EXHIBIT 10.13
DEPOSIT AND SECURITY AGREEMENT
THE NATIONAL COLLEGIATE STUDENT LOAN TRUST 2005-1
This Deposit and Security Agreement (the "AGREEMENT") is made and
entered into as of February 23, 2005, by and among THE EDUCATION RESOURCES
INSTITUTE, INC., a private non-profit corporation organized under Chapter 180 of
the Massachusetts General Laws with its principal place of business at 00 Xx.
Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 ("XXXX"), FIRST MARBLEHEAD DATA
SERVICES, INC., a corporation organized under the General Corporation Law of the
State of Massachusetts with its principal place of business at 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (the "ADMINISTRATOR"), and THE NATIONAL COLLEGIATE
STUDENT LOAN TRUST 2005-1, in its capacity as owner (in such capacity, the
"OWNER").
WHEREAS, the Owner is willing to purchase education loans to borrowers
under the education loan programs listed on SCHEDULE A attached hereto and
others in accordance with the Indenture (collectively, the "STUDENT LOAN
PROGRAMS") upon certain terms and conditions, including but not limited to the
guaranty of the payment of principal and interest by XXXX pursuant to the terms
of the Guaranty Agreements (as hereafter defined) and the deposit of certain
monies with U.S. Bank National Association (the "TRUSTEE"), on behalf of the
Owner, as security for such payment as more fully described herein and in
accordance with the terms and conditions set forth in this Agreement, and the
agreements (the "ACCOUNT SECURITY AGREEMENTS") listed on SCHEDULE B attached
hereto and others in accordance with the Indenture;
WHEREAS, under the terms of the Guaranty Agreements listed on SCHEDULE
B attached hereto and others in accordance with the Indenture between XXXX and
each of the parties (the "LOAN ORIGINATORS") listed on SCHEDULE B attached
hereto and others in accordance with the Indenture, XXXX guaranties the payment
of principal and interest on the Loans in exchange for the payment of certain
Guaranty Fees (as hereinafter defined);
WHEREAS, pursuant to the Student Loan Purchase Agreements listed on
SCHEDULE B attached hereto and others in accordance with the Indenture, between
the Loan Originators and the Owner's predecessor in interest, The First
Marblehead Corporation (the "STUDENT LOAN PURCHASE AGREEMENTS"), the Owner has
agreed to acquire certain Loans;
WHEREAS, the Administrator is authorized to act for the Owner in all
matters relating to this Agreement; and
WHEREAS, it is the intention of the Owner and XXXX that this Agreement
shall apply to each Loan that is (i) subject to the Guaranty Agreements and (ii)
purchased by the Owner with funds held under the Indenture (as hereafter
defined).
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the parties agree as follows:
1. DEFINITIONS. Capitalized terms not otherwise defined in this
Section, in the recitals hereto or elsewhere in this Agreement shall have the
meanings ascribed to such terms in the Guaranty Agreements listed on SCHEDULE B
attached hereto. In addition:
(a) "CLOSING DATE" shall mean February 23, 2005.
(b) "COLLATERAL" shall have the meaning set forth in Section 5.
(c) "DISTRIBUTION DATE" shall have the meaning set forth in the
Indenture.
(d) "ELIGIBLE INVESTMENTS" means the following categories of
securities:
(i) For all purposes:
(A) Cash (insured at all times by the Federal
Deposit Insurance Corporation);
(B) Obligations of, or obligations guaranteed as
to principal and interest by, the U.S. or any agency or instrumentality thereof,
when such obligations are backed by the full faith and credit of the U.S.
government including:
o U.S. treasury obligations
o All direct or fully guaranteed obligations
o Farmers Home Administration
o General Services Administration
o Guaranteed Title XI financing
o Government National Mortgage Association
(GNMA)
o State and Local Government Series
(C) Obligations of government-sponsored agencies
that are not backed by the full faith and credit of the U.S. government
including:
o Federal Home Loan Mortgage Corp. (FHLMC)
Debt obligations
o Farm Credit System (formerly: Federal Land
Banks, Federal Intermediate Credit Banks,
and Banks for Cooperatives)
o Federal Home Loan Banks (FHL Banks)
o Federal National Mortgage Association (FNMA)
debt obligations
o Financing Corp. (FICO) debt obligations
o Resolution Funding Corp. (REFCORP) debt
obligations
o U.S. Agency for International Development
(U.S. A.I.D) guaranteed notes
U.S.A.I.D. securities must mature at least four business days before
the appropriate payment date.
(ii) Investments in refunding escrow accounts:
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(A) Obligations of any of the following federal
agencies which obligations represent the full faith and credit of the United
States of America, including:
o Export-Import Bank
o Rural Economic Community Development
Administration
o U.S. Maritime Administration
o Small Business Administration
o U.S. Department of Housing & Urban
Development (PHAs)
o Federal Housing Administration
o Federal Financing Bank
(B) Direct obligations of any of the following
federal agencies which obligations are not fully guaranteed by the full faith
and credit of the U.S.:
o Senior debt obligations issued by the
Federal National Mortgage Association (FNMA)
or Federal Home Loan Mortgage Corporation
(FHLMC)
o Obligations of the Resolution Funding
Corporation (REFCORP)
o Senior debt obligations of the Federal Home
Loan Bank System
o Senior debt obligations of other government
sponsored agencies
(C) U.S. dollar denominated deposit accounts,
federal funds and bankers' acceptances with domestic commercial banks which have
a rating on their short term certificates of deposit on the date of purchase of:
(1) "A-1+" by S&P and (2) either "P-1" by Xxxxx'x or "F1" by Fitch; and maturing
not more than 360 calendar days after the date of purchase. (Ratings on holding
companies are not considered as the rating of the bank);
(D) Commercial paper that meets the ratings of
the following listed rating agencies at the time of purchase: (1) "A-1+" by S&P
and (2) either "P-1" by Xxxxx'x or "F1" by Fitch; which matures not more than
270 calendar days after the date of purchase;
(E) Investments in a money market fund rated
"AAAm" or "AAA-m" by S&P and "Aaa" by Xxxxx'x;
(F) Pre-refunded "municipal obligations" which
are defined as follows: any bonds or other obligations of any state of the U.S.
or of any agency, instrumentality or local governmental unit of any such state
which are not callable at the option of the obligor prior to maturity or as to
which irrevocable instructions have been given by the obligor to call on the
date specified in the notice; and
(1) Which are rated, based on an
irrevocable escrow account or fund (the "escrow"), in the highest rating
category of (a) S&P and (b) either Xxxxx'x or Fitch or any successors thereto;
or
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(2) (a) Which are fully secured as to
principal and interest and redemption premium, if any, by an escrow consisting
only of cash or obligations described in paragraph (i)(B) above, which escrow
may be applied only to the payment of such principal of and interest and
redemption premium, if any, on such bonds or other obligations on the maturity
date or dates thereof or the specified redemption date or dates pursuant to such
irrevocable instructions, as appropriate, and (b) which escrow is sufficient, as
verified by a nationally recognized independent certified public accountant, to
pay principal of and interest and redemption premium, if any, on the bonds or
other obligations described in this paragraph on the maturity date or dates
specified in the irrevocable instructions referred to above, as appropriate;
(G) Any other investment that is generally
approved by Xxxxx'x, S&P and Fitch for the investment of funds held as
collateral for securities rated in the highest investment rating category and
that is not:
(1) A financial asset that involves the
Owner, the Administrator or the beneficial owners of the Owner in making
decisions other than the decisions inherent in servicing the financial assets
including without limitation any financial asset that includes an option to be
exercised by the Owner, the Administrator or the beneficial owners of the Owner;
or
(2) A derivative financial instrument
that involves the Owner, the Administrator or the beneficial owners of the Owner
in making decisions including without limitation any derivative financial
instrument that includes an option allowing the Owner, the Administrator or the
beneficial owners of the Owner to choose to call or put other financial
instruments; provided that a derivative financial instrument shall be an
Eligible Investment only if it is acquired from proceeds of the issuance of
Notes by the Owner at the time of such issuance.
(iii) The value of the above investments shall be
determined as follows:
(A) For the purpose of determining the amount in
any fund, all Investment Securities credited to such fund shall be valued at
fair market value. The Trustee shall determine the fair market value based on
accepted industry standards and from accepted industry providers. Accepted
industry providers shall include but are not limited to pricing services
provided by Financial Times Interactive Data Corporation, Xxxxxxx Xxxxx & Co.,
Citigroup Global Markets Inc., Bear Xxxxxxx & Co. Inc., Deutsche Bank AG, New
York Branch, or Xxxxxx Brothers;
(B) As to certificates of deposit and bankers'
acceptances: the face amount thereof, plus accrued interest thereon; and
(C) As to any investment not specified above:
the value thereof established by prior agreement between the Owner and the
Trustee.
(e) "EXISTING PLEDGED ACCOUNT" means the Pledged Account, if any,
created pursuant to the Account Security Agreements and named therein the
"Pledged Account."
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(f) "GUARANTY AGREEMENTS" shall mean each of the Guaranty
Agreements between each of the Loan Originators and XXXX, and any amendments or
modifications thereto, as set forth on SCHEDULE B attached hereto and others in
accordance with the Indenture.
(g) "GUARANTY CLAIMS" shall mean a claim made by or on behalf of
the Owner for payment by XXXX following a Guaranty Event.
