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EXHIBIT 10.2
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
EXECUTION DRAFT MAY 27, 2002
MARKETING AGREEMENT
This MARKETING AGREEMENT ("Agreement") is entered into by and among
CHARTER ONE BANK, N.A., a national bank organized under the laws of the United
States and having a principal office located in Ohio and a student loan
department located at 833 Broadway, Albany, NY 12207 ("Bank"), THE FIRST
MARBLEHEAD CORPORATION, a Delaware corporation having a principal place of
business at 30 Little Harbor, Marblehead, Massachusetts 01945 ("Program
Manager") and COLLEGIATE FUNDING SERVICES L.L.C., a limited liability company
organized under Virginia law and having a principal office at 100 Riverside
Parkway, Fredericksburg, VA 22406 ("Marketer"). This Agreement is dated as of
May 15, 2002.
RECITALS
WHEREAS, Bank is authorized to make private student loans throughout
the United States and desires to participate in the Marketer's Private Education
Loan Program ("PELP") by making private credit-based education loans to eligible
borrowers that are marketed by Marketer under the PELP; and
WHEREAS, Program Manager structures and assists in implementing the
CFS Loan program;
WHEREAS, Program Manager has entered into agreements with Bank whereby
Program Manager arranges for Securitization Transactions (as hereinafter
defined) in which Bank from time to time sells its interest in loans marketed by
Marketer under the PELP;
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WHEREAS, Marketer wishes to promote CFS Loans for Bank to prospective
borrowers for the compensation provided herein.
NOW THEREFORE
IN CONSIDERATION OF THESE PRESENTS, and the covenants contained
herein, the parties hereto hereby agree as follows:
I. DEFINITIONS.
1.01 "CFS Loans" means CFS loans marketed by CFS and made by Bank
conforming to the Program Descriptions.
1.02 "Program Descriptions" means the loan product descriptions
attached hereto as Exhibit A.
1.03 "Referral Loans" means loans resulting from a solicitation made
by Marketer to a prospective borrower or cross-sold by CFS or Bank, in either
case as evidenced by (a) the borrower's call to a toll free number established
exclusively for use in connection with applications for CFS Loans or (b) the
borrower's use of a web site, the URL for which is assigned exclusively to
Marketer, or (c) the use of written Marketing Materials to apply for a CFS Loan.
1.04 "Required Agreements" means:
A Note Purchase Agreement between Bank and Program Manager.
A Deposit and Security Agreement between Bank and Program
Manager
A Loan Origination Agreement between Bank and The Education
Resources Institute, Inc. ("TERI").
A Guaranty Agreement between the Bank and TERI, as guarantor.
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1.05 "Marketer" shall mean Collegiate Funding Services, LLC ("CFS")
and includes any subcontractor that CFS employs to perform any or all of its
duties hereunder.
1.06 "Marketing Materials" means all promotional materials with
respect to CFS Loans developed and/or used by Marketer, including without
limitation printed materials, brochures, fliers, inserts and any web sites or
web pages promoting CFS Loans, whether hosted by Marketer, Bank, Program
Manager, or any contractor working for any of them.
1.07 "Securitization Transaction" means a transaction sponsored by
Program Manager in which Bank sells a pool of CFS Loans to a special purpose
entity that obtains purchase money financing secured by the pool of CFS Loans.
II. SERVICES OF MARKETER.
2.01 Marketer shall perform the services described in Exhibit B.
Marketing Materials shall be subject to the prior review and approval by Bank
and Program Manager. Such review shall be prompt and reasonable. Marketer shall
provide not less than seven days advance notice of the proposed delivery of
initial drafts of a marketing campaign. With respect to initial drafts of print
or web based materials, Bank and PROGRAM MANAGER shall be prepared to discuss
their comments with Marketer in a telephone conference within three business
days. Marketer shall make available its marketing personnel and persons familiar
with the proposed use of the draft Marketing Materials (including designers, if
necessary) for such teleconference. Bank and PROGRAM MANAGER shall complete
their markup of initial drafts within two business days after the
teleconference. Thereafter, revised drafts of the same materials shall be
reviewed within two business days. Review by Bank and Program Manager shall be
coordinated through the Marketing Coordinator designated on Exhibit B.
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2.02 Marketer shall also be responsible for remarketing CFS Loans to
borrowers who have previously received a CFS Loan ("Returning Borrower"). In
order to optimize Marketers efforts with Returning Borrowers, Bank shall cause
its origination services provider to deliver weekly and monthly origination
reports in the form of Exhibit E to Marketer. All such data shall be subject to
the confidentiality restrictions of Article 10 hereof. Program Manager agrees to
cause the purchaser of CFS Loans in a securitization transaction to enter into
appropriate agreements with Marketer to support Marketer's exclusive right to
market additional CFS Loans to Returning Borrowers.
2.03 Bank agrees to enter into and perform its obligations pursuant
to the Required Agreements. Bank shall provide a copy of the executed Required
Agreements to marketer, redacted only as to pricing.
2.04 Bank and Program Manager agree to consult with Marketer
regarding the annual revisions to the Program Guidelines, which revisions shall
be conducted in accordance with the procedure set forth in section 6 of the
Guaranty Agreement between Bank and TERI.
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III. COMPENSATION OF MARKETER.
