EXHIBIT 10.6
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
THIRD AMENDMENT TO PROGRAM AGREEMENTS (BAGEL)
This Third Amendment to Program Agreements ("Third Amendment") amends
the Program Agreements, as defined below, entered into by and among Bank of
America, National Association ("Program Lender"), The First Marblehead
Corporation ("FMC"), The Education Resources Institute, Inc. ("XXXX"), and U.S.
Bank, N.A. (f/k/a State Street Bank and Trust Company) ("U.S. Bank"). This Third
Amendment is dated as of January 15, 2003.
DEFINITIONS
"Bank of America XXXX Programs" means the Bank of America XXXX Alternative Loan
Program (ALP), the Bank of America XXXX Professional Education Program (PEP) and
the Bank of America XXXX ISLP Program.
"Bank of America XXXX ISLP Program" means the Bank of America International
Student Loan Program Undergraduate and Graduate Loan Programs, the Bank of
America ISLP Medical Select Loan Program, and the Bank of America ISLP Offshore
Medical Loan Program.
"Deposit and Security Agreement" means that certain agreement bearing that name
entered into by and among Program Lender, FMC, XXXX, and U.S. Bank dated as of
April 30, 2001, as amended.
"Guaranty Agreement" means that certain agreement bearing that name entered into
by and between Program Lender and XXXX dated as of April 30, 2001, as amended.
"Loan Origination Agreement" means that certain agreement bearing that name
entered into between Program Lender and XXXX dated as of April 30, 2001, as
amended.
"Note Purchase Agreement" means that certain agreement bearing that name by and
between FMC and Program Lender dated as of April 30, 2001, as amended.
"Program Agreements" means the Deposit and Security Agreement, the Guaranty
Agreement, the Loan Origination Agreement, the Note Purchase Agreement, and the
Umbrella Agreement, all as heretofore amended, and including all Exhibits and
Schedules thereto, including, without limitation, the Program Guidelines.
"Umbrella Agreement" means the agreement bearing that name by and between FMC
and Program Lender dated as of April 30, 2001, as amended.
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I. GUARANTY AGREEMENT. In the Guaranty Agreement,
1. The definition of "Program" is amended to include the
Bank of America XXXX ISLP Programs and the term "Loans"
is amended to include loans made under the Bank of
America XXXX ISLP Programs.
2. Exhibit K to the Guaranty Agreement is amended to add
Schedule 3.3 attached hereto for the Bank of America
XXXX ISLP Programs.
3. Exhibit M is amended by adding the forms of
Application/Promissory Note attached hereto as Exhibit
M.
4. The Program Guidelines are amended by adding the ISLP
Loan Program Underwriting and Origination Guidelines
(Undergraduate and Graduate), the ISLP Offshore Medical
Underwriting and Origination Guidelines, and the ISLP
Medical Select Underwriting and Origination Guidelines
attached hereto as Exhibit A.
II. LOAN ORIGINATION AGREEMENT. In the Loan Origination Agreement
1. The definition of "Program" is amended to include the
Bank of America XXXX ISLP Programs and the term "Loans"
is amended to include loans made under the Bank of
America XXXX ISLP Programs.
III. NOTE PURCHASE AGREEMENT. In the Note Purchase Agreement,
1. The "Product Specifications" are amended by adding the
ISLP Loan Program Underwriting and Origination
Guidelines (Undergraduate and Graduate), the ISLP
Offshore Medical Underwriting and Origination
Guidelines, and the ISLP Medical Select Underwriting and
Origination Guidelines attached hereto as Exhibit A.
2. The definition of "Program" is amended to include the
Bank of America XXXX ISLP Programs.
3. The definition of "Bank of America Conforming Loan" is
amended to include those loans made under the Bank of
America XXXX ISLP Programs that (a) conform to the
requirements of the Product Specifications at the time
the loans were made, (b) are serviced by the Servicer
(as defined in the Note Purchase Agreement) in
accordance with the Product Specifications, and (c) are
covered by and subject to all the benefits of the
Guaranty Agreement.
