Exhibit
10.1.2


 


Execution version


 


Confidential
treatment omitted and filed separately with the Securities and Exchange


Commission. 
Asterisks denote omissions.


 


FIRST AMENDMENT TO THE


 


AMENDED AND RESTATED


 


PRIVATE STUDENT LOAN SERVICING AGREEMENT


 


BETWEEN


 


PENNSYLVANIA HIGHER EDUCATION ASSISTANCE  AGENCY


 


AND


 


THE FIRST
MARBLEHEAD CORPORATION


 


THIS
FIRST AMENDMENT is made as of this 4th day of March,
2008, by and between Pennsylvania Higher Education Assistance Agency, a public
corporation and governmental instrumentality organized under the laws of the
Commonwealth of Pennsylvania, having an address at 1200 North Seventh Street,
Harrisburg, Pennsylvania, 17102 (“Servicer”), and The First Marblehead
Corporation, having an address at 800 Boylston Street, 34th Floor, Boston,
Massachusetts 02199 (“FMC”). Capitalized terms used herein without definition
have the meanings assigned to them in the Servicing Agreement (as defined
below).


 


RECITALS


 


WHEREAS,
the parties previously entered into an Amended and Restated Private Student
Loan Servicing Agreement dated as of September 28, 2006 (the “Servicing
Agreement”), which sets forth the terms for the servicing of student loans
owned by SPEs and serviced by the Servicer; and


 


WHEREAS,
in order to facilitate its funding of student loans, Union Federal Savings
Bank, a federal savings bank organized under the laws of United States of
America and having a place of business at 1565 Mineral Springs Avenue, North
Providence, Rhode Island 02904 (“UFSB”) and certain other Program Lenders
(collectively, the “Originating Lenders”) may arrange to sell pools of
Committed Student Loans from time to time to SPV (as defined herein).


 


WHEREAS,
pursuant to the Loan Agreement (as defined herein), the SPV will grant to the
Collateral Agent (as defined herein), for the benefit of the Administrative
Agent (as defined herein) as agent for the Lender (as defined herein), a
security interest in, among other things, the Pledged Student Loans (as defined
herein) and the related Student Loan files for the purpose of securing the due
and punctual payment of all amounts due from the SPV to the Lender and the
Administrative Agent under the terms of the Loan Agreement.


 


WHEREAS,
the Collateral Agent desires that the Servicer hold such Student Loan files and
any other documents related thereto as the custodian for, and bailee of, the
Collateral Agent, for the benefit of the Administrative Agent, as agent for the
Lender;


 


WHEREAS,
Servicer and FMC now wish to amend certain provisions contained in the Agreement;
and


 


WHEREAS, Servicer and FMC otherwise wish to retain all terms and
provisions in the


 

















 


Agreement
and to continue to exercise their rights and fulfill their duties thereunder.


 


NOW THEREFORE, in consideration of the mutual covenants contained herein
and other valuable consideration, and intending to be legally bound, the
parties agree as follows:


 


1.                                       Definitions.  The following new definitions are hereby
added to the Servicing Agreement to read as follows:


 


“1.52       “Administrative
Agent” means Goldman Sachs Mortgage Company in its capacity as administrative
agent under the Loan Agreement.


 


1.53         “Administrator”
means First Marblehead Data Services, Inc. in its capacity as
administrator of the SPV pursuant to that certain administration agreement
dated as of March 4, 2008 by and among the SPV, the Collateral Agent and
the Administrator.


 


1.54         “Collateral
Agent” means  U.S. Bank National
Association in its capacity as collateral agent under the Loan Agreement.


 


1.55         “Interim
Sale” means a transaction in which the Originating Lenders will indirectly sell
Pledged Student Loans the SPV periodically, but not more than eight times per
calendar month.


 


1.56         “Lender”
means Goldman Sachs Mortgage Company in its capacity as lender under the Loan
Agreement.


