EXHIBIT 10.16
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
AMENDMENT TO PROGRAM AGREEMENTS
(BANK ONE'S CORPORATE ADVANTAGE LOAN PROGRAMS)
This Amendment to Program Agreements (this "Amendment") amends the Program
Agreements, as defined below, entered into by and among Bank One, National
Association ("Bank One"), The First Marblehead Corporation ("FMC"), The
Education Resources Institute, Inc. ("XXXX"), and U.S. Bank, N.A. This Amendment
is dated as of May 1, 2003.
W I T N E S S E T H
WHEREAS, Bank One desires to offer its Education One loan products with
reduced borrower fees to corporate employee and affinity groups; and
WHEREAS, the parties hereto agree that such loans will be originated,
guaranteed, and purchased under the Program Agreements (as defined below), as
modified for such loans in this Amendment;
NOW, THEREFORE, in consideration of these presents and the covenants
contained herein, the parties hereto hereby agree as follows:
I. DEFINITIONS.
"Corporate Advantage Loan Programs" shall mean any program (a) offered under the
Education One Program Guidelines, as amended from time to time, but involving
the [**]pricing set forth in Schedule 3.3 attached hereto, and (b) marketed by
Bank One and its corporate partners, including any corporate or affinity groups
proposed by Bank One to XXXX to which XXXX consents in writing. Corporate
Advantage Loan Program partners approved by XXXX are shown on Exhibit C attached
hereto. The parties intend to update Exhibit C as new Corporate Advantage
partners are added by Bank One with the consent of XXXX.
"Deposit and Security Agreement" means that certain agreement bearing that name
entered into by and among Bank One, FMC, XXXX, and State Street Bank and Trust
Company (n/k/a U.S. Bank, N.A.) dated as of April 30, 2001, as amended.
"Guaranty Agreement" means that certain amended and restated agreement bearing
that name entered into by and between Bank One and XXXX dated as of May 13,
2002, as amended.
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"Loan Origination Agreement" means that certain amended and restated agreement
bearing that name entered into between Bank One and XXXX dated as of May 13,
2002, as amended.
"Note Purchase Agreement" means that certain amended and restated agreement
bearing that name by and between FMC and Program Lender dated as of May 1, 2002,
as amended.
"Program Agreements" means the Guaranty Agreement, the Loan Origination
Agreement, the Note Purchase Agreement, and the Deposit and Security Agreement,
all as heretofore amended and as heretofore extended pursuant to an Extension
Agreement dated November 1, 2002, and including all Exhibits and Schedules
thereto, including, without limitation, the Program Guidelines.
"Program Guidelines" shall mean the document of that name, as amended from time
to time, attached to and made a part of the Guaranty Agreement.
II. AMENDMENTS
A. GENERALLY. Bank One hereby represents and warrants that the marketing of
the Corporate Advantage Loan Programs by Bank One and its corporate partners
shall comply with all applicable federal and state laws and regulations. The
foregoing representation and warranty is hereby made a part of each of the
Program Agreements and any breach of the foregoing representation and warranty
shall be subject to indemnification as set forth in the applicable Program
Agreement.
B. PROGRAM AGREEMENTS. All Program Agreements are hereby amended to include
the above definition of "Corporate Advantage Loan Programs" and in each Program
Agreement, the definitions of "Education One Program" and "Program" shall
include Corporate Advantage Loan Programs, with the modifications herein that
apply to such programs. Each definition of "Loans" or "Education One Loans" in
the Program Agreements shall include loans made under the Corporate Advantage
Loan Programs, as specified herein.
C. GUARANTY AGREEMENT.
1. With respect to all Corporate Advantage Loan Programs, an additional
Schedule 3.3 is added to the Guaranty Agreement in the form of
Schedule 3.3 attached hereto.
2. "Promissory Notes" shall include the notes attached hereto as
Exhibit A, as each shall be amended from time to time under
Section 3.2 of the Guaranty Agreement.
