# **Exhibit 10.1**

 

Confidential Materialsomitted and filed separately with the Securities and Exchange Commission. Asterisks denote omissions.

 

 

ELEVENTH AMENDMENT TOGATE STUDENT UMBRELLA AGREEMENT

and

SECOND AMENDMENT TO GATEUNIVERSAL UMBRELLA AGREEMENT

 

This Eleventh Amendment to GATE Student UmbrellaAgreement and Second Amendment to GATE Universal Umbrella Agreement (this “Amendment”)is entered into this 29th day of November, 2005, by and among Bank of America,National Association, a national banking association (“Program Lender”), TheFirst Marblehead Corporation, a Delaware corporation (“Marblehead”), and TheNational Collegiate Trust, a Delaware business trust (“NCT”).  Capitalized terms used herein withoutdefinition have the meanings given to them in the GATE Student UmbrellaAgreement (as defined below) or the GATE Universal Umbrella Agreement (asdefined below), as applicable.

 

WITNESSETH

 

WHEREAS, the parties hereto have previously enteredinto that certain GATE Student Loan Program Umbrella Agreement, dated as ofJune 1, 1996, (as amended to date, the “GATE Student Umbrella Agreement”);

 

WHEREAS, the parties hereto have previously enteredinto that certain GATE Universal Loan Program Umbrella Agreement, dated as ofMarch 7, 2003, (as amended to date, the “GATE Universal Umbrella Agreement”;and together with the GATE Student Umbrella Agreement, the “Umbrella Agreements”);and

 

WHEREAS, the parties hereto desire to further amendthe Umbrella Agreements in the manner provided herein.

 

NOW THEREFORE, in consideration of these presents andthe covenants contained herein, and other good and valuable consideration, thereceipt and sufficiency of which are hereby acknowledged, the parties heretohereby agree as follows:

 

1.             Extension ofUmbrella Agreements.

 

(a)           The GATEStudent Umbrella Agreement is hereby amended by:

 

(i)            deletingthe definition of Currently Scheduled Termination Date contained therein andinserting in lieu thereof the following:

 

“Currently ScheduledTermination Date” shall mean November 30, 2006, provided, however, that suchdate shall automatically be extended for an additional year on such date andeach anniversary thereof; provided further, however, that any party mayterminate this Agreement for its convenience, without cause, at any time uponat least ninety (90) calendar

 

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days prior written notice(any such termination, a “Without Cause Termination”); and provided further,however, that no party may provide written notice of termination at any timeprior to June 1, 2006.” and

 

(ii)           bydeleting subsections (b) and (h) from the definition of Termination Datecontained therein.

 

(b)           The GATEUniversal Umbrella Agreement is hereby amended by deleting the definition ofCurrently Scheduled Termination Date contained therein and inserting in lieuthereof the following:

 

“Currently Scheduled Termination Date” shall meanNovember 30, 2006, provided, however, that such date shall automatically beextended for an additional year on such date and each anniversary thereof;provided further, however, that any party may terminate this Agreement at itsconvenience, without cause, upon at least ninety (90) calendar days priorwritten notice (any such termination, a “Without Cause Termination”); andprovided further, however, that no party may provide written notice oftermination at any time prior to June 1, 2006.”

 

2.             Exclusivity;Noncompetition.

 

(a)           Theparties agree that subsection 4(a) of the GATE Universal Umbrella Agreement ishereby deleted in its entirety and that the remaining subsections of Section 4of the GATE Universal Umbrella Agreement shall only apply to Program LenderRight of First Refusal Schools (as defined in subsection (b) below).

 

(b) (i)      Section9 of the GATE Universal Umbrella Agreement is hereby amended by deleting the firstsentence thereof and inserting in lieu thereof the following:

 

“Neither NCT nor Marblehead will enter into anyagreement with any other financial institution or other regulated ornonregulated lender (a “Competing Lender”) to conduct a program for the originationand funding of GATE Universal Conforming Loans that would be a Lender CompetingProgram (as defined below) if conducted by Program Lender, with respect to anyeducational institution listed on Schedule 1 to the Amendment to UmbrellaAgreements (the “November 2005 Umbrella Amendment”) dated as of November 29,2005, by and among Program Lender, Marblehead and NCT (each such institution a “ProgramLender Right of First Refusal School”), unless Program Lender shall haverejected such Program Lender Right of First Refusal School pursuant to Section4 hereof.  NCT and Marblehead shall eachbe entitled to enter into agreements with Competing Lenders for LenderCompeting Programs with respect to any educational institution which is aTransition School (as defined in Section 2(c) of the November 2005 UmbrellaAmendment) or with respect to a Program Lender Right of First Refusal Schoolupon rejection of same by Program Lender as provided above.  NCT and Marblehead shall not be entitled toenter into agreements with Competing Lenders for Lender Competing Programs withrespect to any Participating

 

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Institution (other than as provided above) that hasentered into a GATE Universal Program agreement or form with Program Lender.”

 

(ii)           Section 9of the GATE Universal Umbrella Agreement is hereby further amended by addingthe following at the end of such section:

 

“Notwithstanding the foregoing, in the event that theTermination Date occurs as a result of a Without Cause Termination byMarblehead, the prohibition set forth above with respect to Program Lender’sability to originate a Lender Competing Program during the [**] following theTermination Date shall not apply to any educational institution that was a ParticipatingInstitution on the date on which Marblehead provided notice of the WithoutCause Termination, and Program Lender shall be free to continue to offer aLender Competing Program with such Participating Institutions.”