 


1.57         “Loan
Agreement” means that certain master loan agreement, dated as of March 4,
2008, among the SPV, as borrower, Goldman Sachs Mortgage Company, as
Administrative Agent and Lender, and U.S. Bank National Association, as
Collateral Agent.


 


1.58         “Pledged
Student Loan” means a student loan originated by an Originating Lender which
has been indirectly sold to the SPV and which is pledged to the Collateral
Agent under a security agreement among the SPV, the Collateral Agent and the
Administrative Agent; provided, however,
that any student loans released pursuant to the Loan Agreement from the lien
created pursuant to such security agreement shall not be deemed to be a Pledged
Student Loan.


 


1.59         “SPV”
means FMC Private Loan SPV Trust, a Delaware trust having an address at 800
Boylston Street, Boston, MA 02199, c/o First 
Marblehead Data Services, Inc.”


 


2.                                       Appointment of
the Custodian.  The
following is added as a second paragraph of Section 4.04 of the Servicing
Agreement:


 


“Subject to the terms and conditions hereof and of the Loan Agreement,
the Servicer is hereby appointed, and the Servicer hereby accepts such
appointment and agrees to act as custodian, bailee and collateral agent on
behalf of the SPV and the Collateral Agent for the benefit of the Administrative
Agent, as agent for the Lender, to maintain exclusive custody of the Original
Credit Agreements pertaining to the Pledged Student Loans from time to time
pledged under the Loan Agreement in order to perfect the ownership interest of
the Borrower (as defined in the Loan Agreement) and the security interest of
the Collateral Agent for the benefit of the Administrative Agent, as agent for
the Lender, in the Pledged Student Loans and other items in the Student Loan
files evidencing the Pledged Student Loans and any and all proceeds of the


 


2

















 


foregoing.  In performing its duties hereunder, the
Servicer agrees to act with reasonable skill and attention, using that standard
of skill and attention that the Servicer would exercise with respect to the
files relating to all comparable loans or other receivables that it services or
holds for itself or others under applicable industry custom.”


 


3.                                       Interim Sales
To SPV.  A new Section 4.03(e) is
hereby added to the Servicing Agreement as follows:


 


“Pursuant
to the terms of this Agreement, as amended, one or more Originating Lenders may
periodically make Interim Sales to SPV. 
No examination of any loan documents by Servicer shall be required in
connection with an Interim Sale.  Any
Pledged Student Loan sold to SPV shall continue to be Serviced pursuant to the
terms of this Agreement.”


 


4.                                       Collections. Section 4.13
of the Servicing Agreement is hereby amended by adding the following as the
last sentence thereof:


 


“Notwithstanding the foregoing, for purposes of this Section 4.13,
SPV shall be regarded as the Owner of a Pledged Student Loan following an
Interim Sale of such Pledged Student Loan, until the Pledged Student Loan is
sold in a Securitization Transaction. 
FMC and/or Administrator may elect to have amounts on deposit
transferred into any account established for FMC or SPV by Servicer, subject to
the operational capabilities of Servicer.”


 


5.                                       Reporting. Section 4.16
is hereby amended by adding the following as the last sentence thereof:


 


“For purposes of this section, with respect to each Pledged Student
Loan involved in an Interim Sale, the term ‘Owner’ means the SPV following an
Interim Sale of a Pledged Student Loan, until the Pledged Student Loan is sold
in a Securitization Transaction. In addition, Servicer shall provide
Administrator with additional reporting as reasonably requested from time to
time.  FMC and Administrator agree that
Servicer may invoice such additional reporting as Ad Hoc Projects/Reporting charges
pursuant to Section VI(4.) of the Fee Schedule.”


 


6.                                       Redesignation. Sections
13.02 and 13.03 of the Servicing Agreement are hereby redesignated as Sections
13.03 and 13.04 thereof respectively, but shall otherwise remain in full force
and effect without amendment.


