EXHIBIT 10.17
PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY
ALTERNATIVE LOAN SERVICING AGREEMENT FOR THE FIRST MARBLEHEAD CORPORATION
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
ALTERNATIVE SERVICING AGREEMENT
BETWEEN
PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY
AND
THE FIRST MARBLEHEAD CORPORATION
THIS AGREEMENT is made this day of October, 2001, 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.
RECITALS
WHEREAS, the Servicer is in the business of servicing privately insured
alternative student loans and other education loans for lenders; and
WHEREAS, Program Lender (defined below), The Education Resource Institute
("XXXX") and The First Marblehead Corporation (herein called "FMC"), have
created a group of education loan programs, all of which are described in the
Program Guidelines and guaranteed by XXXX ("XXXX Loans); and
WHEREAS, FMC desires to utilize the expertise of the Servicer to service
the XXXX Loans as and when they are purchased by FMC or its designee.
NOW, THEREFORE, in consideration of the mutual promises contained in this
Agreement and the fees to be paid by FMC to the Servicer, and intending to be
legally bound, the parties to this Agreement do hereby agree to the following:
SECTION 1. DEFINITIONS
1.1. "Account" means the Student Loans collectively of an individual
Borrower of a loan.
1.2. "Agreement" means this Alternative Servicing Agreement, including
each schedule provided for herein and each amendment hereafter adopted.
1.3. "Borrower" means an individual who is the maker of a promissory
note and who obtains a Student Loan in accordance with the "Regulations" as set
forth in Section 1.11.
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PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY
ALTERNATIVE LOAN SERVICING AGREEMENT FOR THE FIRST MARBLEHEAD CORPORATION
1.4. "Business Days" means a day of the year other than a Saturday or
Sunday, or a day on which the Servicer or FMC is required or authorized by law
to remain closed, and on which either does remain closed.
1.5. "FMC" means The First Marblehead Corporation in its capacity as
Program Manager and Securitization Sponsor, as defined in the Program
Guidelines, and as a party entitled to Servicing of XXXX Loans under this
Agreement, which rights the parties contemplate will be, with respect to pools
of Student Loans, assigned to Permitted Assignees pursuant to Section 11.4
hereof. FMC shall not actually receive Services nor have liability under this
Agreement unless and until FMC becomes an Owner of Student Loans.
1.6. "Insurer" means The Education Resources Institute, Inc. ("XXXX")
or such other private insurance agencies as the parties may mutually agree upon
from time to time.
1.7. "Owner" means a Permitted Assignee that purchases Student Loans.
1.8. "Permitted Assignee" means an SPE, as defined below, and any
financial institution, bond insurer, guaranty agency, indenture trustee,
lender's collateral agent or other substantially similar party to whom rights
under this agreement are assigned as security in a financing transaction to
which the SPE is a party.
1.9. "Program Guidelines" means the Underwriting, Origination and Loan
Term Guidelines for EDUCATION ONE K-12 Loan Program, EDUCATION ONE Undergraduate
Loan Program, EDUCATION ONE Graduate Loan Program, and EDUCATION ONE Continuing
Education Loan Program, all as approved and adopted by XXXX. The term also
refers to any other loan program guidelines governing loans guaranteed by XXXX
that the parties hereto may designate as covered by this Agreement in a written
supplement to this Agreement.
1.10. "Program Lender" means Bank One, National Association, and such
other lenders making loans guaranteed by XXXX and serviced by Servicer as the
parties may designate as covered by this Agreement in a written supplement to
this Agreement ___________________.
1.11. "Regulations" means any rule, regulations, instruction, procedure
or servicing guidelines issued by the Insurer and approved by FMC and Servicer,
including without limitation the Servicing Guidelines for XXXX Loan Programs
serviced at SLSC/GLC, revised 9/27/00.
1.12. "Securitization Transaction" means the purchase of a pool of
Student Loans by an SPE, in connection with which Servicer agrees to execute a
Servicer Consent Letter in substantially the form of Schedule A.
1.13. "Servicer Consent Letter" means a letter substantially in the
form of
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PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY
ALTERNATIVE LOAN SERVICING AGREEMENT FOR THE FIRST MARBLEHEAD CORPORATION
Schedule A, to be executed by Servicer, FMC, and an SPE in connection with each
Securitization Transaction.
1.14. "Service", "Services", "Serviced", "Servicing" used in connection
with a Student Loan or Student Loans means to perform the procedures of a
continuing nature required of the Servicer pursuant to this Agreement in
accordance with the Regulations.
1.15. "Special Purpose Entity" or "SPE" means a trust, corporation or
limited liability company organized by FMC and engaged solely in the business of
purchasing Student Loans and engaging in financing and/or securities
transactions to obtain funds to purchase such Student Loans.
1.16. "Student Loan" means any of, and "Student Loans" means all, the
XXXX Loans executed by a Borrower, insured by the Insurer, funded by Program
Lender and purchased by FMC or an SPE, and serviced by the Servicer pursuant to
this Agreement.
1.17. "Trustee" means the Permitted Assignee having a lien or security
interest in a pool of Student Loans, which lien or security interest is held for
the benefit of investors or lenders providing funds in such Securitization
Transactions.
SECTION 2. SCOPE OF AGREEMENT
The Servicer agrees, in consideration of certain fees, to perform certain
Services as set forth in the Agreement, Schedules and Exhibits and any
additional services which FMC requests and the Servicer agrees to provide
relative to the Servicing of Student Loans, for which account information and/or
documentation shall be delivered to the Servicer. Specifically and without
limitation, Servicer agrees to Service the Student Loans in accordance with the
Regulations.
SECTION 3. TERM OF AGREEMENT
This Agreement shall commence on the date above written and shall continue
until such time as the principal of and interest on the Student Loans which are
subject to this Agreement are paid in full unless terminated by either party
pursuant to Section 12.
SECTION 4. DUTIES OF FMC AND THE SERVICER
4.1. LOST OR DAMAGED RECORDS. In the event that records or other data
submitted to the Servicer for processing should be lost or damaged while in the
possession, control or custody of the Servicer or its agents, such lost or
damaged records or data shall be reproduced by the Servicer at the Servicer's
own cost and expense from microfilm duplicates in the Servicer's possession or
under the Servicer's control.
4.2. SYSTEM CHANGES. The Servicer has the right to change any part or
all of its equipment, its servicing system, computer programs, and its
procedures relating to the manner of or the methodology used in servicing the
Student Loans, provided however,
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PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY
ALTERNATIVE LOAN SERVICING AGREEMENT FOR THE FIRST MARBLEHEAD CORPORATION
that in no event shall such change abrogate or in any way modify the obligations
of the Servicer with respect to the substantive provisions of this Agreement,
specifically all requirements of the Regulations, the quality of the Service or
the compliance requirements set forth herein. It is specifically understood that
the intent of this paragraph is to allow the Servicer flexibility over the
methods and techniques of Servicing subject to full compliance with the
substantive terms of this Agreement. The Servicer agrees to give FMC ninety (90)
days advance written notice and description of any material discretionary change
in its computer system or procedures which will significantly affect FMC's
operations. Servicer shall test each material discretionary change to the extent
Servicer believes necessary to determine that such change will not result in
adverse consequences to FMC. Upon request of FMC, Servicer will provide
reasonable information to FMC as to the nature and effect of the change.
4.3. SYSTEM ACCESS. FMC may obtain access to the Student Loan files
maintained on the Servicer's servicing system by executing the Remote Time-Share
Services Agreement.
4.4. REPORTS. During the term of this Agreement, the Servicer shall
promptly and routinely furnish FMC, sorted by SPE Owner, copies of all material
reports, records, and other documents and data as required by the Regulations or
as otherwise required by this Agreement, including the reports listed in
Schedule B. All correspondence received by the Servicer relating to individual
Borrower Accounts shall be maintained by the Servicer as required under this
Agreement and shall be made available to FMC during Servicer's normal business
hours. The Servicer shall furnish in good condition all forms and supplies as
specified in the Schedule(s) and any written and signed amendments thereto.
