NOTE PURCHASE AGREEMENT UFSB ASTRIVE LOAN PROGRAM UNION FEDERAL SAVINGS BANK
EXHIBIT
99.21
|
Confidential
Materials omitted and filed separately with the
Securities
and Exchange Commission. Asterisks denote
omissions.
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UFSB
ASTRIVE LOAN PROGRAM
UNION
FEDERAL SAVINGS BANK
This
Note Purchase Agreement, by and
between UNION FEDERAL SAVINGS BANK (“Program Lender”), a federal savings bank
organized under the laws of the United States and having a principal office
located at 0000 Xxxxxxx Xxxxxx Xxxxxx, Xxxxx Xxxxxxxxxx, XX 00000, and THE
FIRST
MARBLEHEAD CORPORATION, a Delaware corporation having a principal place of
business at 000 Xxxxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxx,
Xxxxxxxxxxxxx 00000-0000 (“FMC”), is made as of March 26, 2007;
W
I T N E
S S E T H:
WHEREAS,
Program Lender is in the
business of making education loans under education lending programs, including,
without limitation, the UFSB Astrive Loan Program (as defined in Section 1);
and
WHEREAS,
in order to facilitate funding
of UFSB Astrive Conforming Loans (as defined in Section 1), Program Lender
has
agreed to sell, from time to time, pools containing UFSB Astrive Conforming
Loans originated by Program Lender to FMC or a Purchaser Trust (as defined
in
Section 1); and
WHEREAS,
the parties understand that
Charter One Bank, N.A. has in the past made, and will continue going forward
to
make, education loans under the Astrive program operated by said bank, and
pools
of qualifying Charter One loans under such program will be purchased by FMC
or a
Purchaser Trust along with purchases of UFSB Astrive Conforming Loans under
this
Agreement; and
WHEREAS,
the UFSB Astrive Conforming
Loans are made by Program Lender and purchased by FMC on the condition that
they
qualify for and in fact are covered by a guaranty issued by The Education
Resources Institute, Inc. (“XXXX”).
NOW,
THEREFORE, in consideration of
these presents and the covenants contained herein, the parties hereto hereby
agree as follows:
I.
Definitions. Capitalized
terms used herein without definition have the meanings set forth in the Program
Guidelines (hereinafter defined).
“Affiliate”
shall
mean, as to any
person, any other person that, directly or indirectly, is in control of, is
controlled by, or is under common control with, such person. A person
shall be deemed to control another person if the controlling person possesses,
directly or indirectly, the power to direct or to cause the direction of the
management and policies of the other person, whether through the ownership
of
voting securities, by contract or otherwise.
“Ambac”
means
Ambac Assurance
Corporation.
“Alternative
Student Loan” (or “ASL”)
means an education loan made to a student or parent to finance costs of higher
education, which loan is not insured or guaranteed by any agency of the United
States or of any State.
“Business
Day” shall mean any day other
than: (a) a Saturday or Sunday, or (b) a day on which banking institutions
in
the State of Rhode Island are required or authorized by law or executive order
to be closed.
“UFSB
Astrive Conforming Loans” shall
mean Loans (a) made in accordance with and conforming to the requirements of
the
Program Guidelines at the time the Loans were made, (b) serviced by the Servicer
in accordance with the Program Guidelines, and (c) covered by and subject to
all
the benefits of the Guaranty Agreement.
“UFSB
Astrive Loan Pool” or “Pool”
shall mean and refer to a group of UFSB Astrive Notes purchased and pledged
or
intended to be purchased and pledged as collateral in a particular
Securitization Transaction.
“UFSB
Astrive Notes” or “Notes” shall
mean notes or other forms of consumer debt instruments, evidencing UFSB Astrive
Conforming Loans.
“UFSB
Astrive Loan Program” shall mean
the UFSB Astrive Loan Program described in the Program Guidelines.
“Change
in Control” means, for either
party to this Agreement, any of the following: (1) the acquisition or
a series of acquisitions within six (6) months of each other by any other
entity, individual or group (within the meaning of Sections 13(d)(3) or 14(d)(2)
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) of
beneficial ownership (as defined in Rule 13d-3 promulgated under the Exchange
Act) of more than fifty percent (50%) of the common stock and/or other
securities which have more than fifty percent (50%) of the combined voting
power
of the securities entitled to vote in the election of directors;
or (2) the sale of all or substantially all of the common stock or
assets to any other entity, individual or group; or (3) the reorganization,
merger or consolidation in which the shareholders immediately before such event
will not immediately thereafter own more than fifty percent (50%) of the
combined voting power entitled to vote in the election of directors of the
reorganized, merged or consolidated voting securities. A “Change in
Control” shall not include any transactions with an entity that is an Affiliate
immediately prior to such transaction.
“Collateral”
has
the meaning set forth
in the Security Agreement.
“Custodian”
means
U.S. Bank National
Association, its successors and assigns, in its capacity as Bank under the
Security Agreement of even date herewith, and as Depository Institution under
the Control Agreement dated of even date herewith (collectively, “Security
Documents”), or a successor Bank or alternative Depository Institution appointed
in accordance with the Security Documents.
“Customer
Information” means borrower
data and customer information received by FMC upon the purchase of UFSB Astrive
Conforming Loans in a Securitization Transaction.
“Direct
to Consumer” (or “DTC”) loans
are those UFSB Astrive Loans for which proof of enrollment, but no school
certification, is obtained, as set forth in the Program
Guidelines. “Direct to Consumer” loans are typically marketed by
direct mail, phone and internet, as opposed to marketing through school
financial aid offices. “Direct to Consumer” loans are identified on
those pages of the Schedule 3.3 to the Guaranty Agreement, as amended and/or
supplemented from time to time, that include headings identifying the loans
thereon as Direct to Consumer products.
“Disclosing
Party” means the party
disclosing Proprietary Information.
“First
Marblehead” or “FMC” shall mean
The First Marblehead Corporation, a Delaware corporation.
“First
Payment Date” means the date
when the first monthly payment is due with respect to a particular UFSB Astrive
Conforming Loan.
“Guaranty
Agreement” means the Guaranty
Agreement between Program Lender and XXXX dated of near or even date herewith,
as it may be amended from time to time.
“Interim
Financing Transaction” shall
mean a temporary financing mechanism of 364 days or less in duration, pursuant
to which an interim or warehouse holder (whether or not affiliated with FMC)
lends funds to FMC or a Purchaser Trust to finance the purchase of Seasoned
Loans by FMC or such Purchaser Trust.
“Loan”
shall
mean a loan of funds,
including all disbursements thereof, made by the Program Lender to a Borrower
(as defined in the Guaranty Agreement) under the UFSB Astrive
Program.
“Market
Disruption Event” means any of
the following, which, in the reasonable judgment of FMC, makes it impractical
to
proceed with the completion of a Securitization Transaction pursuant to a
Permanent Financing Transaction: (a) any suspension or limitation on trading
in
securities generally on the New York Stock Exchange or the National Association
of Securities Dealers National Market system; (b) any banking moratorium
declared by federal, Massachusetts or New York authorities; (c) any outbreak
or
escalation of major hostilities or armed conflict, or any declaration of war
by
Congress; (d) any applicable change in federal or state law or regulations;
(e)
the closing of the market for commercial paper or asset-backed securities or
significant disruption in the functioning of those markets; and, which also
means the occurrence of a XXXX Insolvency Event.
“MBIA”
means
MBIA Insurance
Corporation.
“Minimum
Purchase Price” has the
meaning set forth in Section 2.04.
“Note
Insurer” means Ambac, MBIA, or
any other provider of credit insurance or note insurance with respect to the
obligations of the Purchaser Trust.
“Origination
Agreement” refers to (a)
the Loan Origination Agreement to be entered into between XXXX and Program
Lender with respect to origination of UFSB Astrive Conforming Loans, as amended
from time to time, and (b) any subsequent agreement relating to origination
services provided to Program Lender with respect to UFSB Astrive Notes purchased
under this Agreement that is acceptable in form and substance to each of FMC
and
XXXX.
“Origination
Records” means and refers to the original UFSB Astrive Loan Application and
Note, a form of cosigner notice when required under 16 C.F.R. § 444, and any
other standardized documentation specified from time to time in the Program
Guidelines or by FMC as required to be received by the Servicer from the Program
Lender in order to service UFSB Astrive Conforming Loans adequately and
accurately.
“Participating
Institution” means an
educational institution approved by XXXX for receipt of UFSB Astrive Conforming
Loan funds.
“Permanent
Financing Transaction” shall
mean the purchase, whether or not following an Interim Financing Transaction,
of
Loans by FMC or an FMC-sponsored entity, including without limitation a
Purchaser Trust, that has arranged financing for a term of one year or
greater.
“PHEAA”
shall
mean the Pennsylvania
Higher Education Assistance Agency, a public corporation and government
instrumentality organized under the laws of the Commonwealth of Pennsylvania,
and having an address at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxxx, XX
00000.
“Pledged
Account” has the meaning set
forth in the Security Agreement.
“Program
Guidelines” means the program
guidelines for the UFSB Astrive Loan Program attached to the Guaranty Agreement
as Exhibit A, as amended and/or supplemented from time to time as set forth
in
Sections 6.1 and 6.2 of the Guaranty Agreement and Section 4.02
hereof.
“Proprietary
Information” means
financial statements, costs and expense data, marketing and customer data,
default and recovery statistics, loan program parameters, risk management
strategies, recovery strategies, other trade secrets, and such other information
(other than Customer Information) as may be supplied by the respective parties
which is not generally ascertainable from public or published information,
including, without limitation, any of the same relating to or owned by any
subsidiary or affiliate of such parties, except for:
(a) ideas
and information which, at the time of disclosure are in the public domain or
which, after disclosure, become part of the public domain through publication
or
otherwise through no fault of the Receiving Party;
(b) ideas
and information which the Receiving Party can show are lawfully in its
possession at the time of disclosure and were not acquired, directly or
indirectly, from the Disclosing Party;
(c) ideas
and information which are legitimately furnished to the Receiving Party as
a
matter of right and without a binder of confidentiality from a third party;
or
(d) ideas
and information developed independently and which the Receiving Party can show
by contemporaneous records were developed without reference to Proprietary
Information received from the Disclosing Party.
“Program
Year” means the period of May
1 of one year through April 30 of the subsequent year.
“Purchase
Date” shall mean (a) the date
of consummation of a Securitization Transaction with respect to a particular
Pool of Seasoned Loans originated by Program Lender, which date: (i)
shall be set by written notice from FMC to Program Lender, given to Program
Lender not less than five (5) Business Days in advance of the specified date,
and (ii) shall occur [**] for each loan in such Pool in question, or (b) the
date on which FMC or a designee Purchaser Trust purchases a UFSB Astrive
Conforming Loan during the Right of First Refusal Period. FMC may
schedule up to twelve (12) Purchase Dates per calendar year.
“Purchase
Period” means, with respect
to any particular UFSB Astrive Loan, the period beginning on the first date
such
loan becomes a “Seasoned Loan” and ending [**] thereafter, as same may be
extended pursuant to the terms of this Agreement.
“Purchase
Transaction” means any
purchase of a Pool of Seasoned Loans by FMC or a Purchaser Trust, either in
an
Interim Financing Transaction or a Permanent Financing Transaction, whether
in a
Securitization Transaction or otherwise.
“Purchaser
Trust” shall mean and refer
to a designee of FMC, including without limitation a trust or other SPE formed
or sponsored by FMC or by any Affiliate of FMC for the purpose of purchasing,
directly or indirectly, UFSB Astrive Conforming Loans though an Interim
Financing Transaction or Permanent Financing Transaction. Any action
required or permitted to be taken by FMC hereunder may be taken by a Purchaser
Trust with respect to a particular Pool, and FMC may assign its rights hereunder
to a Purchaser Trust without the consent of the Program Lender. If FMC elects
to
finance the purchase of such Loans on an interim basis by using an SPE or any
other temporary financing vehicle as an interim holder, (i) the term Purchaser
Trust shall include both such interim holder and any other SPE to whom the
Loans
are ultimately transferred in a Securitization Transaction; and (ii) the
representations, warranties and indemnities made by the Program Lender to FMC
hereunder shall pass directly to both the interim holder and the ultimate
purchaser SPE.
