EXHIBIT 10.20
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
MARKETING SERVICES AGREEMENT
THIS MARKETING SERVICES AGREEMENT ("Agreement") is made and entered into
by and among THE EDUCATION RESOURCES INSTITUTE, INC. ("XXXX"), a private
non-profit corporation organized under Chapter 180 of the Massachusetts General
Laws, with its principal place of business at 000 Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, XXXX MARKETING SERVICES, INC. ("TMSI"), a Delaware
corporation and wholly-owned subsidiary of First Marblehead Education Resources
("FMER") having a principal place of business at 00 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx 00000. This Agreement is dated as of and effective as of July 1,
2001.
RECITALS
WHEREAS, XXXX is a not-for-profit private loan guaranty company with
substantial experience developing and executing education loan programs made by
private lenders and guaranteed by XXXX; and
WHEREAS, XXXX desires TMSI to assist XXXX in the marketing of
XXXX-guaranteed loan programs, subject to the terms and conditions set forth
herein; and
WHEREAS, TMSI is willing to provide such marketing assistance to XXXX,
subject to the terms and conditions set forth herein; and
NOW THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged and intending to be
legally bound, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the meaning
specified:
1.01 "AAA" has the meaning set forth in Section 10.11.
1.02 "AFFILIATE" means, with respect to any Person, any other Person
controlling, controlled by or under common control with, such Person. As used in
this definition, "CONTROL" (including, with its correlative meanings,
"CONTROLLING," "CONTROLLED BY" and "UNDER COMMON CONTROL WITH") means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of that Person, whether through the
ownership of voting securities, by contract or otherwise.
1
1.03 "AGREEMENT" has the meaning set forth in the preamble hereto.
1.04 "BUDGET ARBITRATION" has the meaning set forth in Section 9.02(e)(iv).
1.05 "CONFIDENTIAL INFORMATION" has the meaning set forth in Section 7.01.
1.06 "COST CENTER" has the meaning set forth in Section 9.02.
1.07 "FMER" has the meaning set forth in the preamble hereto.
1.08 "FMC" means The First Marblehead Corporation.
1.09 "GAAP" means generally accepted accounting principles, consistently
applied.
1.10 "GOVERNMENTAL AUTHORITY" means any federal, state, municipal, local,
territorial or other governmental department, commission, board, bureau, agency,
regulatory authority, instrumentality, judicial or administrative body, domestic
or foreign.
1.11 "INDEMNIFIABLE LOSS" has the meaning set forth in Section 8.01(a)
1.12 "INDEMNIFYING PARTY" has the meaning set forth in Section 8.01(d).
1.13 "INDEMNITEE" has the meaning set forth in Section 8.01(c).
1.14 "LAWS" means all laws, statutes, rules, regulations, ordinances and other
pronouncements having the effect of law of the United States, any foreign
country or any domestic or foreign state, county, city or other political
subdivision of any Governmental Authority.
1.15 "MARKETING DOCUMENTS" has the meaning set forth in Section 2.02(a).
1.16 "MARKETING PLAN" has the meaning set forth in Section 2.02(a).
1.17 "MARKETING SERVICES" has the meaning set forth in Section 2.02.
1.18 "PERSON" means any individual, partnership, corporation, association,
trust, limited liability company, joint venture, unincorporated organization and
any government, governmental department or agency or political subdivision
thereof.
1.19 "PRIVATE LABEL PROGRAM" means any arrangement (other than a XXXX-Branded
Program) whereby XXXX has agreed or will agree with FMC (pursuant to a certain
Master Loan Guaranty Agreement between XXXX and FMC, dated as of February 2,
2001) to originate and/or guaranty loans, if such program is designated as a
"private label program" in the written agreement making such program an FMC
Purchase Program (as defined in the Master Loan Guaranty Agreement).
1.20 "PROGRAM" means any XXXX-Branded Program and any Private Label Program.
2
1.21 "PROGRAM GUIDELINES" means the Program Guidelines adopted by XXXX and
used as the basis for determining whether, when and to what extent to make and
guarantee Program Loans, as well as to determine the servicing standards for
each Program Loan.
1.22 "PROGRAM LENDER" means each financial institution or other creditor which
agrees with XXXX to originate Program Loans.
1.23 "PROGRAM LOAN" means an extension of credit pursuant to a Program, made
in accordance with the applicable Program Guidelines.
1.24 "PROGRAM LOAN DOCUMENTS" means the documents used by XXXX and/or any
Program Lender to originate Program Loans.
1.25 "SERVICING INFORMATION" has the meaning set forth in that certain Master
Servicing Agreement of even date herewith between XXXX and First Marblehead
Education Resources, Inc., the sole shareholder of TMSI.
1.26 "XXXX" has the meaning set forth in the preamble hereto.
1.27 "XXXX-BRANDED PROGRAM" means the following arrangements whereby XXXX
agrees to originate and/or guarantee loans: XXXX Alternative Loan Program; XXXX
Continuing Education Loan Program; XXXX Professional Education Plan Loan
Program; XXXX Professional Education CR Loan Program; XXXX Parent Loan for
Elementary and Secondary Education Program; XXXX Degreed Undergraduate
Alternative Loan Program; XXXX Allied Health Education Loan Program; XXXX
International Health Education Loan Program; XXXX Chiroloan Program; XXXX
Creditline Loan Program; XXXX MedFund Loan Program; XXXX MedChoice Loan Program;
XXXX MedAdvantage Loan Program; SABA Medical School Loan Program; Engineer
Assistance Loan Program; Graduate Assistance Loan Program; Master of Business
Administration Assistance Loan Program; Medical Degree Assistance Loan Program;
Nurse Assistance Loan Program; National Keystone Extra Loan Program; XXXX Rehab
Loan Program; and any other XXXX loan program which the parties mutually agree
in writing to add to this list.
1.28 "TERM" has the meaning set forth in Section 11.01.
1.29 "THIRD PARTY CLAIM" has the meaning set forth in Section 8.02(a).
1.30 "TMSI" has the meaning in the preamble hereto.
1.31 "TMSI PERMITS" has the meaning set forth in Section 5.04.
1.32 "TRANSFERRED COSTS" has the meaning set forth in Section 9.02.
