EXHIBIT 10.8
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND COMMISSION. ASTERISKS DENOTE DELETIONS.
EXTENSION AGREEMENT
FOR
CEDU PREPGATE LOANS
This Extension Agreement (the "Agreement") is entered into as of May 1,
2001 by and between BANK OF AMERICA, N.A. ("Program Lender"), a national banking
association organized under the laws of the United States and having an office
located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and THE FIRST
MARBLEHEAD CORPORATION, a Delaware corporation having a principal place of
business at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ("FMC"). Capitalized
terms used herein without definition have the meanings given to them in the Old
Umbrella Agreement and the Old Note Purchase Agreement (both as defined below).
WITNESSETH
WHEREAS Program Lender and FMC entered into an Umbrella Agreement dated as
of April 3, 2000 ("Old Umbrella Agreement"), in which Program Lender agreed to
originate GATE Conforming Family Loans (including prepGATE Family Loans) and
serve as a primary lending institution participating in the GATE Family Loan
Program; and
WHEREAS Program Lender and FMC entered into a Note Purchase Agreement dated
April 3, 2000 ("Old Note Purchase Agreement"), in which Program Lender agreed to
sell, from time to time, pools containing GATE Conforming Family Loans
(including prepGATE Family Loans) originated by Program Lender to FMC or a
Purchaser Trust; and
WHEREAS prepGATE Family Loans originated under the Old Umbrella Agreement
and purchased under the Old Note Purchase Agreement were originated and
underwritten by the Pennsylvania Higher Education Assistance Agency ("PHEAA")
pursuant to an Origination and Disbursement Services Agreement between Program
Lender and PHEAA dated_________________ ("Old Origination Agreement") and
serviced by PHEAA pursuant to a Servicing Agreement between Program Lender and
PHEAA dated April 8, 2000 (as amended) ("Old Servicing Agreement"); and
WHEREAS Program Lender and FMC entered an Umbrella Agreement and a Note
Purchase Agreement both dated as of April 30, 2001 (respectively, the "New
Umbrella Agreement" and the "New Note Purchase Agreement") which, as of May 1,
2001, superseded (a) the Old Umbrella Agreement in the origination, including
underwriting and disbursement, of GATE Family Loan Program Loans (including
prepGATE Loans) and (b) the Old Note Purchase Agreement in the sale of pools of
GATE Conforming Family Loans (including prepGATE Family Loans); and
WHEREAS GATE Family Loan Program Loans (including prepGATE Loans)
originated and sold under the New Umbrella Agreement and the New Note Purchase
Agreement are originated by The Education Resources Institute, Inc. ("▇▇▇▇")
under a Loan Origination Agreement between ▇▇▇▇ and Program Lender dated as of
May 1, 2001 ("New Origination Agreement"), and covered by a guaranty issued by
▇▇▇▇ pursuant to a Guaranty Agreement between ▇▇▇▇ and Program Lender dated as
of April 30, 2001; and
WHEREAS CEDU Family of Services of Idaho, Inc.("CEDU") owns and/or operates
a group of approved institutions in the prepGATE Family Loan Program that has
continued since the effectiveness on May 1, 2001, of the New Umbrella Agreement
and the New Note Purchase Agreement to send the majority of its parents' loan
applications to PHEAA for origination under the Old Origination Agreement and
servicing under the Old Servicing Agreement and PHEAA has completed such
originations and Program Lender has funded the resulting loans; and
WHEREAS CEDU wishes to continue to have loan applications for the parents
of its students originated and serviced under the Old Origination Agreement and
the Old Servicing Agreement (the resulting loans being referred to herein as
"CEDU prepGATE Loans"), other than loan applications from parents who desire to
obtain the loan origination options available under the New Umbrella (the
resulting loans being referred to herein as "BAGEL CEDU Loans"); and
WHEREAS Program Lender and FMC want to extend the effectiveness of the Old
Umbrella Agreement and the Old Note Purchase Agreement exclusively for CEDU
prepGATE Loans under the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the above recitals and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. TREATMENT OF CEDU PREPGATE LOANS UNDER OLD AND NEW AGREEMENTS.
(a) UMBRELLA AGREEMENTS. The Old Umbrella Agreement shall continue to
govern the origination, including underwriting and disbursement, of
CEDU prepGATE Loans, and only CEDU prepGATE Loans, including all such
loans originated since April 30, 2001; PROVIDED, HOWEVER, that only
Sections 4, 9, and 26 of the Old Umbrella Agreement shall survive to
govern CEDU prepGATE Loans and all sections of the New Umbrella
Agreement other than Sections 4, 5, 9, and 26 thereof will govern CEDU
prepGATE Loans. The provisions of Sections 8, 10, and 11 of the Old
Umbrella Agreement shall continue to apply to GATE Family Loans
originated prior May 1, 2001, but all other provisions of the Old
Umbrella Agreement have been superseded by the New Umbrella Agreement.
Upon purchase of the last GATEFamily Loan (including CEDU prepGATE
Loans) originated under the Old Umbrella Agreement pursuant to the Old
Note Purchase Agreement, the Old Umbrella Agreement shall terminate.
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(b) ORIGINATION AGREEMENTS. All CEDU prepGATE Loans made under the Old
Umbrella Agreement pursuant to this Agreement will continue to be
originated under the Old Origination Agreement, and the New
Origination Agreement shall not apply to CEDU prepGATE Loans.
