EXHIBIT 10.10
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE DELETIONS.
GATE UNIVERSAL LOAN PROGRAM:
UMBRELLA AGREEMENT
(Bank of America, N.A.)
THIS UMBRELLA AGREEMENT (the "Agreement") is made and dated as of the 7th
day of March, 2003, by and among THE NATIONAL COLLEGIATE TRUST, a Delaware
business trust "NCT"), THE FIRST MARBLEHEAD CORPORATION, a Delaware corporation
("Marblehead"), and BANK OF AMERICA, N.A., a national banking association having
its principal office located in the State of California (the "Program Lender").
RECITALS
A. NCT has established its GATE Universal Loan Program (the "GATE
Universal Program") to assist students and parents in financing education at
various institutions of higher education. Pursuant to the GATE Universal
Program, NCT promotes the expansion of student and parent loan lending
activities by agreeing to purchase or cause to be formed one or more special
purpose business trusts or other entities (each a "Purchaser Trust") to purchase
promissory notes and/or credit agreements (the "Notes") evidencing loans
conforming to the GATE Universal Program ("GATE Universal Conforming Loans")
following origination. The purchase price payable by each Purchaser Trust for a
given pool of GATE Universal Conforming Loans is funded through issuance and
sale by the Purchaser Trust of certificates or other evidences of indebtedness
or equity, the repayment of which is supported by the income stream from the
GATE Universal Conforming Loans included in such pool (each such transaction, a
"Securitization Transaction").
B. NCT has requested that the Program Lender originate and make available
for purchase by Purchaser Trusts from time to time GATE Universal Conforming
Loans and to serve as the primary lending institution participating in the GATE
Universal Program.
C. Marblehead acts as financial advisor for NCT in connection with the
GATE Universal Program in connection with Securitization Transactions and
facilitates the marketing of the GATE Universal Program to educational
institutions and their students.
D. The parties desire to set forth herein certain terms and conditions
affecting NCT, Marblehead and the Program Lender relating to the Program
Lender's participation in the GATE Universal Program.
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:
AGREEMENT
1. DEFINITIONS. For purposes of this Agreement, the following terms shall
have the following meanings:
"Affiliate" shall mean as to any person any Other person which, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such person. A person shall be deemed to control another person if the
controlling person possesses directly or indirectly, the power to direct or to
cause the direction of the management and policies of the other person, whether
through the ownership of voting securities, by contract or otherwise.
"Business Day" shall mean any day other than: (a) a Saturday or Sunday, or
(b) a day on which banking institutions in the State of California are required
or authorized by law or executive order to be closed.
"Change in Control" means:
(a) With respect to the Program Lender, any of the following:
(1) The acquisition by any other entity, individual or group (within
the meaning of Sections 13(d)(3) or 14(d)(2) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act") of beneficial ownership (as
defined in Rule 13d-3 promulgated under the Exchange Act) of more than
fifty percent (50%) of the common stock of the Program Lender and/or other
securities which have more than fifty percent (50%) of the combined voting
power of the Program Lender's securities entitled to vote in the election
of directors; or
(2) The sale of all or substantially all of the common stock or
assets of the Program Lender to any other entity, individual or group; or
(3) The reorganization, merger or consolidation of the Program Lender
in which the shareholders of Program Lender immediately before such event
will not immediately thereafter own more than fifty percent (50%) of the
combined voting power entitled to vote in the election of directors of the
reorganized, merged or consolidated Program Lender's voting securities.
(b) With respect to Marblehead, any one transaction or a series of
transactions within six (6) months of each other in which there is a change of
beneficial ownership of more than fifty percent (50%) of the common stock or
other equity interests representing the right to elect directors or otherwise
determine the management of the company, and shall not include any initial
public offering in which fifty percent (50%) or less of the common stock of
Marblehead is sold to the public.
(c) A "Change in Control" shall not include any transactions with an
entity which is an Affiliate immediately prior to such transaction.
2
"Co-Lender Indemnification Agreement" shall mean a mutual indemnification
agreement between Program Lender and any other person or entity originating GATE
Universal Conforming Loans which will be pooled with GATE Universal Conforming
Loans originated by Program Lender in any Securitization Transaction, which
mutual indemnification agreement shall be satisfactory in form and substance in
all reasonable respects to Program Lender.
"Competing Lender" shall have the meaning given such term in Paragraph 9
below.
"Confidential Information" shall have the meaning given such term in
Paragraph 11(a) below.
"Currently Scheduled Termination Date" shall mean May 31, 2004, provided,
however, that such date shall automatically be extended for an additional year
on such date and each anniversary thereof, unless (a) any party shall have given
notice of termination at least one hundred eighty (180) days prior to the end of
the then-current term or (b) as otherwise permitted under the definition of
"Termination Date," in which case the termination set forth in such notice shall
govern.
"Effective Date" shall have the meaning given such term in Paragraph 25
below.
"GATE Universal Approved School" shall mean any accredited degree-granting
undergraduate or graduate institution of higher education in the United States
with a FFELP 2-year default cohort of less than 12% in the most recent year in
which these statistics are available through the Department of Education. The
institutions listed on Exhibit A attached hereto have been previously approved
by NCT and Marblehead and are hereby deemed acceptable by Program Lender as GATE
Universal Approved Schools.
"GATE Universal Conforming Loans" shall have the meaning given such term in
Recital A above.
"GATE Universal Product Offerings" means the tiered pricing options shown
on Exhibit B attached hereto, as amended from time to time.
"GATE Universal Program" shall have the meaning given such term in Recital
A above.
"Lender Competing Program" shall have the meaning given such term in
Paragraph 9 below.
"Loan Packaging and Funding Agreement" shall have the meaning given such
term in Paragraph 6 below.
"No-Pledge or Proceeds Discount School" shall mean a school that chooses to
offer loans only in tiers that require no pledge or proceeds discount in the
School Pledge or Proceeds Discount row of Exhibit B.
3
"Note Purchase Agreement" shall mean the agreement of that name between
Program Lender and Marblehead for the GATE Universal program.