3
ARTICLE II
MARKETING OF PROGRAMS
2.01 APPOINTMENT OF TMSI AS TERI'S AGENT. XXXX hereby appoints TMSI to act as
its marketing agent, and TMSI accepts such appointment, to provide the services
described in Section 2.02, below.
2.02 MARKETING SERVICES. During the Term, TMSI shall perform the services
described in this Section 2.02 ("Marketing Services").
(a) (i) Subject to the applicable requirements of Law, TMSI
shall develop and evaluate the data, documents and analysis, to formulate and
implement a marketing strategy and plan (which shall include a detailed
financial plan) to solicit new and existing Program Lenders to enter into Loan
Origination Agreements and Guarantee Agreements, and to solicit educational
institutions to participate in the Programs (the "MARKETING PLAN"). TMSI shall
also prepare marketing documentation (including, without limitation, brochures,
advertisements, mailings, announcements, and web site content) to be used in
connection with the XXXX-Branded Loans (collectively, the "MARKETING
DOCUMENTS"). XXXX shall assist TMSI, as is necessary and appropriate, in the
development and preparation of the Marketing Plan and Marketing Documents, and
such Marketing Plan and Marketing Documents shall be subject to the prior review
and approval of XXXX.
(ii) TMSI hereby acknowledges that it is in the best interests of all
parties hereto to, at a minimum, maintain the existing volume of business in the
XXXX-Branded programs; therefore, TMSI shall be even-handed and neutral in its
presentations of various program alternatives to new and existing Program
Lenders and will not solicit existing XXXX-Branded Program Lenders for new
programs unless it reasonably believes, after consultation with XXXX, that such
lender will cease utilizing XXXX-Branded programs or materially decrease its
volume in those programs unless offered alternative programs.
(iii) TMSI shall submit the initial Marketing Plan to TERI's President
within thirty (30) days of the execution of this Agreement, and will thereafter
submit revised Marketing Plans annually, at least thirty (30) days prior to the
beginning of the XXXX budget year. XXXX will request reasonable changes (if any)
within thirty (30) days after receiving a Marketing Plan from TMSI. In the event
TMSI rejects the requested changes, it will continue to provide Marketing
Services at the budget requested by XXXX, but will have recourse to arbitration
as provided in Section 10.11 of this Agreement.
(iv) TMSI shall make recommendations to XXXX with respect to the
following (which XXXX, in its sole discretion, shall approve or reject):
(1) changes to the Program Guidelines;
(2) approvals of Program Lenders;
(3) approvals of participating educational institutions;
4
(4) changes to the Marketing Plan and Marketing Documents; and
(5) changes to the Loan Documents.
(b) Following TERI's review and approval of the Marketing Plan
and Marketing Documents, TMSI shall (as agent for XXXX and in TERI's name and on
TERI's behalf):
(i) implement and administer the Marketing Plan;
(ii) oversee and administer the preparation and distribution of all
Marketing Documents;
(iii) distribute Marketing Documents in accordance with the Marketing
Plan.
ARTICLE III
SERVICE XXXX LICENSE
XXXX hereby grants to TMSI the right and license to use the service marks
and trademarks described in EXHIBIT A ATTACHED HERETO, including all
registrations therefor and designs and logos (collectively, the "SERVICE XXXX")
in connection with providing the Marketing Services under this Agreement, and
TMSI shall have the right to use the word "XXXX" in its corporate name, all
subject to the following conditions and limitations. Such license is
non-exclusive as a general matter. The term of this license shall be coextensive
with the term of this Agreement. The parties agree that nothing herein shall
give to TMSI any right, title or interest in and to the Service Xxxx (except
with respect to use in accordance with the terms of this Agreement), that the
Service Xxxx is the sole property of XXXX and that any and all uses of the
Service Xxxx by TMSI and the goodwill pertaining thereto shall inure to the sole
benefit of XXXX. It is expressly agreed and understood that TMSI is not
purchasing or acquiring any right, title or interest in the Service Xxxx. TMSI
agrees that if any rights in the Service Xxxx accrue to TMSI by operation of
law, this Agreement irrevocably assigns such rights to XXXX and grants to XXXX a
power of attorney, coupled with an interest, to execute such instruments as may
be necessary or advisable to confirm such assignment. TMSI agrees to cooperate
with XXXX in perfecting its right, title and interest in the Service Xxxx by
providing written assignment of any rights therein which may have accrued to
TMSI. Except as expressly provided in this Agreement, and except as otherwise
agreed to in writing by XXXX, TMSI will not use the Service Xxxx for any
purposes not related to this Agreement. TMSI will change its corporate name to
delete the word "XXXX" within thirty (30) days after termination of this
Agreement. Any use of the Service Xxxx by TMSI shall be conducted in accordance
with any applicable policies and procedures of XXXX which have been disclosed in
writing to TMSI, and shall be presented in a professional manner, consistent
with the image and use of the Service Xxxx by XXXX. In all events, TMSI may make
any use of the Service Xxxx which has been expressly approved in writing by
XXXX.
5
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF XXXX
XXXX represents and warrants to TMSI as follows:
4.01 ORGANIZATION AND QUALIFICATION. XXXX is duly organized and validly
existing and is in good standing as a nonprofit corporation under the laws of
the Commonwealth of Massachusetts. XXXX has the requisite power and authority
and all necessary governmental approvals to own, lease and operate its
properties and to carry on its business as it is now being conducted. XXXX is
duly qualified or licensed to do business and is in good standing in each
jurisdiction where the character of the properties owned, or leased or operated
by it or the nature of its business makes such qualification or licensing
necessary.
4.02 AUTHORITY.
(a) XXXX has all necessary corporate power and authority to execute
and deliver this Agreement and to perform its obligations under this Agreement.
The execution and delivery of this Agreement by XXXX and the consummation by
XXXX of such transactions have been duly and validly authorized by all necessary
corporate action and no other corporate proceedings on the part of XXXX are
necessary to authorize this Agreement or to perform its obligations under this
Agreement. This Agreement has been duly authorized and validly executed and
delivered by XXXX and constitutes a legal, valid and binding obligation of XXXX,
enforceable against XXXX in accordance with its terms.
