Exhibit 10.6
AGREEMENT TO GUARANTEE LOANS
This Agreement is entered into as of the 22nd day of FEBRUARY, 2002, by and
between UNITED STUDENT AID FUNDS, INC., a private, nonprofit corporation
organized under the General Corporation Law of the State of Delaware ("USA
Funds") and
FIRST NATIONAL BANK AS ELT FOR EDUCATIONAL LOANS, INC.
("Lender").
WITNESSETH:
WHEREAS, USA Funds qualifies as a "guaranty agency" under the Act and has
entered into agreements with the U.S. Secretary of Education pursuant to the
Act;
WHEREAS, the Lender qualifies as an "eligible lender" under the Act and has full
legal power and authority to engage in the transactions contemplated by this
Agreement; and
WHEREAS, USA Funds is desirous of making its Loan Program and related services
available to the Lender, subject to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the initial Loan that the Lender makes,
causes to be made or acquires, and in further consideration of the foregoing
premises and the mutual covenants contained in this Agreement, and of other good
and valuable consideration, the receipt of which is hereby acknowledged, USA
Funds and the Lender agree as follows:
I. DEFINITIONS
Any definition contained in this Agreement that also has a definition, meaning
or explanation contained in the Act shall be deemed to be automatically modified
to incorporate the Act's definition, meaning or explanation. In the event of any
conflict, the definition contained in the Act shall control.
"Act" means Title IV of the Higher Education Act of 1965 (20 U.S.C.(S)1071 et
seq.), as amended and in effect from time to time, or any successor enactment
thereto, and the effective regulations promulgated thereunder and any binding
directives issued by the U.S. Department of Education.
"Borrower" means an individual who is the maker, endorser or cosigner of a Note
and who obtains a Loan from the Lender in accordance with the Act and the Loan
Program.
"Default" means with respect to any Note, the occurrence of any event that
constitutes a default under the terms of the Act.
"Deferment" means the period defined by the Act and Policies during which a
Borrower is not required to pay principal and/or interest on a Loan in
Repayment.
"Educational Institution" means any institution of post-secondary education that
is an "eligible institution" under the Act and is eligible under the Loan
Program.
"Forbearance" means the time period during which a Borrower with a Loan in
Repayment is permitted under the Act and the Policies to temporarily forego
making full payments on the Loan.
"Guarantee" means a commitment by USA Funds to pay the Lender a percentage of
the unpaid principal balance plus accrued unpaid interest of a Loan upon
submission by the Lender of a valid claim and supporting documentation in
accordance with the Act, the Loan Program, and the Policies.
"Guarantee Fee" means a charge based upon the principal Loan amount, which
charge is collected from the Lender by USA Funds. The Lender may cause this
charge, or a portion thereof, to be passed on to the Borrower.
"Guarantee Reserve" means an account established under Section 422A of the Act
and maintained by USA Funds for the Guarantee of Loans and payment of claims in
accordance with the terms of this Agreement.
"Loan" means a disbursement(s) of money; contingent upon an agreement to repay
made to or on behalf of an eligible student pursuant to the Act, the Loan
Program, and the Policies.
"Loan Application" means Borrower and/or Educational Institution certification
and/or student data required to be collected for making a Loan whether or not
the application is finally determined to be eligible for guarantee under the Act
and whether or not the Loan is ultimately made. The Loan Application must be in
a form approved by the U.S. Department of Education and USA Funds.
"Loan Program" means the procedures and policies for implementing and
maintaining a Loan Guarantee under the provisions of the Act, Policies,
applicable law, and regulations and as otherwise agreed to in writing by and
between the Lender and USA Funds.
"Note" means a promissory note of a Borrower for a Loan set forth upon the
appropriate form approved by USA Funds, which note meets the criteria set forth
by the Act and the Policies.
"Policies" mean the policies adopted and issued in writing by USA Funds
describing the administration of the Loan Program, including any subsequently
issued written notices.
"Repayment" means the period of time during which a Borrower is required under
the Note and Policies to make installment payments to repay the aggregate
principal amount plus accrued interest of all amounts borrowed by virtue of the
Note(s) executed by such Borrower, unless the Loan is in Deferment or
Forbearance.