(h) "GUARANTY FEES" shall mean, collectively, all of the fees
payable to XXXX for the guarantee of a Loan as described in each of the Guaranty
Agreements.
(i) "INDENTURE" means the Indenture dated as of February 1, 2005,
by and between the Owner and the Trustee, as may be amended or supplemented from
time to time.
(j) "INTANGIBLES" shall have the meaning set forth in Section
5(a)(ii).
(k) "RECOVERIES" shall mean and include: (i) any and all cash,
checks, drafts, orders and all other instruments for the payment of money
received by XXXX from or on behalf of Borrowers in payment of principal of,
interest on, late fees with respect to, and costs of collecting defaulted Loans
with respect to which XXXX has paid, in full, Guaranty Claims, from funds in the
Pledged Account, and the proceeds of all of the foregoing, (ii) any amount
received by XXXX upon the sale or other transfer of defaulted Loans with respect
to which XXXX has paid, in full, Guaranty Claims (including the sale of such
Loans to the Owner as provided in each of the Guaranty Agreements or the sale of
the right to collect such Loans or other similar rights with respect thereto),
and (iii) in connection with any pledge or assignment of defaulted Loans (or
rights with respect thereto) to secure a loan to XXXX, the amount of such loan.
In all cases, "Recoveries" shall be computed net of TERI's Costs of Collection.
TERI's "COSTS OF COLLECTION" for purposes of this Agreement shall mean all fees
and expenses paid to third party collectors and attorneys, and, to cover TERI's
internal costs, an amount equal to two and one-half percent (2.5%) of the amount
recovered (excluding amounts recovered upon the sale of loans to the Owner as
provided in each of the Guaranty Agreements).
(l) "SECURED OBLIGATIONS" shall have the meaning set forth in
Section 6.
(m) "XXXX GUARANTEE FEE ENTITLEMENT" means a portion of Guaranty
Fees equal to 1.75% of the principal amount of a Loan, payable in accordance
with each of the Guaranty Agreements.
2. CREATION AND FUNDING OF THE PLEDGED ACCOUNT. Upon the
execution of this Agreement, the Owner shall establish with the Trustee pursuant
to the Indenture an account (the "PLEDGED ACCOUNT") for the purpose of
depositing upon receipt portions of the Guaranty Fees, Recoveries and earnings
as provided in this Section 2. The Pledged Account shall be funded (a) by
transfer of all amounts held on the Closing Date in the Existing Pledged Account
that relate to the Loans being purchased on the Closing Date, determined as set
forth in each of the Account Security Agreements, (b) by XXXX with all Guaranty
Fees payable on the Closing Date with respect to the Loans being purchased, and
(c) by XXXX with all
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Recoveries with respect to Loans on which XXXX has paid Guaranty Claims, and
earnings on the Pledged Account, all of which shall be pledged by XXXX to the
Owner under the terms of this Agreement. XXXX hereby irrevocably directs the
Owner to deposit the following amounts into the Pledged Account:
(a) Any and all Guaranty Fees previously paid by the Loan
Originators and currently held by the Trustee in the Existing Pledged Account
created under each of the Account Security Agreements with respect to Loans
purchased on the Closing Date as set forth in each of the Account Security
Agreements;
(b) Any and all additional Guaranty Fees with respect to such
Loans purchased by the Owner, which fees will be deposited into the Pledged
Account on the Closing Date; and
(c) All Recoveries, which Recoveries shall be remitted by or on
behalf of XXXX to the Trustee on the 15th day of each month, for Recoveries
received during the preceding month.
Any amounts remitted to the Trustee for deposit into the Pledged Account shall
be accompanied by a notice in the form of EXHIBIT 2.
3. PLEDGED ACCOUNT INVESTMENT AND MAINTENANCE.
(a) The Owner shall withdraw from the Pledged Account and deposit
into the Reserve Fund of the Indenture any amounts owed by XXXX under each of
the Guaranty Agreements for Guaranty Claims as provided in Section 3(d)(i)
hereof. The Owner understands and agrees that XXXX shall be required to pay any
such claim amounts out of TERI's general reserves and other assets only to the
extent that and for so long as the Pledged Account is without sufficient funds
or is otherwise unavailable to promptly pay whatever amounts are then due and
payable under each of the Guaranty Agreements. Notwithstanding the foregoing,
while there is a default by XXXX under Section 8 hereof continuing, the
provisions of Section 9 hereof shall apply.
(b) Prior to the occurrence of a default by XXXX under Section 8
hereof, XXXX may direct the Owner to invest amounts held in the Pledged Account
in one or more Eligible Investments. If a default under Section 8 occurs and is
continuing, the Administrator shall have the sole right to direct investment of
the Pledged Account, but such investments shall be limited to Eligible
Investments.
(c) No interest, dividends, distributions or other earnings of
whatever nature which are paid and derived from the Pledged Account
(collectively, "EARNINGS") shall be withdrawn or paid to the Owner or XXXX or
any other person or entity unless pursuant to the provisions of Section 3(d).
All Earnings shall be fully, immediately and completely reinvested in the
Pledged Account. Any other provisions of this Agreement to the contrary (either
expressly or by implication) notwithstanding, all Earnings net of losses shall
be credited to and deemed income of XXXX and not of the Owner, and shall be so
treated by XXXX.
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(d) Withdrawals and disbursements from the Pledged Account shall
be made only in accordance with the following provisions:
(i) Upon receipt by the Owner of a Payment of Guaranty
Claims Direction Letter, substantially in the form of EXHIBIT 1 (and, after the
occurrence of a default under Section 8, whether or not such a Direction Letter
is received), the Owner shall withdraw from the Pledged Account and deposit in
the Collection Account of the Indenture the full amount of any valid Guaranty
Claims made in accordance with each of the Guaranty Agreements for defaulted
Loans.
(ii) In the event TERI's income on the Pledged Account
should become subject to federal income taxation or the income from the Pledged
Account should become subject to excise tax under section 4940 of the Internal
Revenue Code of 1986, as amended, XXXX shall be entitled to the release of
Earnings from the Pledged Account equal to the taxes actually paid by XXXX with
respect to the income on the Pledged Account. XXXX shall provide the
Administrator and the Trustee with a written request substantially in the form
of EXHIBIT 3 attached hereto, for any such withdrawal, which request shall be
accompanied by documentation as to the amounts to be withdrawn ("WITHDRAWAL
REQUEST"). Not later than 15 days following receipt by the Administrator of a
Withdrawal Request, the Administrator may either (A) notify XXXX of any
objection to such Withdrawal Request along with reasons for such objection or
(B) request any further information or documentation relating to such request.
If the Administrator does not object or request further information from XXXX
within such 15 day period, the Administrator shall be deemed to have consented
to the Withdrawal Request, and the Administrator shall thereafter promptly cause
the Trustee to withdraw the requested funds from the Pledged Account. If the
Administrator objects to any Withdrawal Request, the Administrator shall deny
the request and provide XXXX with a written statement of the Administrator's
reasons for denial, which denial must be reasonably based on the requirements
set forth in this Section 3(d).
4. EXCESS FUNDS IN THE PLEDGED ACCOUNT.
(a) On the Closing Date, the Owner shall pay XXXX from funds in
the Pledged Account an amount equal to 0.25% of the aggregate outstanding
principal balance of the Loans that are guaranteed by XXXX and purchased by the
Owner on the Closing Date.
(b) If on any Distribution Date under the Indenture, the product
of (i) the aggregate outstanding principal balance of and earned interest on
Loans held by or pledged to the Trustee, multiplied by (ii) a factor equal to
sixteen hundredths (.16) (the "STRESS FACTOR") is less than the balance in the
Pledged Account, and, if no default exists hereunder or under each of the
Guaranty Agreements, the Administrator shall cause the Trustee to pay to XXXX
the amount by which the balance in the Pledged Account exceeds such product. The
parties agree that the approval of the Stress Factor by the rating agencies is
dependent upon the types of Loans purchased by the Owner at the closing under
the Indenture.
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5. SECURITY INTEREST. XXXX hereby pledges, assigns and sets over
to the Owner, as security for payment by XXXX of the Secured Obligations (as
hereinafter defined), all of TERI's right, title and interest in and to (a) the
Pledged Account and all amounts on deposit or to be deposited therein as
described in Section 2 of this Agreement, including without limitation (i) any
and all Guaranty Fees previously paid by Loan Originators and currently held by
the Trustee in the Existing Pledged Account created under each of the Account
Security Agreements with respect to Loans purchased on the Closing Date as set
forth in each of the Security Agreements; (ii) any and all additional Guaranty
Fees with respect to such Loans purchased by the Owner, which fees will be
deposited into the Pledged Account on the Closing Date; and (iii) all
Recoveries, which Recoveries shall be remitted by or on behalf of XXXX to the
Trustee on the 15th day of each month, for Recoveries received during the
preceding month, and (b) TERI's right to receive all Earnings. The foregoing
shall not be deemed to include a grant of security interest in defaulted Loans.