(b) The Board of Directors of XXXX has (i) approved this Agreement,
(ii) acting through duly authorized committees, reviewed and analyzed all
information (including, without limitation, advice of counsel) that it has
deemed necessary in order to determine the appropriateness from TERI's point of
view of the transactions contemplated by this Agreement, and (iii) has declared
that this Agreement and the other transactions contemplated by this Agreement
are advisable and in the best interests of XXXX. XXXX shall provide to TMSI a
Clerk's certificate attesting to the relevant board resolutions, the vote
approving each and any board minutes relating to the same.
4.03 501(c)(3) STATUS. No action, suit, proceeding, investigation, audit,
claim or assessment is presently pending or, to the knowledge of XXXX, proposed
with regard to the retention by XXXX of its status as a tax-exempt entity under
Section 501(c)(3) of the Internal Revenue Code.
4.04 CONFLICTING AGREEMENTS. XXXX is not a party to any contract which
purports to restrict or prohibit, in any respect, XXXX from, directly or
indirectly, entering into and performing its obligations under this Agreement.
None of TERI's officers, directors or key employees is a party to any agreement
which, by virtue of such person's relationship with XXXX, restricts in any
respect XXXX from, directly or indirectly, engaging in any of the businesses
contemplated by this Agreement.
4.05 INFORMATION SHARING. XXXX has the legal authority to provide TMSI,
through FMER, its parent corporation, with all information in TMSI's possession
which is necessary or reasonably convenient for TMSI to provide the Marketing
Services. The disclosure of such information by
6
XXXX to TMSI through FMER will not conflict with any contractual or legal
obligation of XXXX not to disclose such information or, to the extent such
disclosure does conflict with any such contractual obligation, XXXX has obtained
the consent of all parties to such contract(s) to such disclosure.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF TMSI
TMSI represents and warrants to XXXX as follows:
5.01 ORGANIZATION AND QUALIFICATION. Except as set forth in Schedule 5.01,
TMSI (i) is duly organized and is validly existing and in good standing under
the laws of the State of Delaware, (ii) has the requisite power and authority
and all necessary governmental approvals to own, lease and operate its
properties and to carry on its business as it is now being conducted, and (iii)
is duly qualified or licensed to do business, and is in good standing, in each
jurisdiction where the character of the properties owned, leased or operated by
it or the nature of its business makes such qualification or licensing
necessary.
5.02 AUTHORITY. TMSI has all the necessary power and authority to execute and
deliver this Agreement and to perform its obligations under this Agreement. The
execution and delivery of this Agreement by TMSI and the performance by TMSI of
its obligations hereunder have been duly and validly authorized by all necessary
corporate action and no other corporate proceedings on the part of TMSI are
necessary to authorize this Agreement or to perform its obligations under this
Agreement. This Agreement has been duly authorized and validly executed and
delivered by TMSI and constitutes a legal, valid and binding obligation of TMSI
enforceable against TMSI in accordance with its terms.
5.03 NO CONFLICTS. The execution and delivery of this Agreement by TMSI does
not, and the performance of this Agreement by TMSI will not:
(a) conflict with or violate any provision of TMSI's certificate of
incorporation or bylaws;
(b) conflict with or violate any Laws applicable to TMSI or by which
any property or asset of TMSI is or may be bound or affected; or
(c) result in any breach of or constitute a default (or an event
which, with or without notice or lapse of time or both, would become a default)
under, or give to others any right of termination, amendment, acceleration or
cancellation of, or result in the creation of an encumbrance on any property or
asset of TMSI under, any contract to which TMSI is a party or by which TMSI or
its assets or properties is or may be bound or affected.
5.04 REQUIRED FILINGS AND CONSENTS. Except as set forth in Schedule 5.04
hereto, the execution and delivery of this Agreement by TMSI do not, and the
performance of this Agreement by TMSI will not, require any consent, approval,
authorization or permit of, or filing with, or notification to, any Governmental
Authority (collectively, the "TMSI Permits").
7
5.05 LITIGATION. There is no claim, action or proceeding pending or, to the
knowledge of TMSI, threatened against TMSI before any court or administrative or
regulatory body that, if adversely determined, individually or in the aggregate,
has resulted or could reasonably be expected to result in an adverse effect on
the performance by TMSI of its obligations under this Agreement. TMSI is not
subject to any outstanding order, writ, injunction or decree which, individually
or in the aggregate, has resulted or could reasonably be expected to result in
an adverse effect on the performance by TMSI of its obligations under this
Agreement.
5.06 CONFLICTING AGREEMENTS. TMSI is not a party to any contract which
purports to restrict or prohibit, in any respect, TMSI from, directly or
indirectly, entering into and performing its obligations under this Agreement.
None of TMSI's officers, directors or key employees is a party to any agreement
which, by virtue of such person's relationship with TMSI, restricts in any
respect TMSI from, directly or indirectly, entering into and performing its
obligations under this Agreement.
ARTICLE VI
ADDITIONAL COVENANTS
6.01 COVENANTS OF XXXX.
(a) MAINTAIN 501(c)(3) STATUS. XXXX shall take all actions (if any)
necessary or appropriate to maintain its status as a tax-exempt organization
pursuant to Section 501(c)(3) of the Internal Revenue Code of the United States.
Such action shall include, without limitation, the maintenance of adequate staff
levels and expertise to supervise the activities of TMSI under this Agreement.
(b) GOVERNMENTAL APPROVALS. XXXX shall maintain all necessary
licenses, registrations, approvals, and governmental authorizations now or in
the future necessary to conduct its business as a loan guaranty agency.
(c) PERFORM GUARANTEE OBLIGATIONS. XXXX shall perform its obligations
under each and every Loan Guarantee Agreement between XXXX and any Program
Lender as currently performed, consistent with existing arrangements and courses
of dealing.
(d) REGULATORY COMMUNICATIONS. XXXX shall promptly forward to TMSI any
notices, demands, reports or other communications from any Governmental
Authority having jurisdiction over XXXX that in any way relate to or could
potentially affect any Program offered by XXXX.
6.02 COVENANTS OF TMSI.
(a) LICENSES AND PERMITS, TMSI shall obtain and maintain all necessary
licenses and permits in order to perform its obligations under this Agreement.
(b) SERVICE PERFORMANCE STANDARDS.
