EXHIBIT 10.9
AMENDMENT TO
GUARANTY AGREEMENT, LOAN ORIGINATION AGREEMENT AND
DEPOSIT AND SECURITY AGREEMENT
BANK OF AMERICA GATE EDUCATION LOAN PROGRAM
This Amendment ("Amendment") is by and among The Education Resources
Institute ("XXXX"), a private non-profit corporation organized under Chapter 180
of the Massachusetts General Laws with its principal place of business at 000
Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Bank of America, N.A. ("Program
Lender"), a national banking association organized under the laws of the United
States and having a place of business located at 000 Xxxxxxxx Xxxx., Xxx
Xxxxxxx, XX 00000, The First Marblehead Corporation ("FMC"), a corporation
organized under the General Corporation Law of the State of Delaware with its
principal place of business at 00 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx
00000, and State Street Bank And Trust Company, a trust company organized under
the laws of the Commonwealth of Massachusetts ("State Street") and is dated as
of May 1, 2001. FMC and State Street join this Amendment solely for purposes of
Section 3 hereof. This Amendment amends (1) the Guaranty Agreement by and
between XXXX and Program Lender, dated as of April 30, 2001 ("Guaranty
Agreement"); (2) The Loan Origination Agreement by and between XXXX and Program
Lender dated as of May 1, 2001 ("Loan Origination Agreement"), and (3) the
Deposit and Security Agreement by and among XXXX, FMC, Program Lender, and State
Street dated as of April 30, 2001 ("Deposit and Security Agreement").
Capitalized terms not otherwise defined herein have the meanings assigned to
them in the Old Umbrella Agreement and the Old Note Purchase Agreement (as those
terms are defined below).
WHEREAS Program Lender and FMC entered into an Umbrella Agreement dated as
of April 3, 2000 ("Old Umbrella Agreement"), in which Program Lender agreed to
originate GATE Conforming Family Loans (including prepGATE Family Loans) and
serve as a primary lending institution participating in the prepGATE Family Loan
Program; and
WHEREAS Program Lender and FMC entered into a Note Purchase Agreement dated
April 3, 2000 ("Old Note Purchase Agreement"), in which Program Lender agreed to
sell, from time to time, pools containing GATE Conforming Family Loans
(including prepGATE Family Loans) originated by Program Lender to FMC or a
Purchaser Trust; and
WHEREAS prepGATE Family Loans originated under the Old Umbrella Agreement
and purchased under the Old Note Purchase Agreement were originated and
underwritten by the Pennsylvania Higher Education Assistance Agency ("PHEAA")
pursuant to an Origination and Disbursement Services Agreement between Program
Lender and PHEAA dated __________________("Old Origination Agreement") and
serviced by PHEAA pursuant to a Servicing Agreement between Program Lender and
PHEAA dated April 8, 2000 (as amended) ("Old Servicing Agreement"); and
WHEREAS Program Lender and FMC entered an Umbrella Agreement and a Note
Purchase Agreement both dated as of April 30, 2001 (respectively, the "New
Umbrella Agreement" and the "New Note Purchase Agreement") which, as of May 1,
2001, superseded: (a) the Old Umbrella Agreement in the origination, including
underwriting and disbursement, of GATE Family Loan Program Loans (including
prepGATE Loans) and (b) the Old Note Purchase Agreement in the sale of pools of
GATE Conforming Family Loans (including prepGATE Family Loans); and
WHEREAS GATE Family Loan Program Loans (including prepGATE Loans)
originated and sold under the New Umbrella Agreement and the New Note Purchase
Agreement are originated by XXXX pursuant to the Loan Origination Agreement, and
are covered by a guaranty issued by XXXX pursuant to the Guaranty Agreement; and
WHEREAS it is the intention of the parties that prepGATE Loans originated
by PHEAA after May 1, 2001 and made to parents of students attending schools
owned or operated by CEDUFamily of Services of Idaho, Inc., ("CEDU") (such loans
being referred to herein as "CEDU prepGATE Loans"), have been and will be
originated under the Old Origination Agreement, serviced under the Old Servicing
Agreement, and purchased under the Old Note Purchase Agreement, all as set forth
in an Extension Agreement by and between FMC and Program Lender of even date
herewith, but will also be covered by the Guaranty Agreement; and
WHEREAS nothing herein is intended to change the legal status or agreements
affecting loans to parents of CEDU students that have been or will be originated
by XXXX under the Loan Origination Agreement ("BAGEL CEDU Loans"); and
WHEREAS the parties wish to amend the Guaranty Agreement, Loan Origination
Agreement, and Deposit and Security Agreement to reflect the treatment of CEDU
prepGATE Loans as set forth above;
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:
1. GUARANTY AGREEMENT. XXXX and Program Lender agree that in the Guaranty
Agreement:
(a) The definition of "Loan" includes CEDU prepGATE Loans.