3.01 In consideration of the services provided by Marketer, Bank
shall pay Marketer the compensation set forth in Exhibit C. All compensation to
Marketer for each Referral Loan shall be paid when such Referral Loan is
purchased in, and shall be paid out of the proceeds from, a Securitization
Transaction, except as otherwise set forth herein. Compensation shall be payable
only with respect to Referral Loans that have been purchased in a Securitization
Transaction. Program Manager shall perform its obligations under the Note
Purchase Agreement between Program Manager and Bank. Program Manager intends to
schedule Securitization Transaction closings four times a year, to occur on or
about May 15, June 30, November 15 and December 31 of each year (each, a
"Securitization Target Date"). Marketer requires cash flow on each of the
Securitization Target dates and, in addition on March 31 and September 30, such
dates being referred to herein collectively with the Securitization Target Dates
as "Payment Target Dates." In the event that Program Manager fails to consummate
a Securitization Transaction within five (5) business days after any of the six
(6) Payment Target Dates, Program Manager will provide to Marketer an advance
against future compensation equal to 50% of the compensation that would have
been payable to Marketer if a Securitization Transaction had closed on such
Payment Target Date. Such advance shall be payable within fifteen (15) days
after the relevant Payment Target Date and shall be credited, without interest
or other carrying charge, against the purchase price of CFS Loans (as between
Program Manager and Bank) and against the compensation due hereunder (as between
Bank and Marketer) at the next closing of a Securitization Transaction.
3.02 In the event that Program Manager fails to consummate a
Securitization Transaction on two consecutive Securitization Target Dates and
such failure continues for forty-
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five (45) days after the second of such Securitization Target Dates, then
Marketer shall have the following options:
(a) to receive from Program Manager a further advance of all
previously unpaid amounts that would have been payable to
Marketer had a Securitization Transaction closed at the two
proceeding Securitization Target Dates, which advance shall be
credited, without interest or other carrying charge, against
the purchase price of CFS Loans (as between Program Manager and
Bank) and against compensation due hereunder (as between Bank
and Marketer) at the next closing of a Securitization
Transaction; or
(b) Marketer may require Program Manager to assign to Marketer all
of Program Manager's rights under the Note Purchase Agreement
to purchase CFS Loans that were Seasoned Loans (as defined in
the Note Purchase Agreement) on either of the two missed
Securitization Target Dates. Such assignment shall be
conditioned upon Marketer repaying, without interest or
carrying charge, to Program Manager all advances made under
Section 3.01 hereof with respect to the CFS Loans that Marketer
will have the right to acquire under the Note Purchase
Agreement.
3.03 Marketer's right to the compensation provided herein is
contingent on Marketer not directly soliciting the refinancing or consolidation
of any existing CFS Loans, and Marketer covenants not to engage in any such
conduct. Marketer shall use standard list processing procedures to screen
potential mail, phone or email solicitation lists that it will use to offer
consolidation products against the name, address, and SSN of existing CFS Loan
borrowers, in order to remove such names in advance of any use of such list.
Marketer further acknowledges that causing prepayment of CFS Loans may undermine
the financial viability of Securitization
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Transactions sponsored by Program Manager, causing damage which is difficult to
calculate at the time it occurs and which the parties have reasonably estimated
in this agreement. In the event that Marketer directly solicits the refinancing
or consolidation of any CFS Loan that has been purchased in a Securitization
Transaction, and if such solicitation results in or causes the prepayment of
such CFS Loan within five (5) years after repayment begins with respect to such
loan, Marketer shall be liable to Program Manager, as liquidated damages and not
as a penalty, in the amount of [**] percent of all compensation paid to Marketer
under this Agreement with respect to such loan. This provision shall not apply
if Marketer did not solicit (directly or through a subcontractor) the
refinancing or consolidation in question. Marketer shall maintain a list of
consolidation loans it closes that refinance CFS Loans and shall report the
borrower names and SSNs to Program Manager quarterly.
3.04 In the event that the Borrower cancels a CFS Loan in a manner
and at a time permitted under the Program Guidelines, if that loan has already
been purchased in a Securitization Transaction or the subject of an advance
against future compensation under section 3.01 or 3.02(a), Marketer will return
to the Bank or Program Manager (whichever party made a payment to Marketer) all
amounts received by it with respect to such CFS Loan without interest or other
carrying charge. Program Manager shall prepare an accounting of all such
cancellations within 30 days after the last date permitted for cancellation of
loans purchased in a particular Securitization Transaction.
IV. COVENANTS OF MARKETER AND BANK.
4.01 Marketer covenants that all marketing materials shall comply
with all applicable laws. Marketer shall obtain and maintain all necessary
licenses, permits, approvals and other governmental consents necessary for the
conduct of the activities described herein. Marketer
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shall not misrepresent the CFS Loan nor any aspect of it, nor make any false or
misleading statements with respect to Bank or Program Manager. Bank and Program
Manager shall have the right, upon reasonable notice and during regular business
hours, to audit and review the records of Marketer relating to Marketer's
compliance with this Agreement, including, without limitation, the covenant
against soliciting refinancing or consolidation of CFS Loans as out-lined in
3.03 above. Such audits shall occur not more frequently than once in any
contract year, except that two such audits may be conducted in the first year of
this Agreement. Marketer shall maintain records of all marketing materials, the
distribution or publication of such materials, and any other matters reasonably
necessary to demonstrate its compliance with this Agreement.