(i) TMSI shall provide the Marketing Services in accordance with the
performance standards set forth in EXHIBIT B ATTACHED HERETO (the
"Performance Standards").
8
The Performance Standards shall be revised annually in connection
with revisions to the Marketing Plan under Section 2.2 hereof.
(ii) TMSI's failure to perform in accordance with the Performance
Standards due to any event covered by Section 10.14(b) of this
Agreement shall not be considered to be a failure for which FMER
shall be responsible under this Section 6.02(b).
(iii) If TMSI fails to meet a Performance Standard, TMSI shall (a)
notify XXXX immediately; (b) investigate and report to XXXX on the
root cause(s) of the failure; (c) describe to XXXX the steps which
TMSI will take to correct the failure; (d) promptly take such
steps; and (e) advise XXXX not less often than weekly as to the
status of such remedial efforts. TMSI will undertake all such
corrective or remedial action at no cost to XXXX.
(iv) TERI's sole remedy for any material failure by TMSI to satisfy the
Performance Standards described in Section 6.02(b)(iv) shall be to
withhold payment for the Marketing Services until such time as
TMSI satisfies the Performance Standards, or to obtain the
Marketing Services from another servicer.
ARTICLE VII
CONFIDENTIALITY
7.01 XXXX and TMSI each acknowledge that in the course of the
operations contemplated by this Agreement, and in the course of communications
relative to this Agreement, it has received and will receive information
concerning the other's finances, business plans, business methods, and the like
that is not generally known in the student loan industry ("Confidential
Information"). Each party will respect and use all reasonable efforts to
maintain the confidentiality of the other's Confidential Information unless and
until such information becomes generally known through no fault of the receiving
party.
7.02 In accordance with the provisions of Title V of the
Xxxxx-Xxxxx-Xxxxxx Act (the "GLB Act") and Federal Reserve Board Regulation P
("Regulation P"), TMSI agrees to respect and protect the security and
confidentiality of any "nonpublic personal information" (as defined in the GLB
Act and Regulation P) it receives from XXXX or FMER including, where applicable,
the restrictions on the re-use and disclosure of such information set forth in
the GLB Act and Regulation P.
7.03 TMSI agrees to use all information it receives from XXXX or FMER
concerning Program loans and borrowers including, without limitation, nonpublic
personal information described in Section 7.02, solely for purposes of providing
the Marketing Services and not to disclose the same to any Person except (i) as
necessary to perform the Services, and (ii) only subject to a confidentiality
agreement. In particular and not by way of limitation, TMSI shall establish
clear policies and procedures to prevent the disclosure of Servicing Information
to FMC and shall cause FMC to conform to such policies. Such policies shall
restrict disclosures to FMC solely to the Delivered Database as defined in the
Database Sale and Supplementation Agreement of even date herewith among XXXX,
TMSI and FMC. The parties anticipate that
9
TMSI will have little or no need for, and limited access to, data regarding
specific loans or Borrowers.
ARTICLE VIII
INDEMNIFICATION
8.01 INDEMNIFICATION.
(a) XXXX will indemnify, defend and hold harmless TMSI from and
against any and all claims, demands or suits (by any person or entity), losses,
liabilities, damages (but excluding any consequential, special, indirect,
punitive or incidental damages, obligations, payments, costs and expenses
(including, without limitation, the costs and expenses of any and all actions,
suits, proceedings, assessments, judgments, settlements and compromises relating
thereto and reasonable attorneys' fees and reasonable disbursements in
connection therewith) to the extent the foregoing are not covered by insurance
(each, an "Indemnifiable Loss"), asserted against TMSI by an unrelated third
party relating to, resulting from or arising out of any breach by XXXX of any
representation, warranty, covenant or agreement (without regard to any
qualifications with respect to materiality contained therein) contained in this
Agreement; PROVIDED, HOWEVER, that in the case of any Indemnifiable Loss arising
under this Section 8.01(a), no amounts shall be due and payable until and unless
the aggregate amount of such Indemnifiable Losses is equal to $50,000 or more
(when aggregated with Indemnifiable Losses under the Master Servicing
Agreement), at which point such indemnification shall relate to all
Indemnifiable Losses.
(b) TMSI will indemnify, defend and hold harmless XXXX from and
against any and all Indemnifiable Losses asserted against XXXX by any unrelated
third party relating to, resulting from or arising out of any breach by TMSI of
any representation, warranty, covenant or agreement contained in this Agreement;
PROVIDED, HOWEVER, that in the case of any Indemnifiable Loss arising under this
Section 8.01(b), no amounts shall be due and payable until and unless the
aggregate amount of such Indemnifiable Losses is equal to $50,000 or more (when
aggregated with Indemnifiable Losses under the Master Servicing Agreement), at
which point such indemnification shall relate to all Indemnifiable Losses.
(c) Any Person entitled to receive indemnification under this
Agreement (an "Indemnitee") having a claim under these indemnification
provisions shall make a good faith effort to recover all losses, damages, costs
and expenses from insurers of such Indemnitee under applicable insurance
policies so as to reduce the amount of any Indemnifiable Loss hereunder. The
amount of any Indemnifiable Loss shall be reduced (i) to the extent that
Indemnitee receives any insurance proceeds with respect to an Indemnifiable Loss
and (ii) to take into account any net tax benefit recognized by the Indemnitee
arising from the recognition of the Indemnifiable Loss and any payment actually
received with respect to an Indemnifiable Loss.
(d) The expiration, termination or extinguishment of any covenant or
agreement shall not affect the parties' obligations under this Section 8.01 if
the Indemnitee provided the person required to provide indemnification under
this Agreement (the "Indemnifying Party") with proper notice of the claim or
event for which indemnification is sought prior to such expiration, termination
or extinguishment.
10
(e) Any claim under this Section 8.01 must be brought within two (2)
years after termination of this Agreement.
(f) The rights and obligations of indemnification under this
Section 8.01 shall not be limited or subject to set-off based on any violation
or alleged violation of any obligation under this Agreement or otherwise,
including but not limited to breach or alleged breach by the Indemnitee of any
representation, warranty, covenant or agreement contained in this Agreement.