 


7.                                       SPV Provisions. A new Section 13.02
is hereby added to the Servicing Agreement to read as follows:


 


“13.02. Assignment to SPV. The parties contemplate
that, prior to a sale of Pledged Student Loans in a Securitization Transaction
pursuant to this Agreement, one or more Originating Lenders and SPV may
periodically engage in an  Interim Sale.
After each Interim Sale and except as otherwise set forth in this
Agreement,  SPV shall be considered the
Owner for purposes of this Agreement with respect to each Pledged Student Loan
sold in each Interim Sale until a Securitization Transaction including such
loans is completed.  The Originating
Lenders involved will assign any claims they have under this Agreement with
respect to prior Servicing of said Pledged Student Loans to SPV in connection
with an Interim Sale, and Servicer agrees to any such assignment of rights
under this Agreement.  SPV shall also
assume all the rights and responsibilities of FMC with respect to the loans
purchased by SPV.  In addition, with
respect to each Interim Sale:


 


(a)           The date for such Interim Sale shall
be established by mutual agreement of the


 


3

















 


parties
(with Administrator acting on behalf of the SPV);


 


(b)           Pledged Student
Loans to be sold in each Interim Sale shall be identified using a process and
parameters established jointly by the parties (with Administrator acting on
behalf of the SPV); and


 


(c)           Servicer shall
reflect in its servicing system that the Pledged Student Loans sold in the
Interim Sale are owned by SPV. Servicer may, at its discretion, reflect such
ownership of SPV through inclusion of a suffix or modified lender code in
Servicer’s system.”


 


8.                                       Fees.  The following is hereby added to the end of Section 8.01
of the Agreement:


 


“All
fees owed under this Agreement by SPV shall be paid by FMC or the Administrator
on behalf of the SPV. Notwithstanding the foregoing, Servicer shall provide a
separate line item in invoices for fees attributable to SPV. It is also
understood that, for purposes of Conversion Fees, Section III of the Fee
Schedule, an Interim Sale shall be considered an “Interim Account—On System;
Waived Exam,” for which no conversion fee is owed.”


 


9.                                       Notices.  Section 15.01 of the Agreement is hereby
amended to replace the term “If to FMC:” with the term “If to FMC or SPV:”


 


10.                                 Owner Pays All
Fees.  A new sentence is added to the
end of the first paragraph of the Fee Schedule as follows:


 


“All fees to be paid pursuant to this
Agreement by SPV shall be paid by FMC or the Administrator on behalf of the
SPV. Notwithstanding the foregoing, Servicer shall provide a separate line item
in invoices for fees attributable to 
SPV.”


 


11.                                 Interim Account
— On System.  Section III(2) of
the Fee Schedule is deleted in its entirety and replaced as follows:


 


“2.  Interim Account — On System


 


All
Interim Sales to SPV shall be included in this category.


 


	
  a.

  	
  Full
  Note Exam:

  	
  $[**]
  per loan

  
	
  b.

  	
  Waived
  Exam:

  	
  [**]”

  



 


12.           SPV Fee.  New items 11, 12, 13, 14, 15 and 16 are hereby
added to Miscellaneous Fees, Section VI of the Fee Schedule, as follows:


 


	
  “11.
  Interim Sale:

  	
  $[**]
  per Lender Code, per Interim Sale (Includes one Loan Sale Report)

  
	
    12.
  Reversal of Interim Sale:

  	
  $[**]
  per Interim Sale Reversal

  
	
    13.
  Preliminary Loan Sale Reports:

  	
  $[**]
  per Preliminary Loan Sale Report after delivery of the first Loan Sale Report

  
	
    14.
  Computer Programmer

  	
  $[**]
  per hour (when FMC provides the trigger file)

  
	
    15. Financing
  Legal Services

  	
  $[**] per hour

  
	
    16. Borrower
  Sale Notification

  	
  $[**] per letter, unless
  FMC directs Servicer not to send letter”

  



 


4

















 


13.                                 Full Force and Effect. As amended herein, the Servicing
Agreement remains in full force and effect.


 


14.                                 Counterparts. This First Amendment 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 document.