"Special Allowance" means those sums that are payable by the U.S. Department of
Education to the Lender under the Act.
"Student" means an "eligible student" as described in the Act.
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II. GUARANTEE OF ELIGIBLE LOANS
A. Guarantee. By this Agreement, USA Funds and the Lender hereby agree to
participate in the Loan Program as follows:
1. The Lender agrees to make or acquire Loans under this Agreement or cause
Loans to be made or acquired under this Agreement, only to eligible Borrowers
pursuant to the terms of the Loan Program;
2. USA Funds agrees to Guarantee Loans originated and maintained in accordance
with the terms of the Loan Program;
3. USA Funds agrees to provide certain administrative services in connection
with each Loan Guarantee as required by the Loan Program and the Act;
4. USA Funds will Guarantee each Loan made to a Borrower by the Lender pursuant
to this Agreement provided the Lender is current in its payment of the Guarantee
Fee billings;
5. USA Funds shall not be obligated to Guarantee any Loan if (a) such Guarantee
would cause the aggregate amount of the unpaid principal and interest of all
Notes to exceed the Guarantee capacity of USA Funds for the Loan Program or the
Educational Institution allocation for which the Guarantee is to be issued, or
(b) the procedures and requirements of the Act and other applicable laws and
regulations, this Agreement, or the Policies have not complied with in the
respect to such Loan;
6. The Guarantee Reserve of USA Funds will be held, maintained, and invested
solely in accordance with the prevailing standards of prudent management in the
disposition of funds required of fiduciaries by Title 12, Section 3302 of the
Delaware Code of 1953, as amended; and
7. Lender consents to the management of the Guarantee Reserve pursuant to the
investment policies and procedures adopted by USA Funds from time-to-time.
B. Loan Restriction. USA Funds shall only be obligated to Guarantee Loans
originated on behalf of Students attending Educational Institutions.
C. Administrative Services. Administrative services that USA Funds shall provide
for the Lender under the Loan Program in accordance with this Agreement and the
Policies are as follows:
1. Processing Loan Applications to determine if such Loan Applications are
eligible for Guarantee;
2. Issuing Notice of Loan Guarantee;
3. Recording Borrower status from time to time as reported by the Lender and
Educational Institutions;
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4. Providing certain management and information reports for the Lender and
Educational Institutions; and
5. Providing default prevention and claims processing.
D. Lender Duties. The Lender agrees, with respect of all Loans made or acquired
by it under the Loan Program of USA Funds and all Notes Guaranteed by USA Funds
held or acquired by the Lender from time to time, it will:
1. Comply with the Act;
2. Cause reasonable care and diligence to be exercised in the making, servicing
and collection of Loans, in accordance with the terms of the Loan Program, this
Agreement and as prescribed in the Policies;
3. Use the Loan Application, Note and such other forms as required under the Act
or as otherwise approved by the U.S. Department of Education;
4. Cause a Guarantee Fee to be paid to USA Funds in accordance with the terms of
the Loan Program and this Agreement;
5. Comply with all procedures, policies and conditions on its part to be
performed as set forth in this Agreement and the Policies; except when the
provisions of this Agreement or the Policies are inconsistent with the Act, in
which case the Act is controlling;
6. Comply with all Federal and state laws and regulations applicable to the Loan
Program, including but not limited to applicable portions of the Federal Fair
Credit Reporting Act and the Equal Credit Opportunity Act; and
7. Promptly provide to USA Funds such information and reports as may from time
to time be reasonably requested by USA Funds.
8. If the Lender is an insurance company, then the Lender will, at all times, do
and perform all acts and things within its ability necessary or desirable in
order to assure that no misleading "product connection" is established between
any insurance policy written or used by the Lender and any Loan Guaranteed by
USA Funds on its behalf pursuant to this Agreement, and that no reference to any
such Loan is included in any such policy, application for insurance, or
marketing materials.
9. It the Lender is an Educational Institution, then the Lender shall not make
Loans to Students who are in attendance at an Educational Institution other than
the Lender.