 

(c)           ProgramLender shall, on or before December 31, 2005, provide Marblehead with a list ofthe existing Participating Institutions under each of the Umbrella Agreementsthat Program Lender desires to remain Participating Institutions thereunder(the Participating Institutions not so identified on such list being the“Transition Schools”).  Upon receipt ofsuch list, Marblehead shall use best efforts to transition the TransitionSchools to a Competing Lender on or before April 1, 2006.  In the event that Marblehead is able toidentify a Competing Lender for any such Transition Schools, the parties shallcooperate in providing for an orderly transition of such Transition Schoolsfrom Program Lender to such Competing Lender pursuant to agreements reasonablysatisfactory to the parties.   In theevent that Marblehead is not able to identify a Competing Lender for any of theTransition Schools on or before April 1, 2006 notwithstanding its best effortsto do so, any such Transition School shall remain a Participating Institutionunder the applicable Umbrella Agreement until such time, if any, as Marbleheadshall identify a Competing Lender therefor.

 

(d)           Theparties agree that Section 3 of the GATE Student Umbrella Agreement shall onlyapply to Program Lender Right of First Refusal Schools.

 

(e) (i)       Thefirst sentence of Section 6 of the GATE Student Umbrella Agreement is deletedand the following is inserted in lieu thereof:

 

“Neither NCT norMarblehead will enter into any agreement with any other financial institutionor other regulated or nonregulated lender (a “Competing Lender”) to conduct aprogram for the origination and funding of GATE Student Conforming Loans thatwould be a Lender Competing Program (as defined below) if conducted by ProgramLender, with respect to any educational institution listed on Schedule 1 to theAmendment to Umbrella Agreements (the “November 2005 Umbrella Amendment”) datedas of November 29, 2005, by and among Program Lender, Marblehead and NCT (eachsuch institution a “Program Lender Right of First Refusal School”), unlessProgram Lender shall have rejected such Program Lender Right of First RefusalSchool pursuant to Section 3 hereof.  NCTand Marblehead shall each be entitled to enter into

 

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agreements with CompetingLenders for Lender Competing Programs with respect to any educationalinstitution which is a Transition School (as defined in Section 2(c) of theNovember 2005 Umbrella Amendment) or with respect to a Right of First RefusalSchool upon rejection of same by Program Lender as provided above.   NCT and Marblehead shall not be entitled toenter into agreements with Competing Lenders for Lender Competing Programs withrespect to any Participating Institution (other than as provided above) thathas entered into a GATE Program agreement with Program Lender.”

 

 

(ii)           Section 6of the GATE Student Umbrella Agreement is hereby further amended by adding thefollowing at the end of such section:

 

“Notwithstanding the foregoing, in the event that theTermination Date occurs as a result of a Without Cause Termination byMarblehead, the prohibition set forth above with respect to Program Lender’sability to originate a Lender Competing Program during the [**] following theTermination Date shall not apply to any educational institution that was aParticipating Institution on the date on which Marblehead provided notice ofthe Without Cause Termination, and Program Lender shall be free to continue tooffer a Lender Competing Program with such Participating Institutions.”

 

3.             Premiums.  The following is hereby added to the end ofSection 7 of the GATE Universal Umbrella Agreement and to the end of Section 5of the GATE Student Umbrella Agreement:

 

“In consideration of Program Lender’s efforts tomarket loans subject to this Agreement and purchased under the terms andconditions of the Note Purchase Agreement, Marblehead shall pay to ProgramLender a marketing fee and premium, computed as a percentage of the originalprincipal amount (net of any financed origination fees) or (if less) theremaining principal amount (net of any financed origination fees), for eachloan purchased in a Securitization Transaction pursuant to the Note PurchaseAgreement, as follows:

 

(a) [**]% for each loan for which Program Lender takespartial or total risk of default in the form of a Guaranty executed anddelivered at a Securitization Transaction; and

(b) [**]% for all other loans.

 

Payment of such fees (a) shall be made for loans purchased from ProgramLender from and after November 29, 2005, (b) shall be in addition to amountspaid to Program Lender pursuant to the Note Purchase Agreement, and (c) shallbe made at the time of each Securitization Transaction.  The preceding two sentences shall survive terminationof the Umbrella Agreement and terminate on the date the Note Purchase Agreementis terminated.”

 

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4.             Full Force andEffect. In all other respects, the Umbrella Agreements are hereby ratifiedand confirmed and shall remain in full force and effect.

 

5.             Counterparts.  ThisAmendment may be simultaneously executed in several counterparts, which may beexchanged by facsimile, each of which shall be deemed an original and all ofwhich shall constitute but one and the same instrument.

 

IN WITNESS WHEREOF, the parties hereto have causedthis Amendment to be executed by their duly authorized officers as of the dateabove first written.

 

 
| BANK OF AMERICA, N.A.            |
|----------------------------------|
|                             |   |
|                             |   |
| By:                              | /s/ Diane E. Morais |   |
|                             | Name: | Diane E. Morais |
|                             | Title: | Senior Vice President |
|                             |   |
|                             |   |
| THE FIRST MARBLEHEAD CORPORATION |
|                             |   |
|                             |   |
| By:                              | /s/ Donald R. Peck |   |
|                             | Name: | Donald R. Peck |
|                             | Title: | Executive Vice President and |
|                             |   | Chief Financial Officer |
|                             |   |
|                             |   |
| NATIONAL COLLEGIATE TRUST        |
|                             |   |
|                             |   |
| By:                              | First Marblehead Data Services, Inc., |
|                             | It’s Attorney-In-Fact |
|                             |   |
|                             |   |
| By:                              | /s/ John A. Hupalo |   |
|                             | Name: | John A. Hupalo |
|                             | Title: | Eexecutive Vice President |
|                                  |  |  |  |  |  |  |

 

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Schedule 1

 

Program Lender Right ofFirst Refusal Schools

 
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