EXHIBIT 10.11
CONFIDENTIAL MATERIALS OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION. ASTERISKS DENOTE OMISSIONS.
GATE STUDENT LOAN PROGRAM:
UMBRELLA AGREEMENT
(Bank of America NA)
THIS UMBRELLA AGREEMENT (the "Agreement") is made and dated as of the
1st day of June, 1996, by and among THE NATIONAL COLLEGIATE TRUST, a Delaware
business trust "NCT"), THE FIRST MARBLEHEAD CORPORATION, a Delaware corporation
("Marblehead"), and BANK OF AMERICA NA, a national banking association having
its principal office located in the State of Arizona (the "Program Lender").
RECITALS
A. NCT has established its GATE: Guaranteed Access to Education
program (the "GATE Program") to assist students in financing their education at
various institutions of higher education. Pursuant to the GATE Program NCT
promotes the expansion of student 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 (the
"Notes") evidencing student loans conforming to the GATE Program ("GATE
Conforming Loans") following origination. The purchase price payable by each
Purchaser Trust for a given pool of GATE Conforming Loans is funded through
issuance and sale by the Purchaser Trust of certificates or other evidences of
indebtedness, the repayment of which is supported by the income stream from the
GATE 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 Conforming
Loans and to serve as a primary lending institution participating in the GATE
program.
C. Marblehead acts as financial advisor for NCT in connection with
the GATE Program in connection with Securitization Transactions and facilitates
the marketing of the GATE 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 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 Commonwealth of
Massachusetts or the State of Arizona 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, if in any one transaction or a series
of transactions 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.
(c) A "Change in Control" shall not include any transactions with an
entity which is an Affiliate immediately prior to such transaction.
"CO-LENDER INDEMNIFICATION AGREEMENT" shall mean a mutual
indemnification agreement between Program Lender and any other person or entity
originating GATE Conforming Loans which will be pooled with GATE 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
6 below.
"CONFIDENTIAL INFORMATION" shall have the meaning given such term in
Paragraph 8(a) below.
"CURRENTLY SCHEDULED TERMINATION DATE" shall mean December 31, 1997,
as such date may be extended in writing by written agreement of NCT, Marblehead
and the Program Lender, given in each party's sole and absolute discretion no
later than ninety days prior to the then Currently Scheduled Maturity Date.
"EFFECTIVE DATE" shall have the meaning given such term in Paragraph
23 below.
"EXPECTED SECURITIZATION RESERVES" shall have the meaning given such
term in Paragraph 4 below.
"GATE CONFORMING LOANS" shall have the meaning given such term in
Recital A above.
"GATE PROGRAM" shall have the meaning given such term in Recital A
above.
"GRADS" shall mean GATE Receivables Asset-Backed Debt Securities,
which are a form of debt security issued pursuant to a Securitization
Transaction.
"LENDER COMPETING PROGRAM" shall have the meaning given such term in
Paragraph 6 below.
"LOAN PACKAGING AND FUNDING AGREEMENT" shall have the meaning given
such term in Paragraph 4 below.
"MAXIMUM LENDER EXPOSURE" shall mean $22,000,000.00 or such greater
amount as may be agreed to in writing by the Program Lender.
"NOTE PURCHASE AND AGREEMENT" shall have the meaning given such term
in Paragraph 23(b) below.
"NOTES" shall have the meaning given such term in Recital A above.
"PARTICIPATING INSTITUTION" shall mean an educational institution
which has executed and delivered a Participation Agreement and 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 Program referred to in Paragraph 9(b)
below.
"PRE-SECURITIZATION RESERVES" shall mean with respect to any GATE
Conforming Loan that amount established as such by the Program Lender in its
discretion; provided, however, that Pre-Securitization Reserves shall not in any
event exceed the sum of the Expected Securitization Reserves plus the Program
Lender's Origination Fee therefor (as the term "Origination Fee" is defined in
the Loan Packaging and Funding Agreement).
"PROGRAM LENDER EXCLUSIVE STATES" shall mean the States of Alaska,
Arizona, California, Hawaii, Idaho, Illinois, Nevada, New Mexico, Oregon, Texas
and Washington.
"PROGRAM MANUAL" shall mean a detailed manual setting forth the terms,
conditions, eligibility, policies and procedures for the GATE Program as the
same may be amended from time to time as provided in Paragraph 9 below.
"PROPRIETARY INFORMATION" shall have the meaning given such term in
Paragraph 8(b) below.
"PURCHASER TRUST" shall have the meaning given such term in Recital A
above.
"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 ninetieth day following delivery by the Program Lender of
written notice, given in the Program Lender's sole and absolute discretion, of
the Program Lender's election to terminate this Agreement; provided, however,
that such notice may be given no earlier than January 1, 1998;
(c) 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;
(d) The date of delivery by NCT and Marblehead, on the one hand, or
the Program Leader, on the other hand, of written notice stating that such party
or parties has or have determined, in its or their reasonable business judgment
and following consultation with the nonterminating party or parties and such
advisors, underwriters and other persons and entities as the non-terminating
party or parties may reasonably suggest, that there has occurred a material
adverse change in the condition of the non-terminating party or parties
(financial or otherwise) which is likely to hinder or prevent such party or
parties from performing its or their respective obligations hereunder and
otherwise in connection with the GATE Program;
(e) 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;
(f) 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;
(g) 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;
(h) The date as of which the Program Lender has elected to cease to
participate in the GATE Program in all Program Lender Exclusive States as
permitted under Paragraph 2 below; and
(i) The date of delivery by the Program Lender of written notice that
it has originated and held for more than sixty (60) days GATE Conforming Loans
with Participating Institutions with an original principal balance in the
aggregate in excess of the Maximum Lender Exposure as to which there has not
been consummated a Securitization Transaction.