4.5. GOVERNMENTAL REPORTING. The preparation and submission of any and
all governmental reports or requests for data shall be the responsibility of
FMC. The Servicer will, however, supply supporting data and reports as required
by this Agreement and the attached Schedules or such other information as may be
reasonably required under this Agreement to enable FMC to fulfill Insurer or
governmental reporting requirements, and subject to the Management Information
and Operations Staff Services Support Fees under Section II.8(a) of the Fee
Schedule attached hereto, such information as may be reasonably required under
this, in effect from time to time.
4.6. REPORTS TO CREDIT BUREAUS. The Servicer shall provide any and all
reports on Accounts serviced hereunder required by the Regulations promulgated
thereunder, as amended from time to time, to the appropriate credit bureau or
credit information service and shall correct any errors caused by the incorrect
reporting of information.
4.7. COLLECTIONS. All sums received by the Servicer with respect to
any Student Loans, whether attributable to principal or interest shall be
received in trust for the benefit of FMC. All funds received on behalf of
Borrowers will be deposited in a Servicer-owned and maintained clearing account,
that is a separate account in which funds are not commingled with non-collection
account funds. Within two (2) Business Days of receipt,
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PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY
ALTERNATIVE LOAN SERVICING AGREEMENT FOR THE FIRST MARBLEHEAD CORPORATION
or as mutually agreed upon, all available funds for Student Loans will be
electronically transmitted to an account designated by FMC.
SECTION 5. AFFIRMATIVE COVENANTS
From the date hereof and until termination of this Agreement, the Servicer
covenants and agrees to the following:
5.1. CUSTODY PROCEDURE. The Servicer shall hold all promissory notes
and related documents Serviced hereunder on behalf of FMC and the secured party,
if any, under the applicable Securitization Transaction. The Servicer shall
maintain all original promissory notes in a fire resistant vault equipped with a
security locking system. Microfilm of all promissory notes and related documents
shall be maintained on-site at the Servicer's Servicing center located at 0000
Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000 and at an off-site facility
in a fire resistant vault with a security locking system. FMC or designated
agent shall have the right to inspect all security procedures during Servicer's
regular business hours. The Servicer will provide FMC with sixty (60) days
advance notice of any change in the physical location, external to the
Servicer's Servicing center, including a relocation of the Servicer's Servicing
center, of the promissory notes and related documents. All promissory notes at
all times shall be stored in a state other than the State of Louisiana.
5.2. LAWS AND REGULATIONS. The Servicer shall perform all of its
obligations hereunder in accordance with the Regulations, and agrees to Service
the Student Loans in accordance with applicable laws which pertain to the
Servicing thereof.
5.3. GOVERNMENT APPROVALS. The Servicer shall remain duly qualified to
do business in all jurisdictions necessary to carry out its obligations under
this Agreement.
5.4. INSURANCE. The Servicer shall, at all times and at the Servicer's
cost and expense, keep in full force and effect a Fidelity and Crime Policy
covering employee theft as issued on behalf of the Commonwealth of Pennsylvania.
The Servicer shall also maintain an Employee Liability Self-Insurance Program
coverage as issued on behalf of the Commonwealth of Pennsylvania and such
coverage shall be limited to $250,000.00 on any one loss. At the time of
execution of this Agreement, the Servicer shall provide FMC with a copy of said
policy upon FMC's request.
5.5. FINANCIAL REPORTS OF SERVICER. The Servicer will provide for an
independent, annual audit of its financials, an annual third party review of the
Servicer's Student Loan Servicing system and an annual review of agreed upon
procedures on the Servicer's third party Servicing operations, upon request by
FMC, within sixty (60) days of publication. FMC warrants to the Servicer that
such audits and financial statements shall not be disclosed or in any way
communicated to third parties without the express written consent of the
Servicer, other than to FMC's legal counsel and to employees of FMC directly
concerned with this Agreement, all of whom will be bound by this confidentiality
provision and that of Section 11.7 of this Agreement.
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PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY
ALTERNATIVE LOAN SERVICING AGREEMENT FOR THE FIRST MARBLEHEAD CORPORATION
5.6. ANNUAL STATEMENT AS TO COMPLIANCE. The Servicer shall deliver an
annual report to FMC and the Trustee on or prior to March 31 of each year
commencing March 31, 2002, signed by a Servicing officer of the Servicer,
stating that (a) a review of the activities of the Servicer, and the Servicer's
performance under this Agreement, for the previous twelve (12) months ending
December 31 has been made under such Servicing officer's supervision and (b)
certifying to the best of such officer's knowledge, based on such review, the
Servicer has or has caused to be performed all of its obligations under this
Agreement throughout such year and that no default has occurred, or, if such a
default has occurred and is continuing, specifying each such event, the nature
and status thereof and the steps necessary to remedy such affair.
5.7. ANNUAL INDEPENDENT PUBLIC ACCOUNTANT'S SERVICING REPORTS. The
Servicer shall cause a firm of independent public accountants to furnish to FMC
and the related Trustee on or before March 31 of each year, commencing March 31,
2002, a report relating to the previous twelve (12) months ending December 31 to
the effect that such accountants have examined this Agreement, the Regulations,
and records relating to the Servicing of the Student Loans (which procedures,
manuals and records shall be described in one or more schedules to such
statement), that such accountants have compared the information contained in the
Servicer's reports in the relevant period with information contained in the
accounts and records relating to the Servicing of the Student Loans for such
period, and that, on the basis of such examination and comparison, nothing has
come to the attention of such accountants to indicate (i) that the Servicing of
the Student Loans has not, during the relevant period, been in compliance with
the Regulations and in accordance with this Agreement, (ii) that such accounts
and records have not been maintained in accordance with this Agreement, (iii)
that the information contained in the Servicer's reports does not reconcile with
the information contained in such accounts and records or (iv) that the
Servicer's reports or the accounts and records have not been properly prepared
and maintained in all material respects, except in each case for (a) such
exceptions as such accountants shall believe to be immaterial and (b) such other
exceptions as shall be set forth in the Servicer's reports. All costs associated
with the performance of the report of either the public accounting firm or the
Servicer shall be paid by FMC.
SECTION 6. CHARGES AND PAYMENTS
6.1. RATE CHANGE. The Servicer shall provide all aspects of the
Services at its sole cost and expense, except as otherwise provided by this
Agreement, and shall be compensated as set forth herein and in the Fee Schedule
attached hereto. To the extent that an increase occurs in the costs incurred by
the Servicer in providing the Services hereunder whether due to: (a) changes in
the Regulations, (b) legislative and regulatory changes beyond the control of
the Servicer which pertain to the manner of servicing of the Student Loans in
accordance with Section 5.2 herein, (c) changes in United States Postal Service
postage rates, (d) material changes requested by FMC in the Services provided
herein, the Servicer shall have the right to make a compensating increase to the
Servicing fees set forth herein and in the Fee Schedule. The Servicer shall give
FMC
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PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY
ALTERNATIVE LOAN SERVICING AGREEMENT FOR THE FIRST MARBLEHEAD CORPORATION
thirty (30) days prior written notice before implementing any such increase in
Servicing fees pursuant to this Section 6.1.
6.2. INVOICES. Invoices for the Servicer's Services shall be rendered
by the Servicer after each month end with payment to be paid by FMC within
twenty (20) days of the invoice date. If full payment is not received within
thirty (30) days of the invoice date, except as to amounts which are under
dispute, the Servicer may assess an interest charge of 1.25% per month (15%
Annual Percentage Rate) on the unpaid balance from the date of initial billing
until fully paid. If full payment is not received within sixty (60) days from
the date of the invoice, except as to amounts which are under dispute, such
non-payment shall constitute a default hereunder and shall entitle the Servicer
at any time thereafter, to notify FMC (and any affected Permitted Assignee named
in a Servicing Consent Letter) of such default and if such default is not cured
within thirty (30) days from the date of such notice, the Servicer at its
option, may immediately terminate this Agreement. FMC shall report any disputes
to the Servicer regarding an invoice for Services hereunder, within sixty (60)
days of the invoice date, and the Servicer shall research FMC's account and
respond to FMC. If FMC does not report any disputes regarding an invoice for
Servicing within sixty (60) days of the invoice date, FMC is deemed to have
accepted the invoice and the amount due and payable therein, and the Servicer
shall not be responsible for researching FMC's account, regarding such invoice,
thereafter.