“Rating
Agencies” shall mean and refer
to Standard and Poor’s Corporation and/or Xxxxx’x Investors Service, Inc.,
and/or Fitch Investors Services.
“Receiving
Party” means the party
receiving Proprietary Information.
“Right
of First Refusal Period” means
for a UFSB Astrive Loan, the earlier of (i) one hundred and eighty (180) days
after expiration of the relevant Purchase Period or (ii) forty-five (45) days
after notice that a bona fide written offer has been received by Program Lender
under Section 2.02 with respect to such UFSB Astrive Loan, provided that no
such
notice may be given until after expiration of the relevant Purchase
Period.
“Seasoned
Loan” means a UFSB Astrive
Conforming Loan as of [**] days after disbursement, but shall exclude any loan
disbursed by paper check if the paper check has not yet been paid by the drawee.
In the event a disbursement check is paid by the drawee more than
[**] days after it is written and the loan is fully disbursed, the
loan shall become a Seasoned Loan on the date of such payment. For purposes
of
computation of the Minimum Purchase Price, the term “Seasoned Loan” also
includes defaulted UFSB Astrive Conforming Loans not yet purchased by
XXXX.
“Securitization
Costs” means the actual
costs and expenses incurred by FMC, the Purchaser Trust, and all others entitled
to payment for expenses by the Purchaser Trust or FMC, in connection with a
Securitization Transaction including, without limitation, the
following:
(Structuring
and Origination Fees; Copy/Binding Costs)
(Underwriting
Expenses)
(Rating
Fee)
(Owner
Trustee and Indenture Trustee Transaction and First Year Fees;
Expenses)
(Counsel
for Indenture Trustee)
(Counsel
for FMC)
(Servicer
Auditor)
(Bond
Insurer)
“Securitization
Transaction” shall mean
the purchase of a Pool of UFSB Astrive Loans either pursuant to an Interim
Financing Transaction or a Permanent Financing Transaction, including without
limitation the purchase of a Pool of Seasoned Loans by FMC or a Purchaser Trust
funded through the issuance and sale of commercial paper, certificates, bonds
or
other securities or evidences of indebtedness, the repayment of which is
supported by payments on the Seasoned Loans included in such Pool. A
Securitization Transaction may also include, without limitation, a continuing
series of transactions occurring on a periodic basis in which Program Lender
makes a sale of then-outstanding Seasoned Loans to a Purchaser Trust, which
Purchaser Trust in turn either utilizes the Pool directly as collateral for
its
own debt or resells the Pool (in whole or in part) in further sales to a
securitization conduit providing financing to the Purchaser Trust or to another
Purchaser Trust that issues financial instruments.
“Servicer”
shall
mean and refer to
PHEAA, or such other servicer as may be approved by FMC and XXXX and retained
by
the holder of UFSB Astrive Conforming Loans in accordance with the terms hereof
and of the Guaranty Agreement.
“Servicing
Agreement” refers to: (a)
the Servicing Agreement entered into or to be entered into between Servicer
and
Program Lender with respect to servicing of UFSB Astrive Conforming Loans,
as
amended from time to time, and (b) any subsequent servicing agreement between
Program Lender and the Servicer governing servicing of UFSB Astrive Conforming
Loans purchased under this Agreement, in either case such agreement and any
amendment thereto to be satisfactory in form and substance to FMC and its
counsel.
“SPE”
means
a special purpose entity
formed and operated for the purpose of acting as purchaser and owner of UFSB
Astrive Conforming Loans and other education loans.
“XXXX
Insolvency Event” means (1) the
commencement by XXXX of a voluntary petition under the federal bankruptcy laws,
as now constituted or hereafter amended, or any other applicable federal or
state bankruptcy, insolvency or other similar laws, (2) the consent by XXXX
to
the appointment of or taking possession by a receiver, liquidator, trustee,
custodian (or other similar official) of or for XXXX or for any substantial
part
of its property, (3) the making by XXXX of any assignment for the benefit of
creditors, (4) the insolvency or the failure of XXXX generally to pay its debts
as such debts become due, (5) the downgrading of TERI’s credit worthiness below
the rating on January 2, 2003 or the placement of a negative watch on XXXX
by
one of the Rating Agencies, or (6) a default by XXXX under one or more Guaranty
Agreements to which XXXX is a party because of a failure to pay claims, or
the
taking of action by XXXX in furtherance of any of the foregoing.
“Term”
shall
mean the period commencing
on the effective date hereof and ending upon termination hereof, all as set
forth in Article X.
“Total
Principal Amount” means the
total principal amount of Seasoned Loans available to be sold and purchased
from
Program Lender under this Agreement.
“Trust
Agreement” means, with respect
to any particular Securitization Transaction, the agreement pursuant to which
a
Purchaser Trust is formed.
“Trust
Indenture” means, with respect
to any particular Securitization Transaction that is an Interim Financing
Transaction or a Permanent Financing Transaction, the agreement pursuant to
which FMC or a Purchaser Trust issues evidences of indebtedness secured by
the
payments on the related UFSB Astrive Conforming Loans.
II.
Agreement
for Purchase and Sale of Notes.
2.01. Purchase
and Sale.
On
each Purchase Date during the Term
of this Agreement and subject to the conditions set forth herein, Program Lender
shall sell to FMC or a designee Purchaser Trust, and FMC or such Purchaser
Trust
shall purchase, every Seasoned Loan owned by Program Lender on the Purchase
Date. The responsibility for the design and execution of marketing
programs for all UFSB Astrive Loans shall be that of the Program
Lender.
2.02. Pre-Closing
Information; FMC Purchase.
(a) Loan
Information. Program Lender will cause Servicer to inform FMC
periodically of information reasonably requested by FMC in anticipation of
a
Securitization Transaction, including, without limitation, the number of
Seasoned Loans ready for purchase, the amount of paid and unpaid principal
and
accrued interest with respect to each such Seasoned Loan, payment status
(including defaulted loans presented for guaranty payment), and the identity
of
Participating Institutions affected by the Securitization, together with the
information contained in PHEAA’s MR-50 and MR-53 reports and TERI’s weekly
origination report, which reports shall be provided in electronic media in
the
Servicer’s or TERI’s standard format.
(b) Purchase
Scheduling. FMC will use its best efforts to specify Purchase
Dates that fall in the second and fourth calendar quarters of each year, but
in
any event will, subject to Sections 2.02(d) and 3.01(b), purchase or cause
a
Purchaser Trust to purchase within a Purchase Period all of the Seasoned Loans
held by Program Lender prior to the expiration of the Purchase Period for any
Loan in the Pool (i.e., at least once every six (6) months). FMC
shall have the sole and exclusive right to purchase such UFSB Astrive Loans
[**], which right may be assigned to one or more Purchaser Trusts; provided,
however, that Program Lender may sell UFSB Astrive Loans to an Affiliate of
Program Lender in a temporary financing transaction so long as such Loans are
repurchased by Program Lender prior to the Purchase Date free and clear of
all
liens. FMC may reschedule the Purchase Date without penalty of any
kind, provided that the Purchase Date occurs prior to the expiration of the
Purchase Period (i.e., before any Loan then held by Program Lender has been
a
Seasoned Loan for more than six (6) months). The Purchase Period with
respect to any Loan may be extended due to lack of volume as set forth in
Section 2.02(d) or for a failure to comply with one or more conditions as set
forth in Section 3.01(b). Program Lender agrees, in consideration of
FMC’s undertaking pursuant to this section, not to sell or offer to sell to any
third person any interest in any UFSB Astrive Loan originated by Program Lender
[**] with respect to such Loan; provided, however, that Program Lender may
sell
UFSB Astrive Loans to an Affiliate of Program Lender in a temporary financing
transaction so long as such loans are repurchased by Program Lender prior to
the
Purchase Date free and clear of all liens. During the Right of First
Refusal Period, if Program Lender receives any bona fide third-party written
offer to purchase such UFSB Astrive Conforming Loan, and if Program Lender
desires to accept such offer, Program Lender shall, prior to accepting any
such
offer, provide a copy of same to FMC, and FMC (or a Purchaser Trust) shall
have
the sole and exclusive right to purchase such UFSB Astrive Conforming Loan
on
the terms of such third-party offer within the Right of First Refusal Period
for
such UFSB Astrive Conforming Loan. If FMC (or a Purchaser Trust)
fails to exercise such right prior to the end of the Right of First Refusal
Period with respect to such Loan, Program Lender shall within its sole
discretion be entitled to: (i) sell such UFSB Astrive Conforming Loan to any
third party or to retain such UFSB Astrive Conforming Loan, in whole or in
part,
for its own account, free and clear of any claim under this Agreement; and/or
(ii) immediately terminate this Agreement.
(c) Securitization
and Purchase Commitment Based Upon Volume. In the event that the
Total Principal Amount of Seasoned Loans held by Program Lender, together with
the Total Principal Amount of Astrive loans held by Charter One Bank, N.A.
which
qualify as Seasoned Loans under the applicable Note Purchase Agreement between
FMC and Charter One Bank, N.A. is:
(1) Less
than Five Million
Dollars ($5,000,000), FMC will use reasonable efforts to purchase or cause
the
purchase of all Seasoned Loans in a Securitization Transaction. FMC
shall bear no liability if such reasonable efforts fail to purchase or cause
the
purchase of all Seasoned Loans.
(2) Greater
than Five
Million Dollars ($5,000,000) but less than Twenty-Five Million Dollars
($25,000,000), FMC will use its best efforts to purchase or cause the purchase
of all Seasoned Loans in a Securitization Transaction, but will have no
obligation to do so if FMC is unable to do so after the use of best
efforts.
(3) Greater
than Twenty-Five
Million Dollars ($25,000,000) but less than Seventy-Five Million Dollars
($75,000,000), FMC shall purchase or cause the purchase of all Seasoned Loans
within the Purchase Period; provided, however, that such obligation shall be
effective only if lenders whose loans aggregate Seventy-Five Million Dollars
($75,000,000) or more in principal amount agree to have their loans included
in
the same Securitization Transaction (FMC shall use reasonable efforts under
this
Section 2.02(c)(2) to cause lenders to permit the addition of Seasoned Loans
in
a Securitization Transaction).
(4) Greater
than
Seventy-Five Million Dollars ($75,000,000), FMC shall purchase or cause the
purchase of all Seasoned Loans within the Purchase Period in a Securitization
Transaction.
(d) Extension
of Purchase Period Due to lack of Volume. In the event that the
volume conditions (set forth in Section 2.02(c)) for a binding purchase
commitment are not satisfied, FMC may, but need not, declare the Purchase Period
with respect to each UFSB Astrive Conforming Loan that is then a Seasoned Loan
extended by one hundred and eighty (180) days. FMC may continue to
declare such extensions, in its discretion, until the earlier of: (a) the date
when such volume conditions have been satisfied or (b) the date this Agreement
expires or is terminated (in which event FMC shall schedule a Purchase Date
for
all outstanding UFSB Astrive Loans, to occur prior to the expiration of the
Purchase Period for the last loan made subject to this Agreement; provided,
however, that if this Agreement is terminated under subsection 2.02(b)(ii)
on account of FMC’s failure to purchase Seasoned Loans, then Program Lender
shall not be required to sell loans hereunder and shall have recourse to its
remedies under Section 2.02(e)).