In furtherance thereof, XXXX hereby grants to the Owner (and its assigns) a
first priority security interest in all of TERI's right, title and interest in
and to the following, to the extent they relate to Loans purchased by the Owner:
(a) All personal property comprising and/or contained in the
Pledged Account, as provided in this Agreement, both tangible and intangible,
whether now owned or hereafter acquired by XXXX and wheresoever located,
including without limitation:
(i) All contract rights, claims, instruments, notes and
accounts, whether now existing or hereafter arising, including, without
limitation, all of the same evidencing or representing indebtedness due or to
become due to XXXX (all hereinafter called the "ACCOUNTS");
(ii) All funds and investments thereof, whether in the
form of certificates of deposit, repurchase agreements, U.S. Treasury Bills,
U.S. Treasury Notes, investment grade commercial paper, U.S. Treasury Bonds,
Federal agency notes or other investments, securities (whether certificated or
uncertificated and specifically including any securities which are purchased
through and for which records are maintained on a book entry system through any
financial intermediary (as defined in ss. 8-313 of the Uniform Commercial
Code)), payment intangibles and general intangibles, whether now existing or
hereafter arising and wheresoever located, or otherwise (all hereinafter called
the "INTANGIBLES");
(iii) All right, title and interest of XXXX in or to all
instruments and documents covering or relating to the above described property,
including but not limited to, all books, records, computer printouts, tapes,
disks, ledger sheets, files and other data (all such instruments and documents
being called the "RELATED DOCUMENTS");
(iv) All interest, dividends and/or other earnings of any
kind which are paid with respect to or derived from the Pledged Account, and all
proceeds of any of the foregoing, and the present and continuing right to make
claim for, collect, receive and receipt for, any and all such interest,
dividends and/or other earnings; and
(v) All the proceeds of all of the foregoing;
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(b) All contract and other rights of XXXX to receive payment of
Guaranty Fees, other than the XXXX Guarantee Fee Entitlement, from the Owner
under each of the Guaranty Agreements; TERI's rights to receive subsequent
Guarantee Fees from the Owner pursuant to such section, and any separate
undertaking or agreement by the Owner to pay such subsequent Guarantee Fees;
(c) All Recoveries and all rights of XXXX to receive or collect
Recoveries; and
(d) All proceeds of the foregoing.
All of the foregoing property in which the Owner has been granted a
security interest is herein collectively referred to as "COLLATERAL." It is
expressly understood and agreed that this security interest and assignment shall
automatically attach to any and all future deposits to, earnings from, and
proceeds of the Pledged Account immediately upon deposit or accrual, and all
Guaranty Fees and Recoveries immediately upon the receipt thereof, without the
making or doing of any further act or thing whatsoever. XXXX shall promptly take
all further action, and execute and deliver to the Owner such other documents,
as may be requested from time to time by the Owner to create, evidence, maintain
and effect the Owner's security interest in the Pledged Account and the other
rights pledged hereunder.
6. SECURED OBLIGATIONS. The security interest of the Owner under
this Agreement secures (a) the payment and performance of all indebtedness,
obligations and liabilities of XXXX arising at any time, now or in the future,
to the Owner (or its assignees), pursuant to each of the Guaranty Agreements;
(b) performance by XXXX of the agreements set forth in this Agreement; (c) all
payments made or expenses incurred by the Owner (or its assignees), including,
without limitation, reasonable attorney's fees and legal expenses, in the
exercise, preservation or enforcement of any of the rights, powers or remedies
of the Owner (or its assignees), or in the enforcement of the obligations of
XXXX, under this Agreement or each of the Guaranty Agreements (whether or not
paid or incurred in the context of a state or federal bankruptcy, insolvency, or
reorganization proceeding); and (d) any renewals, continuations or extensions of
any of the foregoing (all of which are collectively referred to as the "SECURED
OBLIGATIONS").
7. RESTRICTIONS ON THE PLEDGED ACCOUNT. XXXX shall not (except as
provided in Sections 3(d)(ii) and (4)) be paid by the Owner, at the direction of
the Administrator, any funds from or further assign, pledge, or hypothecate the
Pledged Account or any portion of the Pledged Account to any individual, person,
entity or other third party without the express prior written consent of the
Administrator. Payments to XXXX will be by wire transfer unless XXXX requests,
in writing, another reasonable form of payment.
8. DEFAULT. XXXX shall be in default of this Agreement if XXXX
fails to remit to the Owner from the Pledged Account or otherwise, in accordance
with the terms and provisions of the Guaranty Agreements, the principal balance
(including capitalized fees and interest) and accrued interest and late fees on
any Loan as to which a Guaranty Event (as defined in each of the Guaranty
Agreements) has occurred and as to which the conditions set forth in each of the
Guaranty Agreements to payment of a Guaranty Claim have been satisfied, and if
such failure continues for a period of thirty (30) days. Either XXXX or the
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Owner shall be in default of this Agreement if (a) any representation, warranty,
or statement made by such party in or pursuant to this Agreement or each of the
Guaranty Agreements is found to be false or erroneous in any material respect,
or (b) such party shall fail or omit to perform or observe any material covenant
or agreement made by it in this Agreement or each of the Guaranty Agreements,
and if such circumstance, failure or omission (if susceptible of cure) remains
uncured for thirty (30) days. Upon the occurrence of an event of default by
XXXX, and while such default is continuing, the Owner shall cease disbursing any
funds at the request of XXXX except to pay Guaranty Claims.
9. REMEDIES UPON DEFAULT. The Owner shall have all of the rights
and remedies of a secured party under the Massachusetts Uniform Commercial Code
(as the same may be amended from time to time), as well as all rights and
remedies provided by any other applicable law, at law, or in equity. Without
limiting the generality of the foregoing, the Administrator shall also have the
right, during the term of this Agreement, to do any or all of the following upon
a default and until any such default is cured:
(a) ACCELERATION. Without any notice or demand, the Administrator
may declare any or all Secured Obligations then in default to be immediately due
and payable.
(b) POSSESSION. Without notice, demand, or hearing, any right to
which is hereby waived by XXXX, the Administrator shall have full power and
authority to hold, sequester, set-off or withdraw any and all funds from the
Pledged Account and to (i) direct such funds for application to any Loan as to
which a Guarantee Event has occurred and XXXX has failed to remit the principal
balance (including capitalized fees and interest) and accrued interest and late
fees thereon in accordance with the terms and conditions of each of the Guaranty
Agreements or (ii) hold the funds in the Pledged Account without making any
disbursements of any kind to XXXX as otherwise provided in this Agreement, and
to apply the funds to any Loan if and when a Guarantee Event occurs and XXXX
fails to promptly remit to the Owner the unpaid principal balance (including
capitalized fees and interest) and accrued interest and late fees thereon in
accordance with the conditions of each of the Guaranty Agreements.
(c) COLLECTION OF ACCOUNTS.
(i) XXXX hereby constitutes and appoints the
Administrator (and upon assignment hereof, the Trustee) its true and lawful
attorney (which appointment is coupled with an interest), with full power of
substitution, either in the Administrator's own name or in the name of XXXX, to
ask for, demand, xxx for, collect, receive, receipt and give acquittance for,
any and all moneys due or to become due to XXXX that are part of the Collateral;
to endorse checks, drafts, orders and other instruments for the payment of money
payable to XXXX on account thereof, to settle, compromise, prosecute, or defend
any action, claim, or proceeding with respect thereto; and to sell, assign,
pledge, transfer and make any agreement respecting, or otherwise deal with, the
same.
(ii) XXXX agrees that all Recoveries shall be held by the
Owner to whatever extent may be necessary to facilitate full and complete
payment of all amounts owed under each of the Guaranty Agreements. All such
Recoveries received by XXXX shall
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be remitted to the Trustee (properly endorsed for collection where required),
not later than the next Business Day, and accompanied by EXHIBIT 2 and deposited
in the Pledged Account, for the payment of all of the Secured Obligations then
in default. XXXX agrees not to commingle any such collections or proceeds with
any of its other funds or property and agrees to hold the same upon an express
trust for the Owner until deposited in the Pledged Account, as aforesaid.
(iii) The Administrator agrees to provide notice to XXXX of
the Administrator's or Owner's exercise of any of its rights under this Section
9(c).
(d) TRANSFER OF INTANGIBLES. The Administrator shall have the
right to take possession of any agreement or other document evidencing any of
the Intangibles, and may apply for or seek, on behalf of and as attorney-in-fact
for XXXX, any necessary consent to the assignment, transfer, conveyance, sale,
renewal, reissuance or other disposition of the same, and XXXX shall cooperate
fully with the Administrator in doing so and shall take all actions reasonably
requested by the Administrator in furtherance thereof. XXXX hereby constitutes
and appoints the Administrator its true and lawful attorney (which appointment
is coupled with an interest) with full power of substitution, either in the
Administrator's own name or in the name of XXXX, to assign, transfer and convey,
subject to all requirements of law, any and all of TERI's rights in and to any
of the Intangibles.
(e) DISPOSITION. The Administrator may assign, transfer, convey,
any or all of the Collateral, by public or private sale subject to TERI's rights
to retain a copy of each Related Document now or in the future in TERI's
possession. The Administrator shall provide XXXX with reasonable written notice
of the time and place of any such sale.