"Notes" shall have the meaning given such term in Recital A above.
"Participating Institution" shall mean an educational institution which
has, where appropriate, executed and delivered a Participation Agreement
(Exhibit E1) or a School Enrollment Form (Exhibit E2) and, in the case of a
Pledge School or Proceeds Discount School, with which the Program Lender has
entered into a Loan Packaging and Funding Agreement.
"Participation Agreement" shall mean the agreement between NCT and a
Participating institution establishing the terms of the participation of such
Participating Institution in the GATE Universal Program referred to in Paragraph
12(b) below.
"Pledge" shall mean, with respect to any GATE Universal Conforming Loan,
the percentage amount shown in the School Pledge row in Exhibit B to this
agreement or in any School-Specific GATE Universal Product Offering approved by
Program Lender. The Pledges shown on Exhibit B represent, to the extent of the
percentages shown thereon (a) a limited guaranty equal to the Guaranty Limit,
which is equal to the sum of the pledge amounts for each tier of loans included
in a Pool, such pledge amounts to be calculated as the total gross principal
amount (including financed fees) of GATE Universal Loans funded by Program
Lender in the tier in the Pool Open Period times the Pledge percentage shown on
Exhibit B for that tier; and (b) after the purchase of loans by a Purchaser
Trust in which the Participating Institution has an equity interest, an
obligation to fund mandatory capital contributions or otherwise reimburse a
Purchaser Trust for defaults.
"Pledge School" or "Proceeds Discount School" shall mean a school that
chooses to offer loans in at least one tier that requires a Pledge or Proceeds
Discount, as the case may be, in the School Pledge or Proceeds Discount row of
Exhibit B.
"Proceeds Discount" shall mean with respect to any GATE Universal
Conforming Loan, the percentage shown in the Proceeds Discount row in Exhibit B
to this Agreement or in any School-Specific GATE Universal Product Offering
approved by Program Lender. The Proceeds Discounts shown on Exhibit B represent
the percentage to be withheld from the face amount of each GATE Universal Note
when loan proceeds are disbursed to Participating Institution for a Borrower in
that tier.
"Program Manual" shall mean a detailed manual setting forth the terms,
conditions, eligibility, policies and procedures for the GATE Universal Program
as the same may be amended from time to time as provided in Paragraph 12 below.
"Program Year" shall mean the period from May 1 through April 30.
4
"Proprietary Information" shall have the meaning given such term in
Paragraph 11(b) below.
"Purchaser Trust" shall have the meaning given such term in Recital A
above.
"School Enrollment Form" shall mean the form that is attached hereto as
Exhibit E2 and entered into by No-Pledge or Proceeds Discount Schools
establishing the participation of such schools in the GATE Universal Program.
"School-Specific GATE Universal Product Offerings" has the meaning given to
it in Paragraph 5 below.
"Securitization Transaction" shall have the meaning given such term in
Recital A above.
"Termination Date " shall mean the earliest to occur of:
(a) The Currently Scheduled Termination Date;
(b) The date of delivery by NCT, on the one hand, or the Program Lender,
on the other hand, of written notice that the other party has failed to
consummate a Securitization Transaction pursuant to the Note Purchase Agreement
notwithstanding that all conditions precedent to such party's obligation to do
so set forth in the Note Purchase Agreement have been satisfied;
(c) The thirtieth day following the date of delivery by NCT and
Marblehead, on the one hand, and the Program Lender, on the other hand, of
written notice that another party has materially breached this Agreement, unless
such party cures such breach on or before such thirtieth day, it being expressly
understood and agreed that the failure to make any payment required hereunder
shall constitute a material breach;
(d) Any party hereto shall file any proceeding under the U.S. Bankruptcy
Code or similar state insolvency act, or shall be the subject of any involuntary
bankruptcy proceeding, which proceeding is not dismissed within sixty (60) days
after the filing thereof; or
(e) The date of delivery by Marblehead or the Program Lender of written
notice that there has occurred a Change in Control of the party receiving such
notice and that the party giving notice, in its sole and absolute discretion,
has elected to terminate this Agreement.
2. TERM OF AGREEMENT; POST-TERMINATION DATE TRANSACTIONS. This Agreement
shall be effective from the Effective Date to but not including the Termination
Date; provided, however, in the event the Termination Date shall occur during a
Pool Open Period (as that term is defined in the Note Purchase Agreement), upon
the written request of NCT the Program Lender shall sell and assign to NCT or a
Purchaser Trust all GATE Universal Conforming Loans originated by the Program
Lender during such Pool Open Period to and including such Termination Date for
the Minimum Purchase Price (as defined in the Note Purchase Agreement);
5
provided, however, that: (a) the conditions precedent to the Program Lender's
obligation to sell GATE Universal Conforming Loans to NCT or a Purchaser Trust
set forth in subsections (2), (4), (5), (6), and (7) of Section 3.01(c) of the
Note Purchase Agreement, which are incorporated herein by this reference, shall
have been met to the satisfaction of the Program Lender, (b) Marblehead, NCT,
all Purchaser Trusts to whom the Program Lender has sold GATE Universal
Conforming Loans and the purchasing Purchaser Trust shall be in compliance with
all terms and conditions set forth in Paragraph 13 below, and (c) such sale
transaction shall be consummated no later than the last day of the 180-day
post-Pool Closing Date period.
3. RELATIONSHIP TO GATE: GUARANTEED ACCESS TO EDUCATION PROGRAM;
TRANSITION. The GATE: Guaranteed Access to Education Program ("GATE Student
Program"), which is governed by the Gate Student Loan Program Umbrella Agreement
entered into by NCT, Marblehead, and Bank of America, N.A. and dated as of June
1, 1996, as amended ("GATE Student Umbrella Agreement"), is unaffected by this
Agreement and the GATE Student Umbrella Agreement remains in full force and
effect. An educational institution may opt to remain a participant in the GATE
Student Program and simultaneously become a participant in the creditworthy tier
(i.e., Tier 1) of the GATE Universal Program. In all other circumstances, the
parties to this Agreement agree that the GATE Universal Program described herein
will be offered to individual educational institutions to replace the GATE
Student Program and that once, on or after May 1, 2003, an educational
institution becomes a Participating Institution in the GATE Universal Program
under the terms and conditions set forth in this Agreement, except as expressly
set forth above, the GATE Student Program for that Participating Institution
will terminate.
