DEPOSIT AND SECURITY AGREEMENT THE NATIONAL COLLEGIATE STUDENT LOAN TRUST 2006-3
Exhibit
99.19
This
Deposit and Security Agreement (the “Agreement”)
is
made and entered into as of September 28, 2006, 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 laws of the
Commonwealth of Massachusetts with its principal place of business at 000
Xxxxxxxx - 00xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the “Administrator”),
and
THE NATIONAL COLLEGIATE STUDENT LOAN TRUST 2006-3, 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, as Indenture
Trustee (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 September 28, 2006.
(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:
(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 but not limited
to:
·
U.S.
treasury obligations
· All
direct or fully guaranteed obligations
· Farmers
Home Administration
· General
Services Administration
· Guaranteed
Title XI financing
· Government
National Mortgage Association (GNMA)
· 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:
· Federal
Home Loan Mortgage Corp. (FHLMC) Debt obligations
· Farm
Credit System (formerly: Federal Land Banks, Federal
Intermediate
Credit Banks, and Banks for Cooperatives)
· Federal
Home Loan Banks (FHL Banks)
· Federal
National Mortgage Association (FNMA) debt obligations
· Financing
Corp. (FICO) debt obligations
· Resolution
Funding Corp. (REFCORP) debt obligations
· U.S.
Agency for International Development (U.S. A.I.D)
guaranteed
notes
(D) 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: “A-1+” by S&P, “P-1” by Xxxxx’x and
“F1” by Fitch (if rated 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);
(E) Commercial
paper that meets the ratings of the following listed rating agencies at the
time
of purchase: (1) “A-1+” by S&P, “P-1” by Xxxxx’x and “F1” by Fitch (if rated
by Fitch); which matures not more than 270 calendar days after the date of
purchase;
(F) Investments
in a money market fund rated “AAAm” or “AAA-m” by S&P and “Aaa” by
Xxxxx’x;
(G) 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 S&P, Xxxxx’x and Fitch (if rated by Fitch) or any
successors thereto; or
(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;
(H) Any
other
investment that is confirmed 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.
(e) “Existing
Pledged Account”
means
the Pledged Account, if any, created pursuant to the Account Security Agreements
and named therein the “Pledged Account.”
(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 September 1, 2006, 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
each
Loan listed on Schedule
C-1
attached
hereto and equal to an additional 1.00% of the principal amount of each Loan
listed on Schedule
C-2
attached
hereto payable in accordance with each of the Guaranty Agreements and Master
Loan Guaranty Agreement, dated as of February 2, 2001 by and between The First
Marblehead Corporation and XXXX, as amended or supplemented.
2. Creation
and Funding of the Pledged Account.
Upon
the execution of this Agreement, XXXX shall establish with the Trustee an
account in the name of XXXX (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
certain Guaranty Fees payable on the Closing Date with respect to the Loans
being purchased, and (c) by XXXX with all 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 Collection Account
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 on behalf of Owner 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.
(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, notify the Trustee of such denial 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 listed on Schedule
C-3
attached
hereto.
(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.
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 U.S. Bank National Association as 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 securities intermediary (as
defined in § 8-102(a)(14) 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
and
receive, any and all such interest, dividends and/or other earnings;
and
(v) All
the
proceeds of all of the foregoing;
(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 each of the Guaranty Agreements, 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), 4 and 13, or as otherwise
specifically permitted by this Agreement) 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. 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 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 be
remitted to the Trustee (properly endorsed for collection where required),
on
the 15th
day of
each month, for Recoveries received during the preceding month, 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 or Trustee 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.
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
(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 by the Trustee in accordance
with 8.02(c)(F) of the Indenture 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.
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, subject to the exercise of judicial
discretion in accordance with general principles of equity, the valid exercise
of state police powers and the constitutional powers of the United States of
America, and bankruptcy, insolvency, reorganization, moratorium or similar
laws
affecting creditors’ rights generally.
(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” or “general
intangibles” or “accounts” within the meaning of the applicable
UCC.
(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 in which a security interest
can
be perfected by the filing of a financing statement in such office.
(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, 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
of books and Records.
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 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.
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.