4. The definition of Seasoned Loan is amended and restated
as set forth in Exhibit B attached hereto.
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5. Section 2.04 is amended and restated as set forth in
Schedule 2.04 attached hereto.
6. Sections 5.02, 5.04, 8.01 and 8.02 are amended and
restated as set forth in Exhibit C hereto. Said
amendments are shown in "blackline" form in Exhibit C
hereto.
IV. DEPOSIT AND SECURITY AGREEMENT.
1. The State Street Bank and Trust Company has changed its
name. Accordingly, all references to State Street Bank
and Trust Company are hereby amended and replaced with
U.S. Bank, N.A., formerly known as State Street Bank and
Trust Company.
2. The Deposit and Security Agreement shall apply to all
"Loans" guaranteed under the Guaranty Agreement in
accordance with the definition of "Loans" as amended
herein.
V. SERVICING AGREEMENTS.
1. The obligations of FMC under this Amendment are
conditioned upon FMC and PHEAA entering into a
Supplement to Alternative Servicing Agreement
substantially in the form attached hereto as Exhibit E.
VI. In all other respects, the Program Agreements are hereby ratified and
confirmed and shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first written above.
THE EDUCATION RESOURCES INSTITUTE, INC.
By: /s/ Xxxxxxxx X. X'Xxxxx
------------------------------------
Its: President
BANK OF AMERICA, N.A.
By: /s/ Xxxxx Xxxxxx
------------------------------------
Its: Senior Vice President
THE FIRST MARBLEHEAD CORPORATION
By: /s/ Xxxxx Xxxxx
------------------------------------
Its: President
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U.S. BANK, N.A. (f/k/a STATE STREET
BANK AND TRUST COMPANY)
By: /s/ [Illegible]
------------------------------------
Its: Vice President
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TABLE OF EXHIBITS
NOTE: First Marblehead Corporation is not a party the following Exhibits A, B
and/or M and/or or to Schedule 3.3. Pursuant to Item 601 of Regulation
S-K, such exhibits are not being filed herewith.
Exhibit A Program Guidelines
Schedule 3.3 Guaranty Fees and Loan Pricing
Exhibit B Revised Definition of Seasoned Loan in the Note Purchase
Agreement - filed herewith.
Exhibit C Revised Sections 5.02, 5.04, 8.01 and 8.02 of the Note
Purchase Agreement - filed herewith.
Exhibit M Promissory Notes
Schedule 2.04 Revised Section 2.04 of the Note Purchase Agreement - filed
herewith.
Exhibit E Supplement to Alternative Servicing Agreement - filed
herewith.
EXHIBIT B
"Seasoned Loan" means a Bank of America Conforming Loan made by
Program Lender that becomes "seasoned" in accordance with the following
criteria:
(a) The following Bank of America Conforming Loans will be deemed to
be "Seasoned Loans" immediately upon final disbursement:
(i) prepGATE loans (as defined in the Product Specifications);
(b) The following Bank of America Conforming Loans will be deemed to be
"Seasoned Loans" twenty-four (24) months following final disbursement:
(i) Bank of America Undergraduate Education Loans (as defined in the
Product Specifications) made to Borrowers in their first (1st), second
(2nd) or third (3rd) academic year;
(c) The following Bank of America Conforming Loans will be deemed to be
"Seasoned Loans" upon the later of (i) the scheduled graduation date or (ii) the
deferment end date (i.e., at the beginning of the grace period before scheduled
repayment begins):
(i) Bank of America Undergraduate Education Loans, Bank of America
XXXX ALP Loans, and Bank of America ISLP Undergraduate Loans (as
defined in the Product Specifications) made to Borrowers in
their fourth (4th) or later academic year; and
(ii) Bank of America XXXX PEP Loans, Bank of America ISLP Graduate
Loans, Bank of America ISLP Offshore Medical Loans, and Bank of
America ISLP MedSelect Loans (as defined in the Product
Specifications).
