EXHIBIT 10.7
FOURTH AMENDMENT TO PROGRAM AGREEMENTS (BAGEL)
This Fourth Amendment to Program Agreements ("Fourth Amendment") amends the
Program Agreements, as defined below, entered into by and among Bank of America,
National Association ("Program Lender"), The First Marblehead Corporation
("FMC"), The Education Resources Institute, Inc. ("▇▇▇▇"), and U.S. Bank,
National Association ("U.S. Bank"). This Fourth Amendment is dated as of July 1,
2003, and shall be effective for each of the Bank of America GATE Education Loan
Programs and Bank of America ▇▇▇▇ Programs on a date set by ▇▇▇▇ by notice
delivered to Program Lender as soon as reasonably possible.
DEFINITIONS
"Bank of America GATE Education Loan Programs" has the meaning assigned in the
Umbrella Agreement.
"Bank of America ▇▇▇▇ Programs" means the Bank of America ▇▇▇▇ Alternative Loan
Program (ALP), the Bank of America ▇▇▇▇ Professional Education Program (PEP),
and the Bank of America ▇▇▇▇ ISLP Program.
"Bank of America ▇▇▇▇ ISLP Program" means the Bank of America International
Student Loan Program Undergraduate and Graduate Loan Programs, the Bank of
America ISLP Medical Select Loan Program, the Bank of America ISLP Medical
Residency Loan Program, and the Bank of America ISLP Offshore Medical Loan
Program. It does not include the Bank of America ▇▇▇▇ ISLP CanHelp Program,
which is not covered by this Amendment.
"Deposit and Security Agreement" means that certain agreement bearing that name
entered into by and among Program Lender, FMC, ▇▇▇▇, and U.S. Bank dated as of
April 30, 2001, as amended.
"Guaranty Agreement" means that certain agreement bearing that name entered into
by and between Program Lender and ▇▇▇▇ dated as of April 30, 2001, as amended.
"Loan Origination Agreement" means that certain agreement bearing that name
entered into between Program Lender and ▇▇▇▇ dated as of April 30, 2001, as
amended.
"Note Purchase Agreement" means that certain agreement bearing that name by and
between FMC and Program Lender dated as of April 30, 2001, as amended.
"Old Core Guaranty Agreement" means that certain Guaranty Agreement entered into
by and between Program Lender and ▇▇▇▇ and dated as of February 1, 2000,
including all exhibits thereto and the Program Guidelines.
"Program Agreements" means the Umbrella Agreement, the Note Purchase Agreement,
the Guaranty Agreement, the Deposit and Security Agreement and the Loan
Origination Agreement,
all as heretofore amended, and including all Exhibits and Schedules thereto,
including, without limitation, the Program Guidelines.
"Umbrella Agreement" means the agreement bearing that name by and between FMC
and Program Lender dated as of April 30, 2001, as amended.
RECITALS
WHEREAS, pursuant to the terms of the Guaranty Agreement, ▇▇▇▇ provides
guaranties of education loans made by the Program Lender; and
WHEREAS, ▇▇▇▇ and Lender desire to adopt new pricing and program terms for the
Bank of America ▇▇▇▇ Programs and the Bank of America GATE Education Loan
Programs and to improve the customer service and pricing that they offer to
borrowers; and
WHEREAS, such improvements include offering risk-based pricing to borrowers for
some of the Bank of America ▇▇▇▇ Programs;
WHEREAS, as a loan guarantor, ▇▇▇▇ has established a program of risk-based
pricing based on tiered guaranty fees and/or tiered interest rates ("Risk-Based
Pricing"), which pricing is set forth on Exhibit A, that it believes correspond
with the actual risk of lending to borrowers with lesser creditworthiness;
WHEREAS, Program Lender desires to make use of the ▇▇▇▇ Risk-Based Pricing
system in order to increase overall approval rates and increase its business;
WHEREAS, Program Lender is free to set its prices to consumers at any level it
desires, free from constraint by ▇▇▇▇, so long as Lender pays ▇▇▇▇ the guaranty
fees required under the Guaranty Agreement and the Program Guidelines
incorporated therein; and
WHEREAS, the parties desire to supplement the Second Amendment to Program
Agreements (BAGEL), dated as of January 10, 2003, by extending it to cover and
apply to all Bank of America ▇▇▇▇ Program Loans for which ▇▇▇▇ received
applications on or after the effective date (May 22, 2002) of the First
Amendment to the Old Core Guaranty Agreement, which Amendment converted Bank of
America ▇▇▇▇ Program Loans from Prime-based to LIBOR-based interest rates.