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, that in the event of the initiation of a
proceeding challenging the legality of the GATE Program and/or the Notes which
the Program Lender reasonably believes is likely to be adversely determined or
in the event of a change or imminent change in law or regulation or in the
interpretation thereof which the Program Lender reasonably believes is likely to
result in the initiation of such a proceeding, the Program Lender may, after
consultation with Marblehead and consideration of alternative actions which
would negate the likelihood that such a proceeding would be initiated or, if
initiated, would be likely to be adversely determined, elect to cease to
participate in the GATE Program in such of the Program Lender Exclusive States
as may be affected thereby. In the event the Termination Date shall occur during
a Pool Open Period or during the [**] period following the Pool Closing Date of
such Pool Open Period (as those terms are 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 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);
provided, however, that: (a) in the event the Termination Date shall have
occurred at the election of the Program Lender pursuant subparagraphs (c), (e)
or (h) of the definition of the term "Termination
Date" or pursuant to subparagraph (f) of the definition of the term "Termination
Date," such sale shall be without recourse to or representation or warranty,
express or implied, by the Program Lender, (b) the conditions precedent to the
Program Lender's obligation to sell GATE Conforming Loans to NCT or a Purchaser
Trust set forth in subsections (2), (4), (5), (6), (7) and (8) of Section 3. 0 1
(c) of the Note Purchase Agreement, which are incorporated herein by this
reference, shall have been met to the satisfaction of the Program Lender, (c)
Marblehead, NCT, all Purchaser Trusts to whom the Program Lender has sold GATE
Conforming Loans and the purchasing Purchaser Trust shall be in compliance with
all terms and conditions set forth in Paragraph 11 below, and (d) such sale
transaction shall be consummated no later than the last day of the [**]
post-Pool Closing Date period.
3. IDENTIFICATION AND APPROVAL OF PARTICIPATING INSTITUTIONS. From
time to time following the Effective Date, (a) NCT and Marblehead, acting
through Marblehead, may request the Program Lender to originate GATE Conforming
Loans to students enrolled at a specified educational institution, or (b) the
Program Lender may request NCT and Marblehead to agree that a specified
educational institution may be included in the GATE Program, by providing to the
other party or parties a written request therefor. NCT and Marblehead shall, in
any event, request the Program Lender to originate GATE Conforming Loans at
educational institutions located in the Program Lender Exclusive States prior to
making such a request of any Competing Lender. 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 Program, NCT and Marblehead shall be deemed to represent and warrant that
such educational institution is eligible for participation in the GATE Program
pursuant to the Program Manual. The institutions listed on Exhibit A attached
hereto have been previously approved by NCT and Marblehead and are hereby deemed
acceptable by Program Lender.
4. LOAN PACKAGING AND FUNDING AGREEMENTS. In the event that an
educational institution is approved for inclusion in the GATE Program, 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 B
(a "Loan Packaging and Funding Agreement") establishing certain procedures,
terms and conditions of the origination of GATE Conforming Loans to be made to
students enrolled at such educational institution.' Such Loan Packaging and
Funding Agreement provides for the reserving of certain loan proceeds as set
forth more particularly in the form Loan Packaging and Funding Agreement
attached hereto. The Program Lender will consult with Marblehead as to the
appropriate level of such reserves. Marblehead will base its recommendations
upon its reasonable estimate of (a) the expenses which would be incurred in a
Securitization Transaction and (b) the reserves which would be required by
Standard & Poor's Corporation and/or Xxxxx'x Investors Service (the "Rating
Agencies") if loans to students at the
Participating Institution in question were to be included as collateral for a
GRADS" bond issue having a "AA" or "Aa" rating from such rating agency
(collectively, the "Expected Securitization Reserves"). Marblehead's estimates
of such Rating Agency reserve requirements shall be not less than the reserves
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 establishing loan program reserve
levels. The amount which will be funded to the Participating Institutions with
respect to each GATE Conforming Loan will be seventy five percent (75%) of the
difference between the face amount of the related Note and Pre-Securitization
Reserves therefor. It is expressly agreed and understood by NCT and Marblehead
that the terms and conditions of each Loan Packaging and Funding Agreement,
including the establishment of required reserves, must be acceptable to the
Program Lender in its sole and absolute discretion; provided, however, that in
no event will the Program Lender enter into Loan Packaging and Funding Agreement
in any form other than that the form of the Loan Packaging and Funding Agreement
attached hereto as Exhibit B without the prior written consent of NCT and
Marblehead, which consent shall not be unreasonably withheld. It is expressly
acknowledged and agreed by NCT and Marblehead that the Program Lender shall have
the right to refuse to consider additional applications for GATE Conforming
Loans from any Participating Institution and to notify Participating
Institutions -that it has suspended its participation in the GATE Program as to
the origination of additional GATE Conforming Loans in the event that, but for
the passage of sixty (60) days, there would exist a Termination Event under
subparagraph (i) of the definition of such term.
5. 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 Program. Subject
to the confidentiality provisions of Paragraph 8 below and the provisions of
Paragraph 11 (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 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 Program pursuant to a license agreement in
the form of that attached hereto as Exhibit C 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 in the form of that attached hereto as Exhibit
D.