(e) Damages
from Failure to Purchase. If FMC or a Purchaser Trust fails to
purchase within a Purchase Period (as the same may be extended pursuant to
Section 2.02(d)) one or more Seasoned Loans prior to the end of the Purchase
Period with respect to such Loans, to the extent such failure is not excused
under Section 3.01(b), FMC shall pay to Program Lender as liquidated damages
1%
of the Total Principal Amount of all Seasoned Loans as to which the Purchase
Period has expired; provided, however, that if FMC pays said 1%
liquidated damages amount and Program Lender subsequently sells the Loans in
question to FMC, a Purchaser Trust or any third party during the Right of First
Refusal Period, the 1% liquidated damages amount shall be refunded to FMC to
the
extent the sum of (i) the 1% liquidated damages amount and (ii) the total amount
received by Program Lender for such Loans exceeds the Minimum Purchase Price
(as
defined in Section 2.04 and computed as of the actual purchase
date). If a failure to purchase is continuing, additional damages may
become payable at thirty-day intervals as the Purchase Period expires as to
additional loans. Such payments shall constitute liquidated damages in full
satisfaction of FMC’s obligations with respect to the purchase of such loans,
and FMC shall have no further liability to Program Lender with respect
thereto. Once the Right of First Refusal Period for a UFSB Astrive
Loan has expired, Program Lender shall be under no further obligation to offer
such UFSB Astrive Loan to FMC (or a Purchaser Trust) for purchase.
(f) FMC
Reliance on Program Guidelines and Other Agreements. Program
Lender further agrees, in consideration of FMC’s undertaking pursuant to this
section, that no change shall be made in any of the Program Guidelines, the
Guaranty Agreement, the Loan Origination Agreement, or the interest rate and
terms, as well as other consumer loan terms and conditions of UFSB Astrive
Loans
without FMC’s prior written consent, which consent shall not be unreasonably
withheld.
2.03. Pool
Supplement.
Each
purchase and sale of the Seasoned
Loans included in a Pool on a Purchase Date shall be made pursuant to a pool
supplement substantially in the form of Exhibit A (“Pool Supplement”) which
shall: (1) set forth the Minimum Purchase Price for the Seasoned Loans included
in the Pool, (2) incorporate by reference the terms and conditions of this
Agreement applicable to sales of UFSB Astrive Conforming Loans, and (3) include
a Schedule of Seasoned Loans setting forth the details and characteristics
of
each such Seasoned Loan included in the Pool. Each Pool Supplement
shall be executed by an authorized agent of each Purchaser Trust and the Program
Lender and shall be delivered on the related Purchase Date. The
Purchaser Trust shall provide a preliminary settlement sheet in the form of
Schedule 1 to the Pool Supplement not less than two (2) Business Days prior
to
the Purchase Date.
2.04. Minimum
Purchase Price.
On
the Purchase Date, Program Lender
shall assign and convey all Seasoned 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 Seasoned Loans to be purchased:
|
(a)
|
The
unpaid principal amount ([**]) of the Seasoned Loans in the Pool;
plus
|
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(b)
|
[**]
accrued and unpaid interest on such Seasoned Loans, [**];
plus
|
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(c)
|
To
the extent not paid by Advanced Fees (as defined in Schedule 3.3
of the
Guaranty Agreement):
|
|
|
(i)
|
[**]
fees paid by Program Lender to XXXX with respect to such Seasoned
Loans
[**]; plus
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|
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(ii)
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The
amount of any Subsequent Administrative Guaranty Fees due to XXXX
at the
time of the Purchase Transaction [**];
plus
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(iii)
|
The
amount of any Guaranty Fees paid by Program Lender to XXXX at disbursement
of the loan [**]; plus
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|
(iv)
|
The
amount of any Subsequent Guaranty Fees due to XXXX at the time of
the
Purchase Transaction [**]; plus
|
WITH
RESPECT TO UNION FEDERAL SAVINGS BANK’S ASTRIVE BRANDED DIRECT TO CONSUMER
EDUCATION LOANS:
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(d)
|
A
marketing fee and loan premium, computed as a percentage of the original
principal amount (net of financed fees) or (if less) the remaining
principal amount (net of financed fees) of the Seasoned Loans as
follows
(for tier references see Schedule 3.3 of the Guaranty
Agreement):
|
|
1.
|
with
respect to Direct to Consumer Undergraduate Creditworthy Loans, [**]%
for
tiers [**];
|
|
2.
|
with
respect to Direct to Consumer Graduate Creditworthy Loans, [**]%
for tiers
[**];
|
|
3.
|
with
respect to Direct to Consumer Continuing Education Creditworthy Loans,
[**]% for tiers [**];
|
|
4.
|
with
respect to Direct to Consumer K-12 Creditworthy Loans,
[**]%;
|
|
5.
|
with
respect to Direct to Consumer Undergraduate Creditworthy Expanded
Tier
Loans, [**]% for tiers [**];
|
|
6.
|
with
respect to Direct to Consumer Graduate Creditworthy Expanded Tier
Loans,
[**]% for tiers [**]; and
|
|
7.
|
with
respect to Direct to Consumer Continuing Education Creditworthy Expanded
Tier Loans, [**]% for tiers [**].
|
(e)
MINUS any Advanced Fees (as defined in Schedule 3.3 to the Guaranty Agreement)
reimbursed to Lender by XXXX pursuant to Schedule 3.3 of the Guaranty
Agreement.
III. Procedures
and Conditions for Transfer.
3.01. Conveyances
of UFSB Astrive Conforming Loans; Conditions to Purchase.
(a) On
each Purchase Date, upon execution and delivery of the related Pool Supplement,
Program Lender shall sell, transfer, assign, set over and otherwise convey
to
FMC or the Purchaser Trust, without recourse, all right, title and interest
of
Program Lender in and to:
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(1)
|
The
Seasoned Loans included in the related Pool originated by Program
Lender
and all payments due or to become due
thereon;
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(2)
|
Any
claims against XXXX and proceeds of such claims with respect to
origination of the Seasoned Loans included in the
Pool;
|
|
|
(3)
|
Any
claims against Servicer with respect to servicing of the Seasoned
Loans
prior to the Purchase Date.
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|
|
(4)
|
The
proceeds of any and all of the foregoing received after the Purchase
Date
or received prior thereto and not credited against the Minimum Purchase
Price as computed on the Purchase Date;
and
|
|
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(5)
|
All
rights of Program Lender under the Guaranty Agreement with respect
to the
Seasoned Loans in the Pool.
|
(b) The
obligation of FMC and/or any Purchaser Trust to purchase the Seasoned Loans
on
the related Purchase Date shall be subject to satisfaction of the following
conditions (any of which may be waived by FMC or such Purchaser Trust, in whole
or in part in its sole discretion):
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|
(1)
|
Program
Lender shall have delivered to the Purchaser Trust a duly authorized
and
executed Pool Supplement;
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|
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(2)
|
Each
of the representations and warranties made by Program Lender with
respect
to the Seasoned Loans included in such Pool shall be true and correct
in
all material respects as of the related Purchase
Date;
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|
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(3)
|
Program
Lender shall have entered into an Origination Agreement and a Servicing
Agreement satisfactory in form and substance to FMC and such agreements
shall be in full force and effect as of the Purchase Date and shall
not
have been modified except with the express prior written consent
of FMC
and Program Lender;
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(4)
|
(a)
Program Lender shall have performed and observed the terms and conditions
of this Agreement in all material
respects,
|
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|
(b)
Program Lender and XXXX shall have performed and observed the terms
and
conditions of the Origination Agreement in all material respects
and there
shall not have occurred a default thereunder,
and
|
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(c)
Program Lender and Servicer shall have performed and observed the
terms
and conditions of the Servicing Agreement in all material respects
and
there shall not have occurred a default
thereunder;
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(5)
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The
Seasoned Loans to be purchased shall have been originated and serviced
in
conformity with the Program Guidelines in all material respects and
shall
be covered by the Guaranty Agreement;
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(6)
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If
requested by FMC, XXXX shall have executed and delivered a confirmation
of
guaranty in the form of a certificate of guaranty (“Certificate of
Guaranty”), covering all Seasoned Loans being purchased, for the benefit
of the Purchaser Trust and the indenture trustee in the Securitization
Transaction;
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(7)
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The
Custodian, acting pursuant to the Security Agreement, shall have
transferred to the indenture trustee in the Securitization Transaction
the
portion of the Pledged Account and the Collateral specified in Section
2
of the Security Agreement;
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(8)
|
If
required by any other lender whose loans are included in the
Securitization Transaction, the Program Lender shall have executed
and
delivered a Co-Lender Indemnification Agreement substantially in
the form
of Exhibit B;
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(9)
|
Program
Lender shall have delivered the opinion of its counsel confirming
the
matters set forth in subsections 5.02(a) and (b), such opinion to
be
satisfactory in form and substance to counsel for
FMC;
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(10)
|
Program
Lender shall, at its own expense, on or prior to the Purchase Date,
indicate in computer files relating to UFSB Astrive Conforming Loans
that
the Seasoned Loans identified in the related Pool Supplement have
been
sold to the Purchaser Trust pursuant to this Agreement and such Pool
Supplement;
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(11)
|
Program
Lender hereby authorizes the filing of a UCC-1 financing statement
with
respect to the Seasoned Loans included in such Pool in the appropriate
office of the jurisdiction in which the Program Lender is located
(or, in
the event of a change of law, Program Lender shall have taken, but
at no
additional cost or expense to the Program Lender, such action as
may be
reasonably required by the Purchaser
Trust);
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|
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(12)
|
As
of such Purchase Date: (i) Program Lender was not insolvent and will
not
become insolvent as a result of the sale and transfer of Seasoned
Loans on
such Purchase Date, (ii) Program Lender did not intend to incur or
believe
that it would incur debts that would be beyond Program Lender’s ability to
pay as such debts matured, (iii) such transfer was not made with
actual
intent to hinder, delay or defraud any Person, and (iv) Program Lender
was
“Well Capitalized,” as such term is defined by the rules and regulations
promulgated by the Office of Thrift Supervision as in effect on the
Purchase Date;
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|
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(13)
|
No
Market Disruption Event has occurred; provided that if satisfaction
of the
condition set forth in this Section 3.01(b)(13) is the only outstanding
condition to closing, FMC shall schedule a new Purchase Date as soon
as is
reasonably practicable after the Market Disruption Event has
ceased;
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|
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(14)
|
Program
Lender shall have caused Servicer to deliver timely data reports
to FMC,
as set forth in Section 2.02 hereof; and
|
|
|
(15)
|
Program
Lender shall have executed and delivered a Certificate in the form
of
Exhibit C.
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(c) The
obligation of Program Lender to sell the Seasoned Loans included in the Pool
on
a related Purchase Date is subject to satisfaction of the following conditions
(any of which may be waived by Program Lender in whole or in part, in its sole
discretion):
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|
(1)
|
Purchaser
Trust shall have delivered to Program Lender a duly authorized and
executed Pool Supplement; and
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|
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(2)
|
Purchaser
Trust shall have paid the Minimum Purchase Price to Program Lender
by wire
transfer of immediately available funds. Such wire transfer
shall be made in conformity with the following
instructions:
|
|
Union
Federal Savings
Bank
|
|
|
Bankers
Bank
Northeast
000
Xxxxxxx Xxxxx
Xxxxx
Xxxxxxxxxxx,
XX
00000-0000
|
|
|
ABA
# 000000000
|
|
|
A/C
# 1117
|
|
|
ATTENTION:
|
|
|
Comments:
|
|
3.02. Delivery
of Documents.
On
the Purchase Date, Program Lender
shall deliver to the Servicer, as agent for the Purchaser Trust, and/or to
the
trustee of the Trust Indenture, each UFSB Astrive Note evidencing a Seasoned
Loan included in the Pool and the related Origination Records. If a
Co-Lender Indemnification Agreement is required as a condition of FMC’s or any
Purchaser Trust’s obligations under Section 3.01(b)(8) hereof, Program Lender
shall execute and deliver a Co-Lender Indemnification Agreement to each lender
selling loans in the Securitization Transaction.