NOW, THEREFORE, in consideration of the mutual promises contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties, it is hereby agreed as follows:
AMENDMENTS
1. UNDERWRITING GUIDELINES. Exhibit A to the Guaranty Agreement is hereby
replaced by:
A. For the Bank of America ▇▇▇▇ Programs other than the BANK of America
ISLP Programs, the ▇▇▇▇ Alternative Loan Program and Professional
Education Program Underwriting, Origination, and Loan Term Guidelines
attached hereto as Exhibit A1;
B. For the Bank of America ▇▇▇▇ ISLP Programs, the ISLP Loan Program
Underwriting, Origination, and Loan Term Guidelines (Undergraduate and
Graduate), and the ISLP Medical Programs Underwriting, Origination,
and Loan Term Guidelines for the ISLP Offshore Medical, Medical
Residency, and Medical Select Programs, all attached hereto as Exhibit
A2; and
C. For the Bank of America GATE Education Loan Programs, the Bank of
America GATE Education Loan Program Underwriting, Origination, and
Loan Term Guidelines attached hereto as Exhibit A3.
2. SERVICING GUIDELINES. Exhibit B to the Guaranty Agreement is hereby
replaced with the Servicing Guidelines for ▇▇▇▇ Loan Programs Serviced at
SLSC/GLC dated September 27, 2000, with an Addendum dated May 1, 2003.
3. GUARANTY FEES AND PRICING. ▇▇▇▇ and the Program Lender hereby amend and
restate Exhibit K to the Guaranty Agreement by adopting the Schedule 3.3s
attached hereto as Exhibit K for the Bank of America GATE Education Loan
Programs and the Bank of America ▇▇▇▇ Programs. Each reference to Exhibit K in
the Guaranty Agreement is amended to read "Schedule 3.3." ▇▇▇▇ bases Risk Based
Pricing shown on Schedule 3.3 for the Bank of America ▇▇▇▇ Programs upon the
projected net cost of defaults, which ▇▇▇▇ believes provides business
justification for the pricing levels set forth in the risk-based pricing it has
offered to Lender. Any representation or warranty of compliance with federal or
state law made by ▇▇▇▇ in the Guaranty Agreement or the Loan Origination
Agreement that may relate to Risk Based Pricing does not extend beyond the
pricing actually included in Schedule 3.3 attached hereto.
4. PROMISSORY NOTES. Exhibit M to the Guaranty Agreement is hereby replaced
with the forms of Promissory Note attached hereto as Exhibits M1 (Bank of
America GATE Education Loan Programs), M2 (Bank of America ▇▇▇▇ Programs other
than the Bank of America ▇▇▇▇ ISLP Program), and M3 (Bank of America ▇▇▇▇ ISLP
Program).
5. COVERED LOANS. The parties agree that, notwithstanding the Crossover Date
in the Second Amendment to Program Agreements (BAGEL), dated as of January 10,
2003, the Guaranty Agreement shall cover and apply to all Bank of America ▇▇▇▇
Program Loans for which ▇▇▇▇ received applications on or after the effective
date (May 22, 2002) of the First Amendment to the Old Core Guaranty Agreement
(each such Loan, an "Affected Loan"). Accordingly, (a) each Affected Loan is
eligible for purchase under the terms and conditions of the Note Purchase
Agreement, as amended, and (b) Guaranty Fees for each Affected Loan shall be
subject to the Deposit and Security Agreement and deposited in the Pledged
Account (as defined in the Guaranty Agreement) by ▇▇▇▇ within ten (10) days
after the date hereof.
6. FULL FORCE AND EFFECT. In all other respects, the Program Agreements, as
previously amended, are 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 as of the date above first written.
THE EDUCATION RESOURCES INSTITUTE, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
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Its: President
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Its: Senior Vice President
THE FIRST MARBLEHEAD CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Its: President
TABLE OF EXHIBITS
NOTE: First Marblehead Corporation is not a party to any of the following
exhibits and/or schedules. Pursuant to Item 601 of Regulation S-K, such
exhibits and schedules are not being filed herewith.
EXHIBIT A: Underwriting Guidelines
1. ▇▇▇▇ Alternative Loan Program and Professional Education Program
Underwriting, Origination, and Loan Term Guidelines
2. ISLP Loan Program Underwriting, Origination, and Loan Term
Guidelines (Undergraduate and Graduate), the ISLP Offshore
Medical Underwriting, Origination, and Loan Term Guidelines, and
the ISLP Medical Select Underwriting, Origination, and Loan Term
Guidelines
3. Bank of America GATE Education Loan Program Underwriting,
Origination, and Loan Term Guidelines
EXHIBIT B: Servicing Guidelines for ▇▇▇▇ Loan Programs Serviced at SLSC/GLC
dated September 27, 2000, with an Addendum dated May 1, 2003
EXHIBIT K: Guaranty Fees and Loan Pricing
1. Schedule 3.3 for Bank of America GATE Education Loan Programs
2. Schedule 3.3 for Bank of America ▇▇▇▇ Programs other than the
Bank of America ▇▇▇▇ ISLP Program
3. Schedule 3.3 for the Bank of America ▇▇▇▇ ISLP Program
EXHIBIT M: Promissory Notes
1. Promissory Notes for Bank of America GATE Education Loan Programs
2. Promissory Notes for Bank of America ▇▇▇▇ Programs other than the
Bank of America ▇▇▇▇ ISLP Program
3. Promissory Notes for Bank of America ▇▇▇▇ ISLP Program