4. IDENTIFICATION AND APPROVAL OF PARTICIPATING INSTITUTIONS.
(a) For any GATE Universal Approved School that is a No-Pledge or Proceeds
Discount School, Program Lender agrees to originate GATE Universal
Conforming Loans to students enrolled at such No-Pledge or Proceeds
Discount Schools and/or their parents.
(b) For any GATE Universal Approved School that is a Pledge and/or
Proceeds Discount School, NCT and Marblehead, acting through
Marblehead, may make a written request to Program Lender that Program
Lender originate GATE Universal Conforming Loans to students enrolled
at such Pledge and/or Proceeds Discount Schools and/or their parents.
Upon receipt of such written notice, Program Lender may in its
discretion conduct a credit review of the Pledge School or Proceeds
Discount School and, within thirty (30) days after such written
notice, shall approve or reject the Pledge School or Proceeds Discount
School for participation in the GATE Universal Program. If the Program
Lender fails to approve or reject such written request within thirty
(30) days of receipt, the Pledge School or Proceeds Discount School
shall be deemed approved for participation in the GATE Universal
Program.
(c) For any educational institution that is not a GATE Universal Approved
School, NCT and Marblehead, on the one hand, and Program Lender, on
the other, may each request that the other agree that a specified
educational institution may be
6
included in the GATE Universal Program, by providing to the other
party or parties a written request therefor. The party or parties to
whom such request is presented shall notify the requesting party in
writing no later than thirty (30) days after the receipt of such
request as to whether, applying such criteria as it deems appropriate,
the proposed educational institution is deemed acceptable; provided,
however, that the failure of a party to provide such written notice of
acceptance shall be automatically deemed to be a rejection of the
proposed educational institution. Subject to confidentiality, privacy
and similar considerations, any party rejecting a proposed institution
shall, upon the request of another party, communicate its reasons for
such rejection, including whether it believes the proposed institution
is qualified under the Program Manual. By proposing an educational
institution for inclusion in the GATE Universal Program, NCT and
Marblehead shall be deemed to represent and warrant that such
educational institution is eligible for participation in the GATE
Universal Program pursuant to the Program Manual.
(d) NCT and Marblehead shall, in any event, request the Program Lender to
originate GATE Universal Conforming Loans at educational institutions
prior to making such a request of any Competing Lender.
5. CHOICE OF PRODUCTS OFFERED; MODIFICATION OF SAME. Program Lender
hereby approves the GATE Universal Product Offerings set forth on the attached
Exhibit B, which is included herein by reference and made a part hereof. If an
educational institution is a GATE Universal Approved School or is approved
pursuant to Paragraph 4(c) hereof for inclusion in the GATE Universal Program,
Program Lender authorizes Marblehead to offer the educational institution the
choice of any or all of the GATE Universal Product Offerings shown on Exhibit B,
as in effect from time to time, provided, however, the educational institution
shall choose in its discretion to participate in any one of the following
combinations of the GATE Universal Product Offerings (the "School-Specific GATE
Universal Product Offerings").
Tier 1;
Tier 1 & Tier 2a;
Tier 1, Tier 2a & Tier 2b;
Tier 1, Tier 2a, Tier 2b & Tier 3a;
Tier 1, Tier 2a, Tier 2b, Tier 3a & Tier 3b;
Tier 1, Tier 2a, Tier 2b, Tier 3a, Tier 3b & Tier 4a;
Tier 1, Tier 2a, Tier 2b, Tier 3a, Tier 3b, Tier 4a & Tier 4b;
Tier 1, Tier 2a, Tier 2b, Tier 3a, Tier 0x, Xxxx 0x & Xxxx 0x, Xxxx 0x; or
Tier 1, Tier 2a, Tier 0x, Xxxx 0x, Xxxx 0x, Xxxx 4a & Tier 4b, Tier 5a &
Tier 5b.
The School-Specific GATE Universal Product Offerings will then be set forth in a
customized version of Exhibit B for each educational institution.
The pricing, Pledge levels and Proceeds Discounts for GATE Universal
Product Offerings are set forth on Exhibit B. Those levels are based upon
Marblehead's reasonable estimate of (a) the expenses that would be incurred in a
Securitization Transaction and (b) the school guaranty that would be required by
Standard & Poor's Corporation, Xxxxx'x Investors Service AND/OR Fitch IBCA (the
"Rating Agencies") if loans to students at the Participating
7
Institution in question were to be included as collateral for a Securitization
Transaction. Marblehead's estimates of such Rating Agency pledge requirements
shall be not less than the pledge amounts most recently estimated by the Rating
Agencies in consultation with Marblehead. Program Lender shall have the right to
confirm Rating Agency estimates by direct consultation with the Rating Agencies
prior to accepting loan program pledge levels for any particular educational
institution; provided, however, that the reserve levels shown on Exhibit B
hereto, as in effect from time to time, are approved by Program Lender upon the
execution hereof for all GATE Universal Approved Schools.
Marblehead, in consultation with any GATE Universal Approved School or
educational institution approved pursuant to Paragraph 4(c) hereof for inclusion
in the GATE Universal Program, may request at any time that Program Lender
approve pricing options (except in tier 1), pledge levels and proceeds discounts
for the educational institution different from those on the attached Exhibit B.