3.03. Confirmation
of Representations and Warranties; Permanent Financing
Transactions.
(a) In
each Pool Supplement, Program Lender shall confirm and certify its
representations and warranties contained herein as if fully set forth in the
Pool Supplement.
(b) The
parties hereto understand and agree that the representations and warranties
of
the Program Lender in this Agreement are made both with respect to an Interim
Financing Transaction and a Permanent Financing Transaction, as applicable,
to
each Purchaser Trust that purchases a UFSB Astrive Conforming Loan, whether
directly or indirectly (including, without limitation, any purchaser in any
Interim Financing Transaction or Permanent Financing Transaction), any fiduciary
under any Trust Indenture, and any Note Insurer providing credit enhancement
with respect to a Permanent Financing Transaction. Upon the request
of FMC and in connection with each Permanent Financing Transaction in which
loans previously sold in an Interim Financing Transaction will be purchased,
Program Lender shall confirm and certify its representations and warranties
contained herein to any or all of the Permanent Financing Transaction
participants listed above in a Certificate substantially in the form of Exhibit
D.
3.04. Rights
Transferred.
The
transfer of funds pursuant to
Section 2.04 hereof shall constitute, and the delivery to FMC, or its designated
Purchaser Trust of each Pool Supplement shall evidence, a sale and assignment
to
FMC or the Purchaser Trust of the related Seasoned Loans and of all of Program
Lender’s interest in such Seasoned Loans. As purchaser of such
Seasoned Loans, FMC or the Purchaser Trust shall receive: (i) interest on such
Seasoned Loans from and after the Purchase Date, and (ii) any and all other
payments and recoveries received by the Servicer or Program Lender from the
borrowers and co-signers of such Seasoned Loans, or others pursuant to, or
in
respect of, such Seasoned Loans from and after the Purchase Date, and all
proceeds thereof.
3.05. Subsequent
Receipts.
In
the event that Program Lender shall
receive, subsequent to any such assignment, any amounts whatsoever in respect
to
the Seasoned Loans so assigned in the nature of those described in Section
3.04
above, such amounts shall be held by Program Lender in trust for FMC or the
Purchaser Trust to which it has sold the Notes, and the Program Lender shall
deliver such amounts within one Business Day to the trustee under the Trust
Indenture.
3.06. Assignment
of Origination Rights.
Program
Lender shall insure that
Program Lender’s rights under the Servicing Agreement and the Origination
Agreement with respect to any matters occurring prior to the Purchase Date
and
affecting the Seasoned Loans included in each Pool shall be transferred to
FMC
or the Purchaser Trust by execution and delivery of a Pool
Supplement. Program Lender shall require the party who originated
each such Seasoned Loan to complete any loan origination services being
performed for Program Lender on the Purchase Date so that complete Origination
Records are ready for transfer to the Purchaser Trust (or to Servicer on its
behalf).
3.07. No
Assumption of Liability to Fund UFSB Astrive Loan Notes.
By
their purchase of Seasoned Loans
(and any related UFSB Astrive Notes), neither FMC nor any Purchaser Trust,
shall
assume any liability, responsibility or obligation with respect to any
disbursements or reimbursements that are due and owing, or which are, or may
be
alleged to be due and owing, by Program Lender to any Participating Institution
or to any Seasoned Loan borrower by reason of the Seasoned Loans included in
the
Pool and evidenced by the UFSB Astrive Notes. Program Lender shall be
solely responsible to fulfill its obligations under any agreements it may have
with any Participating Institution regarding origination and funding of such
Seasoned Loans. Notwithstanding the foregoing, FMC or the Purchaser
Trust shall assume from Program Lender any liability to repurchase from XXXX
a
defaulted Loan upon cure of the default, with respect to any Loan that would
be
a Seasoned Loan but for such default and purchase by XXXX. Such
repurchase obligation shall be governed by the Certificate of Guaranty described
in Section 3.01(b)(6), above.
3.08. Servicing
and Origination Costs.
Program
Lender shall be solely
responsible for and shall pay all costs due to any third party from Program
Lender (including, without limitation, amounts due to XXXX or Servicer) with
respect to origination of UFSB Astrive Conforming Loans and with respect to
loan
servicing of UFSB Astrive Conforming Loans incurred prior to purchase of a
UFSB
Astrive Conforming Loan hereunder. FMC shall be solely responsible
for and shall pay any obligations it has incurred in connection with the UFSB
Astrive Conforming Loans and shall be solely responsible for arranging and
paying all costs for servicing of the UFSB Astrive Conforming Loans after
purchase of such Loans.
3.09. Securitization
Costs. FMC or the Purchaser Trust shall be solely responsible for and
shall pay any Securitization Costs and any and all obligations it has incurred
in connection with the purchase, financing of purchase and securitization of
the
Seasoned Loans in a Securitization Transaction. Program Lender is
responsible for paying its own related counsel fees, but shall not be
responsible for paying the counsel fees of any other lender participating in
the
Securitization Transaction.
3.10. Effect
of Loan Cancellations. In the event that the Borrower cancels a
Seasoned Loan in a manner and at a time permitted under the Program Guidelines,
if that Seasoned Loan has already been purchased under this Agreement, Program
Lender will return to the Purchaser Trust all amounts received by it with
respect to such purchase. FMC shall prepare an accounting of all such
cancellations within 30 days after the last date permitted for cancellation
of
Seasoned Loans purchased on a particular Purchase Date.
IV. Marketing.
4.01 Marketing
Concentration.Program Lender
understands that FMC affiliates and XXXX provide loan origination services
for
multiple lenders and products. Although education lending is
unavoidably seasonal, it is in the interest of Program Lender to avoid having
unnecessary concentrations of loan applications that are submitted
simultaneously. Such concentrations cause degradation of services to
all applicants. Accordingly, Program Lender agrees to provide
quarterly estimates of its projected marketing activity, with monthly updates
to
FMC and to XXXX. Such estimates may include gross marketing contacts
with expected response rates or expected net applications, and in all cases
shall include timing of mailings, telemarketing and other direct
marketing. Upon request, Program Lender shall consult in good faith
regarding reasonable marketing schedule modifications requested by FMC or XXXX
to avoid application concentration.
V.
Representations
and Warranties.
5.01. Representations
and Warranties of FMC.
FMC
makes the following representations
and warranties as of the date hereof, as of the date of each purchase of
Seasoned Loans and as of any other date specified below. FMC shall
cause each Purchaser Trust to make substantially the same representations and
warranties in a Pool Supplement as of the date of each purchase of Seasoned
Loans:
(a) FMC
represents and warrants that it is and shall remain a Delaware corporation
duly
organized, validly existing and in good standing under the laws of the State
of
Delaware, and has the requisite corporate authority to conduct all activities
and consummate all transactions contemplated by this Agreement.
(b) FMC
has all requisite corporate 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 constitutes the legal, valid and binding obligation of FMC
enforceable against FMC in accordance with its terms, except that such
enforceability may be limited by bankruptcy, insolvency, reorganization or
other
similar laws.
(c) Neither
the execution and delivery of this Agreement, the consummation of the
transactions contemplated hereby, nor the fulfillment of or compliance with
the
terms and conditions hereof, will conflict with, or result in a breach of,
or
constitute a default under, any of the terms, conditions or provisions of any
legal restriction or any agreement or instrument to which FMC is now a party
or
by which it is bound.
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
Purchase Transaction, whether by Interim Financing Transaction or Permanent
Financing Transaction, and as of any other date specified below:
(a) Program
Lender represents and warrants that it is, and shall continue to be,
a federal savings bank 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 UFSB Astrive Conforming Loans originated by Program Lender and sold
to
FMC or a Purchaser Trust pursuant to any Purchase Transaction (i) is the valid,
binding and enforceable obligation of the borrower executing the same, and
of
any cosigner thereto, duly and properly executed by each borrower, any student
maker named therein, and any cosigner thereunder, and 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, (ii) is covered by and entitled
to the benefits of the Guaranty Agreement to the extent of 100% of the principal
thereof and accrued interest thereon, (iii) is a Seasoned Loan, fully disbursed
with no further requirement for future advances thereunder.
(e) Each
UFSB Astrive Conforming Loan was originated in the United States of America,
its
territories, its possessions or other areas subject to its jurisdiction by
Program Lender, or its agents, in the ordinary course of its business and was
made to a borrower with legal capacity to execute and deliver the UFSB Astrive
Note under applicable law. Each UFSB Astrive Conforming Loan originated by
Program Lender sold hereunder and any accompanying notices and
disclosures:
|
|
(i)
conforms to all applicable state and federal laws, rules and regulations,
and
|
|
|
(ii)
was documented on forms set forth in the Program Guidelines, including,
without limitation, promissory note forms
that
|
(1)
require interest accrual (whether or not such interest is being paid currently
or is being capitalized) and yield interest at the rate applicable thereto;
and
(2)
provide or, when the payment schedule with respect thereto is determined, will
provide for payments on a periodic basis that fully amortize the principal
amount of the UFSB Astrive Conforming Loan by its maturity, as such
maturity may be modified in accordance with any applicable deferral or
forbearance periods granted in accordance with applicable laws and the Program
Guidelines; and
(iii)
contained consumer loan terms and involved guaranty fees payable to XXXX in
strict conformity with the Program Guidelines.
(f) The
origination, servicing, and collection (if any) of each UFSB Astrive Conforming
Loan was conducted in accordance with
(i)
the
Program Guidelines, including, without limitation, the requirements therein
that
|
|
(A)
no loan be originated for a dead borrower or a borrower involved
in a
bankruptcy proceeding,
|
|
|
(B)
at least one borrower for each loan must be a United States
citizen/national or a permanent resident alien of the United States,
and
|
|
|
(C)
the borrower must have attained the age of majority at the time of
the
loan application, and
|
(ii)
all
applicable state and federal laws including, without limitation, the Equal
Credit Opportunity Act.
No
application to Program Lender for a UFSB Astrive 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.
(g) Each
UFSB Astrive Conforming Loan originated by Program Lender sold to FMC or
Purchaser Trust is in compliance with any applicable usury laws at the time
made
and as of the time of assignment to FMC or a Purchaser Trust.
(h) There
is no defense to payment, counterclaim, right of rescission, or setoff with
respect to any UFSB Astrive Conforming Loan sold under this Agreement, and
no
fraud, error, omission, misrepresentation, or similar occurrence with respect
to
any UFSB Astrive Conforming Loan sold under this Agreement has taken place
on
the part of any party involved in the origination of the UFSB Astrive Conforming
Loan (including, without limitation, fraud by the obligor under the UFSB Astrive
Note). 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 UFSB Astrive Conforming Loans originated by
Program Lender and included in the Pool.
(i) Each
and every UFSB Astrive Conforming 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.
(j) With
respect to each UFSB Astrive 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, (B) the borrower is not entitled to any
refund, rebate, or reduction of any amounts paid or due except in accordance
with Section 3.10 hereof and the cancellation policy in the Program Guidelines,
and (C) such UFSB Astrive Note has been serviced at all times in
accordance with the Program Guidelines, including, without limitation the forms
of promissory note therein , and is held by the Servicer pursuant to the
Servicing Agreement.
5.03. Exclusive
Representations and Warranties.
The
representations and warranties set
forth in Section 5.02 above are the sole and exclusive representations and
warranties made by the Program Lender, its representatives, agents, officers,
directors and other employees, with respect to this Agreement, any Pool
Supplement, any UFSB Astrive Conforming Loan, any obligor, and the sale of
any
UFSB Astrive Conforming Loan to the Purchaser Trust hereunder or
otherwise.