8.02 DEFENSE OF CLAIMS.
(a) If any Indemnitee receives notice of the assertion of any claim or
of the commencement of any claim, action, or proceeding made or brought by any
person who is not a party to this Agreement or any Affiliate of a party to this
Agreement (a "Third Party Claim") with respect to which indemnification is to be
sought from an Indemnifying Party, the Indemnitee will give such Indemnifying
Party reasonably prompt written notice thereof, but in any event not later than
ten (10) days after the Indemnitee's receipt of notice of such Third Party
Claim. Such notice shall describe the nature of the Third Party Claim in
reasonable detail and will indicate the estimated amount, if practicable, of the
Indemnifiable Loss that has been or may be sustained by the Indemnitee. The
Indemnifying Party will have the right to participate in or, by giving written
notice to the Indemnitee, to elect to assume the defense of any Third Party
Claim at such Indemnifying Party's own expense and by such Indemnifying Party's
own counsel, and the Indemnitee will cooperate in good faith in such defense at
such Indemnitee's own expense.
(b) If within ten (10) days after an Indemnitee provides written
notice to the Indemnifying Party of any Third Party Claim, the Indemnitee
receives written notice from the Indemnifying Party that such Indemnifying Party
has elected to assume the defense of such Third Party Claim as provided in the
last sentence of Section 8.02(a), the Indemnifying Party will not be liable for
any legal expenses subsequently incurred by the Indemnitee in connection with
the defense thereof; PROVIDED, HOWEVER, that if the Indemnifying Party fails to
take reasonable steps necessary to defend diligently such Third Party Claim
within twenty (20) days after receiving notice from the Indemnitee that the
Indemnitee believes the Indemnifying Party has failed to take such steps, the
Indemnitee may assume its own defense, and the Indemnifying Party will be liable
for all reasonable expenses thereof. Without the prior written consent of the
Indemnitee, the Indemnifying Party will not enter into any settlement of any
Third Party Claim which would lead to liability or create any financial or other
obligation on the part of the Indemnitee for which the Indemnitee is not
entitled to indemnification hereunder. If a firm offer is made to settle a Third
Party Claim without leading to liability or the creation of a financial or other
obligation on the part of the Indemnitee for which the Indemnitee is not
entitled to indemnification hereunder, the Indemnifying Party may accept and
agree to such offer, and shall give written notice to the Indemnitee to that
effect.
(c) [Intentionally omitted.]
(d) If the amount of any Indemnifiable Loss, at any time subsequent to
the making of an indemnity payment in respect thereof, is reduced by recovery,
settlement or otherwise under or pursuant to any insurance coverage, or pursuant
to any claim, recovery, settlement or payment
11
by or against any other entity, the amount of such reduction, less any costs,
expenses or premiums incurred in connection therewith (together with interest
thereon from the date of payment thereof at the prime rate then in effect of
Fleet Bank, N.A. or its successor), will promptly be repaid by the Indemnitee to
the Indemnifying Party. Upon making any indemnity payment, the Indemnifying
Party will, to the extent of such indemnity payment, be subrogated to all rights
of the Indemnitee against any third party in respect of the Indemnifiable Loss
to which the indemnity payment relates; PROVIDED, HOWEVER, that (i) the
Indemnifying Party will then be in compliance with its obligations under this
Agreement in respect of such Indemnifiable Loss and (ii) until the Indemnitee
recovers full payment of its Indemnifiable Loss, any and all claims of the
Indemnifying Party against any such third party on account of said indemnity
payment is hereby made expressly subordinated and subjected in right of payment
to the Indemnitee's rights against such third party. Without limiting the
generality or effect of any other provision hereof, each such Indemnitee and
Indemnifying Party will duly execute upon request all instruments reasonably
necessary to evidence and perfect the above-described subrogation and
subordination rights. Nothing in this Section 8.02(d) shall be construed to
require any party hereto to obtain or maintain any insurance coverage.
(e) Subject to Section 8.01(a) and 8.01(b) hereof, a failure to give
timely notice as provided in this Section 8.02 will not affect the rights or
obligations of any party hereunder except if, and only to the extent that, as a
result of such failure, the party which was entitled to receive such notice was
actually prejudiced as a result of such failure.
ARTICLE IX
PAYMENT
9.01 PAYMENT. In consideration for the Marketing Services, XXXX agrees
to pay, in U.S. dollars, an annual fee equal to TMSI's Transferred Costs. TMSI
shall xxxx XXXX monthly for its actual Transferred Costs. XXXX shall pay TMSI
for such Transferred Costs as billed, within seven (7) days of receipt of such
xxxx. The aggregate Transferred Costs billed by TMSI to XXXX during any budget
year shall not exceed the amounts reflected in the annual budget as approved by
XXXX and as adjusted under Section 9.02(e). XXXX shall also have the right as
often as it shall reasonably deem necessary, to audit, at its expense, all books
and records of TMSI relating to Transferred Costs billed by TMSI to XXXX.
9.02 TRANSFERRED COSTS. For purposes of this Article VIII, "Transferred
Costs" shall be computed in accordance with GAAP, utilizing the following
procedure:
(a) TMSI shall establish "Cost Centers" that record all costs of
providing services under this Agreement.
(b) TMSI shall record expenses attributable to each Cost Center
utilizing the same accounting categories and principles as previously used by
XXXX to record expenses, including, as appropriate, the following:
(i) Marketing
(ii) Human Resources/Office Management
(iii) Finance
12
(iv) Executive
TMSI shall not include depreciation expense for the Cost Centers.
(c) During the term of this Agreement, TMSI shall only provide
Marketing Services to XXXX in support of the Programs, and shall not provide
similar services or any other services to any other party.
(d) The parties contemplate that all Cost Centers will incur employee
expense only with respect to former XXXX employees, as an initial matter. That
is, the Cost Centers will be staffed with former XXXX employees. Over time,
employment levels may increase or decrease in each Cost Center, and such
increases or decreases in expenses shall be reflected in Transferred Costs.
(e) TERI's Board of Directors will have a right of reasonable review
and approval of the annual budget for Transferred Costs. Budgets will be
reviewed and established in accordance with the following procedure:
(i) INITIAL BUDGET. Within 15 days after execution of this
Agreement, TMSI will propose any revisions to the existing 2001 XXXX
budget for the Cost Centers. TERI's Board of Directors shall appoint a
budget review committee (the "Budget Committee") within the same period.