(c) SERVICING AGREEMENTS. All CEDU prepGATE Loans made under the Old
Umbrella Agreement pursuant to this Agreement will be serviced under
the servicing agreement between PHEAA and Program Lender that governs
the servicing of ▇▇▇▇-guaranteed loans made by Program Lender under
the Bank of America GATE Loan Program (I.E., under the New Umbrella
Agreement); PROVIDED, HOWEVER, that all CEDU prepGATE Loans purchased
by FMC or an SPE after the date of this Agreement shall, after such
purchase, be serviced by PHEAA pursuant to a separate servicing
agreement between PHEAA and FMC dated as of October 16, 2001. Program
Lender agrees to take any action necessary to assure that CEDU
prepGATE Loans are covered by its agreement with PHEAA for servicing
▇▇▇▇ guaranteed loans for the period prior to purchase under the Old
Note Purchase Agreement;
(d) NOTE PURCHASE AGREEMENTS. All CEDU prepGATE Loans made under the Old
Umbrella Agreement pursuant to this Agreement will continue to be sold
pursuant to the Old Note Purchase Agreement. The New Note Purchase
Agreement shall not apply to CEDU prepGATE Loans and CEDU prepGATE
Loans are hereby excluded from the terms "Bank of America GATE
Education Loans" and "Bank of America GATE Conforming Loan" in the New
Note Purchase Agreement. Notwithstanding anything to the contrary in
this Section 1(d), the definition of "Minimum Purchase Price" in
Section 2.04 of the Old Note Purchase Agreement is hereby revised for
CEDU prepGATE Loans originated on or after the effective date of the
New Umbrella Agreement to mean the sum of:
(a) the outstanding principal amount of the CEDU prepGATE Loans
(including any capitalized fees); plus
(b) accrued and unpaid interest at the rate of inetrest set forth in
the prepGATE Family Loan Notes.
In addition, section 3.01(c)(2) of the Old Note Purchase
Agreement is amended to read:
" (2) Purchaser Trust shall have paid the Minimum Purchase Price to
Program Lender by wire transfer of immediately available funds within
twenty-four (24) hours after the Purchase Date (such Minimum Purchase
Price shall be based on the best information available from the
Servicer as of the Purchase Date; no later than thirty (30) days
following the Purchase Date, the Purchaser Trust shall recalculate the
Minimum Purchase Price to
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reflect adjustments for transactions (including, without limitation,
additional accrued interest and payments received), and whichever
party is deemed to owe the other such adjustment shall deliver such
adjustment to such other party, by wire transfer of immediately
available funds);"
(e) PRODUCT SPECIFICATIONS. The prepGATE Family Loan Product
Specifications applicable to the CEDU prepGATE Loans originated on and
after May 1, 2001, shall be the prepGATE Family Loan Product
Specifications, 2000 Revised Edition, dated as of July 25, 2000 and
effective August 1, 2000; PROVIDED, HOWEVER, that Schedule 2 of such
Product Specifications shall not apply, and in lieu thereof the
Servicing Guidelines for ▇▇▇▇ Loan Programs serviced by SLSC, revised
September 27, 2000, shall apply; and PROVIDED , FURTHER, that the
pricing charged to borrowers for CEDU prepGATE Loans originated on or
after the 2002 Effective Date (as hereinafter defined) shall be
modified to changing the Margin (as defined in the Note) from [**]% to
[**]% and by reducing the origination fee from [**]% to [**]%, and the
Product Specifications shall be deemed to be amended to reflect such
change, effective on the 2002 Effective Date. As used herein, the 2002
Effective Date shall mean the date on which pricing on BAGEL CEDU
Loans is modified to provide a Margin of [**]% and an origination fee
[**]%.
2. CONCURRENT PROGRAMS. The parties intend that the loan program described in
the New Umbrella Agreement (the "BAGEL CEDU Program") continue to be
available to parents of students of CEDU. An application from a CEDU parent
shall be treated as either a CEDU prepGATE Loan application or a BAGEL CEDU
Loan application depending upon the form of application (or toll free
number or web site) chosen by a particular applicant. An application
received at PHEAA shall result in a CEDU prepGATE Loan. An application
received at ▇▇▇▇ shall result in a BAGEL CEDU Loan.
3. ADDITIONAL NOTE PURCHASE AGREEMENT CONDITIONS. It shall be a condition of
FMC's purchase of any CEDU prepGATE Loan under the Old Note Purchase
Agreement that the CEDU prepGATE Loan in question is covered by and subject
to the benefits of that certain Guaranty Agreement by and between Program
Lender and ▇▇▇▇ dated as of April 30, 2001, as amended (the "▇▇▇▇
Guaranty"). Upon sale of any such loan to FMC or a Purchaser Trust, Program
Lender shall be deemed to represent and warrant that the CEDU prepGATE Loan
in question is covered by and subject to the benefits of, and was
originated and serviced in conformity with the requirements of the ▇▇▇▇
Guaranty. Any breach of said representation and warranty shall be the
subject of an indemnification claim by FMC or a Purchaser Trust pursuant to
Section 8.02 of the Old Note Purchase Agreement.
4. TERM. This Agreement shall remain in effect so long as, but only so long
as, the New Umbrella Agreement remains in effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
THE FIRST MARBLEHEAD CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
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Title: President
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BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
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Title: SVP
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