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
materially inaccurate or incomplete as of the date when made with respect to
one
or more UFSB Astrive Conforming Loans, Program Lender shall have the obligation
upon written notice from FMC or the Purchaser Trust to repurchase the affected
UFSB Astrive Conforming Loan or Loans no later than such 60 days after such
notice 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 UFSB Astrive 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
performs its obligation to repurchase, Program Lender shall indemnify FMC,
any
Purchaser Trust and any fiduciary under a Trust Agreement pursuant to Article
VIII of this Agreement. Notwithstanding the foregoing, FMC or the
Purchaser Trust shall afford the Program Lender thirty (30) days to cure the
insufficiency or inaccuracy of the representation or warranty prior to any
notice demanding that Program Lender perform its obligation to repurchase the
affected UFSB Astrive Conforming Loan.
VI.
Survival
of Representations, Warranties and Indemnities.
As
to any UFSB Astrive Conforming Loans
purchased hereunder, the representations and warranties contained herein and
the
indemnifications and indemnification procedures contained in Article VIII hereof
with respect to such UFSB Astrive Conforming Loans shall survive until each
such
UFSB Astrive Conforming Loan is paid in full. The duty of
confidentiality for Proprietary Information set forth in Article XI hereof
shall
survive termination of this Agreement.
VII. Miscellaneous.
7.01. No
Assignment.
No
party may assign its rights or
obligations under this Agreement without the prior written consent of the
parties hereto, provided, however, that: (a) Program Lender may
assign its rights hereunder to an Affiliate that is a national banking
association, federal savings bank or state-chartered bank having the legal
power
and right under applicable law (including, without limitation, usury law in
the
State where it is located) to make UFSB Astrive Conforming Loans, and (b)
FMC may assign its rights hereunder to one or more Purchaser Trusts
or other interim or permanent holders of UFSB Astrive Conforming
Loans. No assignment shall relieve the assignor of liability
hereunder. Any assignment in violation of this Section 7.01 shall be
automatically null and void.
7.02. Amendment.
This
Agreement may not be amended nor
terms or provisions hereof waived unless such amendment or waiver is in writing
and signed by all parties hereto.
7.03. No
Waiver.
No
delay or failure by any party to
exercise any right, power or remedy hereunder shall constitute a waiver thereof
by such party, and no single or partial exercise by any party of any right,
power or remedy shall preclude other or further exercise thereof or any exercise
of any other rights, powers or remedies.
7.04. Entire
Agreement.
This
Agreement and the documents and
agreements referred to herein embody the entire agreement and understanding
among the parties hereto and supersede all prior agreements and understandings
relating to the subject matter hereof and thereof.
7.05. Notices.
All
notices given by any party to the
others under this Agreement shall be in writing delivered: (a) personally,
(b)
by facsimile transmission, (c) by overnight courier, prepaid, or (d) by
depositing the same in the United States mail, certified, return receipt
requested, with postage prepaid, addressed to the party at the address set
forth
below. Any party may change the address to which notices are to be
sent by notice of such change to each other party given as provided
herein. Such notices shall be effective on the date
received. Notices shall be given as follows:
If
to Program Lender:
Union
Federal Savings Bank
Attn: Xxxx
Xxxx, President
0000
Xxxxxxx Xxxxxx Xxxxxx
Xxxxx
Xxxxxxxxxx, XX 00000
If
to
FMC:
Xxxx
X.
Xxxxxxxx
The
First
Marblehead Corporation
000
Xxxxxxxx Xx., 00xx Xxxxx
Xxxxxx,
XX 00000-0000
With
a
copy to:
Corporate
Law Department
The
First
Marblehead Corporation
000
Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx,
XX 00000-0000
7.06. Attorneys’
Fees.
In
the event of a lawsuit or
arbitration proceeding arising out of or relating to this Agreement, the
prevailing party shall be entitled, at the discretion of the court or
arbitrator, to recover costs and reasonable attorneys’ fees incurred in
connection with the lawsuit or arbitration proceeding.
7.07. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
Commonwealth of Massachusetts (without reference to choice-of-law
rules).
7.08. Counterparts.
This
Agreement may be executed in any
number of counterparts, all of which together shall constitute one
agreement.
7.09. No
Third Parties Benefited.
This
Agreement is made and entered into
for the protection and legal benefit of the parties, and their permitted
successors and assigns (including, without limitation, any Purchaser Trust),
and
each and every Indemnified Person (as hereinafter defined) (all of which shall
be entitled to enforce the Indemnity contained in Sections 8.01 and 8.02
hereof), and no other person shall be a direct or indirect legal beneficiary
of,
or have any direct or indirect cause of action or claim in connection with,
this
Agreement.
7.10. Opinions.
Concurrent
with the execution hereof,
each party shall deliver to the other the opinion of its corporate counsel
(which may be internal counsel) to the effect that this Agreement has been
duly
authorized by all necessary corporate or other organizational action, this
Agreement is within the corporate or other organizational power of such party
and that this Agreement has been duly executed and delivered by an authorized
officer of the party.
7.11. Permitted
Filing.
FMC
may file this Agreement (with
redactions as permitted by law) with the appropriate federal regulators,
including but not limited to the Securities and Exchange Commission, as required
by such regulators.
7.12. Covenant
to Deliver Agreements.
Prior
to the first origination of any
loan subject to this Agreement, Program Lender shall deliver to FMC a duly
executed Origination Agreement and Servicing Agreement, such agreements to
be
satisfactory to FMC in form and substance.
VIII. Indemnification.
8.01. By
Program Lender.
Regardless
of the exercise or
nonexercise of the repurchase obligation under Section 5.04, Program Lender
shall indemnify and hold harmless FMC, each Purchaser Trust that purchases
a
UFSB Astrive Conforming Loan, whether directly or indirectly (including, without
limitation, any purchaser in an Interim Financing Transaction or Permanent
Financing Transaction) and any fiduciary under any Trust Indenture, any Note
Insurer providing credit enhancement with respect to a Permanent Financing
Transaction, and any officer, director, employee or agent of any of the
foregoing (herein, individually referred to as an “Indemnified Person” and
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.
8.03. Indemnity
Procedures.
(a) In
the event that any claim or demand for which an indemnifying party would be
liable to an Indemnified Person hereunder is asserted against or sought to
be
collected from an Indemnified Person by a third party (an “Action”), the
Indemnified Person shall promptly notify the indemnifying party of such Action,
specifying the nature of such claim or demand and the amount or the estimated
amount thereof to the extent feasible (which estimate the parties agree shall
not be conclusive of the final amount of such claims and demand) (the “Claim
Notice”). The failure to provide the Claim Notice to the indemnifying
party promptly will not relieve the indemnifying party of any liability it
may
have to the Indemnified Person giving the Claim Notice, except to the extent
that the indemnifying party demonstrates that the defense of such action is
actually and materially prejudiced by the indemnifying party’s failure to give
such Claim Notice promptly. The indemnifying party shall have ten
(10) days from the delivery of the Claim Notice (the “Notice Period”) to notify
the Indemnified Person, (1) whether or not the indemnifying party disputes
liability to the Indemnified Person hereunder with respect to such claim or
demand and (2) notwithstanding any such dispute, whether or not the indemnifying
party desires, at its sole cost and expense, to defend the Indemnified Person
against such claim or demand in which case the indemnifying party shall assume
all past and future responsibility for such action and shall reimburse the
Indemnified Person for all expenses in connection with the
Action. Notwithstanding the assumption by the indemnifying party of
the defense of any Action, the Indemnified Person shall be permitted to
participate in such defense at its cost and expense.
(b) Pending
the resolution of any dispute by the indemnifying party of its liability with
respect to any claim or demand, such claim or demand shall not be settled
without the prior written consent of the Indemnified Person, which consent
shall
not be unreasonably withheld so long as the Indemnified Person suffers no
economic loss thereby and such settlement includes an unconditional term thereof
given by the claimant or plaintiff of a release of the Indemnified Person from
all liability with respect to the claim or demand. Notwithstanding
the foregoing, if it is reasonably likely that damages in such Action would
result in an injunction or other equitable relief then the Indemnified Person
may, by notice to the indemnifying party, assume the right to defend, compromise
or settle such Action; provided, the indemnifying party may participate
in such Action at its expense and; provided, further, no such
Action shall be settled without the consent of both the Indemnified Person
and
the indemnifying party.
(c) In
the event that an indemnifying party notifies the Indemnified Person within
the
Notice Period that the indemnifying party desires to defend the Indemnified
Person against such claim or demand, then, except as hereinafter provided,
the
indemnifying party shall have the right and obligation to defend the Indemnified
Person by appropriate proceedings, which proceedings shall be promptly settled
or prosecuted by the indemnifying party to a final conclusion in such a manner
as to avoid any risk of the Indemnified Person becoming subject to liability
for
any other matter; provided, however, the indemnifying party shall not, without
the prior written consent of the Indemnified Person, consent to the entry of
any
judgment against the Indemnified Person or enter into any settlement or
compromise which does not include, as an unconditional term thereof, the giving
by the claimant or plaintiff to the Indemnified Person of a release, in form
and
substance satisfactory to such Indemnified Person, as the case may be, from
all
liability with respect to such claim or litigation. If any
Indemnified Person desires settlement without the prior consent of the
indemnifying party, which consent shall not be unreasonably withheld, it may
do
so at its sole cost and expense.
(d) If
the indemnifying party elects not to defend the Indemnified Person against
such
Action, whether by not giving the Indemnified Person timely notice as provided
above, or otherwise, then the Action may be defended by the Indemnified Person
at the indemnifying party’s cost and expense (without imposing any obligation on
any Indemnified Person to defend any such claim or demand), in which case it
may
defend such Action in such a manner as it may deem appropriate (including
settlement) and then that portion thereof as to which such defense is
unsuccessful, in each case, shall be conclusively deemed to be a liability
of
the indemnifying party hereunder; provided that if the indemnifying party
shall have disputed its liability to the Indemnified Person hereunder, as
provided in Section 8.03(a) above, then such determination or settlement shall
not affect the right of the indemnifying party to dispute the Indemnified
Person’s claim for indemnification.
(e) In
the event an Indemnified Person should have a claim against the indemnifying
party hereunder that does not involve a claim or demand being asserted against
or sought to be collected from it by a third party, the Indemnified Person
shall
promptly send a Claim Notice with respect to such claim to the indemnifying
party. If the indemnifying party disputes its liability with respect
to such claim or demand, the Indemnified Person shall have the right to pursue
all of its legal and equitable remedies against the indemnifying party for
indemnity hereunder.
8.04. Payment. Upon
the determination of the liability under Section 8.03 hereof, the indemnifying
party shall pay to the Indemnified Person within ten (10) days after such
determination, the amount of any claim for indemnification made hereunder,
subject to the limitations set forth herein. Upon payment in full of
any claim, either by set off or otherwise, the entity making payment shall
be
subrogated to the rights of the Indemnified Person against any person, with
respect to the subject matter of such claim.
IX. Dispute
Resolution
9.01. Informal
Dispute Resolution.
Any
controversy or claim between the
parties arising from or in connection with this Agreement or the relationship
of
the parties under this Agreement whether based in contract, tort, common law,
equity, statute, regulation, order or otherwise, and whether arising before
or
after the termination of this Agreement (“Dispute”) shall be resolved as
follows:
(a) Upon
written request of either party, the parties will each appoint a designated
representative whose task it will be to meet for the purpose of endeavoring
to
resolve such Dispute.
(b) The
designated representatives shall meet as often as the parties reasonably deem
necessary to discuss the problem in an effort to resolve the Dispute without
the
necessity of any formal proceeding.
(c) Arbitration
proceedings for the resolution of a Dispute under Section 9.02 may not be
commenced until the earlier to occur of the following:
(i) the
designated representatives conclude in good faith that amicable resolution
through continued negotiation of the matter does not appear likely;
or
(ii) the
expiration of a thirty (30) day period commencing immediately following receipt
of the initial request to negotiate the Dispute.