E. Disbursement Requirements. The Lender shall cause all Loan disbursements to
be made by check or draft requiring the personal endorsement of the Borrower or
by electronic funds transfer or master check. Except as expressly provided in
the Act, the Lender will not accept authorization of anyone, even by power of
attorney, to endorse a check or draft on behalf of the Borrower. The Lender
shall cause the Loan to be disbursed jointly to the Borrower and the Educational
Institution if so required by the terms of the Loan Program. Notwithstanding 34
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C.F.R.(S)682.414(a)(4)(iii) or its successor, Lender shall retain proof of
disbursement for not less than ten (10) years following the date USA Funds, or
its agents, pays a Default claim.
F. Extended Maturity Date. In accordance with the Act, USA Funds will continue
its Guarantee of a Loan if an extension of the maturity date is required as a
result of the Borrower's eligibility under the Act for a Deferment or
Forbearance or as a result of the selection of an extended Repayment schedule;
provided, however, that such continuance of USA Funds' Guarantee of a Loan shall
be only for so long as an extension of the maturity date is in accordance with
the Act and the Loan Program.
G. Excess Special Allowance. The Lender will, pursuant to the direction of USA
Funds, repay or cause the repayment of any Special Allowance received by the
Lender under the Act to which the Lender is not rightfully entitled.
H. Guarantee Transfer. Subject to the prior written approval of the Lender if a
claim has not been paid, which approval shall not be unreasonably withheld, USA
Funds may transfer the Guarantee of Loans to a guarantor that has acknowledged
in writing its intent to accept such transfer. The Lender may withhold consent
if the Lender does not have a guarantee agreement with the guarantor to which
the Loans are to be transferred.
I. Claim Processing. By this Agreement, USA Funds and the Lender agree that upon
the filing of a claim by the Lender, such claim will be processed in the
following manner:
1. In the event of a Default, the Lender will follow (or cause to be followed)
the procedures set forth in the Policies. USA Funds does not guarantee payment
by the Borrower of any delinquency charges imposed for late payments and will
not accept a Default claim based solely on non-payment of such charges. Upon
receipt by USA Funds from the Lender (or servicer) of a Default notice together
with an original or certified copy of the Note assigned to USA Funds, and
documentation as set forth in the Policies that the Loan evidenced by such Note
was originated and serviced, and collection efforts were made, in accordance
with applicable laws and regulations and with the Policies, USA Funds will pay
to the Lender the maximum percentage of the unpaid balance of principal and
interest due on- such Loan allowable under the terms of the Act and the Policies
(other than any portion of such interest payable by the U.S. Department of
Education under the Act), provided the Lender (or servicer) has complied in all
material respects with the requirements of the Loan Program, this Agreement, and
the Policies in respect of such Note. USA Funds will thereupon succeed to all
the rights of the Lender under such Loan. No claim submitted to USA Funds by the
Lender (or loan servicer) with respect to a Loan that has been Guaranteed by USA
Funds will be paid by USA Funds unless USA Funds has received from the Lender
(or loan servicer) the appropriate documentation; and
2. Upon bankruptcy, death, or permanent and total disability, as defined in the
Act, of the Borrower or other circumstances under the Act provides for
guarantors to pay claims to lenders (e.g., closed school or false
certification), USA Funds will pay to the Lender the maximum percentage of the
unpaid balance of principal and interest due on such Loan allowable under the
terms of the Act and the Policies (other than any portion of such interest
payable by the U.S. Department of Education under the Act), provided the Lender
(or loan servicer) has complied in all material respects with the requirements
of the Loan Program, this Agreement and the Policies.
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J. No Required Minimum. Nothing contained in this Agreement shall obligate the
Lender to make, certify, cause to certify or acquire any particular Loan or
number of Loans under this Loan Program or restrict the number or amount of
loans made under other programs.
K. Examination. The Lender will permit the U.S. Department of Education or USA
Funds or both to examine during normal business hours all Loan records and
files, upon reasonable notice and at reasonable intervals, for the purpose of
verifying the accuracy of information provided by the Lender under the Act and
the Policies and in order to conduct an audit and compliance review.