V. SERVICE MARK LICENSE.
5.01 Bank and Program Manager hereby grant to Marketer the right to
use the Service Marks listed on Exhibit D attached hereto, including all
registrations thereof and designs and logos (collectively the "Service Mark") in
connection with the Marketer's obligations under this agreement, subject to the
following conditions and limitations. Such license is non-exclusive as a general
matter. The term of this license shall be co-extensive with the terms of this
Agreement. The Marketer agrees that nothing herein shall give to the Marketer
any right, title or interest in and to the Service Mark (except with respect to
use in accordance with the terms of this Agreement), that the Service Mark is
the sole property of either Bank or Program Manager and that any and all uses of
the Service Mark by the Marketer shall inure to the sole benefit of Bank and
Program Manager. It is expressly agreed and understood that the Marketer is not
purchasing or acquiring any right, title or interest in the Service Mark. The
Marketer agrees that if any rights in the Service Mark accrue to the Marketer by
operation or law, such rights will revert to either Bank or Program Manager,
which ever had that right prior to execution of this Agreement.
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The Marketer agrees to cooperate with Bank and Program Manager in perfecting
their respective rights, title and interest in each Service Mark by providing
written assignment of any rights therein which may have accrued to the Marketer.
Except as expressly provided in this Agreement, and except as otherwise agreed
to in writing by Bank and Program Manager, the Marketer will not use the Service
Mark for any purposes not related to this Agreement. Any use of the Service Mark
by the Marketer shall be conducted in accordance with any applicable policies
and procedures of the owner of the Service Mark, which had been or will be
disclosed in writing to Marketer, and shall be presented in a professional
manner, consistent with the image and use of the Service Mark by Bank and
Program Manager. In all events, the Marketer may rely on any use of the Service
Mark that has been expressly approved in writing by Bank and Program Manager.
VI. REPRESENTATIONS AND WARRANTIES.
6.01 Representations and Warranties of the Marketer, Bank, and
Program Manager. Each of the Marketer, Bank and Program Manager hereby
represents and warrants to the other two parties that:
(a) It is duly organized and existing in good standing and duly
qualified to do business (or is exempt from any requirements to
so qualify) under the laws of its state of organization or (in
the case of Bank) of the United States and has, in all material
respects, full power and authority to own its properties and
conduct its business as presently owned or conducted, and to
execute, deliver and perform its obligations in connection with
this Agreement.
(b) It has obtained all necessary licenses and approvals from any
government authority within any jurisdiction which requires
such qualification, license or
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approval, except where the failure to qualify or obtain
licenses or approvals would not have a material adverse effect
on its ability to perform its obligations under this Agreement
or upon the CFS Loans.
(c) The execution, delivery and performance of this Agreement and
the consummation of the transactions provided for in this
Agreement have been duly approved and authorized by all
necessary organizational action that it is required to take.
This Agreement constitutes its legal, valid and binding
obligation enforceable against it in accordance with its terms,
except that enforcement thereof may be limited by receivership,
conservatorship, bankruptcy, insolvency, reorganization,
moratorium or similar laws of general applicability relating to
or affecting creditors' rights or general equity principles
(regardless of whether such matters are considering a
proceeding in equity or at law) and the availability of
equitable remedies.
(d) The execution and delivery of this Agreement by it, the
performance by it of the transactions contemplated by this
Agreement, and the fulfillment by it of the terms of this
Agreement will not conflict with, violate or result in any
breach of any of the terms and provisions of, or constitute
(with or without notice or lapse of time or both) a default
under, any indenture, contract, agreement, mortgage, deed of
trust, or other instrument to which it is a party or by which
it or any other properties are bound which would have a
material adverse affect on its ability to exercise its rights
or perform its obligations hereunder.
(e) As of the date hereof, there are no proceedings or
investigations pending, or to the best of its knowledge
threatened against it before any governmental authority:
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(i) Asserting the invalidity of this Agreement,
(ii) Seeking to prevent the consummation of any of the
transactions contemplated by this Agreement,
(iii) Seeking any determination or ruling that, in its
reasonable judgment would both materially and adversely
affect its exercise of its rights or its performance of
its obligations under this Agreement, or
(iv) Seeking any determination or ruling that would materially
and adversely affect the validity or enforceability of
this Agreement.
VII. ADDITIONAL COVENANTS.
7.01 Marketer, Bank and Program Manager hereby covenant and agree that
for the duration of this Agreement each such party will do as follows:
(a) To do and cause to be done all things necessary to preserve,
renew and keep in full force and effect its corporate
existence;
(b) To comply with all applicable laws, rules, regulations, decrees
and orders of governmental authorities as is necessary to
perform its obligations under this Agreement;
(c) Provide the other parties with notice of any proceedings or
investigations pending or to the best of the knowledge of such
party, threatened against such party before any governmental
authority
(i) Asserting the invalidity of this Agreement;
(ii) Seeking to prevent the consummation of any of the
transactions contemplated under this Agreement;
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(iii) Seeking the determination or ruling that in the
reasonable judgment of the affected party would
materially and adversely affect performance by any party
of its obligations under this Agreement; or
(iv) Seeking a determination or ruling that would materially
affect the validity or enforceability of this Agreement.
(d) Marketer will conduct and/or supervise all telemarketing and
inbound application data collection in accordance with the Program
Descriptions. Marketer will consult with Bank and Program Manager
regarding the content of all telemarketing scripts. Marketer will
train its application processing telephone representatives in
accordance with training standards, mutually agreed upon by Program
Manager, TERI and Marketer. Marketer will permit Program Manager to
audit the performance of Marketers telemarketers and telephone
representatives in order to assure compliance with the terms of this
Agreement, such audits to occur not more than twice in the first
contract year and not more than once in any succeeding contract year..