 


[Remainder of page intentionally blank]


 


5

















 


IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be duly executed as of the
month, day and the year first-above written.


 


 


	
  PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY

  	
   

  	
  THE FIRST MARBLEHEAD CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/
  James L. Preston

  	
   

  	
  /s/ Anne P. Bowen

  
	
  James
  L. Preston

  	
   

  	
  Anne
  P. Bowen

  
	
  Interim
  President and CEO

  	
   

  	
  Executive
  Vice President

  
	
  March 4, 2008

  	
   

  	
  March 4, 2008

  



 


 


Approved
as to form and legality:


 


 


	
  /s/
  Jason L. Swartley

  	
   

  	
   

  
	
  PHEAA
  Legal Counsel

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/
  Robert A. Mulle

  	
   

  	
   

  
	
  Deputy
  Attorney General

  	
   

  	
   

  



 


 


	
  ACKNOWLEDGED
  AND AGREED:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  FMC
  PRIVATE LOAN SPV TRUST

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  Wilmington
  Trust Company, not in its individual capacity but solely as Owner Trustee

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


 


March 4, 2008


 














 


SECOND AMENDMENT TO THE


 


AMENDED AND RESTATED


 


PRIVATE STUDENT LOAN SERVICING AGREEMENT


 


BETWEEN


 


PENNSYLVANIA HIGHER EDUCATION
ASSISTANCE  AGENCY


 


AND


 


THE FIRST MARBLEHEAD CORPORATION


 


THIS
SECOND AMENDMENT is made as of this 12th day of February, 2009, by and between
Pennsylvania Higher Education Assistance Agency, a public corporation and
governmental instrumentality organized under the laws of the Commonwealth of
Pennsylvania, having an address at 1200 North Seventh Street, Harrisburg,
Pennsylvania, 17102 (“Servicer”), and The First Marblehead Corporation, having
an address at 800 Boylston Street, 34th Floor, Boston, Massachusetts 02199
(“FMC”). Capitalized terms used herein without definition have the meanings
assigned to them in the Servicing Agreement (as defined below).


 


RECITALS


 


WHEREAS,
the parties previously entered into an Amended and Restated Private Student
Loan Servicing Agreement dated as of September 28, 2006, as amended by the
First Amendment dated March 4, 2008 (collectively, the “Servicing
Agreement”), which sets forth the terms for the servicing of student loans
owned by SPEs and serviced by the Servicer; and


 


WHEREAS,
FMC has requested Serviver to increase correspondence with co-borrowers on a
portfolio of loans which are guaranteed by The Education Resources Institute
(“TERI”), and are either owned by an SPE or SPV, or owned by a lender who has
an agreement to sell said Student Loans to an SPE or SPV (the “TERI
Portfolio”).


 


WHEREAS,
FMC and Servicer executed a Statement of Work on March 20, 2008, to create
the functionality necessary for the segmentation of the TERI Portfolio.


 


WHEREAS,
FMC has agreed to pay for the additional correspondence to be made pursuant to
the guidelines established by FMC, whereby co-borrowers on loans held in the
TERI Portfolio would now receive up to three additional pieces of
correspondence;


 


WHEREAS,
Servicer and FMC now wish to amend certain provisions contained in the
Agreement; and


 


WHEREAS, Servicer and FMC otherwise wish to retain all terms and
provisions in the Agreement and to continue to exercise their rights and
fulfill their duties thereunder.


 


NOW THEREFORE, in consideration of the mutual covenants contained
herein and other valuable consideration, and intending to be legally bound, the
parties agree as follows:


 


1.                                       Borrower Correspondence.  The
following is added as a second paragraph of Section 4.12 of the Servicing
Agreement:


 

















 


“FMC and Servicer have instituted the functionality to identify
specific TERI-guaranteed loans with criteria established by FMC, which will
increase correspondence to the co-borrowers for these loans.  This functionality was created pursuant to a
Statement of Work, dated March 20, 2008, which is attached as Exhibit D
to this Agreement, and is incorporated herein.”