6. EXCLUSIVITY; NONCOMPETITION. Subject to the proviso set forth
below, neither NCT nor Marblehead will enter into any agreement with any other
financial institution or other regulated or nonregulated lender (a "Competing
Leader") in the nature of this Agreement or otherwise in contemplation of the
participation of such Competing Lender in the GATE Program without the prior
written consent of the Program Lender, given in the Program Lender's sole and
absolute discretion, provided however that: (a) in the event NCT or Marblehead
propose an
educational institution for inclusion in the GATE Program pursuant. to Paragraph
2 above and the Program Lender elects not to enter into a Loan Packaging and
Funding Agreement with such educational institution, then, so long as such
educational institution is eligible for inclusion in the GATE Program pursuant
to the Program Manual, NCT and Marblehead may enter into such contractual
arrangements with such educational institution and a Competing Lender for the
origination of GATE Conforming Loans as they may elect and (b) NCT and
Marblehead may enter into agreements with a Competing Lender without regard to
this Paragraph 6 with respect to students at educational institutions located in
any state or territory of the United States except the Program Lender Exclusive
States. Upon the occurrence of the Termination Date: (1) if the termination
occurred pursuant to the provisions of subparagraphs (a) or (b) of the
definition of "Termination Date" or the election of NCT and Marblehead to
terminate this Agreement pursuant
to subparagraphs (c),'(d), (e), (f) or (g) of the definition of "Termination
Date," neither the Program Lender nor Bank of America National Trust and Savings
Association shall originate student loans in connection with any student loan
program in the nature of the GATE Program or otherwise combining the principal
elements of the GATE Program consisting of establishing loan proceeds reserves
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) 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 Program and this Agreement.
7. OTHER BUSINESS. Except to the extent expressly provided in
Paragraph 6 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 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 Conforming Loans originated by the Program Lender or any
other Person; provided however that the Program Lender shall protect Proprietary
Information from unnecessary disclosure.
8. CONFIDENTIAL INFORMATION; PROPRIETARY INFORMATION.
(a) All information of any kind and description relating to borrowers
under GATE 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, and (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 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 Program. 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 5 above and incidental
communications regarding the GATE Program initiated by borrowers in the course
of which such borrowers are referred to the Program Lender, until a Gate
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 8(a) shall
survive the Termination Date.
(b) All information relating to the GATE 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 prevent any
unauthorized commercial use of Proprietary Information. The obligations of this
Paragraph 8(b) shall survive the Termination Date.
9. 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 loan terms, borrower eligibility, or any other change that would
affect Program Lender's rights, obligations, responsibilities, or costs; and
(b) The form Participation Agreement, which form Participation
Agreement shall be substantially in the form of Exhibit E attached hereto, 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.
10. MARBLEHEAD EFFORTS; PAYMENTS OF FEE. Marblehead agrees to use its
best efforts to continue to market the GATE Program and to assist NCT in
arranging Securitization Transactions. In consideration of Marblehead having
introduced the Program Lender, to the GATE Program, and in consideration of
Marblehead's continued efforts to market the GATE Program, the Program Lender
hereby agrees to pay to Marblehead on each Purchase Date (as defined in the
Master Purchase and Securitization Agreement) a fee, computed based upon the
number of Notes sold by the Program Lender to the Purchaser Trust thereunder on
such Purchase Date, multiplied by [**] Dollars ($[**]). Nothing contained in
this Agreement shall restrict Marblehead's right to separately negotiate with
NCT (or other parties to a Securitization Transaction) fees for its services as
investment advisor, financial advisor or otherwise, but in no event shall the
Program Lender have any obligation with respect thereto.
11. 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
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 Program Lender in
originating the GATE 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 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, GATE Conforming Loans originated by
any person or entity other than Program Lender will not be included in any
Securitization Transaction and by proposing that such GATE Conforming Loans be
included in any Securitization Transaction which will include GATE Conforming
Loans originated by Program Lender, Marblehead, NCT and the applicable Purchaser
Trust shall be deemed to have represented and warranted that such other GATE
Conforming Loans were originated under Program Manuals substantively identical
to the Program Manual under which GATE Conforming Loans are originated by the
Program Lender- provided; however, that the consent of the Program Lender
referred to above shall not be required as a condition of the inclusion of GATE
Conforming Loans originated by the First National Bank of Boston in any
Securitization Transaction as long as the First National Bank of Boston shall
have executed and delivered to Program Lender a Co-Lender Indemnification
Agreement (it being expressly agreed and understood by NCT and Marblehead that
the execution and delivery to Program Lender of a Co-Lender Indemnification
Agreement by other participating "Program Lenders" in any Securitization
Transaction shall be a condition precedent
to any agreement of Program Lender to permit the pooling of GATE Conforming
Loans originated by such other person or entity with GATE Conforming Loans
originated by Program Lender in a Securitization Transaction);
(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.
12. 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 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.
13. 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.
14. 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.
15. 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
16. 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.
17. 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.
18. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Arizona.
19. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which together shall constitute one agreement.
20. 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.
21. CONSENT TO JURISDICTION. SUBJECT TO PARAGRAPH 22 BELOW, ANY LEGAL
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS
OF THE STATE OF ARIZONA OR OF THE UNITED STATES FOR THE [DISTRICT OF ARIZONA],
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 CONVENIENS 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.
22. 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.
23. EFFECTIVE DATE. This Agreement shall be effective upon the date
(the "Effective Date") as of which:
(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 F (the "Note Purchase Agreement");
(c) The Program Lender shall have reviewed and approved in writing
the final form of Program Manual;
(d) The Program Lender shall have received an opinion, in form and
substance and issued by counsel satisfactory to the Program Lender (at no cost
or expense to NCT or Marblehead), in each State in which the Initial
Participating Institutions are located covering such matters as the Program
Lender shall have requested;
(e) The Program Lender shall have received the opinions of Thacher,
Xxxxxxxx & Xxxx in the forms of those attached hereto as Exhibit and Exhibit H;
and
(f) The First National Bank of Boston and Program Lender shall have
approved the form of Co-Lender Indemnification Agreement.
If the Effective Date shall not have occurred on or before August 1,
1996, then this Agreement shall, at the option of any party as evidenced by
written notice to such effect given to the other parties as provided herein,
terminate and be of no further force or effect; provided, however, that the
failure of the condition precedent to the Effective Date set forth in
subparagraph (d) above as to one Program Lender Exclusive State shall not affect
the Effective Date from occurring with respect to those Program Lender Exclusive
States as to which such condition precedent is met.