TERI's chief executive officer, or, in the case of proposed revisions in
excess of [**] percent ([**]%) of the current budget, the Budget
Committee, shall approve or deny all or part of TMSI's request within
thirty (30) days of receipt. The chief executive officers of TMSI and
XXXX shall meet promptly thereafter to resolve any differences. If any
dispute is not so resolved, TMSI shall perform the Services at a price
established in accordance with the decision of the Budget Committee, but
shall have the right to demand Budget Arbitration as provided in Section
10.11 below, by written notice given within sixty (60) days after receipt
of the Budget Committee's decision.
(ii) ANNUAL BUDGET. At least 45 days before the end of any
budget year, TMSI will present a proposed budget to XXXX. The Budget
Committee shall approve or deny all or part of TMSI's request within
thirty (30) days of receipt. The chief executive officers of TMSI and
XXXX shall meet promptly thereafter to resolve any differences. If any
dispute is not so resolved, TMSI shall perform the Services at a price
established in accordance with the decision of the Budget Committee, but
shall have the right to demand Budget Arbitration as provided in Section
10.11 below, by written notice given within sixty (60) days after receipt
of the Budget Committee's decision.
(iii) BUDGET ADJUSTMENT.
TMSI may apply to TERI's chief executive officer for budget
adjustments based upon changes in the Marketing Plan as compared
to the assumptions used in the then-current budget. Adjustments
approved without review by the Budget Committee shall not exceed,
individually or in the aggregate, [**] percent ([**]%) of the
current budget per budget year. If a requested adjustment is
denied or
13
reduced in an amount greater than [**] percent ([**]%) of the
requested adjustment, TMSI may demand Budget Arbitration by
written notice given within thirty (30) days after receipt of such
denial or reduction.
(iv) BUDGET ARBITRATION. As used herein, "Budget Arbitration"
refers to arbitration conducted in accordance with Section 10.11 hereof.
In any such arbitration, TMSI shall be entitled to recover any additional
reasonable costs (above what is allowed in the disputed budget item) of
labor, materials, equipment and third-party services reasonably necessary
to perform the services in accordance with the Performance Standards. Any
arbitration award increasing compensation to TMSI shall be effective as
of the beginning of the budget period to which such award relates.
ARTICLE X
MISCELLANEOUS
10.01 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each such counterpart being deemed to be an original instrument,
and all such counterparts shall together constitute the same agreement.
10.02 GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN
ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE
WITH THE LAW OF THE COMMONWEALTH OF MASSACHUSETTS WITHOUT REGARD TO CONFLICT OF
LAW PRINCIPLES.
10.03 NOTICES. All notices given by any party to the other under this
Agreement shall be in writing and shall be delivered personally, by electronic
record, as herein defined, by overnight courier, prepaid, or 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 the other party given as provided herein. Such notices shall be
effective on the date received. Notice shall be given as follows:
If to XXXX:
Xxxxxx Xxxxxx
President and Chief Executive Officer
The Education Resources Institute
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Phone: 000-000-0000
Fax: 000-000-0000
E-Mail: xxxxxx@xxxx.xxx
With a copy to:
Xxxxxxx X. Xxxxx, Esq.
Hill & Xxxxxx, A Professional Corporation
Xxx Xxxxxxxxxxxxx Xxxxx
00
Xxxxxx, XX 00000-0000
Phone: 000 000-0000
Fax: 000 000-0000
E-Mail: xxxxxx@xxxxxxxxxx.xxx
If to TMSI:
Xxxxx Xxxxx
The First Marblehead Corporation
00 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
E-Mail: xxxxxx@xxxxxxxx.xxx
With a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxx Xxxxxx
Xxx Xxxxxxxx Xxxxxx
Xxxxxxxx, Xx 00000
Phone: 000-000-0000
Fax: 000-000-0000
E-Mail: xxxxxxxx@xxxxxxxxxxxx.xxx
10.04 ENTIRE AGREEMENT. This Agreement (including the Exhibits and
Schedules to this Agreement) constitutes the entire agreement among the parties
with respect to the subject matter hereof and supersedes all other prior
agreements, understandings, representations and warranties, both written and
oral, among the parties, with respect to the subject matter of this Agreement.
10.05 NO THIRD PARTY BENEFICIARIES. This Agreement is not intended to
confer upon any person other than the parties to this Agreement any rights or
remedies under this Agreement.
10.06 AMENDMENT. This Agreement may be amended by the parties to this
Agreement only by a writing executed by their duly authorized representatives
with the requisite formalities.
10.07 WAIVER. Any party to this Agreement may (a) extend the time for
the performance of any obligation or other act of any other party to this
Agreement, (b) waive any inaccuracy in the representations and warranties
contained in this Agreement or in any document delivered pursuant to this
Agreement, and (c) waive compliance with any agreement or condition contained in
this Agreement. Any such extension or waiver shall be valid only if set forth in
an instrument in writing signed by the party or parties to be bound thereby.
10.08 SEVERABILITY. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions of this Agreement.
If any provision of this Agreement, or the application of that provision to any
person or any circumstance, is invalid or unenforceable, (a) a suitable and
equitable provision shall be substituted for that provision in order to carry
out, so far as may be
15
valid and enforceable, the intent and purpose of the invalid or unenforceable
provision and (b) the remainder of this Agreement and the application of the
provision to other persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of the provision, or the application of
that provision, in any other jurisdiction.
10.09 INTERPRETATION. The headings in this Agreement are for convenience
of reference only, do not constitute part of this Agreement and shall not be
deemed to limit or otherwise affect any of the provisions of this Agreement.
Where a reference in this Agreement is made to a Section, Exhibit or Schedule,
that reference shall be to a Section of or Exhibit or Schedule to this Agreement
unless otherwise indicated. Neither party shall be deemed the drafter of this
Agreement or any of the exhibits hereto, which Agreement and exhibits are the
product of detailed, arms' length negotiations between the parties and their
respective counsel.