The
Prudential Tower
000
Xxxxxxxx Xxxxxx - 00xx
Xxxxx
Xxxxxx,
XX 00000-0000
Attention:
Xx. Xxxxxxx Xxxxxxxxxxx
with
a
copy to:
First
Marblehead Corporation
The
Prudential Tower
000
Xxxxxxxx Xxxxxx - 00xx
Xxxxx
Xxxxxx,
XX 00000-0000
Attention:
Corporate Law Department
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 Wilmington Trust Company (“WTC”),
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 WTC 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 WTC, 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 WTC 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]
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 and CEO
|
||||
|
FIRST
MARBLEHEAD DATA SERVICES, INC.
|
||||
|
By:
/s/
Xxxxxxx Xxxxxxxxxxx
|
||||
|
Name:
Xxxxxxx Xxxxxxxxxxx
|
||||
|
Title:
President
|
||||
|
By:
|
WILMINGTON TRUST COMPANY, acting solely as Owner Trustee and not in its individual capacity | |||
|
By:
/s/ J. Xxxxxxxxxxx Xxxxxx
|
||||
|
Name:
J. Xxxxxxxxxxx Xxxxxx
|
||||
|
Title:
Financial Services Officer
|
||||
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
Schedule
C - Loan Rosters
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.
| · |
BAGEL
(Bank of America Private) Loan Program
|
| · |
Bank
of America XXXX Loan Program
|
| · |
Direct
to Consumer (DTC) Loan Program
|
| · |
ISLP
Loan Program
|
Charter
One Bank, N.A.
| · |
AAA
Southern New England Bank
|
| · |
AES
EducationGAIN Loan Program
|
| · |
Astrive
Education Loan Program
|
| · |
Astrive
Alliance Education Loan Program
|
| · |
Axiom
Alternative Loan Program
|
| · |
CFS
Direct to Consumer Loan Program
|
| · |
Citibank
Education Assistance Loan Program
|
| · |
College
Board Alternative Loan Program
|
| · |
College
Loan Corporation Loan Program
|
| · |
Collegiate
Solutions Alternative Loan Program
|
| · |
Custom
Educredit Loan Program
|
| · |
EdFinancial
Loan Program
|
| · |
Extra
Credit II Loan Program (North Texas Higher
Education)
|
| · |
M&I
Alternative Loan Program
|
| · |
National
Education Loan Program
|
| · |
NextStudent
Alternative Loan Program
|
| · |
NextStudent
Private Consolidation Loan Program
|
| · |
UPromise
Alternative Loan Program
|
| · |
WAMU
Alternative Student Loan Program
|
Citizens
Bank of Rhode Island
| · |
Compass
Bank Loan Program
|
| · |
Alternative
Loan Program (DTC and School Channel)
|
| · |
FinanSure
Alternative Loan Program
|
| · |
Navy
Federal Referral Loan Program
|
| · |
Penn
State Undergraduate Loan Program
|
| · |
Xanthus
Loan Program
|
First
National Bank Northeast
| · |
Nelnet
Alternative Loan Program
|
HSBC
Bank
USA, National Association
| · |
Alternative
Loan Program
|
| · |
The
Huntington National Bank
|
| · |
Huntington
Bank Education Loan Program
|
JPMorgan
Chase Bank, N.A.
| · |
CORPORATE
ADVANTAGE Loan Program
|
| · |
EDUCATION
ONE Loan Program
|
| · |
Campus
One Loan Program
|
KeyBank,
N.A.
| · |
KeyBank
Private Education Loan Program
|
Manufacturers
and Traders Trust Company
| · |
M&T
Alternative Loan Program
|
PNC
Bank,
N.A.
| · |
PNC
Bank Alternative Loan Program
|
| · |
Brazos
Alternative Loan Program
|
| · |
Edvisors
Alternative Loan Program
|
| · |
GE
Money Bank Alternative Loan Program
|
| · |
Old
National Bank Alternative Loan Program
|
| · |
Regions
Bank Alternative Loan Program
|
Sovereign
Bank
| · |
Alternative
Loan Program
|
SunTrust
Bank
| · |
SunTrust
Alternative Loan Program
|
TCF
National Bank
| · |
TCF
National Bank Alternative Loan Program
|
U.S.