Program Lender agrees to approve or deny any such request within ten (10)
Business Days of receipt in writing, including by facsimile, e-mail, or other
form of written communication. If Program Lender fails to approve or deny such
request within ten (10) Business Days, the request will be deemed approved by
Program Lender. Any approved pricing option shall thereafter constitute an
approved School-Specific GATE Universal Product Offering. In making such a
request that Program Lender approve pricing options for the educational
institution different from those on the then-current Exhibit B, Marblehead
represents and warrants that it reasonably believes that, under the terms and
conditions set forth in the Note Purchase Agreement, a Purchaser Trust will be
able to purchase in a Securitization Transaction loans originated under the
pricing options presented for approval. Notwithstanding anything to the contrary
in Section 9 of this Agreement, if Program Lender denies a request at any time
that Program Lender approve pricing options, pledge levels and proceeds
discounts for the educational institution different from those on the attached
Exhibit B, Marblehead may request that another lender approve such request.
In addition to making a request to approve pricing options for a particular
educational institution, Marblehead may request that the Program Lender (i)
require cosigners on every loan in Tier 2, Tier 2 & 3, or Tier 2, 3, & 4, or
(ii) waive cosigner requirements for students who are neither U.S. residents nor
U.S. citizens. Program Lender will consider such school-specific waivers in its
sole discretion, will grant any such waiver only in writing, and shall have the
right to review and rescind any such waiver annually at the same time as it
considers revisions to Exhibit B under the next paragraph.
Program Lender and Marblehead may at any time agree to amend the GATE
Universal Product Offerings for all future offerings made to educational
institutions. In addition, Marblehead shall present to Program Lender once per
year, on or about May 1, an updated Exhibit B for use in the next Program Year.
Program Lender shall approve or deny the revised Exhibit B within 30 days of
receipt. If the Program Lender fails to approve or reject the revised Exhibit B
within such time, the revised Exhibit B shall be deemed approved for use in the
GATE Universal Program.
8
6. LOAN PACKAGING AND FUNDING AGREEMENTS. After a Pledge School or
Proceeds Discount School has chosen its School-Specific GATE Universal Product
Offerings, the Program Lender will enter into with such educational institution
a loan packaging and funding agreement in the form of that attached hereto as
Exhibit C (a "Loan Packaging and Funding Agreement") establishing certain
procedures, terms and conditions of the origination of GATE Universal Conforming
Loans to be made to students enrolled at such educational institution and/or
their parents. The School-Specific GATE Universal Product Offerings will be
added as an exhibit to the Loan Packaging and Funding Agreement between Program
Lender and the educational institution and made a part thereof. The amount of
the Pledge or Proceeds Discounts with respect to each GATE Universal Conforming
Loan will vary in accordance with the terms of the School-Specific GATE
Universal Product Offerings. It is expressly agreed and understood by NCT and
Marblehead that the terms and conditions of each Loan Packaging and Funding
Agreement must be acceptable to the Program Lender; provided, however, that in
no event will the Program Lender enter into Loan Packaging and Funding Agreement
in any form other than the form of the Loan Packaging and Funding Agreement
attached hereto as Exhibit C without the prior written consent of NCT and
Marblehead, which consent shall not be unreasonably withheld.
The requirement for Loan Packaging and Funding Agreements does not apply to
No-Pledge or Proceeds Discount Schools.
7. JOINT MARKETING EFFORTS. NCT, Marblehead and the Program Lender shall
cooperate to develop marketing materials for distribution to potential
Participating Institutions and borrowers relating to the GATE Universal Program.
Subject to the confidentiality provisions of Paragraph 11 below and the
provisions of Paragraph 13(c) below, each party hereto agrees to provide such
information as may be reasonably required by the other parties in connection
therewith; provided, however, that no party shall distribute any written
material, whether relating to the GATE Universal Program or otherwise, which
contains the name or information concerning or provided by any other party
without the prior written consent of such other party other than written
communications utilizing the name or information concerning such other party in
a manner consistent with the Program Manual and marketing materials previously
approved by such party as provided hereunder. During the term of this Agreement,
Marblehead shall grant to the Program Lender a nonexclusive license to use any
and all trademarks and tradenames associated with the GATE Universal Program
pursuant to a license agreement between Marblehead and Program Lender dated as
of November 21, 1996, as hereafter amended, and the Program Lender shall grant
to Marblehead a nonexclusive license to use the Program Lender's name and logo
pursuant to a license agreement between Marblehead and Program Lender dated as
of November 21, 1996, as hereafter amended.
8. LOAN ORIGINATION. Marblehead will enter a Services Agreement with
V-Tek Systems Corporation, a California corporation, having its principal office
at 0000 X. Xxxxxx Xxxxx Xxxxx, Xxxxxxx Xxx, Xxxxxxxxxx 00000 V-Tek ("Services
Agreement") to create a process for and then perform data processing in support
of the pre-origination of GATE Universal loan applications. Marblehead has hired
V-Tek for software design and for performing servicing tasks as set forth in
this paragraph and shall be responsible for causing V-Tek to perform its
obligations as set forth herein and in the Services Agreement. Marblehead is
solely responsible
9
for paying V-Tek for its services and Marblehead is the owner of the software
that V-Tek creates under the Services Agreement. All of the rights, remedies,
and services Marblehead receives under the Services Agreement shall be provided
to Program Lender in a servicing agreement between Marblehead and Program
Lender. Under such servicing agreement, Marblehead shall be obligated to provide
for the benefit of Program Lender the services provided by V-Tek under the
Services Agreement.
Under the Services Agreement, V-Tek will gather all required borrower
information from applicants and Participating Institutions ("Applicant Data"),
convert Applicant Data into a form that Program Lender can accept, and forward
Applicant Data to Program Lender. Upon receipt of the Applicant Data, Program
Lender shall apply the credit criteria in the Program Manual and determine if
the application meets either the Tier 1 (creditworthy) or Tier 2, 3 or 4
(credit-ready) underwriting requirements. If so, the Program Lender will
transmit this information, along with the student's and cosigner's (if any) FICO
scores, to the loan processing subservicer, V-Tek. Acting as agent for the
Program Lender, V-Tek will compare the credit information provided by the
Program Lender against the criteria from Exhibit B to the Loan Packaging and
Funding Agreement for the Participating Institution in question. V-Tek will
inform the Program Lender whether the application in question meets the relevant
criteria set forth in said Exhibit B for approval. If Program Lender approves
the application, it shall transmit (or cause V-Tek to transmit) the necessary
information, including data from Exhibit B to establish pricing, to PHEAA,
whereupon PHEAA will prepare and transmit to the borrower for signature a
completed promissory note form and, upon disbursement of the loan, a
Truth-in-Lending disclosure. If Program Lender denies the application, Program
Lender will forward an appropriate adverse action letter to the borrower.