(b) The definition of "Program Guidelines" means, only with respect to
CEDU prepGATE Loans, the prepGATE Family Loan Product Specifications,
2000 Revised Edition, dated as of July 25, 2000 effective August 1,
2000, attached hereto as Exhibit A ("CEDU Product
2
Specifications"); provided, however, that Schedule 2 of such prepGATE
Family Loan Product Specifications shall not apply and in lieu thereof
the Servicing Guidelines for XXXX Loan Programs serviced by SLSC,
revised September 27, 2000, attached to the Guaranty Agreement as
Exhibit B, shall apply.
(c) Any references to promissory notes, loan applications, and forms of
disclosure shall, with respect to CEDU prepGATE Loans, mean and refer
to the documents included in the CEDU Product Specifications.
(d) Exhibit K to the Guaranty Agreement is amended by adding the
information set forth on Exhibits K-1 and K-2 attached hereto to
establish pricing for CEDU prepGATE Loans. The pricing on exhibit K-1
shall apply to CEDU prepGATE Loans originated on or after the date of
the Guaranty Agreement and prior to the effective date of a certain
Amendment to Program Agreements amongst FMC, XXXX and Program Lender
that adopts revised Program Guidelines for the 2002-2003 academic year
(the 2002 Effective Date"). Exhibit K-2 shall apply to loans
originated on or after the 2002 Effective Date.
2. LOAN ORIGINATION AGREEMENT. The terms "Loan" and "Program" in the Loan
Origination Agreement do not include CEDU prepGATE Loans, and the Loan
Origination Agreement shall not apply to such loans.
3. DEPOSIT AND SECURITY AGREEMENT. The term "Guaranty Fees" in the Deposit and
Security Agreement includes all Guaranty Fees paid to XXXX under the
Guaranty Agreement with respect to CEDU prepGATE Loans, as set forth in
this Amendment.
4. CONCURRENT PROGRAMS. The parties intend that CEDU prepGATE Loans and BAGEL
CEDU Loans shall both be available to parents of CEDU students, as they
provide alternative pricing desired by CEDU. An application from a CEDU
parent shall be treated as either a CEDU prepGATE Loan or a BAGEL CEDU Loan
depending upon where the application is received. An application received
at PHEAA (by mail, telephone, or website visit) will result in a CEDU
prepGATE Loan. An application received at XXXX (by mail, telephone, or
website visit) will result in a BAGEL CEDU Loan.
5. PAYMENT OF GUARANTY FEES. To the extent it has not already done so, Program
Lender shall remit to XXXX and State Street, as described in Exhibit K the
guaranty fees set forth in Columns 4 & 5 of Exhibit K, as amended hereby,
within thirty days after Program Lender's execution hereof, and such
remittance shall be deemed to be timely payment for all purposes under the
Guaranty Agreement.
3
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their respective officers, being first duly authorized, as of the day and
year first above written.
BANK OF AMERICA, N.A.
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
-------------------------------
Title: SVP
------------------------------
THE EDUCATION RESOURCES INSTITUTE, INC.
By: /s/ Xxx Xxxxx
---------------------------------
Name: Xxx Xxxxx
-------------------------------
Title: Acting President
------------------------------
THE FIRST MARBLEHEAD CORPORATION
By: /s/ Xxxxx Xxxxx
---------------------------------
Name: Xxxxx Xxxxx
-------------------------------
Title: President
-------------------------------
STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
-------------------------------
Title: Vice President
------------------------------
4
EXHIBITS
NOTE: First Marblehead Corporation is not a party to the following Exhibits K-1
and/or K-2. Pursuant to Item 601 of Regulation S-K, such exhibits are not
being filed herewith.
EXHIBIT K-1 TO GUARANTY AGREEMENT BETWEEN XXXX AND BANK OF AMERICA
EXHIBIT K-2 TO GUARANTY AGREEMENT BETWEEN XXXX AND BANK OF AMERICA
5