 


2.                                       Segmentation Correspondence Fee.  New
item 17 is hereby added to Miscellaneous Fees, Section VI of the Fee
Schedule, as follows:


 


	
  “17.
  Segmentation Correspondence Fee:

  	
  $[**]
  per correspondence, for all lenders”

  



 


3.                                       Rescission of the First Amendment. The First Amendment executed by FMC and
Servicer on March 4, 2008, is hereby rescinded ab initio.


 


4.                                       Full Force and Effect. As amended herein, the Servicing Agreement
remains in full force and effect.


 


5.                                       Counterparts. This Second Amendment 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 document.


 


[Remainder of page intentionally blank]


 


2

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed as of the month, day and the year first-above written.


 


 


	
  PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY

  	
   

  	
  THE FIRST MARBLEHEAD CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ James L. Preston

  	
   

  	
  /s/ David Lubets

  
	
  James
  L. Preston

  	
   

  	
  David
  Lubets

  
	
  President
  and CEO

  	
   

  	
  Managing
  Director

  
	
  Date:

  	
  2/10/09

  	
   

  	
  Date:

  	
  1/28/09

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Approved
  as to form and legality:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/
  Jason L. Swartley

  	
   

  	
   

  
	
  PHEAA
  Legal Counsel

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Robert A. Mulle

  	
   

  	
   

  
	
  Deputy
  Attorney General

  	
   

  	
   

  
					



 














 


Execution Version


 


THIRD AMENDMENT TO THE


 


AMENDED AND RESTATED


 


 PRIVATE
STUDENT LOAN SERVICING AGREEMENT


 


BETWEEN


 


PENNSYLVANIA HIGHER EDUCATION ASSISTANCE  AGENCY


 


AND


 


THE FIRST
MARBLEHEAD CORPORATION


 


THIS
THIRD AMENDMENT is made as of this 30th day of April,
2008, by and between Pennsylvania Higher Education Assistance Agency, a public
corporation and governmental instrumentality organized under the laws of the
Commonwealth of Pennsylvania, having an address at 1200 North Seventh Street,
Harrisburg, Pennsylvania, 17102 (“Servicer”), and The First Marblehead
Corporation, having an address at 800 Boylston Street, 34th Floor, Boston,
Massachusetts 02199 (“FMC”). Capitalized terms used herein without definition
have the meanings assigned to them in the Servicing Agreement (as defined
below).


 


RECITALS


 


WHEREAS,
the Servicing Agreement adopts Servicing Guidelines for loans owned by FMC or
any Permitted Assignee (including any Special Purpose Entity) that purchases
such Student Loans or any interest therein from a Program Lender or from
another Permitted Assignee in a Securitization Transaction; and


 


WHEREAS,  FMC, First Marblehead Data Services, Inc.
(“FMDS”), as administrator for the Permitted Assignees, SPV, and Special
Purpose Entities holding Student Loans, and Servicer desire to clarify the
servicing requirements for loans that have been outsourced to NCO Financial
System, Inc. (“NCO”) for collections activities; and


 


WHEREAS,
the intent of this Amendment is to assure Servicer will not be held responsible
for any violation of the Servicing Guidelines that may occur while the Student
Loan was outsourced to NCO.


 


NOW
THEREFORE, in consideration of the mutual covenants contained herein and other
valuable consideration, and intending to be legally bound, the parties agree as
follows:


 


1.                                       Definitions.  The following new definitions are hereby
added to the Servicing Agreement to read as follows:


 


“NCO” means NCO Financial System, Inc.


 


2.                                       Due Diligence
Activities. The following Section 4.21 is hereby added to
the Servicing Agreement as follows:


 


“4.21                     The parties acknowledge and
agree that due diligence and skip tracing activities contemplated by the
Delinquency and Default and Skip Tracing sections of the Servicing Guidelines,
as amended (the “Delinquency Guidelines”) during the 31st through 60th day of
delinquency (the “Subject Delinquency Period”) for Student Loans owned by a
Special Purpose Entity or SPV shall be performed by NCO and 


 

















 


not
by Servicer (each such loan, for that 30-day time period, and for the purpose
of due diligence activities only, an “NCO Outsourced Loan”). More specifically:


 


a.               For any NCO
Outsourced Loan, Servicer shall not be responsible for performing the
Delinquency Guidelines for the Subject Delinquency Period.