SECTION 7. REPRESENTATIONS AND WARRANTIES
The Servicer represents and warrants to FMC (and these warranties and
representations shall be deemed continuing and repeated as of the date each
Student Loan shall become subject to this Agreement) as follows:
7.1. EXISTENCE. The Servicer is a public corporation duly organized
and validly existing and in good standing under the laws of the Commonwealth of
Pennsylvania, and is duly qualified to do business in all jurisdictions where
its failure to so qualify would materially impair its ability to perform its
obligations under this Agreement.
7.2. RIGHT TO ACT. No registration with or approval of any
governmental agency (except for approval as to form and legality by the Attorney
General for the Commonwealth of Pennsylvania) is required for the due execution
and delivery or enforceability of this Agreement. The Servicer has legal power
to execute and deliver this Agreement under the laws of Pennsylvania and to
perform such Services and observe the provisions herein under the laws of
Pennsylvania. By executing and delivering this Agreement, and by performing and
observing the provisions of this Agreement, the Servicer will not violate any
existing provision of its Articles of Incorporation or its bylaws or any
applicable law or violate or otherwise become in default under any existing
contract or other obligation binding upon the Servicer. The officers executing
and delivering this Agreement have been duly authorized to do so, and this
Agreement is legally binding upon the Servicer and enforceable against the
Servicer in every respect.
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PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY
ALTERNATIVE LOAN SERVICING AGREEMENT FOR THE FIRST MARBLEHEAD CORPORATION
SECTION 8. LIABILITY
The Servicer agrees to pay for any claim, loss, liability or expense,
including reasonable attorney's fees, which arises out of or relates to the
Servicer's acts or omissions with respect to the Services provided under this
Agreement (including, without limitation, any refusal of the Insurer to pay any
claim based on Servicer's failure to conform to the Regulations), where the
final determination of liability on the part of the Servicer is established by
an arbitrator, by a court of law or by way of settlement agreed to by the
Servicer. This provision shall not be construed to limit the Servicer's or FMC's
rights, obligations, liabilities, claims or defenses which arise as a matter of
law or pursuant to any other provision of this Agreement. This provision shall
take effect as of the date on which each individual Student Loan is converted to
the Servicer's servicing system and shall apply to default claims rejected or
paid subject to penalty due to errors on the part of the Servicer which occur
after the date of conversion to the Servicer's system.
The maximum liability on the part of the Servicer under this Agreement for
all losses incurred by FMC on Student Loans Serviced by the Servicer as a result
of Servicing deficiencies shall not exceed ten percent (10%) of the aggregate
initial principal amount of all loans serviced by the Servicer and securitized
by FMC or its affiliate The National Collegiate Trust, a Delaware business
trust.
FMC agrees to pay for any claim, loss, liability or expense, including
reasonable attorney's fees and court costs, arising out of or relating to FMC's
acts or omissions with respect to the Student Loans covered by this Agreement,
where the final determination of liability on the part of FMC is established by
an arbitrator, by a court of law or by way of settlement agreed to by FMC. This
provision shall not be construed to limit FMC's or the Servicer's rights,
obligations, liabilities, claims or defenses which arise as a matter of law or
pursuant to any other provision of this Agreement.
SECTION 9. FORCE MAJEURE
If either party is rendered unable, wholly or in part, by a force of nature
outside the control of the parties (including, but not limited to, acts of God,
acts of war, epidemics, fire, earthquakes or other disasters) to carry out its
obligations under this Agreement, that party shall give to the other party
prompt written notice to that effect; upon receipt of the written notice, the
affected obligations of the party giving the notice shall be suspended so long
as such party is unable to so perform and such party shall have no liability to
the other for the failure to perform any suspended obligation during the period
of suspension; however, the other party may at its option terminate this
Agreement if the inability to perform continues for a period in excess of twenty
(20) days. The foregoing provision is not intended to relieve the Servicer of
its obligations to maintain a plan as set forth in Section 11.12 herein.
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PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY
ALTERNATIVE LOAN SERVICING AGREEMENT FOR THE FIRST MARBLEHEAD CORPORATION
SECTION 10. DISPUTES
In the event of any dispute or disagreement between the parties hereto
either with respect to the interpretation of any provision of this Agreement or
with respect to the performance hereunder by the Servicer or by FMC, each of the
parties will appoint, no later than thirty (30) days after the dispute or
disagreement has arisen as evidenced in writing by one of the parties, a
designated officer to meet for the purpose of endeavoring to resolve such
dispute or to negotiate for an adjustment to such provision. In case no
agreement is reached, a third designated person may be appointed upon mutual
agreement to resolve such dispute or to negotiate with the previously designated
officers to negotiate for an adjustment to such provision. No formal proceedings
for the judicial resolution of the initially designated dispute may be commenced
until either of the designated officers concludes in good faith that amicable
resolution through continued negotiations of the matter in issue does not appear
likely. In no event shall such dispute resolution procedure continue for more
than sixty (60) days after the appointment of the initially designated officers,
after which period of time FMC may choose to seek a final determination of
liability on the part of the Servicer by a court of law as set forth in
Section 8 herein.
SECTION 11. MISCELLANEOUS PROVISIONS
11.1. INSPECTIONS. The Servicer and the Services and all records and
reports specifically relating thereto shall be subject to review, audit and
copying by FMC, its designated representative and/or the Comptroller of the
Currency or any other regulatory body or supervisory agency having jurisdiction
over FMC, and external and internal auditors, upon no less than sixty (60) days
notice to the Servicer, and then at such times as are mutually agreed upon
between FMC and the Servicer. Such review, audit and copying shall be conducted,
unless otherwise mutually agreed upon, at the Servicer's principal office set
forth above or as otherwise maintained by the Servicer. On-site examination of
documents held in safekeeping and microfilm records or related documentation
will be performed with as little disruption as possible to the Servicer's normal
operation. All questions arising during the course of the audit will be
coordinated by the chief auditor and directed to the individual(s) designated by
the Servicer. The Servicer will designate a sufficient number of liaison
personnel so as to be able to respond timely to audit questions. All FMC's
out-of-pocket expenses, non-Servicer personnel costs and copying expenses
relating to such review, audit and copying shall be borne by FMC.
11.2. NOTICES. All notices, approvals, consents, requests or other
written communications regarding this Agreement are to be addressed as noted
below.
If to FMC: Xxxxxx X. Xxxxxx
The First Marblehead Corporation
00 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
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PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY
ALTERNATIVE LOAN SERVICING AGREEMENT FOR THE FIRST MARBLEHEAD CORPORATION
If to Servicer: Senior Vice President, Marketing & Client Affairs
Pennsylvania Higher Education Assistance Agency
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
11.3. RELATIONSHIP. The parties to this Agreement intend that the
Servicer shall render the Services contemplated by this Agreement as an
independent contractor. The Servicer and its employees, agents, and servants are
not to be considered agents or employees of FMC, for any purpose whatsoever.
Nothing herein contained, nor any action taken by the Servicer under this
Agreement, shall be deemed or construed to give the Servicer any right, title or
interest either in law or in equity in and to any Student Loan Account being
Serviced by Servicer.
11.4. ASSIGNMENTS. Assignment of Servicing and Future Servicing after
Sale of Student Loans.
(i) ASSIGNMENT BY THE SERVICER. This Agreement and all the rights and
obligations of the Servicer hereunder may not be assigned or
subcontracted by the Servicer without the prior written consent
of FMC which consent shall not be unreasonably withheld; provided
however, the Servicer may subcontract for skiptracing purposes
without such consent. FMC's consent to subcontract shall not
release the Servicer from its obligations under this Agreement.
(ii) ASSIGNMENT TO PERMITTED ASSIGNEE. As described in the Program
Guidelines, the parties contemplate that: (a) pools of Student
Loans will be sold by the Program Lender to SPEs in
Securitization Transactions sponsored by FMC from time to time,
and Permitted Assignees will receive a collateral assignment of
the Student Loans in each Securitization Transaction; and (b) at
the same time and as part of the same transaction, FMC will
assign its rights under this Agreement to obtain Servicing of
said Student Loans to said SPEs, which rights may be further
assigned to Permitted Assignees, so that said Student Loans will
be Serviced by Servicer under the terms of this Agreement,
following execution by the parties of a Servicer Consent Letter
substantially in the form of Schedule A. Servicer agrees that
upon the assignment of FMC's rights under this Agreement with
respect to a pool of Student Loans to a Permitted Assignee and
the execution by the parties of a Servicer Consent Letter, all
obligations of FMC under this Agreement with respect to such
Student Loans, including without limitation the obligation to pay
fees set forth in the Fee Schedule, shall cease and all rights
and obligations of FMC under this Agreement with respect to such
Student Loans shall inure to the SPE and the Permitted Assignees.