Program Lender shall also be responsible for compliance with the rules and
regulations of the United States Department of the Treasury, Office of Foreign
Assets Control.
9. EXCLUSIVITY; NONCOMPETITION. Neither NCT nor Marblehead will enter
into any agreement with any other financial institution or other regulated or
nonregulated lender (a "Competing Lender") to conduct a program for the
origination and funding of GATE Universal Conforming Loans that would be a
"Lender Competing Program" (as defined below) if conducted by Program Lender,
with respect to any Participating Institution located in any of the 00 xxxxxx xx
xxx Xxxxxx Xxxxxx, the District of Columbia, and the territories of the United
States. This restriction shall not prohibit Marblehead from providing
securitization services to lenders generally. Upon the occurrence of the
Termination Date: (1) if the termination occurred pursuant to the provisions of
subparagraph (a) of the definition of "Termination Date or the election of NCT
and Marblehead to terminate this Agreement pursuant to subparagraphs (b), (c),
(d) or (e) of the definition of "Termination Date," Program Lender shall not
originate student loans in connection with any student loan program in the
nature of the GATE Universal Program or otherwise combining the principal
elements of the GATE Universal Program consisting of establishing pledges and/or
proceeds discounts of varying amounts from educational institutions based upon
the credit risk of applicants in a series of tiers in lieu of relying on
governmental or quasi-governmental credit support for the loans and periodically
securitizing pools of such student loans (a "Lender Competing Program") with any
educational institution that was, at any time during the term of this Agreement,
a Participating Institution for period of twelve (12)
10
months following such Termination Date, and (2) if the Termination Date occurred
for any other reason, there shall be no restriction on the right of the Program
Lender to enter into Lender Competing Programs at any time, including, without
limitation, Lender Competing Programs with Participating Institutions. During
the term of this Agreement the Program Lender will not originate student loans
in connection with any Lender Competing Program except pursuant to the GATE
Universal Program and this Agreement.
10. OTHER BUSINESS. Except to the extent expressly provided in Paragraph 9
above, nothing contained herein, in any Loan Packaging and Funding Agreement or
in any other document, instrument or agreement executed in connection with the
GATE Universal Program shall in any manner or to any extent affect the right of
the Program Lender to engage in business with, including, without limitation,
offering credit products to, the Participating Institutions, borrowers under
GATE Universal Conforming Loans originated by the Program Lender or any other
Person; provided however that the Program Lender shall protect Proprietary
Information from unnecessary disclosure.
11. CONFIDENTIAL INFORMATION: PROPRIETARY INFORMATION.
(a) All information of any kind and description relating to borrowers
under GATE Universal Conforming Loans originated by the Program Lender (and
rejected applicants for such Loans), the Notes originated by the Program Lender,
the Program Lender's loan processing operations or any other information that
has been or will be made available by the Program Lender or any of its
Affiliates to NCT and/or Marblehead or has otherwise been obtained by NCT and/or
Marblehead from the Program Lender or any of its Affiliates (other than as
expressly excluded from such information as provided below, "Confidential
Information") is made available by the Program Lender and accepted by NCT and/or
Marblehead, as applicable, with the understanding and agreement that such
Confidential Information is property valuable to the Program Lender which has
been developed through the expenditure of substantial time and money and that
the Program Lender desires to retain it in confidence and withhold its
availability to others. "Confidential Information" shall not include (a)
information that has become generally available to the public other than as a
result of a disclosure by or through NCT, Marblehead or their respective
officers, employees, agents or other representatives, (b) information that was
available to such persons on a nonconfidential basis prior to its disclosure to
NCT and/or Marblehead, (c) information that becomes available to NCT and/or
Marblehead from a source not subject, to the best knowledge of NCT and
Marblehead after due inquiry, to any prohibition against disclosing the
information to NCT or Marblehead, including, without limitation, information
obtained from any purchase of the Notes in any Securitization Transaction or
otherwise relating to any GATE Universal Conforming Loan sold by the Program
Lender in any Securitization Transaction, information received from or relating
to any Participating Institution and information received from or relating to
the activities of third parties, other than the Program Lender, retained by NCT
or Marblehead in connection with the administration or marketing of the GATE
Universal Program, or (d) borrower information, including without limitation
"nonpublic personal information" (as defined in Title V of the
Xxxxx-Xxxxx-Xxxxxx Act (the "GLB Act") ("NPPI") and Federal Reserve Board
Regulation P ("Regulation P") Marblehead receives in preparation for a
Securitization Transaction; provided, however, that Marblehead
11
shall use such information only in accordance with the provisions of the GLB Act
and Regulation P and agrees to respect and protect the security and
confidentiality of any NPPI relating to applicants for Loans and to Borrowers,
including, where applicable, the restrictions on the re-use and disclosure of
such information set forth in the GLB Act and Regulation P.
Without limiting the foregoing, upon purchase, the parties agree that NCT
will own borrower information (including NPPI) associated with any purchased
GATE Universal Conforming Loan, and that Marblehead may retain as its own
property and use for any lawful purpose any or all aggregated or de-identified
data concerning Loan applicants and Borrowers, which does not include the name,
address or social security number of the Loan applicants or Borrowers.