(d) Notwithstanding subparagraphs (a) through (c), above, (i) any Bank of
America Conforming Loan will be deemed to be a "Seasoned Loan" immediately upon
the occurrence of any of the following events:
A. the Bank of America Conforming Loan enters repayment because the
Borrower ceases to be enrolled at the Participating Institution or
in an approved residency period in the case of a loan to a Borrower
in a medical or dental degree program, as and to the extent required
by the Product Specifications; or
B. a "Guaranty Event" (as defined in the Guaranty Agreement) occurs
with respect to such Bank of America Conforming Loan; or
C. any Bank of America Conforming Loan that is a Bank of America
Undergraduate Education Loan, Bank of America XXXX ALP Loan or Bank
of America ISLP Undergraduate Loan (as defined in the Product
Specifications) and is made to Borrowers in their third (3rd)
academic year that has a scheduled graduation date that occurs prior
to twenty-four (24) months following the final disbursement date of
the loan.
EXHIBIT C
V. REPRESENTATIONS AND WARRANTIES.
5.02. REPRESENTATIONS AND WARRANTIES OF PROGRAM LENDER.
Program Lender makes the following representations and warranties as of
the date hereof, as of the date of each sale of Seasoned Loans to FMC or a
Purchaser Trust, and as of any other date specified below:
(a) Program Lender represents and warrants that it is, and shall
continue to be, a national banking association duly organized, validly existing
and in good standing under the laws of the United States, and has the requisite
authority to conduct all activities and consummate all transactions contemplated
by this Agreement.
(b) Program Lender has all requisite power and authority to execute,
deliver and perform its obligations under this Agreement, and has duly
authorized the execution, delivery and performance of, and has duly executed and
delivered this Agreement, and this Agreement, together with each Pool Supplement
executed pursuant hereto, constitutes the legal, valid and binding obligation of
Program Lender enforceable against Program Lender in accordance with its terms,
except as such enforceability may be limited by (i) receivership,
conservatorship and supervisory powers of bank regulatory agencies generally,
(ii) applicable bankruptcy, receivership, conservatorship, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally from time to time in effect, or (iii) general principles of equity.
(c) Neither the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby, nor the fulfillment of or
compliance with the terms and conditions hereof, will conflict with, or result
in a breach of, or constitute a default under, any of
the terms, conditions or provisions of any legal restriction or any agreement or
instrument to which Program Lender is now a party or by which it is bound.
(d) Each of the Seasoned Loans originated by Program Lender and sold
to FMC or a Purchaser Trust pursuant to any Securitization Transaction (i) is
the valid, binding and enforceable obligation of the borrower executing the
same, and of any cosigner thereto, enforceable against each borrower, any
student maker named therein, and any cosigner thereunder in accordance with its
terms except as enforceability may be affected by bankruptcy, insolvency,
moratorium or other similar laws affecting the rights of creditors generally and
by equitable principles, and (ii) is covered by and entitled to the benefits of
the Guaranty Agreement.
(e) Each Seasoned Loan originated by Program Lender sold hereunder
and any accompanying notices and disclosures conforms to all applicable state
and federal laws, rules and regulations and each Seasoned 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. The origination of each Seasoned Loan was conducted in accordance
with the Program Guidelines and all applicable state and federal laws including,
without limitation, the Equal Credit Opportunity Act. No application to Program
Lender for a Bank of America Conforming Loan shall be, or has been, rejected,
approved or discouraged by Program Lender on the basis of race, sex, color,
religion, national origin, age (other than laws limiting the capacity to enter a
binding contract) or marital status, the fact that all or a part of the
borrower's or co-signer's, income derives from any public assistance program, or
the fact that the applicant, borrower or any co-signer has, in good faith,
exercised any right under the Consumer Credit Protection Act.