 


b.              For any Student
Loan not outsourced to NCO, Servicer will be responsible for delinquency
servicing and skip tracing requirement for loans 31-60 days delinquent.


 


c.               Servicer shall
maintain responsibility for filing for pre-claims assistance in accordance with
the Servicing Guidelines, with the information that exists on the Servicer’s
system as of day 60.


 


d.              For any NCO
Outsourced Loan, Servicer will not be responsible for initiating skip-tracing
activities during the Subject Delinquency Period.  Servicer shall update contact information
within its system, if in the normal course of business Servicer or NCO obtains
or receives new contact information.


 


e.               For any NCO
Outsourced Loan, Servicer will remain responsible for all loan servicing
activities other than the Delinquency Guidelines, including but not limited to,
the processing of deferments, forbearance, and MGRS forms, general
correspondence, and borrower payments.


 


f.                 For rolling
delinquent accounts, i.e., NCO Outsourced Loans which have Borrower payments
applied that result in the account falling into the prior delinquency bucket or
being brought current, Servicer will follow the Servicing Guidelines, which
state that in the event of a rolling account, the servicer will resume
scheduled delinquency servicing activities at the point in which the
delinquency rolls into the previous delinquency bucket.  Servicer will not be required to make up
missed due diligence activities in the bucket the delinquency rolls into if the
day delinquent in which the servicing resumes is after the first scheduled
activity.


 


g.              Servicer shall
remain responsible for the reporting of loan information to the credit bureaus
for all Student Loans in compliance with the Servicing Guidelines, with the
information that exists on the Servicer’s system as of the day of reporting.


 


h.              For any NCO
Outsourced Loan for which the Guarantor assesses a servicing penalty at time of
claim payment, Servicer shall not be held responsible for any portion of the
penalty that relates to the performance or non-performance by NCO of the
Delinquency Guidelines during the Subject Delinquency Period.  FMC will be responsible for payment to Loan
Owner for any servicing penalty assessed by the Guarantor due to NCO’s
servicing.


 


i.                  For any NCO
Outsourced Loan for which the Guarantor rejects the claim due to three or more
servicing violations, Servicer shall not be held responsible for any portion of
the penalties that relate to the performance or non-performance by NCO of the
Delinquency Guidelines during the Subject Delinquency Period.  Servicer will provide cure servicing to any
loans for which the claim was rejected where at least one of the servicing
violations was due to the performance or non-performance of Servicer.  Servicer may provide cure servicing to any
loans for which the claim was rejected where at least none of the servicing
violations was due to the performance or non-performance of Servicer.


 


3.                                       Full Force and Effect. As amended herein and as previously
amended, the Servicing Agreement remains in full force and effect.


 


4.                                       Counterparts. This First Amendment 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 document.


 


2

















 


[Remainder of page intentionally blank]


 


3

















 


IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be duly executed as of the
month, day and the year first-above written.


 


 


	
  PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY

  	
   

  	
  THE FIRST MARBLEHEAD CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/
  James L. Preston

  	
   

  	
  /s/
  Anne P. Bowen

  
	
  James
  L. Preston

  	
   

  	
  Anne
  P. Bowen

  
	
  President
  and CEO

  	
   

  	
  Executive
  Vice President

  
	
  April 30,
  2008

  	
   

  	
  April 30,
  2008

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Approved
  as to form and legality:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/
  Jason L. Swartley

  	
   

  	
   

  
	
  PHEAA
  Legal Counsel

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/
  Robert a. Mulle 10/10/08

  	
   

  	
   

  
	