Program Manager will provide reasonable notification for the audit,
which will be conducted on-site, at Marketer's place of business.
7.02 Bank and Program Manager will cause all CFS Loan promissory
notes, disclosures, and application documents and procedures to comply with
applicable law. Program Manager will cause any requirements it imposes upon
Marketing Material content to comply with applicable law. Marketer shall be
responsible for the legal compliance of any portion of Marketing Materials not
specifically required by Bank or Program Manager. If Program Manager has actual
knowledge of any change in applicable law affecting Marketing Materials, it will
promptly notify Marketer of such change.
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VIII. CONFIDENTIALITY.
8.01 Marketer, Bank and Program Manager shall not use, or
permit any of its affiliates, directors, officers, employees, agents,
consultants or advisors to use, any data or information concerning any
other party to this Agreement, including, without limitation any
information made available to it in connection with its performance
under this Agreement (such as information about borrowers), for any
purpose other than performance of its obligations under this
Agreement. Marketer, Bank and Program Manager shall hold, and shall
cause its respective affiliates, directors, officers, employees,
agents, consultants and advisors to hold, in strictest confidence,
unless compelled to disclose by judicial or administrative process or
other requirement of law, all non-public records, books, contracts,
reports, instruments, computer data and other data and information
(collectively "Information") concerning its performance under this
Agreement, any borrower or CFS Loan related to this Agreement, or any
other party to this Agreement that was furnished or made available to
it by another party to this Agreement. All such Information shall be
kept confidential, except to the extent that such Information can be
shown to have been
(a) Previously known by a party on a non-confidential basis,
(b) Available to such party on a non-confidential basis from
a source other than the disclosing party,
(c) In the public domain through no fault of such party, or
(d) Later lawfully acquired from other sources by a party.
Marketer, Bank and Program Manager shall not release or disclose
Information to any person, except its auditors, attorneys, financial advisors,
bankers and other consultants and advisors and, to the extent required by law,
to banking and regulatory authorities. In the event that a party receives notice
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that it will be compelled to disclose any Information by judicial or
administrative process, such party shall provide the person who provided such
Information (the "Disclosing Party") with prompt prior written notice of such
requirement so that the Disclosing Party may seek a protective order or other
appropriate remedy and/or waive the terms of any confidentiality agreement
applicable to such Information.
Marketer and Program Manager shall keep any non public personal
information regarding borrowers or applicants that it receives under this
Agreement confidential and protect the same against disclosure in the manner
required by federal regulations applicable to Bank and each shall use
Information received under this Agreement solely for the purposes of this
Agreement. Program Manager's permitted use of Information pursuant to this
Agreement shall include, without limitation, all data use necessary to
structure, price, and close a Securitization Transaction or to perform the other
terms and conditions of this Agreement.
IX. INDEMNIFICATION.
9.01 Each of Marketer, Bank and Program Manager hereby indemnifies
and holds harmless each other party from and against any and all loss, cost,
damage or expense (including without limitation, attorneys fees) incurred by
either of them or their respective officers, employees, directors,
representatives and agents that arise out of or result from, in all or in part,
any breach by the indemnifying party of any of its representations or warranties
or covenants contained herein.
X. TERM AND TERMINATION.
10.01 This Agreement shall commence on the date written on the first
page hereof and shall continue until May 1, 2003 (the "Initial Term"). Upon
conclusion of the Initial Term or any succeeding term, this Agreement shall
automatically be renewed for an additional one year period. Any party to this
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Agreement may terminate this Agreement by giving the other two parties written
notice of termination at least ninety (90) days prior to the effective date of
termination set forth in such notice and no such notice may be effective prior
to the end of the Initial Term.
10.02 Any party to this Agreement may terminate this Agreement for
cause in the event that:
(a) Another party to this Agreement has materially breached
any covenant, representation or warranty contained in
this agreement and has failed to remedy such breach
within thirty (30) days after receipt of written notice
from the non-breaching party specifying the breach and
demanding cure;
(b) Another party to this Agreement shall be subject as a
debtor of any bankruptcy, insolvency or other similar
proceeding (including, without limitation a receivership
conducted by the Federal Deposit Insurance Corporation),
which proceeding is not dismissed within sixty (60) days
after the filing thereof.
10.03 Upon termination, Marketer shall cease all efforts to market
the CFS Loans, shall return to Bank or destroy all Marketing Materials and shall
cease all use of the Service Mark. Marketer shall be entitled to compensation
for any Referral Loan approved and funded within six (6) months after the
effective date of termination, payable on the dates provided in this Agreement.
XI. REPORTING.
11.01 In addition to the data provided under Section 2.02, Bank shall
cause its origination servicer to report to Program Manager and Marketer the
following information:
(a) The number of Referral Loans approved and the amount of
such loans, monthly;
(b) The number of Referral Loans funded and booked and the
amount of such loans, monthly;
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(c) The number of Referral Loans cancelled during such month
and the amount of such cancellations, monthly;
(d) The number of Referral Loan applications pending at the
end of such month.
(e) Six times per year immediately after each Securitization
Target Date and Payment Target Date, aggregate
information of all loans sold in a Securitization
Transaction and all loans that are Seasoned Loans on each
such Target Date.
(f) The information described in Section 2.02.
11.02 Marketer shall report monthly to Bank and Program Manager with
respect to the marketing efforts conducted by it as described in Exhibit B
attached hereto.