(iii) NOTICE REQUIREMENT PRIOR TO SALE OF STUDENT LOANS. FMC shall use
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PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY
ALTERNATIVE LOAN SERVICING AGREEMENT FOR THE FIRST MARBLEHEAD CORPORATION
reasonable efforts to notify the Servicer, in writing, sixty (60)
days prior to any sale of Student Loans, currently housed on the
Servicing system as to (a) the anticipated sale date and (b) the
characteristics of the exact Student Loans to be sold. The actual
sale date will be provided five (5) days prior to the sale. Upon
receipt of the above initial notice, the Servicer will provide
FMC with available transfer dates within thirty (30) days. Actual
transfer dates shall be mutually agreed upon.
(iv) SERVICING OBLIGATIONS AFTER SALE OF STUDENT LOANS.
(a) THE SERVICER'S OFFER OF CONTINUED SERVICING. With respect to
any Student Loans which are sold, assigned or transferred by
a Permitted Assignee, upon the Servicer's receipt of a
notice from such Permitted Assignee that it intends to sell,
assign or transfer any or all of the Student Loans which are
being Serviced hereunder, the Servicer shall contact the
intended purchaser, assignee or transferee (collectively,
the "Transferee") and offer to Service such Student Loans
for the Transferee for the balance of the term of this
Agreement (and, at the option of the Transferee, any
extensions thereof) as follows: (1) under terms and
conditions which are no less favorable than those terms and
conditions which are contained in this Agreement; and (2) if
the Transferee or an affiliate, parent, subsidiary or other
entity related to the Transferee (collectively, a "Related
Entity") has entered into a servicing agreement with the
Servicer, under the terms and conditions of any such
agreement. This subsection shall not apply to an assignment
to a Permitted Assignee pursuant to subsection 11.4(ii).
(b) LIABILITY OF PERMITTED ASSIGNEE UPON TRANSFEREE'S ACCEPTANCE
OF SERVICER'S OFFER TO SERVICE STUDENT LOANS.
If the Transferee accepts the offer described in
subsection (iv)(a)(1) or (iv)(a)(2), the Permitted Assignee
shall have no further obligation or liability to the
Servicer hereunder with respect to such Student Loans, and
the Early Termination Fees set forth in the Fee Schedule
shall not be due and payable. If the Transferee does not
elect to have the Servicer continue Servicing the Student
Loans, the Permitted Assignee shall pay the Early
Termination Fees set forth in the Fee Schedule. This
subsection shall not apply to an assignment to a Permitted
Assignee pursuant to subsection 11.4(ii).
11.5. LIMITATION OF THE SERVICER'S RIGHTS. Nothing contained herein,
nor any action taken by the Servicer under this Agreement, shall be deemed or
construed to give the Servicer any right, title or interest either in law or
equity in and to any Student Loans Serviced hereunder.
11
PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY
ALTERNATIVE LOAN SERVICING AGREEMENT FOR THE FIRST MARBLEHEAD CORPORATION
11.6. EXCLUSIVE AGREEMENT. Nothing contained herein shall be construed
to create an exclusive arrangement between the parties, and the Servicer
understands and agrees that FMC may enter into other agreements for Servicing
Student Loans in the future.
11.7. CONFIDENTIAL INFORMATION. During the term of this Agreement, and
thereafter, each party and its respective agents and employees will maintain the
confidentiality of all data, materials and information disclosed and entrusted
to it by the other party which relate to the business relationship of the
parties. The Servicer agrees to keep the names and addresses of Borrowers in
strictest confidence, except as shall be necessary to communicate the
information to its officers and employees or to FMC in connection with its
obligations under this Agreement and except as required by applicable law or
Regulations. Specifically and without limitation:
(a) In accordance with Title V of the Xxxxx-Xxxxx-Xxxxxx Act (the
"GLB Act") and Federal Reserve Board Regulation P ("regulation P"),
Servicer 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 concerning Student Loans and
Borrowers including, where applicable, the restrictions on the re-use
and disclosure of such information set forth in the GLB Act and
Regulation P.
(b) Servicer agrees to use all information it receives concerning
Student Loans and Borrowers including, without limitation, nonpublic
personal information described in Section 11.7(a), solely for purposes
of providing the Services.
Nothing in this Section shall restrict or prohibit FMC or any Permitted Assignee
from disclosing the existence or content of this Agreement in connection with
required disclosures for a Securitization Transaction.
11.8. SURVIVAL OF WARRANTIES AND OBLIGATIONS. The representations and
warranties of the Servicer shall survive the termination of this Agreement and
the obligations and duties of the Servicer shall survive the termination of this
Agreement as set forth in this Agreement.
11.9. ENTIRE UNDERSTANDING. This Agreement herewith including all
Exhibits attached thereto, represent the entire understanding of the parties
with respect to their subject matter, and supersede all previous discussions and
correspondence with respect thereto, and no representations, warranties or
agreements, express or implied, of any kind with respect to such subject matter
have been made by either party to the other, except as expressly set forth
herein or in such other agreements.
11.10. TAXES. FMC shall be responsible for the payment of Pennsylvania
Sales Tax on the Services provided hereunder, if applicable. However, Servicer
represents and warrants that as of the date of this Agreement, with respect to
the Services provided for
12
PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY
ALTERNATIVE LOAN SERVICING AGREEMENT FOR THE FIRST MARBLEHEAD CORPORATION
herein, no such sales tax is due.
11.11. INTERPRETATION OF DOCUMENTS. In the event of a conflict between
the Servicing Agreement and the Exhibits attached hereto, the Servicing
Agreement shall control.
11.12. DISASTER RECOVERY PLAN. The Servicer agrees to maintain a viable
disaster recovery plan for the Services which includes, among other things,
provision for the remote storage of computer software and data, for the remote
storage of copies of loan documentation, the availability of a location for
off-site computer services and for the time frames within which the Services may
be resumed. The Servicer shall periodically test the data processing functions
of its disaster recovery plan and shall update in a timely manner (it being the
Servicer's present intentions to test annually) such disaster recovery plan.
Upon request from FMC, the Servicer shall provide FMC with a summary report of
the results of such testing. FMC, or its designated representative, shall be
entitled to review such disaster recovery plan from time to time during the term
of this Agreement at the Servicer's place of business. In the event of a natural
or other disaster beyond the Servicer's control that interrupts the Servicer's
performance of any such Services for any period, the Servicer shall promptly
respond to such disaster in accordance with the procedures contained in the
disaster recovery plan in order to resume performance of such Services.
11.13. REPORTS. The Servicer shall, without additional charge or cost to
FMC, prepare by Securitization Transaction, and deliver to FMC such monthly,
quarterly or annual reports for Student Loans Serviced by the Servicer as set
forth in Schedule B.
11.14. COOPERATION. FMC and the Servicer agree that they will cooperate
fully with one another in order to carry out the terms and provisions of the
Agreement during the term of this Agreement and during all periods in which
Student Loans are processed and Serviced by Servicer. Cooperation under this
Section shall include, but not be limited to, each party using reasonable means
to ensure successful, normal, daily processing of Student Loans and related
operations and functions. Each party agrees to support the reasonable routine
efforts of the other party and to work to resolve any disputes which may arise
during such periods referenced above, and to continue to work together in a
professional, business-like manner during all phases, functions and processes
defined in this Agreement.
11.15. AUTHORIZATION. Each of the undersigned represent that he or she
has the authority to execute this Agreement on behalf of the respective party.