(f) PROCEEDS. All proceeds from the sale or other disposition of
Collateral by the Administrator under this Section 9 of this Agreement, and all
other moneys received by the Administrator pursuant to the terms of this
Agreement shall be applied as follows:
(i) First, to the payment of all expenses incurred by the
Administrator in connection with this Agreement or the exercise of any right or
remedy hereunder, or any sale or disposition, including, but not limited to the
expenses of taking, advertising, processing, preparing and storing the
Collateral to be sold, all court costs and the Administrator's reasonable legal
fees in connection therewith;
(ii) Second, to the payment of valid Guaranty Claims in
accordance with the terms thereof in the order in which a complete claim
(including all required documentation) is received, treating all claims received
the same day as received at the same time (if there are not sufficient funds in
the Pledged Account to pay all claims payable therefrom received on a given day,
all such claims shall be paid in part, pro rata, from the Pledged Account as
directed by the Administrator); and
(iii) Third, any remainder to be held pursuant to the terms
of this Agreement as continuing security for TERI's payment of the remaining
Secured Obligations.
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The Administrator shall apply any such proceeds, monies, or balances in
accordance with this Agreement promptly upon its receipt of the same. In respect
of any application pursuant to clause (ii) above, such proceeds, monies, or
balances shall be applied by the Administrator to discharge in whole or in part
any unpaid Secured Obligation, notwithstanding any manifestation of an intent to
the contrary expressed in writing or otherwise by XXXX at any time. Upon any
sale of Collateral by the Administrator (whether pursuant to a power of sale
granted by a statute or under a judicial proceeding), the receipt of the
Administrator or of the officer making the sale shall be a sufficient discharge
to the purchaser or purchasers of the Collateral so sold and such purchaser or
purchasers shall not be obligated to see to the application of any part of the
purchase money paid over to the Administrator or such officer, or be answerable
in any way for the misapplication thereof. Notwithstanding the sale or other
disposition of any Collateral by the Administrator hereunder, XXXX shall remain
liable for any deficiency. Any Loan with respect to which the Owner receives
payment in full hereunder will forthwith be transferred to XXXX on the terms and
conditions set forth in the Guaranty Agreements.
10. REMEDIES CUMULATIVE. All rights, remedies, or powers conferred
upon the Owner herein or by law shall be cumulative and concurrent at the option
of the Administrator, and the Administrator may, to whatever extent is
reasonably necessary to cure any default, foreclose or exercise the power of
sale or any other remedy available to it successively upon any default or upon
successive defaults hereunder without the necessity of declaring all sums
secured hereby to be due and payable. Upon any such occasion, the Administrator
shall be authorized to sell or dispose of all or any such part of the Collateral
as provided in this Agreement or pursuant to the Indenture and as permitted by
law. The remaining Collateral shall continue as security for any other sums
remaining due after such sale, lease, or disposition or thereafter to become due
or payable on any of the Secured Obligations.
11. PLEDGE BY THE OWNER; ROLE OF THE ADMINISTRATOR.
(a) XXXX acknowledges that the Owner has pledged all of its right,
title and interest under this Agreement and its interest in the Pledged Account
as collateral security to the Trustee pursuant to the Indenture. Pursuant to
such pledge, all rights of the Owner hereunder, subject to the limitations and
obligations of this Agreement, may be exercised by the Trustee, pursuant to the
terms of the Indenture. Subject to the terms and limitations of this Agreement,
the Administrator, on the Owner's behalf, in accordance with the Indenture,
shall request that the Trustee exercise the Owner's rights and obligations
hereunder, including, without limitation:
(i) The withdrawal of funds from the Pledged Account to
pay the Trustee, as assignee of the Loans, with respect to a Guaranty Claim
pursuant to Section 3(d)(i) hereof;
(ii) The withdrawal of funds pursuant to Section 3(d)(ii)
hereof;
(iii) The investment of funds in the Pledged Account in
Eligible Investments as directed by XXXX from time to time; and
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(iv) The exercise of the remedies of the Owner on default
by XXXX under Section 9.
(b) The Owner hereby directs XXXX to pay all sums intended to be
placed in the Pledged Account, including, without limitation, all future
Recoveries, directly to the Trustee. The Pledged Account shall be maintained and
funds held therein shall be invested by the Trustee in Eligible Investments
pursuant to and in accordance with the Indenture. Funds held in the Pledged
Account in the form of bank deposits shall be deposited only with institutions
that are federally insured.
(c) The Trustee and the holders of the notes authenticated and
delivered pursuant to the Indenture, are intended third-party beneficiaries of
this Agreement, with rights to enforce the Owner's interests in the same. Such
third-party beneficiaries are not parties hereto and incur no liabilities
hereunder.
(d) The Administrator has been appointed to act for the Owner in
connection with the transactions contemplated by the Indenture. The
Administrator has the power and authority to take any action and give any notice
required or permitted by the Owner hereunder and XXXX may deal with
Administrator as if it were dealing with the Owner. Any notice required to be
given to the Owner by XXXX shall also be given to Administrator. The
Administrator will request instructions from the Indenture Trustee on behalf of
the Noteholders (pursuant to the Indenture) for any non-ministerial action that
the Administrator is required to take under this Agreement.
12. POSSESSION OF COLLATERAL. Throughout the term of this
Agreement, possession of the Collateral shall be maintained by the Trustee, or
its agent or nominee (if the Trustee so chooses from time to time), as necessary
and appropriate to perfect the Owner's, and, while the Indenture is in effect,
the Trustee's security interest therein as provided in, and subject to the terms
of, this Agreement. Upon termination of the Indenture and satisfaction in full
of all debt secured thereby and release of the Pledged Account to the Owner, the
Administrator may designate an alternative collateral agent to hold the Pledged
Account.
13. TERMINATION OF SECURITY INTERESTS. This Agreement and the
security interests under this Agreement shall terminate when all amounts due and
owing on account of, and all obligations and liabilities of XXXX in respect of,
the Secured Obligations shall have been fully performed, satisfied and paid as
provided in this Agreement and the Guaranty Agreements. At such time, the
Administrator shall promptly reassign and deliver to XXXX, without recourse or
representation, against TERI's receipt, all Collateral then held by the Owner or
anyone claiming by, through or under the Owner. XXXX shall execute and if
necessary deliver to the Administrator for execution, and the Administrator
shall promptly cause to be filed at the Owner's expense, termination statements
in respect of any financing statements filed under this Agreement. The
Administrator agrees to fulfill the Owner's obligations to file such termination
statements at its own cost and expense. The security interests hereunder shall
terminate as to all Collateral lawfully withdrawn by or paid to XXXX hereunder,
upon the occurrence of such withdrawal or payment.
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14. REPRESENTATIONS AND WARRANTIES.
(a) Each party, with respect to itself, represents and warrants
that:
(i) The making and performance of this Agreement and the
activities contemplated hereby have been duly authorized by all necessary action
and do not and will not:
(A) Violate any provision of law, or any
regulation, order, decree, writ or injunction, or any provision of such party's
charter, bylaws, or any other organizing document; or
(B) Violate or result in the breach of, or
constitute a default or require any consent under, any agreement or instrument
by which it or any of its property may be bound or affected.
(ii) This Agreement is the legal, valid and binding
obligation of such party, enforceable in accordance with the terms hereof.
(iii) There is no pending or threatened litigation that
would, if resolved adversely to such party, adversely impact such party's
ability to perform any of its obligations under this Agreement or each of the
Guaranty Agreements.
(b) XXXX represents and warrants that:
(i) Except for the security interests of the Owner
created under this Agreement, XXXX is and will be the owner of the Collateral,
whenever acquired or arising, free and clear of all liens, security interests,
claims, encumbrances, charges, set-offs, defenses and counterclaims;
(ii) This Agreement creates a valid and continuing
security interest (as defined in the applicable Uniform Commercial Code ("UCC")
in effect in the Commonwealth of Massachusetts) in the Collateral in favor of
the Owner, which security interest is prior to all other liens, charges,
security interests, mortgages or other encumbrances, and is enforceable as such
as against creditors of and purchasers from XXXX;
(iii) The Collateral constitutes a "deposit account" or
"investment property" within the meaning of the applicable UCC, except to the
extent that the Collateral constitutes Recoveries, in which case, the Collateral
is "payment intangibles" and cash.
(iv) XXXX has caused or will have caused, within ten days,
the filing of all appropriate financing statements in the proper filing office
in the appropriate jurisdictions under applicable law in order to perfect the
security interest in the Collateral granted to the Owner hereunder.
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(v) Other than the security interest granted to the Owner
pursuant to this Agreement, XXXX has not pledged, assigned, sold, granted a
security interest in, or otherwise conveyed any of the Collateral. XXXX has not
authorized the filing of and is not aware of any financing statements against
XXXX that include a description of collateral covering the Collateral other than
any financing statement relating to the security interest granted to the Owner
hereunder or that has been terminated. XXXX is not aware of any judgment or tax
lien filings against XXXX.
The foregoing representations and warranties in this Section 14(b) shall
continue in full force and effect until termination of this Agreement.
(c) The foregoing representations and warranties are subject to
(i) the exercise of judicial discretion in accordance with the general
principles of equity; (ii) the valid exercise of the police powers of the
several states of the United States of America and of the constitutional powers
of the United States of America and (iii) bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditor's rights
generally.
15. COVENANTS OF XXXX. XXXX agrees and covenants with the Owner as
follows:
(a) MAINTENANCE AND USE OF COLLATERAL. XXXX shall not permit the
Collateral to be used in violation of any of the Guaranty Agreements or this
Agreement.