XII. MISCELLANEOUS.
12.01 NOTICES. All notices, demands, and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
delivered personally or if mailed by Certified Mail, Return Receipt Requested,
Postage Prepaid or sent by overnight courier or sent by Facsimile (answer back
confirmed), as follows:
(a) If to Bank;
Robert Moriale
Charter One Bank
Student Lending Dept.
833 Broadway
Albany, NY 12207
(b) If to Marketer;
Collegiate Funding Services, LLC
100 Riverside Parkway
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Fredericksburg, VA 22406, ATTN: Clark McGhee
cc: Chuck Terribile
(c) If to Program Manager:
The First Marblehead Corporation
Att: Chief Executive Officer
30 Little Harbor, Marblehead, MA 01945
Phone: 781-639-2000 Fax: 781-639-4583;
With a copy to:
First Marblehead Education Resources, Inc.
Att: Chief Executive Officer
330 Stuart Street, Suite 500
Boston, MA 02116
(e) Or such other address or to the attention of such other
person as the recipient party shall have specified by
prior written notice to the sending party.
12.02. This Agreement (including the Exhibits hereto) contains the
entire understanding of the parties hereto and supersedes all prior agreements
and understandings relating to the subject matter hereof.
12.03 This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts, without regard to its
conflict of law rules.
12.04 This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted assigns.
Without limiting the foregoing, the parties agree that this Agreement shall be
binding on each party's successors by merger, consolidation or acquisition.
Except as otherwise expressly provided herein, neither this Agreement nor the
rights and obligations of
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any party hereunder, shall be assignable or transferable by such party without
the prior written consent of the other parties. Marketer shall have the right to
subcontract any services it is required to provide hereunder. Subcontracts for
telemarketing and telephone application processing shall be subject to the prior
written approval by Bank and Program Manager of the identity of the
subcontractor which approval shall not be unreasonably withheld. In all cases,
Marketer shall require the subcontractor to enter into a confidentiality
agreement at least as restrictive as Article X hereof. No subcontract shall
relieve Marketer of any liability to perform its obligations hereunder.
12.05 This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
12.06 The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent, and no rule of
strict construction will be applied against any party.
12.07 The invalidity or unenforceability of any particular provision
of this Agreement shall not affect the other provisions hereof, and this
Agreement shall be construed in all respects as if such invalid or unenforceable
provision was omitted.
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12.08 FORCE MAJEURE AND RESTRICTED PERFORMANCE.
(a) If performance by the Bank of any obligation under this Agreement
is prevented, restricted, delayed or interfered with by reason of
labor disputes, strikes, acts of God, floods, lightning, severe
weather, rationing, utility or communication failures, failure or
delay in receiving electronic data, earthquakes, war, revolution,
civil commotion, acts of public enemies, blockade, embargo or any Law,
or any other act or omission whatsoever, whether similar or dissimilar
to those referred to in this clause, which is or are beyond the
reasonable control of the Bank, the Bank shall provide written notice
to Marketer identifying the cause of the prevention, restriction,
delay or interference and the Bank shall be excused from the
performance to the extent of the prevention, restriction, delay or
interference, so long as the Bank is taking reasonable action to
accomplish such performance as promptly as possible under the
circumstances.
(b) If performance by Marketer of any service or obligation under this
Agreement is prevented, restricted, delayed or interfered with by
reason of labor disputes, strikes, acts of God, floods, lightning,
severe weather, rationing, utility or communication failures, failure
or delay in receiving electronic data, earthquakes, war, revolution,
civil commotion, acts of public enemies, blockade, embargo, or any
Law, or any other act or omission whatsoever, whether similar or
dissimilar to those referred to in this clause, which is or are beyond
the reasonable control of Marketer, Marketer shall be excused from the
performance to the extent of the prevention, restriction, delay or
interference, so long as it is taking reasonable actions to accomplish
such performance as promptly as possible under the circumstances.
(c) If performance by Program Manager of any service or obligation
under this Agreement is prevented, restricted, delayed or interfered
with by reason of labor disputes, strikes, acts of God,
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floods, lightning, severe weather, rationing, utility or communication
failures, failure or delay in receiving electronic data, earthquakes,
war, revolution, civil commotion, acts of public enemies, blockade,
embargo, or any Law, or any other act or omission whatsoever, whether
similar or dissimilar to those referred to in this clause, which is or
are beyond the reasonable control of Program Manager, Program Manager
shall be excused from the performance to the extent of the prevention,
restriction, delay or interference, so long as it is taking reasonable
actions to accomplish such performance as promptly as possible under
the circumstances.
12.09. AMENDMENT. This Agreement may be amended, supplemented or
modified only by a written instrument duly executed by or on behalf of each
party hereto.
12.10. WAIVER OF RIGHT TO JURY TRIAL. EACH OF THE PARTIES HERETO
HEREBY WAIVES ITS RIGHTS TO A TRIAL BY JURY IN ANY LITIGATION IN ANY COURT WITH
RESPECT TO, IN CONNECTION WITH, OR ARISING OUT OF, THIS AGREEMENT OR THE
VALIDITY, INTERPRETATION OR ENFORCEMENT HEREOF OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY.
12.11. This Agreement shall not be deemed to cause any party hereto to
be partners or joint venturers with any other party hereto, nor shall any party
be deemed to constitute another as an agent. This Agreement relates only to the
subject matter hereof and is not intended to, nor shall it be construed to,
benefit any person or entity other than the parties hereto, and there shall be
no direct or indirect beneficiaries of this Agreement,
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above stated.