  Deputy
  Attorney General

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ACKNOWLEDGED AND AGREED:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  FIRST MARBLEHEAD DATA SERVICES, As Administrator
  for the Owner

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  Rosalyn
  Bonaventure

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Rosalyn Bonaventure

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Rosalyn
  Bonaventure

  	
   

  	
   

  
	
   

  	
  Title:

  	
  President

  	
   

  	
   

  



 


4














 


Execution Copy


 


FOURTH AMENDMENT TO THE


 


AMENDED AND RESTATED


 


PRIVATE STUDENT LOAN SERVICING AGREEMENT


 


BETWEEN


 


PENNSYLVANIA HIGHER EDUCATION ASSISTANCE  AGENCY


 


AND


 


THE FIRST
MARBLEHEAD CORPORATION


 


THIS
FOURTH AMENDMENT is made as of this 21 day of January, 2009 (the “Fourth
Amendment”), by and between Pennsylvania Higher Education Assistance Agency, a
public corporation and governmental instrumentality organized under the laws of
the Commonwealth of Pennsylvania, having an address at 1200 North Seventh
Street, Harrisburg, Pennsylvania, 17102 (“Servicer”), and The First Marblehead
Corporation, having an address at 800 Boylston Street, 34th Floor, Boston,
Massachusetts 02199 (“FMC”). Capitalized terms used herein without definition
have the meanings assigned to them in the Servicing Agreement (as defined
below), as amended.


 


RECITALS


 


WHEREAS,
the parties entered into that certain Amended and Restated Private Student Loan
Servicing Agreement dated September 28, 2006 (the “Servicing Agreement”);


 


WHEREAS,
 the parties entered into that certain
Third Amendment to Servicing Agreement dated April 30, 2008 to outsource
certain due diligence services from Servicer to NCO Financial System, Inc.
(“NCO”), as set forth therein; and


 


WHEREAS,
the parties desire to expand the services provided by NCO as set forth herein.


 


NOW
THEREFORE, in consideration of the mutual covenants contained herein and other
valuable consideration, and intending to be legally bound, the parties agree as
follows:


 


1.                                       Due Diligence
Activities. The parties hereby amend and restate Section 4.21
of the Agreement by deleting it in its entirety and inserting the following in
place thereof and in substitution therefor:


 


“4.21                     The parties acknowledge and
agree that the activities contemplated by the Delinquency and Default and Skip
Tracing sections of the Servicing Guidelines, as amended (the “Delinquency
Guidelines”) during the 31st through 120th day of delinquency (the “Subject Delinquency
Period”) for Student Loans owned by a Special Purpose Entity (“SPE”) or SPV
shall be performed by NCO and not by Servicer (each such loan, for that 90-day
time period, and for the purpose of due diligence activities only, an “NCO
Outsourced Loan”), unless otherwise agreed by the parties. More specifically:


 


a.               For any NCO
Outsourced Loan, Servicer shall not be responsible for performing the
Delinquency Guidelines for the Subject Delinquency Period.


 


b.              For any Student
Loan not outsourced to NCO, Servicer will be responsible for delinquency
servicing and skip tracing requirement for loans 31-60 days delinquent.


 


c.               Servicer shall
maintain responsibility for filing for pre-claims assistance in accordance with
the Servicing Guidelines (except as modified by written instruction from FMC
and the SPEs), with the information that exists on the Servicer’s system as of
day 60.


 

















 


d.              For any NCO
Outsourced Loan, Servicer will not be responsible for initiating skip-tracing
activities during the Subject Delinquency Period.  Servicer shall update contact information
within its system, if in the normal course of business Servicer or NCO obtains
or receives new contact information.


 


e.               For any NCO
Outsourced Loan, Servicer will remain responsible for all loan servicing
activities other than the Delinquency Guidelines, including but not limited to,
the processing of deferments, forbearance, and MGRS forms, general
correspondence, and borrower payments.