Marblehead may sell, assign, transfer or disclose such information to third
parties, who may also use such information for any lawful purpose. Each of NCT
and Marblehead agree that except as required by law and except as is reasonably
necessary in connection with any Securitization Transaction any and all
Confidential Information and any information or knowledge which may be imparted
through receipt or examination of Confidential Information will not be copied or
communicated to any third party or used by NCT or Marblehead or any of their
respective officers, employees, agents or other representatives without the
express prior written consent of the Program Lender. Each of NCT and Marblehead
will take reasonable precautions to prevent any unauthorized disclosure of
Confidential Information. Each of NCT and Marblehead agree to return or destroy
all written and other tangible Confidential Information, including all extracts
and copies thereof, immediately upon request. Except as expressly contemplated
by the marketing programs referred to in Paragraph 7 above, communications
regarding the GATE Universal Program initiated by borrowers, and data received
by Marblehead (and its servicer, V-Tek) during the course of origination as
described in Paragraph 8 above, until a GATE Universal Conforming Loan is sold
by the Program Lender, in connection with a Securitization Transaction or
otherwise, neither NCT nor Marblehead nor any of their respective Affiliates
shall enter into any communication with the borrower thereunder. Except as
expressly provided in the immediately preceding sentence, the obligations of NCT
and Marblehead set forth in this Paragraph 11(a) shall survive the Termination
Date.
(b) All information relating to the GATE Universal Program that has been
or will be made available to the Program Lender or any of its Affiliates by NCT
and/or Marblehead or has otherwise been obtained by the Program Lender or any of
its Affiliates from NCT and/or Marblehead (other than such information which
constitutes Confidential Information or other than as expressly excluded from
such information as provided below, "Proprietary Information") is made available
by NCT and/or Marblehead and accepted by the Program Lender with the
understanding and agreement that such Proprietary Information is property
valuable to NCT/Marblehead which has been developed through the expenditure of
substantial time and money and that NCT/Marblehead desire to retain it in
confidence and not to permit its commercial use by others. "Proprietary
Information" shall not include: (a) information that has become generally
available to the public other than as a result of a disclosure by or through the
Program Lender, (b) information derived by Program Lender from sources other
than activities under or related to this Agreement, (c) information required by
law to be disclosed (but only to the extent such disclosure is legally
required), and (d) reporting of loan information to credit bureaus in the
ordinary course of business. Program Lender will take reasonable precautions to
12
prevent any unauthorized commercial use of Proprietary Information. The
obligations of this Paragraph 11(b) shall survive the Termination Date.
(c) BORROWER PRIVACY. Unless FMC obtains direct authorization from any
borrower, it shall not disclose and/or use any of the borrower's nonpublic
personal information obtained under this Agreement for any purpose other than
those specifically provided for in this Agreement or provide such information to
any other party, including its Affiliates, except as allowed by law. In the
Services Agreement, V-Tek will likewise agree that unless V-Tek obtains direct
authorization from any borrower pursuant to the Services Agreement, it shall not
disclose and/or use any of the borrower's nonpublic personal information
obtained under the Services Agreement for any purpose other than those
specifically provided for in the Services Agreement or provide such information
to any other party, including Affiliates of V-Tek, except as allowed by law.
12. PROGRAM MANUAL; PARTICIPATION AGREEMENT. Marblehead shall draft and
deliver to the Program Lender for review and approval prior to the Effective
Date:
(a) The Program Manual, which Program Manual may not be modified in any
Lender-related manner during the term of this Agreement without the prior
written consent of the Program Lender, which consent shall not be unreasonably
withheld. Lender-related modifications to the Program Manual shall mean any
change to GATE Universal loan terms, borrower eligibility, or any other change
that would affect Program Lender's rights, obligations, responsibilities, or
costs; and
(b) The forms of Participation Agreement and School Enrollment Form, which
form Agreements shall be substantially in the forms of Exhibits E1 and E2
attached hereto and may not be modified in any manner during the term of this
Agreement without the prior written consent of Program Lender, which consent
shall not be unreasonably withheld. Exhibit E1 is for use with Pledge Schools
and Proceeds Discount Schools. Exhibit E2 applies only to No-Pledge or Proceeds
Discount Schools. NCT may, upon notice to Program Lender, include in the
Participation Agreement a Rider in the form of Exhibit E3; and
(c) the Services Agreement.
13. SECURITIZATION PROVISIONS. Each of NCT (for itself and each Purchaser
Trust) and Marblehead agree that:
(a) The Offering Materials relating to each Securitization Transaction
will contain a statement to the effect that: (1) the certificates being offered
thereunder do not represent an interest in, or obligation of, the Program Lender
or its parent, BankAmerica Corporation, (2) no purchaser of such certificates
shall have any recourse to the Program Lender or BankAmerica Corporation, (3)
neither the certificates nor the notes evidencing GATE Universal Conforming
Loans supporting such certificates are insured or guaranteed by the Federal
Deposit Insurance Corporation or, at the request of or for the account of the
Program Lender or BankAmerica Corporation by any other governmental agency, and
(4) the underwriting criteria employed by the
13
Program Lender in originating the GATE Universal Conforming Loans are different
from those utilized by the Program Lender and its Affiliates in originating
student loans under other existing student loan programs and that such
differences include, without limitation, the fact that GATE Universal Conforming
Loan underwriting standards are not intended to analyze in detail the ability of
individual borrowers to repay their GATE Loans;
(b) NCT shall or shall cause the applicable Purchaser Trust to perform the
acts and assume the duties of depositor and manager pursuant to the provisions
of the trust or other agreement or instrument under which the certificates or
other evidences of indebtedness will be issued in any Securitization
Transaction. Under no circumstances shall Program Lender be obligated to perform
any such duties. Neither Program Lender nor any of its directors or other
representatives shall execute any registration statement filed with the
Securities and Exchange Commission in connection with any Securitization
Transaction;
(c) The certificates or other evidences of indebtedness to be issued by
NCT and/or any Purchaser Trusts in Securitization Transactions shall be issued
and sold by NCT and/or such Purchaser Trusts, with or without the assistance of
NCT and/or Marblehead, but in any event without any participation whatsoever on
the part of Program Lender except as expressly provided in subparagraph (2)
below. Without limiting the generality of the foregoing, it is expressly
acknowledged and agreed by NCT and Marblehead that Program Lender shall not (1)
attend any "road shows" or meetings with investors or prospective investors, (2)
prepare, assist in preparing or review any written or oral materials or
prospectuses to be provided to investors or potential investors or to be filed
with the Securities and Exchange Commission, any state securities commission,
any stock exchange or NASDAQ other than excerpts from such documents describing
the Program Lender and its procedures drafted expressly for inclusion in such
documents, or (3) otherwise be responsible in any way for soliciting, or
assisting Marblehead, NCT or any Purchaser Trust in soliciting, the purchases of
certificates or other evidences of indebtedness to be issued in any
Securitization Transaction;
(d) NCT shall file or shall cause the applicable Purchaser Trust to file
any registration statement and periodic reports required to be filed under the
Securities Exchange Act of 1934;
(e) Without the prior written consent of Program Lender, which consent
shall not be unreasonably withheld, no loans other than (1) GATE Universal
Conforming Loans, (2) other types of GATE loans originated by Program Lender, or
(3) loans originated by Program Lender that are subject to a Note Purchase
Agreement between Program Lender and Marblehead will be included in any
Securitization Transaction with loans made by Program Lender. The execution and
delivery to Program Lender of a Co-Lender Indemnification Agreement by any other
lender in any securitization transaction shall be a condition precedent to any
agreement of Program Lender to permit the pooling of loans originated by such
other person or entity with loans originated by Program Lender in a
securitization transaction. In the event that Marblehead wishes to include loans
originated by any other lender(s) in the same Securitization Transaction as
loans made by Program Lender, Marblehead will make all reasonable efforts to
secure a Co-Lender Indemnification Agreement between Program Lender and the
other lender(s).