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: Delaware Trust Company, not in its
individual capacity but solely in its capacity
as Trustee
By: /s/Xxxxxxx X. Xxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxx
------------------------------------------
Title: Vice President
-----------------------------------------
Address: 000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
THE FIRST MARBLEHEAD
CORPORATION, a Delaware corporation
By: /s/Xxxxxx Xxxxxx
--------------------------------------------
Name: Xxxxxx Xxxxxx
------------------------------------------
Title: Chairman
-----------------------------------------
Address: 0 Xxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
BANK OF AMERICA NA
By: /s/Xxxxxxx Xxxxxxx
--------------------------------------------
Name: Xxxxxxx Xxxxxxx
------------------------------------------
Title: President and CEO
-----------------------------------------
Address: Bank of America NA
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
By: Xxxxxxxx X. Xxxxxx
-------------------------------------------
Senior Vice President and CEO
-------------------------------------------
TABLE OF EXHIBITS
NOTE: First Marblehead Corporation is not a party to the following exhibits.
Pursuant to Item 601 of Regulation S-K, such exhibits are not being filed
herewith.
EXHIBIT A LIST OF APPROVED PARTICIPATING INSTITUTIONS
(AS OF June 1, 1996)
EXHIBIT B FORM OF LOAN PACKAGING AND FUNDING AGREEMENT
EXHIBIT C FORM OF LICENSE AGREEMENT
EXHIBIT D FORM OF LICENSE AGREEMENT
EXHIBIT E FORM OF PARTICIPATION AGREEMENT
EXHIBIT F FORM OF NOTE PURCHASE AGREEMENT
EXHIBIT G FORM OF OPINION (Re Disclosure Document)
EXHIBIT H FORM OF OPINION (Re Interests in Purchaser Trusts)
FIRST AMENDMENT TO
UMBRELLA AGREEMENT
(Bank of America)
This First Amendment to Umbrella Agreement ("Amendment"), amends that
certain Umbrella Agreement by and among The National Collegiate Trust, a
Delaware business trust ("NCT"), The First Marblehead Corporation, a Delaware
corporation ("Marblehead"), and Bank of America NA, a national banking
association having its principal office located in the State of Arizona
("Program Lender"), dated as of June 1, 1996 (the "Agreement"). Capitalized
terms used in this Amendment without definition shall have the meaning set
forth in the Agreement.
A. AMENDED AND ADDITIONAL DEFINITIONS.
1. The "Currently Scheduled Termination Date" is amended by removing
the date "December 31, 1997" and replacing it with the date
"December 31, 1998."
2. Section (b) of the definition "Termination Date" is removed and
replaced with the following language:
"(b) The 120th day following delivery by Program Lender to
Marblehead or by Marblehead to Program Lender of written
notice, given in either party's sole and absolute discretion,
of such party's election to terminate this Agreement; PROVIDED,
HOWEVER, that such notice may be given no earlier than
January 1, 1998;"
B. AMENDMENTS TO OPERATIVE PROVISIONS OF AGREEMENT.
1. The 7th full sentence of Section 4 is removed and replaced with the
following:
"The amount which will be funded to the Participating
Institutions with respect to each GATE Conforming Loan will be as
set forth in the Loan Packaging and Funding Agreement attached
hereto as Exhibit B.
2. Section 6(c) is added to the first sentence of paragraph 6 of the
Agreement as follows:
"(c) In the event that a Participating Institution or
proposed Participating Institution specifically elects in writing to
designate BankBoston, National Association ("BKB") as program lender
with respect to loans made to students at such institution, then the
restrictions of the first sentence of this paragraph 6 shall not
apply with respect to agreements entered into by NCT and/or
Marblehead with BKB regarding loans to students at such institution;
PROVIDED, FURTHER: (I) that Marblehead shall include in any
Competing Lender agreement a similar clause permitting Participating
Institutions or Proposed Participating Institutions located in any
of the 50 states to designate Bank of America NA as Program Lender
and (II) that NCT, Marblehead and Program Lender shall use their
best efforts to cause their respective employees to present
alternative Program Lender arrangements to prospective participating
institutions in a professional manner and to avoid unfair or
deceptive competition in communications with such institutions, and
(III) Marblehead shall include a clause similar to the foregoing
paragraph (II) in any Competing Lender agreement."
3. The following sentence is added at the end of paragraph 6:
"The term 'Lender Competing Program' shall not include, and
restrictions in this section regarding NCT or Marblehead making
agreements with a Competing Lender shall not apply to, programs that
involve parents or guardians as principal obligors, where such
obligors are required to qualify for education loans pursuant to a
substantial creditworthiness examination, even if the other features
of a 'GATE Program,' such as the lack of a governmental guarantee and
the existence of reserves are found in such a program. Specifically,
but not by way of limitation, this Agreement does not apply to the
so-called prepGATE and familyGATE programs, which may be covered by
a separate agreement or agreements between Program Lender and the
other parties hereto."
4. The form of Loan Packaging and Funding Agreement attached as
Exhibit B to the Agreement, together with the Program Manual attached
thereto, are replaced in their entirety with Exhibit B attached
hereto.
5. In all other respects, the Umbrella Agreement is hereby ratified and
confirmed and shall remain in full force and effect.
2
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their duly authorized officers as of this day of
, 1997.
WITNESS: BANK OF AMERICA NA
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------- ---------------------------
Its: VICE PRESIDENT
BANK OF AMERICA NA
By: /s/ [ILLEGIBLE]
--------------------------- ---------------------------
Its: VICE PRESIDENT
THE FIRST MARBLEHEAD CORPORATION
/s/ Xxxxxxxx X'Xxxx By: /s/ Xxxxxx Xxxxxx
--------------------------- ---------------------------
Its: CHAIRMAN
THE NATIONAL COLLEGIATE TRUST
/s/ Xxxxxxxx X'Xxxx By: /s/ Xxxxxx Xxxxxx
--------------------------- ---------------------------
Its: XXXXXX XXXXXX
CHAIRMAN
THE FIRST MARBLEHEAD
CORPORATION ON BEHALF OF
NCT
3
TABLE OF EXHIBITS
Note: First Marblehead Corporation is not a party to Exhibit B. Pursuant to
Item 601 of Regulation S-K, this exhibit is not being filed herewith.