9.02. Arbitration.
If
the provisions of Section 9.01 have
been satisfied, but the Dispute has not been resolved, then the Dispute shall
be
settled pursuant to the following:
(a) Any
controversy or claim between or among the parties arising out of or relating
to
this Agreement or any agreements or instruments relating hereto or delivered
in
connection herewith and any claim based on or arising from an alleged tort,
shall at the request of any party be determined by arbitration. The
arbitration shall be conducted in accordance with the United States Arbitration
Act (Title 9, U.S. Code), notwithstanding any choice of law provision in this
Agreement, and under the Commercial Rules of the American Arbitration
Association (“AAA”). The arbitrator(s) shall give effect to statutes
of limitation in determining any claim. Any controversy concerning
whether an issue is arbitrable shall be determined by the
arbitrator(s). Judgment upon the arbitration award may be entered in
any court having jurisdiction. The institution and maintenance of an
action for judicial relief or pursuit of a provisional or ancillary remedy
shall
not constitute a waiver of the right of any party, including the plaintiff,
to
submit the controversy or claim to arbitration if any other party contests
such
action for judicial relief.
(b) No
provision of this Section shall limit the right of any party to this Agreement
to exercise self-help remedies such as setoff, foreclosure against or sale
of
any real or personal property collateral or security, or obtaining provisional
or ancillary remedies from a court of competent jurisdiction before, after,
or
during the pendency of any arbitration or other proceeding. The
exercise of a remedy does not waive the right of either party to resort to
arbitration or reference. At the option of any party holding a deed
of trust or mortgage, foreclosure under such deed of trust or mortgage may
be
accomplished either by exercise of power of sale under the deed of trust or
mortgage or by judicial foreclosure.
9.03. Permissible
Legal Proceedings.
Notwithstanding
anything contained in
Sections 9.01 and 9.02, (a) a party may institute legal proceedings to seek
a
temporary restraining order or other temporary or preliminary injunctive relief
to prevent immediate and irreparable harm to such party, and for which monetary
damages would be inadequate, pending final resolution of the dispute,
controversy or claim pursuant to arbitration, and (b) a party may institute
legal proceedings if necessary to preserve a superior position with respect
to
other creditors. Such conduct shall not constitute a waiver of the
right of either party to resort to arbitration to obtain relief other than
that
specified in this Section 9.03.
X.
Term
and Termination.
10.01. Term
and Termination.
(a) Termination
by FMC. FMC may terminate this Agreement if:
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(1)
|
The
Guaranty Agreement, Origination Agreement, or Servicing Agreement
is
terminated by reason of a breach thereof by Program Lender;
or
|
|
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(2)
|
Program
Lender materially breaches this Agreement, and fails to cure such
material
breach, within 60 days of written demand for cure;
or
|
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(3)
|
Program
Lender shall file any proceeding under the U.S. Bankruptcy Code or
similar
state insolvency act, or shall be the subject of any involuntary
bankruptcy proceeding, including without limitation a seizure of
assets by
the FDIC, which proceeding is not dismissed within 60 days after
the
filing thereof; or
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(4)
|
The
Guaranty Agreement expires or is not
renewed;
|
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(5)
|
A
XXXX Insolvency Event occurs.
|
(b) Termination
by Program Lender. Program Lender may immediately terminate this
Agreement:
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(1)
|
If
the Guaranty Agreement or Origination Agreement is terminated, other
than
as a result of a breach thereof by Program Lender;
or
|
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(2)
|
If
the Servicing Agreement is terminated and the Program Lender has
not
secured another Servicer under terms and conditions satisfactory
to the
Program Lender and FMC; or
|
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(3)
|
If
FMC materially breaches this Agreement, and fails to cure such material
breach, within 60 days of written demand for
cure;
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(4)
|
If
FMC shall file any proceeding under the U.S. Bankruptcy Code or similar
state insolvency act, or shall be the subject of any involuntary
bankruptcy proceeding, which proceeding is not dismissed within sixty
(60)
days after the filing thereof; or
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(5)
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A
XXXX Insolvency Event occurs.
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(c) Termination
by Reason of Expiration.
Unless
earlier terminated under
Sections 10.01(a) or (b), this Agreement shall remain in full force and effect
until July 1, 2011. Thereafter, this Agreement shall automatically renew for
additional one-year periods unless either party shall give the other notice
of
nonrenewal at least 90 days prior to the expiration of the then-effective
term.
(d) Effect
of Termination.
(1) Breach,
Bankruptcy or XXXX Insolvency. In the event of termination under
any of Sections 10.01(a)(2), (3), (5), 10.01(b)(3), (4) or (5), neither party
shall have any further obligations to purchase or sell Loans under this
Agreement, but, except in the case of a XXXX Insolvency Event, each party shall
have any remedy for breach as provided by law.
(2) Expiration
of Agreement. In the event of termination under Sections
10.01(a)(4) or 10.01(c), the Agreement (i) shall continue in full force and
effect with respect to UFSB Astrive Conforming Loans made prior to such
termination until the expiration of the Purchase Period (under Section 2.02
hereof) of all UFSB Astrive Loans guaranteed pursuant to the Guaranty Agreement,
and (ii) FMC or a designee Purchaser Trust has the right and obligation to
purchase any UFSB Astrive Conforming Loans originated prior to such termination,
on the terms set forth in this Agreement, until the end of the Purchase Period
with respect to such loans.
(3) Breach
by Third Party. In the event of termination (i) under Section
10.01(a)(1) or 10.01(b)(1) by virtue of termination of the Guaranty Agreement,
this Agreement shall continue in full force and effect with respect to any
UFSB
Astrive Conforming Loans that remain guaranteed under the Guaranty Agreement
notwithstanding termination thereof as to additional loans; (ii) under Section
10.01(a)(1) or 10.01(b)(1) by virtue of termination of the Origination
Agreement, this Agreement shall continue in full force and effect with respect
to UFSB Astrive Conforming Loans originated under the Origination Agreement
prior to the effective date of termination thereof; or (iii) under Section
10.01(a)(1) or 10.01(b)(2) by virtue of termination of the Servicing Agreement,
this Agreement shall continue in full force and effect with respect to UFSB
Astrive Conforming Loans serviced under and in conformity with the Servicing
Agreement prior to the effective date of termination thereof and through the
Purchase Date.
(4) Surviving
Obligations. After termination of this Agreement, certain
obligations hereunder shall survive as provided in Article VI
hereof.
(5) Wind
Down Procedures. After notice of termination or expiration of
this Agreement is given (including, without limitation, notice under section
10.02), the parties shall meet to develop a transition plan to deal with
applications and approved loans that have not been fully processed and/or
funded. Such plan shall require all parties to fulfill any legal commitments
already made to borrowers or applicants.
10.02. Effect
of Change in Control or Other Transaction Involving Program Lender or FMC.
(a) If
Program Lender undergoes a Change in Control involving
another person or entity and such person or entity manages, makes, purchases,
securitizes or facilitates an annual volume of more than two hundred and fifty
million dollars ($250,000,000) of Alternative Student Loans or is an entity
whose primary business is making, managing, purchasing, securitizing or
facilitating Alternative Student Loans, FMC shall have the right to wind down
the UFSB Astrive Loan Program and all contracts thereunder after providing
ninety (90) days advance written notice to the entity surviving the Change
in
Control. If Program Lender undergoes a Change of Control and the other party
to
the transaction is, directly or through an Affiliate, a party to an agreement
similar to this Agreement with FMC, FMC may elect on ninety (90) days notice
to
terminate this Agreement and conduct all business with the entity resulting
from
the Change of Control under such other agreement.
(b) If
FMC undergoes a Change in Control involving another person
or entity and such person or entity manages, makes, purchases, securitizes
or
facilitates an annual volume of more than two hundred and fifty million dollars
($250,000,000) of Alternative Student Loans or is an entity whose primary
business is making, managing, purchasing, securitizing or facilitating
Alternative Student Loans, Program Lender shall have the right to wind down
the
UFSB Astrive Loan Program and all contracts thereunder after providing ninety
(90) days advance written notice to the entity surviving the Change in
Control.
XI. Confidentiality.
11.01. General
Confidentiality Obligation. The terms of the any existing confidentiality or
similar agreement between the parties hereto are hereby superseded and replaced
with this Article XI as of the date of this Agreement. It is expected that
Program Lender’s participation in the UFSB Astrive Loan Program may involve the
disclosure, communication and exchange of Proprietary Information and Customer
Information.
(a) Proprietary
Information. All information other than Customer Information which is
disclosed by a Disclosing Party shall be presumed to be Proprietary Information
and “confidential” unless otherwise specifically identified in writing by the
Disclosing Party. The Receiving Party agrees to hold in confidence all such
Proprietary Information disclosed to the Receiving Party by the Disclosing
Party
(or any affiliate or subsidiary thereof) for the term of this Agreement (and
thereafter, as set forth in Article VI of this Agreement) and agrees not to
use,
copy or disclose, directly or indirectly, to any third party other than its
Affiliates and professional advisors and agents (subject to Section 11.03(e)),
if any, any Proprietary Information of Disclosing Party or any subsidiary or
affiliate thereof without the prior written consent of Disclosing Party except
as necessary to fulfill obligations under this Agreement.
(b) Customer
Information. In accordance with the provisions of Title V of the
Xxxxx-Xxxxx-Xxxxxx Act (the “GLB Act”) and Federal Reserve Board Regulation P
(“Regulation P”), as in effect from time to time, Program Lender and FMC agree
to respect and protect the security and confidentiality of any Customer
Information, including, where applicable, the restrictions on the re-use and
disclosure of such information set forth in the GLB Act and Regulation
P.
11.02. Legal
Process Exception. The Receiving Party shall not be liable for the
disclosure of any information which it receives under this Agreement, if such
disclosure is made pursuant to legal process; provided, however, that the
Receiving Party shall exercise the same efforts to protect the confidentiality
of such information as it would for its own confidential information pursuant
to
legal process and shall make no such disclosure without giving at least thirty
(30) days’ written notice to the Disclosing Party, together with a copy of the
legal process compelling any such disclosure.
11.03. Safeguards.
To secure the confidentiality attaching to the Proprietary Information,
Receiving Party shall:
(a) Allow
access to the Proprietary Information exclusively to those employees or agents
of the Receiving Party who have reasonable need to see and use it for the
purposes of its evaluation by the Receiving Party and shall inform each of
said
employees of the confidential nature of Proprietary Information and of the
obligations of the Receiving Party in respect thereof;
(b) Obtain
from each third party adviser
having access to the proprietary information a written undertaking to maintain
the same confidential, and shall take such steps as may be reasonably necessary
to enforce such obligations; and
(c) Make
copies of the Proprietary Information only to the extent that the same is
strictly required for the purposes of its evaluation by the Receiving
Party.
11.04. Patents;
Copyright. In the event that any Proprietary Information is or becomes the
subject of one or more patents, copyrights or applications therefor, the
Receiving Party agrees and understands that the Disclosing Party will have
all
the rights and remedies available to it as a result of such patents, copyrights
or applications.
11.05. Remedies.
The parties agree that any breach or threatened breach of this Article XI by
a
Receiving Party would cause not only financial harm, but irreparable harm to
the
Disclosing Party; that money damages will not provide an adequate
remedy. In the event of a breach or threatened breach of this Article
XI by a Receiving Party, the Disclosing Party shall, in addition to any other
rights and remedies it may have, be entitled to an injunction (without the
necessity of posting any bond or surety) restraining the Receiving Party from
disclosing or using, in whole or in part, any Customer Information (if it is
the
subject of the breach of this Agreement) or Proprietary Information except
as
necessary to perform its obligations under this Agreement.