11.16. AMENDMENTS; CHANGES; MODIFICATIONS. This Agreement, Exhibits or
Schedules (a) may be amended, supplemented, or modified only by written
instrument duly executed by FMC and the Servicer; (b) shall be incorporated into
this Agreement (c) shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns; and (d) except as
provided in Section 12 hereof, may not be terminated or assigned by any party
hereto without the prior written consent of the
13
PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY
ALTERNATIVE LOAN SERVICING AGREEMENT FOR THE FIRST MARBLEHEAD CORPORATION
other parties provided however the Servicer may subcontract for collections and
skiptracing purposes without prior written consent of FMC.
11.17. NO WAIVER. Any failure by FMC or the Servicer to insist upon the
strict performance by the other of any of the terms and provisions of this
Agreement shall not be deemed to be a continuing waiver of any such terms and
provisions, and notwithstanding any such failure, such party shall have the
right thereafter to insist upon the resumption of strict performance by the
other of any and all of the terms and provisions hereof. The rights and remedies
herein provided are cumulative and not exclusive of any rights or remedies
provided by law.
11.18. OPINION OF OUTSIDE COUNSEL. At the time of the execution of this
Agreement the Servicer agrees to provide to FMC an opinion of its outside
counsel, in form and substance satisfactory to counsel for FMC, that the
representations and warranties set forth in Section 7.2 are true and correct.
SECTION 12. TERMINATION
12.1. BORROWER'S STUDENT LOAN. This Agreement shall terminate as to a
specific Borrower's Student Loan at the close of the month during which the
principal, interest, and late charges, if any, have been fully paid and remitted
to FMC, the Borrower has been notified that the Student Loan has been paid in
full, or at the close of the month during which notification is given to the
Servicer that a claim for guarantee/insurance relating to the Student Loan has
been paid by the Guarantor, or upon the sale or transfer of a specific
Borrower's Student Loan where the Servicer does not continue Servicing such
Student Loan subject to the provisions set forth in Section 11.4 herein.
12.2. TERMINATION BY FMC. This Agreement may be terminated at the
option of FMC without charge to FMC upon the occurrence of any of the following:
(i) Any of the representations or warranties made in or pursuant to
this Agreement are not true or erroneous in any material respect;
(ii) The Servicer's failure to perform or observe any of the
provisions or covenants of this Agreement in any material
respect;
(iii) If the Servicer shall (a) discontinue business, or (b) generally
not pay its debts as such debts become due, or (c) make a general
assignment for the benefit of creditors, or (d) admit by answer,
default or otherwise the material allegations of petitions filed
against it in any bankruptcy, reorganization, insolvency or other
proceedings (whether federal or state) relating to relief of
debtors, or (e) suffer or permit to continue unstayed and in
effect for thirty (30) consecutive days, any judgement, decree or
order, entered by a court of competent jurisdiction, which
approves a petition seeking its reorganization or appoints a
receiver, custodian, trustee, interim trustee or liquidator for
itself or all or a substantial part of
14
PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY
ALTERNATIVE LOAN SERVICING AGREEMENT FOR THE FIRST MARBLEHEAD CORPORATION
its assets, or (f) take or omit any action in order thereby to
effect any of the foregoing;
In the event of an event of default as set forth in Section 12.2(i) or (ii)
above, the Servicer shall have the right to cure any such breach or error
to FMC's full satisfaction within one hundred and twenty (120) days of
written notice from FMC.
In the event FMC fails to cure such default and the Agreement is terminated
pursuant to Section 12.2(i), (ii) or (iii), or in the event that this
Agreement is terminated pursuant to Section 12.1 as to a given Student Loan
when said Student Loan is paid in full, there will be no charge to FMC for
Early Termination Fees or Record Return/Deconversion Fees. In the event the
Agreement is terminated prior to the end of the initial term for any reason
other than stated above, FMC shall be responsible for the payment of Early
Termination Fees as detailed in the Fee Schedule.
12.3. TERMINATION BY THE SERVICER. This Agreement may be terminated at
the option of the Servicer upon the occurrence of any of the following:
(i) FMC's failure to perform or observe any of the material
provisions or covenants of this Agreement which affect the
Servicer's ability to perform;
(ii) If FMC shall (a) discontinue business, or (b) generally not pay
its debts as such debts become due, or (c) make a general
assignment for the benefit of creditors, or (d) admit by answer,
default or otherwise the material allegations of petitions filed
against it in any bankruptcy, reorganization, insolvency or other
proceeding (whether federal or state) relating to relief of
debtors, or (e) suffer or permit to continue unstayed and in
effect for thirty (30) consecutive days, any judgement, decree or
order, entered by a court of competent jurisdiction, which
approves a petition seeking its reorganization or appoints a
receiver, custodian, trustee, interim trustee or liquidator for
itself or all or a substantial part of its assets, or (f) take or
omit any action in order thereby to effect any of the foregoing;
(iii) Pursuant to Section 6.2 of this Agreement.
In the event of an event of default as set forth in Section 12.3(i) or (ii)
above, FMC shall have the right to cure any such breach or error to
Servicer's full satisfaction within one hundred and twenty (120) days of
written notice from Servicer.
In the event the Servicer fails to cure such default and the Agreement is
terminated pursuant to Section 12.3(i), (ii) or (iii), FMC shall pay
Servicer the Early Termination Fee set forth in the Fee Schedule.
15
PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY
ALTERNATIVE LOAN SERVICING AGREEMENT FOR THE FIRST MARBLEHEAD CORPORATION
12.4. RECORD RETURN/DECONVERSION. Upon termination of this Agreement or
upon termination of this Agreement with respect to any particular Student Loan
or Loans whether by virtue of the passage of time or otherwise, the Servicer
shall, regardless of any FMC default or any other reason, return to FMC all
records, data processing records, reports, documents and correspondence,
including original promissory notes, applications, payment histories, due
diligence histories, and copies of microfilm documents maintained by the
Servicer in connection with the Servicing of the Student Loans to which the
Servicer asserts no legitimate proprietary right or which are not part of the
records and reports maintained by the Servicer in connection with the Servicing
of Student Loans generally. Upon the return of the Student Loan records
belonging to FMC, FMC agrees to pay the Record Return/Deconversion Fee, as set
forth in the Fee Schedule, to the Servicer, except under the circumstances
specifically set forth in this Agreement, and such records will be returned to
FMC by Servicer within sixty (60) days from the date of termination of this
Agreement or as otherwise mutually agreed upon by the parties; provided,
however, that in the event this Agreement is terminated by FMC pursuant to
Section 12.2(i), (ii), or (iii), then the Servicer shall return the records at
its sole cost and expense and no Record Return/Deconversion Fee shall be
payable.
SECTION 13. LAW GOVERNING
This Agreement is being delivered in and shall be construed in accordance
with the laws of the Commonwealth of Pennsylvania, without regard to any
principles of conflict of laws.
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
Name: /s/ Xxxxxxx X. Xxxxxxxx Name: /s/ Xxxxx Xxxxx
----------------------- ----------------------------------
Xxxxxxx X. Xxxxxxxx
Title: President and CEO Title: COO
---------------------- ---------------------------------
Date: November 1, 2001 Date: 10-16-01
----------------------- ----------------------------------
043295311
----------------------------
Federal Tax Identification Number
16
PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY
ALTERNATIVE LOAN SERVICING AGREEMENT FOR THE FIRST MARBLEHEAD CORPORATION
Approved as to form and legality. Approved as to form and
legality.
--------------------------------- ----------------------------------------
PHEAA Legal Counsel Pennsylvania Deputy Attorney General
17
FEE SCHEDULE FOR
ALTERNATIVE SERVICING AGREEMENT
DATED OCTOBER 16, 2001
BETWEEN
PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY
AND
THE FIRST MARBLEHEAD CORPORATION
I. DEFINITIONS
In addition to the words and terms elsewhere defined in this Agreement, the
following terms shall have the following meanings unless the Agreement indicates
a contrary meaning or intent:
A. An "Account" is to refer to the promissory notes collectively of an
individual Borrower of a particular Student Loan type in the same
status and having the same Guarantor.
B. An "Interim Account" is to refer to promissory notes collectively of
an individual Student Loan Borrower (1) constituting an In-School
(Enrolled) Account, or (2) a Grace Account.
C. A "Repayment Account" is to refer to the promissory notes of an
individual Student Loan Borrower under the terms of which the
repayment period has commenced, and includes Accounts in deferment or
forbearance.