Exhibit B -- Loan Packaging and Funding Agreement
SECOND AMENDMENT TO
UMBRELLA AGREEMENT
(Bank of America)
This Second Amendment to Umbrella Agreement ("Amendment"), amends that
certain Umbrella Agreement by and among The National Collegiate Trust, a
Delaware business trust ("NCT"), The First Marblehead Corporation, a Delaware
corporation ("Marblehead"), and Bank of America NA, a national banking
association having its principal office located in the State of Arizona
("Program Lender"), dated as of June 1, 1996, as the same has heretofore been
amended from time to time (the "Agreement"). Capitalized terms used in this
Amendment without definition shall have the meaning set forth in the
Agreement.
A. AMENDED DEFINITION.
1. The "Currently Scheduled Termination Date" is amended by removing the
date "December 31, 1998" and replacing it with the date "December 31,
1999."
B. AMENDMENTS TO OPERATIVE PROVISIONS OF AGREEMENT.
1. The forms of Loan Packaging and Funding Agreement attached as Exhibit
B to the Agreement, together with the Program Manual attached thereto,
are replaced in their entirety with Exhibit B attached hereto.
2. In all other respects, the Umbrella Agreement is hereby ratified and
confirmed and shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their duly authorized officers as of this 30 day of December,
1998.
WITNESS: BANK OF AMERICA NA
/s/ [Illegible] By: /s/ Xxxxx Xxxxxx
---------------------- ------------------------
Its: SENIOR VICE PRESIDENT
---------------------- THE FIRST MARBLEHEAD CORPORATION
/s/ [Illegible] By: /s/ Xxxxxx Xxxxxx
---------------------- -------------------------
Its:
THE NATIONAL COLLEGIATE TRUST
By: /s/ Xxxxxx Xxxxxx
--------------------- ---------------------------
Its: AGENT
Attachments:
Program Manual as Revised through 07/02/98 (including Stanford)
Loan Packaging and Funding Agreement Revised through 9-18-98
TABLE OF EXHIBITS
Note: First Marblehead Corporation is not a party to Exhibit B. Pursuant to
Item 601 of Regulation S-K, this exhibit is not being filed herewith.
Exhibit B--FORM OF LOAN PACKAGING AND FUNDING AGREEMENT
THE NATIONAL COLLEGIATE TRUST GUARANTEED ACCESS TO EDUCATION ("GATE")
PROGRAM MANUAL
[THE FIRST MARBLEHEAD CORPORATION LOGO]
THIRD AMENDMENT TO
UMBRELLA AGREEMENT
(Bank of America)
This Third Amendment to Umbrella Agreement ("Amendment"), amends that
certain Umbrella Agreement by and among The National Collegiate Trust, a
Delaware business trust ("NCT"), The First Marblehead Corporation, a Delaware
corporation ("Marblehead"), and Bank of America NA, a national banking
association ("Program Lender"), dated as of June 1, 1996, as the same has
heretofore been amended and assigned to Program Lender (the "Agreement").
Capitalized terms used in this Amendment without definition shall have the
meaning set forth in the Agreement.
A. AMENDED DEFINITION.
1. The "Currently Scheduled Termination Date" is amended by removing
the date "December 31, 1999" and replacing it with the date
"December 31, 2000."
B. AMENDMENTS TO OPERATIVE PROVISIONS OF AGREEMENT.
1. The first clause of Section 6(c), as added by the First Amendment
to Umbrella Agreement, is further amended to read:
"(c) In the event that a Participating Institution or proposed
Participating Institution specifically elects in writing to designate
a an affiliate of FleetBoston Financial Corp. as program lender with
respect to loans made to students at such institution...."
The purpose of this amendment is to reflect the fact that the
Competing Lender originally named in this clause (The First National
Bank of Boston) has changed corporate identity and continues to change
corporate identity, but will, in any event remain an affiliate of the
newly merged holding company named in this amendment.
2. In all other respects, the Umbrella Agreement is hereby ratified
and confirmed and shall remain in full force and effect.
[SIGNATURES ON NEXT PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their duly authorized officers as of this day of
, 1999.
WITNESS: BANK OF AMERICA NA
By: /s/ Xxxxx Xxxxxx
--------------------------- ---------------------------
Its: SVP
THE FIRST MARBLEHEAD
CORPORATION
/s/ Xxxx Xxxxx By: /s/ Xxxxxx Xxxxxx
--------------------------- ---------------------------
Its: CEO
THE NATIONAL COLLEGIATE
TRUST
/s/ Xxxx Xxxxx By: /s/ Xxxxxx Xxxxxx
--------------------------- ---------------------------
Its: CHAIRMAN
03/22/00
EXECUTION
FOURTH AMENDMENT TO
UMBRELLA AGREEMENT
(Bank of America)
This Fourth Amendment to Umbrella Agreement ("Amendment"), amends that
certain Umbrella Agreement dated as of June 1, 1996, as amended (the
"Umbrella Agreement"), the parties to which are currently and Bank of America
NA, a national banking association having an office located in the State of
California (the "Program Lender"), The National Collegiate Trust, a Delaware
business trust ("NCT"), and The First Marblehead Corporation, a Delaware
corporation ("Marblehead"). Capitalized terms used in this Amendment without
definition shall have the meaning set forth in the Umbrella Agreement, as
amended. This Amendment is dated as of February 1, 2000.