L. Guarantee Fee.
1. As partial payment for the administrative services provided by USA Funds for
the Lender and in order for USA Funds to maintain a Guarantee Reserve sufficient
to Guarantee Loans in accordance with this Agreement, USA Funds may charge to
the Lender a Guarantee Fee, which fee shall not exceed the amount allowable
under the Act.
2. The Lender shall be billed monthly by USA Funds with an itemized statement
listing each Loan Application Guaranteed and the Guarantee Fee. USA Funds will
automatically place the Lender on the Guarantee billing system. The Lender must
pay any Guarantee Fee due within thirty (30) days of billing. The Lender will be
charged interest at the rate of one percent (1%) per month for past due amounts.
If the Guarantee Fee for a Loan is not paid within one hundred twenty (120)
calendar days from the date the itemized statement is sent to the Lender, the
Guarantee on that Loan will be canceled.
III. REPRESENTATIONS, WARRANTIES AND COVENANTS
A. Lender. If the Lender is making Loans under the Act, the Lender represents
and warrants to USA Funds, and covenants that:
1. Lender is duly authorized to do business in every state in which it is doing
business as well as the state in which it is organized and incorporated (if a
corporation), and has authorized the execution and delivery of this Agreement;
2. Lender has full legal power and authority to consummate all transactions
contemplated by this Agreement and any and all other agreements relating hereto;
3. Lender is and will continue to qualify and participate at all times during
the term of this Agreement as an "eligible lender" under the Act;
4. No action or proceeding is pending or threatened against the Lender before
any court or administrative agency which might have a material adverse effect on
the ability of the Lender to perform its obligations under this Agreement;
5. Lender has taken all necessary action, including, without limitation,
obtaining any and all consents or approvals of Federal or state banking or
regulatory authorities, required to authorize the execution and performance of
this Agreement; and
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6. Lender will, at all times, conform its actions, policies and procedures to
the Act, this Agreement and all applicable Federal and state laws and
regulations.
B. USA Funds. USA Funds represents, warrants and covenants that:
1. USA Funds is duly authorized to do business in every state in which it is
doing business and has authorized the execution and delivery of this Agreement;
2. USA Funds has full legal power and authority to consummate all transactions
contemplated by this Agreement and any other agreements relating hereto;
3. No action or proceeding is pending or threatened against USA Funds before any
court or administrative agency which might have a material adverse effect on the
ability of USA Funds to perform its obligations under this Agreement;
4. USA Funds has taken all necessary action, including, without limitation,
obtaining any and all consents or approvals of Federal or state banking or
regulatory authorities, required to authorize the execution and performance of
this Agreement; and
5. USA Funds will, at all times, conform its actions, policies and procedures to
the Act, this Agreement and all applicable Federal and state laws and
regulations.
IV. TERM AND TERMINATION
A. This Agreement is effective as of the date shown on the first page, and it
will continue in effect until termination by one of the parties.
B. Except with respect to Loans that have been Guaranteed by USA Funds and
continue to be outstanding under this Agreement, this Agreement may be
terminated by either party, with or without cause, upon not less than ninety
(90) calendar days written notice to the other party. Such termination will not
affect any letters of understanding, or obligations that are outstanding or
duties of the parties hereunder for commitments, letters, or obligations entered
into or made prior to the effective date of the termination notice.
V. LIMITATION OF LIABILITY AND INDEMNIFICATION
A. If either party violates or fails to comply with any applicable law or
government regulations in respect of a Loan or the Loan Program, then such party
agrees to assume liability for, and does hereby indemnify, protect, and keep
harmless the other party, its successors and assigns, from and against, any and
all liabilities, losses, and claims, imposed on, incurred by, or asserted
against such other party, relating to or arising out of such violation or
failure to comply, regardless of whether USA Funds purchased such Loan from the
Lender.
B. Neither party shall be liable to the other party for any punitive, incidental
or consequential damages (including but not limited to lost profits, lost
revenue, or failure to realize expected savings) regardless of the form of the
action and whether such damages are foreseeable. The exclusion of such damages
shall be deemed independent of, and shall survive, any failure of the essential
purpose of any limited remedy.