3. Section 3.2 of the Guaranty Agreement is hereby amended by adding the
following:
"Upon TERI's request, Bank One will submit to XXXX sample copies of
promotional and marketing materials used in connection with the
Corporate
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Advantage Loan Programs. No such delivery of materials shall
constitute or be construed as a representation or warranty by XXXX
that such materials comply with applicable law or with Bank One's
obligations under this Agreement, and no such delivery shall excuse
Bank One's performance of any of its obligations under this
Agreement."
D. LOAN ORIGINATION AGREEMENT. With respect to the Corporate Advantage Loan
Program, all marketing materials shall direct applicants to a web site
created by Bank One for the particular corporate or affinity group in
question. Bank One shall have full responsibility for hosting, supporting,
and maintaining such web sites and for ensuring that Corporate Advantage
Loan Program borrowers are directed to the proper web site and no other web
site to apply for their loan. Bank One shall also ensure that such web
sites interface with TERI's web application system in a manner directed by
XXXX to obtain correct fulfillment.
E. NOTE PURCHASE AGREEMENT. In the Note Purchase Agreement, Section 2.04 is
amended by adding Section 2.04 attached hereto for Corporate Advantage Loan
Programs.
F. DEPOSIT AND SECURITY AGREEMENT. The Deposit and Security Agreement shall
apply to all Corporate Advantage Loan Program loans guaranteed under the
Guaranty Agreement.
G. SERVICING AGREEMENT 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 B.
H. 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 Instrument to be
executed as of the date above first written.
THE EDUCATION RESOURCES INSTITUTE, INC.
By: /s/ Xxxxxxxx X. X'Xxxxx
--------------------------
Its: President
BANK ONE, N.A.
By: /s/ Xxxx Xxxxx Xxxxx
--------------------------
Its: Vice President
THE FIRST MARBLEHEAD CORPORATION
By: /s/ Xxxxx Xxxxx
--------------------------
Its: President
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US BANK, N.A.
By: /s/ [Illegible]
--------------------------
Its: Vice President
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TABLE OF EXHIBITS
NOTE: First Marblehead Corporation is not a party to the Schedule 3.3 or
Exhibit A. Pursuant to Item 601 of Regulation S-K, such exhibits are not
being filed herewith.
Schedule 3.3 Guaranty Fees and Loan Pricing
Schedule 2.04 Revised Section 2.04 of the Note Purchase Agreement -
filed herewith.
Exhibit A Promissory Notes
Exhibit B Supplement to Alternative Servicing Agreement -
filed herewith
Exhibit C Corporate Advantage Partners Approved by XXXX -
filed herewith
2.04. MINIMUM PURCHASE PRICE.
On the Purchase Date, Program Lender shall assign and convey all ED ONE
CORPORATE ADVANTAGE Loans 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
following amounts with respect to each of the ED ONE CORPORATE ADVANTAGE Loans
to be purchased:
(a) The unpaid principal amount [**] of the Seasoned Loans in the Pool; plus
(b) All accrued and unpaid interest on such ED ONE CORPORATE ADVANTAGE Loans,
[**]; plus
(c) [**]fees paid by Bank One to XXXX with respect to such ED ONE CORPORATE
ADVANTAGE Loans [**]; plus
(d) The amount of any Guaranty Fees [**]; plus
(e) A marketing fee and loan premium, [**]:
1. with respect to K-12 Creditworthy Loans, [**]
2. with respect to Continuing Education Creditworthy Loans, [**];
3. with respect to Undergraduate Creditworthy Loans, [**]; and
4. with respect to Graduate Creditworthy Loans, [**]
EXHIBIT B
SERVICING SUPPLEMENT
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 One Corporate Advantage 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 One Corporate
Advantage Loan Programs, and purchased by FMC or an SPE, as loans covered by the
Agreement.
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:
--------------------------------- ---------------------------------
Name: Name:
------------------------------- -------------------------------
Title: Title:
------------------------------ ------------------------------
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Date Date
------------------------------------
Federal Tax Identification Number
Approved as to form and legality
------------------------------------
PHEAA Chief Counsel
EXHIBIT C
CORPORATE ADVANTAGE PARTNERS APPROVED BY XXXX
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