THE FIRST MARBLEHEAD CORPORATION
By:/s/Ralph M. James
----------------------------------
Print Name: Ralph M. James
--------------------------
Title: President
-------------------------------
CHARTER ONE BANK, N.A.
By:/s/Linda M. Rankey
----------------------------------
Print Name: Linda M. Rankey
--------------------------
Title: Production Manager
-------------------------------
COLLEGIATE FUNDING SERVICES L.L.C.
By: /s/W.Clark McGhee
----------------------------------
Print Name: W.Clark McGhee
--------------------------
Title: EVP
-------------------------------
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NOTE: First Marblehead Corporation is not a party to Exhibit A, TERI Program
Guidelines or Exhibit C, Compensation to Marketer - Referral Compensation
Charter One Direct to Consumer Collegiate Funding Services Referral
Products. Pursuant to Item 601 of Regulation S-K, such exhibits are not
being filed herewith.
LIST OF EXHIBITS
A - Program Description - TERI Program Guidelines
B - Marketing Services
C - Compensation to Marketer - Referral Compensation Charter One Direct to
Consumer Collegiate Funding Services Referral Products
D - Service Marks
E - Origination Report
22
<Page>
EXHIBIT B TO MARKETING AGREEMENT
1. Conduct outbound telemarketing and direct mail marketing campaigns.
2. Receive inbound inquiry and application calls. Input application information
to TERI website.
3. By mutual agreement, adjust marketing from time to time after consultation
with Bank or Program Manager if CFS Loans are excessively weighted to higher
risk/ higher fee parts of the program.
4. Marketer's designated coordinator for review of Marketing Materials is
Phyllis Guiser.
23
<Page>
EXHIBIT D
SERVICE MARKS AND TRADE MARKS
The Marks covered by this Exhibit, if any, shall be designated by mutual
agreement of the Bank, the Marketer and Program Manager.
24
<Page>
EXHIBIT E TO MARKETING AGREEMENT - ORIGINATION REPORT CONTENT
<Table>
<Caption>
FIELD FORMAT LENGTH START DESCRIPTION
- --------------------------------------------------------------------------------------------------------------------------------
Application Number 9(10) 10 1 ALE Loan ID Number
Product Code X(6) 6 11 ALE Program Code See Data Dictionary
Loan Status X(1) 1 17 Loan Status See Data dictionary for possible
values
Date Application Received 9(8) 8 18 Application Received Date (YYYYMMDD)
Disbursement 1 Amount 9(10)V97 8 26 Disbursement 1 Amount
Disbursement 2 Amount 9(10)V98 9 34 Disbursement 2 Amount
Full Loan Amount 9(10)V99 10 43 Loan Amount Disbursed, including Guaranty Fee
Repayment Interest Rate 9(6)V999 6 53 Interest Rate Charged in Repayment
Deferral Interest Rate 9(6)V999 6 59 Interest Rate Charged in Deferment
Orig. Fee 9(10)V99 10 65 Guaranty Fee
Deferment Option X(2) 2 75 Deferment Option, See Data Dictionary for possible
values
Repayment Term 9(4) 4 77 Number of Scheduled Monthly Payments
Date of Disbursement 1 9(8) 8 81 Disbursement 1 Date, (YYYYMMDD)
Date of Disbursement 2 9(8) 9 89 Disbursement 2 Date, (YYYYMMDD)
Status Change Date 9(8) 8 98 Date of last Change in Status
Applicant 1 SSN X(11) 11 106 Student Info, EXCEPT for K-12 Loan. For K-12,
Borrower info
Applicant 1 Last Name X(20) 20 117 Student Info, EXCEPT for K-12 Loan. For K-12,
Borrower info
Applicant 1 First Name & MI X(15) 15 137 Student Info, EXCEPT for K-12 Loan. For K-12,
Borrower info
Applicant 1 Address X(25) 25 152 Student Info, EXCEPT for K-12 Loan. For K-12,
Borrower info
Applicant 1 City X(20) 20 177 Student Info, EXCEPT for K-12 Loan. For K-12,
Borrower info
Applicant 1 State X(2) 2 197 Student Info, EXCEPT for K-12 Loan. For K-12,
Borrower info
Applicant 1 Zip X(10) 10 199 Student Info, EXCEPT for K-12 Loan. For K-12,
Borrower info
Applicant 1 Birth date 9(8) 8 209 Student Info, EXCEPT for K-12 Loan. For K-12,
Borrower info
Applicant 1 Residence Status X(1) 1 217 See Data dictionary
(Own/Rent)
Applicant 2 Last Name X20) 20 218 Co-Borrower info
Applicant 2 First Name & MI X(15) 15 238 Co-Borrower info
</Table>
<Page>
<Table>
Applicant 2 Address X(25) 25 253 Co-Borrower info
Applicant 2 City X(20) 20 278 Co-Borrower info
Applicant 2 State X(2) 2 298 Co-Borrower info
Applicant 2 Zip X(10) 10 300 Co-Borrower info
Applicant 2 Birth date 9(8) 8 310 Co-Borrower info
Applicant 2 Residence Status X(1) 1 318 Co-Borrower info
(Own/Rent)
Grade Level X(2) 2 319 Student's Grade Level
Expected Graduation Date 9(8) 8 321 Expected Graduation Date
FICE X(8) 8 329 School DOE Code
School Name X(30) 30 337 School Name
School City X(30) 30 367 School City
School State X(2) 2 397 School State
School Zip X(10) 10 399 School Zip
School Co-payable X(6) 6 409 Record Level, see Data Dictionary
Priority Code X(30) 30 415 See Data dictionary
Source Code (How did you hear X(2) 2 445 See Data dictionary
about us?)