10.10 ASSIGNMENT. This Agreement may not be assigned by either party
without the express written consent of the other party, such consent not to be
unreasonably withheld. Any purported assignment in violation of this provision
shall be ineffective and void. The foregoing restriction shall not apply to a
merger, consolidation or other transfer by operation of law, nor to any change
in the equity ownership or control of either party. TMSI shall have the right to
subcontract the Services, subject to TERI's reasonable approval of the financial
and technical capability of the subcontractor to provide the subcontracted
Services. TMSI shall require any subcontractor to agree to the confidentiality
provisions contained in Sections 7.01 and 7.02. No such subcontracting shall
relieve TMSI of its obligations under this Agreement, and any breach of this
Agreement by a subcontractor (including, without limitation, any failure of a
subcontractor to satisfy the Performance Standards) shall be deemed to be a
breach by TMSI.
10.11 ARBITRATION. In the event of any dispute between XXXX and TMSI
relating to the proper determination of Transferred Costs under Section 9.02,
XXXX and TMSI agree that such dispute shall be resolved by means of arbitration
in accordance with the commercial arbitration rules of the American Arbitration
Association ("AAA"), and judgment upon the award rendered by the arbitrator(s)
may be entered in any court of competent jurisdiction. Such arbitration shall
proceed in Boston, Massachusetts and shall be governed by Massachusetts law. In
any dispute between the parties that is subject to arbitration hereunder, where
the aggregate of all claims and the aggregate of all counterclaims each is an
amount less than $250,000, the arbitration shall be heard by one arbitrator to
be selected by mutual agreement of the parties. In the event the parties are
unable to agree on an arbitrator within thirty (30) days, the arbitration shall
be heard by one arbitrator appointed by the AAA. If the aggregate amount of the
claims or counterclaims exceeds $250,000, the arbitration shall be heard by a
panel of three arbitrators, to be selected as follows: XXXX and TMSI shall each
select one arbitrator, and the arbitrators so selected shall select a third
arbitrator by mutual agreement. In the event the arbitrators selected by the
parties are unable to agree on the third arbitrator within thirty (30) days, the
third arbitrator shall be appointed by the AAA. The arbitrator(s) hearing any
arbitration pursuant to this Section 10.11 shall have substantial experience in
the area of consumer loan origination, debt collection and guaranty processing
and claims administration, and shall otherwise be qualified to address the
issues presented competently. The arbitration decision shall be binding upon
XXXX and TMSI. In the event a party, having been given notice and opportunity,
fails or refuses to appear or participate in an arbitration or in any stage of
the arbitration, the proceedings will nevertheless be conducted
16
to conclusion and final award. Any award rendered under such circumstances will
be as valid and enforceable as if both parties had appeared and participated
fully at all stages. Depositions may be taken and other discovery obtained
during such arbitration proceedings to the same extent as authorized in civil
judicial proceedings in the Commonwealth of Massachusetts. The arbitrator(s)
shall be limited to awarding compensatory damages and shall have no authority to
award punitive, exemplary or similar type damages. The prevailing party in the
arbitration proceeding shall be entitled to recover its expenses including the
costs of the arbitration proceeding, expert witness fees and reasonable
attorneys' fees.
10.12 REMEDIES. Subject to the terms of this Agreement, the parties will
be entitled to enforce their rights under this Agreement specifically (without
posting a bond or other security), to recover damages by reason of any breach of
any provision of this Agreement and to exercise all other rights existing in
their favor. The parties hereto agree and acknowledge that money damages may not
be an adequate remedy for any breach of the provisions of this Agreement and
that any party may in its sole discretion apply to any court of law or equity of
competent jurisdiction for specific performance and/or injunctive relief in
order to enforce or prevent any violation of the provisions of this Agreement.
In the event of any dispute involving the terms of this Agreement, the
prevailing party shall be entitled to collect reasonable fees and expenses
incurred by the prevailing party in connection with such dispute from the other
parties to such dispute.
10.13 FURTHER ASSURANCES. On and after the date hereof, each of XXXX and
TMSI shall: (i) cooperate with the other in good faith to give effect to the
terms hereof and execute, acknowledge and deliver all such acknowledgments,
documents and other instruments; and (ii) take such further action as the other
party may reasonably request to enable such party to exercise its rights or
perform its obligations under, or to fully and completely effectuate, the terms,
conditions and intent of this Agreement.
10.14 FORCE MAJEURE AND RESTRICTED PERFORMANCE.
(a) If performance by XXXX of any obligation under this Agreement is
prevented, restricted, delayed or interfered with by reason of labor disputes,
strikes, acts of God, floods, lightning, severe weather, shortages of materials,
rationing, utility or communication failures, failure or delay in receiving
electronic data, earthquakes, war, revolution, civil commotion, acts of public
enemies, blockade, embargo or any Law, or any other act or omission whatsoever,
whether similar or dissimilar to those referred to in this clause, which is or
are beyond the reasonable control of XXXX, XXXX shall provide written notice to
TMSI identifying the cause of the prevention, restriction, delay or interference
and XXXX shall be excused from the performance to the extent of the prevention,
restriction, delay or interference, so long as XXXX is taking reasonable action
to accomplish such performance as promptly as possible under the circumstances.
(b) If performance by TMSI of any service or obligation under this
Agreement is prevented, restricted, delayed or interfered with by reason of
labor disputes, strikes, acts of God, floods, lightning, severe weather,
shortages or materials, rationing, utility or communication failures, failure or
delay in receiving electronic data, earthquakes, war, revolution, civil
commotion, acts of public enemies, blockade, embargo, or any Law, or any other
act or omission
17
whatsoever, whether similar or dissimilar to those referred to in this clause,
which is or are beyond the reasonable control of TMSI, TMSI shall be excused
from the performance to the extent of the prevention, restriction, delay or
interference, so long as it is taking reasonable actions to accomplish such
performance as promptly as possible under the circumstances.
10.15 ELECTRONIC RECORDS AND SIGNATURES. The parties intend that
reasonably reliable electronic records and signatures shall be binding upon the
parties in accordance with the provisions of the Federal Electronic Signatures
in Global and National Commerce Act. The parties agree that records and
signatures transmitted by facsimile when bearing the routing information and
imprints ordinarily provided by such technology, shall constitute binding
records and signatures upon the parties. Either party may, in any facsimile,
expressly rebut the binding effect of such communication, but such exclusion
from this section shall only apply to that particular facsimile transmission.
The parties further agree that a notice under Section 10.3 may be given by
e-mail and shall constitute a writing. The parties further agree that e-mail,
voice mail or other recording of voices shall not constitute an electronic
signature for purposes of the parties' transactions under this Agreement.