14
(f) All solicitations of prospective Participating Institutions shall be
conducted in such a manner as to avoid any public or general solicitation or
advertising of the purchase or sale of beneficial interests in any Purchaser
Trust.
14. NO ASSIGNMENT. No party may assign its rights or obligations under
this Agreement without the prior written consent of the parties hereto;
provided, however that Program Lender may assign its rights hereunder to an
Affiliate that is a national banking association having the legal power and
right under applicable law (including, without limitation, the usury laws of the
State where it is located) to make GATE Universal Conforming Loans. Program
Lender shall bear all costs arising out of such assignment, including, without
limitation, any costs for legal advice relating to loan compliance and
documentation. Marblehead may, on a one time basis and provided that such
assignment does not constitute a Change of Control, assign its rights hereunder
to a corporation that succeeds to substantially all the business of Marblehead
as now conducted. Any assignment in violation hereof shall be automatically null
and void. Program Lender agrees that it will continue to originate GATE
Universal Conforming Loans in such a manner as to permit the selection of
California law as governing law for purposes of Section 85 of the National Bank
Act.
15. AMENDMENT. This Agreement may not be amended nor terms or provisions
hereof waived unless such amendment or waiver is in writing and signed by all
parties hereto.
16. NO WAIVER. No delay or failure by any party to exercise any right,
power or remedy hereunder shall constitute a waiver thereof by such party, and
no single or partial exercise by any party of any right, power or remedy shall
preclude other or further exercise thereof or any exercise of any other rights,
powers or remedies.
17. ENTIRE AGREEMENT. This Agreement and the documents and agreements
referred to herein embody the entire agreement and understanding among the
parties hereto and supersede all prior agreements and understandings relating to
the subject matter hereof and thereof
18. NOTICES. All notices given by any party to the others under this
Agreement shall be in writing delivered: (a) personally, (b) by facsimile
transmission, (c) by overnight courier, prepaid, or (d) by depositing the same
in the United States mail, certified, return receipt requested, with postage
prepaid, addressed to the party at the address set forth beneath its signature
below. Any party may change the address to which notices are to be sent by
notice of such change to each other party given as provided herein. Such notices
shall be effective on the date received.
19. ATTORNEYS' FEES. In the event of a lawsuit or arbitration proceeding
wising out of or relating to this Agreement, the prevailing party shall be
entitled to recover costs and reasonable attorneys, fees incurred in connection
with the lawsuit or arbitration proceeding, as determined by the court or
arbitrator.
20. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
15
21. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which together shall constitute one agreement.
22. NO THIRD PARTIES BENEFITED. This Agreement is made and entered into
for the sole protection and legal benefit of the parties, and their permitted
successors and assigns, and no other person shall be a direct or indirect legal
beneficiary of, or have any direct or indirect cause of action or claim in
connection with, this Agreement.
23. CONSENT TO JURISDICTION. SUBJECT TO PARAGRAPH 24 BELOW, ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS
OF THE STATE OF CALIFORNIA OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF
CALIFORNIA, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES
HERETO CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS, EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENT WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
AGREEMENT OR ANY DOCUMENT RELATED HERETO.
24. MANDATORY ARBITRATION REFERENCE.
(a) Any controversy or claim between or among the parties, including but
not limited to those arising out of or relating to this Agreement and any claim
based on or arising from an alleged tort, shall at the request of any party be
determined by arbitration. The arbitration shall be conducted in accordance With
the United States Arbitration Act (Title 9, U.S. Code), notwithstanding the
choice of law provision in this Agreement, and under the Commercial Rules of the
American Arbitration Association ("AAA"). The arbitrator(s) shall give effect to
statutes of limitation in determining any claim. Any controversy concerning
whether an issue is arbitrable shall be determined by the arbitrator(s).
Judgment upon the arbitration award may be entered in any court having
jurisdiction. The institution and maintenance of an action for judicial relief
or pursuit of a provisional or ancillary remedy shall not constitute a Waiver of
the right of any party, including the plaintiff to submit the controversy or
claim to arbitration if any other party contests such action for judicial
relief.
(b) No provision of this paragraph shall limit the right of any party to
exercise self-help remedies such as setoff, or to obtain provisional or
ancillary remedies from a court of competent jurisdiction before, after, or
during the pendency of any arbitration or other proceeding. The exercise of a
remedy does not waive the right of any party to resort to arbitration or
reference.