Bank, N.A.
| · |
U.S
Bank Alternative Loan Program
|
SCHEDULE
B
Loan
Originators, Guaranty Agreements, Student Loan Purchase Agreements and Account
Security Agreements
Loan
Originators
| · |
Bank
of America, N.A.
|
| · |
Charter
One Bank, N.A.
|
| · |
Citizens
Bank of Rhode Island
|
| · |
First
National Bank Northeast
|
| · |
HSBC
Bank USA, National Association
|
| · |
The
Huntington National Bank
|
| · |
JPMorgan
Chase Bank, N.A. (as successor to Bank One,
N.A.)
|
| · |
KeyBank,
N.A.
|
| · |
Manufacturers
and Traders Trust Company
|
| · |
National
City Bank
|
| · |
PNC
Bank, N.A.
|
| · |
Sovereign
Bank
|
| · |
SunTrust
Bank
|
| · |
TCF
National Bank.
|
| · |
U.S.
Bank, N.A.
|
Guaranty
Agreements
Each
of
the following Guaranty Agreements, as amended or supplemented, was entered
into
by and between The Education Resources Institute, Inc. and:
| · |
Bank
of America, N.A., dated April 30, 2001, for loans that were originated
under Bank of America’s BAGEL Loan Program, XXXX Loan Program and ISLP
Loan Program.
|
| · |
Bank
of America, N.A., dated June 30, 2006, for loans that were originated
under Bank of America’s BAGEL Loan Program, XXXX Loan Program and ISLP
Loan Program.
|
| · |
Bank
of America, N.A., dated June 30, 2003, for loans that were originated
under Bank of America’s Direct to Consumer Loan
Program.
|
| · |
Bank
One, N.A., dated May 13, 2002, for loans that were originated under
Bank
One’s CORPORATE ADVANTAGE Loan Program, EDUCATION ONE Loan Program, and
Campus One Loan Program.
|
| · |
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.
|
| · |
Charter
One Bank, N.A., dated October 31, 2003, for loans that were originated
under Charter One’s AES EducationGAIN Loan
Program.
|
| · |
Charter
One Bank, N.A., dated March 25, 2004, for loans that were originated
under
Charter One’s Astrive and AstriveAlliance Education Loan
Program.
|
| · |
Charter
One Bank, N.A., dated May 15, 2002, for loans that were originated
under
Charter One’s CFS Direct to Consumer Loan
Program.
|
| · |
Charter
One Bank, N.A., dated June 30, 2003, for loans that were originated
under
Charter One’s Citibank Education Assistance Loan
Program.
|
| · |
Charter
One Bank, N.A., dated July 1, 2002, for loans that were originated
under
Charter One’s College Loan Corporation Loan
Program.
|
| · |
Charter
One Bank, N.A., dated December 1, 2003, for loans that were originated
under Charter One’s Custom Educredit Loan
Program.
|
| · |
Charter
One Bank, N.A., dated May 10, 2004, for loans that were originated
under
Charter One’s Edfinancial Loan Program.
|
| · |
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).
|
| · |
Charter
One Bank, N.A., dated September 20, 2003, for loans that were originated
under Charter One’s M&I Alternative Loan
Program.
|
| · |
Charter
One Bank, N.A., dated November 17, 2003, for loans that were originated
under Charter One’s National Education Loan
Program.
|
| · |
Charter
One Bank, N.A., dated May 15, 2002, for loans that were originated
under
Charter One’s NextStudent Alternative Loan
Program.
|
| · |
Charter
One Bank, N.A., dated March 26, 2004, for loans that were originated
under
Charter One’s NextStudent Private Consolidation Loan
Program.
|
| · |
Charter
One Bank, N.A., dated May 15, 2003, for loans that were originated
under
Charter One’s WAMU Alternative Student Loan
Program.
|
| · |
Charter
One Bank, N.A., dated February 15, 2005, for loans that were originated
under Charter One’s Referral Loan Program, including the UPromise
Alternative Loan Program, Collegiate Solutions Alternative Loan Program,
College Board Alternative Loan Program, and Axiom Alternative Loan
Program.
|
| · |
Citizens
Bank of Rhode Island, dated April 30, 2004, for loans that were originated
under Citizens Bank of Rhode Island’s Alternative Loan Program, Compass
Bank Alternative Loan Program, FinanSure Alternative Loan Program,
Navy
Federal Alternative Loan Program, and Xanthus Alternative Loan
Program.
|
| · |
Citizens
Bank of Rhode Island, dated October 1, 2002, for loans that were
originated under Citizens Bank of Rhode Island’s Penn State Undergraduate
Loan Program.
|
| · |
First
National Bank Northeast, dated August 1, 2001, for loans that were
originated under First National Bank Northeast’s CASL Undergraduate
Alternative Loan Program.