Finally, other forms of electronic record and signature may be adopted by the
parties by subsequent agreement from time to time.
ARTICLE 11
TERM AND TERMINATION
11.01 TERM AND TERMINATION. This Agreement shall have a term (the
"Term") of five (5) years, commencing on the date first set forth above. Either
party may renew this Agreement for one, five-year renewal term by delivery of
written notice to the other party not less than sixty (60) days prior to the
expiration date of this Agreement, PROVIDED, HOWEVER, that such renewal shall
not be effective unless:
(i) the renewing party, or in the case of renewal hereof by TMSI, FMER
and FMC, also renews the Master Servicing Agreement; and
(ii) the renewing party, or in the case of renewal hereof by TMSI, FMC
also renews the Master Loan Guaranty Agreement.
11.02 TERMINATION FOR CAUSE.
(a) TERMINATION OF MASTER LOAN GUARANTY AGREEMENT. If the Master Loan
Guaranty Agreement between XXXX and FMC, dated as of February 2, 2001, shall
have been terminated for cause under Section 8.03 thereof, then in the case of
termination of such agreement by FMC, TMSI may terminate this Agreement and in
the case of termination of such agreement by XXXX, then XXXX may terminate this
Agreement. In either case, termination of this Agreement must be by written
notice delivered within thirty (30) days of termination of the Master Loan
Guaranty Agreement.
(b) TERMINATION FOR FAILURE TO CONFORM TO SERVICING STANDARDS. In the
event of a Material Failure of Performance Standards by FMER as defined in
Section 8.02(b)(iv)of the Master Servicing Agreement, XXXX may terminate this
Agreement upon thirty (30) days' written notice.
18
(c) TERMINATION FOR CAUSE BY EITHER PARTY. In the event that either
party shall materially breach its obligations under this Agreement (other than a
breach subject to Section 10.02(b) hereof) and shall fail to cure such breach
within thirty (30) days after written notice and demand for such cure, or in the
event that any representation or warranty of such party contained herein was
materially incorrect when given, then the other party may, upon thirty (30)
days' written notice, terminate this Agreement.
(d) TERMINATION IN THE EVENT OF BANKRUPTCY. In the event that either
party becomes a debtor in any proceeding under the U.S. Bankruptcy Code or in
any similar state insolvency or reorganization proceeding, then this Agreement
shall terminate, at the option of the other party, without further notice
(except where notice is permitted by applicable bankruptcy law without court
approval, in which case the terminating party shall deliver written notice of
termination).
11.03 EFFECT OF TERMINATION. Upon termination of this Agreement by
either party:
(a) Neither party shall be excused from performing any obligation or
paying any monies due or earned prior to the effective date of termination.
(b) The provisions of Sections 8.01, 8.02, and all of Article X shall
remain in full force and effect notwithstanding termination.
(c) In the case of termination by XXXX pursuant to
Section 11.02(b) or 11.02(c), TMSI shall continue to provide Marketing
Services, in conformity with the Performance Standards, and assistance in
transitioning the Marketing Services to a new marketing agent for up to
six (6) months, for consideration at the same rates set forth in Article
IX of this Agreement.
ARTICLE 12
CONDITIONS PRECEDENT
12.01 TO OBLIGATIONS OF TMSI. The obligations of TMSI hereunder are subject to
the occurrence of the following conditions precedent (or the waiver of those
conditions by TMSI):
(a) Issuance to TMSI of the TMSI Permits set forth in Schedules 5.01
and 5.04, which TMSI shall use its best efforts to obtain.
19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above stated.
THE EDUCATION RESOURCES
INSTITUTE, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Print Name: Xxxxxx X. Xxxxxx
----------------------------
Title: President & CEO
---------------------------------
XXXX MARKETING SERVICES, INC.
By: /s/ Xxxxx Xxxxx
------------------------------------
Print Name: Xxxxx X. Xxxxx
----------------------------
Title: President
---------------------------------
20
TABLE OF EXHIBITS
Exhibit A - Service Marks and Trade Marks
Exhibit B - Performance Standards
21
EXHIBIT A
XXXX Xxxxx
THE FEDERALLY REGISTERED TRADEMARKS AND SERVICE MARKS LISTED BELOW.
REGISTRATION DATE OF REGISTRATION RENEWAL
XXXX NO. CLASS FIRST USE DATE DATE
CONNECTED 1,908,878 41 4/10/93 8/1/95 8/1/2000-
8/1/2001
HIGHER EDUCATION 2,035,326 16 4/84 2/4/97 2/4/2002-
INFORMATION CENTER
2/4/2003
HIGHER EDUCATION 2,035,325 42 4/84 2/4/97 2/4/2002-
INFORMATION CENTER
2/4/2003
XXXX 1,487,085 37 8/16/85 5/3/88 Filed
Accepted
1,497,032 36 6/3/86 7/19/88 Lapsed (No
longer used)
THE EDUCATION 1,487,086 36 8/16/85 5/3/88 Filed
RESOURCES INSTITUTE Accepted
THE COMMON LAW TRADEMARKS AND SERVICE MARKS, INCLUDING BUT NOT LIMITED TO:
ALP
CEL
Dual Loan
Health Professional Plan
PEP
PharmD
PLEASE
22
EXHIBIT B
Performance Standards
- Representatives will [**].
- Representatives will [**].
- Representatives will [**].
- [**] throughout the year. [**]
- Brochures will [**].
- The XXXX web site will be maintained with current information that promotes
XXXX-Branded Programs. Any material product enhancement or change will
be made within 5 business days.
The foregoing standards may be revised by mutual agreement concurrent
with the approval of new or revised Marketing Plans under Section 7.02.
23
TABLE OF SCHEDULES
Schedule 5.01 Qualifications, etc.
Schedule 5.04 TMSI Permits
Schedules 5.01 and 5.04
TMSI shall obtain a Small Loan Company License from the
Massachusetts
Division of Banks, pursuant to M.G.L. Chapter 140, sections 96-114A and 209
C.M.R. 12.00 to the extent required to conduct the activities described in this
Agreement. On advice of counsel, TMSI believes the currently planned activities
do not require such a license.
25