(b) TAXES. XXXX shall, if so obligated, pay and discharge when due
all taxes, assessments, license or permit fees, levies and other charges upon
the Collateral, and XXXX shall, if so obligated, also pay and discharge when due
all other taxes, levies, or assessments relating to its business which, if
unpaid, might give rise to any penalty, security interest, lien, charge, levy,
assessment, or encumbrance in, on or against the Collateral. The Collateral and
all income and/or proceeds of the Collateral shall be, and be treated by XXXX as
being, the property of XXXX, subject to the pledge and security interest created
hereunder, and XXXX shall report the Collateral and all such proceeds as its
sole property until, unless and except to the extent any of the Collateral is
paid and transferred pursuant to each of the Guaranty Agreements and this
Agreement.
(c) NO ENCUMBRANCE. Except as otherwise expressly permitted in
this Agreement, XXXX shall not sell, assign, transfer, pledge, hypothecate, or
otherwise dispose of or encumber any of the Collateral or any interest therein
until all of the Secured Obligations are fully satisfied. XXXX shall protect and
defend the Collateral from and against any and all claims, demands, or legal
proceedings brought or asserted by any party other than the Trustee.
(d) MAINTENANCE OF SECURITY INTEREST. XXXX agrees that it shall do
all things necessary to preserve and maintain the security interests of the
Owner under this Agreement and Indenture as a first priority lien in the
Collateral and shall not permit the creation of any other lien, charge, security
interest, or encumbrance in the Collateral. XXXX agrees that it shall execute
and if necessary deliver to the Trustee for execution, and the Administrator
agrees to file or record (at its own cost and expense), such notices, financing
statements,
15
continuation statements, certificates of title and other documents, and XXXX
shall deliver to the Trustee upon request therefor such securities, agreements,
writings, documents, certificates, instruments, or other intangibles, as the
Trustee reasonably deems necessary from time to time to perfect and maintain the
perfection of the security interests of the Trustee under this Agreement. The
Trustee or the Administrator shall have the right to file this Agreement and any
financing statement reflecting the content of this Agreement for record in any
governmental office.
(e) RECORDS, STATEMENTS AND RELATED DOCUMENTS. XXXX agrees:
(i) When reasonably requested to do so by the
Administrator, to prepare and deliver to the Administrator a schedule in form
satisfactory to the Administrator, certified by an authorized officer of XXXX,
listing all Collateral and the location thereof; and
(ii) To keep accurate and complete records at all times in
respect of the Collateral and to deliver to the Administrator copies of such
records and such other information regarding the Collateral which the
Administrator may reasonably request.
(f) LOCATION. The principal office of XXXX is located at 00 Xx.
Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, and all books of account and records
relating to the collateral and TERI's business are located at TERI's principal
office. XXXX shall not, without giving the Administrator at least ten (10) days
prior written notice, change the location of any of the Collateral or the
location at which it does business, including, without limitation, the location
at which any books of account or records relating to the Collateral and TERI's
business are kept.
(g) NOTICE. XXXX shall promptly notify the Owner of any change in
TERI's name or its jurisdiction of organization or any physical loss,
destruction, or damage to any material portion of the Collateral. XXXX shall
also promptly notify the Owner of any default hereunder. In the event of a name
change or change in its jurisdiction of organization, XXXX shall take such
actions, if any, as shall be necessary to maintain the security interests of the
Owner hereunder.
(h) FURTHER INFORMATION. XXXX shall execute and deliver, or cause
to be executed and delivered, to the Trustee (and to any other financial
institution holding the Pledged Account), in a form satisfactory to the Trustee
(or such other institution), TERI's certification of its tax identification
number and such other documents as the Trustee shall reasonably request to
perform its obligations hereunder.
(i) NON-PETITION. XXXX shall not at any time prior to one year and
one day after all outstanding obligations of the Trust are paid under the
Indenture institute against the Owner any bankruptcy proceeding under the
Bankruptcy Code or any state bankruptcy or similar law in connection with any
obligations of the Owner under this Agreement. The Administrator shall not at
any time prior to one year and one day after all outstanding obligations of the
Trust are paid under the Indenture institute against the Owner any
16
bankruptcy proceeding under the Bankruptcy Code or any state bankruptcy or
similar law in connection with any obligations of the Owner under this
Agreement.
16. WAIVER. No delays or omissions by any party hereto in
exercising or enforcing any of its respective rights, remedies, powers,
privileges and discretions ("RIGHTS AND REMEDIES") shall operate as or
constitute a waiver of any such Rights and Remedies. No waiver by a party of any
default under this Agreement or each of the Guaranty Agreements shall operate as
a waiver of any other default under this Agreement. No single or partial
exercise by a party of any of its Rights and Remedies shall preclude the other
of further exercise of such Rights and Remedies. No waiver or modification of a
party's Rights and Remedies on any one occasion shall be deemed a waiver on any
subsequent occasion, nor shall it be deemed a continuing waiver. All Rights and
Remedies shall be cumulative and not alternative or exclusive, and a party may
exercise any such Rights and Remedies at such time or times and in such order of
preference as that party in its sole discretion may determine.
17. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which shall
together be deemed a single agreement.
18. CONFIDENTIALITY. The parties acknowledge that this Agreement
contains confidential information and agree not to disclose any of the terms and
conditions relating to this Agreement and the Pledged Account without the prior
express written consent of the others. The provisions of the foregoing sentence
to the contrary notwithstanding, any such information may be disclosed (a) to
any employees, officers, directors or representatives of the parties to effect
the purpose of the Student Loan Program; (b) by XXXX and the Administrator to
the affiliates and agents of either of them, and other third parties, to
effectuate this Agreement, provided that such parties are under a corresponding
written obligation to maintain the confidentiality of the Owner's information;
and (c) to the attorneys and accountants of the parties on a confidential basis.
This provision shall, further, not be construed to prohibit the disclosure of
any information relating to this Agreement (i) that is now or in the future
becomes public information, (ii) as may be required by applicable law or this
Agreement, each of the Guaranty Agreements or the Indenture, (iii) to the
underwriters and rating agencies, their employees, trustees and attorneys and to
such others as the Administrator may determine necessary (including regulators
and potential investors in a private or public offering) in connection with the
sale, securitization or other financing of any of the Loans, (iv) in any private
placement memorandum in connection with the sale, securitization or other
financing of any of the Loans, and (v) as necessary to perfect or enforce the
security interest in the Collateral granted hereunder. Nothing in this Agreement
shall limit or restrict XXXX, the Administrator, or any affiliate of the
Administrator (A) in their exchange and use of information as among them, to the
extent such exchange or use is governed by other agreements; or (B) from using,
manipulating, sharing and disclosing Loan information that has been
de-identified so that the identity of the borrower, the lender, or the holder of
a Loan (including but not limited to the Owner and Trustee) cannot be
determined.
19. CHOICE OF LAW. This Agreement shall be governed and construed
in accordance with Massachusetts law, without regard to principles of conflict
of laws.
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20. SEVERABILITY. If at any time one or more provisions of this
Agreement is or becomes invalid, illegal or unenforceable in whole or in part,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
21. ASSIGNMENT. This Agreement may not be assigned by any party
without the others' prior express written consent; provided, however, that
pursuant to Section 11, this Agreement and the Owner's rights hereunder may be
assigned by the Owner as collateral security to the Trustee, and the Trustee and
certain other persons are intended beneficiaries of this Agreement.
22. HEADINGS. The section headings used in this Agreement are for
convenience of reference only and are not to affect the construction or to be
taken into consideration in interpreting this Agreement.
23. AMENDMENT. This Agreement may be amended or modified only by
the written agreement of XXXX, the Owner, the Administrator and while the
Indenture remains in effect, the prior written consent of the Trustee.
24. NOTICES. All notices under this Agreement shall be sent by any
means requiring receipt signature, or if by facsimile confirmed by first-class
mail, postage or other delivery charge prepaid to
Xxxx:
-----
The Education Resources Institute, Inc.
00 Xx. Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: President
The Trustee:
------------
U.S. Bank National Association
Corporate Trust Services-SFS
Xxx Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
The Administrator or the Owner:
-------------------------------
First Marblehead Data Services, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xx. Xxx Xxxxx
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with a copy to:
First Marblehead Corporation
The Prudential Tower
000 Xxxxxxxx Xxxxxx - 00xx Xxxxx
Xxxxxx, XX 00000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxx
Any party may, by notice to the other parties in accordance with this
section, designate a different address for notices thereafter under this
Agreement.
25. NON-BUSINESS DAYS. Any action required or permitted to be
taken or done hereunder on a day which is not a business day in Boston,
Massachusetts may be taken or done on the next business day with the same effect
as if taken or done on such non-business day.
26. ROLE OF THE OWNER TRUSTEE. It is expressly understood and
agreed by the parties hereto that (a) this Agreement is executed and delivered
by Delaware Trust Company, National Association ("Delaware"), not individually
or personally but solely as trustee of the Owner in the exercise of the powers
and authority conferred and vested in it, (b) each of the representations,
undertakings and agreements herein made on the part of the Owner is made and
intended not as personal representations, undertakings and agreements by
Delaware but is made and intended for the purpose for binding only the Owner,
(c) nothing herein contained shall be construed as creating any liability on
Delaware, individually or personally, to perform any covenant either expressed
or implied contained herein, all such liability, if any, being expressly waived
by the parties hereto and by any Person claiming by, through or under the
parties hereto and (d) under no circumstances shall Delaware be personally
liable for the payment of any indebtedness or expenses of the Owner or be liable
for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by the Owner under this Agreement or any other
document.