25. EFFECTIVE DATE. This Agreement shall be effective upon the date (the
"Effective Date") as of which:
16
(a) Each of the parties hereto shall have executed and delivered to the
others a Counterpart of this Agreement;
(b) Each of the Program Lender and NCT shall have executed and delivered
to the other an agreement in the form of that attached hereto as Exhibit D (the
"Note Purchase Agreement");
(c) The Program Lender has reviewed and approved in writing the final form
of Program Manual;
(d) Each of V-Tek and Marblehead shall have executed and delivered to each
other the Services Agreement;
(e) Each of Marblehead and Program Lender shall have executed and
delivered to the other a servicing agreement pursuant to which Marblehead
provides for the benefit of Program Lender the services provided by V-Tek under
the Services Agreement;
(f) PHEAA and Program Lender shall have executed and delivered to each
other an amendment to the Origination Services Agreement between them to
accommodate the origination process for the GATE Universal Program, such
amendment to be in form and substance satisfactory to Marblehead;
(g) PHEAA and Marblehead shall have executed and delivered to each other
an amendment to the Servicing Agreement between them and dated January 6, 1995,
as amended, to include GATE Universal Program loans purchased by Marblehead,
such amendment to be in form and substance satisfactory to Program Lender.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
17
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
THE NATIONAL COLLEGIATE TRUST,
a Delaware business trust
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
THE FIRST MARBLEHEAD
CORPORATION, a Delaware corporation
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
-----------------------------
Title: President
----------------------------
BANK OF AMERICA, N.A.
By: /s/ Xxxxx Xxxxxx
-------------------------------
Name: Xxxxx Xxxxxx
-----------------------------
Title: Senior Vice President
----------------------------
18
EXHIBIT B FOR [SCHOOL NAME] UNDER THE GATE UNIVERSAL PLEDGE STRUCTURE
[DELETE IF SCHOOL IS APPROVED BY MBIA] (Please note the College must be approved
by MBIA for surety on its pledge prior to being able to participate in the
pledge structure of the GATE Universal Program.)
Tier 2 Co-borrower, if any,
decisioned on basis of score
Tier 1 Creditworthy Borrower with credit-ready alone. Student subjected to
Student, except if student is creditworthy on own. GATE underwriting. School
School takes no risk takes risk.
------------------------------------------------- ----------------------------
A B C D A B
------------------------------------------------- ----------------------------
FICO SCORES
Cosigner FICO Score: [**] [**] [**] [**] [**] [**]
[**] [**]
[**] [**]
[**] [**]
Student FICO (Student is
credit-ready, except in Tier [**] [**] [**] [**] [**] [**] [**]
1 D, where Student is
creditworthy) [**] [**]
---------------------------------------------------------------------------------------------------------------
[**] [**]
[**] [**]
GATE UNIVERSAL PRODUCT
Borrower Origination Fee: [**]% [**]% [**]% [**]% [**]% [**]%
Interest Rate: The LIBOR
Index + a margin of: [**]% [**]% [**]% [**]% [**]% [**]%
APR (LIBOR Index=1.35%, 4 yr
defer, 20 yr repay): [**]% [**]% [**]% [**]% [**]% [**]%
FINANCIAL RESULTS UNDER
PLEDGE STRUCTURE
Percentage of net loan amount
(exclusive of financed fees)
advanced by Bank of
America at disbursement: [**]% [**]% [**]% [**]%
School Pledge(1): [**] [**] [**]% [**]%
Estimated 1st loan loss
reserve(2): [**] [**] [**]% [**]%
Tier 3 Co-borrower, if any, Tier 5 Co-borrower, if
decisioned on basis of Tier 4 Co-borrower, if any, any, decisioned on basis
score alone. Student decisioned on basis of score of score alone. Student
subjected to GATE alone. Student subjected to subjected to GATE
underwriting. School GATE underwriting. School underwriting. School
takes risk. takes risk. takes risk.
--------------------------- ----------------------------- ------------------------
A B A B A B
--------------------------- ----------------------------- ------------------------
FICO SCORES
Cosigner FICO Score: [**] [**] [**] [**] [**] [**]
[**] [**] [**] [**] [**]
[**] [**]
[**] [**]
Student FICO (Student is
credit-ready, except in Tier [**] [**] [**] [**] [**] [**]
1 D, where Student is
creditworthy)
---------------------------------------------------------------------------------------------------------------------
GATE UNIVERSAL PRODUCT
Borrower Origination Fee: [**]% [**]% [**]% [**]% [**]% [**]%
Interest Rate: The LIBOR
Index + a margin of: [**]% [**]% [**]% [**]% [**]% [**]%
APR (LIBOR Index=1.35%, 4 yr
defer, 20 yr repay): [**]% [**]% [**]% [**]% [**]% [**]%
FINANCIAL RESULTS UNDER
PLEDGE STRUCTURE
Percentage of net loan amount
(exclusive of financed fees)
advanced by Bank of
America at disbursement: [**]% [**]% [**]% [**]% [**]% [**]%
School Pledge(1): [**]% [**]% [**]% [**]% [**]% [**]%
Estimated 1st loan loss
reserve(2): [**]% [**]% [**]% [**]% [**]% [**]%
(1) The school pledge figures are computed on the gross loan amount at
disbursement and assume that if the student is an undergraduate student the loan
amount is less than [**]. An additional [**] will be added to the pledge figures
shown for all tier 2, 3, 4 & 5 undergraduate loans in excess of $[**].
(2) These 1st loan loss reserve figures are estimates, are computed on the net
loan amount securitized, and are funded from excess proceeds created at
securitization (see
the Participation Agreement). If securitization does not take place, no 1st loan
loss reserves will be created. If the anticipated excess proceeds from
securitization are lower than projections, the amount of the 1st loan loss
reserve may be lower than the figures shown here. The 1st loan loss reserve, to
the extent that it is available, reduces the school's Pledge liability.
20