RECITALS:
A. Bank of America NA, a national bank located in Arizona ("BANA")
entered into the Umbrella Agreement on June 1, 1996; and
B. The Umbrella Agreement was amended by the First Amendment dated
December 1997, a Second Amendment dated December 30, 1998, and a Third
Amendment dated December 1999; and
C. The rights and obligations of BANA were assigned to Bank of America
National Trust and Savings Association ("BANTSA") by Assignment Agreement
dated as of March 22, 1999, and BANTSA assumed and agreed to perform the
obligations of BANA; and
D. BANTSA subsequently merged with another financial institution, the
resulting entity being known as Bank of America NA; and
E. Program Lender, Marblehead, and NCT have agreed that Program lender
should become the exclusive Program Lender for GATE Conforming Loans; and
F. In order to effectuate the foregoing, certain amendments to the
Umbrella Agreement are necessary and certain transition agreements between
Program Lender and Participating Institutions to begin service for
Participating Institutions presently doing business with BankBoston, N.A. are
all required.
NOW, THEREFORE, the parties to this Amendment hereby agree as follows:
I. DEFINITIONS. Capitalized terms used herein without definition
shall have the meaning set forth in the Umbrella Agreement, as amended.
"BKB Umbrella Agreement" means that certain Umbrella Agreement by and
among The First National Bank of Boston, Marblehead and NCT dated as of
August 31, 1995.
"Effective Date" means March 3, 2000.
"Loan Effective Date" means the date specified in a notice from
Marblehead to Program Lender, which date shall be not more than 120 days
after the Effective Date on which date Program Lender shall become the
exclusive Program Lender. The Loan Effective Date is currently scheduled for
April 3, 2000.
II. AMENDMENTS TO UMBRELLA AGREEMENT.
2.01. The definition of "Business Day" is amended by deleting all
references to the "Commonwealth of Massachusetts" or the "State of Arizona"
and inserting in their stead the words "State of California."
2.02. The definition of "Maximum Lender Exposure" is deleted.
2.03. The definition of "Program Lender Exclusive States" is deleted,
and the following inserted in its stead:
"'Program Lender Exclusive States' shall mean the 00 xxxxxx xx xxx
Xxxxxx Xxxxxx, the District of Columbia, and the territories of the United
States."
2.04. Subsection (i) of the definition of "Termination Date" is hereby
deleted.
2.05. Section 4 is amended by inserting after the words "GRADS bond
issue" the words "or other debt issuance, including, without limitation,
issuance in connection with a commercial paper conduit,".
2.06. Section 4 is further amended by deleting the last sentence
thereof.
2.07. Section 6 is amended by deleting the first sentence and replacing
it with the following:
"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
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 Program Lender Exclusive State. This restriction
shall not prohibit Marblehead from providing securitization services to
lenders generally."
The foregoing restated first sentence of Section 6 shall replace all of
Section 6(a), (b) and (c), as amended, and section 6 shall continue beginning
with the words "Upon the
2
occurrence of the Termination Date...." The balance of Section 6 shall remain
in effect as previously amended.
2.08. The following sentence is added to Section 9(b):
"NCT may, upon notice to Program Lender, include in the Participation
Agreement a Rider in the form of Exhibit E-1."
2.09. Subsection 11(e) is amended by deleting the proviso contained
therein, placing a period immediately after the words "Program Lender"
immediately preceding the proviso, and adding the following additional
sentence:
"The execution and delivery to Program Lender of a Co-Lender
Indemnification Agreement by other participating program lenders in any
securitization transaction shall be a condition precedent to any agreement of
Program Lender to permit the pooling of GATE Conforming Loans originated by
such other person or entity with GATE Conforming Loans originated by Program
Lender in a securitization transaction."
2.10. The following sentence is added at the end of Section 12:
"As a result of assignment of this Agreement to a national banking
association having an office in California, GATE Conforming Loans are
presently made pursuant to California law. Program Lender agrees that it will
continue to originate GATE 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."
2.11. Section 18 is amended by deleting the word "Arizona" and inserting
the word "California."
2.12. Section 21 is amended by deleting all references to the word
"Arizona" and inserting the word "California."
2.13. Section 23 is deleted and replaced with the following:
"Effective Date. The conditions on the Effective Date of this Agreement
have been timely satisfied."
2.14. The Program Manual, as most recently amended by Letter Agreement
dated August 18, 1999, is further amended and shall take the form of Exhibit
A attached hereto.
2.15. The form of "Loan Subsidy Rider to Participation Agreement"
attached hereto as Exhibit B is hereby adopted as Exhibit E-1 to the Umbrella
Agreement.
3
2.16. The Form of Loan Packaging and Funding Agreement, as most recently
amended by Letter Agreement dated August 18, 1999, is further amended and
shall take the form of Exhibit C attached hereto.
2.17. Section 3 of the Umbrella Agreement is amended by adding the
following:
"Pursuant to the Program Manual, NCT may from time to time request
that Program Lender waive cosigner requirements for students who are neither
U.S. residents nor U.S. citizens. Program Lender will consider such 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, prior to the
issuance of a Pool Commitment Certificate with respect to the affected
Participating Institution."
2.18. The Participation Agreement attached as Exhibit E to the Umbrella
Agreement is replaced with the form of Participation Agreement attached
hereto as Exhibit D:
III. TRANSITION PROVISIONS.
3.01. Marblehead and NCT gave notice of termination of the BKB Umbrella
Agreement to BankBoston, N.A. on March 3, 2000, and they shall seek to
establish an orderly and rapid transition of all duties of BankBoston, as
Program Lender, to Program Lender under this Amendment. Marblehead and NCT
shall vigorously enforce their rights to terminate BankBoston, N.A. as
rapidly as possible. Marblehead anticipates that new loan originations by
BankBoston will cease on March 31, and final disbursements of those loans
will be completed on or about May 31, 2000.