[Signature Pages Follow]
19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers, being first duly authorized, as of the
day and year first above written.
THE EDUCATION RESOURCES INSTITUTE, INC.
By: /s/ Xxxxxx X. Xxxxxxx III
----------------------------------
Name: Xxxxxx X. Xxxxxxx III
Title: President &
Chief Executive Officer
FIRST MARBLEHEAD DATA SERVICES, INC.
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: President
THE NATIONAL COLLEGIATE STUDENT LOAN TRUST
2005-1
By: DELAWARE TRUST COMPANY, NATIONAL
ASSOCIATION, acting solely as Owner
Trustee and not in its individual capacity
By: /s/ Xxxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
SCHEDULES TO DEPOSIT AND SECURITY AGREEMENT
Schedule A - Student Loan Programs
Schedule B - Loan Originators, Guaranty Agreements, Student Loan Purchase
Agreements and Account Security Agreements
EXHIBITS TO DEPOSIT AND SECURITY AGREEMENT
Exhibit 1 - Payment of Guaranty Claims Direction Letter
Exhibit 2 - Remittance of Guaranty Fees and/or Recoveries Letter
Exhibit 3 - Request for Reimbursement of Income Tax or Other Tax Amounts
SCHEDULE A
STUDENT LOAN PROGRAMS
Bank of America, N.A.
o BAGEL Loan Program
o CEDU Loan Program
o Direct to Consumer (DTC) Loan Program
o ISLP Loan Program
Bank One, N.A.
o CORPORATE ADVANTAGE Loan Program
o EDUCATION ONE Loan Program
o M&T REFERRAL Loan Program
Charter One Bank, N.A.
o AAA Southern New England Bank
o AES EducationGAIN Loan Program
o Academic Management Services (AMS) TuitionPay Diploma Loan Program
o Brazos Alternative Loan Program
o CFS Direct to Consumer Loan Program
o Citibank Flexible Education Loan Program
o College Loan Corporation Loan Program
o Comerica Alternative Loan Program
o Custom Educredit Loan Program
o Edfinancial Loan Program
o Education Assistance Services (EAS) Alternative Loan Program
o ESF Alternative Loan Program
o Extra Credit II Loan Program (North Texas Higher Education)
o M&I Alternative Loan Program
o National Education Loan Program
o Navy Federal Alternative Loan Program
o NextStudent Alternative Loan Program
o NextStudent Private Consolidation Loan Program
o PNC Bank Resource Loan Program
o SAF Alternative Loan Program
o Southwest Loan Program
o START Education Loan Program
o WAMU Alternative Student Loan Program
Chase Manhattan Bank USA, N.A.
o Chase Extra Loan Program
Citizens Bank of Rhode Island
o Compass Bank Loan Program
o DTC Loan Program
o Navy Federal Referral Loan Program
o Xanthus Loan Program
o Pennsylvania State University Undergraduate and Continuing Education
Loan Programs
The Huntington National Bank
o Huntington Bank Education Loan Program
Manufacturers and Traders Trust Company
o M&T Alternative Loan Program
National City Bank
o National City Loan Program
PNC Bank
o PNC Bank Alternative Loan Program
SunTrust Bank
o SunTrust Alternative Loan Program
SCHEDULE B
LOAN ORIGINATORS, GUARANTY AGREEMENTS, STUDENT LOAN PURCHASE AGREEMENTS
AND ACCOUNT SECURITY AGREEMENTS
LOAN ORIGINATORS
o Bank of America, N.A.
o Bank One, N.A.
o Charter One Bank, N.A.
o Chase Manhattan Bank USA, N.A.
o Citizens Bank of Rhode Island
o The Huntington National Bank
o Manufacturers and Traders Trust Company
o National City Bank
o PNC Bank
o SunTrust Bank
GUARANTY AGREEMENTS
Each of the following Guaranty Agreements, as amended or supplemented, was
entered into by and between The Education Resources Institute, Inc. and:
o Bank of America, N.A., dated April 30, 2001, for loans that were
originated under Bank of America's BAGEL Loan Program, CEDU Loan
Program and ISLP Loan Program.
o Bank of America, N.A., dated June 30, 2003, for loans that were
originated under Bank of America's Direct to Consumer Loan Program.
o Bank One, N.A., dated May 13, 2002, for loans that were originated
under Bank One's CORPORATE ADVANTAGE Loan Program and EDUCATION ONE
Loan Program.
o Bank One, N.A., dated July 26, 2002, for loans that were originated
under Bank One's M&T REFERRAL Loan Program
o Charter One Bank, N.A., dated as of December 29, 2003 for loans that
were originated under Charter One's AAA Southern New England Bank Loan
Program.
o Charter One Bank, N.A., dated October 31, 2003, for loans that were
originated under Charter One's AES EducationGAIN Loan Program.
o Charter One Bank, N.A., dated May 15, 2002, for loans that were
originated under Charter One's (AMS) TuitionPay Diploma Loan Program.
o Charter One Bank, N.A., dated July 15, 2003, for loans that were
originated under Charter One's Brazos Alternative Loan Program.
o Charter One Bank, N.A., dated May 15, 2002, for loans that were
originated under Charter One's CFS Direct to Consumer Loan Program.
o Charter One Bank, N.A., dated June 30, 2003, for loans that were
originated under Charter One's Citibank Flexible Education Loan
Program.
o Charter One Bank, N.A., dated July 1, 2002, for loans that were
originated under Charter One's College Loan Corporation Loan Program.
o Charter One Bank, N.A., dated December 4, 2002, for loans that were
originated under Charter One's Comerica Alternative Loan Program.
o Charter One Bank, N.A., dated December 1, 2003, for loans that were
originated under Charter One's Custom Educredit Loan Program.
o Charter One Bank, N.A., dated May 10, 2004, for loans that were
originated under Charter One's Edfinancial Loan Program.
o Charter One Bank, N.A., dated May 15, 2002, for loans that were
originated under Charter One's Education Assistance Services Loan
Program.
o Charter One Bank, N.A., dated May 15, 2003, for loans that were
originated under Charter One's ESF Alternative Loan Program.
o Charter One Bank, N.A., dated September 15, 2003, for loans that were
originated under Charter One's Extra Credit II Loan Program (North
Texas Higher Education).
o Charter One Bank, N.A., dated September 20, 2003, for loans that were
originated under Charter One's M&I Alternative Loan Program.
o Charter One Bank, N.A., dated November 17, 2003, for loans that were
originated under Charter One's National Education Loan Program.
o Charter One Bank, N.A., dated May 15, 2003, for loans that were
originated under Charter One's Navy Federal Alternative Loan Program.
o Charter One Bank, N.A., dated May 15, 2002, for loans that were
originated under Charter One's NextStudent Alternative Loan Program.
o Charter One Bank, N.A., dated March 26, 2004, for loans that were
originated under Charter One's NextStudent Private Consolidation Loan
Program.
o Charter One Bank, N.A., dated March 17, 2003, for loans that were
originated under Charter One's PNC Bank Resource Loan Program.
o Charter One Bank, N.A., dated May 1, 2003, for loans that were
originated under Charter One's SAF Alternative Loan Program.
o Charter One Bank, N.A., dated September 20, 2002, for loans that were
originated under Charter One's Southwest Loan Program.
o Charter One Bank, N.A., dated March 25, 2004, for loans that were
originated under Charter One's START Education Loan Program.
o Charter One Bank, N.A., dated May 15, 2003, for loans that were
originated under Charter One's WAMU Alternative Student Loan Program.
o Chase Manhattan Bank USA, N.A., dated September 30, 2003, for loans
that were originated under Chase's Chase Extra Loan Program.
o Citizens Bank of Rhode Island, dated April 30, 2004, for loans that
were originated under
Citizens Bank of Rhode Island's Compass Bank Loan Program.
o Citizens Bank of Rhode Island, dated April 30, 2004, for loans that
were originated under Citizens Bank of Rhode Island's DTC Alternative
Loan Program.
o Citizens Bank of Rhode Island, dated April 30, 2004, for loans that
were originated under Citizens Bank of Rhode Island's Navy Federal
Referral Loan Program.
o Citizens Bank of Rhode Island, dated April 30, 2004, for loans that
were originated under Citizens Bank of Rhode Island's Xanthus Loan
Program.
o Citizens Bank of Rhode Island, dated October 1, 2002, for loans that
were originated under Citizens Bank of Rhode Island's Pennsylvania
State University Undergraduate and Continuing Education Loan Program.
o The Huntington National Bank, dated May 20, 2003, for loans that were
originated under The Huntington National Bank's Huntington Bank
Education Loan Program.
o Manufacturers and Traders Trust Company, dated April 29, 2004, for
loans that were originated under Manufacturers and Traders Trust
Company's Alternative Loan Program.
o National City Bank, dated July 26, 2002, for loans that were originated
under National City Bank's National City Loan Program.
o PNC Bank, N.A., dated April 22, 2004, for loans that were originated
under PNC Bank's Alternative Conforming Loan Program.
o SunTrust Bank, dated March 1, 2002, for loans that were originated
under SunTrust Bank's SunTrust Alternative Loan Program.