(f) Each Seasoned Loan originated by Program Lender sold to FMC or
Purchaser Trust is in compliance with any applicable usury laws at the time made
and of the time of assignment to FMC or a Purchaser Trust.
(g) There is no defense to payment, counterclaim or setoff with
respect to any Seasoned Loan sold under this Agreement. There is no action
before any state or federal court, administrative or regulatory body, pending or
threatened against Program Lender in which an adverse result would have a
material adverse effect upon the validity or enforceability of Seasoned Loans
originated by Program Lender and included in the Pool.
(h) Each and every Seasoned Loan sold pursuant to this Agreement is
owned by Program Lender free and clear of any liens, claims or demands of any
person, and Program Lender has the absolute right to transfer the same to FMC or
a Purchaser Trust.
(i) With respect to each Bank of America Note originated by Program
Lender and included in the Pool: (A) the terms thereof have not been impaired,
waived, altered or modified in any respect, except pursuant to written
forbearance agreements in accordance with the requirements of and in the terms
set forth in the Program Guidelines, and (B) such Bank of America Note has been
serviced at all times in accordance with the Program Guidelines.
5.04. REMEDY FOR BREACH OF REPRESENTATIONS AND WARRANTIES.
In the event any representation or warranty made by Program Lender
pursuant to Section 5.02 above shall prove to be inaccurate or incomplete as of
the date when made, Program Lender shall have the right (but not the obligation)
to elect by written notice to FMC to be given by Program Lender no later than
sixty (60) days after receipt of written notice from FMC of such alleged breach
to repurchase the affected Seasoned 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
of America Note and the Origination Records relating thereto to Program Lender,
duly endorsed or assigned to Program Lender or to such person as Program Lender
may direct, in any such case, without recourse to FMC or the Purchaser Trust.
Whether or not Program Lender exercises its right of Program Lender shall
indemnify FMC, any Purchaser Trust and any fiduciary under the Trust Agreement
pursuant to Article VIII of this Agreement.
VIII. INDEMNIFICATION.
8.01. BY PROGRAM LENDER
Regardless of the exercise or nonexercise of the repurchase right under
Section 5.04, Program Lender shall indemnify and hold harmless FMC, each
Purchaser Trust and any fiduciary under any Trust Indenture, and any officer,
director, employee or agent of any of the foregoing (herein, collectively,
referred to as the "Indemnified Persons") against any and all liabilities,
losses, costs, damages and expenses, including, without limitation, attorneys'
fees and legal expenses and sums paid, liabilities incurred or expenses paid or
incurred in connection with settling claims, suits or judgments or obtaining or
attempting to obtain release from liability under the Trust Indenture or this
Agreement which such Indemnified Person may sustain or incur by reason of any
breach of any representation, warranty or covenant of Program Lender contained
herein. This section shall survive any termination of this Agreement.
8.02. By FMC.
FMC or the applicable Purchaser Trust as the case may be, shall
indemnify and hold harmless Program Lender and any officer, director, employee
or agent of Program Lender
(herein, collectively referred to as "Indemnified Persons") against any and all
liabilities, losses, costs damages, and expenses, including, without limitation,
attorneys' fees and legal expenses and sums paid, liabilities incurred or
expenses paid or incurred in connection with settling claims or judgments or
obtaining or attempting to obtain release from liability, which such Indemnified
Person may sustain or incur by reason of any breach of any representation,
warranty or covenant of FMC or the applicable Purchaser Trust, as the case may
be, contained herein. This section shall survive any termination of this
Agreement.