 


f.                 For rolling
delinquent accounts, i.e., NCO Outsourced Loans which have Borrower payments
applied that result in the account falling into the prior delinquency bucket or
being brought current, Servicer will follow the Servicing Guidelines, which
state that in the event of a rolling account, the servicer will resume
scheduled delinquency servicing activities at the point in which the delinquency
rolls into the next delinquency bucket. 
Servicer will not be required to make up missed due diligence activities
in the bucket the delinquency rolls into if the day delinquent on which the
servicing resumes is after the first scheduled activity.


 


g.              Servicer shall
remain responsible for the reporting of loan information to the credit bureaus
for all Student Loans in compliance with the Servicing Guidelines, with the
information that exists on the Servicer’s system as of the day of reporting.


 


h.              For any NCO
Outsourced Loan for which the Guarantor assesses a servicing penalty at time of
claim payment, Servicer shall not be held responsible for any portion of the
penalty that relates to the performance or non-performance by NCO of the
Delinquency Guidelines during the Subject Delinquency Period.  FMC will be responsible for payment to Loan
Owner for any servicing penalty assessed by the Guarantor due to NCO’s
servicing.


 


i.                  For any NCO
Outsourced Loan for which the Guarantor rejects the claim due to three or more
servicing violations, Servicer shall not be held responsible for any portion of
the penalties that relate to the performance or non-performance by NCO of the
Delinquency Guidelines during the Subject Delinquency Period.  Servicer will provide cure servicing to any
loans for which the claim was rejected where at least one of the servicing
violations was due to the performance or non-performance of Servicer.  Servicer may provide cure servicing to any
loans for which the claim was rejected where at least none of the servicing
violations was due to the performance or non-performance of Servicer.


 


j.                  For all Student
Loans, Servicer shall remain responsible for sending Final Demand letters at
the 120th day of delinquency to both the Borrower and Cosigner,
if any.”


 


k.               In all
situations where NCO performed or performs activities which include procedures
not in compliance with the Remote Access, Confidentiality and Indemnification
Agreement, and such activities have an impact on Servicer’s due diligence
obligations or cause incorrect information to exist on Servicer’s system, FMC,
the SPEs and/or SPVs waive any and all servicing violations that may result.


 


3.                                       Section IV of Exhibit C “Service
Level Agreements” is hereby amended by deleting the first two bullets
referencing “Collection Contacts” and “Promise to Pay”, thereby leaving only
the “Skip-Trace” bullet in that Section.


 


4.                                       Full Force and Effect. As amended herein and as previously
amended, the Servicing Agreement remains in full force and effect.


 


5.                                       Counterparts. This Fourth Amendment 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 document.


 


2

















 


IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be duly executed as of the
month, day and the year first-above written.


 


 


	
  PENNSYLVANIA HIGHER EDUCATION ASSISTANCE AGENCY

  	
   

   

  	
  THE FIRST MARBLEHEAD CORPORATION

  
	
   

  	
   

  	
   

  
	
  /s/
  James L. Preston

  	
   

  	
  /s/
  Michael Plunkett

  
	
  Name:

  	
  James
  L. Preston

  	
   

  	
  Name:

  	
  Michael
  Plunkett

  
	
  Title:

  	
  President
  and CEO

  	
   

  	
  Title:

  	
  Managing
  Director

  
	
  Date:

  	
  12/10/08

  	
   

  	
  Date:

  	
  8
  Dec 08

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Approved
  as to form and legality:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/
  Jason L. Swartley

  	
   

  	
   

  
	
  PHEAA
  General Counsel

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/
  Robert A. Mulle

  	
   

  	
   

  
	
  Deputy
  Attorney General

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ACKNOWLEDGED AND AGREED:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  FIRST MARBLEHEAD DATA SERVICES, As Administrator
  for the Owner

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  Rosalyn
  Bonaventure

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Rosalyn Bonaventure

  	
   

  	
   

  
	
   

  	
  Name:  Rosalyn Bonaventure

  	
   

  	
   

  
	
   

  	
  Title:
     President

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
						



 


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