY /* LOAN PERIOD END - SCHOOL */
LOANAMT 9.2 /* ACTIVE LOAN AMOUNT */
V. CANCELLATION CODES FOR ANTICIPATED AND ACTUAL DISBURSEMENTS
CANCDE1 $1. /* CANCELLATION CODES DISB 1 */
CANCDE2 $1. /* CANCELLATION CODES DISB 2 */
CANCDE3 $1. /* CANCELLATION CODES DISB 3 */
CANCDE4 $1. /* CANCELLATION CODES DISB 4 */
VI. ACTIVE DISBURSEMENT ROSTER DATES
RSPRT1 MMDDYY10. /* ROSTER DATE 1 */
RSPRT2 MMDDYY10. /* ROSTER DATE 2 */
RSPRT3 MMDDYY10. /* ROSTER DATE 3 */
RSPRT4 MMDDYY10. /* ROSTER DATE 4 */
85
FIRST AMENDMENT TO AMENDED AND RESTATED NOTE PURCHASE AGREEMENT
This First Amendment to Amended and Restated Note Purchase Agreement
(this "Amendment"), dated as of June 15, 2002, is by and between BANK ONE,
NATIONAL ASSOCIATION ("Bank One"), a national banking association organized
under the laws of the United States and having its principal place of business
at 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000, and THE
FIRST MARBLEHEAD
CORPORATION ("FMC"), a Delaware corporation with its principal place of business
at 00 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000.
WITNESSETH
WHEREAS, FMC and Bank One have entered into a certain Amended and
Restated Note Purchase Agreement dated as of May 1, 2002, with respect to
purchase of the loans described therein (the "NPA"); and
WHEREAS, FMC and Bank One have agreed to modify the NPA with respect to
eligibility of certain loans to be purchased thereunder.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto hereby agree as follows:
1. AMENDMENTS TO DEFINITIONS.
The first sentence of the definition of "Seasoned Loan" is amended as
follows:
"Seasoned Loan" means an EDUCATION ONE Loan as of ten (10) days after
the disbursement on the EDUCATION ONE Loan but shall exclude any loan disbursed
by paper check if the paper check has not yet been paid by the drawee.
2. EFFECTIVENESS OF AMENDMENT.
This amendment shall apply solely to purchases under the Amended and Restated
Note Purchase Agreement that are consummated prior to July 1, 2002. Thereafter,
this amendment shall be of no further force and effect.
In all other respects the Note Purchase Agreement is hereby ratified
and confirmed.
1
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 BANK ONE, NATIONAL
CORPORATION ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxx Xxxxx Xxxxx
--------------------------- --------------------------
Print Name Xxxxx X. Xxxxxxxxx Print Name Xxxx Xxxxx Xxxxx
-------------------- ------------------
Title Secretary Title Vice President
------------------------- -------------------------
2
EXTENSION AGREEMENT
This Extension Agreement ("Agreement") is entered into by and among
Bank One, National Association, ("Bank One"), The
First Marblehead Corporation,
a Delaware Corporation ("FMC"), and The Education Resources Institute, Inc.
("XXXX"), a Massachusetts not-for-profit corporation, and amends the Education
One Loan Program Agreements (as hereinafter defined). This Agreement is dated as
of November 1, 2002.
WITNESSES
WHEREAS, FMC and Bank One have entered into that certain Amended and
Restated Note Purchase Agreement dated as of May 1, 2002 (the "NPA"); and
WHEREAS, Bank One and XXXX have entered into that certain Amended and
Restated Guaranty Agreement dated as of April 18, 2002 and effective as of the
Conversion Date (as defined therein) (the "Guaranty Agreement"); and
WHEREAS, Bank One and XXXX have entered into that certain Amended and
Restated Loan Origination Agreement dated as of May 1, 2002 (the "LOA"); and
WHEREAS, the NPA, Guaranty Agreement and LOA are hereinafter referred
to as the "Education One Loan Program Agreements."
NOW THEREFORE, in consideration of these presents and the covenants
contained herein, the parties hereto hereby agree as follows:
1. NPA EXTENSION.
(a) The term of the NPA is hereby extended by amending the second
paragraph of Section 10.01 to read as follows:
"Provided that the Guaranty Agreement remains in effect, this Agreement
shall remain in full force and effect to and including April 30, 2007,
and thereafter shall renew for additional one year terms unless either
party gives written notice of termination at least 60 days prior to the
then-effective expiration date."
(b) The first clause in the last sentence of section 2.01 is amended
to read:
"For the first six (6) years of this Agreement,"
2. EXTENSION OF GUARANTY AGREEMENT. XXXX and Bank One agree that the Guaranty
Agreement is hereby extended by amending the first sentence of Section 8.12
to read:
1
"The initial term of this Agreement shall commence on the Conversion
Date, and shall continue through April 30, 2007."
3. LOA. Bank One and XXXX agree that LOA requires no further amendment, as
it is coterminous with the Guaranty Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed by their duly authorized officers as of the date above first
written.
BANK ONE, NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxx Xxxxx
-----------------------------------
Its: Vice President
THE EDUCATION RESOURCES INSTITUTE, INC.
By: /s/ Xxxxxxxx X. X'Xxxxx
-----------------------------------
Its: President
THE
FIRST MARBLEHEAD CORPORATION
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Its: President
2