|
| · |
HSBC
Bank USA, National Association, dated April 17, 2002, for loans that
were
originated under the HSBC Loan Program.
|
| · |
The
Huntington National Bank, dated May 20, 2003, for loans that were
originated under The Huntington National Bank’s Huntington Bank Education
Loan Program.
|
| · |
KeyBank,
dated May 12, 2006, for loans that were originated under KeyBank’s Private
Education Loan Program.
|
| · |
Manufacturers
and Traders Trust Company, dated April 29, 2004, for loans that were
originated under Manufacturers and Traders Trust Company’s Alternative
Loan Program.
|
| · |
National
City Bank, dated July 26, 2002, for loans that were originated under
National City Bank’s National City Loan
Program.
|
| · |
PNC
Bank, N.A., dated April 22, 2004, for loans that were originated under
PNC
Bank’s Alternative Conforming Loan Program, Brazos Alternative Loan
Program, Edvisors Alternative Loan Program, GE Money Bank Alternative
Loan
Prorgam, Old National Bank Alternative Loan Program, and Regions Bank
Alternative Loan Program..
|
| · |
Sovereign
Bank, dated April 30, 2004, for loans that were originated under Sovereign
Bank’s Alternative Loan Program.
|
| · |
SunTrust
Bank, dated March 1, 2002, for loans that were originated under SunTrust
Bank’s SunTrust Alternative Loan Program.
|
| · |
TCF
National Bank, dated July 22, 2005, for loans that were originated
under
TCF National Bank’s Alternative Loan
Program.
|
| · |
U.S.
Bank, N.A., dated May 1, 2005, for loans that were originated under
U.S
Bank’s Alternative Loan Program.
|
Student
Loan Purchase Agreements
Each
of
the Note Purchase Agreements, as amended or supplemented, was entered into
by
and between The First Marblehead Corporation and:
| · |
Bank
of America, N.A., dated April 30, 2001, for loans that were originated
under Bank of America’s BAGEL Loan Program, XXXX Alternative Loan Program
and ISLP Loan Program.
|
| · |
Bank
of America, N.A., dated June 30, 2006, for loans that were originated
under Bank of America’s BAGEL Loan Program, XXXX Alternative Loan Program
and ISLP Loan Program.
|
| · |
Bank
of America, N.A., dated June 30, 2003, for loans that were originated
under Bank of America’s Direct to Consumer Loan
Program.
|
| · |
Bank
of America, N.A., dated April 1, 2006, for loans that were originated
under Bank of America’s Direct to Consumer Loan
Program.
|
| · |
Bank
One, N.A., dated May 1, 2002, for loans that were originated under
Bank
One’s CORPORATE ADVANTAGE Loan Program, EDUCATION ONE Loan Program, and
Campus One Loan Program.
|
| · |
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.
|
| · |
Charter
One Bank, N.A., dated October 31, 2003, for loans that were originated
under Charter One’s AES EducationGAIN Loan
Program.
|
| · |
Charter
One Bank, N.A., dated May 15, 2002, for loans that were originated
under
Charter One’s CFS Direct to Consumer Loan
Program.
|
| · |
Charter
One Bank, N.A., dated June 30, 2003, for loans that were originated
under
Charter One’s Citibank Education Assistance Loan
Program.
|
| · |
Charter
One Bank, N.A., dated July 1, 2002, for loans that were originated
under
Charter One’s College Loan Corporation Loan
Program.
|
| · |
Charter
One Bank, N.A., dated December 1, 2003, for loans that were originated
under Charter One’s Custom Educredit Loan
Program.
|
| · |
Charter
One Bank, N.A., dated May 10, 2004, for loans that were originated
under
Charter One’s EdFinancial Loan Program.
|
| · |
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).
|
| · |
Charter
One Bank, N.A., dated September 20, 2003, for loans that were originated
under Charter One’s M&I Alternative Loan
Program.
|
| · |
Charter
One Bank, N.A., dated November 17, 2003, for loans that were originated
under Charter One’s National Education Loan
Program.
|
| · |
Charter
One Bank, N.A., dated May 15, 2002, for loans that were originated
under
Charter One’s NextStudent Alternative Loan
Program.
|
| · |
Charter
One Bank, N.A., dated March 26, 2004, for loans that were originated
under
Charter One’s NextStudent Private Consolidation Loan
Program.