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C. In the event the U.S. Department of Education or USA Funds determines that
any or all of the Loans of a Borrower are not reinsured or guaranteed because of
insufficient documentation or alteration of the documentation; or a Borrower
challenges, in court, collection on the Loans and USA Funds determines, in its
sole discretion, that there is insufficient documentation to enforce the Loans,
the Lender will indemnify USA Funds for the amount of the claim of the Loans
plus any costs incurred subsequent to the claim purchase. In addition, as a
consequence of any Loans being deemed unenforceable as a result of lost or
altered Notes, the Lender will repay any interest benefits or Special Allowances
it had received on the Loans. The Lender expressly agrees to indemnify and hold
harmless USA Funds from any loss, damage, or expenses, including attorney's
fees, arising from Lender's inability to produce the Notes.
VII. MISCELLANEOUS
A. Assignment/Subcontract. This Agreement will inure to the benefit of and be
binding upon the parties and their respective successors and permitted assigns;
provided, however, that:
1. This Agreement may not be assigned in whole or in part by USA Funds without
the prior express written consent of Lender, which consent will not be
unreasonably withheld or delayed; provided, however, that USA Funds shall have
the right without the consent of Lender to subcontract its obligations to any
person.
2. Lender shall not assign any rights or obligations under the Agreement in
whole or in part without the prior express written consent of USA Funds, which
consent will not be unreasonably withheld or delayed.
B. Amendment. Except as otherwise provided in this Agreement, this Agreement may
not be varied by oral agreement, but only as agreed to in writing by all
parties.
C. Waiver of Rights. No failure by any party to exercise, or any delay in
exercising, and no course of dealing with respect to any right of such party or
any obligation of any other party under this Agreement will operate as a waiver,
unless, and only to the extent, agreed to in writing by all parties. Any single
or partial waiver by any party of any obligation of any other party under this
Agreement will constitute a waiver of such obligation only as specified in such
waiver and will not constitute a waiver of any other obligation. D. Cumulative
Remedies. Except as otherwise provided in this Agreement, no remedy by the terms
of this Agreement conferred upon or reserved to a party is intended to be
exclusive of any other remedy, but each and every such remedy shall be
cumulative and in addition to every other remedy given under this Agreement or
existing at law or in equity or by statute on or after the date of this
Agreement including, without limitation, the right to such equitable relief by
way of injunction to prevent the breach or threatened breach of any of the
provisions of this Agreement or to enforce the performance.
E. Severability. Any provision of this Agreement that is held to be prohibited,
unenforceable, or not authorized by any court of competent jurisdiction will, as
to such jurisdiction, be ineffective to the extent of such prohibition,
unenforceability, or non-authorization without invalidating the remaining
provisions or affecting the validity, enforceability, or legality of such
provision in any other jurisdiction.
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F. Governing Law; Entire Agreement. Except to the extent that this Agreement may
be governed by Federal law, this Agreement is governed by, interpreted,
construed and enforced in accordance with the laws of the State of Indiana,
without reference to its principles of conflict of laws. This Agreement
constitutes the entire agreement between the parties and supersedes any and all
prior agreements, written or oral, not incorporated herein, with respect to the
subject matter of this Agreement. All prior writings, correspondence, memoranda,
agreements, representations, statements, warranties, covenants, negotiations,
and undertakings, express or implied, of any kind or character whatsoever with
respect to the subject matter of this Agreement are superseded.
G. Notices. Any notice required or permitted by this Agreement shall be in
writing and shall be deemed to have been given if sent by first class mail,
overnight carrier, facsimile, or personal delivery, addressed (i) if to USA
Funds, to the attention of General Counsel, Legal Division, at 00 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, (ii) if to the Lender, at the address
indicated in this Agreement, or (iii) at such other address as the party to be
notified has designated upon reasonable notice. Notices made pursuant to this
paragraph by facsimile, overnight carrier, or personal delivery will be deemed
to be effective upon receipt. Notices made pursuant to this paragraph by first
class mail will be deemed to be effective no later than the fifth (5th) business
day following the mailing of such notice.