11.06. Duties
Upon Termination. In the event of termination of this Agreement, each party
shall:
(a) promptly
return to the Disclosing Party, or destroy (and in such case, certify such
destruction to the Disclosing Party) the original and all copies of the
Proprietary Information furnished to the Receiving Party;
(b) destroy
all notes and copies thereof made by the Receiving Party’s officers, employees,
counsel, business advisers or agents containing Proprietary Information;
and
(c) not
use any of the Proprietary Information of the other for its own benefit or
any
third party.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day
and year first above written.
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WITNESS:
|
UNION
FEDERAL SAVINGS BANK
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|||
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/s/
Xxxxxx X.
Xxxxxx
|
By:
/s/ Xxxxxxx
X. Xxxx, XX
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|||
|
Print
Name:
Xxxxxx X.
Xxxxxx
|
Print
Name:
Xxxxxxx X. Xxxx, XX
|
|||
|
|
Title:
President
|
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THE
FIRST MARBLEHEAD CORPORATION
|
|||
|
/s/
Xxxxxxx X.
Xxxxxxxxx
|
By: /s/
Xxxxxx X.
Xxxxx
|
|||
|
Print
Name:
Xxxxxxx X.
Xxxxxxxxx
|
Print
Name:
Xxxxxx X. Xxxxx
|
|||
|
|
Title:
Executive Vice President, BusinessDevelopment
|
Index
to Exhibits and Schedules
Exhibit
A Pool
Supplement
Exhibit
B Co-Lender
Indemnification Agreement
Exhibit
C Certificate
of Union Federal Savings Bank
|
Exhibit
D
|
Certificate
of Union Federal Savings Bank Confirming Representations and
Warranties
|
EXHIBIT A TO NOTE PURCHASE AGREEMENT
[Form
of
Pool Supplement]
This
Pool
Supplement (“Supplement”) is entered into pursuant to and forms a part of that
certain Note Purchase Agreement (the “Agreement”) dated as of March 26, 2007, by
and between The First Marblehead Corporation (“FMC”) and Union Federal Savings
Bank. This Supplement is dated ,. Capitalized terms used
in this Supplement without definitions have the meaning set forth in the
Agreement.
Article
1: Purchase and
Sale.
In
consideration of the Minimum
Purchase Price set forth in Schedule 1 attached hereto, Program Lender hereby
transfers, sells, sets over and assigns to [name of purchasing entity]
(“Purchaser Trust”), upon the terms and conditions set forth in the Agreement
(which are incorporated herein by reference with the same force and effect
as if
set forth in full herein), each UFSB Astrive Conforming Loan described in the
attached Schedule 2 (“the Transferred UFSB Astrive Loans”) along with all of
Program Lender’s rights under the Guaranty Agreement relating to the Transferred
UFSB Astrive Loans. Program Lender hereby transfers and delivers to
the Purchaser Trust each UFSB Astrive Note evidencing such UFSB Astrive
Conforming Loan, all Origination Records relating thereto, and all data
delivered to FMC pursuant to Section 2.02(b) of the Agreement relating to such
UFSB Conforming Loans in accordance with the terms of the
Agreement. Purchaser Trust hereby purchases said UFSB Astrive Notes
on said terms and conditions.
Article
2: Price.
The
amounts paid pursuant to this
Supplement is the Minimum Purchase Price, as that term is defined in Section
2.04 of the Agreement.
Article
3: Representations and Warranties.
3.01. By
Program Lender.
Program
Lender repeats the
representations and warranties contained in Section 5.02 of the Agreement and
confirms the same are true and correct as of the date hereof with respect to
the
Agreement and to this Supplement.
3.02. By
Purchaser Trust.
The
Purchaser Trust hereby represents
and warrants to the Program Lender that at the date of execution and delivery
of
this Supplement by the Purchaser Trust:
(a) The
Purchaser Trust is duly organized and validly existing as a business trust
under
the laws of the State of Delaware with the due power and authority to own its
properties and to conduct its business as such properties are currently owned
and such business is presently conducted, and had at all relevant times, and
has, the power, authority and legal right to acquire and own the Transferred
UFSB Astrive Loans.
(b) The
Purchaser Trust is duly qualified to do business and has obtained all necessary
licenses and approvals, in all jurisdictions in which the ownership or lease
of
property or the conduct of its business shall require such
qualifications.
(c) The
Purchaser Trust has the power and authority to execute and deliver this Pool
Supplement and to carry out its respective terms; the Purchaser Trust has the
power and authority to purchase the Transferred UFSB Astrive Loans and rights
relating thereto as provided herein from the Program Lender and the Purchaser
Trust has duly authorized such purchase from the Program Lender by all necessary
action; and the execution, delivery and performance of this Pool Supplement
has
been duly authorized by the Purchaser Trust by all necessary action on the
part
of the Purchaser Trust.
(d) This
Pool Supplement, together with the Agreement of which this Supplement forms
a
part, constitutes a legal, valid and binding obligation of the Purchaser Trust,
enforceable in accordance with its terms.
(e) The
consummation of the transactions contemplated by the Agreement and this
Supplement and the fulfillment of the terms hereof do not conflict with, result
in any breach of any of the terms and provisions of, or constitute (with or
without notice or lapse of time) a default under, the governing instruments
of
the Purchaser Trust or any indenture, agreement or other instrument to which
the
Purchaser Trust is a party or by which it is bound; or result in the creation
or
imposition of any lien upon any of its properties pursuant to the terms of
any
such indenture, agreement or other instrument; or violate any law or any order,
rule or regulation applicable to the Purchaser Trust of any court or of any
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Purchaser Trust or its
properties.
(f) There
are no proceedings or investigations pending, or threatened, before any court,
regulatory body, administrative agency or other governmental instrumentality
having jurisdiction over the Purchaser Trust or its properties: (1) asserting
the invalidity of the Agreement or this Pool Supplement, (2) seeking to prevent
the consummation of any of the transactions contemplated by the Agreement or
this Pool Supplement, or (3) seeking any determination or ruling that is likely
to materially or adversely affect the performance by the Purchaser Trust of
its
obligations under, or the validity or enforceability of the Agreement or this
Pool Supplement.
Article
4: Cross
Receipt.
Program
Lender hereby acknowledges
receipt of the Minimum Purchase Price. Purchaser Trust hereby
acknowledges receipt of the Transferred UFSB Astrive Loans included in the
Pool.
Article
5: Assignment of
Origination, Guaranty and Servicing Rights.
[OPTION
ONE – Purchaser Assures Program
Lender’s Servicing Agreement] Program Lender hereby assigns and sets over to
Purchaser Trust so much of its rights under the Guaranty Agreement, the
Origination Agreement, and the Servicing Agreement as relate to the Transferred
UFSB Astrive Loans described in Schedule 2, including, without limitation,
the
right to continued loan servicing under the Servicing Agreement pursuant to
a
Servicing Assignment and Servicer consent Letter delivered
herewith.
[OPTION
TWO – Purchaser Has Direct
Servicing Agreement in Place]. Program Lender hereby assigns and sets
over to Purchaser Trust any claims it may now or hereafter have under the
Guaranty Agreement the Origination Agreement, and the Servicing Agreement to
the
extent the same relate to the Transferred UFSB Astrive Loans described in
Schedule 2, other than any right to obtain servicing after the date
hereof. It is the intent of this provision to vest in Purchaser Trust
any claim of Program Lender relating to defects in [origination,] guaranty,
or
servicing of the loans purchased hereunder in order to permit Purchaser Trust
to
assert such claims directly and obviate any need to make the same claims against
Program Lender under this Agreement.
Article
6: Owner
Trustee.
It
is expressly understood and agreed
by the parties hereto that (a) this Pool Supplement is executed and delivered
by
(the “Owner Trustee”) not individually or personally, but solely as owner
trustee of the Purchaser Trust under the Trust Agreement dated as of , with
, in
the exercise of the powers and authority conferred and vested in it, (b) each
of
the representations, undertakings and agreements herein made on the part of
the
Purchaser Trust are made and intended not as personal representations,
undertakings and agreements by the Owner Trustee, but are made and intended
for
the purpose for binding only the Purchaser Trust, (c) nothing herein contained
shall be construed as creating any personal or individual liability on the
Owner
Trustee, to perform any covenant either expressed or implied contained herein,
all such liability, if any, being expressly waived by the parties hereby and
by
any person claiming by, through, or under the parties hereto, and (d) under
no
circumstances shall the Owner Trustee be personally liable for the payment
of
any indebtedness or expenses of the Purchaser Trust or be liable for the breach
or failure of any obligation, representation, warranty or covenant made or
undertaken by the Purchaser Trust under this Supplement or any other documents
related to the UFSB Astrive Notes.
IN
WITNESS WHEREOF, the parties have
caused this Supplement to be executed as of the date set forth
above.
| THE FIRST MARBLEHEAD CORPORATION | |
| By: | |
| Name: | |
| Title: | |
| PURCHASER NAME: | |
| By: OWNER TRUSTEE | |
| By: | |
| Print Name: | |
| Title: | |
| PROGRAM LENDER: | |
| UNION FEDERAL SAVINGS BANK | |
| By: | |
| Print Name: | |
| Title: | |
Schedule
1 to Pool Supplement
(SAMPLE)
SETTLEMENT
SCHEDULE
FMC
200__-CP-__
PROGRAM
NAME LOANS
|
#
of Loans
|
Total Principal | Accrued Interest at Note Rate |
EXHIBIT
B
TO NOTE PURCHASE AGREEMENT
CO-LENDER
INDEMNIFICATION AGREEMENT
THIS
CO-LENDER INDEMNIFICATION AGREEMENT (the “Agreement”) is made as of
[DATE], by and between [Names and Addresses of
Co-Lenders] (“Co-Lender”), and UNION FEDERAL SAVINGS BANK (“Program Lender”), a
federal savings bank organized under the laws of the United States, with its
headquarters and principal place of business located at _____________ (Co-Lender
and Program Lender are sometimes collectively referred to as the “Lenders” and
are each sometimes severally referred to as a “Lender”).
RECITALS
|
|
A.
|
The
Lenders are participants in certain private education loan programs
to pay
the costs of attending institutions of education which are themselves
participants in the XXXX Program (the “Participating Institutions”)
whereunder such loans (the “XXXX Loans”) are guaranteed by The Education
Resources Institute, Inc. (“XXXX”) (collectively, the “XXXX
Programs”).
|
|
|
B.
|
Each
of the Lenders, individually, have entered into an agreement (each,
a
“Purchase Agreement”) with The First Marblehead Corporation or The
National Collegiate Trust, pursuant to which Purchase Agreements
such
Lenders have agreed to sell certain XXXX Loans to [Name of Purchasing
Entity] (the “Purchaser Trust”), each such purchase to be funded through
the issuance and sale of certificates, bonds or other evidences of
indebtedness, the repayment of which are supported by such XXXX Loans
(the
“Subject Securitization
Transaction”).
|
|
|
C.
|
As
a condition precedent to the obligation of each Lender to consummate
the
sale of XXXX Loans originated by them to the Purchaser Trust, all
Lenders
whose XXXX Loans will be included in the Subject Securitization
Transaction are required to execute and deliver to the other Lenders
requesting same a copy of this
Agreement.
|
NOW,
THEREFORE, in consideration of the
foregoing Recitals and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto hereby agree
as follows:
ARTICLE
I
REPRESENTATIONS
AND WARRANTIES
1.01.