|
| · |
Charter
One Bank, N.A., dated March 25, 2004, for loans that were originated
under
Charter One’s Astrive and AstriveAlliance Education Loan
Programs.
|
| · |
Charter
One Bank, N.A., dated May 15, 2003, for loans that were originated
under
Charter One’s WAMU Alternative Student Loan
Program.
|
| · |
Charter
One Bank, N.A., dated February 15, 2005, for loans that were originated
under Charter One’s Referral Loan Program (including loans in the UPromise
Alternative Loan Program, Collegiate Solutions Alternative Loan Program,
College Board Alternative Loan Program, and Axiom Alternative Loan
Programs).
|
| · |
Citizens
Bank of Rhode Island, dated April 30, 2004, for loans that were originated
under Citizens Bank of Rhode Island’s Alternative Loan Program, Compass
Bank Alternative Loan Program, FinanSure Alternative Loan Program,
Navy
Federal Alternative Loan Program, and Xanthus Alternative Loan
Program.
|
| · |
Citizens
Bank of Rhode Island, dated October 1, 2002, for loans that were
originated under Citizens Bank of Rhode Island’s Penn State Undergraduate
Loan Program.
|
| · |
First
National Bank Northeast, dated August 1, 2001, for loans that were
originated under First National Bank Northeast’s CASL Undergraduate
Alternative Loan Program.
|
| · |
HSBC
Bank USA, National Association, dated April 17, 2002, as amended on
June
2, 2003 and August 1, 2003, for loans that were originated under the
HSBC
Loan Program.
|
| · |
The
Huntington National Bank, dated May 20, 2003, for loans that were
originated under The Huntington National Bank’s Huntington Bank Education
Loan Program.
|
| · |
KeyBank,
dated May 12, 2006, for loans that were originated under KeyBank’s Private
Education Loan Program.
|
| · |
Manufacturers
and Traders Trust Company, dated April 29, 2004, for loans that were
originated under Manufacturers and Traders Trust Company’s Alternative
Loan Program.
|
| · |
National
City Bank, dated November 13, 2002, for loans that were originated
under
National City Bank’s National City Loan
Program.
|
| · |
PNC
Bank, N.A., dated April 22, 2004, for loans that were originated under
PNC
Bank’s Alternative Conforming Loan Program, Brazos Alternative Loan
Program, Edvisors Alternative Loan Program, GE Money Bank Alternative
Loan
Prorgam, Old National Bank Alternative Loan Program, and Regions Bank
Alternative Loan Program.
|
| · |
Sovereign
Bank, dated April 30, 2004, for loans that were originated under Sovereign
Bank’s Alternative Loan Program.
|
| · |
SunTrust
Bank, dated March 1, 2002, for loans that were originated under SunTrust
Bank’s SunTrust Alternative Loan Program.
|
| · |
TCF
National Bank, dated July 22, 2005, for loans that were originated
under
TCF National Bank’s Alternative Loan
Program.
|
| · |
U.S.
Bank, N.A., dated May 1, 2005, for loans that were originated under
U.S
Bank’s Alternative Loan Program.
|
Deposit
Agreements
Each
of
the following Deposit and Security Agreements or Security Agreements and Control
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:
| · |
Bank
of America, N.A., dated April 30, 2001, for loans that were originated
under Bank of America’s BAGEL Loan Program, XXXX Loan Program and ISLP
Loan Program.
|
| · |
Bank
of America, N.A., dated June 30, 2003, for loans that were originated
under Bank of America’s Direct to Consumer Loan
Program.
|
| · |
Bank
One, N.A., dated April 30, 2001, for loans that were originated under
Bank
One’s CORPORATE ADVANTAGE Loan Program, EDUCATION ONE Loan Program, and
Campus One Loan Program.
|
| · |
Citizens
Bank of Rhode Island, for loans that were originated under Citizens
Bank
of Rhode Island’s Penn State Undergraduate Loan
Program.
|
| · |
First
National Bank Northeast, dated August 1, 2001, for loans that were
originated under First National Bank Northeast’s Nelnet Alternative Loan
Program.
|
| · |
HSBC
Bank USA, National Association, dated April 17, 2002, for loans that
were
originated under the HSBC Loan Program.
|
| · |
The
Huntington National Bank, dated May 20, 2003, for loans that were
originated under The Huntington National Bank’s Huntington Bank Education
Loan Program.