D. A "In-School (Enrolled) Account" is to refer to the promissory notes
collectively of an individual Student Loan Borrower (1) with respect
to which the Borrower is enrolled at an eligible institution on at
least a half-time basis, and (2) under the terms of which the
repayment period has not yet commenced.
E. A "Grace Account" is to refer to the promissory notes collectively of
an individual Student Loan Borrower (1) with respect to which the
Borrower has ceased to be enrolled in an eligible institution on at
least a half-time basis, and (2) under the terms of which the
repayment period has not yet commenced.
F. "Standard Conversion" means the conversion of a Borrower's Account
from data provided in hard-copy format or on magnetic tape.
G. "On-System Conversion" means the conversion of a Borrower's Account
which the Servicer is currently Servicing for an owner or holder other
than the current owner or holder.
1
PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY
ALTERNATIVE LOAN SERVICING AGREEMENT FOR THE FIRST MARBLEHEAD CORPORATION
H. "Student Loan" is to refer to Student Loans serviced under the terms
of the Alternative Servicing Agreement between Servicer and FMC dated
________________ __, 2001 and serviced in accordance with the Program
Guidelines as defined in such Agreement.
II. SERVICING FEES
1. MONTHLY SERVICING FEES - INTERIM ACCOUNT STATUS:
The Servicing fee for Student Loans in Interim Account Status shall be
payable by the Owner on a pro-rated monthly basis and shall be equal to
[**] basis points per annum based upon the ending principal balance at each
month end.
([**] x ending principal balance at month end divided by [**])
2. MONTHLY SERVICING FEES - REPAYMENT ACCOUNT STATUS:
The Servicing fee for loans in Repayment Account Status shall be payable by
the Owner on a pro-rated monthly basis and shall be equal to [**] basis
points per annum based upon the ending principal balance at each month end:
([**] x ending principal balance at month end divided by [**])
3. RETURN OF RECORDS/DECONVERSION
The Owner shall pay for the return of Student Loan records belonging to the
Owner, upon termination of this Agreement or with respect to any particular
Student Loan, to the extent provided for under Section 12.4 of the
Agreement, at its own cost and expense, not to exceed $[**] per Student
Loan file.
4. CLAIM PROCESSING FEE
The Owner shall pay the claim processing fee for defaulted Student Loans at
the rate of $[**] per claim package filed.
Claim processing shall include, without limitation, presentation to Insurer
of all documentation required under the Program Guidelines, in the form
required thereunder.
5. CURE SERVICING FEES: The Owner shall pay Cure Servicing fees as follows:
(a) For Owner Caused Cures,
(i) Monthly per Account Servicing fee;
(ii) $[**] per Account for skiptracing activities, including
letters and phone calls, if located;
(iii) $[**] per Account if referred to a third party under contract
with the
2
PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY
ALTERNATIVE LOAN SERVICING AGREEMENT FOR THE FIRST MARBLEHEAD CORPORATION
Servicer for Cure/collection after successful location; and
(iv) $[**] per Account if the guarantee is reinstated or a default
claim is paid; or
(v) $[**] per Account if deconverted and returned to the Owner.
(b) For Servicer Caused Cures, the Owner shall pay monthly, per Account,
the Servicing fees as set forth in this Schedule. Any Servicing deficiency
that voids or limits the guaranty under the Program Guidelines shall
constitute a Servicer Caused Cure.
6. SERVICING FEES FOR REINSTATEMENT OF ACCOUNTS TO SERVICER'S SERVICING SYSTEM
The Owner shall pay a fee of [**] dollars ($[**]) per Student Loan Account
to reinstate such Student Loan to Servicer's Servicing system, including,
but not limited to defaulted Student Loans, and later reconverted to the
Servicer's Servicing system.
7. MISCELLANEOUS EXPENSES
An additional amount for miscellaneous expenses will be billed for Services
requested by the Owner, such as document transferal, special computer
reports, mail and shipping costs, etc., not otherwise required to be
furnished. Fees for computer projects will be billed at the following
rates:
(a) Staff Services - $[**] per hour
(b) Computer Programmer - $[**] per hour
(c) Computer Analyst - $[**] per hour
(d) Computer Clock Hour - $[**] per hour
III. EARLY TERMINATION FEES
In the event Owner is required pursuant to the Agreement to pay an Early
Termination Fee, such Fee shall be assessed and paid to Servicer as
follows:
A. $[**] per Account during the first year of the Agreement;
B. $[**] less the product of ([**] percent ([**]%)X the number of years
or portions thereof that this Agreement has been in effect X $[**])
per Account anytime after the first year of the Agreement.
3
PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY
ALTERNATIVE LOAN SERVICING AGREEMENT FOR THE FIRST MARBLEHEAD CORPORATION
PENNSYLVANIA HIGHER EDUCATION THE FIRST MARBLEHEAD CORPORATION
ASSISTANCE AGENCY
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxx Xxxxx
------------------------------- ---------------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxx Xxxxx
----------------------------- -------------------------
Title: President & CEO Title: COO
---------------------------- ------------------------
Dated: Dated: 10-16-01
---------------------------- ------------------------
4
PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY
ALTERNATIVE LOAN SERVICING AGREEMENT FOR THE FIRST MARBLEHEAD CORPORATION
SCHEDULE A TO
ALTERNATIVE SERVICING AGREEMENT
DATED OCTOBER 16, 2001
BETWEEN
PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY
AND
THE FIRST MARBLEHEAD CORPORATION
SERVICER CONSENT LETTER
[DATE]
Pennsylvania Higher Education Assistance Authority
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Senior Vice President, Marketing and Client Relations
Dear ________:
Reference is hereby made to the Alternative Servicing Agreement, dated
[Date], as amended, (the "Servicing Agreement") by and between Pennsylvania
Higher Education Assistance Authority (the "Servicer") and The First Marblehead
Corporation ("FMC"), a copy of which is attached hereto as Exhibit A.
Capitalized terms not otherwise defined herein shall have the meanings set forth
in the Servicing Agreement. The parties hereto agree as follows:
1. FMC hereby assigns its interest in the Servicing Agreement with
respect to the Student Loans identified on the attached Schedule 1
(the "Student Loans") to [Name of Securitization SPE] ("SPE"), and
Servicer hereby consents thereto.
2. Servicer hereby consents to the assignment and to the grant by [SPE]
of a security interest in the Servicing Agreement to [Name of
Securitization Trustee] (the "Trustee"), as provided in the Indenture,
dated as of [Date] between [SPE] and the Trustee (the "Indenture"),
for the benefit of the holders of obligations of the SPE and MBIA
Insurance Corporation (the "Bond Insurer").
3. Servicer hereby confirms that it will not terminate the Servicing
Agreement until the appointment of a successor servicer by [SPE], with
the consent of the Bond Insurer for so long as Bonds are outstanding,
unless such termination is due to a default by SPE under Section 6.2
or 12.3 thereof, or unless the Servicing Agreement otherwise expires
in accordance with Section 12.1 thereof.
4. [SPE] hereby confirms that (i) it will not terminate Servicer for
cause pursuant to Section 12.2 of the Servicing Agreement (a) without
the consent of the Bond
5
PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY
ALTERNATIVE LOAN SERVICING AGREEMENT FOR THE FIRST MARBLEHEAD CORPORATION
Insurer for so long as Bonds are outstanding, and (b) until a
successor servicer acceptable to the Bond Insurer is appointed, and
(ii) it will terminate Servicer for cause pursuant to Section 12.2 of
the Servicing Agreement, if directed by the Bond Insurer to do so.
5. Servicer hereby confirms that it has complied with all the terms and
satisfied all the conditions on its part to be performed or satisfied
under the Servicing Agreement.
6. Servicer hereby agrees to provide the Bond Insurer with copies of all
notices, reports and other information at the same time and in the
same manner in which such information is required to be given to FMC
and [SPE] pursuant to the Servicing Agreement or other information as
is reasonably requested by the Bond Insurer, if such other information
is available to Servicer at the time of such requests. In addition,
for so long as any Bonds are outstanding, any action that requires the
consent of [SPE] under the Servicing Agreement, including without
limitation, any amendment to the Servicing Agreement with respect to
the Student Loans, shall also require the prior consent of the Bond
Insurer.