NOTE PURCHASE AGREEMENTS
Each of the Note Purchase Agreements, as amended or supplemented, was entered
into by and between The First Marblehead Corporation and:
o Bank of America, N.A., dated April 30, 2001, for loans that were
originated under Bank of America's BAGEL Loan Program, CEDU Loan
Program and ISLP Loan Program.
o Bank of America, N.A., dated June 30, 2003, for loans that were
originated under Bank of America's Direct to Consumer Loan Program.
o Bank One, N.A., dated May 1, 2002, for loans that were originated under
Bank One's CORPORATE ADVANTAGE Loan Program and EDUCATION ONE Loan
Program.
o Bank One, N.A., dated July 26, 2002, for loans that were originated
under Bank One's M&T REFERRAL Loan Program
o Charter One Bank, N.A., dated as of December 29, 2003 for loans that
were originated under Charter One's AAA Southern New England Bank Loan
Program.
o Charter One Bank, N.A., dated October 31, 2003, for loans that were
originated under Charter One's AES EducationGAIN Loan Program.
o Charter One Bank, N.A., dated May 15, 2002, for loans that were
originated under Charter One's (AMS) TuitionPay Diploma Loan Program.
o Charter One Bank, N.A., dated July 15, 2003, for loans that were
originated under Charter One's Brazos Alternative Loan Program.
o Charter One Bank, N.A., dated May 15, 2002, for loans that were
originated under Charter One's CFS Direct to Consumer Loan Program.
o Charter One Bank, N.A., dated June 30, 2003, for loans that were
originated under Charter One's Citibank Flexible Education Loan
Program.
o Charter One Bank, N.A., dated July 1, 2002, for loans that were
originated under Charter One's College Loan Corporation Loan Program.
o Charter One Bank, N.A., dated December 4, 2002, for loans that were
originated under Charter One's Comerica Alternative Loan Program.
o Charter One Bank, N.A., dated December 1, 2003, for loans that were
originated under Charter One's Custom Educredit Loan Program.
o Charter One Bank, N.A., dated May 10, 2004, for loans that were
originated under Charter One's Edfinancial Loan Program.
o Charter One Bank, N.A., dated May 15, 2002, for loans that were
originated under Charter One's Education Assistance Services Loan
Program.
o Charter One Bank, N.A., dated May 15, 2003, for loans that were
originated under Charter One's ESF Alternative Loan Program.
o Charter One Bank, N.A., dated September 15, 2003, for loans that were
originated under Charter One's Extra Credit II Loan Program (North
Texas Higher Education).
o Charter One Bank, N.A., dated September 20, 2003, for loans that were
originated under Charter One's M&I Alternative Loan Program.
o Charter One Bank, N.A., dated November 17, 2003, for loans that were
originated under Charter One's National Education Loan Program.
o Charter One Bank, N.A., dated May 15, 2003, for loans that were
originated under Charter One's Navy Federal Alternative Loan Program.
o Charter One Bank, N.A., dated May 15, 2002, for loans that were
originated under Charter One's NextStudent Alternative Loan Program.
o Charter One Bank, N.A., dated March 26, 2004, for loans that were
originated under Charter One's NextStudent Private Consolidation Loan
Program.
o Charter One Bank, N.A., dated March 17, 2003, for loans that were
originated under Charter One's PNC Bank Resource Loan Program.
o Charter One Bank, N.A., dated May 1, 2003, for loans that were
originated under Charter One's SAF Alternative Loan Program.
o Charter One Bank, N.A., dated September 20, 2002, for loans that were
originated under Charter One's Southwest Loan Program.
o Charter One Bank, N.A., dated March 25, 2004, for loans that were
originated under Charter One's START Education Loan Program.
o Charter One Bank, N.A., dated May 15, 2003, for loans that were
originated under Charter One's WAMU Alternative Student Loan Program.
o Chase Manhattan Bank USA, N.A., dated September 30, 2003, for loans
that were originated under Chase's Chase Extra Loan Program.
o Citizens Bank of Rhode Island, dated April 30, 2004, for loans that
were originated under Citizens Bank of Rhode Island's Compass Bank Loan
Program.
o Citizens Bank of Rhode Island, dated April 30, 2004, for loans that
were originated under Citizens Bank of Rhode Island's DTC Alternative
Loan Program.
o Citizens Bank of Rhode Island, dated April 30, 2004, for loans that
were originated under Citizens Bank of Rhode Island's Navy Federal
Referral Loan Program.
o Citizens Bank of Rhode Island, dated April 30, 2004, for loans that
were originated under
Citizens Bank of Rhode Island's Xanthus Loan Program.
o Citizens Bank of Rhode Island, dated October 1, 2002, for loans that
were originated under Citizens Bank of Rhode Island's Pennsylvania
State University Undergraduate and Continuing Education Loan Program.
o The Huntington National Bank, dated May 20, 2003, for loans that were
originated under The Huntington National Bank's Huntington Bank
Education Loan Program.
o Manufacturers and Traders Trust Company, dated April 29, 2004, for
loans that were originated under Manufacturers and Traders Trust
Company's Alternative Loan Program.
o National City Bank, dated November 13, 2002, for loans that were
originated under National City Bank's National City Loan Program.
o PNC Bank, N.A., dated April 22, 2004, for loans that were originated
under PNC Bank's Alternative Conforming Loan Program.
o SunTrust Bank, dated March 1, 2002, for loans that were originated
under SunTrust Bank's SunTrust Alternative Loan Program.
DEPOSIT AGREEMENTS
Each of the following Deposit and Security Agreements, as amended or
supplemented, was entered into by and among The Education Resources Institute,
Inc., The First Marblehead Corporation, U.S. Bank National Association
(successor in interest to State Street Bank and Trust Company) and:
o Bank of America, N.A., dated April 30, 2001, for loans that were
originated under Bank of America's BAGEL Loan Program, CEDU Loan
Program and ISLP Loan Program.
o Bank of America, N.A., dated June 30, 2003, for loans that were
originated under Bank of America's Direct to Consumer Loan Program.
o Bank One, N.A., dated April 30, 2001, for loans that were originated
under Bank One's CORPORATE ADVANTAGE Loan Program and EDUCATION ONE
Loan Program.
o Bank One, N.A., dated July 26, 2002, for loans that were originated
under Bank One's M&T REFERRAL Loan Program
o Charter One Bank, N.A., dated May 15, 2002, for loans that were
originated under Charter One's (AMS) TuitionPay Diploma Loan Program.
o Charter One Bank, N.A., dated July 15, 2003, for loans that were
originated under Charter One's Brazos Alternative Loan Program.
o Charter One Bank, N.A., dated May 15, 2002, for loans that were
originated under Charter One's CFS Direct to Consumer Loan Program.
o Charter One Bank, N.A., dated June 30, 2003, for loans that were
originated under Charter One's Citibank Flexible Education Loan
Program.
o Charter One Bank, N.A., dated July 1, 2002, for loans that were
originated under Charter One's College Loan Corporation Loan Program.
o Charter One Bank, N.A., dated December 4, 2002, for loans that were
originated under Charter One's Comerica Alternative Loan Program.
o Charter One Bank, N.A., dated May 15, 2002, for loans that were
originated under Charter One's Education Assistance Services Loan
Program.
o Charter One Bank, N.A., dated May 15, 2003, for loans that were
originated under Charter
One's ESF Alternative Loan Program.
o Charter One Bank, N.A., dated September 15, 2003, for loans that were
originated under Charter One's Extra Credit II Loan Program (North
Texas Higher Education).
o Charter One Bank, N.A., dated September 20, 2003, for loans that were
originated under Charter One's M&I Alternative Loan Program.
o Charter One Bank, N.A., dated May 15, 2003, for loans that were
originated under Charter One's Navy Federal Alternative Loan Program.
o Charter One Bank, N.A., dated May 15, 2002, for loans that were
originated under Charter One's NextStudent Alternative Loan Program.
o Charter One Bank, N.A., dated March 17, 2003, for loans that were
originated under Charter One's PNC Bank Resource Loan Program.
o Charter One Bank, N.A., dated May 1, 2003, for loans that were
originated under Charter One's SAF Alternative Loan Program.
o Charter One Bank, N.A., dated September 20, 2002, for loans that were
originated under Charter One's Southwest Loan Program.
o Charter One Bank, N.A., dated May 15, 2003, for loans that were
originated under Charter One's WAMU Alternative Student Loan Program.
o Citizens Bank of Rhode Island, dated October 1, 2002, for loans that
were originated under Citizens Bank of Rhode Island's Pennsylvania
State University Undergraduate and Continuing Education Loan Program.
o The Huntington National Bank, dated May 20, 2003, for loans that were
originated under The Huntington National Bank's Huntington Bank
Education Loan Program.
o National City Bank, dated July 26, 2002, for loans that were originated
under National City Bank's National City Loan Program.
o SunTrust Bank, dated March 1, 2002, for loans that were originated
under SunTrust Bank's SunTrust Alternative Loan Program.