Internet Loan Identifier X(40) 40 447 Free Formed Field, Values not available
Loan Requested Amount 9(10)V99 10 487 Loan Amount Requested by Borrower
Prom Note Return Date 9(8) 8 497 Date Signed Prom Note is Received
Loan Amount Approved 9(10)V99 10 505 Loan Amount Approved
record length 514
</Table>
26
<Page>
AMENDMENT dated December 6, 2002
to the
REFERRAL MARKETING AGREEMENT
Between
CHARTER ONE BANK, N.A.,
THE FIRST MARBLEHEAD CORPORATION,
And
COLLEGIATE FUNDING SERVICES L.L.C.
This Amendment Agreement is entered into as of the 6th day of December, 2002 by
and between Charter One Bank, N.A. ("Charter One"), The First Marblehead
Corporation ("FMC"), and Collegiate Funding Services L.L.C. ("CFS") to the
Marketing Agreement between the Charter One, FMC and CFS dated May 15, 2002 (the
"Agreement").
WHEREAS, pursuant to the Agreement, CFS has been providing certain services in
connection with the promotion of CFS Loans (as defined in the Agreement) to
prospective borrowers; and
WHEREAS, at the request of CFS, FMC and Charter One have agreed to amend the
Agreement as set forth below;
NOW, THEREFORE, in consideration of the mutual promises contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties, it is hereby agreed as follows:
1. A new subsection 3.05 will be added to Section III of the Agreement,
which shall read as follows:
Program Manager shall cause its subsidiary First Marblehead Education
Resources, Inc. ("FMER") to receive, or to engage a third party agent of its
choosing to receive, inbound calls from potential borrowers, including the
taking of telephone applications and the provision of information regarding the
PELP. Within ten days after receipt of an invoice from Program Manager, Marketer
shall reimburse Program Manager for all expenses actually incurred by FMER or
its agent in performing the functions described in this Section 3.05; if
Marketer does not timely pay such amounts, Program Manager shall have the right
to set off such amounts against any amounts due from Program Manager to
Marketer. Notwithstanding the foregoing, in no circumstance shall the total of
such charges for a given calendar quarter exceed [**]([**]%) of the aggregate
principal amount of CFS Loans disbursed in such calendar quarter. Within thirty
days after the end of a calendar quarter, Program Manager shall verify that
costs paid by Marketer pursuant to this Section do not exceed this limit. Any
amounts paid by Marketer in excess of this limitation shall be applied as a
credit towards future costs due to Program Manager hereunder. Upon termination
of this Agreement, any such excess shall be paid by Program Manager to CFS in
cash. Any CFS Loans with respect to which inbound application telephone customer
service was provided by CFS shall not be included in the foregoing calculation
of maximum CFS liability under this section. In the event that CFS elects to
recommence full time unbound application telephone customer service, it shall
give Program Manager not less than sixty (60) days advance notice of such
election.
<Page>
2. Exhibit B to the Agreement is hereby deleted and replaced by Exhibit B
attached hereto.
IN WITNESS WHEREOF, the parties hereto by their duly authorized representatives
have executed this Amendment as of the date first written above.
CHARTER ONE BANK, N.A.
By:/s/Linda M. Rankey
-------------------------------------
Name: Linda M. Rankey
-----------------------------------
Title: Production Manager
----------------------------------
COLLEGIATE FUNDING SERVICES, L.L.C.
By:/s/Charles L., Terribile
-------------------------------------
Name: Charles L., Terribile
-----------------------------------
Title: Executive Vice President
----------------------------------
THE FIRST MARBLEHEAD CORPORATION
By:/s/Ralph James
-------------------------------------
Name: Ralph James
-----------------------------------
Title: President
----------------------------------
28
<Page>
EXHIBIT B TO AMENDMENT DATED DECEMBER 6, 2002
EXHIBIT B TO MARKETING AGREEMENT
1. Conduct outbound telemarketing and direct mail marketing campaigns.
2. By mutual agreement, adjust marketing from time to time after consultation
with Bank or Program Manager if CFS Loans are excessively weighted to
higher risk/ higher fee parts of the program.
3. Marketer's designated coordinator for review of Marketing Materials is
Phyllis Guiser.
<Page>
AMENDMENT
to
REFERRAL MARKETING AGREEMENT
CFS Alternative Loan Program
This Amendment is entered into as of the 1st day of May, 2003 by and among
Charter One Bank, N.A., a national bank organized under the laws of the United
States and having a principal office located at 1215 Superior Avenue, Cleveland,
OH 44114, and a student loan department located at 833 Broadway, Albany, NY
12207 (the "Lender"), The First Marblehead Corporation, a Delaware corporation
having a principal place of business at 30 Little Harbor, Marblehead,
Massachusetts ("FMC") (the "Lender"), and Collegiate Funding Services L.L.C., a
limited liability company organized under Virginia law and having a principal
office at 100 Riverside Parkway, Fredericksburg, VA 22406 ("Marketer") with
regard to the Referral Marketing Agreement among Lender, FMC, and Marketer dated
May 15, 2002 (the "Referral Marketing Agreement"). Capitalized terms used herein
without definition shall have the meanings assigned to them in the Referral
Marketing Agreement.