3.02. Promptly as of the Effective Date, Program Lender shall solicit
all BKB Participating Institutions listed on Schedule 1 attached hereto to
enter into Loan Packaging and Funding Agreements with Program Lender, and
Program Lender agrees to enter into such agreements with the Participating
Institutions listed on Schedule 1. In lieu of such entry into new agreements,
Program Lender also agrees, upon request by Marblehead, to accept an
assignment of, and assume the obligations of the rights of, Program Lender
under existing Origination and Funding Agreements between BankBoston, N.A. and
Participating Institutions listed on Schedule 1 attached hereto, copies of
which have been provided to Program Lender, PROVIDED, HOWEVER, that Program
Lender may require a new Loan Packaging and Funding Agreement with Wesleyan
University and PROVIDED, FURTHER, that all such Participating Institutions
listed on Schedule 1 must agree to amended documentation with Program Lender
to reflect new pricing contained in this Agreement. Regardless of the form
used, whether entering into new agreements or assignment of existing
agreements, the obligations of Program Lender to such new Participating
Institutions shall be conditioned upon the occurrence of the Loan Effective
Date.
3.03. On the Loan Effective Date, Program Lender shall issue to the
Participating Institutions listed on Schedule 1 a form of Pool Commitment
Certificate in
4
the form of Schedule 2 attached hereto, pursuant to the applicable agreement
with the Participating Institution. The specific entries in Schedule 2
attached hereto are proposals by Marblehead and are subject to review by
Program Lender.
3.04. Marblehead shall notify Program Lender of the Loan Effective Date
as soon as possible. The Loan Effective Date shall be the day after the final
termination date of the obligations of BankBoston, N.A., as Program Lender
under the BKB Umbrella Agreement, but not more than 120 days after the
Effective Date, and is currently scheduled for April 3, 2000.
3.05. Program Lender acknowledges that the Participating Institutions
listed on Schedule 1 attached hereto are parties to a form of Participating
Agreement that differs slightly from Exhibit E to the Umbrella Agreement.
Program Lender consents to the existence of such agreements. NCT covenants
and agrees that it shall enter into amendments to such Participation
Agreements to cause such agreements to conform to Section II.C of the form of
Participation Agreement attached as Exhibit E to the Umbrella Agreement.
Subject to such amendment, the existing Participation Agreements with the
Participating Institutions listed on Schedule 1 shall be deemed to conform
in all respects to the requirements of the Umbrella Agreement.
3.06. The parties agree to cooperate in good faith to achieve a rapid
and trouble-free transition for Participating Institutions from service under
the BKB Umbrella Agreement to service under the Umbrella Agreement.
In the event that BankBoston, N.A. fails and refuses to fulfill its
contractual obligations (a) to continue funding partially disbursed GATE
Conforming Loans, or (b) to hold GATE Conforming Loans and cooperate in their
sale in a Securitization Transaction, Program Lender agrees (c) to purchase
any outstanding GATE Conforming Loans from BankBoston, N.A. on terms
satisfactory to Program Lender and NCT, (d) to resell those loans to NCT or
its designee under the Note Purchase Agreement, and (e) to either continue
funding partially disbursed notes or to cooperate with NCT in the origination
of new notes for unfunded disbursements.
IV. PRICING CHANGES.
4.01. The Note Purchase Agreement dated as of August 1, 1996, by and
between NCT and Program Lender, as previously amended, is further amended to
modify the definition of "Minimum Purchase Price" in Section 2.04 to read:
"'Minimum Purchase Price' shall mean the sum of (a) all amounts [**] on
account of the related GATE Notes in question, plus (b) interest accrued on
the related GATE Notes at a rate equal to [**] per annum, calculated by
applying such rate to the amount [**] to the Purchase Date, plus (c) an
Origination Services Fee [**] for each [**] (such fee being payable [**]
5
plus (d) a sum equal to [**]. For purposes of this section, [**] shall
mean the current "Index" as computed under the GATE Note set forth at
Appendix B-2 to the Program Manual (February 2000 Revision) and the [**]
rate shall vary with the quarterly frequency and timing set forth in Appendix
B-2.
4.02. The preceding Section 4.01 shall take effect upon the later of
(a) execution by all Participating Institutions of amendments to Section II(C)
of the Participation Agreement to conform the same to the language set forth
in Section II(C) of Exhibit D attached hereto or (b) one day after the
closing of a Securitization Transaction covering loans originated from May 1999
through a date in March or April 2000.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their duly authorized officers as of the date first above written.
WITNESS: BANK OF AMERICA NA
By:
--------------------------- ---------------------------
Its:
THE FIRST MARBLEHEAD CORPORATION
By:
--------------------------- ---------------------------
Its:
THE NATIONAL COLLEGIATE TRUST
By:
--------------------------- ---------------------------
Its:
6
TABLE OF SCHEDULES AND EXHIBITS
Note: First Marblehead Corporation is not a party to Schedules 1 and/or 2;
Exhibits A, B, C and/or D. Pursuant to Item 601 of Regulation S-K,
such exhibits are not being filed herewith.
SCHEDULE 1 - LIST OF BKB PARTICIPATING INSTITUTIONS
SCHEDULE 2 - FORM OF POOL COMMITMENT CERTIFICATE, INCLUDING BKB PARTICIPATING
INSTITUTIONS
EXHIBIT A - REVISED FORM OF PROGRAM MANUAL
EXHIBIT B - NEW FORM OF EXHIBIT E-1, LOAN SUBSIDY RIDER TO PARTICIPATION
AGREEMENT
EXHIBIT C - LOAN PACKAGING AND FUNDING AGREEMENT (REVISED FORM)
EXHIBIT D - PARTICIPATING AGREEMENT (REVISED FORM)
FIFTH AMENDMENT TO
UMBRELLA AGREEMENT
(Bank of America)
This Fifth Amendment to Umbrella Agreement ("Amendment"), amends that
certain Umbrella Agreement dated as of June 1, 1996, as amended (the
"Umbrella Agreement"), the parties to which are currently Bank of America NA,
a national banking association having an office located in the State of
California (the "Program Lender"), The National Collegiate Trust, a Delaware
business trust ("NCT"), and the First Marblehead Corporation, a Delaware
corporation ("Marblehead"). Capitalized terms used in this Amendment without
definition shall have the meaning set forth in the Umbrella Agreement. This
Fifth Amendment is dated as of August 1, 2000.