7. Servicer hereby agrees to provide the Bond Insurer, upon request, with
its annual audited financial statements and its quarterly unaudited
financial statements.
8. Servicer hereby grants the Bond Insurer the right for so long as any
of the Bonds remain outstanding, to perform ongoing due diligence
review of Servicer's Servicing activities with respect to the Student
Loans; provided that, such due diligence be conducted in a reasonable
manner, convenient to both Servicer and the Bond Insurer. All costs
associated with the performance of the due diligence review shall be
paid by the SPE.
9. It is expressly understood and agreed by the parties hereto that (a)
this Letter is executed and delivered by [Owner Trustee], not individually or
personally, but solely as Owner Trustee of [SPE] under the Trust Agreement dated
as of [Date], with [SPE Sponsor], 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 Trust are made and intended not as
personal representations, undertaking and agreements by the Owner Trustee, but
are made and intended for the purpose for binding only the 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 Trust or be liable
for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by the Trust under this Agreement or the other Trust
Related Documents.
10. The parties hereto acknowledge and agree that for so long as any Bonds
are
6
PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY
ALTERNATIVE LOAN SERVICING AGREEMENT FOR THE FIRST MARBLEHEAD CORPORATION
outstanding, the Bond Insurer is a third-party beneficiary hereof and of the
Servicing Agreement, and the Bond Insurer shall have the right to exercise all
rights of [SPE] under the Servicing Agreement.
Please acknowledge your acceptance and agreement to the foregoing by
signing and returning the enclosed duplicate letter.
Very truly yours,
The First Marblehead Corporation
By:
----------------------
Name:
--------------------
Title:
-------------------
Accepted and Agreed:
Pennsylvania Higher Education Assistance Authority
By: Xxxxxxx X. Xxxxxxxx
-----------------------
Name:
---------------------
Title:
--------------------
[SPE NAME]
By: [Owner Trustee]
By:
-----------------------
Name:
---------------------
Title:
---------------------
7
PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY
ALTERNATIVE LOAN SERVICING AGREEMENT FOR THE FIRST MARBLEHEAD CORPORATION
SCHEDULE B TO
ALTERNATIVE SERVICING AGREEMENT
DATED OCTOBER 16, 2001
BETWEEN
PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY
AND
THE FIRST MARBLEHEAD CORPORATION
REQUIRED REPORTS
1. Delinquency Summary
2. Reconciliation
3. Loan Summary - (Must be on a loan by loan basis at the borrower level and
be provided once per month on a mutually agreed upon schedule.)
4. Loan Summary by Status
5. Transaction Detail - (Must be on a loan by loan basis at the borrower level
and be provided once per month on a mutually agreed upon schedule.)
8
FIRST AMENDMENT TO ALTERNATIVE SERVICING AGREEMENT
This First Amendment to Alternative Servicing Agreement amends that certain
Alternative Servicing Agreement dated as of October 16, 2001 ("Services
Agreement") 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 0xx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000 ("Servicer") and THE FIRST MARBLEHEAD CORPORATION
("FMC") having an address at 00 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000.
This First Amendment is dated as of November 1, 2001.
Capitalized terms used in this First Amendment without definition have the
meaning set forth in the Servicing Agreement.
The Servicing Agreement is hereby amended as follows:
1. The last sentence of Section 4.7 is replaced with the following:
"Within two Business Days of Receipt, all actually cleared available funds
from Student Loans will be electronically transmitted to an account
designated by FMC."
2. The next to the last paragraph of Section 12.2, immediately following
Subsection (iii), is amended by adding the following additional sentence:
"Notwithstanding the foregoing, Servicer shall have the right to cure any
breach of Section 4.7 of this Agreement within five (5) days (not 120 days)
after written notice from FMC."
3. In the last paragraph of Section 12.2, in the first line, the word
"FMC" is replaced with the word "PHEAA."
4. The following provision is added as a new final paragraph in
Section 8.
If the Insurer rejects a claim on account of Servicer's failure to
conform to the Regulations in servicing a Student Loan, the Servicer will
start the cure process described in the Regulations for the purpose of
reinstating Owner's claim against the Insurer.) Student Loans in such
status are hereinafter referred to as Student Loans in "Cure Status". An
indicator will be placed in the Student Loan record indicating the start
(and the date) of Cure Status. Within twelve months of the initiation of
Cure Status, if Insurance has not been reinstated in accordance with the
Regulations, the Servicer shall purchase any such Student Loan by paying
to Owner an amount equal to [**]. The Owner will assign its right, title,
and interest in any promissory note to the Servicer where the Servicer
has purchased such note. Within thirty (30) days after a final
determination pursuant to Section 10 that Servicer was not responsible
for causing the loss of Insurance, FMC
will repurchase any and all such uninsured Student Loans for an amount
equal to the purchase price plus any other costs incurred by Servicer in
their purchase.
5. In all other respects, the Servicing Agreement is hereby ratified and
confirmed and shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed as of November 1, 2001.
THE FIRST MARBLEHEAD PENNSYLVANIA HIGHER
CORPORATION EDUCATION ASSISTANCE AGENCY
By: By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------- -----------------------------
Print Name: Print Name: Xxxxxxx X. Xxxxxxxx
--------------------- ---------------------
Title: Title: President & CEO
-------------------------- --------------------------
Date: Date: 11/5/2001
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Approved as to form and legality Approved as to form and legality
/s/ Xxxxxx Xxx Lard
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PHEAA Legal Counsel Pennsylvania Deputy Attorney General
011210-11
SECOND AMENDMENT TO ALTERNATIVE SERVICING AGREEMENT
This Second Amendment to Alternative Servicing Agreement amends that
certain Alternative Servicing Agreement dated as of October 16, 2001 ("Services
Agreement") 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 0xx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000 ("Servicer") and THE FIRST MARBLEHEAD CORPORATION
("FMC") having an address at 00 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000.
This Second Amendment is dated as of November 1, 2001.
Capitalized terms used in this Second Amendment without definition have the
meaning set forth in the Servicing Agreement.
The Servicing Agreement is hereby amended as follows:
1. Subsection 12.2(ii) is amended by adding at the end the following
parenthetical:
"(including, without limitation, any breach of the provisions of
section 4.7, all of which shall be deemed material)".
2. In the last sentence of section 12.1, the word "Guarantor" is
replaced by the word "insurer."
3. In all other respects, the Servicing Agreement is hereby ratified and
confirmed and shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed as of November 1, 2001.
THE FIRST MARBLEHEAD PENNSYLVANIA HIGHER
CORPORATION EDUCATION ASSISTANCE AGENCY
BY: /s/ Xxxxx Xxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
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Print Name: XXXXX XXXXX Print Name: Xxxxxxx X. Xxxxxxxx
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Title: PRESIDENT Title: President & CEO
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Date: 1/9/02 Date:
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Approved as to form and legality Approved as to form and legality
/s/ Xxxxxx Xxx Lard /s/ [Illegible]
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PHEAA Legal Counsel Pennsylvania Deputy Attorney General
THIRD AMENDMENT TO THE
ALTERNATIVE SERVICING AGREEMENT
BETWEEN
PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY
AND
THE FIRST MARBLEHEAD CORPORATION
THIS THIRD AMENDMENT is made this 1st of May, 2003, by and among 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 referred to as the "Servicer"), THE FIRST MARBLEHEAD
CORPORATION, having an address at 00 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx 00000 and the Issuer (as defined below) (said corporation and said
Issuer being collectively referred to herein as the "Owner").
RECITALS
WHEREAS, the parties previously entered into a Alternative Servicing
Agreement dated October 16, 2001, as amended by the qFirst Amendment dated
November 1, 2001 and as further amended by the Second Amendment dated
November 1, 2001, and as subsequently amended to add other Student Loans
guaranteed by The Education Resources Institute, Inc.(herein collectively
referred to as the "Agreement"), which sets forth the terms for the servicing of
Student Loans owned by the Owner and serviced by the Servicer;
WHEREAS, Servicer and Owner now wish to amend the Fee Schedule attached to
the Agreement; and
WHEREAS, pursuant to a Servicer Consent Letter dated as of November 1,
2001, the rights of Owner for servicing of certain Student Loans under this
Agreement were assigned to The National Collegiate Master Student Loan Trust I,
a Delaware business trust ("Issuer") concurrent with the Issuer's purchase of a
portfolio of the Student Loans; and
WHEREAS, Issuer desires to join in this Amendment to assure that the terms
hereof shall apply to the rights and obligations it holds as a partial assignee
of the Agreement and Servicer desires that this Amendment shall apply equally to
all loan owners who receive servicing under the Agreements; and
WHEREAS, Servicer and Owner otherwise wish to retain all terms and
provisions in the Agreement and to continue to exercise their rights and fulfill
their duties thereunder.