WHEREAS, the parties desire to adopt new program terms for the 2003-04 program
year; and
WHEREAS, in an effort to offer a more diverse education loan program, the
parties wish to amend and expand the Program to include loans disbursed through
school channels.
NOW, THEREFORE, in consideration of the mutual promises contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties, it is hereby agreed as follows:
1. COMPENSATION.
(a) The parties hereby amend and restate Schedule C to the Referral
Marketing Agreement by adopting the Schedule C attached hereto.
(b) Section 3.01 of the Referral Marketing Agreement is hereby amended and
restated to read in its entirety as follows:
In consideration of the services provided by Marketer, Bank shall pay
Marketer the compensation set forth in Exhibit C. All compensation to
Marketer for each Referral Loan shall be paid when such Referral Loan
is purchased in, and shall be paid out of the proceeds from, a
Securitization Transaction, except as otherwise set forth herein.
Compensation shall be payable only with respect to Referral Loans that
have been purchased in a Securitization Transaction. Program Manager
shall perform its obligations under the Note Purchase Agreement
between Program Manager and Bank. Program Manager intends to schedule
Securitization Transaction closings four times a year, to occur on or
about May 15, June 30, November 15 and December 31 of each year (each,
a "Payment Target Date"). Marketer requires cash flow on each of the
Payment Target Dates. In the event that Program Manager fails to
consummate a Securitization Transaction within five (5) business days
after any of the four (4) Payment Target Dates, Program Manager will
provide to Marketer an advance against future
30
<Page>
compensation equal to [**]% of the compensation that would have been
payable to Marketer if a Securitization Transaction had closed on such
Payment Target Date. Such advance shall be payable within fifteen (15)
days after the relevant Payment Target Date and shall be credited,
without interest or other carrying charge, against the purchase price
of CFS Loans (as between Program Manager and Bank) and against the
compensation due hereunder (as between Bank and Marketer) at the next
closing of a Securitization Transaction.
2. PROGRAM GUIDELINES. The parties hereby amend and restate the Program
Guidelines by adopting the Program Guidelines attached hereto as Exhibit A.
3. MULTIPLE MARKETING CHANNELS. A new section 4.02 is hereby added to the
Referral Marketing Agreement as follows:
The CFS Loans include multiple consumer pricing levels that vary depending
upon the marketing channel (direct to consumer or through schools). CFS
shall control the content and distribution of its Marketing Materials to
avoid customer confusion about pricing. Because CFS phone operators and/or
CFS web links will select the web-based loan application channel that is
used for initiating a CFS loan on the TERI loan origination system, CFS
shall use reasonable and prudent care to assure that an application is
generated for a loan type that is consistent with Marketing Materials
provided to the consumer in question. CFS shall collaborate and cooperate
with TERI and its subcontractors in assuring that applicants are matched
with the appropriate loan pricing. Within thirty (30) days after execution
of this Amendment, CFS shall present to TERI and Program Manager its plans
for achieving the requirements of this section, Program Manager shall have
the right, on reasonable notice and at reasonable times, to audit CFS's
compliance with this section. Review of Marketing Materials under this
Agreement may include an evaluation by Bank and Program Manager of
Marketer's establishment of adequate controls to assure that its
obligations under this section will be fulfilled.
4. TERMINATION OF AMENDMENT. As of the beginning of the 2003-04 program year
(July 1, 2003), Section 3.05 of the Referral Marketing Agreement (first adopted
in an Amendment to the Referral Marketing Agreement dated December 6, 2002)
shall be deleted from the Referral Marketing Agreement and shall be of no
further force or effect.
5. MARKETING SERVICES. The parties hereby amend and restate Exhibit B to the
Referral Marketing Agreement by adopting the Exhibit B attached hereto.
6. TRANSITION. This Amendment shall be effective for each Program loan for which
applications are received on or after a date set by TERI by notice delivered to
Lender as soon as reasonably possible.
7. FULL FORCE AND EFFECT. As amended herein, the Referral Marketing Agreement
remains in full force and effect.
IN WITNESS WHEREOF, the parties hereto by their duly authorized representatives
have executed this Amendment as of the date first written above.
31
<Page>
COLLEGIATE FUNDING CHARTER ONE BANK, N.A.
SERVICES, L.L.C.
By:/s/W.Clark McGhee By:/s/Linda M. Rankey
----------------------------------- ---------------------------------
Name: W.Clark McGhee Name: Linda M. Rankey
--------------------------------- -------------------------------
Title: EVP Title: Production Manager
-------------------------------- ------------------------------
THE FIRST MARBLEHEAD CORPORATION
By:/s/Ralph James
-----------------------------------
Name: Ralph James
---------------------------------
Title: President
--------------------------------
32
<Page>
NOTE: First Marblehead Corporation is not a party to Exhibit A, TERI Program
Guidelines or Exhibit C, Compensation to Marketer-Referral Compensation
Charter One to Consumer Collegiate Funding Services Referral Products.
Pursuant to Item 601 of Regulation S-K, such exhibits are not being filed
herewith.
33
<Page>
EXHIBIT B TO MARKETING AGREEMENT
1. Conduct outbound telemarketing and direct mail marketing campaigns.
2. At Marketer's option, receive inbound inquiry and application calls and
input application information to the TERI website.
3. By mutual agreement, adjust marketing from time to time after consultation
with Bank or Program Manager if CFS Loans are excessively weighted to
higher risk/ higher fee parts of the program.
4. Marketer's designated coordinator for review of Marketing Materials is
Phyllis Guiser.