Each Lender represents and warrants to each other Lender requesting this
Agreement, as to itself, that as of the date hereof:
(a) It
is a national banking association, duly organized, validly existing and in
good
standing under the laws of the United States and has the power and authority
to
originate and/or hold XXXX Loans, to consummate the transaction contemplated
by
the Purchase Agreement to which it is a party, and to execute and deliver and
perform its obligations under this Agreement;
(b) This
Agreement has been duly authorized, executed and delivered and constitutes
its
legal, valid and binding obligation, enforceable against it in accordance with
its terms except as enforceability may be limited by (a) the receivership,
conservatorship and similar supervisory powers of bank regulatory agencies
generally, as well as bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization or other similar laws affecting the enforcement
of
the rights of creditors; (b) general principles of equity (including
availability of equitable remedies), whether enforcement is sought in a
proceeding in equity or at law; and (c) applicable securities laws and public
policy considerations underlying the securities laws to the extent that such
public policy considerations limit the enforceability of the provisions of
this
Agreement which purport to provide indemnification with respect to securities
law liabilities;
(c) Each
XXXX Loan included in the Subject Securitization Transaction originated by
it is
the valid, binding and enforceable obligation of the borrower executing the
same, and of any cosigner thereto, enforceable against the borrower and cosigner
thereunder in accordance with its terms except as enforceability may be affected
by bankruptcy, insolvency, moratorium or other similar laws affecting the rights
of creditors generally and by equitable principles;
(d) At
the time of origination, each XXXX Loan included in the Subject Securitization
Transaction originated by it and any accompanying notices and disclosures
conforms in all material respects to all applicable state and federal laws,
rules and regulations and the origination thereof was conducted in material
compliance with all applicable state and federal laws concerning the actions
of
the Lender, including, without limitation, the Equal Credit Opportunity
Act;
(e) At
the time of origination, each XXXX Loan included in the Subject Securitization
Transaction originated by it is in compliance in all material respects with
any
applicable usury laws at the time made and as of the time of sale to the
Purchaser Trust pursuant to the Purchase Agreement to which Lender is a party;
and
(f) The
respective Lender has no actual knowledge of any defense to payment with respect
to any XXXX Loan included in the Subject Securitization Transaction originated
by it nor is there any action before any state or federal court, administrative
or regulatory body, pending against the Lender with regard to its XXXX Loans
in
which an adverse result would have a material adverse effect upon the validity
or enforceability of its XXXX Loans.
ARTICLE
2
INDEMNIFICATION
2.01.
Cross-Indemnification. Each
Lender (an “Indemnifying Party”) hereby agrees to indemnify, hold harmless and
defend each other and such other Lender’s respective officers, directors,
employees, attorneys, agents (not including any Participating Institution or
the
servicer of any XXXX Loan) and each person who controls such other Lender within
the meaning of either Section 15 of the Securities Act of 1933, as amended,
or
Section 20 of the Securities Exchange Act of 1934, as amended (collectively
and
severally, the “Indemnified Parties”), from and against any and all claims,
obligations, penalties, actions, suits, judgments, costs, disbursements, losses,
liabilities and/or damages (including, without limitation, reasonable external
attorneys’ fees and the allocated costs of internal salaried attorneys) of any
kind whatsoever which may at any time be imposed on, assessed against or
incurred by any such Indemnified Party in any way relating to or arising out
of
the material inaccuracy or incompleteness of any representation or
warranty made by the Indemnifying Lender hereunder or the material inaccuracy
or
incompleteness of any representation or warranty made by the Indemnifying Lender
to any Participating Institution in connection with the XXXX Program or the
Subject Securitization Transaction. The indemnity provided by each
Indemnifying Lender hereunder is in addition to any liability which such Lender
may otherwise have to the Indemnified Parties, at law, in equity or otherwise,
in connection with the Subject Securitization Transaction.
2.02. Procedure
for
Indemnification. In case any proceeding (including any governmental
investigation) shall be instituted against any Indemnified Party in respect
of
which indemnity is sought pursuant to Section 2.01, such Indemnified Party
shall
promptly notify the applicable Indemnifying Party in writing. The
Indemnifying Party, upon request of the Indemnified Party, shall acknowledge
its
obligation, subject to the terms hereof, to indemnify the Indemnified Party
in
writing and shall retain counsel reasonably satisfactory to the Indemnified
Party to represent the Indemnified Party and any others the Indemnifying Party
may designate in such proceeding and the Indemnifying Party shall pay the fees
and disbursements of such counsel related to such proceeding, within a
reasonable period of time after such fees and disbursements are billed by such
counsel. If the Indemnifying Party fails to acknowledge its
obligation, subject to the terms hereof, to indemnify in writing or fails to
retain such counsel within a reasonable period of time after such notice was
given, then the Indemnified Party shall have the right to retain its own
counsel, and the fees and expenses of such counsel shall be at the expense
of
the Indemnifying Party. In any such proceeding, any Indemnified Party
shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Party unless (a) the
preceding sentence is applicable, (b) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (c) the
named parties to any such proceeding (including any impleaded parties) include
both the Indemnifying Party and the Indemnified Party and representation of
both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the
Indemnifying Party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm (in addition to any local counsel)
for
all such Indemnified Parties, and that all such fees and expenses shall be
reimbursed as they are incurred.
2.03. Settlements
of
Proceedings. The Indemnifying Party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff,
the
Indemnifying Party agrees to indemnify the Indemnified Party from and against
any loss or liability by reason of such settlement or judgment. No
Indemnifying Party, without the prior written consent of the Indemnified Party,
shall effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Party is or could have been a party and indemnity
could
have been sought hereunder by such Indemnified Party, unless such settlement
includes an unconditional release of such Indemnified Party from all liability
on claims that are the subject of such proceeding.
ARTICLE
3
MISCELLANEOUS
3.01. Notices. All
demands, notices and communications upon or to any Lender under this Agreement
shall be in writing, personally delivered or mailed by certified mail, return
receipt requested, to such Lender at its address set forth below or to such
other address as may hereafter be furnished by such Lender to the other Lenders
hereunder in writing, and shall be deemed to have been duly given upon
receipt.
If
to Co-Lender:
_____________________________
_____________________________
_____________________________
_____________________________
with
a
copy to:
_____________________________
_____________________________
_____________________________
If
to
Program Lender:
Union
Federal Savings Bank
_____________________________
_____________________________
_____________________________
With
a
copy to:
_____________________________
_____________________________
_____________________________
3.02. Successors
and
Assigns. This Agreement is binding on the Lenders and their
respective successors and assigns. No Lender shall assign its rights
or obligations under this Agreement without the prior written consent of all
other Lender hereunder, other than to its wholly owned affiliate, and any
assignment in violation of this prohibition shall be automatically deemed null
and void.
3.03. Arbitration.
The
parties acknowledge that this Agreement evidences a transaction involving
interstate commerce. Any controversy or claim arising out of or
relating to this Agreement, or the breach of the same, shall be settled through
consultation and negotiation in good faith and a spirit of mutual cooperation
for up to fifteen (15) days commencing on the date when one party gives written
notice to the other party of any controversy or claim. However, if
those attempts fail, the parties agree that any misunderstandings or disputes
arising from this Agreement shall be decided by binding arbitration which shall
be conducted, upon request by either party, in New York, New York or such other
mutually agreed upon location, before one (1) arbitrator designated by the
American Arbitration Association (the “AAA”), in accordance with the terms of
the Commercial Arbitration Rules of the AAA, and, to the maximum extent
applicable, the United States Arbitration Act (Title 9 of the United States
Code). Notwithstanding anything herein to the contrary, either party
may proceed to a court of competent jurisdiction to obtain equitable relief
at
any time.
3.04.
Severability. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
3.05. Counterparts. This
Agreement may be executed by the parties hereto in separate counterparts, each
of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same
instrument.
3.06. Headings. The
headings of the various Articles and Sections herein are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
3.07. Amendment. This
Agreement may not be amended nor terms or provisions hereof waived unless such
amendment or waiver is in writing and signed by all parties hereto.
3.08. No
Waiver. No delay or failure by any party to exercise any right, power
or remedy hereunder shall constitute a waiver thereof by such party, and no
single or partial exercise by any party of any right, power or remedy shall
preclude other or further exercise thereof or any exercise of any other rights,
powers or remedies.
3.09. Entire
Agreement. This Agreement embodies the entire agreement and
understanding between the parties with respect to the subject matter hereof
and
supersedes all prior agreements and understandings relating to the subject
matter hereof and thereof.
3.10. Governing
Law. This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York without regard to its conflict
of laws doctrine.
3.11. No
Third Party Beneficiaries. This Agreement is made and entered into
for the protection and legal benefit of the parties hereto, their permitted
successors and assigns, and each and every Indemnified Party, and no other
person shall be a direct or indirect beneficiary of, or have any direct or
indirect cause of action or claim in connection with, this
Agreement.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as
of the day and year first above written.
| CO-LENDER(S) | |
| __________________________ | |
| By: | |
| Print Name: | |
| Title: | |
| UNION FEDERAL SAVINGS BANK | |
| __________________________ | |
| By: | |
| Print Name: | |
| Title: | |
EXHIBIT
C
CERTIFICATE
OF
UNION
FEDERAL SAVINGS
BANK
This
Certificate is being delivered to
Xxxxxxx Xxxxxxxx & Xxxx LLP (“TPW”)
for reliance hereon by TPW in
rendering its opinion letter to which this Certificate is annexed, dated the
date hereof (the “Opinion Letter”). The
undersigned
understands, acknowledges and agrees that the facts set forth in the Opinion
Letter have been relied upon by TPW in rendering the Opinion Letter and by
each
addressee thereof and other parties to the transactions to which the Opinion
Letter relates in the consummation of those transactions. Capitalized
terms not defined herein have the meanings assigned to them in the Opinion
Letter and the Agreements. The undersigned hereby represents,
warrants, covenants and certifies, after reasonable investigation and review
and
consultation as appropriate with its attorneys and independent accountants,
as
follows:
1. The
transfers pursuant to the Agreements
of the Student Loans by the Bank to the Depositor were intended to constitute
sales. Those transfers will be reported as such in the general
ledgers and other accounting records, and in any separate unconsolidated
financial statements of the Bank. Those
transfers (i) were intended to
constitute a sale of the Student Loans and will be reported as such under United
States generally accepted accounting principles (“GAAP”)
and for United States federal income
tax purposes such that the Student Loans will no longer be included in any
consolidated financial statements in which the financial statements of the
Bank
are included and (ii) meet all of the requirements for such accounting and
tax
treatment, except that the undersigned makes no representation, warranty,
covenant or certification herein as to whether any requirement under GAAP that
the Student Loans have been legally isolated from the Bank has been satisfied,
which requirement is the subject of the Opinion Letter.
2. Except
as described in the Agreements
and the Opinion Letter, neither the Bank nor any affiliate thereof now has
or
intends to acquire at any time any other direct or indirect ownership or other
economic interest in, or other right or obligation with respect to, any Student
Loan or security backed thereby.
3. The
Agreements have been approved by the board of directors of the Bank or its
loan
committee. That approval is reflected in resolutions adopted by the
board of directors or its loan committee. If adopted by its loan
committee, the creation and authority of the loan committee is reflected in
resolutions adopted by the board of directors. Copies of both the
Agreements and such resolutions will be maintained continuously from the time
of
adoption and execution in the official records of the Bank.
4. The
factual statements in the Opinion Letter are accurate.
The
undersigned has executed this
Certificate as of the date of the Opinion Letter.
| UNION FEDERAL SAVINGS BANK | |
| By: | |
| Title: | |
| Date: | |
EXHIBIT
D
CERTIFICATE
OF UNION FEDERAL SAVINGS BANK
I,
the _______________ of Union Federal
Savings Bank (“Program Lender”), a duly authorized officer of Program Lender, do
hereby certify to the parties named below (the “Reliance Parties”) that all
representations and warranties made by Program Lender in the Note Purchase
Agreement dated March 26, 2007 between Program Lender and The First Marblehead
Corporation (“FMC”) and in the Pool Supplement dated _________, 200_ were true
and correct on the date of the sale of the Loans listed on Schedule 1 attached
to said Pool Supplement and I have no knowledge that said representations and
warranties are untrue today.
Name:
Title:
Reliance
Parties [All parties referred to in NPA as entitled to rely on
Program Lender’s representations in Permanent Financing]