RECITALS:
A. Bank of America NA, a national bank located in Arizona ("BANA")
entered into the Umbrella Agreement on June 1, 1996; and
B. The Umbrella Agreement was amended by the First Amendment dated
December 1997, a Second Amendment dated December 30, 1998, and a Third
Amendment dated December 1999; and
C. The rights and obligations of BANA were assigned to Bank of America
National Trust and Savings Association ("BANTSA") by Assignment Agreement
dated as of March 22, 1999, and BANTSA assumed and agreed to perform the
obligations of BANA; and
D. BANTSA subsequently merged with another financial institution, the
resulting entity being known as Bank of America NA; and
E. The Umbrella Agreement was subsequently amended by a Fourth
Amendment dated as of February 1, 2000; and
F. Program Lender, Marblehead, and NCT have agreed to permit the
special participation of Stanford University in the GATE Program pursuant to
a side letter dated as of August 1, 2000, among the parties to the Umbrella
Agreement (the "Side Letter") and a special form of participation agreement
entered into between Stanford University and NCT and dated as of August 1,
2000 (the "Stanford Participation Agreement"); and
G. Program Lender [**] (as defined in the Loan Packaging and Funding
Agreement) for Stanford University and its undergraduate students; and
H. FMC and NCT will be unable to raise capital sufficient to equal the
Minimum Purchase Price to purchase loans made under the Stanford Participation
Agreement in the absence of credit support for GATE Loans made to
undergraduate students at Stanford University ("Stanford GATE Loans"); and
I. Program Lender desires to facilitate the securitization and
purchase of Stanford GATE Loans pursuant to the Note Purchase Agreement.
NOW, THEREFORE, the parties to this Amendment hereby agree as follows:
1. Concurrent with the purchase, pursuant to the Note Purchase
Agreement, of any Stanford GATE Loan made to an undergraduate student at
Stanford University, Program Lender shall enter into a Guaranty Agreement in
the form attached hereto as Exhibit A with the purchasing entity. Such
Guaranty Agreement shall guaranty payment of principal and interest with
respect to all of the loans subject to the guaranty, subject to a maximum
liability of BA, all as more fully set forth in the Guaranty Agreement.
2. In all other respects, the Umbrella Agreement, as amended, is hereby
ratified and confirmed and shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their duly authorized officers as of the date first above written.
WITNESS: BANK OF AMERICA NA
By: /s/ Xxxxx Xxxxxx
---------------------------- ------------------------------
Its: SENIOR VICE PRESIDENT
THE FIRST MARBLEHEAD CORPORATION
/s/ Xxxx Xxxxx By: /s/ Xxxxxx Xxxxxx
---------------------------- ------------------------------
Xxxx Xxxxx Its: CHAIRMAN AND CEO
THE NATIONAL COLLEGIATE TRUST
/s/ Xxxx Xxxxx By: /s/ Xxxxxx Xxxxxx
---------------------------- ------------------------------
Xxxx Xxxxx Its: CHAIRMAN
TABLE OF EXHIBITS
Note: First Marblehead Corporation is not a party to Exhibit A. Pursuant to
Item 601 of Regulation S-K, this exhibit is not being filed herewith.
EXHIBIT A -- FIFTH AMENDMENT TO UMBRELLA AGREEMENT GATE LOAN PROGRAM --
STANFORD UNIVERSITY UNDERGRAD LOAN GUARANTEE AGREEMENT
(BANK OF AMERICA)
04-22-02
SIXTH AMENDMENT TO
UMBRELLA AGREEMENT
(Bank of America)
This Sixth Amendment to Umbrella Agreement ("Amendment"), amends that
certain Umbrella Agreement dated as of June 1, 1996, as amended (the "Umbrella
Agreement"), the parties to which are currently and Bank of America N.A., a
national banking association having an office located in the State of California
(the "Program Lender"), The National Collegiate Trust, a Delaware business trust
("NCT"), and The First Marblehead Corporation, a Delaware corporation
("Marblehead"). Capitalized terms used in this Amendment without definition
shall have the meaning set forth in the Umbrella Agreement, as amended. This
Amendment is dated as of December 31, 2000.
RECITALS:
A. The Umbrella Agreement was amended by the First Amendment dated
December 1997, a Second Amendment dated December 30, 1998, a Third Amendment
dated December 1999, a Fourth Amendment dated as February 1, 2000 and a Fifth
Amendment dated as of August 1, 2000; and
B. The parties desire by this Sixth Amendment to extend the term of the
Umbrella Agreement.
NOW, THEREFORE, the parties to this Amendment hereby agree as follows:
1. DEFINITIONS. Capitalized terms used herein without definition shall
have the meaning set forth in the Umbrella Agreement, as amended.
2. AMENDMENT. The definition of "Currently Scheduled Termination Date"
is hereby amended to read:
"Currently Scheduled Termination Date" means December 31, 2002,
provided, however, that such date shall automatically be
extended for an additional year on such date and each
anniversary thereof, unless either party shall have given
notice of termination as otherwise permitted under the
definition of "Termination Date," in which case the date of
termination set forth in such notice shall govern.
3. In all other respects the Umbrella Agreement is hereby ratified and
confirmed.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their duly authorized officers as of the date first above written.
WITNESS: BANK OF AMERICA N.A.
/s/ [Illegible] By: /s/ Xxxxx Xxxxxx
-------------------- ----------------------
Its: SVP
THE FIRST MARBLEHEAD
CORPORATION
/s/ [Illegible] By: /s/ Xxxxx Xxxxx
-------------------- ----------------------
Its: President
THE NATIONAL COLLEGIATE
TRUST
/s/ [Illegible] By: /s/ [Illegible]
-------------------- ----------------------
Its:
2