H. Confidential/Proprietary Materials. The terms and conditions of this
Agreement shall be considered confidential. All materials, procedures, written
instruments, files, and records developed by either party specifically pursuant
to this Agreement are and shall be treated as proprietary in nature. Each party
to this Agreement has developed or may develop materials, procedures, written
instruments, files, or records, which may be similar to those involved in this
Agreement. Neither party to this Agreement shall have or acquire any proprietary
or any other right whatsoever in any such materials, procedures, written
instruments, files, or records developed by the other party. Neither party to
this Agreement may benefit from, deal-in, sell, license, publish, use, or
otherwise exploit for any purpose those materials, procedures, written
instruments, files, or records developed by the other party except as expressly
provided in this Agreement. This Agreement shall not in any way restrict the
right of each party, for its own exclusive benefit, to deal in, sell, license,
publish, use, or otherwise exploit for all purposes those materials, procedures,
written instruments, files, or records developed by it.
I. Execution. This Agreement will not be binding on either party until it has
been executed and delivered by both parties. This Agreement may be executed in
any number of counterparts, each of which shall be an original, but which
together constitutes one and the same instrument_ Delivery may be by facsimile.
J. Interpretation of Agreement. In this Agreement unless the context otherwise
requires: any headings preceding the texts of the several articles and sections
of this Agreement, and any table of contents or marginal notes appending to
copies, shall be solely for convenience of reference and shall not constitute a
part of this Agreement, nor shall they affect its meaning, construction or
effect. The parties agree that each party and its counsel review this Agreement
and that this Agreement shall be construed as a whole according to its fair
meaning and not strictly for or against a party.
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K. Independent Parties. The parties agree that no legal relationship of any kind
exists as a result of this Agreement, other than the covenants expressly
contained herein. This Agreement shall not constitute, create, give effect to or
otherwise imply a joint venture, partnership or business organization of any
kind. The parties to this Agreement are independent parties and the personnel of
one party shall not be deemed the personnel of the other. Nothing in this
Agreement shall grant to either party any right to make commitments of any kind
or to create any obligation for or on behalf of the other without the prior
written consent of the other party, except to the extent stated herein.
L. Force Majeure. If a party is delayed from completing performance of any or
all of its obligations under this Agreement by an act of God or any other
occurrence beyond its reasonable control, then performance shall be excused for
as long as it is reasonably necessary to complete performance.
M. Litigation Costs and Attorney Fees. If any action, at law or equity,
including an action for declaratory relief, is brought to enforce or interpret
this Agreement, then the prevailing party shall be entitled to recover its
reasonable costs, expenses, and attorneys' fees from the other party, in
addition to any other relief that may be awarded.
N. Resolution of Disputes. In the event of any dispute or disagreement between
the parties hereto, either with respect to the interpretation of any provision
of this Agreement or with respect to the performance hereunder, each of the
parties will appoint a designated officer or agent to meet for the purpose of
endeavoring to resolve such dispute or to negotiate for an adjustment to such
provision. Except in the case of good faith belief that the applicable statute
of limitation may run within such period, no formal proceedings for the judicial
resolution of such dispute may be commenced until the designated officers or
agents have reasonably discussed the provision or performance in question and
have concluded in good faith that amicable resolution through continued
negotiation of the matter at issue does not appear likely.
O. Mitigation of Liability. Either party shall have the right to mitigate its
liability under this Agreement by taking such actions as may be appropriate.
IN WITNESS WHEREOF, United Student Aid Funds, Inc. and the Lender have each
caused this Agreement to Guarantee Loans to be executed by their respective
authorized officers and to take effect on the date first above written.
FIRST NATIONAL BANK AS ELT FOR UNITED STUDENT AID FUNDS, INC.
EDUCATIONAL LOANS, INC.
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxx Xxxxxx
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Authorized Signature Authorized Signature
XXXXXX XXXXXX, CORPORATE TRUST OFFICER XXX XXXXXX, VICE PRESIDENT
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Printed Name, Title Printed Name, Title
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000 X XXXX XXX; XX XXX 0000
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Xxxxxxx
Xxxxx Xxxxx, XX 00000-0000
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City, State, Zip
00-0000000
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Federal Identification Number
833405
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ED Lender Code Number
11