|
| · |
National
City Bank, dated July 26, 2002, for loans that were originated under
National City Bank’s National City Loan
Program.
|
| · |
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:
| · |
Charter
One Bank, N.A., dated March 1, 2004, for all XXXX-guaranteed loan programs
funded by Charter One Bank, N.A.
|
| · |
Citizens
Bank of Rhode Island, dated April 30, 2004, for all loan XXXX-guaranteed
programs funded by Citizens Bank of Rhode Island other than the Citizens
Bank Penn State Undergraduate Loan
Program.
|
| · |
KeyBank,
N.A., dated May 12, 2006, for loan originated in the the KeyBank Private
Education Loan Program.
|
| · |
Manufacturers
and Traders Trust Company, dated April 29, 2004, for loans that were
originated under Manufacturers and Traders Trust Company’s Alternative
Loan Program.
|
| · |
PNC
Bank, N.A., dated April 22, 2004, for all TERU-guaranteed loan programs
funded by PNC Bank, N.A..
|
| · |
Sovereign
Bank, dated April 30, 2004, for loans that were originated under Sovereign
Bank’s Alternative Loan Program.
|
| · |
TCF
National Bank, dated July 22, 2005, for loans that were originated
under
TCF National Bank’s Alternative Loan
Program.
|
| · |
U.S.
Bank, N.A., dated May 1, 2005, for loans that were originated under
U.S
Bank’s 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:
| · |
Charter
One Bank, N.A., dated March 1, 2004, for all XXXX-guaranteed loan programs
funded by Charter One Bank, N.A..
|
| · |
Citizens
Bank of Rhode Island, dated April 30, 2004, for all XXXX-guaranteed
loan
programs funded by Citizens Bank of Rhode
Island.
|
| · |
KeyBank,
N.A., dated May 12, 2006, for loan originated in the the KeyBank Private
Education Loan Program.
|
| · |
Manufacturers
and Traders Trust Company, dated April 29, 2004, for loans that were
originated under Manufacturers and Traders Trust Company’s Alternative
Loan Program.
|
| · |
PNC
Bank, N.A., dated April 22, 2004, for all XXXX-guaranteed loan programs
funded by PNC Bank, N.A..
|
| · |
Sovereign
Bank, dated April 30, 2004, for loans that were originated under Sovereign
Bank’s Alternative Loan Program.
|
| · |
TCF
National Bank, dated July 22, 2005, for loans that were originated
under
TCF National Bank’s Alternative Loan
Program.
|
| · |
U.S.
Bank, N.A., dated May 1, 2005, for loans that were originated under
U.S
Bank’s Alternative Loan Program.
|
SCHEDULE
C-1
[On
file with Trustee]
SCHEDULE
C-2
[On
file with Trustee]
SCHEDULE
C-3
[On
file with Trustee]
EXHIBIT
1
Payment
of Guaranty Claims Direction Letter
[XXXX
LETTERHEAD]
First
Marblehead Data Services, Inc.
The
Prudential Tower
000
Xxxxxxxx Xxxxxx - 00xx
Xxxxx
Xxxxxx,
XX 00000-0000
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 September 28, 2006, by and among THE EDUCATION RESOURCES INSTITUTE, INC.
(“XXXX”),
FIRST
MARBLEHEAD DATA SERVICES, INC. and THE NATIONAL COLLEGIATE STUDENT LOAN TRUST
2006-3. 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.
The
Prudential Tower
000
Xxxxxxxx Xxxxxx - 00xx
Xxxxx
Xxxxxx,
XX 00000-0000
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 September 28, 2006, by and among THE EDUCATION RESOURCES INSTITUTE, INC.,
(“XXXX”),
FIRST
MARBLEHEAD DATA SERVICES, INC. and THE NATIONAL COLLEGIATE STUDENT LOAN TRUST
2006-3. 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.
The
Prudential Tower
000
Xxxxxxxx Xxxxxx - 00xx
Xxxxx
Xxxxxx,
XX 00000-0000
Re:
XXXX/NCT Pledged Account #
Ladies
and Gentlemen:
Reference
is made to (i) the Deposit and Security Agreement (the “Agreement”),
dated
as of September 28, 2006, by and among THE EDUCATION RESOURCES INSTITUTE, INC.,
(“XXXX”),
FIRST
MARBLEHEAD DATA SERVICES, INC. and THE NATIONAL COLLEGIATE STUDENT LOAN TRUST
2006-3. 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