Each of the following Control Agreements, as amended or supplemented, was
entered into by and among The First Marblehead Corporation, U.S. Bank National
Association and:
o Charter One Bank, N.A., dated December 29, 2003, for loans that were
originated under Charter One's AAA Southern New England Bank Loan
Program.
o Charter One Bank, N.A., dated October 31, 2003, for loans that were
originated under Charter One's AES EducationGAIN Loan Program.
o Charter One Bank, N.A., dated December 1, 2003, for loans that were
originated under Charter One's Custom Educredit Loan Program.
o Charter One Bank, N.A., dated May 10, 2004, for loans that were
originated under Charter One's Edfinancial Loan Program.
o Charter One Bank, N.A., dated November 17, 2003, for loans that were
originated under Charter One's National Education Loan Program.
o Charter One Bank, N.A., dated March 26, 2004, for loans that were
originated under Charter One's NextStudent Private Consolidation Loan
Program.
o Charter One Bank, N.A., dated March 1, 2004, for loans that were
originated under Charter One's START Education Loan Program.
o Chase Manhattan Bank USA, N.A., dated September 30, 2003, for loans
that were originated
under Chase's Chase Extra Loan Program.
o Citizens Bank of Rhode Island, dated April 30, 2004, for loans that
were originated under Citizens Bank of Rhode Island's Compass Bank Loan
Program.
o Citizens Bank of Rhode Island, dated April 30, 2004, for loans that
were originated under Citizens Bank of Rhode Island's DTC Alternative
Loan Program.
o Citizens Bank of Rhode Island, dated April 30, 2004, for loans that
were originated under Citizens Bank of Rhode Island's Navy Federal
Referral Loan Program.
o Citizens Bank of Rhode Island, dated April 30, 2004, for loans that
were originated under Citizens Bank of Rhode Island's Xanthus Loan
Program
o Manufacturers and Traders Trust Company, dated April 29, 2004, for
loans that were originated under Manufacturers and Traders Trust
Company's Alternative Loan Program.
o PNC Bank, dated April 22, 2004, for loans that were originated under
PNC Bank's PNC Bank Alternative Loan Program.
Each of the following Security Agreements, as amended or supplemented, was
entered into by and between The Education Resources Institute, Inc. and:
o Charter One Bank, N.A., dated December 29, 2003, for loans that were
originated under Charter One's AAA Southern New England Bank Loan
Program.
o Charter One Bank, N.A., dated October 31, 2003, for loans that were
originated under Charter One's AES EducationGAIN Loan Program.
o Charter One Bank, N.A., dated December 1, 2003, for loans that were
originated under Charter One's Custom Educredit Loan Program.
o Charter One Bank, N.A., dated May 10, 2004, for loans that were
originated under Charter One's Edfinancial Loan Program.
o Charter One Bank, N.A., dated November 17, 2003, for loans that were
originated under Charter One's National Education Loan Program.
o Charter One Bank, N.A., dated March 26, 2004, for loans that were
originated under Charter One's NextStudent Private Consolidation Loan
Program.
o Charter One Bank, N.A., dated March 1, 2004, for loans that were
originated under Charter One's START Education Loan Program.
o Chase Manhattan Bank USA, N.A., dated September 30, 2003, for loans
that were originated under Chase's Chase Extra Loan Program.
o Citizens Bank of Rhode Island, dated April 30, 2004, for loans that
were originated under Citizens Bank of Rhode Island's Compass Bank Loan
Program.
o Citizens Bank of Rhode Island, dated April 30, 2004, for loans that
were originated under Citizens Bank of Rhode Island's DTC Alternative
Loan Program.
o Citizens Bank of Rhode Island, dated April 30, 2004, for loans that
were originated under Citizens Bank of Rhode Island's Navy Federal
Referral Loan Program.
o Citizens Bank of Rhode Island, dated April 30, 2004, for loans that
were originated under Citizens Bank of Rhode Island's Xanthus Loan
Program
o Manufacturers and Traders Trust Company, dated April 29, 2004, for
loans that were originated under Manufacturers and Traders Trust
Company's Alternative Loan Program.
o PNC Bank, dated April 22, 2004, for loans that were originated under
PNC Bank's PNC Bank Alternative Loan Program.
EXHIBIT 1
PAYMENT OF GUARANTY CLAIMS DIRECTION LETTER
[XXXX LETTERHEAD]
FIRST MARBLEHEAD DATA SERVICES, INC.
000 XXXX XXXXXX, 00XX XXXXX
XXX XXXX, XX 00000
WITH A COPY TO:
U.S. BANK NATIONAL ASSOCIATION
CORPORATE TRUST SERVICES-SFS
XXX XXXXXXX XXXXXX, 0XX XXXXX
XXXXXX, XX 00000
Re: XXXX/NCT Pledged Account #
Ladies and Gentlemen:
Reference is made to (i) the Deposit and Security Agreement (the
"AGREEMENT"), dated as of February 23, 2005, by and among THE EDUCATION
RESOURCES INSTITUTE, INC. ("XXXX"), FIRST MARBLEHEAD DATA SERVICES, INC. and THE
NATIONAL COLLEGIATE STUDENT LOAN TRUST 2005-1. Capitalized terms used and not
otherwise defined herein have the respective meanings ascribed to such terms in
the Agreement.
In accordance with the Agreement, please remit $___________________ in
Guarantee Claims to
U.S. Bank National Association
ABA # [_______________]
Corporate Trust Department
DDA A/C# [____________]
Attention: [__________________________]Collateral Proceeds Acct.
SEI#: [________________]
In addition, please fax this direction letter along with the attached
breakdown, which lists the Loan(s), associated with the above-referenced claim
funds to:
[OWNER] Attention: [Name]; and [SERVICER] Attention: [Name]:
Fax Number: ____________ Fax Number: ____________
Please contact me at [XXXX CONTACT TELEPHONE NUMBER] should you have any
questions regarding this request.
Authorized Signature
XXXX
Enc
EXHIBIT 2
RECOVERIES LETTER
[XXXX LETTERHEAD]
FIRST MARBLEHEAD DATA SERVICES, INC.
000 XXXX XXXXXX, 00XX XXXXX
XXX XXXX, XX 00000
WITH A COPY TO:
U.S. BANK NATIONAL ASSOCIATION
CORPORATE TRUST SERVICES-SFS
XXX XXXXXXX XXXXXX, 0XX XXXXX
XXXXXX, XX 00000
Re: XXXX/NCT Pledged Account #
Ladies and Gentlemen:
Reference is made to the Deposit and Security Agreement (the
"AGREEMENT"), dated as of February 23, 2005, by and among THE EDUCATION
RESOURCES INSTITUTE, INC., ("XXXX"), FIRST MARBLEHEAD DATA SERVICES, INC. and
THE NATIONAL COLLEGIATE STUDENT LOAN TRUST 2005-1. Capitalized terms used and
not otherwise defined herein have the respective meanings ascribed to such terms
in the Agreement.
In accordance with the Agreement, the following amounts will be wired
to the Pledged Account:
1. $____________________ Total Guaranty Fees*
*ATTACHED IS A LIST OF EACH LOAN NAME, LOAN NUMBER AND AMOUNT
ASSOCIATED WITH THIS GUARANTY FEE REMITTANCE.
2. $____________________ Total Recovery**
** ATTACHED IS A LIST OF EACH LOAN NAME, LOAN NUMBER AND AMOUNT
ASSOCIATED WITH THIS RECOVERY REMITTANCE.
$_____________________ Total Amount wired to the Trustee
The above-referenced funds will be wired to the Trustee using the following wire
instruction:
U.S. BANK NATIONAL ASSOCIATION
XXXXXX, XX 00000
ABA # [_______________]
A/C# [_______________]
PLEDGED ACCOUNT
SEI ###### - 000
Please contact me at [XXXX CONTACT TELEPHONE NUMBER] should you have any
questions regarding this request.
Authorized Signature
[XXXX]
EXHIBIT 3
REQUEST FOR REIMBURSEMENT OF INCOME TAX OR OTHER TAX AMOUNTS
[XXXX LETTERHEAD]
U.S. BANK NATIONAL ASSOCIATION
CORPORATE TRUST SERVICES-SFS
XXX XXXXXXX XXXXXX, 0XX XXXXX
XXXXXX, XX 00000
FIRST MARBLEHEAD DATA SERVICES, INC.
000 XXXX XXXXXX, 00XX XXXXX
XXX XXXX, XX 00000
Re: XXXX/NCT Pledged Account #
Ladies and Gentlemen:
Reference is made to (i) the Deposit and Security Agreement (the
"AGREEMENT"), dated as of February 23, 2005, by and among THE EDUCATION
RESOURCES INSTITUTE, INC., ("XXXX"), FIRST MARBLEHEAD DATA SERVICES, INC. and
THE NATIONAL COLLEGIATE STUDENT LOAN TRUST 2005-1. Capitalized terms used and
not otherwise defined herein have the respective meanings ascribed to such terms
in the Agreement.
In accordance with Section 3(d)(ii) of the Agreement, this is to inform
you that XXXX has been assessed and has paid the sum of
$______________________________ in income or excise taxes with respect to income
earned on the Pledged Account. We hereby request reimbursement of such amount to
be sent as follows:
PLEASE USE THE FOLLOWING WIRE INSTRUCTIONS:
[Bank Name]
[Bank Location]
ABA #
A/C#
ATTENTION: XXXX
Comments:
In accordance with the Agreement, we are forwarding a copy of this
request to the Owner and the Trustee. We have also enclosed documentation to
support this request.
Please contact me at [XXXX CONTACT TELEPHONE NUMBER] should you have
any questions regarding this request.
Authorized Signature
XXXX
Enc