SCHEDULE 2.04
2.04. MINIMUM PURCHASE PRICE. (a). On the Purchase Date, Program
Lender shall assign and convey all Seasoned Loans originated by Program Lender
included in the Pool to FMC, or a Purchaser Trust, in consideration of receipt
of the Minimum Purchase Price therefor. For purposes of this Agreement the term
"Minimum Purchase Price" shall mean the sum of the consideration outlined in
this Section 2.04(a) and 2.04(b). With respect to all Bank of America Conforming
Loans that are not Bank of America XXXX ISLP Program Loans, Minimum Purchase
Price shall mean the sum of:
(1) The unpaid principal amount of the Seasoned Loans in question
[**]; plus
(2) all accrued and unpaid interest on such Seasoned Loans, [**];
plus
(3) [**], the amount of any guaranty fee paid by Program Lender to
[**] If the terms of the Guaranty Agreement call for any
Guaranty Fees to be paid to [**]; plus
(4) a partial reimbursement for [**] costs incurred and paid by
Program Lender with respect to [**], such reimbursement to equal
[**].
(b). On the Purchase Date, Program Lender shall assign and convey all
Bank of America XXXX ISLP Program Loans originated by Program Lender included in
the Pool to FMC, or a Purchaser Trust, in consideration of receipt of the
Minimum Purchase Price therefor. With respect to each of the Bank of America
XXXX ISLP Program Loans to be purchased, Minimum Purchase Price shall mean the
sum of the following amounts:
(1) The unpaid principal amount [**] of the Seasoned Loans in the
Pool; plus
(2) All accrued and unpaid interest on such Bank of America XXXX
ISLP Program Loans, [**]; plus
(3) The amount of any Guaranty Fees paid by Program Lender to XXXX
[**]; plus
(4) A marketing fee and loan premium of [**].
EXHIBIT E
SUPPLEMENT TO
ALTERNATIVE SERVICING AGREEMENT
BETWEEN
PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY
AND
THE FIRST MARBLEHEAD CORPORATION
THIS SUPPLEMENT is made this ______ day of ___________, by and between
the Pennsylvania Higher Education Assistance Agency, a public corporation and
governmental instrumentality organized under the laws of the Commonwealth of
Pennsylvania, having an address at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000 (herein called the "Servicer"), and The First Marblehead
Corporation, having an address at 00 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx
00000 ("FMC"). Capitalized terms used herein without definition have the
meanings given to them in the Alternative Servicing Agreement between the
Servicer and FMC dated as of October 16, 2001, as amended by a First Amendment
to Alternative Servicing Agreement dated as of November 1, 2001 and a Second
Amendment to Alternative Servicing Agreement dated as of November 1, 2001
("Agreement").
WHEREAS, the Servicer and FMC entered the Agreement, pursuant to which
the Parties agreed to designate from time to time additional XXXX-guaranteed
loan programs to be covered by the Agreement; and,
WHEREAS, the Servicer, Special Purpose Entity ("SPE") and FMC wish to
designate Bank of America XXXX ISLP Program loans purchased by FMC or an SPE as
XXXX-guaranteed loans covered by the Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained in
this Supplement and the fees to be paid by FMC to the Servicer under the
Agreement, and intending to be legally bound, the Parties to this Supplement do
hereby agree as follows:
1. The Servicer and FMC designate loans made under the Bank of America XXXX
ISLP Programs (Undergraduate, Graduate, Offshore Medical, and Medical Select)
and purchased by FMC or an SPE, as loans covered by the Agreement.
2. The definition of "Program Guidelines" in Section 1.9 of the Agreement
is hereby amended to add the Underwriting, Origination and Loan Term Guidelines
for Bank of America's ISLP Loan Program (Undergraduate and Graduate), the ISLP
Medical Select Program, and the ISLP Offshore Medical Program, all as approved
and adopted by XXXX.
IN WITNESS WHEREOF, the Parties hereto have caused this instrument to
be duly executed as of the month, day and the year first above written.
PENNSYLVANIA HIGHER THE FIRST MARBLEHEAD
EDUCATION ASSISTANCE AGENCY CORPORATION
By: By:
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Name: Name:
---------------------------- ----------------------------
Title: Title:
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Date Date
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Federal Tax Identification Number
Approved as to form and legality
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PHEAA Chief Counsel