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NOW THEREFORE, in consideration of the mutual covenants contained herein
and other valuable consideration, and intending to be legally bound, the parties
agree as follows:
1. The Fee Schedule is deleted in its entirety and replaced with the
following:
FEE SCHEDULE FOR
ALTERNATIVE SERVICING AGREEMENT
DATED OCTOBER 16, 2001
BETWEEN
PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY
AND
THE FIRST MARBLEHEAD CORPORATION
I. DEFINITIONS
In addition to the words and terms elsewhere defined in this Agreement, the
following terms shall have the following meanings unless the Agreement indicates
a contrary meaning or intent:
A. An "Account" is to refer to the promissory notes collectively of an
individual Borrower of a particular Student Loan type in the same
status and having the same Guarantor.
B. An "Interim Account" is to refer to promissory notes collectively of
an individual Student Loan Borrower (1) constituting an In-School
(Enrolled) Account, or (2) a Grace Account.
C. A "Repayment Account" is to refer to the promissory notes of an
individual Student Loan Borrower under the terms of which the
repayment period has commenced, and includes Accounts in deferment or
forbearance.
D. A "In-School (Enrolled) Account" is to refer to the promissory notes
collectively of an individual Student Loan Borrower (1) with respect
to which the Borrower is enrolled at an eligible institution on at
least a half-time basis, and (2) under the terms of which the
repayment period for principal and interest has not yet commenced.
E. A "Grace Account" is to refer to the promissory notes collectively of
an individual Student Loan Borrower (1) with respect to which the
Borrower has ceased to be enrolled in an eligible institution on at
least a half-time basis, and (2) under the terms of which the
repayment period has not yet commenced.
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F. "Standard Conversion" means the conversion of a Borrower's Account
from data provided in hard-copy format or on magnetic tape.
G. "On-System Conversion" means the conversion of a Borrower's Account
which the Servicer is currently Servicing for an owner or holder other
than the current owner or holder.
H. "Student Loan" is to refer to Student Loans serviced under the terms
of the Alternative Servicing Agreement between Servicer and FMC dated
October 16, 2001 and serviced in accordance with the Program
Guidelines as defined in such Agreement.
II. SERVICING FEES
1. MONTHLY SERVICING FEES - INTERIM ACCOUNT STATUS:
The Servicing fee for Student Loans in Interim Account Status shall be
payable by the Owner on a pro-rated monthly basis and shall be equal
to [**] based upon the ending principal balance at each month end.
([**] x ending principal balance at month end divided by 12)
2. MONTHLY SERVICING FEES - REPAYMENT ACCOUNT STATUS:
(a) The Servicing fee for loans in Repayment Account status for the first
[**] from the beginning of the Repayment Start Date (which shall
mean the later of the first day following the expiration of any
applicable grace period or the first day following the expiration
of Enrolled status), shall be payable by the Owner on a pro-rated
monthly basis and shall be equal to [**] per annum based upon the
ending principal balance at each month end for all loans [**]:
([**] x ending principal balance at month end divided by 12)
(b) The Servicing fee for loans in Repayment Account status for the first
[**] from the beginning of the Repayment Start Date shall be payable
by the Owner on a pro-rated monthly basis and shall be equal to
[**] per annum based upon the ending principal balance at each
month end for all loans [**]:
([**] x ending principal balance at month end divided by 12)
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(c) The Servicing fee for loans in Repayment Account status beginning on
[**] after the beginning of the Repayment Start Date and thereafter
throughout payout shall be payable by the Owner on a pro-rated
monthly basis and shall be equal to sixty (60) basis points
per annum based upon the ending principal balance at each month end
for all loans [**]:
([**] x ending principal balance at month end divided by 12)
(d) The Servicing fee for loans in Repayment Account status beginning on
[**] after the beginning of the Repayment Start Date and
thereafter throughout payout shall be payable by the Owner on a
pro-rated monthly basis and shall be equal to [**] per annum based
upon the ending principal balance at each month end for all
loans [**]:
([**] x ending principal balance at month end divided by 12)
3. RETURN OF RECORDS/DECONVERSION
The Owner shall pay for the return of Student Loan records belonging to the
Owner, upon termination of this Agreement or with respect to any particular
Student Loan, to the extent provided for under Section 12.4 of the
Agreement, at its own cost and expense, not to exceed [**] per Student
Loan file.
4. CLAIM PROCESSING FEE
The Owner shall pay the claim processing fee for defaulted Student Loans at
the rate of [**] per claim package filed.
Claim processing shall include, without limitation, presentation to Insurer
of all documentation required under the Program Guidelines, in the form
required thereunder.
5. CURE SERVICING FEES: The Owner shall pay Cure Servicing fees as follows:
(a) For Owner Caused Cures,
(i) Monthly per Account Servicing fee;
(ii) [**] per Account for skiptracing activities, including
letters and phone calls, if located;
(iii) [**] per Account if referred to a third party under contract
with the Servicer for Cure/collection after successful location; and
(iv) [**] per Account if the guarantee is reinstated or a default
claim is paid; or
(v) [**] per Account if deconverted and returned to the Owner.
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(b) For Servicer Caused Cures, the Owner shall pay monthly, per Account,
the Servicing fees as set forth in this Schedule. Any Servicing deficiency
that voids or limits the guaranty under the Program Guidelines shall
constitute a Servicer Caused Cure.
6. SERVICING FEES FOR REINSTATEMENT OF ACCOUNTS TO SERVICER'S SERVICING SYSTEM
The Owner shall pay a fee of [**] dollars ($[**]) per Student Loan
Account to reinstate such Student Loan to Servicer's Servicing system,
including, but not limited to defaulted Student Loans, and later
reconverted to the Servicer's Servicing system.
7. MISCELLANEOUS EXPENSES
An additional amount for miscellaneous expenses will be billed for Services
requested by the Owner, such as document transferal, special computer
reports, mail and shipping costs, etc., not otherwise required to be
furnished. Fees for computer projects will be billed at the following
rates:
(a) Staff Services - $[**] per hour
(b) Computer Programmer - $[**] per hour
(c) Computer Analyst - $[**] per hour
(d) Computer Clock Hour - $[**] per hour
III. EARLY TERMINATION FEES
In the event Owner is required pursuant to the Agreement to pay an Early
Termination Fee, such Fee shall be assessed and paid to Servicer as follows:
A. $[**] per Account during the first year of the Agreement;
B. $[**] that this Agreement has been in effect X
[**] per Account anytime after the first year of the
Agreement.
II.
This Third Amendment shall be effective as of May 1, 2003.
III.
Except as otherwise amended by this Third Amendment, the Agreement,
including without limitation the Fee Schedule, shall remain in full force and
effect.
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IV.
This Third Amendment may be simultaneously executed in several
counterparts each of which shall constitute but one and the same instrument.
IN WITNESS WHEREOF, Servicer, the Issuer and FMC have executed this Third
Amendment and it shall be deemed to be executed such on the month, day and year
first above written.
THE FIRST MARBLEHEAD PENNSYLVANIA HIGHER EDUCATION
CORPORATION ASSISTANCE AGENCY
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxx
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Name: XXXXXX XXXXXX Name: Xxxxxxx X. Xxxxxx
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Title: CHAIRMAN & CEO Title: President and CEO
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Date: 30 APRIL 2003 Date:
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Federal Tax ID Number:
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THE NATIONAL COLLEGIATE
MASTER STUDENT LOAN
TRUST I
By: Wachovia Trust Company, N.A.,
Trustee
By:
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Date:
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Federal Tax Id No:
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Approved as to form and legality. Approved as to form and legality.
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Deputy Attorney General PHEAA Legal Counsel
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